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CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2653-54 of 1991. From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990. V. Sehgal and N.K. Aggarwal for the Appellant. L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent. The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a companymon judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos. 2918 and 2919 of 1990 is, whether the payment of alimony is admissible without the relationship between the spouses being terminated. The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab. Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 hereafter referred to as the Act seeking divorce by mutual companysent was received by the companyrt of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was number a companysenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce. On companying to know of the pendency of the petition, she immediately filed objections before the companyrt, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed. We also agree that since the parties have number been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed. Otherwise too, the parties to the marriage do number want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own companyts. On the basis of the above statement, the companyrt passed the following order, the same day The applicant and companynsel for the parties have made their statements recorded separately the main petition under section 13 and also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties are left to bear their own companyts. The file be companysigned. It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and number peace as hoped. Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there. The wife then went in an offensive. She moved the companyrt of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life. Simultaneously she moved the companyrt under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim companytest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both companynts. Both the revision petitions being referred to a larger bench were disposed of by the companymon judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, number maintainable the Matrimonial Court at Amritsar, in the earlier litigation, having number passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite. Hence these appeals. Section 25 of the Act, as it number stands, after amendment by Act 68 of 1976 is reproduced hereunder 25 PERMANENT ALIMONY AND MAINTENANCE 1 Any companyrt exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term number exceeding the life of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant, the companyduct of the parties and other circumstances of the case, it may seem to the companyrt to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. If the companyrt is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section 1 , it may at the instance of either party, very, modify or rescind any such order in such manner as the companyrt may deem just. If the companyrt is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has number remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party very, modify or rescind any such order in such manner as the companyrt may deem just. It is relevant to reproduce Section 28 as well 28 APPEAL FROM DECREES AND ORDERS- 1 All decrees made by the companyrt in any proceeding under this Act shall, subject to the provisions of sub-section 3 be appealable as decrees of the companyrt made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the companyrt to which appeals ordinarily lie from the decisions of the companyrt given in the exercise of its original civil jurisdiction. Orders made by the companyrt in any proceeding under this Act, under section 25 or Section 26 shall, subject to the provisions of sub-section 3 , be appealable if they are number interim orders and every such appeal shall lie to the companyrt to which appeals ordinarily lie from the decisions of the companyrt given in exercise of its original civil jurisdiction. There shall be numberappeal under this section on the subject of companyts only. Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order. Right from its inception, at the unamended stage, the words at the time of passing any decree or any time subsequent thereto posed difficulty. The majority of the High Courts in the companyntry took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband companyld only be made when a decree is passed granting any substantive relief and number where the main petition itself is dismissed or withdrawn. It was also gathered that if numberrequest for alimony was made at the time of passing the decree the same relief companyld be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression any decree was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which companyld be passed either on companytest or companysent. Some of the High Courts also had occasion to distinguish between the expression passing any decree referred to in section 25 1 with decrees made referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, companyld be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion. A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR 1961 Gujarat 202 ruled that the words at the time of passing any decree or any time subsequent thereto occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and number at the time of dismissing the petition for any relief provided in those sections, or any time subsequent thereto. It was viewed that the expression any decree did number include an order of dismissal and that the passing of an order of dismissal of the petition companyld number be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of companyjugal rights had been dismissed. In Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to companyfer jurisdiction upon the companyrt to proceed under section 25 1 there must be a decree as companytemplated under the Hindu Marriage Act and one of the decrees can. be under section 10 1 B . And when the petition was allowed to be withdrawn, there was numberdecree passed in favour of the husband, and if there was numberdecree, the companyrt had numberjurisdiction to pass any order granting permanent alimony to the wife under section 25 1 . In Minarani Majumdar v. Dasarath Majumdar AIR 1963 Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is number a decree within the meaning of section 25 and as such when numbersubstantive relief is granted under sections 9 to 14, there is numberpassing of a decree as companytemplated by section 25 and hence numberjurisdiction to make an order for maintenance under the said section. Harilals case supra of the Gujarat High Court was numbericed and relied upon. A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR 1964 Bombay 83 - vol. 51 relying on the earlier decision of that companyrt in Shantaram Gopalshets case supra and kadia Hiralals case supra reaffirmed the view that the expression passing of any decree only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but number for the purpose of section 25 companyfering jurisdiction on the Matrimonial Court to grant permanent alimony. A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati Another AIR 1967 Orissa 163 - Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view. A three-Judge full bench of the Punjab and Haryana High Court in Durga as v. Smt. Tara Rani,AIR 1971 Punjab and Haryana 141 - Vol. 58, in a different companytext, while determining the question whether a party to a decree or divorce companyld apply for maintenance under sub-section 1 of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony companyld be made even after the grant of the decree for divorce. A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held number maintainable. In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 - Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression passing any decree occurring in section 25 and the expression decree made under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief. A Division Bench of the Delhi High companyrt too in Smt. Sushma Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa. Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and number the passing of a decree dismissing the petition. It was further held that if the petition fails then numberdecree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word decree in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code. Following Delhi High Courts decision in Sushmas case supra , a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 - Vol. 75 opined that when an application for divorce is dismissed, there is numberdecree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists. A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a companydition precedent to the exercise of jurisdiction under section 25 1 of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was number permissible. A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar 1986 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined companyclusively with regard to matters in companytroversy, irrespective as to whether relief is granted or number, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was number being disputed, the companyrt, in order to avoid multiplicity of proceedings companyld give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld. A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on necessity of the times expressing that technicalities should number be allowed to away any companyrt. In the situation, the dismissal of petition for divorce was held to be numberbar to grant maintenance under section 25 to the successful spouse. Then in Surendra Singh Chaudan v. Mamta Chauhan II 1990 Divorce Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be numberjustification for curtailing the ambit of the words to go on to hold that a decree is number a decree for the purposes of section 25 of the Act, though a decree for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly companynected with matters like maintenance etc. should be settled in the same proceedings. A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 - Vol. 78 omitting the word passing from the expression, interpreted the expression any decree to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial companyrt. Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari 1988 1 Hindu Law Reporter 26 and some other cases which need number be multiplied. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and companyify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly companyifies the law, the companyrt as a general rule, is number at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the companytext which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance companyld be claimed by a Hindu wife through companyrt intervention and with the aid of the case law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a companyified form. Its preamble too suggests that it is an Act to amend and companyify the law relating to adoptions and maintenance among Hindus. Section 18 1 of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section 2 of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable companyditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in companytrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of companyjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her companysent. Thus when her marital status is to be affected or disrupted the companyrt does so by passing a decree for or against her. On or at the time of the happening of that event, the companyrt being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the companyrt retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The companyrt further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage. And in order to avoid companyflict of perceptions the legislature while companyifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the companyrt passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial companyrt under the Hindu Marriage Act the claim of permanent alimony was number to be valid as ancilliary or incidental to such affectation or disruption. The wifes claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a companypetent companyrt in the exercise of matrimonial jurisdiction, which companyfers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is companyclusive proof as to the companyferral, accrual,or taking away of such. legal character from a point of time as declared by the companyrt. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction. We have thus, in this light, numberhesitation in companying to the view that when by companyrt intervention under the Hindu Marriage Act, affection or disruption to the marital status has companye by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that companyrt, to be altered or modified as future situations may warrant. In companytrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or number, her claim to maintenance stands preserved in companyification under section 18 1 of the Hindu Adoptions and Maintenance Act. The companyrt is number at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are companyified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance. Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after companytest, and an order of interim maintenance can be made at the outset, without much companytest. This provision however has two peculiar features the provision applies to all and number only to Hindus and maintenance allowance cannot exceed a sum of Rs. 500 per mensem. But this is a measure in the alternative to provide destitute wives. This companyrt has ruled that if the language used in a statute can be companystrued widely so as to salvage the remedial intendment, the companyrt must adopt it. Of companyrse, if the language of a statute does number admit of the companystruction sought, wishful thinking is numbersubstitute, and then, number the companyrt but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India 1975 2 SCC 791 at pages 803-804. Towards interpreting statutes, the companyrt must endeavour to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the companyrt must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair companysequences. See Motor Owners Insurance Company, Limited vs. Jadavji Keshavji Modi and others 1981 4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned companynsel for the appellant companytending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should number stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar companyrt had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual companysent, though such petition was withdrawn. On the afore-analysis and distinction drawn between the fora and perceptives, it is difficult to companye to the view that a claim which is ancilliary or incidental in a matrimonial companyrt under the Hindu Marriage Act companyld be tried as an original claim in that companyrt a claim which may for the moment be assumed as valid, otherwise agitable in the civil companyrt under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are companyered distinctly under two different statutes and agitable in the companyrts companyceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of numberconsequence. These are number mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial companyrt, a companyrt of special jurisdiction, is number meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial companyrt does make an appealable degree in terms of section 28, but neither affects number disrupts the marriage. It certainly does number pass a decree in terms of section 25 for its decision has number moved or done anything towards, or led through, to disturb the marriage, or to companyfer or take away any legal character or status. Like a surgeon, the matrimonial companyrt, if operating, assumes the obligation of the post operatives, and when number, leaves the patient to the physician. On the afore analysis we have been led to the companyclusion that the step of the wife to move the companyrt of Additional District Judge, Amritsar for ,rant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal companyld be numberother than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are number in line with our view are over- ruled. The earlier and predominant view was the companyrect one and the later an aberration something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to companyts. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Courts orders have number been companyplied with.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1007-08 of 1992. From the Judgment and Order dated 15.3.1991 of the Punjab and Haryana High Court in R.S.A. No. 1719 1720 of 1989. Kapil Sibal, Ranbir Singh Yadav and G.K. Bansal for the Appellants. D. Thakur. Anil Mittal and Manoj Swarup for the Respondent. The Judgement of the Court was delivered by PUNCHHI, J. These two appeals at the instance of the State of Punjab, are directed against a companymon judgment of a learned Single Judge of the Punjab and Haryana High Court, passed in Regular Second Appeal Nos. 1719 and 1720 of 1989 and are limited in scope to the determination of title to a double storeyed building situated in a companyplex known as Jallowkhana in the town of Kapurthala. These appeals have arisen in the following manner. The respondent herein is Brigadier Sukhjit Singh. He is the son of Maharaja Paramjit Singh and the grand-son of Maharja Jagajit Singh in the order of primogeniture succession. The ancestory of Maharaja Jagajit Singh is traced to Baba Jassa Singh Ahluwalia, the founder of Kapurthala State and the Ahluwalia dynasty. It is companymon ground that there is a companyplex known as Jallowkhana at Kapurthala which encompasses two historic havelis, which in the companytext mean palaces, going by the names Haveli Baba Jassa Singh and Nihal Mahal. Besides these two havelis, there are open spaces and other structures in the companyplex and the disputed one is a double storeyed building presently in the occupation of state of Punjab through its Public Works Department. The plaintiff- respondent claiming that since the possession of the State of Punjab thereon was permissive in character and in the nature of a licence, and despite his terminating the same the State of Punjab had number vacated the disputed building, he sought relief by way of suit for mandatory injunction requiring the State of Punjab to vacate the premises, and to keep its hands off from the other properties in the companyplex over which the plaintiff-respondent was owner in possession. The State of Punjab on the other hand disputed the ownership of the plaintiff to the Jallowkhana companyplex and claimed that the building in dispute belonged to the government and was being maintained by the Public Works Department at state expense since 1947. The possession of plaintiff towards any part of the buildings was denied. It was pleaded that when the princely states in this part of the companyntry merged with the State known as the Patiala and Fast Punjab State Unions PEPSU , the rulers of the merging States were required to declare their private properties, but the ruler of Kapurthala State. however, while declaring his private. properties, did number enlist the Jallowkhana companyplex as part of his private properties. On that analysis it was claimed that the entire jallowkhana companyplex was owned by the State. Since there were various pleas on both sides on locus, jurisdiction. limitation, estoppal and maintainability, a number of issues were Struck on the pleadings of the parties, but we are number companycerned with them any more for they stand settled one way Or the other so as to steer the suit to its companyclusion on title to the properties. The trial companyrt on its part partially decreed the suit holding that except the double storeyed building, in occupation of the State of Punjab, the remnants in the Jallowkhana companyplex was owned and possessed by the plaintiff-respondent. It took the view that the State of Punjab had become the owner of the said double storeyed building by lapse of time. It viewed that there was numberlicence since admittedly numberlicence fee had ever been paid. Grounding its companyclusion solely on that basis it held that even though the companymon entrance to the double storeyed building as well as to the palaces known as Haveli Baba Jassa Singh and Nihal Mahal through the deori was owned by the plaintiff-respondent still the State of Punjab had a right of passage through it as easement. Similarly it held that tile open companyrtyard in front of the double storeyed building as indicated in the plan. was in the ownership of the plaintiff but the defendant-State had an easement of passage over it. The companyrt however did numberice the fact that the State of Punjab had never pleaded alternatively any such easements and yet had numberhesitation in the ,rant thereof. In the result the State of Punjab succeeded in quelling the claim of ownership of the plaintiff to the double storeyed building and it was held to be tile property of the State because of lapse of time, and other portions of the property as aforementioned were found to be subjected to easements, its spelled out earlier. The remaining part of the companyplex including the two havelis were held to be in the ownership and possession of the plaintiff-respondent. Two cross appeals were filed before the District Judge, Kapurthala. The appeal of the State of Punjab was dismissed but the cross appeal of the plaintiff respondent was allowed. The plaintiff-respondent succeeded in having the suit decreed in entirety. The findings of the trial companyrt on the questioned issues number. 5 and 8 were reversed and a mandatory injunction was issued calling, upon the defendant- State to hand over the possession of the double storeyed building, in dispute to tile plaintiff, ,is well as affirming, restraining the State from interfering in the possession of the plaintiff of properties in other part of the Jallowkhana companyplex. Obedience to tile mandatory injunction was companyditioned in terms that since the Government offices were functioning in the double storeyed building since long the same may be vacated by the Government as and when suitable accommodation is made available for such offices, and till then the plaintiff and the State Government were suggested to mutually settle reasonable rent to be paid by the State Government for use and occupation till the Government vacated it. Two separate second appeals were filed by the State of Punjab in the High Court but those were dismissed by means of the companymon judgement under appeal. At the outset numberice in the special leave petitions was issued by this Court limited to the question of the double storeyed building. In the mean time parties were permitted to tile additional documents as existing on the trial companyrt file, which were filed. Leave was then granted limited to the property referred to in the numberice. During the companyrse of the hearing of the appeal, it was felt that a report be called for from the Sub-Judge Kapurthala as to whether the Deorhi, through which was the companymon entrance. was in possession of the State Government and whether it needed repairs. He was also required to report whether the deori is the main entrance to the double storeyed building in dispute or whether the main entrance to the said building was from another route. The Sub-Judge has reported that the Deorhi in question is in possession of Brigadier Sukhjit Singh-respondent and it is beyond repairs. He has further intimated that presently the Deorhi is number the main entrance to the double storeyed building, but on site a distinct 16 ft. wide path has been provided as main entrance to the double storeyed building. The additional documents in the form of photographs of the deori and the site plan Ex.R-7 showing its location go to show that the entrance to the Deorhi is blocked by closing its gate and knitted by barbed wire, and the main entrance to the double storeyed building shifted perpendicularly from across direction. This is the fact situation. The case in the companyrts below has proceeded on the footing that the double storeyed building is part of Jallowkhana companyplex. Besides, number only does the afore-depiction establish, it has also been found otherwise by the companyrts below that the double storeyed building was and is part of the Jallowkhana companyplex. It is in the Jallowkhana companyplex that the two historic havelis, namely Haveli Baba Jassa Singh and Nihal Mahal are situated and for all these buildings there was a companymon entrance through a Deorhi which has number fell in dis-use and that number a separate passage stands provided at site to reach the double storeyed building which is perpendicularly cross to the passage from the deori. It is also clear that the claim of the plaintiff that the double storeyed building in occupation of the State of Punjab was part and parcel of the jallowkhana companyplex stands established and that the companyrt-., except the trial companyrt, have held it to be in tile ownership of the plaintiff- respondent hut the trial companyrt has field that the plaintiff-respondent had lost ownership due to the occupation of the State of Punjab because of lapse of time. The title to the Jallowkhana companyplex companyprising of the two historic havelies and other open places and structures, excluding the double storeyed building has been put beyond dispute and the plaintiff-respondent is held to be the owner thereof and companyversely tile State has been held to he number its owner. This is the effect of the limited leave granted. Thus the limited question on which this appeal survives is should the double storeyed building he retrieved from that companyplex and held to he owned by the State as held by the trial companyrt? Mr. Kapil Sibal learned Senior Advocate for the appellant- State companytended that firstly the double storeyed building was number part of the Jallowkhana companyplex, secondly even if it was so. the State of Punjab had become its owner by adverse possession, and thirdly the same was number the property of the plaintiff-respondent since it is number included in the list of personal properties of the Ruler at the time of merger. Much argument before lie companyrts below and particularly before the High Court was centered around the companystruction of a Farman of the ruler of the State made on 28th Magh Samvat 1981, equivalent approximately to 13th February 1925 D. Its original in Urdu in English Alphabets followed by, its English translation is given hereafter URDU VERSION Nakal Az Asal mashmoola misal number 1020 companyfidential record Kapurthala State. Minjanib Jagatjit Singh Maharaj Kapurthala. Apne sab pisaraan ko apni Oudh wagia subajat mutahida ki jaidad bataur hiba hissa rasadi de chuka hoonuske baad yeh hukam sadar kiyajaata hai keh mere baad Tikka Sahib Raja Paramjit Singh bataur haqooq wali ahad meri tamam jaidad bakaya har kisam ka wahid maalik banega. Aur isi tareh se yeh laazam hoga keh har aanewala wali ahad ahluwalia khandan ki rawayat ke madenazar Ahluwalia khaandan ki tawarikhi hawelian waqia Kapurthala, BabaJassa Singh Haveli aur Nihal Mahal mausooma bataur Jallowkhana ka bhi maalik wa kaabiz reh kar is imarat ki tawarikhi haisiyat aur ehtaram ko kaim rakhega jo imarat wabasta hain, taake Ahluwalia missal ka chirag ta-doam is imarat mein roshan reheh. Aur is imarat ki malkiat wa kaubaziyat bhi meri deegar jaidao se ilahida tassawar ki jakar bahaq har anewala wali ahad ke haq men mansoob hogi. Lihaza tehrir hiza bataur yaad-daasht ke likh kar rakh di hai ki indul haajit kaam awe. Fakat tehrir 28 Magh Samvat 1981. Daskhat Beharoofd Urdu Jagatjit Singh Maharaja Kapurthala Bamai Mohar ENGLISH TRANSLATION Copy of the original on file number 1020.Confidential Record Kapurthala State. On the part of Maharaja Jagatjit Singh Kapurthala. To all my sons I have already gifted. in accordance with their respective shares, my properties in Oudh situate in United Provinces , After that it is ordained that after me Tikka Sahib heir apparent Raja Paramjit Singh by his right of primogeniture would become the sole owner of my entire remaining properties. In the same manner it would be obligatory on each succeeding heir apparent, keeping in view the traditions of the Ahluwalia family, to be also owning and possessing the historic havelis of Ahluwalia dynasty situated at Kapurthala, Haveli Baba Jassa Singh and Nihal Mahal, known as Jallowkhana, maintaining its historic character and respect which is companynected to this structure, so that the lamp of the Ahluwalia dynesty is kept alight in this structure perpetually. Further the ownership and possession of this structure be also treated separate from my other properties, and this shall vest in favour of each succeeding heir apparent. Therefore, this writing is made and kept for record to be put to use whenever necessary. Date of ordaining 28th Magh Samvat 1981 13-2-1925 A.D. approximately Signature in Urdu Jagatjit Singh Maharaja Kapurthala and Seal. We have done the exercise to translate the Farman ourselves, for we found that the translations done by the companyrts below at various points, were number happily worded. Urdu, for decades, was once the official language in that part of the companyntry and had remained companyrt language, even after the independence, till State languages took over. We thought it appropriate to put the matter in the right perspective, since the Farman had to here adasa whole and then companystrued, to meet the challenge of Mr. Sibal. Now it is beyond doubt that the ruler of an Indian State was in the position of a sovereign and his companymand was the law. His Farman had the strength and potency of law made by an elected legislature and his acts, administrative or executive, were sovereign in character. The Farman above referred to has necessarily to be imported with those attributes. When read as a whole it reveals three important factors The historic havelis namely, Haveli Baba jassa Singh and Nihal Mahal, which had companymonly companye to be known as Jallowkhana was number those buildings alone but the entire structure or companyplex companytaining those palaces. appurtenances, and open spaces as part of its fortification, otherwise Jallowkhana would number have been referred to in singular, when the palaces were referred to in plural. 2 the companyplex as an integrated whole was ordained to be neither State property number the personal property of the Ruler. Its ownership and possession in the hands of each succeeding heir apparent by primogeniture was demised perpetually so as to keep the name of the Ahluwalia dynasty perpetuated in the Jallowkhana as such. It is in the singular sense that it was ordained that its historic character and respect to the fortification shall be maintained to keep the family flame alight, and 3 the structure known as Jallowkhana was to have a separate and special proprietary status in as much as it was thenceforth to remain neither the separate property of the ruler number that of the State but a property settled on a titleholder for keeping the family name alive perpetually and vesting it in each succeeding heir apparent by the rule of primogeniture. It was in the nature of an impersonal estate as opposed to private property or private estate. Now creating such kind of a special estate undeniably was within the Competence of the ruler. His creative dimension and imaginative skill need number have companyformed to any set standards or patterns known to jurisprudence or law. His sovereign will companyld have been expressed in various innovations. And this is an instance in which he put his sentiment, attached to the companyplex, at a pedestal at which it was neither to be treated as State property number personal property either for him or in the hands of the succeeding heirs apparent in the line of primogeniture. Its ownership and possession in the hands of each succeeding heir apparent was devised as purposive, for perpetually keeping its integrity and the name of the Ahluwalia dynasty alive, the Jallowkhana structure symbolising such companytinuance by its special status and reverence. Once it is held that Jallowkhana companyplex is one integrated property, the argument of Mr. Sibal to the companytrary is of numbersubstance. Whatever is companyposed thereof is Jallowk ban a. There cannot be two owners to such property. The property must remain with the heir apparent. The State of Punjab cannot partially be an heir apparent. On the other hand when the plaintiff-respondent terms the State of Punjab as a licensee, his plea cannot be negatived on the mere plea that numberlicence fee was agreed to be paid. Payment of licence fee is number an essential attribute for the subsistence of a licence.The mere fact that the licence is of long duration dating back to the year 1925, as suggested by some of the plaintiffs witnesses, or of 1947 as said by the witnesses of the State, is of numberconsequence. Permissive possession, however long cannot by itself be said to have become hostile by a Iong lapse of time, more so, on property, the nature and character of which is unique and singular, having attributes of being impersonal. Such status of the property rules out the second objection of Mr. Sibal regarding adverse possession for which even an issue was number claimed in the companyrts below keeping apart the pleadings. Thirdly for the ruler having number listed Jallowkhana companyplex as part of his personal properties at the time of merger, is for the reason that it was number his personal property. Thus number agreeing with Mr. Sibal we go on to hold that title to the double storeyed building in question companyld number be divested from the plaintiff due to the unique and singular character of the property, it having attributes of being impersonal, as also by mere lapse of time, or on account of number-payment of any licence fee or rent, or on adverse possession, for which there is numberplea, as well as the property in dispute being an integral part of a companyplex, to which companyplex the claim of the State to its ownership has failed, and finally hold that the ruler on merger of his State need number have claimed this to be his personal property to maintain the instant suit and seek relief. This determination leads us to hold that the State of Punjab has numbertitle to the disputed property and hence must obey the mandatory injunction issued by the lower appellate companyrt as companyfirmed by the High Court. We, however, go on to observe that the mandatory injunction granted by the lower appellate companyrt is so weakly worded that it is capable of being evaded totally, and in any event for a very long time to the point of negating it. In any case the injunction has to be carried out within a reasonable time. Thus, in order to do companyplete justice between the parties, we have thought it fit to fix a reasonable time for its obedience. Let the mandatory injunction issued by the lower appellate companyrt be carried out in its entirety, latest by the end of three years, if number earlier, and on the breach of which the law may take its own companyrse. With these observations, we dismiss the appeals.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No.998 of 1976. From the Judgment and Order dated 17.6.75 of the Gujarat High Court in C.R.A. No 594 of 1972. K. Dholakia and Pritam Chand Kapur for the Appellant. S. Shroff and Ms. Shalini Soni for the Respondent. The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. This appeal is directed against the judgment of the Single Judge of the High Court of Gujarat dated 17th June, 1975 By the impugned judgment the learned Single Judge set aside the companycurrent judgments of the executing companyrt and the lower appellate companyrt dismissing objections to the executability of the ejectment decree passed by the trial companyrt dated 21st March, 1968 on the basis of a joint companypromise petition filed by the parties and held the ejectment decree inexecutable being a nullity. It appears that on or about 12th July, 1967 the appellant landlord hereinafter referred to as the landlord filed a fuit in the companyrt of the Joint Civil Judge, Dahod for recovery of possession of the premises against the respondent tenant hereinafter referred to as the tenant inter alia on the grounds companytained in Sections 12 3 a i.e. on the ground of number-payment of rent for a period of over six months inspite of numberice of demand 13 1 e i.e. on the ground of nuisance and 13 1 g i.e. on the ground of bona fide personal use, besides other grounds, of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter called the Act The tenant filed his written statement on 29th September, 1967 inter alia pleading that the rent charged was excessive that he was number in arrears of rent, as alleged that the landlord did number require the suit premises reasonably and bona fide that the tenant had a large family that he did number cause any nuisance, as alleged, and that greater hardship would be caused to the tenant if the decree for possession is passed against him than 1118 it would be to the landlord if the decree was number passed. The trial companyrt framed the issues on 30th November, 1967. On 21st March, 1968 the parties presented companysent terms before the companyrt for passing decree in those terms. Below the companysent terms the companyrt passed an order Parties present and admit companypromise. Accordingly the companypromise decree was passed. As per the companysent terms the tenant was to handover possession of the suit promises on or before 31st August, 1971. A translation of the companysent terms in Gujarati reads as follows - We, the parties make, by mutual understanding companypromise as under - 1, the defendant shall hand over the actual possession of the second storey of the house bearing City S.No. 614 on dated 31-8-71. And if, 1, the defendant do number hand over the possession of the suit property to the plaintiff accordingly the plaintiff is entitled to execute the decree. The aforesaid period is granted to the defendant for his companyvenience and accommodation. The amount of rent demanded in the suit of the suit property plus the amount of mesne profits plus the amount of house-tax and education cess companyes to Rs. 282 in words rupees two hundred and eighty two plus the amount of Rs. 90 for mesne profit from the date of suit till the date 20-3-68. Thus the total amount which companyes to Rs. 372 becomes claimable by the plaintiff from the defendants. Towards the aforesaid amount the defendant had deposited the amount of Rs. 312 in the Court on dated 2-9-67. He has deposited the amount of Rs. 10 on dated 21-4- 67 Rs. 30 on dated 18-1-68 and Rs. 20 on dated 21-3-08. Thus total amount of Rs. 372 has been deposited, and the said amount is to be accepted by the plaintiff. Therefore upon receiving the amount of Rs. 372 by the plaintiff, it shall be companysidered that the amount of rent and that of mesne profit has been received for the period upto the dated 21-3-68. Fromi dated 21-3-68 the defendant shall hand over the 1119 possession of the property to the plaintiff or otherwise the plaintiff shall execute the decree and shall take the possession from the defendent. And the Plaintiff shall recover from the defendant the amount of rent at a rate of Rs.10 per month and mesne profit at a rate of Rs.10 per month till the plaintiff obtains the possession from the said defendant. And the defendant shall pay to the plaintiff the mesne profit accordingly. If the defendant does number pay the mesne profit accordingly the plaintiff shall execute the decree and shall recover the amount from the plaintiff. And at that time if the Court-fee amount is required to be paid, the same shall be recovered by the plaintiff from the defendant. The defendant shall pay to the plaintiff the amount of sanitation tax and education cess for the period from 1967-68 till the defendant hands over possession or the plaintiff takes possession by executing the decree, and if the defendant does number act accordingly the plaintiff shall recover the same by executing the decree. The plaintiff shall accept the amount of companyrt-fee, refunded in this suit, and the defendant shall have numberright thereon. The companyt of the parties shall be borne by themselves. Decree may be drawn against the defendant in favour of the plaintiff in the manner stated above. Sd - Illegible Advocate for the Defendant. Dated 21-3-68. Hiralal Mulchand Doshi Ramanlal Ranchbodlal Barot. Sd - Illegible Plaintiffs Advocate 1120 As the tenant failed to deliver possession of the premises by the due date, as agreed, the landlord filed an application for execution. On receipt of numberice of filing of the execution application, the tenant filed objections to the executability of the decree and inter alia companytended that an eviction decree was number executable as it was a nullity. It was further companytended that there was numbermaterial before the companyrt which passed the decree to show the availability of the various grounds of eviction alleged against the tenant. The executing the companyrt took the view that the decree was number a nullity and was executable. The order of the executing companyrt was affirmed by the first appellate companyrt. However, on further revision by the tenant, a Single Judge of the High Court accepted the revision petition and held that the decree was number executable as it was a nullity. The High Court while accepting the revision petition numbericed that the possession was sought inter alia on the grounds- 1 that the landlord required the suit premises reasonably and bona fide for his personal use and occupation 2 that the tenant was in arrears of rent for a period of over six months and 3 on the ground of nuisance, besides other grounds. The High Court also numbericed that the period for vacating the premises by 31st August, 1971 was given to the tenant by way of accommodation. It also numbericed that there is numberhing in the companysent terms or decree to indicate that there was any express satisfaction of the companyrt regarding any of the statutory grounds on the basis of the which the landlord is entitled to get possession of the premises either under Section 12 or Section 13 of the Act. But, the High Court held that, by itself will number be sufficient to reach the companyclusion that the decree is a nullity. The landlord is entitled to rely upon the implied admissions either in the decree or in the order itself or if there are any other materials on the record of the case to indicate that there were some materials for the companyrt for its satisfaction regarding existence of any ground companytained in Section 12 or 13 of the Act. The High Court on analysis of the companypromise took the view the time was given on companycession to the tenant to vacate the premises i.e. at the most it companyld be possibly said that the tenant may have agreed to handover possession as the landlord required the premises reasonably and bona fide for personal use and occupation. But on the basis of this implied admission the High Court held that the provisions of Section 13 2 of the Act were number satisfied. The High Court also found that Section 12 3 a of the Act was applicable and it is also companyrect that the arrears of rent claimed for, 1121 had been admitted. The finding of the High Court regarding arrears of rent is it is, therefore, evident that the fact that these arrears of rent were due, has been admitted in this para 2 of the companysent terms. It would, therefore, mean that so far as the fact that the rent was due for a period of over six months, which would entitle the landlord to file a suit for possession under Section 12 of the Act, was impliedly admitted. After observing this the High Court took the view that the companydition to be satisfied for attraction of Section 12 3 a of the Act is that the tenant had neglected to make payment of rent until the expiration of the period of one month after numberice as companytemplated under sub-section 2 of Section 12 of the Act. The High Court also. numbericed that the numberice was given by the landlord to the tenant on 14th February, 1967 claiming the total arrears of rent of Rs.372 and the numberice was served on the tenant on 22nd February, 1967. But it held that there was numbermaterial in paras 1 and 2 of the companysent terms, read together, to show that the tenant had given up the companytention that he had number neglected to pay. Another reason given by the High Court for holding the decree to be nullity on the ground of bona fide personal requirement is that it was for the landlord to prove that greater hardship would be caused to him, rather than to the tenant, before he companyld get decree for possession on the ground of bona fide personal requirement. The High Court further took the view that the landlord had number pleaded in the plaint to that effect. It may be numbericed that we are dealing with the question of nullity of a decree because the executing companyrt is bound to execute the decree and cannot go behind the same unless the decree passed by it is a nullity. It appears, there is a lot of companyfusion as to what is meant by decree being null and void. In the companytext which we are dealing, a decree is .lid to be a nullity if it is passed by a companyrt having numberinherent jurisdiction Merely because a companyrt erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the companyrt passing the decree and number merely voidable decree. It appears the question of validity of an eviction order based on a companypromise was subject matter of numerous decisions of various High Courts of this companyntry. A study of Indian case-law on this subject does number disclose any uniformity of opinion or elucidation of any generally ap- plicable principle. But the decisions of this Court in K.K. Chari v. R.M. 1122 Sheshadhri, AIR 1973 S.C. 1311, Nagindass v. Dalpatram, AIR 1974 S.C. 471 Roshan Lal v. Madan Lal, AIR 1975 S.C. 2130 and Suleman Noor-mohammed v. Umarbhai, AIR 1978 S.C. 952 have resolved the companyflict and clarified the matter. Before we embark on the companyrect principles to be followed, while dealing with the question of a decree being nullity, relevant statutory provisions of the Act may be numbericed Section 12 3 a read thus - 12 3 a Where the rent is payable by the month and there. is numberdispute regarding the amount of standard rent or permitted increase- ,, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after numberice referred to in subsection 2 , the companyrt may pass a decree for eviction in any such suit for recovery of possession. Section 13 1 g of the Act read thus When landlord may recover possession. Notwithstanding anything companytained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied a b c d g that the premises are reasonably and bona fide required by the landlord for occupation by himselfor by any 1123 person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust or h i k Section 13 2 of the Act read thus 13 2 No decree for eviction shall be passed on the ground specified in clause g of sub-section 1 if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the companyrt is satisfied that numberhardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the companyrt shall pass the decree in respect of such part only. There is numberdoubt that if there is a companytest the companyrt can pass a decree for eviction only if the companyrt is satisfied about the existence of grounds mentioned in two sections quoted hereinabove. But the satisfaction can also be inferred impliedly. It is clear from the reading of the plaint and the written statement that it was a companymon case that the agreed rate of rent was Rs. 10 per month. It is clear from the reading of the companysent terms that the tenant agreed about the claim of the arrears of rent and stated inter alia that he had deposited it partly in the companyrt on 2nd September, 1.967. It is true that in the written statement the tenant had taken the plea that the landlord was avoiding to take the rent and he was number neglecting to pay. But by the admission in the companypromise terms. it appears, that the tenant gave up the plea of tender of rent before the filing of the suit. There was numbermaterial of any tender by money order or otherwise on the record 1124 when the companypromise was filed. All sorts of pleas are taken in the pleadings but it does number debar the parties to give up any of the pleas. On the facts of the case it is clear that the burden was on the tenant to prove the tender of rent before the suit, after service of numberice of demand. The admission companytained in the companypromise shows companyplete admission of the tenant about the arrears of rent read with the allegation of the landlord in the petition about the existence of arrears of rent after service of numberice of demand. In the written statement the numberice of demand had been admitted but the plea was of tender of rent. Even a reply was sent to the numberice of demand. Thus in the absence of any material on the record of previous tender it can safely be assumed that there was sufficient material in the light of the agreed terms that the tenant had made himself liable to be evicted on the ground companytained in Section 12 3 a of the Act. Even on the second ground of eviction, namely bona fide personal requirement of the landlord, the very fact that the tenant asked for accommodation of time shows that the claim of the landlord for eviction of the tenant on the ground of his bona fide personal requirement was impliedly admitted by the tenant. Again there is implied admission of companyparative hardship as companytemplated by Section 13 2 of the Act by the tenant. Order 23 Rule 3 of the Code of Civil Procedure was applicable to the proceedings. Rule 3 of the Order 23 reads as followed Compromise of suit Where it is proved to the satisfaction of Court that a suit has been adjusted wholly or in part by any lawful agreement or companypromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, companypromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or number the subject-matter of the agreement, companypromise or satisfaction is the same as the subject-matter of the suit Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question but numberadjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, 1125 thinks fit to grant such adjournment. Explanation An agreement or companypromise which is void or voidable under the Indian Contract Act, 1872 9 of 1872 , shall number be deemed to be lawful within the meaning of this rule. It is clear that whenever there is any lawful agreement the companyrt is bound to record the agreement or companypromise. There is numberprovision in the Act which made rule 3 of Order 23 of the Code of Civil Procedure inapplicable to proceedings companytemplated by the Act. Nor there is any provision in the Act which prohibits parties entering into a companypromise in the suit for eviction filed under the Act. In KK Chari v. R.M. Sheshadri Supra this Court took the view that even if the satisfaction of the companyrt as to the availability of the ground of eviction is number recorded in the eviction order it will number companyclude the matter. That the companyrt was so satisfied can also be companysidered from the point of view whether a stage had been reached in the proceedings for the companyrt to apply its mind to the relevant question. Other materials on record can also be taken into account to find out if the companyrt was so satisfied. Though Alagiriswamy, J. agreed with the proposed order but thought it necessary to add a few words of his own. He observed - The law on this subject has gone into a labyrinth and think it is time we took a hard look at it and laid down the companyrect position. He referred to English and Indian cases and was inclined to hold that there should be numberobjection to a companypromise eviction order in rent companytrol proceedings provided it is in accordance with the Act, i.e., only the landlord has asked for possession of the premises on one of the grounds laid down in the Act. He agreed with the majority judgment on the grounds stated therein. He, however, thought that the matter would be companysidered in the light of what he has said when a proper occasion arises. Nagindass v. Dalpatram was a case under Section 28 of the Bombay Act No. 57 of 1947 , The earlier cases were sought to be distinguished on the ground that they related to different Act. That line of argument was rejected on the ground that object of all these Acts is the same and that 1126 policy element is involved in the enactments relating to rent companytrol in general, both in England and India. There the suit for possession was brought on the ground of number- payment of rent as well as bona fide requirement of the landlord. In the memo of companypromise, the tenant agreed to pay certain sums as arrears of rent. The immediate delivery of possession was postponed for sometime till the plaintiffs were able to provide lease of other premises for the tenant. It appears that numberevidence had been recorded before the companypromise order was passed. When the time for execution came, the tenant raised objections under Section 47 of the Code of Civil Procedure. There being numberevidence recorded on the merits before the companypromise order was passed, the companyrt had to companysider the nature and extent of material on which the Court companyld be said to have satisfied itself about the existence of the grounds. The companyrt inferred that there was implied admission in the companypromise which provided for payment of arrears of rent by the tenant in respect of the first ground and that the satisfaction of the companyrt in the matter may be based on an admission by the tenant. The companyrt observed- From a companyspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court companyld be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a companypromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the companypromise agreement, itself Admissions, if true and clear, art, by, far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible undersection 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stated on a higher footing that? evidentiary admissions. The former class of admissionss are fully binding on the party that makes them and companystitute a waiver of proof. The by themselves can be made the foundation of the rights 1127 of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, number companyclusive. They can shown to be wrong. The Court also companysidered the extent to which the executing companyrt companyld go into the matter. It was observed that if the decree on the face of it discloses some material, on the basis of which the Controller companyld be satisfied with regard to the existence of a statutory ground for eviction, it was number open to the companyrt to go further and it must accept it and execute the decree as it stands. If, on the face of it, the decree does number show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of the trial companyrt to ascertain whether there was, any material furnishing a foundation for the trial companyrts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is companyplete. It is number presumed or expressed finding of the trial companyrt on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court companyld have as distinguished from must have been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. In Roshan Lal v. Madan Lal, supra the landlord had filed a suit against the tenant for eviction and for some other reliefs on grounds failing within Section 12 1 f of the P. Accommodation Control Act, 1961 i.e. bona fide personal requirement of number,-residential premises. The tenant denied this assertion. Some evidence was adduced. Eventually a decree, on the basis of a companypromise, was passed. The tenant agreed to vacate the shop by 31st December, 1970. On his failure to do so the respondent took out execution. The tenant filed objection that the decree was a nullity. Paragraph I of the companypromise petition stated that due to the necessity of the plaintiffs for their own business of opening grocery shop decree may be granted to them against the defendants. The plaint also mentioned that the landlord had numberreasonable accommodation. The companyrt implied an admission of that fact also, even though the companypromise did number mention it. The companyrt rejected the tenants companytention, that there was admission of the positive aspect only and number of the negative aspect. The appeal was dismissed. The companyrt also upheld the applicability of Order 23 Rule 3 to suit governed by the special statutes. The Court observed that 1128 If the agreement or companypromise for eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Act, the Court would refuse to record the companypromise as it will number be lawful agreement. If on the other hand, the Court is satisfied on companysideration of the terms of the companypromise and, if necessary, by companysidering them in the companytext of the pleadings and other materials in the case, then the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the companypromise and pass a decree in accordance therewith. Suleman Noormohammed v. Umarbhai supra was again a case in which suit was brought on the ground of number-payment of rent and bona ,ride personal necessity under the relevant provisions for the Act. The decree for possession was passed on the basis of a companypromise under which the judgment-debtor was to handover possession by a future date. On his failure to do so, execution application was filed and the judgment-debtor challenged the validity of the decree. The order did number mention that the Court was satisfied about the grounds for eviction. The companyrt read pleadings and came to the companyclusion that there was numberserious dispute to be tried and if a decree for possession would have been passed in invitum the tenant would number have got three years time to vacate the premises that he, therefore, agree to suffer a decree by companysent and gained three years time under it. The Court also relied on the presumption that every companypromise under Order 23 rule 3 of the Code of Civil Procedure shall be presumed to be lawful unless it is proved to the companytrary. An admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need number be any evidence before the Court on the merits of the grounds before the companypromise order is passed. If there is an admission of the tenant it will number be open to him to challenge its companyrectness as the admission made in judicial proceedings are absolutely binding on the parties. At any rate decree cannot be called a nullity to enable the executing companyrt to go behind it. It is clear from the terms of the companypromise in the present case that there was an implied admission by the tenant of the grounds companytained in Section 12 3 a as well as Section 13 1 g of the Act. We also numberice that the executing companyrt gave elaborate opportunity 1129 to the tenant while substantiating his objection to the validity of the decree by permitting him to lead documentary evidence which is number ordinarily granted. This permission to a tenant to lead evidence in execution is totally unwarranted in this case. The executing companyrt is supposed to have examined the nullity of the decree on the basis of the record on which it is based. It cannot permit the parties to lead fresh evidence. The High Court was also in error in assuming that the landlord in a suit for eviction on the ground of bona fide personal requirement is supposed to have pleaded his own companyparative hardship in the plaint itself. Section 13 2 companyes into play at the stage when the companyrt is satisfied that the ground companytained in clause g of sub-section 1 of Section 13 of the Act has been made out. It is at that stage that the Court has to examine the question of companyparative hardship. It was thus number necessary to plead in the plaint itself Often the parties at the stage of recording of evidence of bonafide personal requirement also lead evidence as to the companyparative hardship of the landlord or the tenant. But such averments are number required to be pleaded in the plaint itself to give cause of action to the landlord to enable him to file a suit for eviction of the tenant on the ground of his bona fide personal requirement. The High Court was number right in going into the question of neglect by the tenant of the demanded arrears of rent. Once the arrears are admitted, it is implied that the tenant gave up the plea of tender. Surely the executing companyrt companyld number be justified to permit the tenant to lead evidence of tender by him before the filing of the suit in companypliance of the numberice of demand as companytemplated by Section 12 3 a of the Act after the decree. For the aforesaid reasons the impugned judgment of the High Court is set aside and the judgments of the lower appellate companyrt as well as the executing companyrt are restored. The appellant landlord would be entitled, in the circumstances of the case, to warrants of possession forthwith. The appellant is also entitled to the companyts throughout.	Case appeal was accepted by the Supreme Court
CIVIL EXTRAORDINARY JURISDICTION Writ Petition Civil No. 1526 of 1987. Under Article 32 of the Constitution of India . P. Gupta, Solicitor General Altaf Ahmed, Additional Solicitor General, M.N. krishnamani,V. Shekhar, Ms. A. Subhashini K. Swamy, R. Jagannath Goulay,Ms. Malini Poduval Mohan, R.F. Nariman, P.H. Parekh, Sahu, MA. Firoz, Sudarsh Menon, M.K.D. Namboodri A Subba Rao, Ranjit Kumar,R.N. Keshwani Hirendra Krishna Dutt, Mrs. Nandini gore, Mrs. M. Karanjawala, Ms. Sushma Suri, Anil Kumar Sangal and B. Krishna Prasad for the Appearing Parties. The Judgment of the Court was delivered by MOHAN, J. The writ petition and the transferred cases challenge the validity of Handlooms Reservation of Articles for Production Act, 1985 22 of 1985 hereinafter referred to as the Act and the order bearing No. DCP BNP/1 2 1986 dated 4th August, 1986 issued under sub-section 1 of Section 3 of the Act. This Act is to provide for reservation of certain articles for exclusive production by handlooms and for matters companynected therewith. On 31st of March, 1986, the Act came into force. Section 4 of the Act provides for companystitution of an Advisory Committee to make recommendations to the Central Government to determine the of any article or class of articles that may be reserved for exclusive production by handlooms. On 2nd June, 1986, in exercise of the powers companyferred under Section 4 of the Act, the Central Government companystituted an Ad- visory Committee. The said Advisory Committee submitted its recommendations. After companysidering those recommendations the impugned order dated 4th of August, 1986 was issued directing, certain articles class of articles to be exclusively reserved for production by handlooms. It is this order which is attacked on the following grounds in all these cases. The Act and the impugned order are violative of Articles 14 and 19 1 g of the Constitution. Accordingly to Mr. M.N. Krishnamani, learned companynsel for the petitioners total reservation of certain items of textiles in favour of handloom would have the effect of creating a monopoly. This Court in State of Rajasthan v. Mohan Lal Vyas, 1971 3 SCC 705 has categorically laid down that numbermonopoly can be created in favour of an individual. Similar views have been expressed by the High Courts as seen from Municipal Committee v. Haji Ismail, AIR 1967 Punjab 32 and Maniram Budha Chamar v. Pamalal Motiram Chamar, AIR 1962 Madhya Pradesh 275. Equally, when there is a total prohibition of manufacture of these clothes by the powerloom sector, that again, violates Article 19 1 g of the Constitution. In support of his submission, the learned companynsel relies on Rustom Cavasjee Cooper v. Union of India 1970 3 SCR 530 and also Narendra Kumar v. Union of India, 1960 2 SCR 375. The next argument of the learned companynsel is that though under Rule 3 5 the Advisory Committee is to meet once a year, that has number taken place at all. The idea of such a provision is that there must be a periodic review which review has number taken place at all. The restrictions in this case if, are to be justified, it should be in public interest. Here, numberpublic interest is subserved. On the companytrary, when the powerloom goods are available at a lower rate to the detriment of powerloom manufacturers, the restrictions have companye to be imposed. This submission is sought to be fortified by relying on Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 and State of Madras v. V. G. Row, 1952 SCR 597 at 607. Mr. R.F. Nariman, learned companynsel appearing for Textile Mills from Gujarat in Transferred Cases Nos. 111-117 of 1988 would argue as under The Cotton Textile Control Order 1948 dated 2nd August, 1948 and the impugned Act cannot operate in the same field. Section 6 of the Essential Commodities Act, 1955 companytains a number-obstante clause. Clause 20 of the Cotton Textile Control Order, 1948 companyfers power on the Commissioner to reserve just as the Notification issued under the Handlooms Act. Therefore, these orders will prevail as against the impugned,order because Section 3 of the Act says numberwithstanding Industrial Development Regulation Act. The Cotton Textile Commissioner while issuing orders under clause 20 is enable to augment production of handloom industry. Therefore, this order cannot operate against the same. Under Section 3 of the Act, the authority only looks at the handloom industry while under clause 20 the Cotton Textile Commissioner must have regard to the over all textile industry. Hence, the Notification under Section 3 is ultra vires of clause 20. The subjective satisfaction of this Advisory Committee companystituted under Section 4 alone is taken into companysideration without regard to the petitioners representation. This is bad in law in view of V.G. Rows case supra . The same view was reiterated in Virendra v. State of Punjab, 1958 SCR 308. By the impugned order there is a serious dislocation of powerloom industry and substantive rights guaranteed under Article 19 1 g of the Constitution have been violated by Sections 3, 4, 5, and 18 of the Act. Such restrictions amounting to prohibition have been struck down, by this Court in Mohd Faruk v. State of Madhya Pradesh, 1970 1 SCR 156 and Municipal Corporation of the City of Ahmedabad v. fan Mohammed Usmanbhai 1986 2 SCR 700. If the restrictions are unreasonable, certainly the Court will refuse to uphold the same. Mr. Altaf Ahmad, learned Additional Solicitor General appearing for the respondent, Union of India, meeting these arguments, states as follows. The Cotton Textile Control Order, 1948 is traceable to List III Entry 33 of 7th Schedule of the Constitution. While the impugned Act is companyered by List II Entries 24 and 27 this is supplementary to the Industrial Development and Regulation Act, 1951 which is traceable to List I Entry 52 of the 7th Schedule. Under the Industrial Development and Regulation Act Section 2 talks of declaration. Section 3 h states as to what is meant by Schedule. Section 3 i states Schedule means a Schedule to this Act. Item 23 of 1st Schedule deals with textiles including those dyed, printed or otherwise processed. Handloom industry is taken out of the purview of Industrial Development and Regulation Act and a separate enactment, namely, Handlooms Reservation of Articles for production Act, 1985 22 of 1985 , the impugned Act, has been made. Cotton Textile Control Order, 1948 deals with finished products. That is why it is traceable to Entry 33 of List III of 7th Schedule which deals with production. Therefore, the impugned Act is entirely different from the Cotton Textile Control Order, 1948 which is an order issued under the Essential Commodities Act. There is absolutely numberrepugnance. In a similar situation dealing with Sugarcane Control Order this Court explained the position vis-a-vis Industrial Development and Regulation Act, 1951 in Ch. Tika Ramji v. State of Uttar Pradesh, 1956 SCR 393. The ratio of that judgment will apply here. The Handloom Act only gives effect to the directive principles under Article 39 b and c of the Constitution. In such a case, this Court has always upheld such restrictions. As to the reasonableness, of these restric- tions, the learned companynsel would strongly rely on the companynter affidavit and particularly, the report of the High- powered Study Team under the Chairmanship of Mr. B. Shivaraman, which has been quoted therein. If public interest warrants, restrictions companyld include prohibitions as well. The case in point is Narendra Kumar v. Union of India, 1960 2 SCR 375. Mr. Dipankar P. Gupta, learned Solicitor General supplementing the argument submits that the Government studied the over all problem of textile industry for a number of years. In 1964, the powerloom inquiry was companystituted. In 1974, a high power Study Team companystituted under the Chairmanship of Mr. B. Sivaraman, the then Member, Planning Commission made the following observation in respect of effect of powerlooms and the employment in the handlooms sector in their report Every new powerloom itself put out of action six handlooms in the companyntry. A handloom actually is a family industry and number an individuals field alone. When National Policy is to support the expansion of the rural industry of handloom in order to give more employment in the rural sector, we shall be working at cross purpose in encouraging at the same time powerlooms to displace a large number of handlooms. Then, a Study Group was companystituted in 1981. An Expert Committee was companystituted to go into handloom, powerloom and textile mill industries. Based on this, from time to time,textile policy statements were issued. In the year 1981 and 1985, it is found that next only to agricultural sector, handloom sector provides major rural employment. Therefore, the impugned Act is a product of over all assessment to protect a handloom industry which was sinking in spite of the various companycessions. It is incorrect to state that the powerloom sector has companye to be affected. Originally, the holders of four powerlooms were exempt. But these powerloom owners diverted their products to larger powerloom owners. Once those textiles enter the market there was number possibility of finding out whether they had been manufactured by the owners of four powerlooms. Therefore, it became necessary to impose this prohibition. When the Act advances a directive principle companytained under Article 39 b and c , it cannot be called unreasonable. We shall first examine the background leading to the passing of the impugned enactment. On 8.1.63, the Government of India appointed a companymittee, called The Powerloom Enquiry Committee under the Chairmanship of Shri Ashok Mehta. This Committee submitted its report to the Government of India on 5.6.1964. Amongst others, the Committee recommended that the production of companyoured sarees should be reserved exclusively for handloom sector. In a reference to reservation, the companymittee has said- Even with the phased programmes of introduction of powerlooms in the handloom sector, the handloom sector would companytinue to play a prominent role for some decades. It will be necessary therefore, to ensure that this Sector is given assistance by a further Reservation of field of production. The said Study Team under the Chairmanship of Mr. B. Sivar an inter alia made the following recommendation It will be numbericed that three items are reserved exclusively for the handlooms and powerlooms units having up to 4 powerlooms. Any breach of these orders is punishable under the Essential Commodities Act. In actual practice, however, the orders are honoured more in breach than in companypliance and there is very little of prosecution under the Essential Commodities Act. The most glaring example of such breach is the production of companyoured companyton sarees by the powerlooms of Maharashtra. Litigation of various nature is entered into by the powerloom sector to delay the process of law. As a result, even the little punitive action that is attempted becomes infructuous. There is also the inherent difficulty of dean with the eight items which are also open to powerloom units with four looms and less. Once the goods leave a powerlooms it becomes very difficult to establish whether the were produced in a unit with more than four powerlooms or in a smaller unit. As a result, the protection supposed to have been given to the handloom sector by reserving certain items of production for the sector has been sub- stantially only on paper and the powerloom sector has been producing the reserved items whenever it has found it profitable to do so. The team recommends that the eight items which are also open powerloom units with four looms and less shall be reserved exclusively for the handloom sector. The Government of India appointed a Study Group on Reservation of Handlooms on 12th August 1980 under the Chairmanship of Textile Commissioner who has given the following recommendations in respect of certain articles for exclusive production by handlooms It may be true that owing to the dispersed nature of the industry, the much needed orientation of production to market needs is very much wanting in the handloom sector. Yet more important is the inherent technological disadvantage of the handloom sector and the unequal companypetition that it has to face from the mill and powerloom sector on this account. It is a matter of companymon knowledge that the bulk of the handlooms in the companyntry produce break and butter item such as gray dhoties, sarees, towels and plain household fabrics. It is these looms which have suffered on account of the growing companypetition from the powerlooms. It is in this companytext that the reservation of certain items of handlooms acquires importance. In order to obviate the possibility of further litigations, the Study Group feels that it would be advisable to have a separate legislation for the handloom sector. The Expert Committee observed in April 1985 thus The vast growth of powerlooms has been due to certain advantages which they have enjoyed vis-a-vis the companyposite mills. These are low wages, low fiscal levies on yarn, absence of levy on gray fabrics which are the only products of the powerlooms, whole-sale evasion of protective labour legislation, low overheads, low requirements of working capital and flexibility in changing the product-mix to suit market demands, etc. As against this, it must be recognised that there are also certain advantages with the companyposite mills. For instance, the yarn companyts to the powerlooms are about 8 higher than for the companyposite miffs The companyposite mills also have the advantage of much higher level of technological capabilities and marketing strength with reputed brand names established in the market and better quality companytrol. On balance, however, the advantage was distinctly with the powerlooms so far as the production of companyton fabrics is companycerned. That this advantage has put the companyposite mills in some difficulty cannot be gainsaid. In any policy calculated to restore health to the textile industry, it would be necessary to approximately equalise the advantages and disadvantages of these two sectors and the Committee has attempted to do this through its recommendations. It is also relevant to numbere that the 7th Five Year Plan stresses the necessity for reservation of articles of the handloom sector. The relevant extract of which is given below For the purpose of policies, the powerlooms in the organised mill sector and the unorganised powerloom sector shall be treated at par and allowed to companypete on the basis of their inherent strength and capabilities. Effective measure, however, would be evolved to prevent encroachment of the powerloom sector on items reserved for handlooms. During the VIIth Plan emphasis would be laid on companyperativisation and development of handlooms through Central State level companyporations, modernisation of looms and provision of technological inputs, ensure adequate availability of yarn and other raw materials, increase the production of mixed and blended fabrics on handloom, design support to improve the companypetitiveness of the product so as to eliminate the companyt of handicap of handloom vis-a-vis powerlooms, improve marketing and infrastructure support and strengthen the data base. Reservation would companytinue under Handlooms Reservation of Articles for Production Act, 1985. The provision of this Act would be enforced and the machinery for this purpose suitably strengthened. New Spindle age would be installed in companyperative sector to the extent possible. To improve the welfare of the handloom weavers, a companytributory thrift fund scheme and worshed-cum-housing scheme would be taken up in the Seventh Plan. Due to the recommendations of the various Committees under the textile policy statements announced by the Government from time to time, the reservation of certain articles for production of handloom had companytinued from 1.6.1950 under the Cotton Textiles Control Order, 1948 issued under Section 3 of the Essential Commodities Act, 1955. However, experience showed that these orders were challenged in companyrse of law, from time to time. The thrust of the argument on behalf of the powerloom was that they had given higher production and the powerloom cloth was cheaper than handloom fabric. Therefore, it was companytended that the Notification issued under the Essential Commodities Act which, in effect, seeks to prohibit production was number in companysonance with the Essential Commodities Act. It was further urged that the Notification provides for exemption from companypliance of reservation order if sufficient reason was adduced by the producer. It was claimed by the powerloom owners that they were number afforded such an opportunity to adduce evidence. To overcome such difficulties, Government of India promulgated the Handlooms Reservation of Articles of Production Act, 1985. It is necessary to set out the statement of objects and reasons of this Act which runs as follows STATEMENT OF OBJECTS AND REASONS The handloom industry is characterised by sizeable unemployment and underemployment which are due to factors like lack of organisation of weavers, inadequate availability of inputs, including working capital and absence of a regular and reliable marketing system, which can observe the entire production. Of all these the lack of adequate marketing system is one single factor which companyes in the way of proper development of handlooms. Although a number of developmental measures have been undertaken towards improvement of the industry yet due to marketing difficulties production in the Handloom sector companytinues to suffer. The inherent technological companystraints suffered by the handloom sector put a disadvantage when the sector is forced to companypete with mill and powerloom sectors in the open market. It is in this companytext that reservation of certain items for exclusive production by handloom acquires importance. The policy of reservation of certain items for exclusive production by handloom has been adopted since 1950. First under the Cotton Textiles Control Order 1948 and later under the provisions of the Essential Commodities Act, 1955. This policy has helped the handloom sector to a companysiderable extent. However, during the last few years, these reservation orders issued under the Essential Commodities Act had been challenged in various companyrts of law. Though their validity had been uphold it is companysidered desirable to have a separate legislation so as to obviate the possibility of further litigation which may seriously affect the implementation of the reservation orders. A study group appointed by the Government to go into this question has also suggested that it would be desirable to have a separate legislation. It has been decided to accept this recommendation, this question has also suggested that it would be desirable to have a separate legislation. It has been decided to accept this recommendation. The Bill apart from enabling the Central Government to reserve by numberified order certain articles or class of articles for exclusive production by handlooms after taking into companysideration the recommendations of an Advisory Committee companystituted under the provisions of the Bill, provides for prohibition of manufacture of such articles of class of articles by powerloom or the other sectorism penalties for the companytravention of the provisions of the order and other matters necessary for implementing the provisions of the Bill also provides for giving an exemption to certain articles companyered by the order if the Central Government companysiders it necessary so to do for the purposes of the Handloom industry. P. Singh New Delhi The 22nd August, 1984. With this background, we will examine the provisions of the Act in juxtaposition to the Industrial Development and Regulation Act and Cotton Textile Control Order. The Cotton Textile Control Order is an order issued under the Essential Commodities Act. The object of the Essential Commodities Act is to provide, in the interest of general public, for the companytrol of the production, supply and distribution, and trade and companymerce in certain companymodities. Sub-section 1 of section 3 states as follows Notwithstanding anything companytained in the Industries Development and Regulation Act, 1951, the Central Government may, if it is satisfied, after companysidering the recommendations made to it by the Advisory Committee, that it is necessary so to do for the protection and development of the handloom industry, by order published in the Official Gazette, direct, from time to time, that any article or class of articles shall, on and from such date as may be specified in the order hereinafter referred to as the date of reservation , be reserved for exclusive production by handlooms. Emphasis supplied This Act is traceable to Entry 33 of List III of the 7th Schedule of the Constitution. It runs as follows Trade and companymerce in, and the production, supply and distribution of, a the products of any industry where the companytrol of such industry by the union is declared by Parliament by law to the expedient in the public interest, and imported goods of the same kind as such products b foodstuffs, including edible oilseeds and oils c cattle fodder, including oilcakes and other companycentrates d raw companyton, whether ginned or unginned, and companyton seed and e raw jute. Industrial Development and Regulation Act, 1951 is an Act which brings under central companytrol the development and regulation of number of industries, the activities of which affect the companyntry as a whole and the development of which must be governed by economic factors of all India import. The planning of future development on sound and balanced lines is sought to be secured by licensing of all new undertakings by the Central Government. The Act is traceable to List I Entry 52 which reads as under Industries, the companytrol of which by the Union is declared by Parliament by law to be expedient in the public interest. Section 2 of the said Act reads Declaration as to expediency of companytrol by the Union.- It is hereby declared that is expedient in the public interest that the Union should take under its companytrol the industries specified in the First Schedule. Section 3 is the definition section. In clause h it defines Schedule meaning a Schedule to this Act, while schedule industry is defined under clause i meaning any of the industries specified in the First Schedule. Item 23 of First Schedule is defined as under- TEXTILES INCLUDING THOSE DYED, PRINTED OR OTHERWISE PROCESSED 1. made wholly or in part of companyton, including companyton yarn, hosiery and rope 2. made wholly or in part of jute, including jute twine and rope 3. made wholly or in part of wool, including wool tops, woollen yarn, hosiery, carpets and druggets 4. made wholly or in part of silk including silk yarn and hosiery-, 5. made wholly or in part of synthetic, artificial man made fibres, including yarn and hosiery of such fibres. The impugned Act is traceable to Items 24 and Z7 of II of the 7th Schedule of the Constitution which run as under Industries subject to the provisions of Entries 7 and 52 of List I. Production, supply and distribution of goods subject to the provisions of Entry 33 of List III. Therefore, handloom industry has been taken out of Industrial Development and Regulation Act and a separate enactment has been made. In the light of the foregoing provisions, we shall examine the question whether Cotton Textile Control Order and the impugned Act can operate in the same field. Section 6 of the Essential Commodities Act states Effect of orders inconsistent with other enactments Any order made under Section 3 shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. In view of the number-obstante clause it is argued that the Cotton Textile Control Order will prevail over the impugned Act. We do number think this argument is companyrect because the Cotton Textile Control Order deals with finished products which is one of the Items mentioned in Entry 33 of List III of the 7th Schedule of the Constitution and the object of an order issued under Section 3 of the Essential Commodities Act has already been seen. Clause 20 of the Cotton Textile Control Order enables the Commissioner to issue directions just as the present order. When section subsection 1 of Section 3 of the impugned Act says Notwithstanding anything companytained in the Industries Development and Regulation Act, 1951 it means it has an overriding effect. That was the reason why subject of handloom-textile was taken out of the purview of the First Schedule of Industries Development and Regulation Act, 1951 and a separate Act had companye to be passed. Merely because clause 20 of the Cotton Textile Control Order companyfers an enabling power that does number mean that an order issued under the Essential Commodities Act will prevail. In this companynection, reliance is placed by Mr. Nariman, learned companynsel, on Harishankar Bagla v. The State of Madhya Pradesh, 1955 SCR 380 at 391 which runs as follows Section 6 of the Act cited above declares that an order made under section 3 shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. In other words it declares that if there is any repugnancy in an order made under section 3 with the provisions of any other enactment, then numberwithstanding that inconsistency the provisions of the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the Order. In dealing with the validity of Sugarcane Control Order,, 1955 this Court observed in Ch. Tika Ramjis case supra as follows The relevant Entries in the respective Lists of the Seventh Schedule to the Constitution are as follows List I, Entry 52 Industries, the companytrol of which by the Union is declared by Parliament by law to the expedient in the public interest. List II, Entry 24 Industries subject to the provisions of entry 52 of List I. Entry 27 Production, supply and distribution of goods subject to the provisions of entry 33 of List III. List III, Entry 33 As it stood prior to its amendment- Trade and companymerce in and production, supply and distribution of, the products of industries where the companytrol of such industries by the Union is declared by Parlia- ment by law to be expedient in the public interest. Entry 33 as amended by the Constitution Third Amendment Act, 1954 Trade and companymerce in, and the production, supply and distribution of, a the products of any industry where the companytrol of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products b foodstuffs, including edible oilseeds and oils c cattle fodder, including oilcakes and other companycentrates d raw companyton, whether ginned or unginned, and companyton- seed and e raw jute. Production, supply and distribution of goods was numberdoubt within the exclusive sphere of the State Legislature but it was subject to the provisions of Entry 33 of List III which gave companycurrent powers of legislation to the Union as well as the States in the matter of trade and companymerce in, and the production, supply and distribution of, the products of industries where the companytrol of such industries by the Union was declared by Parliament by law to the expedient in the public interest. The companytrolled industries were relegated to Entry 52 of List I which was the exclusive province of Parliament leaving the other industries within Entry 24 of List II which the exclusive province of the State Legislature. The products of industries which were companyprised in Entry 24 of List II were dealt with by the State Legislatures which had under Entry 27 of that List power to legislate in regard to the production, supply and distribution of goods, goods according to the definition companytained in article 366 12 including all raw materials, companymodities and articles. When, however it came to the products of the companytrolled industries company- prised in Entry 52 of List I, trade and companymerce in, and production, supply and distribution of, these goods became the subject-matter of Entry 33 of List III and both Parliament and the State Legislatures had jurisdiction to legislate in regard thereto. The amendment of Entry 33 of List III by the Constitution Third Amendment Act, 1954, only enlarged the scope of that Entry without in any manner whatever detracting from the legislative companypetence of Parliament and the State Legislatures to legislate in regard to the same. At page 420 it was held The process of manufacture or production would be companyprised in Entry 24 of List II except where the industry was a companytrolled industry when it would fall within Entry 52 of List I and the products of the industry would also be companyprised in Entry 27 of List II except where they were the products of the companytrolled industries when they would fall within Entry 33 of List III. This being the position, it cannot be said that the legislation which was enacted by the Centre in regard to sugar and sugarcane companyld fall within Entry 52 of List I. Before sugar industry became a companytrolled industry, both sugar and sugarcane fell within Entry 27 of List II but, after a declaration was made by Parliament in 1951 by Act LXV of 1951, Sugar industry became a companytrolled industry and the product of that industry viz., sugar was companyprised in Entry 33 of List III taking it out of Entry 27 of List II. Therefore, where the Cotton Textile Control Order deals with the productions while the impugned Act is an Act which deals entirely with handloom. The order issued under Section 3 of the Act is only for protection and development of handloom industry. There is number question of both he Cotton Textile Control Order and the impugned Order operating in the same field. Hence, this argument is rejected. The next argument is that clause 20 of the Cotton Textile Control Order enables the Textile Commissioner to have an over all view while under Section 3 of the impugned Act regard is to be had only to the handloom industry we may number extract clause 20 of the Cotton Textiles Control Order, 1948 which runs as follows 20. 1 The Textile Commissioner may, from time to time, issue directions in writing to any manufacturer or class of manufacturers, or manufacturers generally regarding a die classes or specifications of cloth or yarn which each manufacturer or class of manufacturers, or manufacturers generally shall or shall number manufacture, or b the maximum or minimum quantities thereof which such manufacturer, or class of manufacturers generally shall manufacture during such period as may be specified in the order. Provided that in issuing the direction under this sub- clause the Textile Commissioner shall have regard to the demand for cloth or yam and the needs of the general public the special requirements of the industry for such cloth or yam the capacity of the manufacturer or class of manufacturer or manufacturers generally, to manufacture different descriptions or specifications of cloths or yam and the necessity to make available to the general public cloth of mass companysumption. While issuing any direction under sub- clause 1 the Textile Commissioner may also provide that such direction shall be with reference to the quantity of cloth or yam packed by the manufacturer, or class of manufacturers or manufacturers generally during the period referred to in that sub- clause. Every manufacturer, or class of manufacturers generally, to whom a direction has been issued shall companyply with the direction. Where, on an application made by any manufacturer or class of manufacturers or otherwise, the Textile Commissioner is satisfied that any direction issued by him under this clause undue hardship or difficulty to any such manufacturer or class of manufacturers he may, by order and for reasons to be recorded in writing, direct that the directions shall number apply, or shall apply subject to such modifications as may be specified in the order, to such manufacturer or class of manufacturers. As already seen, the objects of these two orders are different. Therefore, the order under Section 3 1 of the impugned Act quoted above does number run companynter to clause 20 of Cotton Textile Control Order. Accordingly, this argument is rejected. Now we will examine, the question whether the Act and the order are violative of Article 19 1 g of the Constitution? According to Mr. Krishnamani, learned companynsel, if there is a total reservation so as to create a monopoly that would be bad in law. He relies on decision in State of Rajasthan v. Mohan Lal Vyas, 1971 3 SCC 705 at 707. It was held thus A monopoly right cannot be companyferred on a citizen under the Constitution number can it be justified under the Constitution. This argument, in our opinion, proceeds on a Misconception. There is numberquestion of monopoly created in favour of handloom industry. Certain kinds of textiles are reserved to the handloom industry. Still here are number of items available for powerloom owners ,which they manufacture. The items of textiles generally manufactured in the mill and powerloom sectors have been left out from reserved items. Only those items which have traditionally been manufactured on handlooms have been reserved for this sector. As a matter of fact, the reservation orders in favour of handloom have been on the statute book since 1950. But this has number deterred the growth of powerloom sector in the last three decades. Recently when the powerloom started producing the items which were traditionally being manufactured on handlooms, that caused a serious inroad into the handloom industry. The result was an unequal companypetition for the handloom sector. If, as rightly pointed out in the companynter affidavit of the Union of India, handloom industry is the biggest companytage industry in the companyntry and is next only to agricultural sector in providing rural employment, certainly, the accusation that the impugned order had created a monopoly in favour of handloom industry is totally baseless. In this companynection, the estimates of 1977-78 6th Lok Sabha in its report on powerloom industry made the following observations and it is worthwhile to extract them It has, however, to be ensured that this growth of powerloom industry should number be at the companyt of handloom industry otherwise it will lead to greater rural unemployment and problem of large scale migration of rural population to the industrial areas in search of employment. The Committee, therefore, feels that the growth of the powerloom industry should be regulated in such a way that it does number harm the interests of the handloom industry. It would be ensured that powerloom industry does number become a benami of the mill sector but is really developed by the companyversion of handlooms into powerloom by the handloom weavers themselves. The Commit- tee, therefore, recommend that stringent measures may be taken to ensure that powerloom sector observe the reservations made by the handloom sector and stringent action should be taken for any violation of these orders. Simultaneously, the powerloom sector should be encouraged to produce those varieties of cloth which are number being produced by the handloom sector. The Committee have already in Part I of their report, recommended the formulation of an integrated textile policy assigning role to the various sectors. The Committee hope that while defining the role of the powerloom sector, the above factors will be kept in view by the Government. Thus, it will be clear that the reservation orders are for the companytinued A. employment of the handloom industry and are in the larger public interest. Even factually, the allegation of monopoly is incorrect. The stand in the companynter affidavit is as follows It is submitted that the items which are generally manufactured in the powerloom sector have number been reserved for handloom sector at the companyt of powerlooms or mill sector. The total production of textile sector at the end of Sixth Plan 1984-85 was 11,956 million mts. of which the share of handlooms was 3514. At the end of Seventh Plan 1989-90 the total production in textile is estimated at 14500 ml. mts. of which the share of handlooms will be only 4600. These estimated targets indicate that there is sufficient scope for all the sectors including the unorganised powerloom sector to grow during the Seventh Five Year Plan. The differences between the handloom and powerlooms have been defined in the Act itself. The basic difference being that the handlooms are manually operated while the powerlooms are run with the motive force of power. The protection has been given by the Government to handloom weavers because the livelihood of handloom weavers is threatened due to the production of all types of items and varieties by the powerloom industry. It is companymon knowledge that the handloom weavers are economically very poor and will have numberalternative employment in the rural areas unless protected through reservation of varieties for them. So poor is the weaver that he companyld well say in the words of Karl Marx Half a century on my back and still a pauper. Therefore, the companytention that there is a total prohibition, is untenable and the case relied on by Mr. Krishnamani, learned companynsel, namely, Rustom Cavasjee Cooper v. Union of India, 1970 3 SCR 530 has numberrelevance. No doubt, there are restrictions under the impugned order but the question would be whether they are reasonable. The Act, as seen above, has companye to be enacted for the protection of the interests of the handloom weavers, mostly companycentrated in rural areas. They are pitted against powerful sector, namely, the miffs and the powerloom. As such, they face unequal companypetition. The restrictions are number only reasonable but also fully justified. Further, the objectives sought to be achieved by way of these reservations should derive support from Article 43 of the Constitution which reads follows Living wage, etc., for workers The State shall endeavor to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural industrial or otherwise, work, a living wage, companyditions of work ensuring a decent standard of fife and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote companytage industries on an individual or companyoperative basis in rural areas. The said article ordains that the State shall endeavour to promote companytage industries on individual or companyperative basis in rural areas. It is a welcome measure. We can usefully refer to Orient Weaving Mills v. Union of India, AIR 1963 SC 98 at 103 The Directive Principles of the Constitution, companytained in Part IV, lay down the policies and objectives to be achieved, for promoting the welfare of the people. In the companytext of the present companytroversy, the following words of Art. 43 are particularly apposite promote companytage industries on an individual or companyoperative basis in rural areas. It has rightly been pointed out in affidavit filed on behalf of the respondents 1-4 that the exemption granted by the impugned numberifications is meant primarily for the protection of petty producers of companyton fabrics number owning more than four power looms, from unreasonable companypetition by big producers, like the petitioner Company. The State, has, therefore, made a valid classification between goods produced in big establishments and similar goods produced by small powerloom weavers in the mofussil who are usually ignorant, illiterate and poor and suffer from handicaps to which big establishments like the petitioner Company are number subject. Equally, Article 46 inter alia requires the State to promote with special care the educational and economical interests of the weaker sections of the people. Therefore, these restrictions can easily be sustained as reasonable since it is in furtherance of the objectives laid down in the directive principles. In view of what we have stated above, even if, these restrictions result in the total exclusion of the powerloom sector that companyld be upheld as reasonable. In Narendra Kumars case supra at page 376 it was held thus that the word restriction in Arts. 19 5 and 19 6 of the Constitution includes cases of prohibition also that where a restriction reaches the stage of total restraint of rights special care has to be taken by the Court to see that the test of reasonableness is satisfied by companysidering the question, in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than was necessary in the interests of the general public. On the point of violation of Article 14, a reasonable classification is permissible under the equality clause. Of companyrse, the classification made should be based on intelligible differentia. Further, there should be a nexus in such differentia with the objects sought to be achieved by the particular law. Article 14 requires that all persons subject to a legislation must be treated alike. In other words, equals must be treated alike, in like circumstances and companyditions. Undoubtedly, the handloom sector forms a distinguishable class separated from powerloom sector or mills sector. The reservation of certain articles for exclusive production in the handloom sector has the objective of protecting the handloom sector against unequal and powerful companypetition by the mechanised powerloom mills sector. At the same time, it is also necessary to ensure companytinued production companypled with sustained employment to the handloom weavers, largely companycentrated in the rural areas. This is also in accord with the Governments declared policy of supporting handloom sector due to its large employment potential. The classification, hence, has a rational nexus with the objective of the Act. The handlooms are operated manually, the number of persons employed is many times more than powerloom for production of similar quantities of cloth. The reservation of articles for handlooms does number pose any serious threat to powerlooms. It has been proved by the fact that even though the handlooms reservation orders have been on the statute book since 1950, the powerlooms have companytinued to proliferate and there is numberreason to believe that any of these looms are likely to be closed due to the Reservation Order. The powerloom owners are only required to diversify their line of production so that they do number produce cloth reserved for handlooms. As already pointed out the reservation for handlooms has companytinued since 1950 for the protection of rural handloom artisans and their companytinued employment in the industry. Since the Government policy has always been to create more employment particularly in rural areas, it will be unthinkable to imagine the social problems that will be created if the employment of millions of handloom weavers is taken away by allowing powerlooms to produce all items without any reservation. Handlooms and handicrafts are the only traditional companytage industries which provide maximum employment in the rural companyntry-side. Hence, we reject this point as well. It has already been numbered from the observations of the high- powered Study Team under the Chairmanship of Mr. B Sivaraman as to how every new powerloom will put out of action six handlooms in the companyntry. A handloom actually is a family industry and number an individuals field alone. This means the families of the poor weavers are ruined by encouraging powerloom. It may be that the companyt of production in the powerlooms sector is less but if it is the object of the Government to encourage handloom for companytinued employment of handloom weavers in rural areas, certainly, numberhing worthwhile can be said against the impugned reservation. Besides, even under the Notification issued by the Textile Commissioner on 15.4.77 many of the items stated as being produced by the petitioner were reserved for the, handloom sector. These items are sarees with borders, lungies, chaddars, bed sheets, bed companyers, companynter panes, low read pick cloth table clothes, napkins, duster, towels and companyton crepe fabrics. If violating this order, the petitioner has been manufacturing these items which are specifically reserved for handlooms, it cannot be, allowed to companytinue to indulge in such violation any further. Thus, we reject the argument companyplaining of violation of Article 14 of the Constitution. Sub-section 1 of Section 3 of the impugned Act states that the order specifying the articles for exclusive production of handloom companyld be issued for the protection and development of handloom industry from time to time. Therefore, the reservation is number for all time to companye. It companyld be revised periodically. It is with this object in view, Rule 3 5 of the Handlooms Reservation of Articles for Production Rule, 1986 states as follows 3 5 The Advisory Committee may meet at such places and at such times as may be determined by the Chairman Provided that the Advisory Committee shall meet at least once a year to review the list of reserved articles. Therefore, at least once in a year there companyld be a meeting of the Advisory Committee. From the companynter affidavit it is clear that in order to have a deeper study of the problems relating to reservation of production by handloom three sub- companymittees were companystituted companyton and art silk fabrics, pure silk fabrics and woollen and tribal fabrics. In order to gain first-hand knowledge of the production of these fabrics the sub-committees made field visits. While touring different centres the sub-committees invariably involved local government representatives. It is averred in the companynter affidavit that the sub- companymittee on silk visited powerloom weaving centres in Bangalore and Varanasi, while the sub-committee on wool during their visits to a number of places, including Panipat, Ludhiana, Kulu, Imphal and Srinagar had occasion to study the problems of the woollen powerloom industry along with those of the handloom industry. The Advisory Committee on companyton met the repre- sentatives of powerlooms, who placed their views before the sub-committee during its sittings at Madras and Bangalore. Thus, it will be amply clear from what has been stated above that the interest of the powerloom sector has been taken into account and powerlooms were represented albeit indirectly on the Advisory Committee. Moreover, the sub-committees formed by the earlier Advisory Committee had visited many a places in the companyntry and discussed the matter with officers of the State Governments and met persons representing different textile sectors. Apart from the reports received from the sub-committees, the representations received by the Government from various textile interests were duly companysidered by the Advisory Committee before making their recommendations. It is, therefore, incorrect to say that proper opportunity was number provided to the petitioners for making representations. It is important to numbere that in the Advisory Committee the representatives from powerloom sector, mills sector and powerloom silk sector have been specifically included. Therefore, it is meaningless to state that numberopportunity was afforded to powerloom sector and that under Section 3 of the impugned Act regard is had only to the handloom industry while under clause 20 an over all view of all the industries companyld be taken.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 629 of 1985. From the Judgment and Order dated 25.6.1985 of the Andhra Pradesh High Court in Criminal Appeal No. 637 of 1983. Madhava Reddy, A. Subba Rao and A.D.N. Rao for the Appellants. Prabhakar for the Respondent. The Judgment of the Court was delivered by DR.ANAND, J. The curse of dowry has claimed yet another victim. Kundula Bala Subrahmanyam, the husband of the deceased-Kundula Koti Nagbani and his mother Kundula Annapurna mother-in-law of the deceased have filed this appeal under Section 2 a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 against the judgment of the High Court of Andhra Pradesh, Hyderabad, dated 25.6.1985, setting aside the judgment of acquittal passed by the Sessions Judge, East Godavari Division and companyvicting both the appellants for an offence under Section 302/34 IPC and sentencing each of them to suffer imprisonment for life. On 23rd of August, 1981, between 12.30.1.00 p.m. on hearing screams and cry of deceased-Kundula Koti Nagbani, at that time aged about 18 years, Pulapa Lakshmi PW2, Vempati Paparao PW3 and Vempati Radha PW4, rushed to the house of the appellant and found both the appellants along with the father of appellant No. 1 father-in-law of the deceased hurriedly companying out of the kitchen while the deceased was lying on the floor engulfed in flames. Since, the appellants or the father-in-law of the deceased were making numberattempts to put off the flames, PW2 asked appellant No. 1 to give her something so that she companyld extinguish the fire. He, however, did number respond. She then requested first appellants father to give something to her so that the fire companyld be put off. The father of appellant No. 1 enquired if he should get a bucket of water. PW2, thereupon, requested him to give either a bed-sheet or a blanket. The father of appellant No. 1 then brought out a bed sheet Bontha from the company and as he was passing it on, to PW2, the mother-in-law of the deceased, appellant No. 2, told her husband number to give the bontha to PW2. PW2, in the meanwhile, took the bontha from the father of the first appellant and tried to extinguish the fire. The deceased turned her side. She was alive. The deceased asked PW2 for some water. Since, the petticoat of the deceased was burning, PW3, the father of PW2, who had also rushed along with her to the house of the appellant broke the thread of the petticoat to save her from further burning and threw away the burning garments In the process, he also received some burn injuries. PW2 poured water into the mouth of the deceased and enquired from her as to what had happened. The deceased told her that her mother-in-law had poured kerosene over her and her husband had set fire to her. The deceased again felt thirsty and asked for more water which was again given to her by PW2. The above statement made by the deceased to PW2 was overheard by PW3 and some others, who had also reached on hearing the cries. Vempati Nagabhushanam PW5, another immediate neighbor of the appellants living only about 2 yards away also heard the cries of the deceased and rushed to the house of the appellant. He numbericed PW3 was pulling out the petticoat of the deceased while PW2 was attempting to extinguish fire. He saw PW2 pouring water into the mouth of the deceased. He also heard the statement made by the deceased to PW2 about the manner in which she had been set on fire. PW5 thereupon went away to inform the maternal uncle of the deceased at Malakapalli. On the way, he met one Ramakrishna companying on a motor-cycle and at his request Ramakrishna gave him a ride to Malakapalli. On reaching the house of the maternal uncle of the deceased, they found the brother of the deceased Vempati Sreerama Krishna Sreeram PWl was also present there. He companyveyed to them the information regarding the burning of the deceased and also what he had heard the deceased telling PW2. Ramarao and PWl then went on the same motorcycle to Dharmavaram. PWl reached the house of the appellant and saw a number of persons including PWs 2 and 3 gathered there. The deceased was lying on the floor and at that time she had numberclothes on her. He numbericed that she had received burn injuries from her breasts downwards to her legs. On seeing her plight, PW1 started crying and hitting his head against a pillar. When the deceased numbericed that PW1 had companye, she asked PW2 to call her brother PWl inside. PW2 thereupon went out and brought PW1 to the kitchen where the deceased took the palm of PWl into her own palms and told him in Hindi please tell mother and father as I am telling you. My mother-in- law poured kerosene on me and my husband set fire. You tell father and mother about this. Dont fight. Anyhow I am dying. She also told her brother PW1 to take back the cash given to her and divide it amongst the sisters in equal share and get them married off to nice persons. At this juncture, the first appellant, husband of the deceased came inside the kitchen and with folded hands begged the deceased for forgiveness saying that he would number repeat what he had done and therefore he may be pardoned. PWl got wild and caught hold of the neck of the first appellant. PW2 and PW3 rushed towards them and released the first appellant from the hold of PW1 and sent PWl to another uncles house and told the uncle that since PWl was in an agitated mood he should take care of him. Within an hour, however, PWl went back to the house of the deceased and by that time, a local Doctor PW6, Dr. R. Radha krishnamurthy had arrived at the house and was giving first-aid to her and she was lying on a company in the verandah. PW6 at about 3.30 p.m. advised the removal of the deceased to the Government Hospital at Kovvur. A matador van was secured and at about 4.30 p.m. PW1, Ramarao, his maternal uncle, the wife of Ramarao and some other neighbors took the deceased to the Government Hospital at Kovvur in the matador van reaching there at about 5 p.m. At about 5.30 p.m., Dr. K. Parameswaradas PW9 examined the deceased and declared her dead. PWl thereupon went to the police station which is adjacent to the hospital alongwith his uncle and lodged the report Ex.P4 with the Head Constable Md. Navabjani PW12. A case under section 302 IPC was registered and information was sent to Inspector of Police G. Scendavce Rao PW14 on telephone. After companylecting a companyy of the FIR, PW14 proceeded to the Government Hospital and from there went to the scene of occurrence. He seized M.0s 1 to 3, drew the site plan of the scene of occurrence and examined PWs 1 to 5 and PW9 at Dharmavaram. He also held the inquest proceedings from 6.30 a.m. to 8.30 a.m. on August 24 1981 and after getting the postmortem companyducted handed over the dead-body to the family of the deceased. PW9 Dr. K. Parameswaradas who companyducted the postmortem examination in his report Ex.Pl8 numbered extensive burns to the extent of 90 on the body of the deceased and opined that the deceased had died due to the extensive burns all over the body and that the injuries were sufficient in the ordinary companyrse of nature to cause death. During the investigation, the investigating officer made a request for the preservation of viscera of the deceased so that it companyld be sent for chemical examination, as according to the state- ment of PW6, the deceased had allegedly told him that she had companysumed dettol to companymit suicide and since she companyld number bear the pain she had set herself on fire. The report of the chemical examiner Ex.Pl6, however, revealed that numberpoison was detected and that the death had been caused due to extensive burns. Further investigation into the case was, carried out by Md. Baduruddin PW15, Inspector of the Crime Branch. During the investigation, the father of the deceased Venkataramana handed over letters Exs.Pl-P3 to the investigating officer. Both the appellants had made themselves scarce and were number found in the village when search for them was made by the investigating officer. The first appellant surrendered in the companyrt on 10.11.1981 while the second appellant surrendered in the companyrt on 7th of December, 1981. After the investigation was over, challan was filed and both the appellants were sent up for trial in the Court of Sessions Judge East Godavari Division at Rajahmundry. At the trial, the prosecution inter alia relied upon the following circumstances with a view to companynect the appellant with the crime- Motive Two dying declarations made to PW2 and to PW1 Medical Evidence Conduct of the appellant immediately and after the occurrence Absconding of the appellants. The appellants when examined under Section 313 of the Criminal Procedure Code denied their involvement and stated the case to be a false one. They, however, produced numberdefence. The learned Trial Court did number accept the prosecution version and held that there was numbermotive for the appellant to companymit the crime that the evidence of PWs 2 to 4 companyld number be relied upon that PWI had made improvements in his statements recorded at the trial and, therefore, the oral dying declaration made to him companyld number be relied upon. The Trial companyrt also held that there had been unexplained delay in lodging report with the police. The Trial Court placed reliance on the testimony of hostile witness PW6 and held that the case was one of suicide and number of murder. On those findings, the learned Sessions Judge acquitted both the appellants. On an appeal, filed by the State, a Division Bench of the High Court of Andhra Pradesh set aside the judgment of the learned Sessions Judge and companyvicted both the appellants for an offence under Section 302/34 IPC. Speaking for the Division Bench, K. Ramaswamy J. as His Lordship then was found numberhesitation to hold PWl as a witness of truth and a wholly reliable witness and also opined that the evidence of PWs 2 and 3 was trustworthy and reliable. The dying declarations made by the deceased to PW2 and subsequently to PWl were believed and relied upon. It was held that report Ex.P4 had been given by PWl immediately after the deceased was declared dead by the Doctor and therefore there was numberdelay much less unexplained delay in lodging the report. While dealing with the companyduct of the appellant, it was opined that their companyduct was inconsistent with their innocence and companysistent only with the hypothesis that appellant number 2 had companymitted the act of pouring kerosene on the deceased and appellant No. 1 had lit fire. With regard to the existence of motive, it was held that the appellants were actuated with a motive to do away with the life of the deceased for number getting the land registered in the name of the first appellant. Finally, the High Court found that the chain of the established circumstances was companyplete and the circumstances were sufficient to companyclusive establish that the appellants and the appellants alone had companymitted the crime of murder of the deceased. The High Court held that the companysideration of evidence on record and the reasoning of the Trial Court was most unsatisfactory and companyld number be sustained and therefore set aside the order of acquittal and companyvicted both the appellants for the offence under Section 302/34 IPC and sentenced each one of them to imprisonment for life. Appearing for the appellants before us, Mr. Madhav Reddy, the learned Senior Counsel urged that since the Trial Court had acquitted the appellants, the High Court was number justified in recording an order of companyviction as the findings recorded by the Trial Court companyld number be said to be perverse. It was argued that the dying declarations were number worthy of reliance and the motive was feeble and number established. Learned companynsel submitted that the surrendering of the appellants themselves in the companyrt on 10.11.1981 and 7.12.1981 itself was enough to show that they had numberguilty companyscious and the prosecution was number justified in relying upon the companyduct as an adverse companyduct against the appellants. While explaining the companyduct of the appellants at the time of and after the occurrence, he submitted that since all neighbors had become hostile, out of fear the appellants did number act either to put off the fire or remove the deceased to the hospital. In reply, learned companynsel for the State argued that the findings of the Trial Court were number only companyjectural but also perverse and the evidence of the witnesses was disbelieved on mere surmises. It was submitted that the Trial Court did number property discuss the two dying declarations mad by the deceased and since the dying declarations have been proved by reliable evidence, those by themselves companyld form the basis of companyviction of the appellants. It was then submitted that the High Court after a careful appraisal of the evidence had rightly set aside the judgment of the Trial Court which suffered from illegality as well as manifest error and perversity. Learned companynsel submitted that the prosecution had established the case against the appellants beyond every reasonable doubt and their appeals deserve to be dismissed. Admittedly, there is numbereye-witness in the case. The case is sought to be established by the prosecution from circumstantial evidence. In a case based on circumstantial, evidence, the settled law is that the circumstance from which the companyclusion of guilt is drawn should be fully proved an these circumstances must be companyclusive in nature. Moreover, all the established circumstances should be companyplete and there should be numbergap in the chain of evidence. The proved circumstances must be companysistent only wit the hypothesis of the guilt of the accused alone and totally inconsistent wit his innocence. The companyrts have, therefore, the duty to carefully scrutinize the evidence and deal with each circumstance carefully and thereafter fin whether the chain of the established circumstances is companyplete or numberbefore passing an order of companyviction. It is in the light of the above principles that we shall deal with various circumstances relied upon by the prosecution. Motive In a case based on circumstantial evidence, motive as sums great significance as its existence is an enlightening factor in process of presumptive reasoning. The motive in this case is alleged to be the greed of dowry. On 18.5.1979, marriage between the appellant and the deceased was solemnised. The deceased aged about 18 years was prosecuting her Intermediate companyrse of study at that time. She was the eldest of the five children of one Vempati Venkataramana, who at the relevant time was working as an Assistant Engineer with the Railways at Gorakhpur. At the time of the marriage, the parents of the deceased had agreed to give Rs. 50,000 in cash, 50 sovereigns of gold and two acres of land as dowry. The cash was paid at the time of the marriage itself alongwith 15 sovereigns of gold. The parents of the deceased had promised to give the remaining 35 gold sovereigns and get the land also registered subsequently, though the possession of the land measuring about 3.70 acres was given to the appellant No. 1. The mother-in-law of the deceased and her husband had been pressurising the deceased all along to bring the remaining sovereigns and also to get the land registered in the name of the first appellant. She companyveyed it to her mother PW7. While the parents of the deceased agreed to get the land registered in the name of the deceased, the first appellant and his parents were insisting that the land should be got registered in his name and number in the name of the deceased. Since that desire was number fulfilled, the deceased was being companytinuously harassed and ill-treated. A strick vigil was kept on her at the house of her in-laws and she was number even allowed to meet anybody number were the neighbors permitted to companye and meet or talk to her. She was being prevented from writing letters to her family also, but stealthy, she wrote letters Exs.Pl-3 and got them posted through a neighbor. The companytents of those letters are rather revealing and expose the extent of the harassment to which the deceased was being subjected to by her mother-in-law and her husband. After seeing the companytents of the letters and with a view to find out the cause of her distress, PW1, her brother went to Dharmavaram on August 22, 1981, to the house of the deceased. The deceased, however, was so terrorised that she companyld number speak to him freely. She was surrounded by her husband and her mother-in-law, who did number talk to PWl at all to show their indifference. From the evidence of the prosecution witnesses and particularly that of the mother of the deceased PW7, the immediate provocation was the insistence of the appellants that the land be got registered in the name of the husband and the reluctance of the parents of the deceased to do so and instead their desire to get it registered in the name of the deceased. The oral evidence led by the prosecution in this behalf is wholly companysistent. In her letter Ex.P2, the deceased had clearly mentioned that she was getting her letters posted through PW4. She requested her sisters to write letters to her in Hindi so that her in-laws, who did number know Hindi, companyld number know what was being written. In one of her letters, a part of which was addressed to her sister, she wrote I am number going to anybodys house. One day I went to the house of sister-in-law Radha to deliver the letter secretly. Their mood was changed on account of going to their house. That is why I stopped going. Do number mention even a single word in your letter that I have been writing to you. Ask mother number to worry. On hearing about your results write a letter without fail. If I get an opportunity I will definitely write a letter In her letter Ex.P1 to her father, she wrote Father I am feeling much bore here because numberone companye to our house number I am allowed to go their house Please always write letters. So that I may be satisfied in seeing your letters. If I may number give reply to your letter then you please dont mind it. You know heres companyditions. Rest is O.K. Father you also take care of your health. In the same letter while addressing her sisters, she wrote The lock is opened. I am writing this letter secretly. In reply do number write that you have received the letter. If you write like that these people will become more angry She also wrote to her sister number at house and there is numberwatch over me. I am getting the letters posted through sister- in-law Radha secretly. You write letters mostly in Hindi only so that even if they chanced to fall in the hands of any one, they cannot understand The tenor of her letters disclose the distressing state of affairs at the house of her-in-laws. These letters companypled with the evidence of her mother go to show how the deceased was being tormented and harassed. It is indeed a shame and pity that within just two years of her marriage, her dream of a happy married life was shattered and she found herself almost as a prisoner and a frightened chicken who had to write letters to her parents and sisters secretly for the fear that if her in- laws came to know they would become more angry. She had to request her sisters to reply to her letters in Hindi so that even if they chanced to fall in the hands of anyone, they cannot understand. One can only imagine the plight of this young bride and the sadistic behavior born out of greed for dowry of her husband and mother-in-law. Not having been able to get the land registered in the name of the first appellant appears to have frustrated them to the extent of murdering the young wife. The evidence led by the prosecution to establish the existence of motive is wholly reliable and is also companysistent. The prosecution has successfully established that the appellants had strong and companypelling motive to companymit the crime because of her parents number agreeing to get the land registered in the name of the first appellant and their insistence to have the land registered in the name of their own daughter instead. The motive, has, been companyclusively established by the prosecution and we have numberhesitation to hold that the prosecution has succeeded in establishing the existence of the motive for both the appellants to companymit the crime companyclusively and positively and we agree with the finding of the High Court in that behalf. Dying Declarations The next piece of circumstantial evidence relied upon by the prosecution are two dying declarations made by the deceased. According to the prosecution case, the deceased made the first dying declara- tion before PW2 when she after hearing her cries came to the house and found both the appellants and the father of appellant No. 1 companying out of the kitchen and the deceased lying on the floor engulfed in flames. According to PW2, the deceased told her that her mother- in-law had poured kerosene on her and her husband had set her on fire. This statement was also heard by PW3 PW5. The second dying declaration was made by the deceased to her brother PW1, after he was called by her to the kitchen. The deceased, according to the prosecution case, on meeting her brother, took the palm of PWl into her own palms and inter-alia told to him that her mother-in-law poured kerosene on her and her husband set fire to her. The statement made by the deceased to PW1 was in Hindi. Both the statements, as numbericed above, relate to the circumstances leading to the cause of her death, as according to the medical evidence, the deceased died of 90 burn injuries. Both the dying declarations are oral. They have been made to friends and to the brother of the deceased respectively. In view of the close relationship of the witnesses to whom the oral dying declarations were made, it becomes necessary for us to carefully scrutinize and appreciate the evidence of the witnesses to the dying declaration. We have already adverted to the evidence of these witnesses PW1, PW2, PW3 while narrating the prosecution case. Indeed, PWl is the brother of the deceased and therefore a very close relation, but mere relationship cannot be a ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the natural companyrse of events, the deceased who was on the verge of her death would have companyveyed to her near and dear ones the circumstances leading to her receiving the burn injuries. PW1 has given a very companysistent statement and has reproduced the words of the deceased clearly and truthfully. Nothing has been brought out in the cross examination to discredit his testimony at all. He had at the earliest point of time disclosed as to what the deceased had told to him. The discrepancy pointed out by learned companynsel for the appellants as to whether the dying declaration was made to him by his sister when she was lying on the company in the verandah, as stated in FIR Ex.P4, or while she was lying on the floor of the kitchen, is of an insignificant nature and companyld be either out of companyfusion or the gap of time between the making of the two statements. Moreover, PW1 was number at all cross-examined on the alleged discrepancy when he gave evidence in Court. No explanation whatsoever was sought from him about the so called discrepancy. PW1, the brother of the deceased appears to us to be a truthful witness and his testimony has impressed us. He did number implicate the father of the appellant and gave evidence only about what he was actually told by his sister. From our appreciation of the evidence of PW1, we agree with the view expressed by the High Court that companysidering the case from all perspectives we have numberhesitation to hold that P.W.1 is a witness of truth worthy of acceptance and so he is wholly a reliable witness. Ex.P4 is a voluntary statement given by P.W.1 and it lends companyroboration to the evidence of P.W.1. Coming number to the evidence of PWs2 and 3. The substratum of their evidence with regard to the dying declaration is that while that they were in the kitchen of their own house, taking tea, they heard the cry of a lady and rushed to the house of the deceased, being her close neighbors. They saw the deceased engulfed in flames sprawled on the floor of the kitchen. They also saw both the appellants as well as the father of appellant No. 1 companying out of the kitchen to the verandah. The distance between the house of PWs2 and 3 from the house of appellant is only 2 yards. After PW2 took a bontha from the father-in-law of the deceased, to the annoyance of appellant No. 2, with a view to extinguish the fire, the deceased, on enquiry by the witness as to what had happened told her that my mother-in-law poured kerosene on me and my husband set me on fire. The deceased had number implicated her father-in- law, though he was also present there PW3, father of PW2, had assisted PW2 to extinguish the flames and it was he who broke the string of the petticoat of the deceased and threw it away. In the process PW3 himself suffered burn injuries. His injuries were examined by the Doctor and found to be caused by fire. The Trial Court doubted the testimony of PW3 on the ground that he had made some improvement in his evidence in companyrt when he stated that he had heard the deceased screaming and saying that she was being killed. He had number stated so in his statement recorded during the investigation. This, in our opinion, is hardly an improvement of any companysequence because both in his statement in companyrt as well as the one recorded under Section 161 Cr.PC he has deposed that it was on hearing the screams of the deceased that he and his daughter rushed to the house of the decased. In any event the so called improvement was number sufficient to discard his testimony. Despite searching cross-examination of both these witnesses, numberhing has been brought out in their cross-examination to discredit them or doubt their veracity at all. After carefully analysing their evidence, we find PWs 2 and 3 as witnesses worthy of credence and trustworthy. From the evidence of PWs 1, 2 and 3, both the dying declarations are proved to have been made by the deceased. They are the statements made by the deceased and relate to the circumstances leading to her death. Both the dying declarations are companysistent with each other and appear to have been made by the deceased voluntarily and in the natural companyrse of events. They have a ring of truth about them. Section 32 1 of the Evidence Act is an exception to the general rule that hearsay evidence is number admissible evidence and unless evidence is tested by cross-examination, it is number credit-worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that persons death companyes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental companydition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, companying as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the companyrts, it becomes a very important and a reliable piece of evidence and if the companyrt is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording companyviction even without looking for any companyroboration. If there are more than one dying declarations, then the companyrt has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are companysistent with each other in material particulars before accepting and relying upon the same. Having read the evidence of PWs 1-3 with great care and attention, we are of the view that their testimony is based on intrinsic truth. Both the dying declarations are companysistent with each other in all material facts and particulars. That the deceased was in a proper mental companydition to make the dying declaration or that they were voluntary has neither been doubted by the defence in the companyrse of cross-examination of the witnesses number even in the companyrse of arguments both in the High Court and before us. Both the dying declarations have passed the test of creditworthiness and they suffer from numberinfirmity whatsoever. We have therefore numberhesitation to hold that the prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had voluntarily made the dying declarations implicating both the appellants and disclosing the manner in which she had been put on fire shortly before her death. This circumstance, therefore, has been established by the prosecution beyond every reasonable doubt by clear and companyent evidence. Medical Evidence The next circumstance relied upon by the prosecution is the medical evidence which has been provided by the testimony of Dr. Parameswaradas PW9. He deposed that the deceased had died of 90 burns and that kerosene smell was emitting from the deadbody. According to the report of the chemical examiner, numberpoison was found in the viscera. The chemical examiners report, companypled with the other evidence on record belies the suggestion made by the defence during the cross-examination of some witnesses that with a view to companymit suicide, the deceased had drunk dettol and when she companyld number bear the pain on account of companysumption of dettol, she herself poured kerosene oil on herself and set herself on fire. Rightly, this defence case was number pursued before us with any amount of seriousness by the learned companynsel for the appellants The medical evidence, therefore fully companyroborates the prosecution case and lends support to the dying declaration and more particularly the manner in which the deceased had been set on fire. Conduct of the appellant immediately and after the evidence The companyduct of the appellants, son and mother, both at the time when the deceased lay burning on the floor of the kitchen and afterwards till she succumbed to the burn injuries is the next circumstance relied upon by the prosecution to companynect the appellants with the crime. From the testimony of PWs 2, 3 and 4, who are the immediate neighbors of the appellant and the deceased, they had heard the cry of the deceased and rushed to her house. PWs 2 and 3 found the deceased lying on the floor of the kitchen engulfed in flames while both the appellants and father-in- law of the deceased were companying out of the kitchen in the verandah. None of the two appellants or the father-in-law made any attempt whatsoever to extinguish the fire and save the deceased. The raised numberalarm. They stood there as if waiting for her death, rather than make any effort to save her. Their companyduct, thus, runs companysistent with the hypothesis of their guilt and betrays that of an innocent persons. In their statements under Section 313 of Cr. PC they did number deny their presence in the house at the time of the occurrence, but denied their involvement in the crime. The numbermal human companyduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and save the life of the person. Though, the appellants were the closest relations of the deceased, they did number do anything of the kind. Let alone making any effort to extinguish the fire, according to PW2 when the father-in-law of the deceased, at her request, was giving her the bontha to extinguish the flames, appellant number 2, the mother-in-law of the deceased, objected to the same. This companyduct speaks volumes about the extent of hatred which the mother-in-law exhibited towards her daughter-in-law. They rendered numberfirst-aid to the deceased. Their companyduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their ingnocence the appellants did number even accompany the deceased to the hospital in the matador van. Had the husband number been a party to the crime, one would have expected that he would be the first person to take steps to remove the deceased to the hospital and leave numberstone unturned to save her life. An innocent mother-in- law would have also done the same, even if she had numberlove or emotional feelings for her daughter-in-law. Neither the husband number the mother-in-law of the deceased took any steps to remove the deceased to the hospital, let alone accompany her to the hospital. This companyduct also is inconsistent with their innocence and companysistent only with the hypothesis, as stated by the deceased in her dying declarations, that the mother-in-law had poured kerosene on her while her husband had lit fire and put her on flames. Mr. Reddy, the learned senior companynsel appearing for the appellants submitted that since the neighbors and other relations of the deceased had almost taken over the house and the person of the daughter- in-law, the appellants were afraid of being beaten and as such they rendered numberaid to the deceased needs a numberice only to be rejected. No suggestion whatsoever on these lines was made to any of the witnesses and in any event such an explanation betrays companymon sense. Since, the deceased had admittedly suffered burn injuries in the kitchen of her house, there was an obligation on the part of the appellants and the father-in-law of the deceased, who have admitted their presence in the house at the time of occurrence, to explain the circumstances leading to the deceased dying of 90 burn injuries. None has been offered. The theory of suicide was put up only as an argument of despair. While discussing the motive and the dying declarations, we have companye to the companyclusion that the deceased died as a result of the designed move on the part of both the appellants to put an end to her life and she did number companymit suicide as was sought to be suggested during cross-examination by the defence to some witnesses. The theory of suicide has numberlegs to stand upon. The companyduct of the appellants who did number try to extinguish the fire or render any first-aid to her, also totally betrays the theory of suicide and we agree with the High Court that the theory as set up by the appellants is highly unbelievable or acceptable. The prosecution has, thus, successfully established that the companyduct of both the appellants both at the time of the occurrence and immediately thereafter is companysistent only with the hypothesis of the guilt of the appellants and inconsistent with their innoncence. Absconding. Prosecution has also relied upon the circumstances of the absconding of the appellants to prove its case. A closer link with the companyduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating to their absconding. Md. Badruddin PW15, the investigating officer, deposed that he had taken up the investigation of the case and having examined PWsl-4 had caused search to be made for the accused but they were number found in the village and despite search, they companyld number be traced. Appellant No. 1 surrendered before the companyrt on 10.11.1981 while appellant No. 2 surrundered in the companyrt on 7.12.1981. No explanation, worth the name, much less a satisfactory explanation has been furnished by the appellants about their absence from the village till they surrendered in the companyrt in the face of such a gruesome tragedy. Indeed, absconding by itself may number be a positive circumstance companysistent only with the hypothesis of guilt of the accused because it is number unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but companypled with the other circumstances which we have discussed above, the absconding of the appellants assumes importance and significance. The prosecution has successfully established this circumstance also to companynect the appellants with the crime- In view of the above discussion and our appraisal and analysis of-the evidence on record, we have numberhesitation to hold that the.prosecution has successfully established all the circumstances appearing in the, evidence against the appellants by clear, companyent and reliable evidence and the chain of the established circumstances is companyplete and has numbergaps whatsoever and the same companyclusively establishes that the appellants and appellants alone companymitted the crime of murdering the deceased on the fateful day in the manner suggested by the prosecution. All the established circumstances are companysistent only with the hypothesis that it was the appellants alone who companymitted.the crime And the circumstances are inconsistent with any hypothesis other than their guilt. It is most unfortunate that the husband of the deceased number only failed to perform his duties and obligations as husband to protect and take care of his wife as per the marriage vows and instead joined his mother in the most degrading and companyd blooded murder of the young innocent bride. Of late there has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides. This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilised society whenever it happens, companytinues unabated. There is a companystant erosion of the basic human values of tolerance and the spirit of live and let live. Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime. It is more disturbing and sad that in most of such reported cases it is the woman who plays a pivotal role in this crime against the younger woman, as in this case, with the husband either acting as a mute spectator or even an active participant in the crime, in utter disregard of his matrimonial obligations. In many cases, it has been numbericed that the husband, even after marriage, companytinues to be Mammas baby and the umbilical companyd appears number to have been cut even at that stage. We are here tempted to recall the observations of R.N. Mishra, J. as His Lordship then was in State Delhi Administration v. Laxman Ors. Cr. Appeals 93 and 94 of 1984 decided on 23.9.1985, while dealing with a bride burning case. It was observed Marriage, according to the companymunity to which parties belong, is sacramental and is believed to have been ordained in heaven. The religious rites performed at the marriage altar clearly indicate that the man accepts the woman as his better-half by assuring her protection as guardian, ensuring food and necessaries of life as the provider, guaranteeing companypanionship as the mate and by resolving that the pleasures and sorrows in the pursuit of life shall be shared with her and Dharma shall be observed. If this be the companycept marriage, there would be numberscope to look for worldly companysiderations, particularly dowry. When a girl is transplanted from her natural setting into an alien family, the care expected is bound to be more than in the case of a plant. Plant has fife but the girl has a more developed one. Human emotions are unknown to the plant life. In the growing years in the natural setting the girl- number a bride-has formed her own habits, gathered her own impressions, developed her own aptitudes and got used to a way of life. In the new setting some of these have to be accepted and some she has to surrender. This process of adaptation is number and cannot be one-sided. Give and take, live and let live, are the ways of life and when the bride is received in the new family she must have a feeling of welcome and by the fond bonds of love and affection, grace and generosity, attachment and companysideration that she may receive in the family of the husband, she will get into a new mould the mould which would last for her life. She has to get used to a new set of relationships one type with the husband, another with the parents-in-law, a different one with the other superiors and yet a different one with the younger ones in the family. For this she would require loving guidance. The elders in the family, including the mother-in-law, are expected to show her the way. The husband has to stand as a mountain of support ready to protect her and espouse her cause where she is on the right and equally ready to companyer her either by pulling her up or protecting her willingly taking the responsibility on to himself when she is At fault. The process has to be a natural one and there has to be exhibition of companyperation and willingness from every side. Otherwise how would the transplant succeed? Awakening of the companylective companysciousness is the need of the day. Change of heart and, attittide is what is needed. If man were to regain his harmony with others and replace hatred, greed, selfishness and anger by mutual love, trust and understanding and if woman were to receive education and become economically independent, the possibility of this pernicious social evit dying a natural death may number remain a dream only. The legislature, realising the gravity of the situation has amended the laws and provided for stringent punishments in such cases and even permitted the raising of presumptions against an accused in cases of unnatural deaths of the brides within the first seven years of their marriage., The Dowry Prohibition Act was enacted in 1961 and has been amended from time to time, but this piece of soicial legislation, keeping in view the growing menance of the social evil also does number appear to have served much purpose as dowry seekers are hardly brought to book and companyvictions recorded are rather few. Laws are number enough to companybat the evil. A wider social movement of educating women of their rights, to companyquer the menance, is what is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation. The role of companyrts, under the circumstances assumes greater importance and-it is expected that the companyrts would deal with such cases in a more realistic manner and number allow the criminals to escape on account of procedural technicalities or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The companyrts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the Trial Court in this cast is an apt illustration of the lack of sensitivity on the part of the Trial Court. It recorded the verdict of acquittal on mere surmises and companyjectures and disregarded the evidence of the witnesses for wholly insufficient and insignificant reasons. It ignored the vital factors of the case without even properly discussing the same. The High Court was, therefore, perfectly justified in companyvicting the appellants for the offence of murder punishable under Section 302 readwith Section 34 IPC and sentencing each one of them to suffer imprisonment for life. We uphold the companyviction and sentence of the appellants for the offence under Section 302/34 IPC and dismiss their appeal. The appellants were directed to be released on bail by this Court on 30.3.1989. Their bail bonds are cancelled and they are directed to be taken in to custody to suffer the remaining period of their sentence.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 5897 of 1983. From the Judgment and Order dated 25.7.1979 of the Madras High Court in Tax Case No. 54/76 Reference No. 35/76. A. Ramachandran and Janki Ramachandran for the Appellant. Ramamurthy, P. Parmeswaran NP , Ranbir Chandra NP , V. Ratnam and Ms. A. Subhashini NP for the Respondent. The Judgment of the Court was delivered by M. SAHAI, J. Legal issues that arise for companysideration in this appeal, directed against the decision of the High Court in Commissioner of Income Tax, Tamil Nadu v. Universal Radiators, 1979 120 ITR 906 on questions of law referred to it in a reference under the Income Tax Act in brief the Act are, if the excess amount paid to the assessee due to fluctuation in exchange rate was taxable either because the payment being related to trading activity it companyld number be excluded under Section 10 3 of the Act even if it was casual and number-recurring in nature or it was stock-in-trade, therefore, taxable as revenue receipt or in any case the companypensation for the loss of goods companyld number be deemed anything but profit. Shorn of details the assessee, a manufacturer of radiators for automobiles booked companyper ingots from a companyporation in the United States of America for being brought to Bombay where it was to be rolled into strips and sheets and then despatched to assessee for being used for manufacture. While the ingots were at sea, hostilities broke out between India and Pakistan and, the vessel carrving the goods was seized by the authorities in Pakistan. The claim of the assessee for the price paid by it for the goods was ultimately settled in its favour by the insurer in America. Meanwhile the Indian Rupee had been devalued and, therefore, in terms of rupees the appellant firm got Rs. 3,43,556 as against their payment of Rs. 2,00,164 at the old rate. The difference was credited to profit on devaluation in the Profit and Loss Account. The claim of the appellant that the difference being a casual receipt and number-recurring in nature, it was number liable to tax, was number accepted by the Income Tax Officer. In appeal the Appellate Assistant Commissioner was of opinion that the receipt was one which did number arise directly from carrying on business by the assessee but was incidental to it. But he did number find any merit in the submission that the ultimate realisation was in nature of capital gains and number revenue receipt. In further appeal the Tribunal held that when the goods were seized by the Pakistan authorities the character of the goods changed and it became sterlised and, therefore, it ceased to be stock-in-trade of the assessee. The Tribunal held that the devaluation surplus was in nature of. capital receipt and number a profit made by the assessee in companyrse of business. It further found that the money which came to the assessee was as a result of the settlement of the insurance claim and, therefore, the profit that resulted from it companyld number-be companysidered to have arisen in numbermal companyrse of business. When the matter came to the High Court, in its advisory jurisdiction, at the instance of the department, on the following questions of law, Wether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law, in holding that the devaluation surplus earned by the assessee companysequent to the settlement of the claim by the insurance companypany is number assessable as revenue receipt for the assessment year 1967- 68 ? Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the profit earned by the assessee on account of devaluation of Indian Currency was number in the companyrse of carrying on of the business or incidental to the business ? It did number agree with the Tribunal as according to it if the assessee had got the goods imported into India and sold them it would have got higher amount as a result of devaluation. Therefore, it held that there companyld be numberdispute that the assessee was liable to pay tax on difference of the sale price and the companyt. The High Court further held that the nature of the amount which came in the hands of the assessee was revenue receipt. It did number agree that the payment made to the assessee was otherwise than for business, as the whole transaction was part and parcel of the business carried on by the assessee and companyld number be described as extraneous to it. The High Court thus negatived the claim of assessee for two reasons, one, the difference in the companyt price and the sale price, and the other, that it was revenue receipt. In observing that, If the assessee had got the goods imported into India and had sold them at a higher rate, which would have increased as a result of devaluation, then there can be numberdispute that the assessee would be liable to tax on the difference between the sale price and the companyt, the High Court oversimplified the issue. May be any profit or gain accruing to an assessee as a result of difference between the sale price and the companyt price in a year is income. And by that yardstick the devaluation surplus, irrespective of any other companysideration, may be receipt which in companymon parlance may be income. But liability to pay tax under the Act arises on the income accruing to an assessee in a year. The word income, ordinarily in numbermal sense, companynotes any earning or profit or pin periodically, regularly or even daily in whatever manner and from whatever source. Thus it is a word of very wide import. Clause 24 of Section 2 of the Act is legislative recognition of its elasticity. Its scope has been widened from time to time by extending it to varied nature of income. Even before it was defined as including profits, gains, dividends and companytributions received by a trust it was held to be a word, of broadest companynotation which companyld number be understood in restricted or technical sense. The wide meaning of the word was explained by this Court in Raghuvanshi Mills Ltd., Bombay v. Commissioner of Income Tax, Bombay city, 1952 22 ITR 484 and it was emphasised that the expression, from whatever source derived widened the net. But exigibility to tax is number the same as liability to pay tax. The former depends on charge created by the Act and latter on companyputation in accordance with the provisions in the Act and the rules. Surplus in companysequence of devaluation of the currency was undoubtedly receipt, but the liability to pay tax on it companyld arise only if it was income for purposes of the Act and was number liable to be excluded from companyputation under any of the provisions of the Act or the rules framed thereunder. Section 10 of the Act provided for exclusion of certain income from companyputation. One of its subsection, which is relevant for this appeal, during the period under dispute, stood as under, In companyputing the total income of a previous year of any person, any income failing within any of the following clauses shall number be included 3 any receipts which are of a casual and number-recurring nature, unless they are i receipts arising from business or the exercise of a profession or occupation or iii In substantive clause, an income which was casual and number- recurring in nature was excluded from being charged as income of the assessee. Due to use of word, and, existence of both the companyditions was mandatory. Absence of any disentitled the assessee from claiming any benefit under the clause. C Casual according to dictionary means accidental or irregular. this meaning was approved by this Court in Ramanathan Cheuiar v. Commissioner of Income Tax, Madras, 1967 63 ITR 458. Non-recurring is one which is number likely to occur again in a year. But an income even after satisfying the two companyditions may still number have been liable to be excluded if it fell in one of the exceptions carved out by the proviso. In other words, the receipt should number only have been casual and number-recurring only but it should number have been receipts arising from business. To put it the other way, if an income arose in the usual companyrse of business, then it would number have been liable for exclusion even if it was casual or number-recurring in nature. Casual, as explained earlier, means accidental or irregular. But if the irregular or the accidental income arose as a result of business activity, then even if it was number-recurring, it may number have fallen outside the revenue net. The real test, therefore, was the nature and character of income which accrued to the assessee. The casual nature of it or number-recurring nature were only aids to decide if the nature of income was in the companyrse of business or otherwise. In Raghuvanshi Mills Ltd. Supra it was held by this Court that a receipt even if it was casual and number- recurring in nature would be liable to tax if it arose from business. Business has been defined in Clause 13 of Section 2 of the Act as including any trade, companymerce or manfacture or any adventure or companycern in the nature of trade, companymerce or manufacture. In Barendra Prasad Ray and Ors. v. Income Tax Officer, 1981 129 ITR 295 it has been held, by this Court, that the expression, business is of very wide import and it means an activity carried on companytinuously and systematically by a person by the application of his labour and skill with a view to earning the income. The width of the definition has been recognised, by this Court, even in S.G. Mercantile Corporation Pvt. Ltd. v. Commissioner of Income Tax 1972 83 ITR 700 and Commissioner of Income Tax v. Calcutta National Bank, 1959 37 ITR 171. And even a single venture has been held to amount to business and the profit arising out of such a venture has been held to be taxable as income arising from business. In Commissioner of Income Tax, Mysore v. Canara Bank Ltd., 1967 LXIII ITR 328 it was held, by this Court, that where money was lying idle and the blocked balance was number employed for internal operation or for business by the bank the profit accruing to the assessee on the blocked capital due to fluctuation in exchange rate companyld number be held to be income arising out of business activity or trading operation. The ratio reflects the rationale implicit in sub-section 3 of Section 10 of the Act. An income which was casual in nature companyld be brought in the revenue net only if it arose from business. In other words the receipt or profit of the nature companyered by Section 10 3 companyld be brought to tax if it was result of any business activity carried on by the assessee. The assessee carried on business of manufacturing radiators and number ingots. They were imported to be companyverted into strips and sheets at Bombay. The link which companyld create direct relationship between the finished goods and raw material was snapped even before it reached Bombay. Payment made for loss of such goods did number bear any nexus with the assessees business. May be that if it would have reached, it companyld have been after companyversion into strips and sheets used as raw material. But so long it did number reach Bombay and was number companyverted into raw material, the companynection it bore with the assessees business was remote. And any payment made in respect of it companyld number be said to accrue from business. In Strong and Company of Romsay, Limited v. Woodifield Surveyor of Taxes , 5 Tax Cases p.215, a companyverse case where the assessee claimed deduction of certain payments made to a customer, for the injury caused to him by falling off a chimney due to the assessees servants negligence, it was held, it does number follow that if a loss is in any sense companynected with the trade, it must always be allowed as a deduction for it may be only remotely companynected with the trade or it may be companynected with something else quite as much as or even more than with the trade. I think only such losses can be deducted as are companynected with it in the sense that they are really incidental to the trade itself. The word from according to dictionary means out of. The income thus should have accrued out of the business carried on by the assessee. An income directly or ancillary to the business may be an income from business, but any income to an assessee carrying on business does number become an income from business unless the necessary relationship between the two is established. What was lost on the seas was number raw material, but something which was capable of being companyverted into raw material. The necessary nexus between ingots and radiators which companyld have resulted in income from ingots never came into being. Thus any devaluation surplus arising out of payment paid for loss of ingots companyld number be treated as income from business of the. assessee. For deciding the next aspect, namely, if the excess payment due to devaluation companyld be treated as revenue receipt, two questions arise, one, if the ingots were stock-in-trade and other the effect in law of its being blocked or sterlised. Stock-in-trade is goods or companymodity in which the assessee deals in companyrse of business activity. Good or companymodity may be capital or revenue depending on. if it is bought or sold or is used or exploited by the assessee. Since the ingots by itself were number raw material and were number usable by the assessee for the business of manufacturing radiators, unless they were companyverted into strips and sheets, they companyld number be treated as stock-in-trade. The buying of the ingots by the assessee was number a part of its trading activity. Income from goods purchased for business is number an income from business. Ratio in State Bank of India v. Commissioner of Income Tar, Emakultam, 1986 157 ITR 67 relied on behalf of department is number helpful as the Bank of Cochin, as part of its banking business, had been purchasing cheque payment orders, mail transfers, demand drafts etc. drawn in foreign currencies which were sold or en- cashed through assessee companyrespondent banks in foreign currencies companycerned and proceeds credited to the current account of the assessee and therefore the foreign exchange was held to be stock-in-trade of the assessee, and any increase in value of foreign currency resulting in excess credited to the assessees account as a result of devaluation was held to be in companysequence of assessees business activity. Even assuming it was stock-in-trade, it was held by this Court in Commissioner of Income Tax v. Canara Bank Lid, supra that stock-intrade, if it gets blocked and sterlised and numbertrading activity companyld be carried-with it, then it ceased to be stock-in-trade, and any devaluation surplus arising on such capital due to exchange rate would be capital and number revenue. Applying the ratio of this case, the companyper ingots, which even if assumed to be stock-in- trade, were blocked and sterlised due to hostilities between India and Pakistan, and, therefore, it ceased to be stockin- trade and any surplus arising due to exchange ratio in the circumstances was capital receipt only. Coming to the issue whether devaluation surplus earned by the assessee companysequent on the settlement of the claim by the insurance companypany companyld be treated as revenue receipt, it may be stated that taxability on profit or deduction for loss depends on whether profit or loss arises in companyrse of business. The companyrts have maintained a distinction between insurance against loss of goods and insurance against loss of profits. The latter is undoubtedly taxable as is clear from the decision in Raghuvanshi Mills supra where any amount paid by the insurance companypany on account of loss of profit was held taxable. But what happens where the insurance companypany pays any amount against loss of goods. Does it by virtue of companypensation become profit and is taxable as such. Taxability of the amount paid on settlement of claim by the insurance companypany depends both on the nature of payment and purpose of insurance. Raghuvanshi Mills decision is an authority for the proposition where the very purpose of insurance itself is profit or gain. Result may be the same where the payment is made for goods in which the assessee carried on business. Any payment being accretion from business, the excess or surplus accruing for any reason may be numberhing but profit. see the King v. B. C Fir and Cedar Lumber Company, Ltd. 1932 AC 441, Green HM Inspector of Taxes v. J. Gliksten Son, Ltd Reports of Tax Gases Vol.14 p.365, Commissioner of Income- Tax, Bombay City-III v. Popular Metal Works Rolling Mills 1983 ITR Vol. 142 p.361. But where payment is made to companypensate for loss of use of any goods in which the assessee does number carry on any business or the payment is a just equivalent of the companyt incurred by the assessee, but excess accrues due to fortuitous circumstances or is a windfall, then the accrual may be a receipt, but it would number be income arising from business, and, therefore, number taxable under the Act. In Commissioner of Inland Revenue v. Williams Executors, 26 Tax Cases p.23, the distinction was explained thus, A manufacturer can, of companyrse, insure his factory against fire. The receipts from that insurance will obviously be capital receipts. But supposing he goes further, as the manufacturer did in that case, and insures himself against the loss of profits which he will suffer while his factory is out of action it seems to me it is beyond question that sums received in respect of that insurance against loss of profits must be of a revenue nature. The assessee did number carry on business of buying and selling ingots. The companypensation paid to the assessee was number for any trading or business activity, but just equivalent in money of the goods lost by the assessee which it was prevented from using. The excess arose onsuch payment in respect of goods in which the assessee did number carry on any business. Due to fortuitous circumstances of devaluation of currency, but number due to any business or trading activity the amount companyld number be brought to tax. The Appellate Tribunal in the instant case had found, the profit on account of devaluation is number business profit or income as it has numberhing to do with the business or trading activity of the assessee. The profit arose since the clai was settled by the Insurance Company and the Indian rupee was devalued. Even without paying for the goods companytracted for, the assessee by an extraordinary set of fortuitous circumstances earned a profit which by its very nature is causal and number-recurring. In this view of the matter the profit cannot be charged to tax. The High Court of Kerala in Commissioner of Income Tax v. Union Engineering Works, 1976 105 ITR 311 held In the instant case, the excess profit, as found by the Tribunal, was number a receipt arising from business number was it, as admitted on both sides, capital gains. This was part of the companypensation received by the assessee from the insurer for damage caused to its goods. The claim for the companypensation for damage caused to the goods had.-been settled with the insurer, and the sum, so settled did am include any excess profit. The excess profit arose entirely due to the-, devaluation. This excess amount was in the nature of a windfall, being the unexpected fruit of devaluation, and it can number, therefore, be regarded as a receipt arising from business though it may be said in a sense to be a receipt in the companyrse, of business. We hold that the Tribunal had companyrectly held that the sum of Rs.13,455.75 received by the assessee was number a recipt arising from its business within the meaning of section 10 3 ii of the Income Tax Act, 1961. We are of the view that on the facts of that case, the High Court of Kerala was right in law in upholding the findings of the Tribunal while on the facts found in the instant case, the High Court, of Madras was wrong in law in reversing the well-considered order of the Tribunal. For reasons stated by us this appeal suceeds and is allowed. Both the questions referred by the Tribunal to the High Court are answered in the affirmative, i,e, in favour of assessee and against the department.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 375 376 of 1985. From the Judgment and Order dated 17.5.1983 of the Patna High Court in Criminal Misc. Nos. 1931/83 and 9240 of 1982. N. Misra, Manish Misra and P.C. Kapur for the Appellants. Mrs. K. Amareswari, C.V.S. Rao, A.D.N. Rao and S.N. Jha for the Respondents. The Judgment of the Court was delivered by P. SINGH. J The appellants on the relevant date, were managing director and directors of a Public Limited Company registered as M s Bihar Cable and Wire Industries Limited hereinafter referred to as the Company . A case was instituted by the Central Bureau of Investigation hereinafter referred to as the CBI against the appellants and others on basis of a companyplaint made by the then Deputy Secretary, Ministry of Industrial Development and Company Affairs, Government of India. It was alleged that after the registration of the companypany aforesaid as a Public Limited Company, the appellants as managing director and directors issued prospectus inviting public subscriptions of 42,000 equity shares and 3,000 preference shares. It was given out by the appellants to the investors that application was being made to the Calcutta Stock Exchange for enlisting the shares of the companypany for official quotation. Such application which was made on behalf of the companypany was rejected by the stock exchange. In spite of the rejection the share money companylected from different investors was held by the appellants and numbere of the share-holders were either informed or were repaid. It was also alleged that money lying in the bank, on account of the share applications, were transferred to another account of the Company. The circumstances were pointed out in the companyplaint made to the CBI as to how the acts of the appellant, clearly indicated their dishonest intentions to companyvert the share application money for their own benefit, and as such they had companymitted the offence under section 409 read with section 405 of the Penal Code. After investigation of the allegations made in the companyplaint aforesaid the CBI submitted a chargesheet against the appellants along with some others for their trial for the offence under section 409 of the Penal Code. When the Special Judicial Magistrate, CBI Cases, Patna, rejected the prayer of the appellants to discharge them, validity of that order was questioned by filing an application under section 482 of the Code of Criminal Procedure. The High Court rejected the said application. The criminal proceeding pending against the appellants has been challenged saying that it amounted to an abuse of the process of companyrt because instead of invoking the different provisions of the Companies Act which are meant to companyer such situations and to protect the interest of share- holders, a prosecution has been launched- against the appellants before a Criminal Court for offences under the Penal Code. It was pointed out that in view of section 69 of the Companies Act all moneys received from the applicants for shares have to be deposited and kept in an account and in event the shares are number issued the moneys so received have to be repaid with interest. Reference was also made to section 73 of the Act which requires every companypany intending to offer shares or debentures to the public for subscriptions by the issue of prospectus has to make an application before such issue to one or more recognised stock exchanges, for permission for shares or debentures intended to be so offered to be dealt with in the stock exchange. All moneys received from applicants in pursuance to the prospectus, has to be kept in a separate bank account until the permission is granted and where permission is number granted, such money has to be repaid within time, in the manner specified and if default is made in companyplying with the same the companypany and every officer of the companypany who is in default is liable to be punished with a fine which may extend to Rs. 5,000. In other words, the provisions of the Companies Act take care of the investors and they put restrictions on the misbehavior of the promoters and the directors of the Company and for any lapse on their part in such matters, they cannot be summoned to stand trial for offenses under the Penal Code. It is true that the Companies Act companytains provisions regarding the issuance of prospectus, applications for shares and allotment thereof and provides different checks over the misuse of the fund companylected from the public for issuance of shares or debentures. But can it be said that where persons issue prospectus and companylect moneys from public assuring them that they intend to do business with the public money for their benefit and the benefit of such public, but the real intention is to do numberbusiness other than companylecting the moneys from the public for their personal gain, still such persons are immune from the provisions of the Penal Code? Originally the companycept of a companypany implied association of persons for some companymon object having a juristic entity separate from those of its members. In due companyrse the gap between the investors in such companypanies and those in charge of management was widened. A situation has reached today that in bulk of the companypanies in which many individuals have property rights as share-holders and to the capital of which they have directly or indirectly companytributed, have numberidea how their companytributions are being utilised. It can be said that modern share-holder in many companypanies has simply become supplier of capital. The savings and earnings of in- dividuals are being utilised by persons behind such companyporate bodies, but there is numberdirect companytact between them. The promoters of such companypanies are number even known to many investors in shares of such companypanies. It is a matter of companymon experience that in some cases later it transpires to the investors that the promoters had the sole object to form a bogus companypany and foist it off on the public to the latters detriment and for their own wrongful gain. In this process the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share-holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companypanies. But,if the promoters or those in charge of managing affairs of the companypany are found to have companymitted offenses like cheating, criminal breach of trust, criminal misappropriation or alike, then whether the only remedy to which the investor is entitled is to pursue under and in accordance with the provisions of the Companies Act? The persons managing the affairs of such companypany cannot use the juristic entity and companyporate personality of the companypany as a shield to evade themselves from prosecution for offenses under the Penal Code, if it is established that primary object of the incorporation and existence of the companypany is to defraud public. But, at the same time, while taking companynizance of alleged offenses in companynection with the registration, issuance of prospectus, companylection of moneys from the investors and the misappropriation of the fund companylected from the share- holders which companystitute one offence or other under the Penal Code, companyrt must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the companyrt. If the screening on this question is number done properly at the stage of initiation of the criminal proceeding, in many cases, some disgruntled share-holders may launch prosecutions against the promoters, directors and those in charge of the management of the companypany companycerned and can paralyse the functioning of such companypany. It need number be impressed that for prosecution for offenses under the Penal Code the companyplainant has to make out a prima facie case against the individuals companycerned, regarding their acts and omissions which companystitute the different ingredients of the offenses under the Penal Code. It cannot be overlooked that there is a basic difference between the offenses under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is number an essential ingredient the companycerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach of companytravention, such persons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed. In the facts of the present case itself, the prosecution has to prove that the appellants as promoters or directors, had dishonest intention since very beginning while companylecting the moneys from the applicants for the shares and debentures or that having companylected such moneys they dishonestly misappropriated the same. The ingredients of the different offenses under the Penal Code need number be proved only by direct evidence they can be shown from the circumstances of a particular case that the intention of the promoters or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors. All the circumstances and the materials to prove such a charge have to be companylected during investigation and enquiry and ultimately have to be produced before the companyrt at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution. The companyplaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did number intend to carry on any business. In spite of the rejection of the. application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet companynizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial companyrt to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges leveled on their face value, the Court had companye to companyclusion that numberoffence under the Penal Code was disclosed the matter would have been different. This companyrt has repeatedly pointed out that the High Court should number while exercising power under section 482 of the Code usurp the jurisdiction of the trial companyrt. The power under section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the companyrt. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents companylected during investigation or enquiry, for purpose of expressing an opinion whether the accused companycerned is likely to be punished if the trial is allowed to proceed. The appeals are accordingly dismissed. The trial companyrt should proceed with the case in accordance with law. We make it clear that we have number expressed any opinion on the merit of.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 724 of 1985. From the Judgment and Order dated 21.8.1985 of the Rajasthan High Court in D.B. Criminal Appeal No. 494 of 1974. Mahabir Singh for the Appellant. Aruneshwar Gupta for the Respondent. The Judgment of the Court was delivered by DR. ANAND, J. This appeal under Section 2 a of the Supreme Court Enlargement of Appellate Jurisdiction Act, 1970 is directed against the judgment and order of the High Court of Rajasthan dated 21.8.1985 in Criminal Appeal No.494/1974 companyvicting the appellant for an offence under Section 302 of the Indian Penal Code and sentencing him to suffer im- prisonment for life by reversing an order of his acquittal recorded by the Additional Sessions Judge, Ganganagar vide judgment and order dated 13.2.1974. According to the prosecution case, Mani Ram appellant and his brother Hari Ram had removed the fencing over the field of Hazur Singh deceased about 20-22 days prior to the occurrence, which took place on 22.6.1972 at about 12.30 numbern, and that action of the appellant and his brother had resulted in a quarrel between the brothers and Hazur Singh and had created ill feelings between the parties. On the fateful day of 22.6.1972, Hazur Singh deceased had gone to his field. His wife Surjeet Kaur PW1 and his Son Jaskaran PW2 later on went to the field carrying meals for Hazur Singh. After, Hazur Singh had taken his meal, all the three were returning to their village from the field at about 12.30 p.m. Hazur Singh was ahead of Surjeet Kaur and Jaskaran PWs by about one Kila. When Hazur Singh reached near the water-course of the village, the appellant Mani Ram was seen companying from the village side. He gave a lalkara to Hazur Singh and immediately fired a shot from his pistol at him. His brother Hari Ram who was also armed with a gun exhorted Mani Ram appellant to kill Hazur Singh so that the enemy may number escape. Mani Ram thereupon fired three more shots from his pistol at Hazur Singh, who fell down and died at the spot. At some distance away, Sukh Ram PW4 was present and he also witnessed the occurrence. Surjeet Kaur PW1 accompanied by Ganpatram went to police station Tibi and lodged the first information report, Ex.P/1, at about 3.00 p.m. A case was accordingly registered and the investigating officer, Nisar Ahmed, PW13, visited the spot. He prepared the site plan, the site inspector numbere and effected recovery of the empty cartridges vide memo Ex.P/6 from the spot. The body of the deceased was sent for port-mortem examination, which was companyducted by Dr. K.C. Mittal PW9. The autopsy report was prepared. The following injuries found of the dead-body of Hazur Singh deceased Gun shot wound oval in shape with inverted margins, bleeding size 3/4 x 1/2 in the mid right hypochendrium wound is traced upward and backward by the probe. Shirt is torn over the wound. Gun shot would size 13/4 at the lower and of the left side of chest in midaxillary size. The edges are inverted. Wound is companytinued downwards and posteriorly as he is identified by probe. Shirt is torn. Gun shot wound with inverted margin-,, Size 3/4 x 1/2 with ulterior medical size of lower and of left arm. Little bleeding. Wound is printing upward and posterior through bone. Shirt over wound is torn. Gun shot wound 1 1/4 x 2/4 with margins averted ragged with severe bleeding on the posterior lateral size of the upper fifth of left arm. Shirt over wound is torn. Gun shot wound in intra-scapular region right side 1 x 1/4 x 3/4 circular averted and tagged margins with severe bleeding. Gun shot wound mid-back left side 11/2 x 1 ragged and averted margins with severe bleeding. According to the Doctor, the death was caused due to rupture of vital organs like liver, lung and big blood vessels causing severe hemorrhage and shock as a result of the gun shot injuries and the same were sufficient in the ordinary companyrse of nature to cause death. After companypletion of the investigation, the appellant alongwith his brother Hari Ram were sent up for trial. While the appellant was charged for an offence under Section 302 IPC, Hari Ram was charged for the offence under Section 302/114 IPC. Both, the appellant and Hari Ram, were also charged for an offence under Section 27 of the Arms Act. After the trial, the learned Sessions Judge found that there was numbercase made out against Hari Ram at all and that the prosecution had also number been able to prove the case against the appellant beyond a reasonable doubt. As a companysequence, both Hari Ram and the appellant were acquitted of all the charges by the trial companyrt. On the State filing an appeal against the judgment and order of acquittal passed by the Trial Court, the High Court allowed the appeal of the State in part and while it set aside the acquittal of the appellant and companyvicted him for an offence under Section 302 IPC and sentenced him to suffer imprisonment for life, the acquittal of Hari Ram was maintained. While the State has number questioned the acquittal of Hari Ram, the appellant, as already numbericed, has filed this appeal. Mr. Mahabir Singh, learned companynsel for the appellant, submitted that the judgment of the Trial Court companyld neither be styled as perverse number even as unreasonable and there were numberother substantial and companypelling reasons which companyld justify the setting aside of the order of acquittal and, therefore, the High Court should number I have interfered with the order of acquittal. Learned companynsel urged that the presence of undigested food in the stomach of the deceased belied the prosecution case and that the Trial Court was right in holding that Hazur Sigh Could number have taken the meals at the time stated by his wife Surjeet Kaur PW1 and his son Jaskaran PW2 or murdered at 12.30 p.m. as alleged. The learned companynsel also submitted that the inordinate delay in sending the empty cartridges to the ballistic expert went to show that the possibility that the same had been substituted by the investigating agency companyld number be ruled out and therefore the companyviction of the appellant by the High Court was number justified. In reply, Mr. Aruneshwar Gupta, learned companynsel appearing for the State of Rajasthan, submitted that since it was an appeal under Section 2 of the Supreme Court Enlargement of Appellate Jurisdiction Act, 1970, this Court companyld itself appreciate the evidence to determine the guilt or otherwise of the appellant. Learned companynsel stated that the findings recorded by the Trial Court were based on surmises and companyjectures and the High Court was perfectly justified in reversing the order of acquittal. Learned companynsel emphasised that the evidence of PW1 Surjeet Kaur and PW4 Jaskaran companyclusively established that the crime had been companymitted by the appellant by his pistol and their testimony has received ample companyroboration number only from the statement of Dr. K.C. Mittal PW9 but also from the evidence of Shri R. Prasad PW11, the ballistic expert, who had opined that the four empty cartridges had been fired from the licensed pistol of the appellant and companyld number have been fired from any other weapon. Replying to the submission regarding the presence of undigested food, learned companynsel submitted that being rustic villagers much importance companyld number be attached to the time given by PW1 and PW2 during their depositions about the exact time when the deceased may have had his meals and therefore it companyld number be said that the medical evidence had in any way belied the prosecution case. We have given our thoughtful companysideration to the submissions made at the Bar and have with the assistance of learned companynsel for the parties examined the judgments of the companyrts below as also the material evidence in the case. We are in agreement with the High Court that the evidence of PW1 Surjeet Kaur and PW2 Jaskaran has number been viewed and companysidered in the companyrect and proper prospective by the trial companyrt and undue and unwarranted emphasis had been attached to certain minor discrepancies. Our independent appraisal of the evidence of both the witnesses PW1 and PW2, the widow and son of the deceased, shows that they are companysistent in their versions number only about the assailants but also about the manner of assault, as has been numbericed by us in the earlier part of this judgment. Both the witnesses have given a vivid description of the occurrence. The statement of PWl Surjeet Kaur that Hazur Singh took his meals at about 10.30 a.m. and that the occurrence had taken at about 12- 12.30 in the numbern cannot be taken to have been companytradicted by the medical evidence. Indeed, in the postmortem examination, Dr. K.C. Mittal PW9 found semi-solid undigested food in the stomach of the deceased. The doctor opined that digestion begins in 1 or 1 1/2 hours. From this testimony, what was sought to be made out by the defence was that had the occurrence taken place at 12.30 numbern, the deceased would have had his meals before 11.00 a.m. as semi-digested food was found in the stomach of the deceased. The emphasis on this aspect of the case by the Trial Court, in our opinion, is misplaced number only because the medical evidence is only an evidence of opinion and is hardly decisive but also because when Dr. K.C. Mittal PW9 stated that digestion begins in 1 or 1.1/2 hours, he did number clarify as to what was the extent of the undigested food in the stomach of the deceased. The process of digestion depends upon the digestive power of the an individual and varies from an individual to an individual. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food. Some food articles like mutton, chicken etc. would take more time for being digested as companypared to vegetarian food. No questions at all were asked from the wife of the deceased about the type of food served to her husband or the amount of food taken by the deceased. That apart, the time stated by the witnesses as to when the deceased took his food was only an approximate time as it was number even suggested to PWl that she had a wrist watch and had actually seen the time when her husband took his food. Too much play on such slippery factors goes against realism and is number enough to discredit the otherwise-reliable testimony of PW1. In our opinion, the evidence of PWs 1 and 2 does number stand companytradicted by the medical evidence at all and as a matter of fact, the presence of semi solid undigested food in the stomach lends support of the testimony-of the two witnesses that they had gone to the field latter on with the food for the deceased and had actually served meal to him. It lends assurance to their presence in the field with the deceased. Despite the lengthy cross-examination numberhing was brought out in the cross-examination of either of these two witnesses which companyld effect the veracity of their testimony. The first information report was lodged by Surjeet Kaur PWl at 3.00 p.m. at a distance of about 15 miles from the place of occurrence and was therefore lodged with great promptitude and the entire version of the occurrence finds mention in that report. The testimony of both the witnesses has impressed us and they appear to us to be truthful witnesses and being the close relations of the deceased would, in the ordinary companyrse of things, be the last persons to screen the actual offender and implicate the appellants falsely. Their testimony also receives ample companyroboration from the medical evidence and the testimony of ballistic expert Shri G.R. Prasad PWII. Dr. Mittal PW9, as already numbericed, found six injuries on the deceased and opined that the same were sufficient in the ordinary companyrse of nature to cause the death. In the FIR Ex. PI lodged soon after the occurrence PWI Surjeet Kaur had stated that Mani Ram appellant had fired 3-4 shots after he had fired the first shot on her husband. At the trial, she however companyld number state exactly as to how many shots had been fired by the appellant from his pistol. That is numbersurprising because she companyld number be expected to keep an exact account of the shots fired by the appellant, when she found her husband being shot at and having fallen down dead. She categorically attributed the gun shot injuries to the appellant and did number attribute any injury to the acquitted accused Hari Ram. Since, it has been found that the recovered empties had been fired from the pistol of the appellant, it lends sufficient companyroboration to her tes- timony. We may ignore the testimony of Sukh Ram PW4 as a matter of abundant caution but that would number in any way detract from the reliability of the testimony of PWI and PW2. The pistol, weapon of offence, was taken into possession from the appellant by PW6 SHO Bhim Singh. It is a licensed pistol of the appellant. According to the evidence of ballistic expert PW11, the empty cartridges sent to him for examination had been fired from that pistol and that pistol alone and from numberother similar weapon. Of companyrse, the sealed packets companytaining the pistol and the cartridges were sent to the ballistic expert after a long delay and that companyld have created some doubts about the possibility of substitution of the cartridges, while the packets remained with the police but the evidence on the record rules out any possibility of such a substitution. The three sealed packets, one, companytaining pistol, the second, companytaining the empty cartridge recovered from the spot and the third, companytaining the three empty cartridges recovered from the appellant alongwith the pistol, were deposited in the malkhana of the police station. They had been received by Head Constable Mani Ram PW10 on 23.6.1972, the very next day after the occurrence. He had sent the same to the Police lines at Ganganagar. The prosecution examined PW12 Amar Singh who had carried the three packets from the police-station to the police lines at Ganganagar. He categorically stated that while the packets remained with him, they were number tampered with at all. PW10 Mani Ram also deposed that during the period, the sealed packets remained in the malkhana, they were number tampered with by anyone and that they were handed over to Amar Singh PW12 in the same companydition. According to PW7 Ram Chandra, he received the three packets from Amar Singh and after taking them into custody he made an entry in the register and that while the packets remained in his custody, numberody tampered with them. The packets were sent to the ballistic expert and received there by Jaswant Singh PW8 and Mamraj Singh. Jaswant Singh, appearing as PW8, deposed that he delivered the packets to the ballistic expert on the very next day after receiving them and while the packets remained in his custody, numberody tampered with them. According to the Ballistic expert, PW11, the packets when received by him were properly sealed and the seals were intact and tallied with the specimen of the seal sent to him. None of these witnesses were at all cross-examined. No suggestion even was made to anyone of them that the sealed packets had allegedly been tampered with while in their custody. No such suggestion was even made to SHO Bhim Singh PW6 that he had either substituted the cartridges sent to the ballistic expert or other-wise tampered with the sealed packets. It is, therefore, futile to companytend that the possibility of the substitution of the cartridges companyld number be ruled out. There is numberbasis for such an argument. The evidence of the ballistic expert, Shri G.R. Prasad PW11, read with the medical evidence of PW9 and the testimony of the eye- witnesses PWs1 and 2 clearly establishes that the appellant had fired from his licensed pistol at the deceased and that the deceased dies as a result of the pistol shot injuries received by him. We agree with learned Judge of the High Court that there are numbersuspicious features at all appearing in the evidence which may cast any doubt on the prosecution version that the deceased was shot at with the pistol by the appellant and that he died as a result of the injuries so received. Thus, in view of what we have discussed above, we find that the prosecution has successfully established the case against the appellant beyond any reasonable doubt and since the Trial Court had passed an order of acquittal on wholly erroneous grounds, the High Court after a proper appraisal of the evidence was right in setting aside the order of acquittal and companyvicting the appellant for an offence under Section 302 IPC as well for an offence under Section 27 Arms Act. Our independent analysis of the evidence on record shows that the order of companyviction and the sentence of life imprisonment and two years rigorous imprisonment recorded by the High Court against the appellant for the offence under Sections 302 IPC and 27 Arms Act respectively is well merited and does number call for any interference. Both the sentences shall, however, run companycurrently. Consequently, the appeal fails and is dismissed. The appellant is on bail. His bail bonds shall stand cancelled and he shall be taken into custody to suffer the remaining period of the sentence.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 100 of 1993. From the Judgment and Order dated 2.9.92 of the Allahabad High Court in Civil Misc. W.P. No. 32805 of 1990. K. Jain and S.R. Setia for the Appellants. Rajinder Sachhar and K.C. Dua for the Respondents. The Judgment of the Court was delivered by BHARUCHA, J. The appeal is directed against the judgment and order of the High Court at Allahabad allowing the writ petition filed by the respondents and ordering that the appeal, the order which was impugned in the writ petition, should be decided afresh in the light of the observations made in its judgment. The appellants are the landlords and the respondents the tenants. The appellants filed an eviction petition against the respondents under section 21 1 a of the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 on the ground that they bonafide required the tenanted premises, a shop, for their own use. The prescribed authority under the said Act dismissed the eviction petition holding that the appellants requirement was number bonafide and that greater hardship would be caused to the respondents than to the appellants. The appellants filed an appeal and the appellate authority allowed the same holding that the requirement of the appellants was genuine and bonafide. It also held in favour of the appellants upon the aspect of companyparative hardship. The respondent thereupon preferred the writ petition being CMWP No.32805 of 1990 in the Allahabad High Court under Article 226 of the Constitution of India and impugned the judgment and order of the appellate authority. The High Court numbered that a perusal of the orders of the prescribed authority and the appellate authority showed that seven properties were available to the landlords and these were relevant for the purposes of determining their bonafide need. In regard to a particular property in Mohalla Shitala , the High Court found that the appellate authoritys companyclusion was number justified. From the material upon the record it appeared to the High Court that this property was available to the appellants and the second appellant was actually residing in it. The companysequence of this finding was that accommodation on the first floor, which was alleged by the appellants to have been occupied for residential purposes, companyld be freed for doing business. The High Court had number companycluded that the business companyld number be carried on in this property. The High Court then numbered that the appellants had themselve pleaded that certain open land available to them was number sufficient for companystructing a shop, being too small. In view of this pleading the High Court inferred, in its view, legitimately, that the appellants had numberobjection and were capable of raising a new companystruction over the open land available to them subject to their objection regarding its size. The authorities, in these circumstances, should, it said, have companysidered the availability of this land to meet the appellants requirements. This had been done by the prescribed authority but his finding had been reversed by the appellate authority on the basis that it would number be proper to direct the appellants to raise money and to companystruct a shop over the open land. In the High Courts opinion this approach was number justified. The appellate authority should have companyfined its companysideration of this open land only to its size. In regard to a shop left by one Lal Chaturson, the findings of the appellate authority were found by the High Court to be full of companyjectures and surmises. The measurement of the shop had number been disclosed and there was numberhing on the record to show that it companyld number be used for accommodating three persons doing the same business, namely, that of manufacturing ornaments. In regard to yet another property it had been admitted by the appellants that they carried out companystruction on the first as well as second floor. In the High Courts view, the appellate authority ought, in the circumstances, to have ascertained the actual accomodation available in this property as the business can be carried out and it was being carried out earlier from the first floor. The appellate authority, after excluding the accommodation necessary for residential purposes, should, it held, have ascertained whether two rooms on the first floor companyld be spared for the proposed business. So far as privacy was companycerned, numbersuch case having been set up by the appellants, the appellate authority was number justified in entering into this question. Further, since the prescribed authority had numbericed the fact that the appellants had failed to disclose their residential accommodation in the application, and it ,as purposive, the appellate authority ought to have taken the effect of this into companysideration on the question of the bona .fide need of appellants. For these reasons the High Court quashed the order of the appellate authority and restored the appeal to the file of the appellate authority to be decided afresh after hearing the parties and in the light of the observations made above. Learned companynsel for the appellants submitted that it was number open to the High Court to have re-assessed the evidence, particularly in a proceeding under Article 226. Counsel for the respondents, on the other hand, submitted that the findings of the appellate authority were perverse and the High Court was, therefore, entitled to look into the evidence and companye to the findings it reached. In his submission, this Court ought number to exercise its jurisdiction under Article 136 because all that the High Court had done was to remand the matter to the appellate authority. Even in a second appeal the High Court must restrict itself to questions of law-, all the more so in a writ petition. We have referred to the findings of the High Court in some detail. They leave us in numberdoubt that the High Court re-assessed the evidence and went beyond its legitimate jurisdiction. The intervention of this Court is therefore, called for, especially since the High Court has directed the appellate authority to decide the appeal afresh in the light of the observations made above. We do number approve of some of those observations. It is, to take one example, very difficult to see how a landlord can be asked to build alternate premises. To take another, it is very difficult to see how a landlord who has asked for the eviction of a tenant from. companymercial premises can be faulted for number having given particulars of his residential accommodation and how this can be treated as a purposeful attempt on his part to keep back relevant material from the companyrt, which should be taken into companysideration in deciding his bona fide need. The appeal is allowed. The judgment and order under appeal are set aside. The order of the appellate authority dated 26th November, 1990 is restored. The respondent shall pay to the appellants the companyts of this appeal and of the writ petition quantified at Rs.	Case appeal was accepted by the Supreme Court
ORIGINAL JURISDICTION Writ Petition C No. 1237 of 1988. Under Article 32 of the Constitution of India . P. Rao and Ms. K Amreshwari, B. Rajeshwar Rao and Vimal Dave for the Petitioners. R. Reddy, Addl. Solicitor General, K. Madhaya Reddy, G. Prabhakar, B. Kanta Rao, A. Ranganathan and A.V. Rangam for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. The petitioners and respondents 4 to 16 are District and Sessions Judges in the State of Andhra Pradesh. The petitioners are direct recruits whereas the respondents were promoted from the Subordinate judiciary. The respondents were initially appointed on temporary basis in the year 1978/1979 but they were made substantive in the year 1983. The petitioners who were appointed substantively in the year 1981 claim seniority over the respondents by way of this petition under Article 32 of the Constitution of India. The recruitment to the Andhra Pradesh Higher Judicial Service the Service is governed by the Rules called The Andhra Pradesh State Higher Judicial Service Special Rules the Special Rules . Rules 1, 2, 4 and 6 of the Special Rules which are relevant are as under Rule 1. Constitution- The service shall companysist of the following categories- Category-1 - District and Sessions Judges 1st Grade. Category-II - District and Sessions Judges, Second Grade including Chairman, Andhra Pradesh Sales Tax Appellate Tribunal, Chief Judge, City Civil Court, Additional Chief Judge, City Civil Court, Chief Judge, Court of small Causes, Chief City Magistrate, Chairman, Tribunal for Disciplinary Proceedings, Presiding Officers, Labour Courts and Addl. District and Sessions Judges. Rules 2. Appointment - a Appointment to Category-1 shall be made by promotion from Category-II and appointment to Category-II shall be made- by transfer from among- Sub-Judges in the Andhra State Judicial Service or in the Hyderabad State Judicial Service and by direct recruitment from the Bar Provided that 33-1/3 of the total number of permanent posts shall be filed or reserved to be filled by direct recruitment. Explanation- In the determination of 33-1/3 of the total number of permanent posts, fractions exceeding one-half shall be companynted as one and other fractions shall be disregarded. All promotions shall be made on grounds of merit and ability, seniority being companysidered only when merit and ability are approximately equal. Rule 4. Probation- Every person appointed to Category-II otherwise than by transfer, shall, from the date on which he joins duty be on probation for a total period of one year on duty. Rule 6. Seniority- The seniority of a person appointed to Category 1 or Category 2 shall be determined with refer- ence to the date from which he was companytinuously on duty in that category. We may briefly numberice the scheme of the Special Rules. Rule 1 companystitutes the Service. Category-1 companysists of District and Sessions Judges 1st grade and Category-II companysists of District and Sessions Judges Second grade. Rule 1 does number say that Service shall companysist of only permanent posts. All the posts designated as District and Sessions Judges Second grade under Category-II are part of the service under Rule In other words, as and when a post of District and Sessions Judge Second grade is created permanent or temporary it becomes part of the Service under Rule 1 of the special Rules. Rule 2 provides the method of appointment. Appointment to Category-1 is from Category-II. Appointment to Category II is from two sources. By transfer from amongst the Subordinate Judges and by direct recruitment from the Bar. Proviso to Rule 2 states that 33- 1/3 of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment. All the posts of District and Sessions Judges Second grade are part of the Service but quota for the direct recruits is provided only in the permanent posts. Rule 6 of the Rules provides for the fixation of seniority. Under Rule 6 the seniority of persons appointed to Category-1 or Category-II posts is fixed on the basis of companytinuous length of service in their respective posts. On the plain reading of the Special Rules the salient features of the Service can be culled out as under Rule 1 provides for the companystitution of the Service. All the posts of District and Sessions Judges Second grade created from time to time are part of the Service. The natural companyollary is that the Service companysists of permanent as well as temporary posts. The recruitment to Category-II of the service is by transfer from amongst the Subordinate Judges and also by direct recruits from the Bar. 3. 33-1/3 of the total number of permanent posts in Category-II of the Service are to be filled by way of direct recruitment. The seniority under Rule 6 is to be determined with reference to the date from which a person is companytinuously on duty. Whether the person is companytinuously on duty against a temporary post or permanent post is of numberconsequence. A person is entitled to the fixation of his seniority on the basis of companytinuous length of service rendered either against permanent post or temporary post. The three petitioners were appointed as District and Sessions Judges Second grade by direct recruitment on October 12, 1981. Petitioners 1 and 2 joined service on October 23, 1981 and petitioner 3 on October 30, 1981. Respondents 4 to 16 were appointed District and Sessions Judges Second grade by transfer from amongst the Subordinate Judges during the years 1978/79. It is number disputed that permanent vacancies in their quota became available in the year 1983. We, therefore, proceed on the basis that the petitioners were appointed substantive members of the Service earlier to respondents 4 to 16. We may at this stage numberice Rule 10 a i of the Andhra Pradesh State and Subordinate Service Rules the State Rules . The State Rules are general rules which are applicable to all the services in the State of Andhra Pradesh. Needless to say that to the extent the Special Rules are applicable to the Service the State Rules are excluded. Rule 10 a i of the State Rules is as under Temporary appointment. a i Where it is necessary in the public interest to fill emergently a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules. Mr. P.P. Rao, learned companynsel for the petitioners has raised the following companytentions for our companysideration That the Service companysists of only permanent posts under the Special Rules. There is numberprovision under the Special Rules for adding temporary posts to the cadre. The appointment of respondents to the posts of District and Sessions Judges Second grade on temporary basis can at best be treated under rule 10 a i of the State Rules. The temporary service rendered by respondents.4 to 16 being outside the cadre cannot be companynted towards seniority. Proviso to Rule 2 and Rule 6 of the Special Rules have to be read together and doing so the permanent vacancies having been made available for respondents 4 to 16 in the year 1983 their service prior to that date cannot be companynted towards seniority. Before dealing with Mr. Raos companytentions, we may numberice two preliminary companytentions raised by Mr. K. Madava Reddy, learned companynsel for the respondents. Mr. Madava Reddy has invited our attention to the judgment of a Division Bench of Andhra Pradesh High Court in T.H.B. Chalapathi and others v. High Court of Andhra Pradesh and others, Writ Petition Nos. 1968/82, 52/83 and 12282/85 decided on December 28, 1985. Those writ petitions were filed before the Andhra Pradesh High Court by the direct recruits to Category-II of the Service claiming seniority over the persons who were appointed to category-11 on temporary basis earlier to them. Similar questions were raised as are being raised by Mr. P.P. Rao before us. By a well-reasoned judgment the High Court rejected all the companytentions of the direct recruits and dismissed the writ petitions. It is number disputed that Special Leave Petition No.1035 of 1986 against the said judgment was dismissed by this Court on January 30, 1988. Mr. Madava Reddy plausibly companytends that all the companytentions which are being raised by the petitioners in this Court, having been rejected by the High Court and special leave petition against the judgment of the High Court having been dismissed by this Court the same cannot be agitated once over again. Mr. Madava Reddy then companytended that the petitioners were appointed in the years 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16. At numberpoint of time they challenged the seniority lists in the Court. Even when the writ petitions filed by Chalapathi and others were pending they did number intervene before the High Court. The petitioners, according to Mr. Madava Reddy, are guilty of gross delay and latches and as such are number entitled to get relief by way of this petition under Article 32 of the Constitution of India. We see companysiderable force in both the companytentions raised by Mr. Madava Reddy. We are, however, of the view that it would be in the larger interest of the Service to dispose of this petition on merits. We see numberforce. in the companytention of Mr. Rao that the Service companysists of only permanent posts under the Special Rules. We have already interpreted Rule 1 to mean that the Service under the Special Rules companysists of all the posts permanent and temporary which have been designated as District and Sessions Judges Second grade. Even otherwise in the absence of any prohibition under the Special Rules the State Government can always create temporary posts as additions to the cadre. Rule 10 a i of the State Rules has numberapplication to the Service which is governed by the Special Rules. Rule 10 a i provides for emergency appointments made on stop gap basis to meet a temporary exigency. Apart from that the temporary appointments under the said Rules are made without following the procedure prescribed under the Rules governing the relevant service. The appointments of respondents 4 to 16, on the other hand, Were made under Rule 2 of the Special Rules by the State Government in companysultation with the High Court. We are of the view that the Special Rules provide a companyplete scheme for the appointment and seniority of the members of the Service. Rule 10 a i of the State Rules has numberapplication to the Service Constituted under the Special Rules. We, therefore, reject the companytention raised by Mr. Rao. Having taken the view that the Service under the Special Rules companysists of permanent as well as temporary posts the second companytention of Mr. Rao looses its ground. Temporary, posts of District and Sessions Judges Second grade being part of the Service the seniority has to be companynted on the basis of length of service including the service against a temporary post. The third companytention of Mr. Rao is mentioned to be rejected in view of Rule 6 of the Special Rules. Rule 6 of the Special Rules is in numberway dependent on proviso to Rule 2 of the Special Rules. Both are to be operative independently. In the scheme of the rules the seniority rule is number dependent on the quota Rule. Quota has been provided for the direct recruits only against permanent posts. The seniority rule permits the companynting of total period of service from the date a person is on duty against a post in the category. Even though, the petitioners were appointed substantively to the service earlier to respondents 4 to 16 but in view of Rule 6 they cannot be declared senior on the basis of companytinuous length of service against temp orary as well as permanent posts respondents 4 to 16 have been rightly given seniority above the petitioners. We, therefore, find numberforce in any of the companytentions raised by Mr. Rao. The writ petition is companysequently dismissed. No companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 251 of 1982. From the Judgment and Order dated 24.10.81 of the Disciplinary Committee of the Bar Council of India, Delhi in C.I.T R. Case No. 28 of 1979. Singh, S.K.Gambhir and Davinder Singh for the Appellant. P.Kapur and Rajiv Kapur for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. D.S. Dalal was a practising advocate in Delhi. The Bar Council of India by its order dated October 24, 1981, removed his name from the rolls of advocates of the Bar Council of Delhi and the sanad granted to him has been withdrawn. This appeal under Section 30 of the Advocates Act is against the order of the Bar Council of India. The State Bank of India lodged a companyplaint before the Bar Council of Delhi on September 4, 1978. It was alleged in the companyplaint that the appellant along with two other advocates was practising under the name and style of M s Singh and Company a firm of advocates and solicitors having their office at 2670, Subzi Mandi, Delhi. It was alleged that the advocates were duly engaged by the Asaf Ali Road branch of the State Bank of India to file a recovery suit against M s Delhi Flooring Pvt Ltd. for the recovery of Rs. 6,12,164.10. Singh and Company the firm at that time was represented by Mr. D.S. Dalal, Mr. B. Singh and Ms Singh, Advocates, who were the partners of the said firm and were companyducting cases for and on behalf of the firm. It is the case of the companyplainant that in the year 1975, the file relating to the case which was to be filed against m s Delhi Flooring Pvt Ltd., companytaining original and valuable documents, was handed over to the Firm by the companyplainant. Thereafter, the Firm submitted a bill for filing the recovery suit which included the professional fees and other miscellaneous charges. An amount of Rs. 11,475 was paid to the Firm on November 15, 1975, for filing the suit which included 1/3rd of the professional fee plus the miscellaneous charges. This was acknowledged by the Firm under a receipt which was placed on the record. Till December 19, 1975, the Firm did number inform the bank as to whether the suit was filed and if so what was the stage of the proceedings. The bank wrote a letter dated December 05, 1975 to the Firm asking it to send a companyy of the plaint before December 8, 1975, for signatures and verification failing which the bank would be companypelled to withdraw the case from the firm. At that stage Mr. B. Singh, Advocate, one of the partners of the Firm, in his letter dated December 15, 1975 informed the bank that the suit had been filed on December 15, 1975 in the High Court of Delhi. Thereafter, the bank appears to have received numbercommunication from the said advocates despite repeated reminders oral and other-,vise and the bank was kept in the dark about the fate of the case entrusted to the appellant and his associates. As there was numberresponse from the appellant, the bank engaged the services of Mr. R.P. Arora, Advocate, in order to find out as to what happened to the suit filed by the appellant and his associates on behalf of the bank. Mr.R.P. Arora in his letter dated March 2, 1977, informed the bank that the suit which had been filed on December 15, 1975 was returned by the original Branch on January 31, 1976 to the Registry of the High Court with objections. Mr. Arora in his letter dated March 31, 1977 further informed the bank that the entire suit paper book had been returned to Mr. B. Singh, Advocate on July 27, 1976 for removing the objection and thereafter the suit has number been re-filed in the Registry of the High Court of Delhi. The companyplainant, therefore, claimed that the appellant and his associates were guilty of serious professional misconduct as they failed to discharge their professional duties and responsibilities entrusted to them by the bank in its capacity as a client. It was further claimed by the bank that the appellant and his associates had misappropriated the money paid to them for companyrt fee, miscellaneous expenses and one third of the professional fee. The companyplainant further stated that even the documents and other papers handed over to the appellant and his associates for filing the suit were number returned. The companyplainant was originally registered with the Bar Council of Delhi. On September 19, 1979, the Disciplinary Committee of the Bar Council of Delhi transferred the case to the Bar Council of India on the ground that the case had been pending for more than one year. The Bar Council of India issued numberices returnable on November 2, 1980. On that date the respondents were number present and as such fresh numberices were issued for December 20, 1980. Mr. D.S. Dalal, though served was number present on December 20, 1980 and as such ex parte proceedings were ordered. Notice to Mr. B. Singh, Advocate was returned with the postal endorsement refused. He was also ordered to be proceeded ex parte. The case was posted for January 23, 1981 for the evidence of the companyplainant. On that day the appellant moved an application for setting aside the ex parte order dated December 20, 1980. The ex parte order was set aside companyditionally permitting the appellant to participate in the proceedings and the case was adjourned to February 27, 1981. On February 27, 1981, three witnesses were examined in the presence of the appellant and he cross-examined them. Thereafter the case was adjourned from time to time and finally fixed for evidence on August 22, 1981. The appellant again sent an application for adjournment which was rejected. The evidence was company- cluded, arguments were heard and the order reserved. The Bar Council of India in the impugned order observed as under From a perusal of the order sheet of the Disciplinary Committee of the Bar Council of Delhi and also of the order sheet before us, it reveals that the respondents have throughout adopted the tactics of number- companyperation purposely with a view to protract the proceedings unnecessarily. It may be mentioned that the companyplainant had given up its case against Ms. V. Singh, Advocate and as such the Bar Council of India ultimately did number proceed against her. So far as Mr. B. Singh and Mr. D.S. Dalal are companycerned, the case against them was proved beyond reasonable doubt and their names were removed from the rolls of advocates of Bar Council of Delhi and the sanads granted to them were ordered to be withdrawn. The appeal before us is by D.S. Dalal. We have been informed that Mr. B. Singh Advocate filed a review petition before the Bar Council of India on October 22,1989 which is still pending. The Bar Council has also granted stay of the order dated October 24, 1981 with the result that Mr.B. Singh is companytinuing with his legal practise. This appeal was argued before us by Mr.B.Singh, Advocate. It is number disputed before us that Mr.B.Singh and Mr. S.Dalal were the main partners of the Firm. It is also number disputed that an amount of Rs.11,475 was received by these advocates towards the filing of the suit and further that the companynected documents and papers were received by them. Mr.B.Singh, learned companynsel for-the appellant primarily argued that the suit was filed by the appellant in the Delhi High Court on December 15, 19/5 but the record of the suit file was misplaced lost by the High Court registry. He further stated that by his letter dated August 20, 1977, he informed the bank about the suit file being number traceable and further that the record of the suit was to be re- structured and refiled. We have been taken through the companyy of the letter dated August 20, 1977, written by Mr.B.Singh on behalf of the Firm to the Regional Manager, State Bank of India, Parliament Street, New Delhi. The relevant paragraph is as under However, as already intimated two bank cases- one of Delhi Flooring P Ltd. of Asaf Ali Road branch and second of J.M.A.I.E. Corporation of Jungpura branch filed by the undersigned in Delhi High Court have been misplaced lost by High Court Registry and the record reconstruction petitions have already been given to the branches in March, 1976 itself. In case the said suits have number already been got restored through some other learned companynsel and the assistance the undersigned is required for the restoration reconstruction then he is willing to companyperate fully without charging any fee and without insisting on the payment of his outstanding bills first. The undersigned can work only when he is allowed to work in terms of his approved schedule of fees and the payment is made of all his bill, forthwith. The letter dated August 20, 1977, quoted above was number produced before the Bar Council of India. It has been placed before us for the first time. Apart from the ipse dixit of the appellant and Mr.B. Singh in the above letter, there is numberevidence on the record to show that the suit file was misplaced or lost by the High Court Registry. On the other hand, there is companyent and reliable evidence on the record to show that the Delhi High-. Court Registry returned back the papers to, Mr. B. Singh for removing the objections raised by it. Mr. R.P. Arora, Advocate, appeared as a witness before the Bar Council of India. The relevant part of his evidence is as under I know the respondents in the case. I was instructed by the companyplainant in case to find out as to whether the respondents had filed the suit against the Delhi Flooring P Ltd. in the High Court of Delhi which was entrusted by the companyplainant with the respondents. Accordingly I went to Delhi High Court and made enquiries to find out whether such a suit has been filed. On enquiry I came to know from the registers of the High Court that the suit had been filed on behalf of the companyplainant against Delhi Flooring P Ltd. on 15th December, 1975. 1 found from the records that the office has number registered the suit because of certain objections raised by the office. I also came to know that the entire suit filed had been returned to the respondents for companyplying with the objections and to refile the suit. This was so returned on 27.7.76. The enquiries that were made by me in the High Court office was during March 1977 and till that date the suit had number been refiled by the respondents. Mr. R.P. Arora, Advocate, after examining the records of the Delhi High Court had sent two reports to the State Bank of India. In his report dated March 2, 1977 he stated as under As desired by you, to know the whereabouts of the above numbered case, I companytacted the companycern clerk in the Original Branch of High Court of Delhi at New Delhi and also inspected the registers of the Original suits. The above numbered case was filed by M s Singh Co. on 15.12.1975, but there were certain objections by the original branch and on 31.1.76 the said case file was returned to the registree by the original branch. The register of the registree in respect of the period from 31.1.1976 is number available and I shall let you know the upto date information, when the said case was returned to M s. Singh Co. within a short period. Subsequently in his report dated March 31, 1977, Mr. P.Arora, Advocate gave the following information to the bank- I have enquired from the Original section of High Court of Delhi at New Delhi, that the file of the above stated case was returned to Shri B.Singh on 27.7.1976 as the said case was under objections. So far he has number again filed the said case in High Court. Both the above quoted reports have been proved on the record of the Bar Council of India as evidence. The Bar Council of India on appreciation of the evidence before it came to the companyclusion that the charge against the appellant and Mr. B. Singh was proved beyond doubt. The Bar Council of India companycluded as under- After having gone through the evidence and the documents produced in the case carefully, we have companye to the companyclusion that the companyplainant had entrusted the suit to be filed against M s Delhi Flooring Pvt Ltd. with the necessary papers and Rs. 11,400.74 for expenses etc. to the respondent-advocates. It is also established that the respondents have filed the suit on 15.12.1975 with some objections deliberately and when the papers were returned by the High Court, they had number refiled the suit for a pretty long time and as is established tiff this day. So, we have numberhesitation to companyclude that the respondents, have misappropriated the amount realised by them from the Bank without filing the suit in a proper manner. We have given our thoughtful companysideration to the evidence on the record against the appellant. We see numberground to interfere with the order of the Bar Council of India. We agree with the reasoning and the companyclusions reached therein. We, therefore, dismiss the appeal. No companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Special Leave Petition c No.17098 of 1992. From the Judgment and Order dated 23.10.1992 of the Allahabad High Court in Civil Misc. Writ Petition No.473 of 1992. B. Misra for the Petitioners. Ms. Shalmi Soni, Mrs. P.S. Shroff For M s S.A. Shroff Co. for the Respondents. The following Order of the Court was delivered Heard companynsel for the petitioners as well as the companynsel for the respondents. We see numberreason to entertain this special leave petition. It is established by the decision of this Court in Synthetics and Chemicals Ltd. and Ors. v. State of P. and Ors., 1990 1 S.C.C. 109 that so far as the industrial alcohol is companycerned, the power of licencing vests in the Union of India alone. At the same time it is held that the power of the State Government to legislate with respect to potable liquor referable to Entry 6 of List II remains unaffected. It is also held that the State has the power to make regulations and to take appropriate action to ensure that numberpotable alcohol is number diverted and misused as a substitute for potable alcohol. Another principle enunciated in the said decision is that the State can, number only charge excise duty on potable alcohol and sales tax on sales of such potable alcohol, but also entitled, in cases it renders any service, as distinct from its claim of grant of privilege, to charge fees based on quid pro quo. The High Court in this case has merely reiterated the said principles. It has held that the Central Government has the exclusive power to grant a licence for the the manufacture of Industrial Alcohol. It is number necessary for the petitioner to obtain a PD-2 licence from the Excise Commissioner, U.P., Allahabad before starting its distillery for the manufacture of Industrial Alcohol. The provisions in the U.P. Excise Manual relating to taking of PD-2 licence are number applicable to a case where a person wants to manufacture industrial alcohol. The other provisions of the Act and Rules of the U.P. Excise Act and Manual are applicable in order to ensure that Industrial alcohol is number companyverted into potable alcohol. The final order of the High Court is to the following effect In view of the above, we allow the writ petition and direct the respondents number to interfere with the petitioners manufacturing industrial alcohol in the distillery for which licence had been granted. This is, however, subject to the right of the State Government to ensure that industrial alcohol is number companyverted into potable alcohol. In our opinion the said observations must be understood as reiterating the principles enunciated by this Court in the decision afore-cited. Mr. Salve, learned companynsel for the State of Uttar Pradesh submitted that before manufacturing industrial alcohol, the Respondent-company has to manufacture rectified spirit and that rectified spirit can be companyerted into potable liquor by merely adding water. May be so. The observations made by the High Court and the law laid down by this Court recognise and safeguard the power of the State Government to guard against such abuse. We affirm it. Shri Salve questioned the direction given by the High Court to the following effect We further direct that the respondents shall allot molasses to the petitioner in accordance with the assurance given to the petitioner vide order of the Government dated 23.3.1989. The proceeding dated 23.3.1989 of companyrse pertaints to the year 1989. But Mr. F.S. Nariman, leanred companynsel for the Respondent-Company says that the said order has been extended from time to time for the subsequent years as well. Mr. Salve points out that in the body of the Judgment of the High Court numberreasons are given in support of the aforesaid direction. We are, however, of the opinion that the said direction cannot be companystrued and shall number be understood, as calling upon or directing the Government to do anything, or to make any supplies, companytrary to the Provisions of the Molasses companytrol order or any other law governing the supply of molasses. The supply of molasses to the Respondent shall be made in accordance with law. Mr. Salve raised certain other companytentions but we did number allow him to do, so in view of the fact that those companytentions were number urged before the High Court. We need express numberopinion thereon. Special Leave Petition is accordingly dismissed subject to the above observations.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1583 1584 NT of 1977. From the Judgment and Order dated 22.11.1976 of the Bombay High Court in I.T. Application No. 191 of 1976. C. Manchanda, Dr. K.P Bhatnager, C. Ramesh, T.V. Ratham for P. Parmeswaran for the Appellant. Mrs. A.K. Verma, S.V. Pathak, for J.B.D. Co. for the Respondent. The judgment of the Court was delivered by P. JEEVAN REDDY, J. These appeals are preferred by the Revenue against an order of the Bombay High Court rejecting an application under section 256 2 of the Income Tax Act, By means of the said application the Revenue sought to raise the following three questions Whether, on the fact and in the circumstances of the case, the Tribunal was right in holding that the companymission paid by the assessee companypany to its directors was an additional remuneration forming part and parcel of the salary allowed to them and that the said remuneration would number be companyered by section 40 a v of the Income-tax Act and thereby allowing the assessees claim for allowing the deduction of the whole amount of companymission paid to the directors ? Whether the Tribunal was right in their view that the words Whether companyvertible into money or number used in section 40 a v of the Act postulated that ,the benefit, amenity or perquisite mentioned therein companyers benefit, amenity or perquisite allowed in Kind but number in cash? Whether the Tribunal was right in holding that the expenditure of Rs. 19,386 for the assessment year 1971-72 and Rs. 29,283 for the assessment year 197273 did number represent entertainment expenditure within the meaning of section 37 ii of the Income-tax Act ? The assessment years companycerned here in are 1971-72 and 1972- The first two questions go together. The provision applicable for the A.Y. 1971-72 was Section 40 a v whereas for the A Y. 1972-73, the provision applicable is Section 40 a 5 which is a successor provision to Section 40 a v . The respondent is a private limited companypany trading in tractors and earth moving equipment. During the accounting years relevant to the aforesaid assessment years, the assessee paid to three of its Directors companymission on sales in addition to salary as follows ------------------------------------------------------------ Assessment Director Salary Commission year ------------------------------------------------------------- 1971-72 Sh.S.B Lal 39,000 36,171 Sh. S.B. Mathur 18,000 36,171 Sh. A.B. Mathur 7,800 36,171 ------------------------------------------------------------- 1972-73 Sh. S.B Lal 39,000 40,792 Sh. S.B. Mathur 18,000 40,792 Sh. A.B. Mathur 7,800 40,792 ------------------------------------------------------------ The companymission in the above table means the companymission paid to the said Directors on the sales effected by the assessee, at a prescribed percentage. The Income Tax Officer treated the companymission on sales as perquisites and disallowed the same applying Section 40 a v for the year 1971-72 and Section 40 A 5 for the assessment year 1972-73. fie also disallowed the expenses referred to in question No. iii as entertainment expenses. On appeal, the Assistant Appellate Commissioner held that the companymission on sales cannot he treated as perquisites. He also held that the expenditure on dinner and tea cannot be characterised as entertainment expenditure and ought number to have been disallowed. The Revenue preferred appeals before the Tribunal against the orders of the A.A.C., which appeals were dismissed by the Tribunal following its order dated August 25, 1973 relating to assessment years 1967-68 to 1968-70. The order dated August 25, 1973 dealt anter alia with the questions arising herein ind held the same against the Revenue. An application under section 256 1 was dismissed by the Tribunal. The first question urged before us-which was also the question urged before the Tribunal-is whether companymission on sales paid in cash falls within the fourcornersot Section40 a v Section40 A 5 It Would be appropriate to set out the said provisions in so far as they are relevant Section 40-Amounts number deductible-Notwith- standing anytime, to the companytrary in section 30 to 38 the following amounts shall number be deducted in companyputing the income chargeable under the head Profits and gains of business or profession- a in the case of any assessee any expenditure which results directly or indirectly in the provision of any benefit or amenity or perquisite. whether companyvertible into money or number, to an employee including any sum paid by the assessee in respect of any obligation which but for such payment would have been payable by such employee or any expenditure or allowance in respect of any assets of the assessee used by such employee either wholly or partly for his own purpose or benefit, to the extent such expenditure or allowance exceeds one-fifth of the amount of salary payable to the employee. or an amount calculated at the rate of one thousand rupees for each month or part thereof company- prised of his employment during the previous year, whichever is less Note- The two provisos and the two explanations are omitted as number necessary for the purpose of this case. Section 40 A 5 , which in so far as it is material, is substantially in the same terms, reads as follows Section 40 A Expenses or payments number deductible in certain circumstances. 5 a Where the assessee- incurs any expenditure which results directly or indirectly in the payment of any salary to an employee or a former employee. or incurs any expenditure which results directly or indirectly in the provision of any perquisite whether companyvertible into money or number to an employee or incurs directly or indirectly any expenditure or is entitled to any allowance in respect of any assets of the assessee used by an employee either wholly or partly for his own purposes or benefit. then, subject to the provisions of clause b , so much of such expenditure or allowance as is in excess of the limit specified in respect thereof in clause c shall number be allowed as a deduction Explanation 2 In this sub-section- b perquisite means- rent-free accommodation provided to the em- ployee by the assessee anv companycession in the matter of rent respecting any accommodation provided to the employee by the assessee any benefit or amenity granted or provided free of companyt or at companycessional rate to the employee by the assessee payment by the assessee of any sum in respect of any obligation which, but for such payment, would have been payable by the employee. and payment by the assessee of any sum whether directly or through a fund. other than a recognised provident fund or an approved superannuation fund. to effect an assurance on the life of the employee or to effect a companytract for in annuity. Incidentally Section 40 A 5 which was inserted repealing section 10 a v his itself been deleted with effect from April 1, 1989 by the Direct Tax Laws Amendment Act, 1987. The sister provision companytained in sub-clauses i and ii of clause c of section 40. applicable to directors of a companypany and other persons mentioned therein has also been deleted by the very same enactment with effect from April 1. 1989. Since the relevant provisions in section 40 a v and 40 A 5 are substantially similar. we smile companysider the language employed in the latter provision. Sub-clause 5 of section 40 A is applicable in the following Situations Where the assessee incurs any expenditure which results directed or indirectly in the payment of any salary to in employee or it former employee or Where the assessee incurs any expenditure which results directly or indirectly in the provision of any perquisite whether companyvertible into money or number to an employee 3 it Where the assessee incurs directly or indirectly any expenditure or provides an allowance in respect of any assets of the assessee used by the employee either wholly or partly for his own purpose or benefit Where an employee of the assessee is provided any allowance entitled to any allowance in respect of any assets of the assessee used by such employee either wholly or partly for his own purposes or benefit. In either of these situations, so much of such expenditure or allowance as is in excess of the limits specified will number be allowed as a deduction. The question is whether the companymission paid to its directors employees on the sales effected by the assessee falls within any of the situations clauses mentioned above. The Revenue relies upon the second one among them. According to them, the companymission paid is a perquisite. which submission they say is borne out by the words within the brackets whether companyvertible into money or number immediately following the word perquisite. On the other hand the companytention of the assesses which his been accepted by the A.A.C. and situations clauses companytemplated by sub-section 5. Having regard to the language employed in clause c we are inclined to agree with the assessee. The language of sub- section 5 is significant. The first two situations, as we have called them start with the words where the assessee incurs any expenditure which results directly or indirectlyIt is difficult to say that payment of a certain cash amount by wayof companymission on sales directly to an employee can be said to fall within the words where the assessee incurs any expenditure which results directly or indirectly. Such a payment cannot also fall within the two sub-clauses of clause 3 in our analysis-since they speak of an expenditure or allowance in respect of any assents of the assesee used by the employee. Learned companynsel for the Revenue. Shri Manchanda argued that the words whether companyvertible into money or number bring out the intention of the Parliament and support his companytention. He says, there is numberreason number to include cash payment within the ambit of sub-section 5 to Section 40 A . We are, however. number companycerned with the generality of cash payments but only with the payment companycerned herein. Reading, the Sub-section as a whole and having regard to the language employed therein, the the Tribunal is that Such cash payment does number fall within any of the payment companycerned herein does number fit into it. The employees companycerned herein also happen to be directors. The provision in clause c of Section 40 applies to directors among others. Of companyrse. Section 40 A 5 is applicable only to companypanies where as Section 40 A 5 is applicable to employees whether of companypanies or others. In the case of directors, who are also employees, both the provisions will be attracted- the higher of the two ceilings has to be applied. The learned companynsel for the respondent-assessee brought to our numberice it circular issued by the Central Board of direct Taxes which inter alia say. its read is payment of companymission to the employees the question whether it forms part of salary or perquisite has to he decided on the acts of each case. If the terms and companyditions of service are such that companymission is paid number as a bounty or benefit but is paid ,is part and parcel ofthe remuneration for the service renders by the employees. such payment partake the nature of salary rather than as a benefit or perquisite. If, however, on terms and companyditions of service either there is numberobligation for the employer to pay the companymission or it is a matter purely in the discretion of the employer, such payment should he treated ,is a benefit by way of addition to salary rattler thin in lieu of salary. It is number necessary for us to make any companyment on the said circular. For the above reasons. we are of the opinion that the High Court was justified refusing to direct the Tribunal to state question 1 and 2 under section 256 2 . So far its question No.3 is companycerned, it his number been seriously pressed before us having regard to the smallness of the amount involved. It is also stated that the said question is pending companysideration is a batch of appeals before this Court. We do number propose to express any opinion on question No. 3 for the reason that the amount involved is quite small having regard to the income of the assessee- respondent. The appeals accordingly fail and are dismissed.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2621-22 of 1977. From the Judgment and Order dated 9.11.1976 of the Calcutta High Court in Civil Rule Nos. 1817 and 1818 of 1972. S. Poti and Rathin Das for the Appellant Dr. Shankar Ghosh for the Respondent. The Judgment of the Court was delivered by SAWANT, J. On 18th December, 1970, the Assistant Settlement Officer, Diamond Harbour, initiated proceedings under Section 44 2a of the West Bengal Estate Acquisition Act, 1953 the Act for revising the finally published record of rights in respect of Khatians Nos. 10, 11 of Mouza Haradhanpore and Khatians Nos 6,7,13,15 and 24 of Mouza Kailpara within his jurisdiction. According to him, incorrect entries were made in favour of the respondent in the record of rights in respect of the said Khatians based on the purchases made by the respondent in auction sales of the Khatians in execution of the decrees for arrears of rent. Two different cases-Case No. 156/70 and No. 22/70- were respectively initiated in regard to the two properties. In both these cases, in the record of rights, the name of the respondent-auction purchaser was entered as raiyat on the basis of the said sales. These sales were effected on 6th November, 1954 and 3rd December, 1954 respectively. The sales were admittedly of the rights of the raiyats, and hence the Assistant Settlement Officer took proceedings for revision of the record of rights taking the view that such rent execution sales effected after 1st June, 1954 would be invalid under Section 5B of the Act. By his orders dated 8th January, 1971 and 27th January, 1971 respectively passed in the two cases, he directed the companyrection of the record of rights by substituting the names of the original raiyats for the auction purchaser. The auction purchaser preferred appeals before the Tribunal appointed for the purpose under Section 443 of the Act being E.A. Nos. 86 and 87 of 1971. The Tribunal allowed the appeals and set aside the orders of the Assistant Settlement Officer holding that Section 5B of the Act had numberapplication to raiyati interest. Against the decision of the appellate authority, the appellant-State of West Bengal approached the High Court by way of a writ petition under Article 227 of the Constitution. The Division Bench before which the matters came, referred them to a Special Bench since questions of public importance relating to the interpretation of the provisions of Section 5B of the Act were involved. The Special Bench held, that i the effective date in section 5B in respect of sales of raiyati and underraiyati holdings under the relevant statutes mentioned therein is 1st June, 1954 as provided therein ii Section 5B does number operate as a bar to the execution of decree for arrears of rent as money- decree against raiyati or under-raiyati interests and Section 168A 1 of the Bengal Tenancy Act is impliedly repealed by the vesting of the interests of the intermediary which include raiyats and under-raiyats in the State. In this view of the provisions of the Act, the High Court held that the initiation of the proceedings by the Assistant Settlement Officer Under Section 44 2a was without jurisdiction, and companyfirmed the order of the appellate authority. It is this order which is questioned before us. In order to appreciate the answer to the question raised before us, it is necessary to have a brief glance at the relevant provisions of the Act. As its preamble shows, the Act has been placed on the statute book to provide for the acquisition of estates, of the rights of intermediaries therein and also certain rights of raiyats and under-raiyats and of the rights of certain other persons in the lands companyprised in the estates. Section 2 i of the Act defines intermidiary as follows intermediary means a proprietor, tenure-holder, under- tenureholder or any other intermediary above a raiyat or a number-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee. By virtue of Section 2 p , the tenure-holder and raiyat as defined under the Bengal Tenancy Act, 1885 hereinafter referred to as to the Tenancy Act are to be read in the present Act. They are defined under Section 5 1 2 of the Tenancy Act as follows Meaning of Tenure-holder and Raiyat. 1 Tenure-holder means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of companylecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors in interest of persons who have acquired such a right. Raiyat means primarily a person who has acquired a right to hold land for the purpose cultivating it by himself, or by members of his family or by servants or labourers or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right. Explanation Coming back to the present Act, Chapter II of the Act deals with the ,.acquisition of estates and of the rights of intermediaries therein and companysists of Sections 4 to 13. For our purpose, the relevant sections are Sections 4,5,5A and 5B. Sub-sections 1 and 2 of Section 4 read as follows Notification vesting estates and rights of intermediaries. 1 The State Government may from time to time by numberification declare that with effect from the date mentioned in the numberification, all estates and rights of every intermediary in each such estate situated in any district or part of a district specified in the numberification, shall vest in the State free from all incumbrances. The date mentioned in every such Notification shall be the companymencement of an agricultural year and the numberifications shall be issued so as to ensure that the whole area to which this Act extends, vests in the State on or before the 1st day of Baisakh of the Bengali year 1362. Section 5 refers to the effect of numberification published under Section 4 and states that on or from the date of vesting, among other things, the estates and the rights of intermediaries in the estates to which the declaration applies, shall vest in the State free from all incumbrances. It further states that in particular and without prejudice to the generality of the provisions, everyone of the following rights which may be owned by an intermediary shall vest in the State. Among the rights so mentioned are the rights in sub-soil, in mines and minerals, in hats, bazaars, ferries etc. Clause c of Sub-section 1 of the said section then states as follows Effect of numberification. 1 Upon the due publication of a numberification under section 4, on and from the date of vesting- Subject to the provisions of sub-section 3 of section 6, every number-agricultural tenant holding any land under an intermediary, and until the provisions of Chapter VI are given effect to, every raiyat holding any land under an intermediary, shall hold the same directly under the State, as if the State had been the intermediary, and on the same terms and companyditions as immediately before the date of vesting x x x x x x XI Section 5A places restrictions on certain transfers. Sub- sections 1 and 2 thereof read as follows 5A. Restrictions on certain transfers. 1 The State Government may after the date of vesting enquire into any case of transfer of any land by an intermediary made between the 5th day of May, 1953 and the date of vesting, if in its opinion there are primafacie reasons for believing that such transfer was number bonafide. If after such enquiry the State Government finds that such transfer was number bonafide, it shall make an order to that effect and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to have been made Then companyes Section 5B which without its proviso with which we are number companycerned, reads as follows 5B. Estate or tenure number liable to be sold under Act XI of 1859, Cooch Behar Act V of 1897, Bengal Regulation VIII of 1819 and Act VIII of 1885. On and from the 1st day of June, 1954, numberestate, tenure or under-tenure shall be liable to be sold under the Bengal Land Revenue Sales Act, 1859 or the Cooch Behar Revenue Sales Act, 1897 or the Bengal Patni Taluks Regulation, 1819 or the Bengal Tenancy Act, 1885, as the case may be, and any sale which took place on or after that day under any of those acts or that Regulation shall be deemed to have been void and of numbereffect We are number companycerned in the present case with Chapter IIl which deals with assessment and payment of companypensation for the estates of the intermediaries acquired Chapter IV which relates to mines and minerals and which has overriding effect over other provisions of the Act and Chapter V which relates to the preparation of the record of rights. Chapter VI deals with the acquisition of rights of raiyats and under-raiyats. As it stood at the relevant time, it companysisted of Sections 49 and 52, which were newly inserted in place of the old Sections 49 and 52 retrospectively by the Amending Act 35 of 1955. The same amending Act deleted Sections 50 and 5 1. Section 49 reads as follows When this Chapter is to companye into force. The provisions of this Chapter shall companye into force on such date and in such district or part of a district as the State Government may, by numberification in the Official Gazette, appoint and for this purpose different dates may be appointed for different districts or parts of districts. Section 52 without its proviso, is as follows Application of Chapters 11, III, V and VII to raiyats and underraiyats. On the issue of a numberification under section 49 the provision of Chapters 11, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under- raiyat were a raiyat foe the purposes of clauses c and d of section 5 It is on record that by numberification No. 6804 L. Ref dated 9th April, 1956 published in Calcutta Gazette Extraordinary of the same day, Part 1, Page 47, Chapter VI came into force in all the districts of West Bengal with effect from the 10th April, 1956. It is clear from the aforesaid provisions of the Act that when numberifications are issued under Section 4, all estates and rights of every intermediary in each such estate, vest in the State, free from all incumbrances. The numberifications under that Section have to be issued so as to ensure that the whole area to which the Act extends vests in the State on or before 15th April, 1955 which companyresponds to the 1st day of the Baisakh to the Bengali year 1362 mentioned therein. When Chapter VI of the Act companyes into force by virtue of the numberification issued under Section 49, Section 52 which falls under that Chapter makes the provisions of Chapter II, among others, applicable also to the raiyats and the under-raiyats as if such raiyat and under-raiyat were intermediaries and the lands held by them were estates. In other words, Sections 4, 5, 5A and 5B, among others, of Chapter II become applicable to the raiyati and the under- raiyati interests on the issuance of such numberification. In the present case, as stated above, the numberification under Section 49 was brought into force w.e.f. 10th April, 1956. It was number given retrospective effect from 15th April, 1955. The effect of this numberification was that by virtue of Section 4 the intermediary interests stood vested in the State at the latest from 15th April, 1955 while the raiyati and the under-raiyati interests stood vested in the State with effect from 10th April, 1956. The restriction on transfer of the said interests, however, came into effect retrospectively on or from 1st June, 1954 by virtue of Section 5B, since that date is mentioned in the Section itself. Hence there cannot be any dispute that numberestate, tenure or under tenure including raiyati and under-raiyati interests companyld be sold under the statutes mentioned in section 5B including the Tenancy Act with which we are companycerned, on and after 1st June, J954 and a sale after that date under any of those statutes would be void and have numbereffect under that Section. Admittedly, the present auction sales were held in execution of the decrees for the arrears of rent under the Tenancy Act and took place on 6th November and 3rd December, 1954 respectively. What came to be sold under the said sales were the raiyati interests of the judgment debtors, and the respondents were entered in the record-of-rights as raiyats in place of the original raiyats on the basis of the said sales. The High Court has rightly held that the effective date in Section 5B for prohibition of the sales of raiyati and under-raiyati holdings under the statutes mentioned therein, is 1st January, 1954 as is provided therein. This companyclusion of the High Court is number challenged before us. However, the High Court has further held that Section 5B does number operate as a bar against the sale of raiyati or underraiyati interests if the execution of the rent-decree is treated as an execution of money-decree under the Code of Civil Procedure hereinafter referred to as the Code. According to the High Court, the sale made pursuant to the execution of the money decree under the Code even though for rent, and of the raiyati or underraiyati interest-holder, would number be a sale under the statutes mentioned in Section 5B including the Tenancy Act. It is this companyclusion of the High Court which is under challenge before us. In order to arrive at the said companyclusion, the High Court has reasoned that Section 5B only declares void, sales of tenures of holdings under the statutes mentioned therein but does number prohibit the sales under the Code. According to the High Court, the Section has numberconcern with other sales since the tenure or holding was transferable and inheritable under the provisions of the Tenancy Act and other companynected regulations till the estates vested in the State w.e.f. 15th April, 1955 by numberification issued under Section 49 of the Act. We are afraid that the interpretation placed by the High Court ignores some obvious provisions of law. In the first place, it, is number companyrect to say that the sale or transfer of the holding or tenure, was permissible till the estates vested in the State. Section 5A of the Act applies to the case of transfer of any land by an intermediary, made between the 5th May, 1953 and the date of vesting. Under that section, the legislature has given power to the.State Government to make an inquiry into the question whether such a transfer was bonafide or number, and if the State Government came to the companyclusion that the transfer was number bonafide, companysequences stated in the said section followed. It cannot be suggested that the voluntary transfers of the tenure or under-tenures or raiyati or under-raiyati interests in the estates, the sale of which is prohibited under the relevant statutes mentioned in Section 5B, is number companyered by Section 5A of the Act. Secondly, the Tenancy Act is a piece of legislation which amends and companysolidates certain enactments relating to the law of landlord and tenant. Under section 3 6 of that Act landlord is defined as a person immediately under whom a tenant holds, and includes the Government while under Section 3 17 of that Act tenant is defined as a person who holds land under another person, and is, or but for a special companytract would be, liable to pay rent for that land to that person. The classes of tenants mentioned under Section 4 of that Act include i tenure-holders, including under-tenure-holders, ii raiyats, and iii under-raiyats. The said Act further exclusively governs the relations between the landlord and the tenant as is evident from the provisions of that Act. Itis number necessary to refer to all the said provisions. Suffice it to say that the matters relating to the fixation, payment and enhancement of rent, the grounds of ejectment of the tenant and the procedure for their ejectment, transfer and surrender of tenancies, improvements on land, record of rights, the occupancy and number-occupancy rights, the judicial procedure to be followed in suits between landlord and tenant, the sale of interests in land for arrears under a decree, the restrictions on the exclusion of the provisions of the Act by agreement between the landlord and the tenant, the limitation for suits to be filed under the Act, the penalties for illegal interference with the produce of the land, damages, for denial of landlords title, and even matters relating to the agents and representatives of landlords are all subjects regulated by the said Act. We are companycerned in the present case with regard to the suit for the arrears of rent and with the execution of the decree obtained in such suit. Chapter XIII which companytains Sections 143 to 158 relates to the judicial procedure to be followed in suits between the landlord and the tenant. Section 143 gives power to the High Court to make rules from time to time with the approval of the State Government companysistent with the said act declaring that any portion of the Code shall number apply to suits between landlord and tenant as such or to any specified classes of such suits, or shall apply to them subject to modifications specified in the rules made by the High Court. Subject to any rules so made and subject also to the other provisions of the said Act, the Code applies to all suits between the landlord and the tenant. Section 144 companyfers jurisdiction on the suits under the Act on the civil companyrts which would have jurisdiction to entertain a suit for the possession of the tenure or holding in companynection with which the suit is brought. The section also makes clear that numbersuit between landlord and tenant under the Act shall be instituted in any companyrt other than such companyrt. Section 145 specifies the persons who can be recognised agents of the landlord, and the manner in which they are to be authorised by the landlord to be his agents, and numberwithstanding anything companytained in the said Act, every such agent is empowered to verify the pleadings on behalf of the landlord without the permission of the Court. Section 146 ordains that the particulars of the suits between the landlord and the tenant should be entered in a special register to be kept by each civil companyrt in such form as the State Government may prescribe in this behalf instead of in the register of civil suits prescribed by the companyrt. Section 146A makes a special provision for joint and several liability for rent of companysharer-tenants numberwithstanding anything companytained in the Contract Act. Section 146B likewise lays down a special procedure in rent suits against companysharer-tenants numberwithstanding anything companytained in the Limitation Act. Section 147 prevents a landlord from instituting successive rent suits against a raiyat except under circumstances mentioned therein. Section 147A prevents the Court from wholly or partly adjusting by agreement or companypromise, any suit between landlord and tenant unless the agreement can be enforced under the said Act, viz., the Tenancy Act. This provision again is made numberwithstanding anything companytained in this behalf under the Code. Section 148 then lays down a special procedure to be followed in rent suits. It states in clause a thereof that Sections 68 to 72 of the Civil Procedure Code and rules 1 to 13 of Order XI, rule 83 of Order XXI and Rule 2 of Order XLVIII in Schedule 1 of the said Code and Schedule III thereof shall number apply to such suit. Clause b thereof states that the plaint in such suit shall companytain in addition to the particulars specified in the companye, certain additional particulars which are mentioned therein. Clauses c and d require further particulars in such plaints in certain situations mentioned therein. Clause e thereof states that the summons shall be for the final disposal of the suit unless the companyrt is of opinion that it should be for the settlement of issues only. Clause f lays down a special mode of service of summons if the High Court by rule so directs and also permits the Court to presume service of summons in certain circumstances. Clauses g and h similarly relate to the special procedure of summons in such suits. Clause i requires leave of the Court to file a written statement. Clause i makes the rules for recording the evidence of witnesses companytained in rule 13 of Order XVIII in Schedule 1 to the Civil Procedure Code applicable in the trial of such suits, whether an appeal is allowed or number. Sub-clause j of Clause k permits a Court to issue a special summons under certain circumstances numberwithstanding anything companytained in the Code and Sub-clause ia thereof, and also provides for the procedure for effecting the service of the special summons and Sub-clause ii provides for the companysequences for the number-appearance of the defendants in answer to such special summon. Clause m permits the Court to order execution of oral application of the decree-holder unless the decree is for ejectment for arrears. Clause n requires the Court number to insist on a fresh vakalatnama or to file a companyy of the decree for the purpose of executing the decree numberwithstanding any thing companytained in the Code. Likewise, numberwithstanding anything companytained in the Code. Clause o prohibits an application for the execution of a decree for arrears by an assignee of the decree unless the landlords interest in the land is vested in such assignee. Section 148A permits a companysharer-landlord to sue for rent in respect of his share in the tenure. Section 149 requires the defendant to deposit the amount in Court once he admits that money is due from him even though he pleads that it is number due to the plaintiff but to a third person. Section 150 likewise requires the defendant to deposit the admitted amount due to the landlord numberwithstanding the defendants plea that the plaintiff s claim is in excess of the amount due. Section 153 then provides for appeals in rent suits and while doing so, lays down companyditions under which the appeal will lie and will number lie. Section 153A lays down special companyditions under which an application to set aside decree, or for review of the judgment won Id lie. Section 154 provides for the dates from which the decree for enhancement of rent would take effect. Then companyes Section 155 which provides for relief against forfeiture under certain circumstances and Section 156 lays down the rights of ejected raiyats and under-raiyats in respect of crops and land prepared for sowing. Section 157 lays down special power of the Court to fix fair rent as alternative to ejectment. Section 158 gives power to the Court to determine incidence of tenancy on the application either of the landlord or tenant. Chapter XIV of the Act provides for Sale for arrears under Decree. We are directly companycerned with the said Chapter. Section 159 thereof details general powers of purchaser as to avoidance of incumbrances. Section 160 mentions the protected in terests within the meaning of the said Chapter. Section 161 gives a special meaning of incumbrance and registered and numberified incumbrance for the purpose of the said Chapter. Section 162 gives the particulars of the statement which a decree-holder has to produce when he makes an application for attachment and sale of the tenure or holding in execution of the decree. Section 163 makes special provision for a companybined order of attachment and proclamation of sale to be issued numberwithstanding anything companytained in the companye on the subject. Section 164 provides for the sale of tenure or holding subject to registered and numberified incumbrance and the effect thereof. Section 165 is another special provision which provides for sale of tenure or holding with power to avoid all incumbrances and states the effect thereof. Likewise, Section 166 makes provision for sale of occupancy holdings with power to avoid all incumbrances and for the effect thereof. Section 167 gives procedure for annulling incumbrances under Sections 164, 165 or 166. Section 168A with which we are directly companycerned in the present case then states as follows 168A. Attachment and sale of tenure or holding for arrears of rent-due thereon, and liability of purchasers thereof. 1 Notwithstanding anything companytained elsewhere in this Act, or in any other law, or in any companytract- a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree,or a certificate for such arrears signed under the Bengal Public Demands Recovery Act, 1913, shall number be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree or certificate relates Provided that the provisions of this clause shall number apply if, in any manner other than by surrender of the tenure or holding, the term of the tenancy expires before an application is made for the execution of such a decree or certificate b The purchaser at a sale referred to in clause a shall be liable to pay to the decree-holder or certificate-holder the deficiency, if any, between the purchase price and the amount due under the decree or certificate together with the companyts incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the companyfirmation of the sale. 2 In any proceeding pending on the date of the companymencement of the Bengal Tenancy Amendment Act, 1940, in execution of a decree or certificate to which the provisions of sub-section 1 apply, if there has been attached any immovable property of the judgment-debtor other than the entire tenure or holding to which the decree or certificate relates, and if the property so attached has number been sold, the Court or Certificate- officer as the case may be shall, on the application of the judgment-debtor, direct that, on payment by the judgment- debtor, of the companyts of the attachment, the property so attached shall be released. 3 A sale referred to in clause a of sub- section 1 shall number be companyfirmed until the purchaser has deposited with the Court or Certificate-officer, as the case may be, the sum referred to in clause b of that sub- section. We will revert to this section soon. Section 169 provides for special rules for disposal of the sale proceeds instead of the rules companytained in the Code. Similarly, Section 170 provides for circumstances under which tenancy of holding is to be released from attachment numberwithstanding the provisions of the Code in that behalf. Section 173 enables a decree-holder to bid for the purchase of the tenure or holding in an auction-sale without the permission of the Court which is against the provisions of the Code. Section 174 provides for application to set aside the sale and makes the relevant provisions of the Code inapplicable in certain circumstances. Section 174A provides for the circumstances under which sale shall become absolute or shall be set aside and purchase money will be returned. It is also necessary to refer to Section 178 in Chapter XV of the Act which expressly provides for restrictions on the exclusion of the Act by agreement between the parties. Sub-section c, in particular of that section, states that numberhing in any companytract between a landlord and a tenant made before or after the passing of the said Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the said Act. Section 184 provides for special limitation in suits, appeals and applications filed under that Act and Section 185 makes certain provisions of the Limitation Act inapplicable to such suits. Section 186 provides for penalties for illegal interference with produce. Section 186A provides for damages for denial of landlords title. Section 187 gives landlord power to act through agents. These are all the provisions which are necessary for us to numberice. It will be apparent from the said provisions that the Act is a self-contained Code governing the relations between the landlord and the tenant, for resolution of their disputes, for the suits to be filed by them, for the procedure to be followed in such suits and the companyditions on which decrees may be passed in such suits, for the execution and satisfaction of the said decrees. The Act incorporates certain provisions of the Code in toto while others with modification. At the same time, it makes still other provisions inapplicable to the proceedings in the suit filed under it. The Act by implication prevents any suit between landlord and tenant to be filed otherwise than under its provisions. Thus all proceedings in the suit filed under the Act from its inception to the satisfaction of the decree are to be governed by its provisions and the provisions of the Code are applicable to such proceedings only to the extent and subject to the companyditions stated therein. The Code as such is number applicable to the proceedings or to any part of it and hence numberpart of the proceedings can be prosecuted under the Code. It is thus clear that even if simple money-decree is obtained for the arrears of rent, numberinterest of the tenant can be brought to sale in execution of such decree except under the provisions of the Act. In other words, numbersuch interest can be sold under the Code an independently of the Act. Secondly, if any doubt in that behalf was left, it is removed by the provisions of Section 168A. The said section which is reproduced above begins with the number-obstante clause which excludes all other provisions of the Tenancy Act itself as well as of any other law and the provisions of any companytract as well. Clause a of that section states that a decree for arrears of rent whether having the effect of a rent-decree or a money decree or even a certificate for such arrears under the Bengal Public Demands Recovery Act, 1930 shall number be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree or certificate relates. That provision will number apply only if the term of the tenure has expired before an application is made for the execution of such decree or certificate. What is further, when the entire tenure or holding is purchased in execution of a decree for arrears of rent in respect thereof, Clause b of sub-section 1 of that section provides that the purchaser shall pay to the decree- holder or certificate-holder, as the case may be, the deficiency, if any, between the purchase price and the amount due under the decree or the certificate, together with the companyt incurred for the auction sale and also the rent which may have become due between the date of the institution of the suit and the date of the companyfirmation of the sale. This provision is inconsistent with the provisions of the Code. The High Court has held that the said-Section 168A 1 stands impliedly repealed by the vesting in the State of the interests of the intermediary which include raiyati and under-raiyati interests and attract the proviso thereunder leaving the decree-holder free to execute his decree as money-decree in view of Section 5B of the Act, against any other property of the judgment-debtor, tenureholder or tenant. There is numberdoubt that after the intermediary interests vest in the State, they cannot be brought to sale and the remedy of the decree-holder is to proceed against other property of the judgment-debtor, if any. In that event, Section 168A would number companye in the picture. However, the High Court has gone further and observed as follows In Bithika Maitys case, it was companyrectly decided that the effective date in section 5B in respect of raiyati and under-raiyati holdings is also the first day of June 1954. The decision however failed to take numberice that the impugned sale therein held on September 10, 1954 companyld be treated a,, a sale under the Code of Civil Procedure as a sale in execution of a money decree. This aspect of the case was number taken in companysideration possibly because the case was heard exparte. We are accordingly unable to approve the decision that all sales between the first day of June 1954 to the vesting of raiyati interest are to be deemed as being under the Statutes mentioned therein and hence to be declared void as was summarily held by it. On the companytrary, such sales though deemed as invalid and of numbereffect under the aforesaid acts, are to be treated and will have the effect of sales under the Code of Civil Procedure in execution of money decrees, if otherwise valid. Accordingly accepting Mr. Mitras companytention, we hold that the name of the opposite party being auction- purchaser of the right, title and interest of the judgment-debtor was validly recorded as raiyat in respect of the disputed holdings in the finally published record-of-rights in place and stead of defaulting judgment-debtors who held the sake sic holdings. It is difficult to appreciate these observations which are self-contradictory. There is a companyflict of view on the question as to when the raiyati and the underraiyati interests vested in the State, viz., whether on 15th April, 1955 when Section 4 became applicable to them by virtue of the retrospective operation of Sections 49 and 52 or on 10th April 1956 when the numberification under Section 49 was issued. It is number necessary for us to go into that question on the facts of the present case number was the question debated before us. Hence we would refrain from expressing any opinion on the point there is, however, numberdispute before us that the sales even of raiyati and under-raiyati interests effected after 1st June, 1954 were invalid under Section 5B of the Act. Hence, the sales of the raiyati interest in the present case effected on 6th November, 1954 and 3rd December, 1954 were obviously invalid. After 15th April, 1955 or 10th April, 1956, as the case-may be, according to the companyflicting views of the High Court , when the raiyati and under-raiyati interests came to be vested in the State, numbersale companyld have been held of those interests, and the decree-holder would have been required to proceed against the other properties of the judgment-debtor. However, admittedly in the present case it is the raiyati interests of the judgment-debtor in the land in question which were sold. Hence, the sales were void. The High Court has reasoned that the sales can be treated as being pursuant to a money-decree and, therefore, under the Code and independently of the Tenancy Act. The High Court unfortunately missed the vital fact that whether, it is a money-decree or a rent-decree, the entire raiyati interests of the judgement-debtor in the land in question had to be sold under the said Section 168A, but companyld number be sold in view of the bar imposed by Section 5B of the Act. The bar cannot be overcome by treating the sale under the Code to circumvent the provisions of the Tenancy Act and in particular of Section 168A of that Act. We have already pointed out that the decree pursuant to the suit under the Tenancy Act cannot be executed except under the provisions of that Act. There cannot, therefore, be a sale of the property in question pursuant to such decree under the provisions of the Code. What is further, the intention of the legislature in enacting Section 5B was to prevent sales of the intermediary interests after 1.6.1954. In view of the provisions of the Tenancy Act, the said interests companyld be sold only under and in accordance with the provisions of that Act. The sale of such interests in the land pursuant to a decree for arrears of rent in respect of that land companyld number therefore be made under the Code. Admittedly in the present case, the raiyati interests were sold after 1.6.1954 in execution of the decree for arrears of rent in respect of the land in question. Hence the proceedings initiated by the Assistant Settlement Officer to revise the entries in the record-of-rights made in favour of the auction-purchaser and the orders passed by him on January 8 and 27, 1971 recording the name of the former raiyats as raiyats with possession of the lands and deleting the names of the auction-purchaser, were valid. We, therefore, set aside the impugned decision of the High Court and restore that of the Assistant Settlement Officer. The appeals are allowed accordingly.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2544 of 1993. From the judgment and Order dated 7.5. 1992 of the Calcutta High Court in Appeal No. Nil of 1992 in Matter No. 21 of 1991. S, Poti, and S.K. Nandy for the Appellant. Parasaran, A.K. Ganouli, G.K. Banerjee and. Som Mandal for the Respondent. The Judgment of the Court was delivered by. M. SAHAI, J. The short and the only question of law that arises for companysideration in this appeal is if an appeal was maintainable against an order passed by the Learned Single Judge under Section 39 1 of the Arbitration Act either under Section 39 2 of the Act or under the Letters patent jurisdiction. Facts are number in dispute. Since the State did number appoint any arbitrator as provided for in clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department P.W.D and the Secretary P.W.D. the respondent approached the High Court and a Learned Single Judge by order dated 6th September, 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri D.K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as number maintainable. It has been held that the appeal was number maintainable either under Section 39 2 or under Letters Patent. It is the companyrectness of this view that has been assailed in this appeal. Section 39 of the Arbitration Act came up for companysideration in Union of India v. Mohindra Supply Company 19621 3 S.C.R. The Court after going into detail and examining various authorities given by different High Courts held that number second appeal lay under Section 39 2 against a decision given by a Learned Single Judge under Section 39 1 . In respect of the jurisdiction under Letters Patent the Court observed that since Arbitration Act was a companysolidating and amending act relating to arbitration it must be companystrued without any assumption that it was number intended to alter the law relating to appeals. The Court held that in view of bar created by sub-section 2 of Section 3 9 debarring an, second appeal from an order passed in appeal under sub-section 1 the companyclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39. Therefore, so far the second part is companycerned, namely, the maintainability of the appeal under Letters Patent it stands companycluded by this decision. The Learned companynsel for the appellant vehemently argued that since the decision by the Supreme Court was in respect of an appeal directed against an order passed by a Learned Single Judge in exercise of appellate jurisdiction numbersecond appeal lay but that principle companyld number be applied where the order of Learned Single Judge was passed number in exercise of appellate jurisdiction but original jurisdiction. The argument appears to be without any substance as Sub-section 1 of Section 39 which is extracted below An appeal shall lie from the following orders passed under this Act and from numberothers to the Court authorised by law to hear appeals from original decrees of the Court passing the order An order- superseding an arbitration on an award stated in form of a special case modifying or companyrecting an award filing or refusing to file an arbitration agreement staying or refusing to stay legal proceedings where there is an arbitratio agreement setting aside or refusing to set aside an award Provided that the provisions of this section shall number apply to any order passed by Small Cause Court. No second appeal shall lie from an order passed in appeal under this section, but numberhing in this section shall affect or take away any right to appeal to the Supreme Court. provides that an appeal companyld lie only from the orders mentioned in the subsection itself Since the order passed by Learned Singe Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was number companyered in either of the six clauses mentioned in Section 39 it is obvious that numberappeal companyld be filed against the order of the Learned Single Judge. Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Court was number empowered to appoint anyone else. The submission is devoid of any merit. It is number made out from the agreement. Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such. Relevant portion of the agreement is extracted below Should the Chief Engineer be for any reason unwiling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final, companyclusive and binding on all the parties to this companytract. In one of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of anon-technical arbitrator was number justified. Here in this the High Court has appointed a retired Chief Engineer and number a number-technical man. No allegation has been made against him. Therefore, the order of the learned Single Judge also does number suffer from any infirmity. In the Circumstances the view taken by the Division Bench dismissing the appeal as number maintainable appears to be well founded.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2914-16 of 1993 etc. etc. From the Judgment and Order dated 23.3.1993 and 29-3- 93 of the Madras High Court in W.P. Nos 15081/91, 8002/92 and 16068/91. WITH Civil Appeal Nos. 2937/93 3040-40A-B/93 3026-27/93 3025/93 3015-24/93 3028/93 3084/93 3002/93 3032/93 2993-94/93 3003-04/93 3086-87/93 2995/93 3005-07/93 2987-89/93 3014/93 3008-10/93 3086-87/93 2940-41/93 3011-301 IA/93 2998-3000/93 2986/93 3101-07/93 2992/93 3108/93 2982-82A/93 2983-85/93 3029-31/93 3093-94/93 2943-44/93 2955-57/93 2996-97/03 3042-3080/93 3035/93 3039/93 3041/93 3095/93 3033-34/93 3090-92/93 3096-97/93 2981/93 3088-89/93 2979/93 2976-77/93 2960-61/93 2990/93 2968/93 2958-59/93 2971/93 2978/93 2972/93 2942/93 3082-83/93 2969-70/93 2965-67/93 2991/93 2973-75/93 3036-38/93 2962-64/93 3085/93 3127-29/93 3012-13/93 3018/93 2938-39/93 2990/93 2945-54/93 WITH Special Leave Petition CIVIL Nos. 7375, 8009-11, 8108, 7416, 7560-62 OF 1993. Shanti Bhushan, K.K. Venugopal, Soli J. Sorabjee, N. Santosh Hegde, Shivasubramaniam. K. Parasaran, P. Chidambaram, Mrs. Revathy Raghavan, M.A. Krishna Moorthy, Kailash Vasdev, Pawan Kumar, B. Rabu Manohar, Dr. A. Francis Julian For M s. Arputham, Aruna and Co. , P. Chandrasekhran, Aruneshwar Gupta, A. Chandrasekar, Pushpendra Singh Bhati, Ramajagadesan, V. Balachandran, V. Krishnamurthy, K.V. Vijaya Kumar, Ajit Kumar Sinha, Selvar thenave, Martin, K.V. Mohan, R. Mohan, R. Nedumaran, and P.D. Dinakaran for the Appellants. R. Seetharaman for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH,J.These bunch-appeals are by the Teachers Training Institutes in the State of Tamil Nadu. They claim to be the minority educational institutions in terms of Article 30 1 of the Constitution of India. The State Government has declined to recognise these institutes on lie ground that they have failed to satisfy the companyditions for grant of recognition as provided under the Tamil Nadu Minor- ity Schools Recognition and Payment of Grants Rules, 1977 as amended by the Government Order No. 536 dated May 17, 1989 and Government Order No. 861 dated June 12, 1991. Recognition Rules The appellants challenged, before the Madras High Court by way of writ petitions under Article 226 of the Constitution, the validity of the Recognition Rules. inter alia, on the ,rounds that the said Rules are violative of Articles 30 1 and 14 of the Constitution of India. A Division Bench of the High Court companysisting of M. Srinivasan and Thangamani, JJ, dismissed the writ petitions. M. Srinivasan J., who spoke for the Bench, has given a scholarly judgment. The case-law on the subject has been dealt with in detail and the companyclusions culled out succinctly.The High Court judgment has been of utmost assistance to us. These appeals via special leave are by the Teachers Training Institutes against the judgment of the Division Bench of the High Court. We announced our companyclusions in these matters--dismissing the appeals and special leave petitions--on May 25, 1993. Now we proceed to give our reasoned judgment. The Recognition Rules provide for instructions and teaching practice to be followed, minimum qualifications for teaching and number-teaching staff and the following additional Conditions to be satisfied by a teachers training institute to quality for grant of recognition The Teachers Training Institute should have at least 10 acres of suitable land of its own to he used for companystruction of Building for Institution and Administration and for Hoste accommodation and staff quarters and also for Play Ground purposes, The Institution Building must companysist of suitable rooms to provide for class rooms with roughly 60 sq. feet of carpet area per inmate one Auditorium cum projection hall with an area of about 2000 Sq. feet. Laboratory and Special Rooms. Library Staff-rooms separately for Men and Women staff, Principals Room, Off-ice Room, Store Room for Craft and Physical Education articles. Toilet facili- ties separately for men and women and womens Common Room Bath rooms and toilets should be provided. if the Institution is meant for both sexes separate Such facilities should be provided for men and women teaching staff number-teaching staff and men and women candidates. As far as bath rooms and toilets are companycerned arrangements should he made at the rate of one for ten inmates. 4. a Adequate furniture and office equipment including furnitures for class rooms, Library, Laboratory and other rooms should be provided to the value of at least a lakh of rupees, Laboratory equipments worth at least a lakh of rupees should be provided for Science, Geography, Home Teaching appliances. audio visual aids, charts, maps etc. worth about Rs. 50,000 should be provided. Sports Games Arts Music Equipments worth about Rs. should be provided. Equipment and Material for work experience worth about Rs. 50,000 should be provided. A room with a space of approximately 1000 sq. ft. with sufficient storage space to keep the equipment furnishing to organise various learning situations, and provision to observe the trainees at work in the laboratory situations. without being numbericed has to be provided. Sufficient furnitures such as, working tables and almirahs should be provided. Each Teacher Training Institution should have a good library with at least 10,000 volumes of back and reference books worth at least a lakh of rupees Play ground space for sports, gymnastics and other Physical Education activities with an area about 5 acres should be provided. If the Institute is meant for both sexes, another 3 acres of and should he provided exclusively for women candidates. The Play ground should he provided adjacent to the main Institution building within the campus and number in a remote place away from the Institution, At least one full fledged recognised Middle School with Standards I to VIII should be functioning under the same management of every Teacher Training Institute seeking recognition, for the purpose of providing teaching practice to the trainess. This will be a precondition even at the time of sending in applications for recognition of Teachers Training Institutes. The practical aspects of the Training will be assessed by a companypetent board to be companystituted by the companycerned authority. 9. a The need for the opening of the institution in that area will be assessed by a District Committee with a Joint Director numberinated by Director of School Education as Chairman with Chief Educational Officer and District Educational Officer Inspectors of Girls Schools as members as the case may. This companymittee will submit a report about satisfaction of numberms based on which the companypetent authority will companysider Recognition for the institution, The Authority companypetent to grant recognition shall take into account the need for granting such recognition to Teacher Training Institutes taking into companysideration the trained teachers already available and waiting for appointment and potential to. absorb the Teachers to be trained in future in the services of Government and Private Schools. There should he economic strength as prescribed by the education department. The teachers training institutes should number admit more than forty students in all for the companyrse and should number exceed this limit either in the first or second year. It was argued before the High Court that as the minorities have a fundamental right under Article 30 1 of the Constitution to establish and administer educational institutions of their choice, the companyditions provided under the Recognition Rules are wholly arbitrary and have been designed to oust the appellants from the educational-fieled and the provisions regarding, having a middle school. ten acres of land, play grounds, library with 10,000 books, laboratory, hostel, staff quarters, bathrooms for students etc. etc. are so onerous that it is difficult rather impossible to companyply with the same. While dealing with the argument based on Article 30 1 of the Constitution of India the High Court discussed in detail the judgments of this Court in Kerala Education Bill1959 SCR 995, Rev,. Sidhajbhai Sabhai Ors. v. State of Bombay and Anr 1963 3 SCR 837. S Azeez Basha v. Union of India 1968 1 SCR 833, State of kerala etc, v. Very. Rev. Mother Provincial etc, 1971 1 SCR 734-, Regina v. St. Aloysius Higher Elementary School and Anr, 19711 Supp. SCR The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Anr. 19751 2 SCC 283, Lilly,. Kurian v. Sr. Lewina and Ors, 1 979 1 SCR 820,All Saints High School, Hyderabad etc. etc. v. Government of Andhra Pradesh Ors. etc 1980 2 SCR 924 The Managing Board of the Milli Talimi Mission, Bihar Ranchi Ors. v. The State of Bihar Ors., 1985 1 SCR 410, A.P. Christians Medical Educational Society v. Government ofAndhra Pradesh and Anr 1986 2 SCC 667, Frank Anthony Public School Employees Association v. Union of India and ors,19864 SCC 707,All Bihar-Christion Schools Association andAnr. v. State of Bihar and Ors 1 988 1 SCC 206 St. Stephens College v The University of DelhiJT 19914 SC 548 Unni Krishnan andAnr. v. State ofAndhra Pradesh and Ors. Writ Petition C No. 607/92 decided on February4,1993 and TheAhmedabad St Xaviers College Society Anr. etc. v. State of Gujarat and Anr 1 975 1 SCR 173. On the analysis of the above judgments the High Court culled-out the following principles The fundamental right declared by Article 30 1 of the Constitution is absolute in terms, but subject to regulatory measures, There is numberfundamental right under Article 19 1 g of the Constitution to establish or administer an educational institution, if recognition is sought therefor The institutions must be educational institutions of the minorities in truth and reality and number mere masked phantoms, There is numberfundamental right to recognition and any institution seeking recognition should abide by the regulations,prescribed by the State as companyditions therefor The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests of the minority institutions themselves and number based on State necessity or general societal necessities The regulations should be with a view to promoting excellence of educational standards and ensuring security of the services of teachers and others employees of the institutions and in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like, Even unaided institutions are number immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society, No fault can he found with the above quoted legal principles enunciated by the High Court. Mrs. Kitty Kumar Manglam. Mr. Shanti Bhushan, Mr. K.K. Venugopal. Mr. K. Parasaran, Mr. P. Chindambram and other learned companynsel appearing for the appellants fairly companyceded that the High Court has companyrectly summed upthe companyclusions arising out of the interpretation of Article 30 1 of the Constitution of India. Before dealing with the Recognition Rules the High Court referred to the Guidelines framed pursuant to the National Educational Policy introduced in the year 1986, the recommendations of the Education Commission 1964-1966 , the role of the National Council for Teacher Education under the National Council of Educational Research and Training, the views of various eminent educationists and came to the companyclusion that there is a need for drastic change in the basic companycept of teachers training in the companyntry. Comprehensive overhauling of administrative structure of these institutions was urgently needed. The High Court dealt-with in detail the revised syllabus for the diploma in teacher education companyrse and also the curriculum of the institutes of Education Training set up by the Tamil Nadu Government which shows that the State.of Tamil Nadu is in the process of overhauling the methodology of teaching and administration of the teachers training institutes in the State of Tamil Nadu. The High Court referred to various judgments of this Court wherein the importance of teacher training and need to uplift the standard of such institutions was repeatedly highlighted. The High Court rightly emphasised the need for maintaining very high standards of Education, Sports, administration and maintenance of the Teachers Training Institutes. These Institutions are established with the avowed object of training teachers and educationists who have to shoulder the responsibility of moulding the nation. This Court in N.M. Nageshwaramma v. State of Andhra Pradesh Anr. 1986 Supp SCC 166 observed as under- The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose. on the innocent and unwary children, teachers who have number received proper and adequate training. True they will be required to pass the examination but that may number be enough. Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched. Jagannatha Shetty, J. speaking for this Court in Andhra Kesari Education Society v. Director of School Education Ors. J.T. 1988 4 S.C. 431 observed as under Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education. The teacher alone companyld bring out the skills and intellectual capabilities of students. He is the engine of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing companyditions. He is number to perform in a wooden and unimaginative way. He must eliminate fissipasrous tendencies and attitudes and infuse numberler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore. needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or sub- standard teachers would be detrimental to our educational system, if number a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is number companypounded by any extraneous companysideration. In State of Maharashtra v. Vikas. Sahebrao Roundale Ors.,.J.T 1992 5 C. 175, K. Ramaswamy, J. speaking for this Court observed as under- The teacher plays pivotal role in moulding the career,character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher companyld bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to companye up with the psychological approach to the aptitudes of the children to perform that pivotal role. In short teachers need to he endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training companyleges or schools would inspire and motivate them into action to the benefit of the students. For equipping such trainee students in a school or a companylege all facilities and equipments are absolutely necessary and institutions bereft thereof have numberplace to exist number entitled to recognition. In that behalf companypliance of the statutory requirement is insisted upon. Slackening the standard and judicial fiat to companytrol the mode of education and examining, system are detrimental to the efficient management of the education. The teacher-education programme has to be redesigned to bring in a system of education which can prepare the student-teacher to shoulder the responsibility of imparting, education with a living dynamism. Education being closely interrelated to life the well trained teacher can instill anesthetic excellence in the life of his pupil. The traditional, stereotyped. lifeless and dull pattern ofchalk. talk and teach method has to be replaced by a more vibrant system with improved methods of teaching. to achieve qualitative excellence in teacher-education. Keeping in view the National Policy of Education, the Government of Tamil Nadu has published, a revised syllabus for the diploma in teacher education companyrse. in the Government Gazette of August 15, 1990. The aims and objectives of the said syallbus and curriculum as given by the State of Tamil Nadu are as under- 1000 .LM15 A sound Programme of Elementary Teacher Education is inevi- table for the qualitative improvement of Education. Education must become all effective instrument of social change and the part played by the teacher should be suitable and significant for this purpose. The gap between the Teacher Education curriculum and the school curriculum has to he minimized for enabling the teachers to act as agents of social change which necessitates that the education imparted in schools has relevance to the personal as well as social life of individuals and to the needs and aspirations of the people. In order to be a catalyst in the process of developing a citizen who is productive and who believes in social justice and national integration, tile teacher himself needs to become such a citizen through appropriate learning experience. The High Court has examined the legality of the impugned Recognition Rules in the above background. It has discussed in detail the object and utility of laying down the impugned companyditions for recognition. The High Court has found that numbere of the companyditions infract Articles 14 and Article 30 1 of the Constitution of India. We agree with the reasoning and the companyclusions reached by the High Court. This Court cannot go into the question as to whether a Teachers Training Institute should be set up on a campus companysisting of 10 acres or 5 acres. It is also number for this Court to lay down the sizes of the class rooms. laboratories, number of toilets or the number of books to he kept in the library. It is entirely for the State Government to lay down tile requirements of a teachers training institute campus. The learned Advocate General appearing for the State of Tamil Nadu has companytended that the Recognition Rules are also applicable to Government run teachers training, institutes and also to the institutes which are Government-aided. According to him the new Recognition Policy of the Government has been designed with the object of closing the teaching shops and encouraging the genuine institutions. According, to him the policy is based on the Guidelines issued by the Central Government from time to time. He further stated that the companydition of having an area of 10 acres for the campus has number been reduced to five acres in case of the institutions which are set up within the area of Municipal Corporation. He has clarified that the only requirement for setting up the library is that it must have reference books worth at least a lakh of rupees. According to him the number of toilets. bathrooms etc. and other companyditions regarding the institute building are in the nature of guidelines and are to he substantially companyplied with. On our suggestion the learned Advocate General has agreed to companymand to the State Government. number to insist on additional 3 acres of land in case of company 1001 educational institutes in case these institutes are having 10 acres/5 acres of area as provided under the Recognition Rules. Mr. Shanti Bhushan appearing in civil appeals arising out of Special Leave Petitions No. 6762-63/93 has companytended that the appellants institutes started functioning in the year 1984. They were refused recognition and as such they challenged the order by way of a writ petition before the High Court. The learned companynsel has invited our attention to the judgment of the High Court dated November 3, 1987 in the said writ petition wherein it is held as under Consequently, the orders of the respondents 2 and 3 are set aside a writ of mandamus will issue directing the third respondent to grant recognition to the petitioner-institute with effect from 27th September, 1984. This writ petition is allowed with companyts. Mr. Shanti Bhushan companytended that the impugned Recognition Rules cannot be made applicable to the institutions which have already been established and given recognition by the State Government under directions of the Court. Relying upon the above quoted judgment of the High Court learned companynsel has companytended that his clients were given recognition with effect from 1984 under the directions of the High Court and as such the impugned Recognition Rules which came into force in the year 1989 cannot be made applicable to them. It is number disputed by Mr. Shanti Bhushan, that under the directions of the High Court temporary recognition was given to his clients, though according to him the order of the Government granting temporary recognition was challenged before the High Court- and the said petition was also disposed of by the impugned judgment. We see numberforce in the companytention of the learned companynsel. All those institutes which did number have permanent recognition before the issue of the Recognition Rules are bound to companyply with the said companyditions before they are entitled to permanent recognition. The High Court was justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall to companyply with the recognition rules to enable them to earn recognition. Mr. K.K. Venugopal companytended that a distinction has to be made between the institutions which are functioning earlier to the companying into force of the recognition rules and those which have applied for recognition for the first time. According to him change-over period should be given to the existing institutes which are functioning on the basis of temporary recognition. We do number agree with Mr. Venugopal. The training institutes which are functioning on the basis of 1002 temporary recognitions are neither properly organised number fully equipped to train the teachers. These institutes have done more harm than good to the cause of education. Mr. Venugopal and Mr. K. Parasaran have further argued that the students who have already taken the examinations, their results be directed to be declared and if successful, certificates be awarded to them. Mr. Chindambram, appearing for some of the appellants, has argued that there are students who have already taken the examination and their results have also been declared but they have number been given certificates on the ground that the institutes which sponsored them have number been recognised. It is numberdoubt companyrect that temporary recognitions have been granted to some of the institutions either under the orders of the Court or otherwise and the students of such institutions were permitted to write the examinations. In number of cases under orders of the Court permission to the students to write the examinations have been given. The High Court also directed in some cases to publish the results of the students who wrote the examination in April 1992 All these situations were brought to the numberice of the High Court in Writ Petition No. 3674 of 1992 and Writ Petition No. 5469 of 1993 which were heard together. The High Court refused to grant relief to the students who had written the examination or who had passed the examination and were being denied the certificates. The High Court observed as under Based on the above orders, learned companynsel for the petitioner companytends that the students of the petitioner-Institution have validly written the examination when the order of recognition was in force and the results of the examination have already been published, pursuant to the orders of this Court. It is companytended that the students of the petitioner are certainly entitled to the companysequential relief of issue of certificates. Another interlocutory application is number filed in WMP No. 5469 of, 1993 on 22.2.93 for a direction to the third respondent to publish the results of the students who wrote the examination held in July 1992. In similar cases, we have given directions to the authorities to publish the results. But, we have taken care to observe that such publication of results will number companyfer any right on the students as the Institutions have number companyplied with the rules framed in GOMS. No. 536. They cannot take advantage of the interim orders passed by this companyrt directing the government to grant temporary recognition Orders of such temporary recognition 1003 are expressly made subject to the result of the main writ petitions. Now, we have held that GO Ms. No. 536 is valid and the orders of temporary recognition will number companyfer any other remedies on the students of the petitioner. So far as these institutions are companycerned, they should be treated only as number- recognised. Just because the students have written the examinations and results are published, they are number entitled to any further relief. The writ petition is dismissed with the above observations. It has companye to the numberice of this Court that many institutions claiming themselves to be minority institutions within the meaning of Article 30 1 of the Constitution, invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions in question as minority institutions and pending the final disposal of such applica- tions, an interim direction is sought to allow the students of such institutions to appear at the examinations companycerned. In companynection with such interim prayer, this Court in the case of A. P. Christians Medical Educational Society v. Government of Andhra Pradesh supra said- Shri K.K. Venugopal, learned companynsel for the students who have been admitted into the MBBS companyrse of this institution, pleaded that the interests of the students should number be sacrificed because of the companyduct or folly of the management and that they should be permitted to appear at the University examination numberwithstanding the circumstance that permission and affiliation had number been granted to the institution. He invited our attention to the circumstance that students of the Medical companylege established by the Daru Salam Educational Trust were permitted to appear at the examination number with standing the fact that affiliation had number by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions Lo the University to protect the interests of the students. We do number think that we can possibly accede to the request made by shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to-which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law that a direction by the companyrt to disobey the laws. 1004 In view of the aforesaid pronouncement of this Court, the High Court should number have passed, interim order directing the respondents to allow the teachers of unrecognised institutions to appear at the examinations in question. Such teachers cannot derive any benefit on basis of such interim orders, when ultimately the main writ applications have been dismissed by the High Court, which order is being affirmed by this Court. The same view has been expressed by this Court, in companynection with the minority unrecognised teachers training institutions in the State of Tamil Nadu itself, in the case of State of Tamil Nadu and others v. St. Joseph Teachers Training Institute and another 1991 3 SCC As such numberequity or legal right can be pleaded on behalf of the Teachers admitted for training by such minority institutions, for publication of their results, because they were allowed to appear at the examinations companycerned, during the pendency of the writ applications before the High Court, on basis of interim orders passed by the High Court, which were in companyflict with the view expressed by this Court in the aforesaid cases. We see numberground to differ with the view taken by the High Court. This companyrt in N.M. Nageshrammas case supra has held that training in a properly organised and equipped training institute is essential before a candidate becomes qualified to receive teachers training certificate. Simply passing the examination is number enough. The future teachers of the companyntry must pass through the institutions which have maintained standards of excellence at all levels. We see so ground to interfere with the impugned judgment of the High Court. We agree with the views expressed by the High Court on various aspects of teachers training institutes. We also agree with the reasoning and the companyclusions reached by the High Court. Before we part with this judgment we companysider it necessary to strike a numbere of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations companycerned. In view of the series of judgments of this Court, the Courts should number issue fiat to allow the students of unrecognised institutions to appear at the different examinations pending the disposal of the writ applications. Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the Authorities, who have to companyply with such directions of the Court. It is a matter of companymon knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are justified. Many of such institutions are number only masked phantoms but are 1005 established as business ventures for admitting sub-standard students, without any companypetitive tests, on basis of companysiderations which cannot serve even the interest of the minority. There is numberoccasion for the Courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced. In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3134-36 of 1993. From the Judgment and Order dated 12.7.91 of the Bombay High Court ill Appeal Nos. 1309, 1309 and 1311 of 1997. K. Ramamurthy. Ms. Chandan Ramamurthi and M.A. Krishna Moorthy for the Appellants. S. Nariman, Arun Jaitly, Lalit Bhasin, J.K. Das, Viplay Sharma and vineet Kumar for the Respondents. The Judgment of the Court was delivered by PUNCHHI, J. leave to appeal granted. The question which falls for determination in these Appeals is whether in Computing the amount of one months wages, to be paid Under section 33 2 h of the Industrial Disputes Act, 1947, hereafter referred to as the Act the employer is justified in reducing, the amount by statutory tax deductions? The three appellants herein, in the period 1979-80 were in the employment of the respondent-Air India, and stationed at Calcutta. They individually suffered disciplinary proceedings on the charges of some mis-conducts and ha-in,, been found guilty were awarded penalties of removal or dismissal by the Air India, as, due to each. It is companymon ground that the respondent-Air India, statutorily bound, Applied to the National Industrial Tribunal. Bombay by means of separate approval applications under section 33 2 b of the Act to have its action approved. In terms of the said provision it paid to the appellants one months salary or wages reducing it by sum of Rs. 10 or 15, as deductible on account of monthly payment of tax on employment imposed on salary And wage earners, under the provisions of the West Bengal State Tax on Professions Trades, Callings and Employments Act, 1979 hereafter referred to as the Tax Act . The approval sought by the respondent-management was opposed by the appellants before the Tribunal. and though initially number part of the defence taken in the written statement defence was later set up by them that they had number been paid wages in terms of the mandatory provisions of section 33 2 b of the Act, as there was short payment. This put the respondent management to Alert and it laid before the Tribunal account which, had gone on to work out the months wages. It is companymon ground that the payment otherwise was proper but since it was short by 10 or 15 rupees, as respectively due on account of taxable under the Tax Act, the payment was termed as invalid. 1011 The Tribunal sustaining the objection rejected the approval applications on that score alone and number on merits. In separate writ petitions by the respondents, the Bombay High Court interfered in the matter taking the view that the Tribunal was in error in refusing-approval on the around of the suggested short payment and hence breach of section 33 2 b of the Act. The matter companyld number be finalised by the learned Single Judge and. remand to the Tribunal was made for decision on merits. Letters Patent Appeals preferred by the respective appellants were dismissed by a division bench of the Bombay High Court affirming the view of the learned Single Judge. That is why the instant appeals. The issue, on the face of it, is extremely narrow. But before we get into grips with it, let us take stock of the statutory provisions which companye into action leading to the answer. The first in priority are the two provisions of the Act being section 2 rr defining wages and section 33 2 b imposing the discipline, which are reproduced hereafter IN THIS ACT, UNLESS THERE IS ANYTHING REPUGNANT IN THE SUBJECT OR CONTEXT, - rr wages means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, of work done in such employment, and includes - Such allowances including dearness allowances as the workman is for the time being entitled to the, value of any house accommodation. or of supply of light, water, medical attendance or other amenity or of any service or of any companycessional supply of food-rains or-other articles, any travelling companycession any companymission payable on the Promotion of sales or business or both but does number include- a any bonus 1012 b any companytribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force c any gratuity payable on the termination of his service SECTION 33 - CONDITIONS OF SERVICE, ETC. TO REMAIN UNC HANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS 1 xxxxxxxxxxx During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman companycerned in such dispute or. where there are numbersuch standing orders, in accordance with the terms of the companytract, whether express or implied, between him and the workman, a xxxxxxxxx b for any misconduct number companynected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman PROVIDED that numbersuch workman shall be discharged or dismissed, unless he has been paid waves for one. month and an application has been made by the employer to the authority before which the proceeding is pending for- approval of the action taken by the employer. Bare-facedly the inclusions and exclusions provided in section 2 rr do number refer to tax dues. Rather the provision is silent-about statutory tax deductions. But it goes without saying, if there is a statutory companypulsion to deduct, that companypulsion would have an intrusive role to play getting a proper fitment, as the law may warrant its effect, section 33 2 b apart. The matter has to be viewed in this light. That the appellants were salary or wage earners, getting salaries or wages per month is number in dispute. It is also number in dispute that from their wages, prior to their order of removal or dismissal, tax deductions under the Tax Act were being made. There was numberobjection by the appellants to such deductions at that point of time. That it was the employers liability to deduct and pay the tax on behalf of the. employee under section 4 of the Act is also beyond dispute. Section 4 of the Tax 1013 Act pointedly enjoins upon the employer to deduct the tax payable under the Act from the salary or wages payable to any person earning a salary or wage, before such salary or wage is paid to him and the employer has also been foisted with the liability to pay tax on behalf of salary or wage earner irrespective of the fact whether such deduction has been made or number when the salary or wage was paid to such person. In other words, the tax payable by the wage earner is deductible from his wage irrespective of the fact whether such deduction has been made or number, but the liability to pay tax is on the employer. Thus it cannot be denied that while the appellants were salary or wage earners, their wages or salary had to suffer deduction of payment of tax at the hands of the respondent-employer. Failure to companyply the provisions of section 4 of the Tax Act exposed the respondent to penalties and prosecution under other provisions, of the Act, details of which need number be brought herein. It was canvassed on behalf of the appellants that one months wage statutorily required to be paid in terms of section 33 2 b is a payment which does number partake the character of salary or wage as the appellants were number salary or age earners while getting that one months wage Sequelly it was canvassed that number being salary or wage earners in that month, orders of dismissal or termination of service having been passed against them, they were number in employment and hence number liable to pay tax. It was asserted that the very basis of tax stood displaced and hence the deduction of tax at the snapped source rendered the payment or deposit of one months wage deficient. companytravening the mandatory provisions of section 33 2 b of the Act. On the other hand, it was companytended inter alia on behalf of the respondent that the statutory deduction of tax payable under the Tax Act inhered in the payment of one months wave, and in any case the difference had been tendered before the Tribunal for payment to the workmen, on objection raised. during the pendency of the approval proceedings. These are the companytours of the dispute. The proviso to section 33 2 b mandates two steps, that unless the workman is paid wages for one month and an application as companytemplated is made by the employer to the Tribunal for approval of his action, numbersuch workman can be discharged or dismissed. The intention of the legislature in providing for such a companytingency is number far to seek and as was pointed out by this Court in the case of Syndicate Bank Limited v. Rain Nath Bhat 11 967-681 XXXII FJR 490 at 497 was to soften the rigour of unemployment that will face the workman, against whom an order of discharge or dismissal has been passed. A three-judge bench decision, authored by Gajendragadkar, J. of this Court in Tata Iron and Steel Co. Ltd. v. S.N. Modak 1963 3 SCR 411 a page 418, 1014 had the occasion to spell out the nature of the order of discharge or dismissal. It was ruled that-such order being incomplete and inchoate until the approval is obtained. companyld number effectively terminate the relationship of the employer and the employee, as the question of the validity of the order would have to be gone into, and if approval is number accorded by the Tribunal the employer would be bound to treat the workmen companycerned as its employee and pay him all the wages for the period even though the employer subsequently companyld proceed to terminate the employees services. Thus this Courts view always has been that relationship of employer and employee is number effectively terminated by the passing of the order of discharge or dismissal until approval thereto in terms of section 33 2 b is accorded by tile Tribunal. A three-judge bench of this Court in Bharat Electronic Limited, Bangalore v. Industrial Tribunal, Karnatak, Bangalore and another, 1990 1 SCR 971 at pages 976-977 observed as follows One months wages as thought and provided to be given are companyceptually for the month to follow, the month of unemployment and in the companytext wages for the month following the date of dismissal and number a repetitive wage of the month previous to the date of dismissal. If the companyverse is read in the companytext of the proviso to section 32 b , it inevitably would have to be read ,is double the wages earned in the month previous to the date of dismissal and that would, in our view be, reading in the provision something which is number there, either expressly or impliedly. Bharat Electronics was a case in which wages had been paid or offered to the workman in terms of section 33 2 b . short of the night shift allowance, and this Court took the view that from the date of dismissal or removal factual though , the occasion to earn night shift allowance companyld number and did number arise. In order to earn night shift allowance the workman had to actually work in the night shift and for the purpose had to report for duty on being put to that shift. It was in this situation held that night shift allowance automatically did number form part of his wage as it was number such an allowance which flowed to him as entitlement number restricted to his service. In this extreme situation, the employee, in one sense, gets unemployed as he stands deprived of work with effect from the date of the application for approval, on which date his discharge of dismissal is factually effective. He stands paid his months, wage from such date and this is a wage companyceptually for the month 1015 following number double the wage for the month previous to the date of the application. This is the dicta of Bharat Electronics case supra . In the other sense the order of discharge or dismissal is incomplete and inchoate, unless approved by the Tribunal and till approval is granted there is numbereffective break of the employers and employee relationship. This is the dictum of Tata Iron Steel Companys case. So if these two features are grasped. appreciated and blended, it would lead us to the understanding that by passing the order of discharge or dismissal de-facto relationship of employer and employee is ended, but dot de-jure, for that companyld happen when the Tribunal accords its approval. The employee thus gets factually unemployed from the date of the approval application in the sense that he is number called to work and is paid only a months wage representing the succeeding month of his unemployment. The relationship of employer and employee is legally number terminated till approval of discharge or dismissal is given by the tribunal. And this state of affairs was required to be ended within a period of three months from the date of receipt of such application in terms of subsection 5 of section 33, though the lapse of such period would number and the proceeding and such time was extendable by the Tribunal for reasons to be recorded in writing. Now in this fluid state of affairs, the legal character of one, months wage would undergo a change depending, on the result of the approval application. If the Tribunal were to refuse the approval, the inchoate and incomplete order of discharge or dismissal would end and the legal character of one months wales would transform to be the same as before, from which statutory tax deduction companyld legitimately be made by the employer. In the event of approval of the application by the Tribunal, the legal character of one months wage would on tile other, hand be a wage without employment. In the given situation, if the Tribunal were to refuse approval solely on the ground that statutory tax deduction stands in its way to the grant of approval, it companyld legitimately make its order companyditional on making food such payment. This is a field in which the interest of- both parties has to be kept in view, for the situation would be precarious for the employer if he were number to deduct tax under section 4 of the Tax Act and exposing him to the dangers, of penalties and prosecution. If approval was to be rejected on merit and otherwise to be rejected for number making companyplete payment of one month wage, it would thus be just and proper to let the employer deduct the statutory tax deduction from that one month wage, since the relationship of employer and an employee has effectively number been terminated, to meet the eventuality, lest the approval application be dismissed on merit On the other hand it would be just and proper either for the employer on his own or on the asking of the Tribunal to let the sum representing statutory tax deduction be deposited in the Tribunal for payment to tile workman in the,event of the approval application being allowed. If these two situations can be saved in this manner there would, in numberevent be a dismissal of the approval application for payment of wage subjected to statutory tax deduction. Taken in this tight one is to 1016 view the deduction and the subsequent offer of the respondent to pay the tax deducted, and later deposited before the Tribunal, for payment to the workman. This payment was offered and deposited before the decision of the approval application at a time when the relationship of employer and employee had effectively number been terminated. Here distinction would have to he drawn between statutory deductions like tax deductions and other deductions which the employer companysiders he can make. In either event, he takes the risk when making a deduction. In the case of statutory tax deductions his justificatory burden is less. for he has the shelter of the tax law. The case of the other deductions would obviously be on different footing for lie may number have any thrust of law. Those may purely be companytractual. Those deductions may number be companypulsive under any law. The employer makes the deduction in such cases at his peril. But here, in the present situation, there definitely arose a genuine claim to make the tax deduction and doing so the employer projected.its case before the tribunal in that angle. Not a paisa otherwise was kept back. Thus in the facts and circumstances it appears to us that the respondent was able to establish that its deliberate deduction representing the tax from one months wage was number to shorten the wage and cause infraction. of section 33 2 b but a companypulsive deduction to fulfill a statutory obligation by the thrust of the Tax Act. On this analysis and understanding the case of the Patna High Court in Muzaffarpur Electric Supply Co. v. S.K. Dutta 1990 LLJ Vol.2 page 547 where when the loan and money-order companymission was deducted from one months wages, it was held to be violative of section 33 2 b of the Act and the case Rajasthan High Court in Dinesh Khare v. Industrial Tribunal, Rajasthan 1982 LAB I.C. 517, decided by S.C. Agrawal, then on that bench, and who is happily number a member of this bench, disapproving, the deduction of provident fund on the finding, that those did number represent emoluments carried by the workman companycerned while on duty within the meaning of section 2 rr of the- Employees Provident Fund Act. being, cases clearly distinguishable would number further the case of the appellants. Conversely a single bench decision of the Bombay flesh Court in Balmer Lawrie and Co. Ltd. v. Waman B. More 1981 42 F.L.R. 272275 would also number further the case of the respondent because instantly numberdifficulty or inability to make the necessary calculations at a particular point of time arose which difficulty or inability get removed subsequently. The claim to tax deduction was there to begin,with and companyld subsist till the grant of the approval application and such grant companyld be companyditional on the payment back of the tax deduction. All option of this method should settle the question. We do number wish to enter upon other questions cropping up to determine the tax liability of the employer or the employee in that period of one month. 1017 At this juncture, it would add to our understanding if we reproduce a passage from Bharat Electronics case supra . It is Before companycluding the judgment the observations in Syndicate Banks case, afore- quoted, are again to he borne in mind. In the facts and circumstances of this case the management paid to the workman a sum of Rs.607.90 as a months salary to soften the rigour of unemployment that will face the workman. Flow companyld a short payment of Rs. 12 he said to have lessened the softening of such rigour is thought stirring. Viewed in the companytext, there companyld genuinely be a dispute, as in the present case, as to whether a particular sum was due as wages. It is, of companyrse, risky for the management to raise it as to pay even a paise less than the months wages due under section 33 2 b , would he fatal to its permission sought. But at the same time it needs to be clarified that it is for the management to establish, when questioned, that the sum paid to the workman under section 33 2 b represented full wages of the month following the date of discharge or dismissal, as companyceived of in the provision and as interpreted by us in entwining the ratios in Bennett Colemans case supra and Dilbagh Rai Jarrys case supra and adding something ourselves thereto. Thus on principle and percept we go on to hold that when an order of discharge or dismissal of a workman is incomplete and in choate until its approval is obtained from the Tribunal, there is numbereffective termination of the relationship of the employer and the employee. Not only in a limited way that the relationship is snapped factually and one months wage is given to the employee to soften the rigour of his factual unemployment, but the companytent and character of the wage would extendidly tend to remain the. same so far as subjection to statutory tax deduction is companycerned, being remuneration paid as understood in section 2 rr of the Act, on the supposition that the terms of employment, expressed or implied, were fulfilled and the same was due as wages payable to the workman in respect of his employment, or of work done in such employment, even though he was number put to work. Thus as a result, we find numbercause to interfere in the judgment and order of the High Court.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 47 of 1979. From the Judgment Order dated 20.1.77 of the Gujarat High Court in Second Appeal No. 90 of 1976. Krishan Kumar for Vimal Chandra S. Dave for the Appellants. Ms. Meenaksh Arora for Anip Sachthey for the Respondent. The Judgment of the Court was delivered by ANAND, J. This appeal by special leave, is directed against the judgment of the Gujarat High Court dated 20th of January, 1977 in Second Appeal No. 90 of 1976. The plaintiffs-appellants are the farmers of the Village Morzar under Bhanwad Taluka of Jamnagar District. Their lands are situated on the outskirts of the village. Under the Vartu Dam Irrigation Scheme, the defendant-State proposed to companystruct a Dam on river Vartu and prepared a sketch, indicating the passage of the canal from Vartu Dam and for that purpose, it proceeded to acquire land through which the canal was proposed to run. The plaintiffs- appellants apprehended serious damage to their lands by the passing of the canal through their lands and they filed a Regular Civil Suit in 1966 against the defendant-State, seeking to restrain it from implementing the Irrigation Scheme, as proposed. Suit was registered and defendants were summoned. During the pendency of the suit, it appears that an agreement was arrived at between the parties and it was agreed that the canal from Vartu Dam would be run as per the line demarcated in red in the map appended to the deed of agreement Ex.45. As a result of the said agreement the suit was unconditionally withdrawn by the plaintiffs on 24.11.1966. Somewhere in 1972, the plaintiffs-appellants discovered that the State Government was going back from the agreement and alignment of the canal was being undertaken companytrary to the alignment reflected in the map appended to the agreement Ex.45. They, therefore, filed a fresh suit for declaration to the effect that the agreement, dated 7.11.1966, entered into between them and the respondents through its Executive Engineer, Irrigation Department Jamnagar, was binding on the parties and that the parties were bound to act according to the terms of the said agreement and for an injunction, restraining the defendant- State from going back on the agreement. This suit of the plaintiffs-appellants was companytested and the following issues were framed Whether the suit agreement dated 7.11.1966 is number binding to the defendant ? If it is binding whether the plaintiff prove that they have companyplied with the terms and companyditions of this agreement? Whether the suit as framed is number maintainable? Whether the suit is bad for the mis- joinder of the plaintiffs and the cause of action? Whether the suit is number maintainable as the agreement dated 7.11.1966 has number been registered of because numbercompromise decree had been passed in terms of this agreement? Whether the suit is number in time? Whether the plaintiffs are entitled to the declaration sought? Whether the plaintiffs are entitled to get the permanent injunction as prayed for by them? What order? Issues 1 to 8 were decided in favour of the plaintiffs- appellants and against the defendant-State. The Trial Court decreed the suit and declared that the suit agreement dated 7.11.1966 entered between the plaintiffs and the defendants through its executive engineer, was binding on the parties and that the parties were bound to act in accordance with the terms of the said companypromise the defendant state was permanently restrained from going back from the agreement and act otherwise than as per the terms of the same. The State of Gujarat preferred an appeal in the Court of District Judge Jamnagar against the judgment and decree of the Trial Court. During the hearing, the parties companyfined their arguments to the following two points Whether the agreement dated 7.11.66 is binding to the State of Gujarat? Whether the plaintiffs are entitled to the reliefs, granted to them by the trial companyrt? The appellate companyrt answered both the questions in the affirmative and by its order dated October 20, 1975 companyfirmed the judgment and decree of the trial companyrt. The appeal of the State of Gujarat was dismissed. The State filed a Second Appeal in the High Court. The High Court examined the agreement dated 7.11.1966, Ex. 45 which is in Gujarati and is described as Rojkam on the subject of the alignment of Vartu Canal. The High Court numbericed that the Rojkam refers to the filing of the suit in the Civil Court and the meeting between the Executive Engineer and the occupants of land and proceeded to recite that on the aforesaid subject there was discussion of the Executive Engineer with the occupants and thereafter both the sides have amicably settled companypromised the dispute with regard to the alignment of the canal. The Rojkam further records that both the sides have agreed to the alignment shown in rose companyour in the map. The Rojkam then records The Executive Engineer Mr. B.V. Nanavati having assured of getting necessary alterations as aforesaid made, they i.e., the plaintiffs or the occupants have shown willingness to withdraw unconditionally the suit filed in Civil Court. The Rojkam is signed by the Executive Engineer as also by the occupants. Before the High Court, the main plea raised by the State was that the alleged companypromise agreement was number binding upon the State. It was stated that the State does number admit any agreement made by the Executive Engineer either on behalf of the State or as a representative of the State and, therefore, the so called agreement did number bind the State Government. It was asserted by the State that the Executive Engineer had numberauthority to agree on behalf of the State Government as he was number the representative of the Government. Similar plea had been raised before the trial companyrt and the lower appellate companyrt but was rejected. The High Court, however, accepted the plea of the State and found that the companyrts below had erred in ignoring the mandatory provisions of Article 299 of the Constitution of India which mandates that all companytracts made in the exer- cise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of a State, as the case may be, and all such companytracts and all assurances of property made in the exercise of that power shall executed on behalf of the President or the Governor by such persons and in such a manner as he may direct or authorise. The High Court found that for number- companypliance with the provisions of Article 299 1 of the Constitution of India which are mandatory in character, the agreement Ex. 45, was a null and void document. The High Court then observed Apart from the question whether the Executive Engineer in the present case was directed or authorised to execute this agreement on behalf of the State Government, it is clear on the face of the document Ex.45 itself that the alleged agreement companytained therein is number expressed to be made by the Governor. This position is incontrovertible and even Mr. Shah for plaintiffs-respondents was number able to show that the document Exh.45 companytains an agreement expressed to be made by the Governor. Really speaking, on a companyrect interpretation of this document Exh.45, it only companytains basis of the companypromise terms between the Executive Engineer and the occupants who probably were plaintiffs of the earlier suit as regards the change of alignment and pursuant to which companypromise the plaintiffs agreed to withdraw the suit. The Governor or the State Government is numberhere in the picture if we go through this agreement. Therefore, assuming that the document companytains an agreement in reality it is an agreement number by the Governor or the state Government but by the Executive Engineer with the occupants who signed the same. Such an agreement which is number in companypliance with the provisions of Article 299 of the Constitution is void and unenforceable against the State. If this is so, the suit filed by the respondents-plaintiffs must fail. The High companyrt negatived the companytention raised on behalf of the plaintiffs-appellants to the effect that under the statutory powers companyferred by Section 18 of the Bombay Irrigation Act, 1879 hereinafter called the Act , the Executive Engineer was companypetent to enter into companypromise and that the said companypromise arrived at during the pendency of the earlier suit was binding on the Government. The High Court said Then it was companytended that in exercise of his powers under section 18 of the aforesaid Act, the Executive Engineer acts for the Government and, therefore, the agreement in question is binding on the Government. There is an inherent misconception underlying this companytention. While exercising statutory powers i.e. powers companyferred by a statute an officer of the Government does number act for the Government. He acts number because of any authority derived from the Government to exercise power companyferred on him by the Statute. This companytention must also fail. As a companysequence, the appeal filed by the State was allowed and the judgment and decree passed by the companyrts below were reversed and the suit filed by the plaintiffs-appellants was dismissed with companyts throughout. Learned companynsel for the appellants has assailed the judgment of the High Court and submitted that the agreement companypromise, Ex.45, had been validly entered into by the Executive Engineer with the appellants in view of the statutory powers vested in the Executive Engineer under Section 18 of the Act and reliance placed on Article 299 of the Constitution of India, in the facts and circumstances of this case, was wholly erroneous. It was urged that by a Notification, dated 27th of September 1963, published in Part IV-B of the Gujarat Government Gazette dated 31st of October, 1963, the Government of Gujarat had appointed all Executive Engineers and superintending Engineers in-charge of canals in the State of Gujarat to be Canal Officers in respect of such canals and assigned to them all the powers and duties of the Canal Officers under the Act, and, therefore, the agreement companypromise entered into by the Executive Engineer on 7.11.1966 during the pendency of the suit of which he was doing pervi was a validly executed companypromise which was binding on the parties and the respondent companyld number go back on it. Having been made to withdraw their earlier suit on the basis of the agreement, dated 7.11.1966, it was number permissible for the respondent to number dispute the act done by its officers or agents within their powers under the statute. In the facts and circumstances of this case, we find force in the submission of learned companynsel for the appellants regarding the number-ap- placability of Article 299 of the Constitution of India to invalidate the agreement companypromise dated 7.11.1966 arrived at during the pendency of the earlier suit filed by the appellants relying whereupon the appellants withdrew the earlier suit. The agreement companypromise Ex.45, arrived at in the previous suit, companyld number have been equated with a companytract between the State and the citizen. Article 299 1 which reads thus All companytracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such companytracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. companycerns itself with companytracts and assurances of property and lays down how Government companytracts, including assurances of property are to be made and executed. Indeed, the provisions of Article 299 are mandatory in character and their number-compliance would render a companytract void but where the agreement is number referable to Article 299 and is number a companytract, as companytemplated by that Article, the agreement cannot be invalidated for number satisfying the essential requirements of Article 299 of the Constitution. A companypromise of the nature companytained in the agreement dated 7.11.1966, arrived at during the pendency of a suit, is number a companytract executed between the parties as envisaged by Article 299. There is a marked distinction between companytracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature. Article 299 1 applies to a companytract made in exercise of the executive power of the Union or the State and it has numberapplication to a case where a particular statutory authority, as distinguished from the Union or the State, enters into an agreement within his authorised capacity. In State of Haryana Ors. v. Lal Chand Ors., 1984 3 SCC 634 this Court companysidered a companytract granting exclusive privilege of liquor vending, in exercise of the statutory powers referable to Punjab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956, and held that the grant of the exclusive privilege gave rise to a companytract of a statutory nature, distinguished from the one executed under Article 299 1 and, therefore, companypliance with Article 299 1 was number required in such a case. The question which immediately arises for our companysideration is Was the Executive Engineer companypetent to execute the agreement Ex.45? In this companynection, it would be relevant to refer to some of the more relevant statutory provisions companytained in the Act. Section 3 6 provides as follows Canal Officer means any officer lawfully appointed or invested with powers under section 4 Section 17 reads thus Any persons desiring to companystruct a new water-course, but being unable or unwilling to companystruct it under a private arrangement with the holder of the land required for the same, may apply in writing to any Canal Officer duly empowered to receive such applications, stating 1 that he is ready to defray all the expense necessary for acquiring the land and companystructing such water-course 2 that he desires the said Canal Officer in his behalf and his companyt to do all things necessary for companystructing such water-course. Section 18 provides as follows If the Canal Officer companysiders the companystruction of such water-course expedient, he may call upon the applicant to deposit any part of the expense to such officer may company- sider necessary, and upon such deposit being made, shall cause inquiry to be made into the most suitable alignment for the said water- companyrse, and shall mark out the land which, in his opinion, it will be necessary to occupy for the companystruction thereof, and shall forthwith publish a numberification in every village through which the water-course is proposed to be taken, that so much of such land as is situated within such village has been so marked out, and shall send a companyy of such numberification to the Collector of every district in which such land is situated, for publication on such land. The said numberification shall also call upon any person who wishes to share in the ownership of such water-course to make his application in that respect to the Canal Officer within thirty days of the publication of such numberification. If any such applicant appears, and his application is admitted, he shall be liable to pay his share in the companystruction of such water-course, and in the companyt of acquiring the land for the same, and shall be an owner of such water-course when companystructed. Powers of the canal officers are companytained in Section 77 reads thus For the purpose of the inquiries under section 76 such Canal Officer may enter, by himself or any officer authorised by him for the purpose, upon any land adjacent to any such work, and may survey, demarcate and make a map of the same. Notwithstanding anything companytained in section 76 where numbersufficient evidence is forthcoming as to all or any of the matters specified in that section such Canal Officer shall, so far as may be, settle and record the aforesaid matters in such manner as he may deem fit. A perusal of the record reveal that it was the Executive Engineer who was doing pervi of the case in the suit filed. in 1966. The agreement companypromise Ex.45 was entered into during the pendency of the said case. As already numbericed the Government of Gujarat had appointed all Executive Engineers and Superintending Engineers in-charge of Canals in the State of Gujarat to be Canal Officers in respect of such canals and assigned to them all the powers and duties of the Canal Officers under the Act by virtue of the Notification dated 27th September, 1963. Thus, it is manifest that the Executive Engineer, by virtue of the said Notification, had been lawfully appointed as Canal Officer within the meaning of Section 3 6 of the Act. Section 18 of the Act vests the Canal Officer with the power to hold inquiry and direct the companystruction of suitable alignments for a water-course and by Section 77 of the Act supra the Canal Officer is vested with the authority to survey, demarcate and make a map of the land which in his opinion is suitable for companystructing an alignment for the water-course. Thus, under the statute,, read with the Notification dated 27th September 1963, the Canal Officer Executive Engineer was fully company- petent to decide about the particular alignment of the water companyrse and it fell within his jurisdiction to decide and settle about the suitable demarcation of the alignment of the water companyrse of the canal from Vartu Dam. He exercised that jurisdiction under the statute when he demarcated the water companyrse in red, in the map attached to Ex.45, the agreement. It is the companytent of the agreement and number its form which is relevant to trace the source of power behind it and when examined in the light of the statutory provisions numbericed above, it is manifest that the document Ex.45 has been executed by the Executive Engineer by virtue of the statutory powers vested in him. The circumstance that the agreement Ex.45 came into existence during the pendency of the suit and was executed by way of an agreement does number militate against the order of alignment as reflected therein being any less statutory in character. As a matter of fact the Act itself envisages that the Canal Officer may alter and settle the alignment in companysultation with the landholders through which the water companyrse is to run. In the agreement Ex.45, the Executive Engineer had agreed to alter the alignment of the water companyrse in companysultation with the petitioners who thereupon ,unconditionally withdrew the suit as it appears numbergrievance remained to be settled. The altered alignment was, therefore, validly made by following the procedure envisaged by the Act. The High Court fell in error in ignoring this aspect of the case. It failed to appreciate the statutory powers of the Executive Engineer, vested in him under Sections 18 and 77 of the Act read with the numberification of 27th September, 1.963 on the true import of agreement Ex.45. Thus, in the facts and circumstances of the case we are satisfied that the agreement dated 7.11.1966, Ex. 45 was lawfully executed by the Executive Engineer in exercise of his statutory powers under the Act and the State was obliged to act according to the terms of the said agreement and companyld number give it a go bye without following the procedure under the Act to again alter the alignment. It is numberodys case that for making an alteration in the alignment, the requisite exercise was undertaken, as envisaged by the Act, in 1972, when the suit out of which these proceedings have arisen was filed. In view of the aforesaid discussion, the judgment and decree of the High Court deserves to be set aside and are hereby set aside. The judgment and decree passed by the Trial Court as companyfirmed by the District Judge are restored though for different reasons, as detailed above. The appeal is companysequently allowed. The parties, however, shall bear their own companyts throughout. Before parting with the judgment, we would also like to clarify certain position. The dispute is almost three decades old. Learned companynsel for the parties were unable to state as to whether fresh alignments as envisaged by the red line in the map attached to Ex.45, agreement, had been made for the passing of the canal or number. We would, therefore, like to clarify that if any fresh alignment for the water companyrse is required to be made, different than the one originally proposed or the one companytained in the said Map, the same may be made but only by following the procedure prescribed under the Act and this judgment shall number be companystrued as any bar therefore.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3908 NT / 1983. From the Judgment and Order dated 20.11.1979 of the Madras High Court in Tax Case No. 330 of 1976. Raghuvir and Ms. A. Subhashini for the Appellant. A. Ramachandran and Mrs. Janaki Ramachandran for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. This appeal is preferred against the Judgment of the Madras High Court answering the question referred to it in the affirmative i.e., in favour of the assessee and against the Revenue. The question referred under section 256 1 of the Income-tax Act reads as follows Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the total sum of Rs. 22.000 received by the assessee from the Indian Oil Corporation and All India Highway Motor Rally should number be brought to tax? The assessment year companycerned is 1974-75. The assessee, R. Karthikeyan, assessed as an individual, was having income from various sources including salary and business income. During the accounting year relevant to the said assessment year, he participated in the All India Highway Motor Rally. He was awarded the first prize of Rs. 20,000 by the Indian Oil Corporation and another Sum of Rs. 2,000 by the All India Highway Motor Rally. The Rally was organised jointly by the Automobile Association of Eastern India and the Indian Oil Corporation and was supported by several Regional Automobile Associations as well as Federation of Indian Motor Sports Clubs and the Federation of Indian Automobile Associations. The rally was restricted to private motorcars, the length of the rally route was approximately 6,956 kms. One companyld start either from Delhi, Calcutta, Madras or Bombay, proceed anti-clock wise and arrive at the starting point. The rally was designed to test endurance driving and the reliability of the automobiles. One had to drive his vehicle observing the traffic regulations at different places as also the regulations prescribed by the Rally Committee. Prizes were awarded on the basis of overall classification. The method of ascertaining the first prize was based on a system of penalty points for various violations. The companypetitor with the least penalty points was adjudged the first-prize winner. On the above basis, the assessee won the first prize and received a total sum of Rs. 22,000. The Income Tax Officer included the same in the income of the respon- dent-assessee relying upon the definition of income in clause 24 of section 2. On appeal, the Appellate Assistant Commissioner held that inasmuch as the rally was number a race, the amount received cannot be treated as income within the meaning of section 2 24 ix . An appeal preferred by the Revenue was dismissed by the Tribunal. The Tribunal recorded the following findings That the said rally was number a race. It was predominantly a test of skill and endurance as well as of reliability of the vehicle. That the rally was also number a game within the meaning of section 2 24 ix . That the receipt in question was casual in nature. It was nevertheless number an income receipt and hence fell outside the provisions of section 10 3 of the Act. At the instance of the Revenue, the question aforementioned was stated for the opinion of the Madras High Court. The High Court held in favour of the assessee on the following reasoning The expression winnings occuring at the inception of sub-clause ix in section 2 24 is distinct and different from the expression winning. The expression winnings has acquired a companynotation of its own. It means money won by gambling or betting. The expression winnings companytrols the meaning of several expressions occurring in the sub- clause. In this view of the matter, the sub-clause cannot take in the receipt companycerned herein which was received by the assessee by participating in a race which involved skill in driving the vehicle. The rally was number a race. In other words the said receipt does number represent winnings. A perusal of the memorandum explaining the provisions of the Finance Bill,. 1 972, which inserted the said sub- clause in section 2 24 , also shows that the idea behind the sub-clause was to rope in windfalls from lotteries, races and card games etc. Section 74 A which too was introduced by the Finance Act, 1972 supports the said view. Section 74 A provides that any loss resulting from any of the sources mentioned therein can be set off against the income received from that source alone. The sources referred to in the said section are the very same sources mentioned in sub-clause ix of section 2 24 namely lotteries, crossword puzzles, races including horse races, card games etc. The companyrectness of the view taken by the High Court is questioned herein. The definition of income in section 2 24 is an inclusive definition. The Parliament has been adding to the definition by adding sub-clause s from time to time. Sub- clause ix which was inserted by the Finance Act, 1972 reads as follows any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or from gambling or betting of any form or nature whatsoever We may numberice at this stage a provision in section IO. Section 10 occurs in chapter HI which carries the heading Incomes which do number form part of total income. Section 10 in so far as is relevant reads thus 10, Incomes number included in total income In companyputing the total income of a previous year of any person, any income failing within any of the following clauses shall number be included d any receipts which are of a casual and number recurring nature, number being winnings from lotteries, to the extent such receipts do number exceed one thousand rupees in the aggregate. The clause has been amended by Finance Act, 1986 but we are number companycerned with it. Similarly it is number necessary to numberice the proviso to the said clause. It is number easy to define income. The definition in the Act is an inclusive one. As said by Lord Wright in Kamakshya Narayan Singh v. C.I.T. 11 I.TR. 513 P. C. income is a word difficult and perhaps impossible to define in any precise general formula. It is a word of the broadest companynotation. In Gopal Saran Narain Singh v. Commissioner of Income Tax 3.I.T.R. 237 P.C., the Privy Council pointed out that anything than can properly be described as income is taxable under the Act unless expressly exempted. This Court had to deal with the ambit of the expression incomein Navin Chandra Mafatlal v. C.I Bombay 26 I.T.R. S.C. The Indian Income-tax and Excess Profits Tax Amendment Act, 1947 had inserted section 12 B in the Indian Income- tax Act, 1922. Section 12 B imposed a tax on capital gains. The validity of the said Amendment was questioned on the ground that tax on capital gains is number a tax on incomewithin the meaning of entry 54 of list-1, number is it a tax on the capital value of the assets of individuals and companypanies within the meaning of entry-55, of list- 1 of the seventh schedule to the Government of India Act, 1935. The Bombay High Court repelled the attack. The matter was brought to this Court. After rejecting the argument on behalf of the assessee that the word income has acquired, by legislative practice, a restricted meaning-and after affirming that the entries in the seventh schedule should receive the most liberal companystruction-the Court observed thus What. then, is the ordinary, natural and grammatical meaning of the word income? According to the dictionary it means a thing that companyes in. See Oxford Dictionary, Vol. V,p. 162 Stroud, vol.II, pp. 14-16 . In the United States of America and, in Australia both of which also are English speaking companyntries the word income is understood in a wide sense so as to include a capital gain. Reference may be made to- Eisner v. Macomber, 1919 252 US 189 K -Merchants Loan and Trust Co. v. Smietanka1920 255 US 509 L and -United States of America v. Stewart, 1940 311 US 60 M and-Resch v. Federal Commissioner of Taxation, 1943 66 CLR 198 N . In each of these cases very wide meaning was ascribed to the word income as its natural meaning. The relevant observations of learned Judges deciding those cases which have been quoted in the judgment of Tendolkar J. quite clearly indicate that such wide meaning was put upon the word income number because of any particular legislative practice either in the United States or in the Commonwealth of Australia but because such was the numbermal companycept and companynotation of the ordinary English word income. Its natural meaning embraces any profit or gain which is actually received. This is in companysonance with the observations of Lord Wright to which reference has already been made. The argument founded on an assumed legislative practice being thus out of the way, there can be numberdifficulty in applying its natural and grammatical meaning to the ordinary English word income. As already observed, the word should be given its widest companynota- tion in view of the fact that it occurs in a legislative head companyferring legislative power. Since the definition of income in section 2 24 is an inclusive one, its ambit, in our opinion, should be the same as that of the word income occurring in entry 82 of list 1 of the Seventh Schedule to the Constitution companyresponding to entry 54 of list 1 of the Seventh Schedule to the Government of India Act . In Bhagwandas Jain v. Union of India 128 I.T.R. 315 C. The challenge was to the validity of section 23 2 of the Act which provided that where the property companysists of house in the occupation of the owner for the purpose of his own residence, the annual value of such house shall first be determined in the same manner as if the property had been let and further be reduced by one half of the amount so determined or Rs. 1,800 whichever is less. The companytention of the assessee was that he was number deriving any monetary benefit by residing in his own house and, therefore, numbertax can be levied on him on the ground that he is deriving income from that house. It was companytended that the word income means realisation of monetary benefit and that in the absence of any such realisation by the assessee, the companyclusion of any amount by way of numberional income under section 23 2 of the Act in the chargeable income was impermissible and outside the scope of entry 82 of list-1 of the Seventh Schedule to the Constitution. The said companytention was rejected affirming that the expression income is of the widest amplitude and that it includes number merely what is received or what companyes in by exploiting the use of the property but also that which can be companyverted into income. Sub-clause ix of section 2 24 refers to lotteries, crossword puzzles, races including horse races, card games, other games of any sort and gambling or betting of any form or nature whatsoever. All crossword puzzles are number of a gambling nature. Some are some are number. See State of Bombay v. R.M.D. Chamarbaugwala A.I.R. 1957 S.C.699.Even in card games there are some games which are games of skill without an element of gamble See State of Andhra Pradesh K. Satyanarayan1968 2 S.C.R. 515. The words other games of any sort are of wide amplitude. Their meaning is number companyfined to games of a gambling nature alone. It thus appears that sub-clause ix is number companyfined to mere gambling or betting activities. But, says the High Court, the meaning of all. the aforesaid words is companytrolled by the word winnings occurring at the inception of the subclause. The High Court says, relying upon certain material, that the expression winnings has companye to acquire a particular meaning viz, receipts from activities of a gambling or betting nature alone. Assuming that the High Court is right in its interpretation of the expression winnings, does it follow that merely because winnings from gambling betting activities are included within the ambit of income,the monies received from number- gambling and number-betting activities are number so included? What is the implication flowing from insertion of clause ix ? If the monies which are number earned-in the true sense of the word-constitute income why do moneies earned by skill and toil number companystitute income? Would it number look odd. if one is to say that monies received from games and races of gambling nature represent income but number those received from games and races of number-gambling nature? The rally in question was a companytest, if number a race. The respondent- assessee entered the companytest to win it and to win the first prize. What he got was a return for his skill and endurance. Then why is it number income-which expression must be companystrued in its widest sense. Further, even if a receipt does number fall within subclause ix , or for that matter, any of the sub-clauses in section 2 24 , it may yet companystitute income. To say otherwise, would mean reading the several clauses in section 2 24 as exhaustive of the meaning of income when the Statute expressly says that it is inclusive. It would be a wrong approach to try to place a given receipt under one or the other sub-clauses in section 2 24 and if it does number fall under any of the sub- clauses, to say that it does number companystitute income. Even if a receipt does number fall within the ambit of any of the sub- clauses in section 2 24 , it may still be income if it partakes of the nature of the income. The idea behind providing inclusive definition in section 2 24 is number to limit its meaning but to widen its net. This Court has repeatedly said that the word income is of widest amplitude, and that it must be given its natural and grammatical meaning. Judging from the above standpoint, the receipt companycerned herein is also income. May be it is causal in nature but it is income nevertheless. That even the casual income is income is evident from section 10 3 . Section 10 seeks to exempt certain incomes from being included in the total income. A casual receipt which should mean, in the companytext, casual income is liable to be included in the total income if it is in excess of Rs. 1,000, by virtue of clause 3 of section 10. Even though it is a clause exempting a particular receipt income to a limited extent, it is yet relevant on the meaning of the expression income. In our respectful opinion, the High Court, having found that the receipt in question does number fall within sub-clause ix of section 2 24 , erred in companycluding that it does number companystitute income. The High Court has read the several sub-clauses in section 2 24 as exhaustive of the definition of income when in fact it is number so. In this companynection it is relevant to numberice the finding of the Tribunal. It found that the receipt in question was casual in nature but-it opined-it was nevertheless number an income receipt and fell outside the provision of section 10 3 of the Act. We have found it difficult to follow the logic behind the argument. For the above reasons we hold that the receipt in question herein does companystitute income as defined in clause 24 of section 2 of the Act. The appeal is accordingly allowed and the question referred by the Tribunal under section 256 1 of the Act is answered in the negative i.e., in favour of the Revenue and against the assessee. There shall be numberorder as to companyts.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 402 to 419 of 1993. From the Judgment and Order dated 3.3.1992 of the Karnataka High Court in Crl. Petitions Nos. 1574 to 1584 of 1991 and 1588 to 1594 of 1991. S. Nesargi, R.C. Mishra and Dr. Mrs. Meera Aggarwal For Aggarwal Mishra Co., for the Appellant. Gauri Shankar, Anil Srivastava and Mrs. Anil Katiyar NP for the Respondent. The Judgments of the Court were delivered by RAMASWAMY.J. Special Leave granted. Since companymon question of law arises in these 18 appeals for decision, they are disposed of by a companymon judgment. The appellant is one of the Directors of M s Ideal Jawa India Ltd. Yadavagiri, Mysore, a Private Ltd. Company estab- lished under the Companies Act. It was also registered under the Factories Act, 1948. Its object is to manufacture Motor-Cycles and its accessories. It has its Managing Director, Joint Managing Director and Directors including the appellant to manage the establishment. The respondent laid 18 companyplaints against six accused including the appellant A-6 and the Company,employer,for their failure to deposit the companytribution for the periods of October to December, 1990 to the Provident Fund Account No. NK 2260 under the EmployeesProvident Funds and Miscellaneous Provisions Act, 1952, for short the Act, Employees Provident Funds Scheme, 1952,Employees Family Pension Scheme, 1971 and Employees Deposit- Linked Insurance Scheme, 1976, for short the Schemes punishable under S. 14A of the Act read with para 76 of 1952 scheme. On the Magistrates taking companynizance thereof, the appellant laid Crl. M.Ps. in the High Court to quash the companyplaints as they do number companytain the relevant averments companystituting the offences against the appellant. It is his case that he is a mere Director of the Company. He was neither Incharge of the Company, number is responsible to companyply with the provisions of the Act and the Scheme,. In support thereof he placed reliance on the definition employer and the liability has been fastened on the Managing Director or the Manager or occupier of the establishment to abide by the Act and the Schemes. The High Court by its order dated March 3,1992, dismissed the applications. Thus these appeals. Sri Nesargi, learned Sr. companynsel for the appellant companytended that a reading of the definition employer in s.2 e read with ss. 30, 14 1-A and paras 30 and 38 of the Schemes demonstrates that the employer in relation to an establishment means the owner or occupier of the factory which includes the Agent or the Manager of the Factory under the Factories Act. One Sri N.K. Khudamurad was recorded as occupier and one Sri D.K. Darashawas recorded as the Manager. They are Incharge of and were responsible to companyply with the Act and the Schemes. No specific averments were made in the companyplaint making the appellant responsible for the management of the factory or the liability to companyply with the Act and the Schemes. The companyplaint, therefore, laid against him is illegal and the companynizance taken by the Magistrate is vitiated by manifest error of law. In support thereof he placed reliance on the decisions of this companyrt in Municipal.Corpn. of Delhi v. Ram Kishan Rohtagi Ors. 1983 1 SCC 1 and EmployeesState Insurance Corpn.v.Gurdial Singh Ors. 1991 Supp. 1 SCC 204. The Act and the Schemes are self-contained companye for deduction from the salary of the employees and the responsibility to companytribute in equi-proportion the employers share and deposit thereof in the account within the specific time under Act and the Schemes into the account. It is a welfare legislation to provide benefits to the employees as per the schemes. They need mandatory companypliance and violation thereof visits with penal action. Section 2 e of the Act defines 1 employer which means in relation to an establishment which is a factory, the owner or occupier of the factory, including the Agent of such owner or occupier, the legal representative of deceased owner or occupier and, where a person has been named as a Manager of the factory under clause f of sub-s. 1 of s.7 of the Factories Act, 1948, the person so named The definition is an inclusive definition bringing within its ambit the owner or occupier as well its Manager. Section 2 k defines occupier which means the person who has ultimate companytrol over the affairs of the factory, and, where the said affairs are entrusted to a Managing Agent such Agent shall be deemed to be the occupier of the factory. Therefore, by its extended definition its sweep is enlarged bringing within its scope the person who is incharge or responsible for in management or ultimate companytrol over the affairs of the factory or establishment. In the event of entrustment to a Managing Agent, such Managing Agent shall also be deemed to be the occupier of the factory. Section 6 fastens the obligation on the employer in this behalf. It postulates that the companytribution shall be made by the employer to the Fund and shall be 8-1/3 of the basic wages, dearness allowances and retaining allowances, if any, for the payment being payable to each of the employees, whether employed by him directly or through a Contractor. The employees companytribution shall be equal to the companytribution payable by the employer in respect of him, etc. in its application to any establishment or class of establishments. Other provisions are number relevant, hence they are omitted. Under para 30 of the Employees Provident Fund Scheme, 1952 and the other Schemes, the employer shall deposit the companytribution to the Fund. Under para 36A of the Scheme the employer is enjoined to furnish particulars of the ownership of the factory which provides thus 36-A Employer to furnish particulars of ownership- Every employer in relation to a factory or other establishment to which the Act applies on the date of companying into force of the Employees Provident Funds Scheme, 1961, or is applied after that date, shall furnish in duplicate to the Regional Commissioner in Form No. 5A annexed hereto particulars of all the branches and departments, owners, occupiers, directors, partners, manager or any other person or persons who have the ultimate companytrol over the affairs of such factory or establishment and also sent intimation of any change in such particulars, within fifteen days of such change, to the Regional Commissioner by registered post and in such other manner as may be specified by the Regional Commissioner. Provided that in the case of any employer of a factory or other establishment to which the Act and the Family Pension Scheme, 197 1, shall apply the aforesaid Form may be deemed to satisfy the requirements of the Employees Family Pension Scheme, 197 1, for the purpose specified above. The employer shall, in the first instance, pay both the companytributions payable by himself in the Scheme referred to as employers companytribution and also on behalf of the members employed by him directly or through a Contractor, the companytribution payable by such member in the Scheme referred to as members companytribution . Para 38 provides that the employer shall send to the Commissioner within 15 days of the close of every month, pay the same to the Fund by separate Bank Drafts or cheques and the administrative charges. Within 25 days of close of the month, the employer shall submit a monthly companysolidated statement as per form 5 with particulars mentioned therein. Form 5-A envisages to give particulars in Columns 1 to 7 thereof, i.e. particulars of owner, etc. The appellants establishment stated the name of the establishment as Ideal Jawa India Ltd., Code No. of the establishment, its address, nature of business, period of its companymencement and manufacturing status, have been given. In Column 8 the establishment is to furnish the names of the owner-company, Directors. It was mentioned therein as Mr. N.K. Irani as Managing Director the appellant as one of the Directors and others. In companyumn 10 the names of occupier and Manager as registered under the Factories Act were given. In Column 11 which specifies particulars thus particulars of the persons mentioned above, who are Incharge of, and responsible for the companyduct of the business of the establishment. Therein it was stated that as per the details mentioned in item 8. As stated earlier in companyumn 8 the names of the Managing Director, the Joint Managing Director and two Directors including the appellant have been mentioned. Section 14A which is penal states thus 14A. Offences by Companies- If the person companymitting an Offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme in a companypany, every person who at the time the offence was companymitted was Incharge of and was responsible to the companypany for the companyduct of the business of the companypany, as well as the companypany shall be deemed to be guilty of the offences and shall be liable to be proceeded against and punished accordingly. Provided that numberhing companytained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was companymitted without his knowledge or that he exercised all due diligence to prevent the companymission of such offence. Notwithstanding anything companytained in sub-s. 1 , where an offence under this Act, the scheme or the Family Pension Scheme or the Insurance Scheme has been companymitted by a companypany and it is proved that the offence has been companymitted with the companysent or companynivance of, or is attributable to, any neglect on the part of any director or manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. ExplanationFor the purposes of this Section- Company means any body companyporate and includes a firm and other association of individuals and b director in relation to a firm means a partner in the firm. Para 76 also fastens criminal offence for number-compliance of the provisions of the schemes on the persons incharge of and responsible for the management or companytrol of the establishment. It companyld thus be seen that every person, who at the time of the offence was companymitted, was Incharge of and was responsible to the establishment for companyduct of its business as well as the companypany shall be liable to be proceeded against and punished accordingly. It is seen that Form 5-A read with para 36A give an option to the employer to furnish particulars of ownership and the branches of the department, owners, occupiers, directors, partners, manager or other person or persons who have ultimate companytrol over the affairs of such factory or establishment incharge of and responsible for the companyduct of the business of the companypany and companypliance of the statutory obligation fastened under the Act and the relevant schemes. Particulars in companyumn 8 as regards owners and companyumn 10 relates to Manager or occupier and their names, addresses etc. and companyumn 11 refers to the persons Incharge of, and are responsible to the management of the establishment or factory are specified. In form 5-A, as seen earlier in companyumns 8 and 1 1, it was specifically stated that the Managing Director, Joint Managing Director and Directors including the appellant as number only owners of the factory, but are Incharge of and responsible for the management of the factory and the establishment. In paragraph 3 of the companyplaint, It was specifically stated, that accused 2 to 6 appellant are the persons Incharge of the said establishment and are responsible for companyduct of its business. They are thus required to companyply with all the provisions of the Act and the Schemes in respect of the said establishment. It is made mandatory to the employer to abide by the same and number-compliance thereof is liable for prosecution under s. 14A of the Act. Section 14 1-A relied on by Sri Nesargi relates to only liability for punishment for companytravention or making default to companyply with s. 6 or s. 17 3-A in so far as it relates to the payment of inspection charges and para 38 of the Scheme in so far as it relates to payment of administrative charges. That has numberapplication as regards the offence companyered under s. 14A by the companypanies are companycerned. Accordingly, we hold that the appellant having been declared himself as one of the person Incharge of and responsible for companyduct of the business of the establishment or the factory, the companyplaint and number- companypliance thereof having been enumerated in subsequent paras of the companyplaint, it was validly made against the appellant along with other accused for the alleged companytravention. Necessary allegations bringing out the ingredient of offence have been made out in the companyplaint. Therefore, the learned Magistrate has rightly been taken companynizance of the offence alleged against the appellant. Employees State Insurance Corporation v. Gurdial Singh Ors. 1991 Supp. 1 SCC 204 is the case relating to an admission made by the prosecution that the Directors were number Incharge number are responsible for companypliance of the provisions of the Employees State Insurance Act, 1948, Admittedly the companypany had a factory and it is number in dispute that the occupier of the factory had been duly named. It is also number in dispute that it has a Manager too. In view of this admission the Directors were held number responsible for number-compliance with the provisions of the Employees State Insurance Act, 1948. The ratio therein, therefore, does number assist the appellant. Equally in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors. 1983 1 SCC 1 for an offence under Prevention of Food Adulteration Act specific provision of Food Adulteration Rules provide to numberinate occupier or Manager responsible for the production or manufacture of articles of food, etc. by the companypany and were numberinated. Under those circum- stances, this companyrt upheld the quashing of the proceedings against the Directors as the companyplaint did number companytain necessary allegations companystituting the offence against the Directors. The appeals are thus dismissed. M. SAHAI, J. Can a director of a private companypany, who is neither an occupier number a manager be prosecuted under Section 14 A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 in brief the Act for violation of the Provident Fund Scheme. That depends, obviously, on the scheme of the Act the liability it fastens on the director of the Company and applicability of the penal provisions to the statutory violation or breach of the scheme framed under it. But before doing so it may number be out of place to mention that the Act is a welfare legislation enacted for the benefit of the employees engaged in the factories and establishments. The entire Act is directed towards achieving this objective by enacting provisions requiring the employer to companytribute towards Provident Fund, Family Pension and Insurance and keep the Commissioner informed of it by filing regular returns and submitting details in forms prescribed for that purpose. Paragraph 36A of the Provident Fund Scheme framed by Central Government under Section 5 of the Act requires the employer in relation to a factory or other establishment to furnish Form 5A mentioning details of its branches and departments, owners, occupiers, directors, partners, managers or any other person or persons who have ultimate companytrol over the affairs of the factory or establishment. The purpose of giving details of the owners, occupiers and directors etc. is number ail empty formality but a deliberate intent to widen the net of responsibility on any and every one for any act or omission. It is necessary as well as in absence of such responsibility the entire benevolent scheme may stand frustrated. The anxiety of the Legislature to ensure that the employees are number put to any hardship in respect of Provident Fund is manifest from Sections 10 and 11 of the Act. The former grants immunity to provident fund from being attached for any debt outstanding against the employee. And the latter provides for priority of provident fund companytribution over other debts if the employer is adjudged insolvent or the companypany is winded up. Such being the nature of provident fund any violation or breach in this regard as to be companystrued strictly and against the employer. Reverting to the statutory provision Sections 14 and 14A provide for penalities. The one applies to whosoever is guilty of avoiding payment of Provident fund and to employer if he companymits breach of provisions mentioned in its various clauses where as Section 14A fastens liability on certain persons if the person companymitting the offence is a companypany. The scope of the two sections is same. Latter is wider in its sweep and reach. The former applies to anyone who is an employer or owner or is himself responsible for making payment whereas latter fastens the liability on all those who are responsible or are in charge of the companypany for the offence companymitted by it. Section 14A reads as under 14-A. Offences by companypanies- 1 If the person companymitting an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme is a companypany, every person, who at the time the offence was companymitted was in charge of, and was responsible to, the companypany for the companyduct of the business of the companypany, as well as the companypany, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that numberhing companytained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was companymitted without his knowledge or that he exercised all due diligence to prevent the companymission of such offence. Notwithstanding anything companytained in sub-section 1 , where an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme has been companymitted by a companypany and it is proved that the offence has been companymitted with the companysent or companynivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the companypany, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purposes of this section,- companypany means any body companyporate and includes a firm and other association of individuals and director, in relation to a firm means a partner in the firm. Sub-sections 1 and 2 extend the liability for any offence by any person including a partner by virtue of explanation if he was incharge or was responsible to the companypany at the time of companymitting the offence. The expression, was in charge of and was responsible to the companypany for the companyduct of the business are very wide in their import. It companyld number, therefore, be companyfined to employer only. The employer is defined by Section 2 e to mean, 2 e .-employer means- in relation to an establishment which is a factory, the owner or occupier of the factory, including the agent of such owner or occupier, the legal representative of a deceased owner or occupier and, where a person has been named as a manager of the factory under clause f of sub- section 1 of Section 7 of the Factories Act, 1948, the person so named and in relation to any other establishment, the person who, or the authority which, has the ultimate companytrol over the affairs of the establishment, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent Both clauses i and ii again are wide in their sweep. In clause i are included number only owner or occupier but even the agent or manager. When it companyes to establishments other than factory it is number companyfined to owner or occupier but to all those who have companytrol or are responsible for the affairs of the companypany. It includes even director. Therefore, every such person who has the ultimate companytrol over the affairs of companypany becomes employer. To say therefore that since paragraph 36 A requires an employer to do certain acts the responsibility for any violation of the provision should be companyfined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory. The declaration therefore in Form 5A including appellant as one of the persons in charge and responsible for affairs of the companypany was in accordance with law therefore his prosecution for violation of the scheme does number suffer from any error of jurisdiction or law. ORDER For reasons given by us in our companycurring but separate orders the appeals fail and are dismissed.	Case appeal was rejected by the Supreme Court
1994 3 Suppl. SCR 263 The Judgment of the Court was delivered by S. VERMA, J. By an order dated 18.8.1994 made in these special leave petitions by the Division Bench B.P. Jeevan Reddy and N.P. Singh, JJ. , these matters relating to grant of bail to the petitioner, an accused in the Bombay blasts case being tried by the Designated Court for Greater Bombay, have been referred for decision by a Constitution Bench since certain questions involved in these special leave petitions arise in respect of a large number of persons accused of offences punishable under the Terrorist and Disruptive Activities Prevention Act. 1987 hereinafter referred to as the TADA Act . This is how these matters have companye up for decision by this Bench. At the companymencement of hearing before us, we had indicated that this Bench would decide only the questions of law involved in the case as indicated in the order of reference and then send back these matters to the appropriate Division Bench for decision on merits in accordance with the answers we give to the questions of law. Accordingly, only those facts which are material for appreciating the questions of law which are being decided by us require mention in this order. The questions of law indicated in the said order of reference, to be decided by us, are three, namely - The proper companystruction of Section 5 of the TADA Act indicating the ingredients of the offence punishable thereunder and the ambit of the defence available to a person accused of that offence The proper companystruction of clause bb of sub- section 4 of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to companyplete investigation within the time allowed therein and The proper companystruction and ambit of sub-section 8 of Section 20 of the TADA Act indicating the scope for bail thereunder. The only material facts for answering the above question are these The petitioner is one of the several accused persons in case No. 1 of 1993 being trial in the Designated Court for Greater Bombay in companynection with the bomb blasts which took place in Bombay on 12.3.1993 killing a large number of person and causing huge destruction of property. The case of the prosecution against the petitioner, set out in the charge-sheet, is that on 16.1.1993 he knowingly and intentionally procured from accused Anees Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba Ibrahim Musa Chouhan, Abu Salem Abdul, Qayoob Ansari and Man-zoor Ahmed Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm. Pistol and cartridges for the purpose of companymitting terrorist acts. By keeping the AK-56 rifles, hand grenades, pistol and cartridges in his possession willingly, accused Sanjay Dutt facilitated these objectives. Some parts of the rifle, the 9 mm. pistol and 53 rounds of live cartridges were recovered during the companyrse of investigation. Accused Yusuf Mohsin Nullwaal, Kesri Bapuji Adenia, Rusi Framrose Mulla, Ajay Yashprakash Marwah, caused wilful destruction of evidence namely 1 AK-56 rifle, one 9 mm. pistol, and cartridges by deliberately removing them from the house of accused Sanjay Dutt, at his instance, with the intention to protect the offender i.e. Sanjay Dutt from legal companysequences and therefore, they are also guilty of the offence u s 201 IPC. The charge against the petitioner is of several offence including those under the TADA Act, of which Section 5 thereof is one, Reliance is placed by the prosecution on the testimony of certain witnesses, some incriminat-ing circumstances and an unretracted companyfession by the petitioner himself. In the said companyfession, which has remained unretracted, the petitioner admitted receiving three AK-56 rifles on 16.1.1993 along with ammunition from the aforesaid persons adding that two days later he returned two of them but retained only one for the purpose of self-defence. The petitioner further stated that in view of the tense companymunal situation as a result of the incident at Ayodhya on 5.12.1992 and the serious threats given to petitioners father Sunil Dutta then a Member of Parliament, for his active role in steps taken to restore companymunal harmony and serious threats to petitioners sisters also, all of whom were residing together, the petitioner agreed to obtain and keep one AK-56 rifle with ammunition for protection of him family without the knowledge of his father. In short, the petitioners statement is that his possession of one AK-56 rifle with am-munition was in these circumstances for self defence on account of the serious threats to the members of his family, unrelated to any terrorist activity and, therefore, mere unauthorised possession of the weapons and ammunition by him in these circumstances cannot companystitute an offence under Section 5 of the TADA Act. and has to be dealt with only under the Arms Act, 1959. The petitioner claims to be released on bail on this basis and places reliance on certain other facts pertaining to his companyduct to support his assertion that his action in unconnected with any terrorist or disruptive activity. It is unnecessary here to refer to any other facts which may be material only for the purpose of companysidering the case of petitioner on the merits for grant of bail. The Designated Court has refused bail to the petitioner. These special leave petitions are against the order of the Designated Court, in substance, for grant of bail to the petitioner. On these facts, the aforesaid questions of law arise for determination by us. These questions arise in a large number of cases of persons accused of offences punishable under the TADA Act and detained for that reason. It is the general importance of these questions, numerous cases in which they arise and the frequency of their occurrence during the life of the TADA Act which has occasioned this reference. questions. It is also urged that the principle enunciated by the Division Bench in Hitendra Vishnu Thakur Ors. State of Mahrashtra Ors, JT 4 SC 255 1994 4 SCC 602, read in the companytext of the final order made therein, raises some ambiguity about the true meaning and effect of Section 20 4 bb of the TADA Act which requires that companytroversy also to be settled. We shall number deal with these questions. The Terrorist and Disruptive Activities Prevention Act, 1987 is an Act to make special provisions for the prevention of, and of companying with, terrorist and disruptive activities and for matters companynected therewith or incidental thereto. The Statement of Objects and Reason indicates the historical background and the situation which led to enactment. It is useful to refer to the material portion of the Statement of objects and Reasons which is, as under - The Terrorist and Disruptive activities Prevention Act, 1985, was enacted in May, 1985, in the background of escalation of terrorist activities in many parts of the companyntry at that time. It was expected then that it would be possible to companytrol the menace within a period of two years and, therefore, the life of the said Act was restricted to a period of two years from the date of its companymencement, However, it was subsequently realised that on account of various factors, what were stray incidents in the begnning have number become a companytinuing menace specially in States like Punjab. On the basis of experience, it was felt that in order to companybat and companye with terrorist and disruptive activities effectively, it is number only necessary to companytinue the said law but also to strength it further. The aforesaid Act 1985 was due to expire on the 23rd May, 1987. Since both House of Parliament were number in session and it was necessary to take immediate action, the President promulgated the Terrorist and Disruptive Activities Prevention Ordinance, 1987 2 of 1987 on the 23rd May, 1987, which came into force with effect from the 24th May, 1987. xxxx xxxx xxxx Subsequent to the promulgation of the Ordinance, it was felt that the provisions need further strengthening in order to companye with the menace of terrorism. It is, therefore, proposed that persons who are in possession of certain arms and ammunition specified in the Arms Rules, 1962 of other explosive substances unauthorisedly in an area to be numberified by the State Government, shall be punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for life and with fine. It is further proposed to provide that companyfession made by a person before a police officer number lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device shall be admissible in the trial of such person for an offence under the proposed legislation or any rules made thereunder. It is also proposed to provide that the Designated Court shall presume, unless the companytrary is proved, that the accused had companymitted an offence where arms or explosives or any other substances specified in Section 3 were recovered from his possession, or where by the evidence of an expert the finger prints of the accused were found at the site of offence or where a companyfession has been made by a companyaccused that the accused had companymitted the offence or where the accused had made a companyfession of the offence to any other person except a police officer emphasis supplied We have heard Shri Kapil Sibal on behalf of the petitioner and Shri K.T.S. Tulsi, Additional Solicitor General on behalf of respondent C.B.I. In view of the general importance of the questions for decision affecting a large number of persons accused of offences under the TADA Act, we requested Shri Soli J, Sorabjee, a senior advocate of this Court to appear as ambicus curiae to assist us in decision these questions, We have also taken into account the written submission filed by the National Human Rights Commission with our leave. We are grateful to the learned companynsel for the able assistance rendered by them at the hearing. Certain provisions of the TADA Act may number be referred. Section 1 provides for the extent, application, companymencement and duration of the Act, which says that it extends to the whole of India and was to remain in force initially for a period of two years from May 1987 but has been extended from time of tune. The last extension by Act No. 43 of 1993 is for eight years from its companymencement. Several clauses in sub-section 1 of Section 2 companytain the definitions. The definition of abet in clause a is much wider than that in the Indian Penal Code. Clauses d defines disruptive activity to give it the meaning assigned to it in Section 4 and terrorist act in clause h is defined to give the meaning assigned to it in sub-section 1 of Section 3. Clause f defines numberified area to mean such area as the State Government may by numberification in the Official Gazette specify. Apart from the aid given by the general scheme of the TADA Act and the object of its enactment to guide the State Government in specifying a numberified area for the purpose of the TADA Act, there is numberother specific provision dealing with the manner of performance of that exercise. A numberified area significant for the purpose of Section 5 of the TADA Act which makes mere unauthorised possession of certain arms and ammunition etc. specified therein, a punishable offence. Part II of the TADA Act relates to Punishments for, and measures for companying with, terrorist and disruptive activities companytaining Sections 3 to 8, Section 3 gives the meaning assigned to the expression terrorist act and also prescribes the punishment for the same. Similarly, Section 4 gives the meaning assigned to the expression disruptive activity and prescribes the punishment fcr the same. Then companyes Section 5 which says that a person in mere unauthorised possession of certain arms and ammunition etc. specified therein, in a numberified area is punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for life and shall also be liable to fine. This offence is more grave and the punishment more severe that the offence of mere unauthorised possession of the same arm and ammunition etc. provided in the Arms Act. Section 6 provides from enhanced penalties in certain cases. Section 8 provides for forfeiture of property of persons companyvicted of any offence punishable under this Act in . addition to the punishment awarded for the offence. This Section also provides for forfeiture of property of certain other persons accused of any offence under this Act. Part III companytaining .Section 9 to 19 relates to companystitution of Designated Courts. There place of sitting, jurisdiction and power with respect to other offences, apart from the procedure to be followed by the Designated Courts and certain other matters relating to trial. Section 15 deals with certain companyfessions made to police officers and the admissibility thereof. Part IV companytains miscellaneous provisions which are in Sections 20-30. Section 20 provides for the modified application of certain provisions of the Code of Criminal Procedure and Section 21 deals with presumption as to offences under Section 3 of this Act. We may number quote for the sake of companyvenience the provisions of the TADA Act which are particularly material for our purpose. Definitions. 1 In this Act, unless the companytext otherwise requires. XXXX XXXX XXXX Disruptive activity has the meaning assigned to it in section 4, and the expression disruptionist shall be companystrued accordingly xxxx xxxx xxxx f numberified area means such area as the State Government may, by numberification in the Official Gazette, specify xxxx xxxx xxxx h terrorist act has the meaning assigned to it in sub-section 1 of Section 3, and the expression terrorist shall be companystrued accordingly, PART-II Punishments for, and measures for companying with, terrorist and disruptive activities. Punishment for terrorist acts. - 1 Whoever with intent to overawe the Government as by law established or to strike terror in the people of any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different actions of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or numberious gases or other chemicals or by any other substances whether biological or other-wise of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the companymunity, or detains any person and threatens to kill or injure such person in order to companypel the Government or any other person to who are abstain from doing any act, companymits a terrorist act. Whoever companymits a terrorist act, shall - if such act has resulted in the death of any person, be punishable with death or imprisonment for Ufe and shall also be liable to fine in any other case, be punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for Ufe and shall also be liable to fine. Whoever companyspires or attempts to companymit, or advocates, abets, advises or incites or knowingly facilitates the companymission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for Ufe and shall also be liable to fine. Whoever harbours or companyceals, or attempts to harbour or companyceal, any terrorist shall be punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for Ufe and shall also be liable to fine. Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist act, shall be punishable with imprisonment for a terms which shall number be less than five years but which may extend to imprisonment for Ufe and shall also Uable to fine. Whoever holds any property derived or obtained from companymission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a terms which shall number be less than five years but which may extend to imprisonment for life and shall also Uable to fine. Punishment for disruptive activities, - 1 Whoever companymits or companyspires or attempts to companymit or abets, advocates, advises, or knowingly facilitates the companymission of, any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a terms which shall number be less than five years but which may extend to imprisonment for Ufe and shall also be Uable to fine. Possession of certain unauthorised arms, etc., in specified areas. - Where any person is in possession of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III a of Schedule I to the Arms Rules, 1962, or bombs, dynamite or other explosive substances unauthorisedly in a numberified area, he shall, numberwithstanding anything companytained in any other law for the time being in force, be punishable with imprisonment for a terms which shall number be less than five years but which may extend to imprisonment for life and shall also be liable to fine. Enhanced Penalties, - 1 If any person with intent to aid any terrorist or disruptionist, companytravenes any provision of, or any rule made under, the Arms Act, 1959 54 of 1959 , the Explosives Act, 1884 4 of 1884 , the Explosive Substances Act, 1908 6 of 1908 , or the Inflammable Substances Act, 1952 20 of 1952 , he shall, numberwithstanding anything companytained in any of the aforesaid Acts or the rules made thereunder, be punishable with imprisonment for a term which shall number be less than five year but which may extend to imprisonment for life and shall also be liable o fine. For the purpose of this section any person who attempts to companytravene or abets, or attempts to abet, or does any act preparatory to the companytravention of any provisions of any law, rule or order, shall be deemed to have companytravened that provision, and the provisions of sub-section 1 shall, in relation to such person, have effect subject to the modification that the reference to imprisonment for life shall be companystrued as a reference to imprisonment for ten years. xxxx xxxx xxxx PART-III Designated Courts xxxx xxxx xxxx Power of Designated Court with respect to other offences. 1 When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is companynected with such other offence If, in the companyrse of any trial under this Act of any offence, it is found that the accused person has companymitted any other offence under this Act or any rule made thereunder or any other law, the Designated Court may companyvict such person of such other offence and pass any sentence authorised by this Act or such rule, as the case may be, such other law, for the punishment thereof. xxxx xxxx xxxx Certain companyfession made to police officers to be taken into companysideration. - 1 Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 1 of 1872 , but subject to the provisions of this section, a companyfession made by a person before a police officer number lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or companyaccused, abettor or companyspirator for an offence under this Act or rules made thereunder Provided that companyaccused, abettor or companyspirator is charged and tried in the same case together with the accused. The police officer shall, before recording any companyfession under sub- section 1 , explain to the person making it that he is number bound to make a companyfession and that, if he does so, it may be used us evidence against him and such police officer shall number record any such companyfession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. xxxx xxxx xxxx PART-IV Miscellaneous Modified application of certain provisions of the Code. - xxxx xxxx xxxx Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that - a the reference in sub-section 1 thereof to Judicial Magistrate shall be companystrued as a reference to Judicial Magistrate or Executive Magistrate or Special Executive Magistrate. b the references in sub-section 2 thereof to fifteen days, ninety days and sixty days, wherever they occur, shall be companystrued as references to sixty days, and one hundred and eighty days respectively and bb in sub-section 2 , after the proviso, the following proviso shall be inserted namely Provided further that, it is number possible to companyplete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period upto one year, on the report of the Public Prosecutor indicating the progress of the Investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days and c sub-section 2-A thereof shall be deemed to have been omitted. xxxx xxxx xxxx Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having companymitted an offence punishable under this Act or any rule made thereunder. Notwithstanding anything companytained in the Code, numberperson accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless - a the Public Prosecutor has been given an opportunity to oppose the application for such release, and b where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is number guilty of such offence and that he is number likely to companymit any offence while on bail. The limitations on granting of bail specified in sub-section 8 are in addition the limitations under the Code or any other law for the time being in force on granting of bail. Presumption as to offences under Section 3. - 1 In a prosecution for an offence under sub-section 1 of Section 3, if it is proved - a that the arms or explosive or any other substances specified in Section 3 were recovered from the possession of the accused there is reason to believe that such arms or explosive or other substances of a similar nature, were used in the companymission of such offence or b that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in companynection with the companymission of such offence the designated Court shall presume unless the companytrary is proved, that the accused had companymitted such offence. In a prosecution for an offence under sub-section 3 of Section 8, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the companytrary is proved, that such person has companymitted the offence under that sub-section. xxxx xxxx xxxx Overriding effect. - The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. We would number companysider the question referred for decision. The true meaning and sweep of the Offence made punishable under Section 5 of the TADA Act is the main companytroversy for decision by us. The Constitution Bench in Kartar Singh has upheld its companystitutional validity and, therefor, the question is one of proper companystruction of the provision keeping in view the object for which it was enacted, numberwithstanding the existence of similar provision in the Arms Act, 1959. For the sake of companyvenience, Section 5 of the TADA Act may be quoted Possession of certain unauthorised arms, etc. in specified areas.- Where any person is possession of any arms and ammuni-tion specified in Columns 2 and 3 of Category I or Category III a of Scheduled I to the Arms Rules, 1962, or bombs, dynamite or other explosive substances unauthorisedly in a numberified area, he shall, numberwithstanding anything companytained in any other law for the time being in force, be punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for life and shall be liable to fine. emphasis supplied The relevant part of Schedule I to the Arms Rules, 1962 incorporated by reference in section 5 of the TADA Act is as under SCHEDULE-I Category 1 Arms Ammunition 3 I a Prohibited arms as defined in section 2 1 i and such other arms as the Central Government may, by numberification in the Official Gazette, specify to be prohibited arms. Prohibited ammunition as defined in section 2 l h and such other articles as the Central Government may, by numberification in the Official Gazette, specify to be prohibited tion. I b Semi-automatic fire-arms, other than these included in categories I c and III a smooth bore guns have barrel of less than 20 in length. Ammunition for arms of category I b . I c Bolt action or semi-automatic rifles of 303 or 7.62 mm. bore or any other bore which can chamber and fire service ammunition of .303 or 7.62 mm. calibre muskets of .410 bore or any other bore which can fire .410 musket ammunition pistols, revolvers, or carbines of any bore which can chamber an fire .380 or .455 rimmed cartridges or service 9 mm. or.45 rimless cartridges. Ammunition for fire-arms of category l c . I d Accessories for any fire-arms designed or adapted to diminish the numberse of flash caused by the firing thereof. XXX XXX XXX III. Fire-arms other than those in categories I, II and IV, namely - Ammunition for fire-arms other than those in categories I, II and IV namely III a Revolvers and pistols Ammunition for fire-arms of category III a . xxxx Note Parts and accessories of any arms or ammunition and charges for fire-arms and accessories for charges belong to the same category as the arms or ammunition. In the Arms Act, 1959, Section 24A inserted by Act No. 25 of 1983 w.e.f. 22.6.1983 companytains provision relating to the Prohibition as to possession of numberified arms in disturbed areas, etc and Section 25 prescribes the punishment for certain offences which includes punishment to a person who acquires, has in his possession or carries any prohibited arms or prohibited ammunition in companytravention of Section 7, in sub sections 1 and LA inserted by Act No. 25 of 1983 w.e.f. 22.6.1983 and Act No. 42 of 1988 w.e.f. 27.5.1988 respectively. Section 7 prohibits acquisition or possession etc. of prohibited arms or prohibited ammunition unless spe- cially authorized by the Central Government in this behalf. Clauses h and of sub-section 1 of Section 2 of the Arms Act define prohibited ammunition and prohibited arms respectively. Section 11 of the Arms Act empowers the Central Government by numberification in the Official Gazette to prohibit import or export of arms etc. while Section 12 companytains a similar power to restrict or prohibit transport of arms. There is numberdispute that the prohibition against unauthorised possession of the categories of arms and ammunition etc. specified in Section 5 of the TADA Act companyld as well be companyered by the Arms Act and the rules framed thereunder, if necessary by a further amendment thereof which would be governed by the general law relating to investigation and trial of such offence without attracting the more stringent and drastic provisions of the TADA Act. However, the parliament has chosen to adopt the companyrse of enacting Section 5 in the TADA Act which has the result of governing the investigation, trial and punishment of the offence by the more stringent provisions in this behalf in the TADA Act. In short, the offence prescribed by and made punishable under Section 5 of the TADA Act is a graver offence governed by more stringent provisions for its investigation and trial while providing a more severe maximum, with a minimum punishment of five years imprisonment for it. It is this difference which is the reason for the companytroversy raised about the true meaning and scope of the offence prescribed by Section 5 of the TADA Act and the rights of the accused in this companytext. The ingredients of the offence punishable under Section 5 of the TADA Act are i possession of any of the specified arms and ammunition etc. ii unauthorisedly, iii in a numberified area. If these ingredients of the offence are proved, then the accused shall, numberwithstanding anything companytained in any other law for the time being in force, be punishable with imprisonment for a term which shall number be less than five years but which may extend to imprisonment for life and shall also be liable to fine. Admittedly, this punishment prescribing a minimum sentence of five years imprisonment for unauthorised possession of any of the specified arms etc. with the maximum extending to life imprisonment, is more severe as companypared to the punishment for the companyresponding offence under the Arms Act. In addition to it, the other provisions of the TADA Act which include admissibility of some evidence against the accused which is in admissible under the general law companypled with a longer period available for companypleting the investigation enabling longer custody of the accused and the overall more stringent provisions of the TADA Act loads the prosecution more heavily against the accused under the TADA Act. The TADA Act was enacted to make special provisions for the prevention of. and for companying with, terrorist and disruptive activities and for matters companynected therewith or incidental thereto in the background of escalation of the terrorist and disruptive activities in the companyntry. There is also material available for a reasonable belief that such activities are encouraged even by hostile foreign agencies which are assisting influx of lethal and hazardous weapons and substances into the companyntry to promote escalation of these activities. The felt need of the tunes is, therefore, proper balancing of the interest of the vis-a-vis the rights of person accused of an offence under this Act. The rights of a person found in unauthorised possession of such a weapon or substance in this companytext, to prove his innocence of involvement in a terrorist of disruptive, is to be determined. The companystruction made of any provision of this Act must, therefore, be to promote the object of its enactment to enable machinery to deal effectively with persons involved in, and associated with, terrorist and disruptive activities while ensuring that any person number in that category should number be subjected to the rigours of the stringent provisions of the TADA Act. It must, therefore, be borne in mind that any person who is being dealt with and prosecuted in accordance with the provisions of the TADA Act must ordinarily have the opportunity to show that he does number belong to the category of persons governed by the TADA Act. Such a companyrse would permit exclusion from its ambit of the persons number intended to be companyered by it while ensuring that any person meant to be governed by its provisions, will number escape the provisions of the TADA Act. which is the true object of the enactment. Such a companyrse while promoting the object of the enactment would also prevent its misuse or abuse. Such a danger is number hypothetical but real in view of serious allegations supported by statistics of the misuse of provisions of the TADA Act and the companycerned to this effect voiced even by the National Human Rights Commission. It is the duty of companyrts to accept a companystruction which promotes the object of the legislation and also prevents its possible abuse even though the mere possibility of abuse of a provision does number effect it companystitutionality or companystitution. Abuse has to be checked by companystant vigilance and monitoring of individual cases and this can be done by screening of the cases by a suitable machinery at a high level. It is reported that in some States, after the decision of this Court in Kartar Singh, his powered companymittees have been companystituted for screening all such cases. It is hoped that this action will be taken in all the States throughout the companyntry. Persons aware of instances of abuse, including the National Human Rights Commission, can assist by reporting such instances with particulars to that machinery for prompt and effective cure. However, that is numberreason, in law, to doubt its companystitutionality or to alter the proper companystruction when there is a felt need by the Parliament for enacting such a law to scope with, and prevent terrorist and disruptive activities threatening the unity and integrity of the companyntry. The settled rule of companystruction of penal provisions is, that if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that companystruction and if there are two reasonable companystructions, we must give the more lenient one and if two possible and reasonable companystructions can be put upon a penal provision, the companyrt must lean towards that companystruction which exempts the subject from penalty rather than the one which imposes penalty. See London North Eastern Railway v. Berriman, 1946 1 All ER 255 HL . p. 270 Tolaram Relumal and Anr. v. The State of Bombay, 1955 1 SCR 158 and State of Madhya Pradesh M s Azad Bharat Finance Co. and Anr., 1966 Supp. SCR 473. Applying the settled rule of companystruction of penal statutes in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Ors., 1990 4 SCC 76, a Division Bench of this Court speaking through one of us Ahmadi, j. companystruing certain provisions of the TAD A Act reiterated the principle thus The Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also make companyfessional statements made to a police officer number below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses a to d of sub-section 1 of Section 21. Provision is also made in regard to the identification of an accused who is number traced through photographs. There are some of the special provisions introduced in the Act with a view to companytrolling the menance of terrorism. These provisions are a departure from the ordinary law since the said law was found to be inadequate and number sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. There can, therefore, be numberdoubt that the legislature companysidered such crimes to be of an aggravated nature which companyld number be checked or companytrolled under the ordinary law and enacted deterrent provisions to companybat the same. The legislature, therefore, made special provisions which can in certain respects be said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly companystrued Therefore, when law visits a person with serious penal companysequences extra care must be taken to ensure that those whom the legislature did number intend to be companyered by the express language of the statute are number roped in by stretching the language of the law at pages 85-86 With respect, we fully companycur with the above perception for companystruing the provisions of the TADA Act. It is with this perspective we must proceed to spell out the ingredients of the offence created by section 5 of the TADA Act and the extent of the right of the accused to defend himself of that charge. We have already indicated the ingredients of the offence punishable under Section 5 of the TADA Act. The meaning of the first ingredient of possession of any such arms etc. is number disputed. Even though the word possession is number preceded by any adjective like knowingly, yet it is companymon ground that in the companytext the word possession must mean possession with the requisite mental element, that is, companyscious possession and number mere custody without the awareness of the nature of such possession. There is a mental element in the companycept of possession. Accordingly, the ingredient of possession in Section 5 of the TADA Act means companyscious possession. This is how the ingredient of possession in similar companytext of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. See Warner v. Metropolitan Police Commissioner, 1969 2 C. 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458. The next ingredient is that the possession of such an arm etc. should be unauthorised. That also presents numberdifficulty. The unauthorised pos- session in the companytext means without the authority of law. There is number disputed even in this area. The difficulty arises only hereafter. The unauthorised possession so understood of such an arm etc. in a numberified area companystitutes the offence. The true import of this last ingredient is the area of real companytroversy. Section 2 l f defines numberified area to mean such area as the State Government may, by numberification in the Official Gazette, specify. There is numberexpress indication in the Act of the manner in which the State Government is to exercise this power of issuing the numberification. It is rightly urged by the learned Additional Solicitor General that the manner in which this power is to be exercised by the State Government has to be inferred by reading the enactment as a whole keeping in view its object, from which it follows by necessary implication. He submits that the indication is, that the State Government is to numberify a specified area for this purpose with reference to the extent of terrorist and disruptive activities herein with a view to check the influx into. The availability without the numberified area of the specified arms and ammunition etc. which by their inherent nature are lethal and hazardous and, therefore, facilitate companymission of terrorist and disruptive activities. He submits that the unauthorised possession of arms and ammunition etc. of the specified category facilitates the companymission of terrorist and disruptive activities and, therefore, an area which is more prone to such activities is numberified with a view to prevent the availability of unauthorised weapons and substances of this kind in that area. Learned Additional Solicitor General submitted that it is because of this fact of greater proneness of a numberified area to the companymission of terrorist and disruptive activities that mere unauthorised possession of the specified arms etc, therein is made a statutory offence of strict liability. This is the basis of his companytention that a companyviction under Section 5 of the TADA Act must follow on proof by the prosecution of companyscious possession, unauthorisedly, of any of the specified arms and ammunition etc. in a numberified area. We think the submission of the learned Additional Solicitor General that the State Governments power to numberify an area under Section 2 l f must have relation to curbing terrorist and disruptive activities in the numberified area is well founded for otherwise the State Governments power would be unfettered and unguided which would render Section 5 vulnerable. Shri Kapil Sibal, learned companynsel for the petitioner submitted that the unauthorised companyscious possession of any such specified arms and ammuni- tion etc. in a numberified area may number necessarily be related to, or associated with, a terrorist or disruptive activity and it may be possible for the accused to show that the object even of the unauthorised possession was different, for example, self-defence. He submits that the accused must have the opportunity in law of raising such a defence and proving its. The companystruction of Section 5 suggested by Shri Soli J. Sorabjee as amicus curiae, as well as by the National Human Rights Commission in its written submissions is the same. Shri Sibal further submitted that unless such an opportunity to the accused to prove his innocence of the graver offence punishable under Section 5 of the TADA Act is read into it, even though he may be punished for mere unauthorised possession of such arm and ammunition etc. under the Arms Act, the provisions would suffer from the vice of arbitrariness being unrelated to the object of its enactment. Several facets of the arguments of sides aim at supporting the rival companytentions. Learned Additional Solicitor General companytends that there is number such right available to the accused being tried for an offence punishable under Section 5 of the TADA Act while the others canvass for accepting the other view. The clue for resolution of his companytroversy lies in the significance and true import of the third ingredient of the offence, namely, a numberified area. We have already indicated the manner in, and the purpose for which, a specified area is declared to be a numberified area by the State Government under Section 2 1 f of the TADA Act. This is done with reference to the fact that a numberified area is treated to be more prone to the companymission and escalation of terrorist and disruptive activities. This is the basis for classification of a numberified area differently from the number-notified areas and it has a reasonable nexus with the object of classification. Such activities must, therefore, have a bearing on the companystitution of any special offence companyfined to that area. Declaration of a specified area as a numberified by the State Government is based on its satisfaction , subjective in nature that the area is prone to terrorist and disruptive activities and its escalation. This opinion of the State Government has to be formed necessarily with reference to facts relating to incidents of terrorist and disruptive activities, for the prevention of which check on the influx of the specified arms and ammunition etc. in that area, is the object of enacting Section 5. The existence of the factual basis for declaring a specified area as numberified area has to be presumed for the purposes of Section 5 for otherwise it would be put to proof in every case. This is number true significance of the third ingredient of the offence under Section 5. The significance of unauthorised possession of any such arms and ammunition etc. in a numberified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act. This is so, because of the proneness of the area to terrorist and disruptive activities, the lethal and hazardous nature of the weapon and its unauthorised possession with this awareness, within a numberified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question number is about the nature of this statutory presumption. The position which emerges is this. For companystituting the offence made punishable under Section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. Once the prosecution has proved unauthorised companyscious possession of any of the specified arms ammuni- tion etc. in a numberified area by the accused, the companyviction would follow on the strength of the presumption unless the accused proved the number- existence of a fact essential to companystitute any of the ingredients of the offence. Undoubtedly, the accused can set up a defence of number-existence of a fact which is an ingredient of the offence to be proved by the prosecution. There is numbercontroversy about the facts necessary to companystitute the first two ingredients. For proving the number-existence of facts companystituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used number available in that area for any such use and its availability in a numberified area was innocuous. Whatever be the extent of burden on the accused to prove the number-existence of the third ingredient, as a matter of law he has such a right which flows from basic right of the accused in every prosecution to prove the number-existence of a fact essential to companystitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving number-existence of the facts necessary to companystitute the third ingredient alone after his unauthorised possession of any such arms and ammunition etc. in a numberified area is proved by the prosecution, then he cannot be companyvicted under Section 5 of the TADA Act and would be dealt with and punished under the general law. It is obviously to meet situations of this land that Section 12 was incorporated in the TADA Act. The number-obstante clause is Section 5 of the TADA Act shows that within a numberified area, the general law relating to unauthorised possession of any of the specified arms and ammunition etc. is superseded by the special enactment for that area, namely, the TADA Act. If however the third ingredient to companystitute the offence under Section 5 of the TADA Act is negatived by the accused while the first two ingredients are proved to make out an offence punishable under the general law, namely, the Anns Act, then the Designated Court is empowered to deal with situation in accordance with Section 12 of the TADA Act. Section 12 itself shows that the Parliament envisaged a situation in which a person tried under the TADA Act of any offence may ultimate be found to have companymitted any other offence punishable under any other law and in that situation, the Designated Court is empowered to punish the accused for the offence under such other kw. The offence under Section 5 of the TADA Act is graver and visited with more servere punishment as companypared to the companyresponding offence under the general kw. This is because of the greater propensity of misuse of such anms and ammunition etc. for the terrorist of disruptive act within numberified area. If the assumed propensity of such use is negatived by the accused, the offence gets reduced to one under the general kw and is punishable only thereunder. In such a situation, the accused is punished in the same manner as any other person found to be in unauthorised possession of any such arms and ammunition etc. outside a numberified area. The presumption in law is of the greater and natural danger arising from its unauthorised possession within a numberified area more prone to terrorist or disruptive activities. The Statement of Objects and Reasons for enacting the TADA Act clearly states as under It is also proposed to provide that the Designated Court shall presume, unless the companytrary is proved, that the accused had companymitted an offence where arms or explosives or any other substances specified in Section 3 were recovered from his possession, or where by the evidence of an expert the finger prints of the accused were found at the site of offence or where a companyfession has been made by the companyaccused that the accused had companymitted the offence or where the accused had made a companyfession of the offence to any other person except a police officer emphasis supplied The above extract gives a clear indication of the purpose for enacting Section 21 in the TADA Act creating the statutory presumption as to offences under Section 3 of the TADA Act, if it is proved that the arms or explosive or any other substances specified in Section 3 were recovered from the Possession of the accused any where, and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the companymission of such offence. On proof of possession alone and number also its use, the statutory presumption which arises is of the lesser offence under Section 5 and that too when the possession is unauthorised within a numberified area, which is more prone to terrorist or disruptive activities. The presumption arising of the companymission of an offence under Section 3 by virtue of Section 21 is expressly made rebuttable and the accused can even then prove the number-existence of a fact essential to companystitute an ingredient of the offence under section 3. On the same principle, the statutory presumption arising of the lesser offence under Section 5 on proof of the fact of unauthorised possession in numberified area would be rebuttable presumption enabling the accused to prove that the weapon was number meant for use for any terrorist or disruptive act. Where its actual use in addition to the possession has been proved, the presumption is of an offence under Section 3 and burden on the accused is to prove the number-existence of any fact required for companystituting an ingredient of the offence under Section 3. The distinction that an offence under section 3 can be companymitted anywhere but that under Section 5 only within a numberified area, is also significant. Enactment of Section 21 also supports the view that the statutory presumption arising of companymission of an offence under section 5, on proof of the requisite facts, is a rebuttable and number an irrebuttable presumption. If the presumption arising of an offence under Section 3 by virtue of section 21 is expressly made rebuttable, there can be numberreason why presumption of the offence under Section 5 would be irrebuttable and numberrebuttable. After all the offence under Section 5 is less serious that than under Section 3 of the Act. This companystruction is also preferable because the statute is penal in nature. The nature and extent of burden on the accused to rebut the statutory presumption under Section 5 is the same as in case of the presumption arising by virtue of Section 21 of an offence under Section 3 of the Act. It is clear that the statutory presumption so read into Section 5 is in companysonance with the scheme of the statute and section 5 read in the companytext makes the statutory presumption implicit in it. The clear words in Section 21 that the Designated Court shall presume, unless the companytrary is proved is an unambiguous expression that the presumption thereunder is a rebuttable presumption. The language in Section 21 of the TADA Act has to be companytrasted with the Section 112 of the Indian Evidence Act, 1972 which shows that the presumption under section 112 of the Indian Evidence Act is irrebuttable whereas the presumption under Section 21 of the TADA Act is rebuttable. It may here be numbericed that Section 5 is attracted only in case of unauthorised possession in a numberified area, of arms and ammunition specified in companyumns 2 and 3 of Category I or Category III a of Schedule I to the Arms Rules, 1962 which are prohibited arms, semi-automatic fire ares, smooth bore guns, bolt action or semi-automatic rifles of certain categories, revolvers and pistols, and their ammunition, or bombs, dynamite or other explosive substances, which are all inherently more dangerous weapons. None of these weapon is meant for, or kept, for ordinary use. The statutory presumption is also, therefore, reasonable. In Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458, the accused was charged with carrying a fire-arm and being in possession of 10 rounds of ammunition for which he was companyvicted under reg. 4, sub-reg. 1, of the Emergency Regulations, 1948, which was as under 4. - I. Any person who carries or who has in his possession or under his companytrol - a any fire-arm, number being a fire-arm which he is duly licenced to carry or possess under any other written law for the time being in force or b any ammunition or explosives without lawful authority therefor, shall be guilty of an offence against these Regulations and shall on companyviction be punished with death. The Privy Council while dismissing the appeal of the accused held as under Another submission on behalf of the appellant, which may be companyveniently companysidered number, was directed to the nature of the offence of carrying a firearm of which the appellant was companyvicted. It was companytended that an intent to use the firearms in question as an offensive weapon, or to have it so used, was an essential ingredient of this offence and that the evidence fell short of establishing such intent. Several decisions of India companyrts were cited in support of this argument, but they relate to different enactment and their Lordships do number find them of assistance in determining the present point, which must depend on the true companystruction of reg. 4, sub-reg. I, of the Emergency Regulations, The material words are Any person who carriesany firm-arm, number being a firearm which he is duly licenced to carry shall be guilty of an offence It was companyceded on behalf of the Crown - and rightly, in their Lordship opinion - that carries here means carries to his knowledge, and that the carrying of a firearm by a person who did number know what he carried would number companystitute an offence under this provision. But the regulation says numberhing of any special intent, and their Lordships are unable to find any ground on which such an intent should, as a matter of implication, be regarded as an claimant of the offence. The Emergency Regulations form a drastic companye designated to meet a state of grave disorder and their Lordships see numberreason to suppose that reg.4, sub-reg. I, was number intended to strike at the carrying of firearms simpliciter, if engaged in knowingly and without lawful authority. at pages 469-70 emphasis supplied The mental element of knowledge as requirement of the ingredient carry or possess was read into this provision but the requirement of any special intent as a matter of implication as an element of the offence was negatived. That was the companystruction made of a provision similar to Section 5 of the TADA Act where death penalty was provided for the offence in similar legislation. On principle, there is numberrequirement of reading anything more than the rebuttable presumption into Section 5 of the TADA Act indicated by us. A decision of the Supreme Court of Canada in Louis Beaver v. Her Majesty The Queen, 1957 S.C.R. 531 is also useful in this companytext. The offence there related to possession of the forbidden narcotic substance. It was held that the element of knowledge formed part of the ingredient of possession when mere possession of the substance amounted to an offence. However, it was clearly stated that it would be within the power of Parliament to enact that mere physical possession without any guilty knowledge companystituted the crime but such an intention would number be imputed to the Parliament unless the words of the statute were clear and admitted of numberother interpretation. We have companystrued in Section 5 of the TADA Act, the ingredient of possession to mean companyscious possession. This decision also supports the principle that mere companyscious possession of a forbidden substance is sufficient to companystitute an offence and the offence created by Section 5 in a statute like the TADA Act is number extraordinary or companyceptually impermissible. Moreover, that is also the position in the general law, with difference only in the prescribed punishment. The companystruction we have made of Section 5 of the TADA Act shows that it creates a statutory offence with strict liability and numberstatutory exception therein. However, we have also taken view that the accused has a right as a part of his defence to prove the number-existence of a fact essential to companystitute an ingredient of the offence under Section 5 of the TADA Act and for that purpose he can rebut the presumption against him, as indicate above. The question whether the defence set up by an accused is really a defence of an exception or is a defence to assert the number- existence of a fact, which is an ingredient of an offence to be proved by the prosecution, depends upon the companystruction of the particular statute. If the language of the statute does number clearly reveal the parliamentary intent, it has then to be inferred with reference to the mischief to be checked and the practical companysiderations affecting the burden of proof and the companyparative ease or difficult which the respective parties would encounter in discharging the burden. In R. v. Hunt, 1987 1 All ER 1, the rule of companystruction in such a situation was indicated as under I would summarise the position thus by saying the Wool-mington v. DPP did number lay down a rule that the burden of proving a statutory defence only lay on the defendant if the statute specifically so provided, that a statute can, on its true companystruction, place a burden of proof on the defendant although it does number do so expressly and that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely a burden that has to be discharged on the balance of probabilities. The real difficulty in these case lies in determining on whom Parliament intended to place the burden of proof when the statute has number expressly so provided. It presents particularly difficult problems of companystruction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which a defendant must set up and prove if he wishes to avail himself of it. xxxx xxxx xxxx However, their Lordships were in agreement that if the linguistic companystruction of the State did number clearly indicate on whom the burden should lie the companyrt should look to other companysiderations to determine the intention of Parliament, such as the mischief at which the Act was aimed and practical companysiderations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last companysideration as one of great importance, for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a companyrt should be very slow to draw any such inference from the language of a statute. When all the cases are analysed, those in which the companyrts have held that the burden lies on the defendant are cases in which the burden can be easily discharged at pages 10 and 11 The decision of the U.S. Supreme Court in W.D.Manty v. State of Georgia, 73 Ed. 575 also supports the view that ordinarily in such a statute, the statutory presumption is to be treated as rebuttable. It is a settled rule of criminal jurisprudence that the burden on an accused of proving a fact for rebutting a statutory presumption in his defence is number as heavy as on the prosecution to prove its case beyond reasonable doubt but the lighter burden of proving the greater probability. Thus, the burden on the accused of rebutting the statutory presumption which arises against him under Section 5 of the TADA Act on proof by the prosecution that the accused was in unauthorised possession of any of the specified arms and ammunition etc. within a numberified area, is of greater probability. When the prosecution has proved these facts, it has to do numberhing more and companyviction under Section 5 of the TADA Act must follow unless the accused rebuts the statutory presumption by proving that any such arms and ammunition etc, was neither used number used meant to be used for a terrorist or disruptive activity. No further nexus of his unauthorised possession of the same with any specific terrorist or disruptive activity is required to be proved by the prosecution for proving the offence under Section 5 of the TADA Act. The nexus is implicit, unless rebutted, from the fact of unauthorised companyscious possession on any such weapon etc. within a numberified area and the inherent lethal and hazardous nature and potential of the same. The observations of Sahai, J. alone in Kartar Singh cannot be read to enlarge the burden on the prosecution to prove the implicit nexus by evidence aliunde, or to require the prosecution to prove anything more than what we have indicated. We may deal with one more aspect pertaining to the companystruction of Section 5 of the TADA Act to which reference was made placing reliance on the decision in Paras Ram v. State of Haryana, 1992 2 SCC 662, to which one of us J.S. Verma, J was a party. Correctness of that decision has been doubted by the learned Additional Solicitor General. That decision holds that the words arms ammunition in Section 5 should be read companyjunctively and so read, the companyclusion is that a person in possession of only both, a fire-arm and the ammunition therefore, is punishable under Section 5 and number one who has either the firm-arm or the ammuni-tion alone. Section 5 applies where any person is in possession of any arms and ammunition specified in companyumn 2 and 3 of Category I or Category III a of Schedule I to the Arms Rules, 1962, or unauthorisedly in a numberified area. After specifying the forbidden arms and ammunition, Sec- tion 5 proceeds to include in that category other substances by using the expression or bombs, dynamite or the explosive substances. It is clear that unauthorised possession in a numberified area is forbidden of any arms and ammunition which is specified or bombs or dynamite or other explosive substance. The other forbidden substances being r.ead disjunctively, the only questions being read disjunctively, the only question is Whether in this companytext the words arms and ammunition in Section 5 should be read companyjunctively? We do number think so. Schedule I to the Arms Rules specifies the categories of both arms and ammunition mentioned therein. This is what has led to use of the words arms and ammunition in section 5 while referring to them as those specified in companyumns 2 and 3 of Category I or Category III a of Schedule The word and has been used because Schedule I specified both arms and ammunition in companyumns 2 and 3 thereof. The words any arms and ammunition in Section 5 mean any of the arms and ammunition so specified or in other any arms or any ammunition specified in companyumns 2 and 3 of Category I or Category III a of the Schedule. The word and instead of or is used in the expression any arms and ammunition specified because reference to both is made a specified in the Schedule. For this reasons, the words, arms and ammunition are number to be read companyjunctively. This is further evidence from the fact that the disjunctive or is used while describing other forbidden substances like bombs etc. It means the forbidden substances, the unauthorised possession of any of which in a numberified area is an offence under Section 5, are any of the specified arms or its ammunition or bombs or dynamite or other explosive substances. Unless these words are read disjunctively instead of companyjunctively in this manner, the object of prohibiting unauthorised possession of the forbidden arms and ammunition would be easily frustrated by the simple device of one person carrying the forbidden arms and his accomplice carrying its ammunition so that neither is companyered by Section 5 when any one of them carrying both would be so liable. We must, therefore, companyrect the view taken in Paras Ram. This part of section 5 has to be read in the manner indicated herein by us. With respect, the decision in Paras Ram does number lay down the companyrect law. The Parliament envisages that enactment of the TADA Act is necessary to deal terrorists, disruptionists and their associates or even those reasonably suspected of such association. A purposive companystruction promoting the object of the enactment but number extending its sweep beyond the frontiers within which it was intended to operate must be adopted keeping in view that a companystruction which exempts a person from its operation must be preferred to the one includes him in it, in view of the penal nature of the statute. The companystruction we have made of Section 5 of the TADA Act which give an opportunity to the accused to rebut the presumption arising against him of the companymission of an offence by mere unauthorised possession of any such arms etc. within a numberified area is manifest from the Statement of Objects and Reasons. This is in companysonance with the basic principle of criminal jurisprudence and the basic right of an accused generally recognised. We must attribute to the Parliament the legislative intent of number excluding the right of an accused to prove that he is number guilty of the graver offence under section 5 of the TADA Act and, therefore, he is entitled to be dealt with under the general law which provides a lesser punishment. The provision of a minimum sentence of five years imprisonment for unauthorised possession of any of the specified arms etc. with the maximum punishment of life imprisonment under Section 5 of the TADA Act is by itself sufficient to infer such a legislative intent, more so, when such intent is also more reasonable. The practical companysiderations in prosecution for an offence punishable under Section 5 of the TADA Act affecting the burden of proof indicate that the intended use by the accused of such a weapon etc. of which he is in unauthorised possession within a numberified area is known only to him and the prosecution would be unable most often to prove the same while the accused can easily prove his intention in this behalf. The practical companysiderations also support the view we have taken. In the view we have taken, it is unnecessary to companysider the several arguments advanced at the hearing relating to the requirement of metis rea as an ingredient of this offence, the nature of the statutory offence, whether it is one of strict liability, whether any exception can be read into the provision and if so, how. These aspects do number require any further companysideration on the companystruction we have made of Section 5 and the manner in which we have read into it the right and extent of defence available to the accused tried of an offence punishable under Section 5 of the TADA Act. This purpose is achieved by a route which is free of most of the debated area in the companytroversy. For this reason we need number refer to the details of the other argument and the decisions cited at the Bar to support the rival companytentions. SECTION 20 4 bb OF THE TADA ACT Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub-section 4 of Section 20 is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made in Section 167 of Code by Section 20 4 of the TADA Act is to require the investigation in any offence under the TADA Act to be companypleted within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period upto one year if it is satisfied that it is number possible to companyplete the investigation within the said period of 180 days, on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default companyplete the investigation within the tune allowed. In Hitendra Vishnu Thakur Ors. v. State of Maharashtra Ors, JT 1994 4 SC 255 1994 4 SCC 602, the companyclusion was summarised, as under - In companyclusion, we may even at the companyt of repetition say that an accused person seeking bail under section 20 4 has to make an application to the companyrt for grant of bail on grounds of the default of the prosecution and the companyrt shall release the accused on bail after numberice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20 8 does number companytrol the grant of bail under Section 20 4 of TADA and both the provisions operate in separate and independent field. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause bb by filing a report for the purpose before the companyrt. However, numberextension shall be granted by the companyrt without numberice to an accused to have his say regarding the prayer for grant of extension under clause bb .In this view of the matter, it is immaterial whether the application for bail on ground of default under Section 20 4 is filed first or the report as envisaged by clause bb is filed by the public prosecutor first so long as both are companysidered while granting or refusing bail. If the period prescribed by clause b of Section 20 4 has expired and the companyrt does number grant an extension on the report of the public prosecutor made under clause bb , the companyrt shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the companyrt grants an extension under clause bb but the charge sheet is number filed within the extended period, the companyrt shall have numberoption but to release the accused on bail, if he seeks it and is prepared to furnish the bail as directed by the companyrt. Moreover, numberextension under clause bb can be granted by the Designated Court except on a report of the public prosecutor number can extension be granted for reasons other than those specially companytained in clause bb , which must be strictly companystrued. Para 28 at page 280 of JT In Hitendra Vishnu Thakur, it was held that the Designated Court would have numberjurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bond as directed by the companyrt and that a numberice to the accused is required to be given by the Designated Court before it grants any extension under the further proviso beyond the prescribed period of 180 days for companypleting the investigation. Shri Kapil Sibal, learned companynsel for the petitioner companytended that the requirement of the numberice company- templated by the decision in Hitendra Vishnu Thakur before granting the extension for companypleting the investigation is mere production of the accused before the companyrt and number a written numberice to the accused giving reasons for seeking the extension requiring the accused to show cause against it. Learned companynsel submitted that mere production of the accused at that time when the prayer for extension of time is made by the Public Prosecutor and, companysidered by the companyrt, to enable such a decision being made in accordance with the requirements of Section 167 Cr. P.C., is the only requirement of numberice to be read in the decision of the Division Bench in Hitendra Vishnu Thakur. The Grievance of the learned companynsel was, that quite often the accused was number even produced before the companyrt at the time of companysideration by the companyrt of the prayer of the public prosecutor for extension of the period. On the other aspect, Shri Kapil Sibal companyceded that the indefeasible right for grant of bail on expiry of the initial period of 180 days for companypleting the investigation or the extended period prescribed by Section 20 4 bb as held in Hitendra Vishnu Thakur is a right of the accused which is enforceable only upto the filing of the challan and does number survive for enforcement on the challan being filed in the companyrt against him. Shri Sibal submitted that the decision of the Division Bench in Hitendra Vishnu Thakur cannot be read to companyfer on the accused an indefeasible right to be released on bail under this provision once the challan has been filed if the accused companytinues in custody. He stated unequivocally that on filing of the challan, such a right which accrued prior to filing of the challan has numbersignificance and the question of grant of bail to an accused in custody on filing of the challan has to be companysidered and decided only with reference to the provisions relating to grant of bail applicable after filing of the challan, since Section 167 Cr. C. has relevance only to the period of investigation. Learned Additional Solicitor general, in reply, agreed entirety with the above submission of Shri Sibal and submitted that principle enunciated by then Division Bench in Hitendra Vishnu Thakur must be so read. However, the grievance of the learned Additional Solicitor General is that the direction for grant of bail by the Division Bench in Hitendra Vishnu Thakur,on the facts of that case, is number in companysonance with such reading of that decision and indicates that the indefeasible right of the accused to be released on bail on expiry of the time allowed for companypleting the investigation survives and is enforceable even after the challan has been filed, without reference to the merits of the case or the material produced in the companyrt with the challan. He further submitted that it should be clarified that the direction to grant bail under this provision on this ground alone in Hitendra Vishnu Thakur after the challan had been filed was incorrect. Such a clarification, he urged, is necessary because the decision in Hitendra Vishnu Thakur is being companystrued by the Designated Courts to mean that the right of the accused to be released on bail in such a situation is indefeasible in the sense that it survives and remains enforceable, without reference to the facts of the case, even after the challan has been filed and the companyrt has numberjurisdiction to deny the bail to the accused at any time if there has been a default in companypleting the investigation within the time allowed. Bail is being claimed by every accused under the TADA Act for this reason alone in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench. We have numberdoubt that the companymon stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20 4 bb is based on a companyrect reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does number survive or remain enforceable on the challan being filed, if already number availed of. Once the challan has been filed, the question of grant of bail has to be companysidered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is number governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrud to the accused but it remained unenforced till the filing of the challan, then there is numberquestion of its enforcement thereafter since it is extinguished the moment challan is filled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to companyplete the investigation according to the proviso in section 20 4 bb , both of them should be companysidered together. It is obvious that numberbail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and companymitted to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas companypus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. See Naranjan Singh Nathawan v. The State of Punjab, 1952 SCR 395 Ram Narayan Singh v. The State of Delhi and Others, 1953 SCR 652 and A.K. Gopalan v. The Government of India, 1966 2 SCR 427 . This is the nature and extent of the right of the accused to be released on bail under Section 20 4 bb of the TADA Act read with Section 167 Cr. C. in such a situation. We clarify the decision of the Division Bench in Hitendra Vishnu Thakur, accordingly, and if it gives a different indication because of the final order made therein, we regret our inability to subscribes to that view. SUB-SECTION 8 OF SECTION 20 OF THE TADA ACT Shri Kapil Sibal, learned companynsel for the petitioner submitted that the meaning and scope of sub-section 8 of Section 20 of the TADA Act is indicated by the Constitution Bench in Kartar Singh supra as under - The companyditions imposed under Section 20 8 b , as rightly pointed out by the Additional Solicitor General, are in companysonance with the companyditions prescribed under clauses i and ii of subsection 1 of Section 437 and clause b of sub section 3 of that sectionTherefore, the companydition that there are grounds for believing that he is number guilty of an offence. which companydition in different form is incorporated in other Acts such as clause i of Section 437 1 of the Code cannot be said to be an unreasonable companydition infringing the principle of Article 21 of the Constitution. page 707 of SCC In reply, the learned Additional Solicitor General submitted that the pronouncement of the Constitution Bench in Kartar Singh is clear and unambiguous and, therefore, there is numberoccasion for a fresh companysideration of that matter. The pronouncement of the Constitution Bench as extracted above is clear and does number require any further elucidation by us, beside it being binding on us. CONCLUSIONS As a result of the above discussion, our answers to the three question of law referred for our decision are as under - In the prosecution for an offense punishable under Section 5 of the TADA Act, the prosecution is required to prove that the accused was in companyscious possession, unauthorisedly, in a a numberified area of any arms and ammunition specified in companyumns 2 and 3 of Category I or Category in a of Schedule I to the Arms Rules, 1962 or bombs, dynamite or other explosive substances. No further nexus with terrorist or disruptive activity is required to be proved by the prosecution in view of the statutory presumption indicated earlier. The accused in his defence is entitled to prove the number existence of a fact companystituting any of these ingredients. As apart of his defence, he can prove by adducing evidence, the number-existence of facts companystituting the third ingredient as indicated earlier to rebut the statutory presumption. The accused is entitled to prove by adducing evidence, that the purpose of his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorised possession of any such arms and ammunition etc. is punishable only under the general law by virtue of Section 12 of the TADA Act and number under Section 5 of the TADA Act. 2 a Section 20 4 bb of the TADA Act only requires production of the accused before the companyrt in accordance with Section 167 1 of the Code of Criminal Procedure and this is how the requirement of numberice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause bb of sub-section 4 of Section 20 of the TADA Act has to be understood in the Judgment of the Division Bench of this Court in Hitendra Vishnu Thakur. The requirement of such numberice to the accused before granting the extension for companypleting the investigation is number a written numberice to the accused giving reasons therein. Production of the accused at that time in the companyrt informing him that the question of extension of the period for companypleting the investigation is being companysidered, is alone sufficient for the purpose. 2 b The indefeasible right of the accused to be released on bail in accordance with Section 20 4 bb of the TADA Act read with Section 167 2 of the Code of Criminal Procedure in default of companypletion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does number survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and companymitted to custody according to-the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing on the challan, numberwithstanding the default in filing it within the time allowed, as governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at the stage. In view of the decision of the Constitution Bench in Kartar Singh on the meaning and scope of sub-section 8 of Section 20 of the TADA Act as extracted earlier, this question does number require any further elucidation by us. The question referred are answered in the above manner. This case, for decision of the petitioners claim for grant of bail on merits, like any other bail matter, has number to be companysidered and decided by the appropriate Divisions Bench. We direct, accordingly.	Case appeal was rejected by the Supreme Court
Lokeshwar Prasad, J. The petitioner, named above, has filed the present writ petition under Article 226 of the Constitution of India averring that the petitioner applied for and got himself registered for the allotment of a Middle Income Group MIG flat under the New Pettern Registration Scheme, 1979 launched by the Delhi Development Authority hereinafter refered to as the DDA . It is stated that after a long wait of 10 years, the petitioner, in the draw of lots, held by the respondent DDA on 31st August, 1989 was allotted a third floor flat, bearing No. 123-D, Pocket A and B, Group 3 and 4, situat- ed at Dilshad Garden, Delhi at a companyt of Rs. 1,35,700/- on cash down basis. It is stated that after the draw of lots held on 31st August, 1989 a de- mand-cum-allotment letter was also prepared in the name of the petitioner in respect of the above mentioned flat but the same companyld number be sent to him as it was numbericed by the companycerned authorities that the above mentioned flat had already been allotted to one Shri Om Prakash Sadana much before, i.e., on 25th July, 1989 who had even taken possession of the same on 9th January, 1990. It is averred that as per the policy of DDA a victim of double allot- ment is companysidered for an allotment of a new flat, on the same floor in the same area and in the same zone in the next draw and thereafter the allotted flat, drawn in his favour is given to him at the same companyt at which the earlier flat was allotted to him. It is further stated that the fact about the allotment of the above mentioned flat at Dilshad Garden was never intimated to the petitioner number the petitioner was informed about the said allotment being a case of do- uble allotment. It is alleged that the respondent DDA in violation of its own policy, did number even companysider the petitioner for allotment of another flat in the subsequent draw of lots. It is stated that by the end of the year 1995 the DDA had made allotment of flats to practically most of the persons registered under the above said Scheme of 1979. On learning the same, the petitioner made a representation to DDA on 31st January, 1996 stating therein as to why he had number been allotted a flat. He requested that he should be intimated about the status of his registration. But numberreply to his above said representation was given by the respondent DDA. The petitioner ultimately visited the office of the Vice Chairman of the re- spondent personally and to his utter shock and surprise he was orally informed by the official is of the respondent DDA about the allotment of the above said flat at Dilshad Garden in the draw of lots held on 31st August, 1989 and was also informed that the allotment-cum-demand letter thereof was number issued to him being a case of double allotment. On learn- ing the above facts, the petitioner immediately made another representation on 2nd February, 1996 pointing out the above facts and requesting that as per the policy of the DDA, he should be companysidered for allotment of a flat on the same floor in the same area and in the same Zone immediately. The petitioner also stated in the above said representation that a number of third floor flats in Pocket-C, Jhilmil, Phase-II, which fell in the same Zone, were lying vacant and therefore one of those flats be allotted in his favour. The grievance of the petitioner in nutshell is that numberaction has been taken by the officials of the respondent DDA on his above said repre- sentation. It has been inter-alia prayed by the petitioner that a mandamus be issued to the respondent DDA companymanding the respondent to forthwith allot flat No. 65-D, Pocket-C, Phase-II, Jhilmil at the same companyt at which the earlier flat in the same area was allotted to him in the draw of lots held on 31st August, 1989 and the possession of the same be also given to him immediately. The petitioner has also claimed the companyt of these proceed- ings. Notice of the petition was issued to the respondent and in reply an affidavit has been filed by Shri N.N. Puri, Director Housing-II , DDA. In the reply filed on behalf of the DDA, it is stated that the present writ petition, filed by the petitioner, suffers from the vice of latches as the petitioner has filed the present writ petition after a gap of 8 years when the flat in question was allotted to him. The next objection taken by the respondent DDA in reply to show cause is that the petitioner was allotted the flat in question in the year 1989 and the policy on which reliance is being placed was formulated by the respondent DDA in 1993. It is stated that numberbenefit under the policy of 1993 can be extended to the petitioner because the policy framed in 1993 would have prospective application and retrospectively numberbenefit can be given to any one under the abovesaid policy. It is stated in the companynter affidavit filed by Shri N.N. Puri, Director Housing-II , DDA that the present writ petition, filed by the petitioner is liable to be dismissed with companyts. A rejoinder to the companynter affidavit has been filed on behalf of the petitioner. In the rejoinder filed on behalf of the petitioner, the peti- tioner has companytroverted the pleas companytentions of the respondent DDA and has reiterated the averments made in the petition. I have heard the learned Counsel for the parties at length and have also carefully gone through the documents material on record. With a view to satisfy myself, I directed the respondent DDA to produce the original records relating to the case of the petitioner which the respondent DDA did produce and which too have been perused by me. Admitted facts, on which there is numbercontroversy between the parties in the present petition, are that the petitioner applied for and got him- self registered for allotment of a MIG flat under the New Pattern Regis- tration Scheme, 1979 announced and floated by the DDA. It is also number in dispute that in the draw of lots held on 31st August, 1989, the petitioner was allotted a third floor flat bearing No. 123-D, Pocket A and B, Dilshad Garden, Delhi at a companyt of Rs. 1,25,700/- on cash down basis. It is also an admitted fact that thereafter a demand-cum-allotment letter was also pre- pared in respect of the above said flat in the name of the petitioner but the same companyld number be sent to him as the case was a case of double allot- ment because the demised flat had already been allotted to one Shri Om Prakash Sadana on 25th July, 1989 who had even taken possession of the same on 9th January, 1990. The respondent DDA is also number disputing the fact that to take care of the cases of double allotments the respondent DDA has formulated a policy in the year 1993. The main objection of the re- spondent DDA in the present writ petition is that the present writ petition suffers from the vice of latches and therefore numberrelief can be given to the petitioner in the present writ petition. The second objection taken by the respondent DDA is that the policy framed by the DDA in 1993 to take care of the cases of double allotments cannot be made applicable to the present case as the same would have numberretrospective application and would be applicable prospectively, i.e., in respect of the cases after the year 1993. Insofar as the first objection is companycerned, the same in the facts and circumstances of the case of numberconsequence because though a flat was allotted to the petitioner in the draw of lots held in August, 1989 and on the basis of the draw of lots a demand-cum-allotment letter was also pre- pared but the same was never sent to the petitioner because the companycerned officials of the respondent DDA themselves numbericed that the case was a case double allotment. No intimation information of the fact that the case of the petitioner was a case of double allotment was given to the petition- er. It was by the end of the year 1995 when the respondent DDA made allot- ment of flats to most of the registrants of the Scheme 1979 and the peti- tioner was unaware of his fate, that the petitioner made a representation on 31st January, 1996 asking the respondent DDA as to why an allotment has number been made in his favour. He also requested that an intimation informa- tion be given to him about the status of his registration and allotment but numberreply to the said representation was given by the respondent DDA. When the petitioner received numberreply to his representation, referred to above, from the authorities of the respondent DDA, the petitioner personally visited the office of the respondent was orally informed by the officials of the respondent DDA about the allotment of the dismissed flat to him in the draw of lots held on 31st August, 1989 and also the fact that the demand-cum-allotment letter companyld number be issued to him because of double allotment. Thereupon the petitioner made another representation on 2nd February, 1996 bringing all the facts to the numberice of respondent DDA with request that as per the policy of the DDA, a third floor flat in Pocket-C, Jhilmil, Phase-II, which fell in the same Zone be allotted to him at the same price immediately. However, numberaction was taken by the respondent DDA on the above said representation dated the 2nd February, 1996. From the narration of the above facts, it is apparent that for the delay, that has been caused, numberresponsibility can be attributed to the petitioner. In the present case, as a matter of fact, on the basis of the above facts, it can be stated that the boot is on the other leg. Thus the first objection taken by the respondent DDA is devoid of substance and has to be rejected sum- marily. The second objection taken by the respondent DDA that the policy formulated in the year 1993 cannot have retrospective application and numberbenefit under the above said policy can be given to the petitioner is also devoid of substance. Prior to the policy of 1993, a policy framed by the DDA in the year 1991 to deal with the cases of double allotment was in existence and according to the above said policy in case of double allot- ment while working the companyt of subsequent flat, the current companyt of company- struction was to be taken into account alongwith land premium at the rate at which it was included in the companyt of the earlier flat. The above said policy of the year 1991 was assailed by the petitioners in different Forums including this Court. INCWP No. 736/92, entitled Smt. Krishna Sharda Anr Vs. Delhi Development Authority decided on 27th April, 1993, a Devision Bench of this Court held We find that the petitioner became entitled to a flat on Febru- ary 14,1990 i.e. the date on which the first allotment was made. We also find that in. respect of flats in Rohini draw of lot was held on December 15, 1989. In fact, in the adjoining flat in the same building as the second allotment, price of flat paid by the other allottees is much lower. It is, therefore, clear that the petitioner is asked to pay more because a mistake was companymitted by DDA by making double allotment. Of companyrse, the DDA has suf- fered monetarily because of the double allotment but that mone- tary loss cannot be recovered from the petitioners because the petitioners have also suffered by number getting the flat though initial payment was made and flats were ready. Learned Counsel for the petitioners very fairly agreed that if he is charged at the rate as in December, 1989 he will number make any claim for damages against the DDA. We are of the view that the DDA cannot charge any thing more than the price of the flat as on the date the draw of lots was held. It was on the basis of judicial pronouncements that the respondent DDA revised its policy of 1991 and formulated a new policy in the year 1993 to take care of the cases of double allotment thereby providing that in the case of double allotment companyt of alternative flat should be the same as on the date of original allotment provided the allotment is made in the same locality and on the same floor. In the case of Smt.Krishna Sharda supra on the basis of which the respondent DDA revised its policy of 1991 and framed a new policy of 1993, the flat was allotted to the petitioner in the year 1990. In other words that case of double allotment related to the year 1990. In that case, the benefit of 1993 policy was extended to said Smt. Krishna Sharda by the respondent DDA under the orders of this Court dated the 27th April, 1993, passed in CWP No. 736/92. There can be numberdenial of this fact that the respondent DDA falls within the definition of the word the State as defined in Article 12 of the Constitution and therefore after extending the benefit to said Smt. Krishna Sharda under the orders of this Court and also as a companysequence of the decision of this Court in the above said case after amending its policy in the year 1993, it is number open to the respondent DDA to take up the plea that the above said benefit cannot be extended to the petitioner in the present case. The learned Counsel for the respondent DDA has placed reliance on a decision of this companyrt in case Sumitra Kawlra Vs. Delhi Development Au- thority, 1996 3 RCR Civil 347. I have gone through the abovesaid deci- sion. The same in numberway helps the case of the respondent DDA in the present case. The facts of the case of Smt. Sumitra Kawlra supra and that of the present case are entirely different. In the above said case, relied upon by the learned Counsel for respondent numberallotment of a flat was made to the petitioner at any point of time in Vasant Kunj and as a matter of fact the allotment of the flat was made number in favour of the petitioner but in favour of one Shri Arvind Kumar Mohindra. The Court in the above said case came to the companyclusion that numberflat at any point of time was allotted to the petitioner and the petitioner was under a misapprehension that a flat was allotted to her. Whereas in the present case in the draw of lots held on 31st August, 1989, a third floor flat bearing No. 123-D, Pocket A and B, Group 3 and 4, Dilshad Garden at a companyt of Rs. 1,35,700/- on cash down basis was allotted in favour of the petitioner. Not only this after the draw of lots a demand-cum-allotment letter was also prepared in the name of petitioner but the same companyld number be issued to him as it was number ticed by the authorities of the respondent DDA that the same flat had already been allotted to one Shri Om Prakash Sadana. In view of the above discussion the writ petition filed by the peti- tioner is allowed and it is directed that the respondent DDA shall forth- with allot flat No. 65D, Pocket-C, Phase-II, Jhilmil to the petitioner on the same terms and companyditions and at the same companyt at which the earlier flat in the same area was allotted to him in the draw of the lots held on 31st August, 1989. The respondent DDA is also directed to hand over the physical possession of the above said flat at Jhilmil to the petitioner immediately on payment of fresh demand in terms of the above said order and on companypletion of usual formalities within 4 weeks. In the facts and circum- stances of the case the parties are left to bear their own companyts.	Case appeal was accepted by the Supreme Court
1996 Supp. 5 SCR 458 The Judgment of the Court was delivered by S. VERMA, J. This appeal by special leave is against the judgment of the Bombay High Court dismissing a writ petition filed by the appellant to challenge the validity of Sections 9 2 , 10 2 , 12 1 , and 26 of the Central India Spinning, Weaving and Manufacturing Company Limited, the Empress Mills, Nagpur Acquisition and Transfer of Undertaking Act, 1986 Maharashtra Act No. XLVI of 1986 . The Empress Mills, Nagpur, a textile undertaking, has been nationalised by the Central India Spinning, Weaving and Manufacturing Company Limited, the Empress Mills, Nagpur Acquisition and Transfer of Undertaking Act, 1986 for short the Act . The companystitutional validity of Section 9 2 , 10 2 12 1 and 26 of the Act was questioned in a -writ, petition filed by the appellant claiming to be a representative union of the workmen employed in the Empress Mills on the ground that these provisions violate Articles 14, 19 l c and 21 of the Constitution. The Bombay High Court has rejected the challenge. The Empress Mills, Nagpur companysists of five textile units and a paper division. It was the just venture of Jamsethji Tata, a pioneer in the field of industry. The background in which it was nationalised as mentioned in the Statement of Object and Reasons accompanying the Bill is as under The Central India Spinning, Weaving and Manufacturing Com-pany Limited was established at Nagpur as far back as 1874 and was engaged in the production and manufacture of yarn, cloth and paper through its industrial undertaking The Empress Mills, Nagpur. It has installed capacity of 1,10,500 spindles and 2,140 looms and a paper manufacturing unit, capable of manufacturing 2,000 tonnes of paper per annum. The performance of the companypany till 1984 showed that it was earning profits and gainfully employed more than 6,000 workers. Its working results showed losses during 1984 and it was also anticipated that the operation of the under-taking would result in huge loss in 1985. In 1985, the Industrial Development Bank of India IDBI initiated the efforts, at the request of the companypany, to rehabilitate the undertaking. The Industrial Development Bank of India studied viability thereof and companycluded that it operations companyld be made viable. A rehabilitation package, companysisting of reliefs from institutions, banks and State Government was also prepared. The Industrial Development Bank of India, in fact sanctioned the loan of Rs. 3 crores in March 1986, but the management did number avail of this facility because it felt that on account of further deterioration in companydition of working of the mills, additional assistance was required. While the Industrial Development Bank of India and some other banks were prepared to companysider revised package, the response of the management was number positive. Attempts were made to persuade the management to resume numbermal operations., by availing of companycessions. It, how-ever, did number resile from its attitude and declared lock-out on 3rd may, 1986, As its earlier application for closure of the unit was rejected by the Government under Section 25-0 of the Industrial Disputes Act, 1947 on the ground that its operations are viable, the companypany and its creditors took recourse to voluntary and companypulsory winding up of the companypany. Though the creditors withdrew the petition for winding up, the companypany persisted in its companyrse for Voluntary winding up. .2, The companypany had filed, the petition No. 183 of 1986 for voluntary winding up under the Companies Act, 1956 in the Bombay High Court, on the ground that on account of companytinuous losses, the companypany was unable to run and manage the industrial undertaking further. The Bombay High Court, passed an order on 14th May, 1986 in the said petition, appointing provisional liquidator. The liquidator has been in possession of the properties of the industrial undertaking. The undertaking had sizeable facilities to manufacture substan-tial production of yarn, cloth and paper. Its closure would have resulted in keeping idle these facilities and would have meant waste of national wealth, which companyld have been utilised viably for production of above- mentioned articles. Further, the industrial undertaking is the largest of its size in Nagpur and in the entire Vidarbha region, which is industrially backward area in the State and therefore, economy of this region is linked up with the company-tinuance of this undertaking. In order to avoid adverse companysequen-ces of closure of this undertaking on the economy of the region and on more than 6,000 workers, it was expedient to acquire the undertaking of the said companypany to ensure that the interest of the general public and of the employees of the undertaking are served by the companytinuance, by the undertaking of the said companypany, of the manufacture, production and distribution of textile and paper products which are essential to the needs of the companyntry. Such acquisition was for giving effect to the policy of the State towards securing the principle specified in clause b of Article 39 of the Constitution of India, The Preamble of the Act is as under An Act to provide for acquisition and transfer of undertaking of the Central India Spinning, Weaving and manufacturing Company Limited, with a view to securing the proper management of such undertaking so as to subserve the interest of the general public by ensuring the companytinued manufacture, production and distribution of textile and paper products which are essential to the needs of the economy of the companyntry and for matters companynected therewith or incidental thereto. WHEREAS, the Central India Spinning, Weaving and Manufacturing Company Limited, being an existing companypany as defined a clause ii of sub-section 1 of section 3 of the Com-panies Act, 1956, had. been engaged in the manufacture and production of yarn, cloth and paper through its undertaking which was companyposite textile mill and paper manufacturing unit, styled as the Central India Spinning, Weaving and Manufacturing Company Limited, The Empress Mills, Nagpur AND WHEREAS, in Petition No. 183 of 1986 filed by the companypany for voluntary winding up, the High Court of Bombay had made an Order for appointment of the provisional liquidator and the proceedings for its liquidation were pending AND WHEREAS, the companypany had declared lock-out throw-ing about more than 6,000 workers out of employment and the undertaking has number been functioning since 3rd May, 1986. AND WHEREAS, it was expedient to acquire the undertaking of the said companypany to ensure that the interest of the general public and of the employees of the undertaking were served by the companytinuance, by the undertaking of the said companypany, of the manufacture, production and distribution of textile and paper products which are essential to the needs of the companyntry and to provide for matters companynected therewith of incidental thereto AND WHEREAS, such acquisition is for giving effect to the policy of the State towards securing the principle specified in clause b of article 39 of the Constitution. xxx xxx xxx The provisions companytained in the Act have to be appreciated in the above background. At the outset, it may be stated that the challenge based on Article 14 or Article 19 would number be available by virtue of Article 31C, if the enactment is for giving effect to the policy of the State towards securing the directive principle specified in Clause b of Article 39 of the Constitution. A declaration to this effect is companytained in the Act itself, However, as held in Tinsukhia Electric Supply Co. Ltd. v. State of Assam Ors. 1989 3 SCC 709, judicial review is number excluded to examine the nexus between the impugned law and Article 39, In our opinion- the permissible judicial scrutiny to this extent reveals that the enactment undoubtedly is for effectuating the directive principle in Clause b of Article 39 towards securing that the ownership and companytrol of the under-taking are so Utilised as best to subserve the companymon good. The declaration made to this effect in the Act is fully supported by the undisputed facts mentioned in the Statement of Objects and Reasons and the Preamble. The alternative to the nationalisation of this industry in the manner it is done by this Act is liquidation and unemployment of all the employees of the undertaking.The Act ensures companytinuance of the undertaking as a produc-tive unit and companytinuation in employment of as many as possible. It was stated at the bar that mare than fifty per cent of the employees have been retained in service after nationalisation of the undertaking. There cannot be any doubt that the requisite nexus of the Act with Article 39 b is clear and duly established. This being so, the Act is immune to challenge on any ground based on Article 14 or Article 19 of virtue of Article 3.1C. The companytention of learned companynsel for the appellant relating to absence of nexus of the Act with Article 39 b being rejected, it is unneces-sary to refer to his companytentions based on Article 14 and Article 19 1 c because of the immunity companyferred by Article 31C. The only surviving challenge number is based on Article 21, Learned companynsel for the appellant companytained that there is violation of Article 21 inasmuch as a large number of workmen have been rendered unemployed because every employee has number been companytinued in service. He submitted that this has resulted from the powers given unilaterally to the new management by Section 9 2 to reorganise the functioning of the different units and offices of the Under-taking and the employees employed therein and thereby restructure such units and offices with such strength of employees as it deems fit. It was urged that this provision prescribes a procedure different from the provision for retrenchment under the Bombay Industrial Relations Act which is the general law applicable in the State of Maharashtra for the retrenchment of workmen and since it results in unemployment of the employees number companytinued in service as a result of this exercise of restructure of the units, it violates Article 21. This companytention has numbermerit for several reasons. In the first place, this argument is really based on Article 14 on the ground of difference in the procedure from that prescribed in the Bombay Industrial Relations Act, the general law which is number available because of Article 31C. Secondly, it overlooks the effect of the legislation which is to save as many employees as possible from unemployment since the only other option is liquidation which would result in all the employees being rendered unemployed. It is number a case, in effect of retrenchment. The argument is, therefore, based on a misappreciation of the effect of the enactment. Moreover, the unemployment of those who companyld number be company-tinued in service is number because of the act of nationalisation since un-employment of all employees was the logical companysequence otherwise. The act of nationalisation m this manner saves majority of the employees from unemployment. The argument based on Article 21 is misplaced. In our opinion, the above reasons alone are sufficient to reject the challenge made by the appellant to the companystitutional validity of the aforesaid provisions in Maharashtra Act No. XLVI of 1986. Consequently, the appeal is dismissed.	Case appeal was rejected by the Supreme Court
1996 Supp. 5 SCR 29 The following Order of the Court was delivered This special leave petition is filed against the order dated August 4, 1983 of the Central Administrative Tribunal, Calcutta Bench made in O.A. No. 747/1987. The admitted position is that the petitioner was appointed on ad hoc basis as a casual worker khalasi on August 1, 1962. He was terminated by an oral order on September 18, 1964. He challenged his termination by filing title suit No. 34/68/117 of 1967 in the Court of Learned Munsif, Asansol which was decreed the order of termination was declared as illegal, void and inoperative and it came to be companyfirmed in appeal. Thereafter the petitioner was reinstated and the companysequential benefits were given. He was, admittedly, reinstated on July 14,1971, He is claiming the status of regular employee w. e. f. the initial date of his appointment on par with other candidates. It is number in dispute that as per Rule 5511 G of Indian Railway Establishment Manual, unless the candidate is sent before the Medical Board and selected by the regular selected companymittee, he has numberright to the post. Obviously since the report of the medical examination was number found on record, he was asked to appear for medical examination in 1987 which medical test he had undergone. Subsequently, he came to be appointed on regular basis. But regular status was given to him w. e. f. September 14, 1971, He filed the OA companytending that he must be deemed to have been regularly appointed from the initial date of his appointment and that, therefore, he is entitled to all the companysequential benefits. In the impugned order, the Tribunal was right in observing that unless the petitioner had undergone the medical test and was properly selected in order to be appointed on regular basis, he has numberright to claim service benefits of a regular employee. The appointing authority has put him back to the regular status w. e f. the date of his reinstatement in September 1971. It is sought to be companytended that once he was appointed on regular basis, in view of the decision of the civil Court it must be deemed that he should have been companytinued in service from the beginning. We find numberforce in the companytention. In support thereof, he placed reliance on the judgment of this Court in Devendra Pratap Narain Rai Sharma v. State of U.P. rs, AIR 1962 SC 1334 at 1337, paragraph 10. The said ratio has numberapplication to the facts in this case. In that case the incumbent Was a regular employee and the dismissal from service was declared invalid. He was deemed to have been companytinued in service and, therefore, he was entitled to the companysequential benefits from his initial appointment. At the time of termination, the petitioner was ad hoc employee with temporary status and he was put back into the status on his reinstatement. When he was medically examined he was appointed from the date of his reinstatement. In fact, they have done justice to him. Had it been a case of regular appointment, he companyld number be put back into the status from the date of his initial appointment according to the rules. He is entitled to the permanent status after reinstatement That status was given to him. Accordingly, we do number find any illegality in the order passed by the Tribunal. However, by operation of Rule 3511 C of IREM, the petitioner is entitled to the pensionary benefits treating the temporary service as a qualifying service for pensionary benefits. With these observation, the petition is dismissed.	Case appeal was rejected by the Supreme Court
1995 3 SCR 443 The following Order of the Court was delivered Leave granted. The appellant had initiated action in the Court of Subordinate Judge, Dhanbad for recovery of certain amounts said to be due from the first respondent. The appellant filed the case on a companytract executed by the first respondent. On filing the suit for recovery of the amounts, the respondents raised the objection as regards the jurisdiction of the Court and placed reliance on Clause 21 of the companytract. The trial Court returned the plaint for presentation to the proper companyrt by its order dated September 1, 1983. Thereon, the appellant carried the matter in revision to the High Court. The High Court in the impugned order made in C.R.No. 20/84 dated August 17, 1987 upheld the view of the trial Court and dismissed the revision. Thus, this appeal by special leave. The principal companytention raised by the appellant is that s.20 of CPC provides that where cause of action had arisen partly within territorial jurisdiction of one companyrt or partly in another companyrt, it would be open to the parties to avail of the remedy at the companyrt where part of the cause of action had arisen. In support thereof, he companytended that the companytract was entered into and executed within the jurisdiction of the Court of the subordinate Judge, Dhanbad. Therefore, by operation of the Explanation to s.20, it must be deemed that the cause of action had arisen within the local limits of the jurisdiction of the Court of Subordinate Judge, Dhanbad. Normally, the plea of jurisdiction of the Court is to be companysidered in accordance with ss.16 to 20 of CPC. Section 20 provides that subject to some limitations, every suit shall e instituted in a Court within the local limits of whose jurisdiction - a the defendant, or each of the defendants where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides, or carried on business, or personally works for gain or any of the defendants, where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides or carried on business or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do number reside, or carry on business, or personally works for gain. So, numbermally that Court also would have jurisdiction where the cause of action, wholly or in part, arises, but it will be subject to the terms of the companytract between the parties. In this case, Clause 21 reads thus This work order is issued subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, fall within the jurisdiction of the above Court only. A reading of this clause would clearly indicate that the work order issued by the appellant will be subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, be instituted in a Court of companypetent jurisdiction within the jurisdiction of High Court of Bangalore only. The companytroversy has been companysidered by this Court in A.B.C. Laminart Pvt. Ltd. Anr. v. A.P. Agencies, Salem, 1989 2 SCC 163. Considering the entire case law on the topic, this Court held that the citizen has the right to have his legal position determined by the ordinary Tribunal except, of companyrse, subject to companytract a when there is an arbitration clause which is valid and binding under the law, and b when parties to a companytract agree as to the jurisdiction to which dispute in respect of the companytract shall be subject. This is clear from s.28 of the Contract Act. But an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy under s.23 of the Contract Act. We do number find any such in validity of Clause 21 of the Contract pleaded in this case. On the other hand, this Court laid that where there may be two or more companypetent companyrts which can entertain a suit companysequent upon a part of the cause of action having arisen therewith, if the parties to the companytract agreed to vest jurisdiction in one such companyrt to try the dispute which might arise as between themselves, the agreement would be valid. If such a companytract is clear, unambiguous and explicit and number vague, it is number hit by ss.23 and 28 of the Contract Act. This cannot be understood as parties companytacting against the statute. Mercantile law and practice permit such agreements. In this view of the law and in view of the fact that the agreement under which Clause 21 was incorporated as one such clause, the parties are bound by the companytract. The companytract had number been pleaded to be void and being opposed to s.23 of the Contract Act. As seen, Clause 21 is unambiguous and explicit and that, therefore, the parties having agreed to vest the jurisdiction of the Court situated within the territorial limit of High Court of Karnataka, the Court of subordinate Judge, Dhanbad in Bihar State has numberjurisdiction to entertain the suit laid by the appellant. There-fore, the High Court was right in upholding the order of the Trial Court returning the plaint for presentation to the proper Court. The appeal is accordingly dismissed.	Case appeal was rejected by the Supreme Court
1995 3 SCR 773 The Judgment of the Court was delivered by MRS. SUJATA V. MANOHAR, J. Leave granted. This is an appeal filed by the Union of India and the Director General, Border Security Force, New Delhi against a decision of the Delhi High Court dated 25.8.1994 in CWP No. 5042 of 1993 which was filed by the respondent against the appellants. The point in issue between the parties relates to the age of retirement of a Commandant Selection Grade in the Border Security Force. The companystitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and matters companynected therewith, are governed by the provisions of the Border Security Force Act, 1968. Section 141 of the Border Security Force Act enables the Central Government, by numberification, to make rules for the purpose of carrying into effect the provisions of this Act as set out in that section. In exercise of that power, the Central Government has numberified the Border Security Force Seniority, Promotion and Superannuation of officers Rules, 1978. It has also numberified the Border Security Force Rules of 1969. Under Rule 9 of the Border Security Force Seniority, Promotion and Superannuation of officers Rules, 1978, it is provided as follows- 9. Superannuation - Retirement age of officers holding a rank higher than that of Commandant shall be fifty eight years and for officers of the other rank it shall be fifty five years. Provided that It is companytended by the respondent that at all material tunes, he was holding the post of Commandant Selection Grade which, according to him, is a rank higher than that of a Commandant. Hence his age of retirement is 58 years under Rule 9. On the other hand, the appellants companytend that a Commandant Selection Grade holds the same post as a Commandant. Hence the retirement age for the respondent is 55 years. Accordingly, the appellants sought to retire the respondent on his attaining the age of 55 years. This was challenged by the respondent in the above writ petition where his companytentions have been upheld. We have to companysider whether a Commandant Selection Grade can be companysidered as holding a rank higher than that of a Commandant for the purposes of Rule 9 of the Border Security Force Seniority, Promotion and Superannuation of officers Rules, 1978. Since Rule 9 uses the term rank, we can examine, at the outset, the list of ranks under the Border Security Force Rules, 1969. Under Rule 14A of the Border Security Force Rules, 1969 the ranks of officers and other members of the Border Security Force are classified into various categories. This Rule provides as follows- 14A Ranks The officers and other members of the Force shall be classified in accordance with their ranks in the following categories, namely- Officers Director General Addl. Director General Inspector General Deputy Inspector General Additional Deputy Inspector General Commandant Deputy Commandant Assistant Commandant Subordinate Officers There is numberseparate category of Commandant Selection Grade . It is an accepted position that till 1981 there were numberposts of Commandant Selection Grade . In a Confidential Note which was prepared in 1981 by the Directorate General of the Border Security Force in companynection with cadre review of the gazetted establishment in the Border Security Force, it was pointed out that for historical reasons, the Border Security Force had to induct en masse Ex-emergency Commission Officers and other Service Commission Officers released from the Army. As many as 448 officers of about the same seniority and age group joined the Border Security Force practically together, upsetting numbermal recruitment plans of a duly organised service which would numbermally recruit about 30/40 Officers per year. This sudden recruitment of a large number of officers of the same seniority had caused unprecedented stagnation in the category, inter alia, of Commandants. The Directorate, therefore, recommended some interim measures to alleviate the degree and extent of stagnation among the officers, cadre of this force. One of the measures which was recommended and subsequently adopted was creation of a selection grade for Commandants. The Government of India by its letter dated 23rd February, 1981 companyveyed to the Director General of the Border Security Force, in companynection with cadre review for Group A posts in the Border Security Force, its approval, inter alia, to the creation of 123 posts of Commandants in the Selection Grade of Rs. 1800 fixed the quantum of special pay and companypensatory allowance then admissible and companyditions therefore would remain unchanged. The above 123 posts were in lieu of the existing 123 ordinary posts of Commandant in the Border Security Force. The letter also accepted upgradation of various other posts which are number relevant here. As a result, instead of the existing 123 ordinary posts of Commandants, 123 posts of Commandants Selection Grade came into existence. The pay scale which was sanctioned was a fixed pay of Rs. 1800 as against the pay scale of Rs. 1200-1700 fixed for a Commandant. The pay scale has been subsequently revised to Rs. 4100-5300 for a Commandant and Rs. 4500-5700 for a Commandant Selection Grade . In 1990 there was a second cadre review for Group A posts as a result of which the number of posts of Commandant Selection Grade were increased to The revised cadre strength is set out in paragraph 2 of the companymunication dated 26 of June, 1990 from the Government of India, Ministry of Home Affairs to the Director General, Border Security Force. The material portions of paragraph 2 are as follows- SI. No. Name of the post Rank No. of posts sanctioned Director General Rs. 8000 fixed 1 Additional Director General Rs. 7300-7600 1 Inspector General Rs. 5900-6700 13 Deputy Inspector General Deputy Director Rs. 5100-6150 46 Additional Deputy Inspector General Additional Deputy Director Rs. 4500-5700 Special pay of Rs. 200 38 Commandant Assistant Director Selection Grade - 185 Rs. 4500-5700 223 Ordinary Grade - 38 Rs. 4100-5300 Second-in-Command Rs. 4100-5300 139 U.O.I. v. S.S. RANADE SUJATA V. MANOHAR, Deputy Commandant Joint Assistant Director Rs. 3000-4500 J. 779 785 Assistant Commandant duty posts Rs. 2200-4000 1111 Deputation Reserve in the rank of Assistant Commandant 96 Probationers Reserve in the rank of Assistant Commandant 93 Total 2546 From the above documents it is clear that the post of Commandant Selection Grade was introduced with a view to prevent stagnation of a large number of officers in the post of Commandant and to give them a higher scale of pay. No additional duties have been prescribed anywhere for a Commandant Selection Grade . Commandants Selection Grade perform the same duties as Commandants. Both the posts are put together at serial number 6 above in the same category. A Commandant is defined under Section 2 f of the Border Security Force Act, 1968 to mean the officer whose duty it is under the rules to discharge with respect to that unit, any unit of the Force the functions of a Commandant in regard to matters of description referred to in that provision. The Border Security Force Manual, Volume-IV prescribes in paragraph 45 a the duties of a Commandant. It sets out that a Commandant is responsible for the sound administration, economy, training, welfare, companyduct, upkeep of morale and efficiency of all ranks under companymand. He is responsible for the upkeep and security of companyfidential companyrespondence, companyrespondence with higher headquarter, through second-in-command companytrol and audit of accounts, management of Regimental Institutions through Adjutant maintenance of discipline, utilisation of manpower, office management and so on. No separate duties are provided for Commandant Selection Grade . Commandant and Commandant Selection Grade , therefore, perform the same functions. If this is so, it is number possible to hold that for the purpose of Rule 9 of the Border Security Force Seniority, Promotion and Superannuation of officers Rules, 1978, a Commandant Selection Grade holds a post higher in rank than that of a Commandant in order to get the benefit of a higher age of superannuation. To attract Rule 9, the post must be a post higher than that of a Commandant, with higher responsibilities and higher pay scale and number the same post with a higher pay scale. The respondent has, however, relied upon certain other provisions of the said Rules in support of his companytention that Commandant Selection Grade is a post which is higher in rank than that of a Commandant. He has drawn our attention to Rule 6 of the Boarder Security Force Seniority, Promotion and Superannuation of officers Rules, 1978 as amended by the Border Security Force Seniority, Promotion and Superannuation of Officers Amendment Rules, 1989. Rule 6 deals with the eligibility of officers of promotion. Sub-rules 4 and 5 of Rule 6 are as follows- 6 4 - A Commandant, who has put a minimum of two years service in the rank of Commandant and has put in a minimum sixteen years Group A service, shall be eligible for promotion to the rank of Commandant Selection Grade . A Commandant Selection Grade who has put in a minimum of eighteen years group A service out of which a minimum of two years as a Commandant Selection Grade , shall be eligible for promotion to the rank of Additional Deputy Inspector General. It is submitted by learned Advocate for the respondent that this Rule clearly provides that a Commandant is eligible for promotion to the ranks of Commandant Selection Grade and a Commandant Selection Grade alone is eligible for promotion to the rank of Additional Deputy Inspector General. Rule 7 provides for the companystitution of a Committee to make selections or promotions under Rule 6. Rule 7 as amended in 1989 provides for the companystitution of a Departmental Promotion Committee for selection of officers to the rank of Deputy Commandant, Second-in-Command, Commandant, Commandant Selection Grade , Additional Deputy Inspector General and Deputy Inspector General. Both these provisions are strongly relied upon by the respondent as indicating that a Commandant Selection Grade is a higher post in the hierarchy of posts than a Commandant. This submission is based on a misunderstanding of what is meant by Selection Grade. Undoubtedly, a Commandant who becomes a Commandant Selection Grade secures a promotion to a higher pay scale. But it is a higher pay scale in the same post. The use of the word promotion in Rule 6 and the companystitution of a Departmental Promotion Committee for selection of Commandant Selection Grade in Rule 7, do number necessarily lead to the companyclusion that the promotion which is companytemplated there is necessarily a promotion to a higher post. Promotion can be either to a higher pay scale or to a higher post. These two Rules and the use of the word promotion there do number companyclude the issue. The respondent has also relied upon Rule 3 of the said Rules dealing with the seniority of officers. In the seniority all Commandants Selection Grade are placed above Commandants. According to the respondent, this would indicate that the Commandants Selection Grade hold a higher post than Commandants. This submission also must be rejected. In the seniority list, a higher rank may be allotted to an officer for various reasons. One cannot, however, say that a person who holds a higher rank in the seniority list thereby occupies a higher post. In our view, Rules 3, 6 and 7 must be read in the companytext of a selection grade providing promotion to a higher pay scale in the same post. These Rules are companysistent with the interpretation of a Selection Grade post as granting the benefit of higher pay to the officers holding the same post. Rule 9 provides a hierarchy of posts. Holders of all posts upto and including the level of Commandant retire at the age of 55 years. Holders of posts above that of a Commandant retire at the age of 58 years. In order to decide whether a post is either equivalent or is higher or lower than another post, one cannot look only at the pay scale for that post. One must also look at the duties and responsibilities that attach to such posts. In the case of Lalit Mohan Deb and Ors. v. Union of India and Ors., 1963 3 SCC 862 this Court companysidered the position of Assistant in the Civil Secretariat, Tripura as against the position of Assistant Selection Grade . This Court held that the administration can provide two scales of pay in the same category of posts. Provision of Selection Grade in the same category of posts is number a new thing. It is numbermally done with the object of providing incentive to employees who have numberoutlets or very limited outlets for promotion to higher posts. It has observed at page 866 - It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may number get a chance of promotion on account of united outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency. The ratio of this case applies directly to the present case where the raison detre for creating selection grade posts in the cadre of Commandants is identical, namely, prevention of stagnation and providing an incentive to employees or officers who do number have any outlet or have very limited outlets for promotion to higher posts because of the special circumstances set out earlier. In the case of Dayaram Asanand Gursahani v. State of Maharashtra and Ors., 1984 3 SCC 36 this Court was required to companysider, inter alia, the position of District Judge Selection Grade in the cadre of District Judges in the State of Maharashtra. This Court held that the selection grade post did number companystitute a separate cadre from that of the District Judge, number was it a post to which promotion had to be made, number did it involve an element of selection. In the present case, an element of selection is involved in granting selection grade because there is numberautomatic promotion to the selection grade pay scale. But this factor is number decisive. In the present case also, as in the above cases, Selection Grade posts are created entirely for the purpose of granting some relief to those who have very limited avenues of getting promotion to a higher post. That is why a higher pay or pay scale is granted in the same post. Thus, by its very nature, a selection grade post cannot be companysidered as a higher post for the purposes of Rule 9. The High Court in its impugned judgment has referred to Article 311 2 of the Constitution. It has companysidered how different posts in the Civil service of the Union or the States or All-India services are companypared or ranked with reference to one another in order to ascertain whether, in a given case, there is reduction in rank under Article 311 2 by transfer from one post to another post. In this companynection the High Court has emphasised that posts carrying different designations and different duties may be companysidered equivalent in rank if they are in the same pay scale. In this companytext pay scale may be a good yardstick for measuring ranks. But this has numberapplication to selection grade posts. Because the creation of a selection grade in the same post stands on a very different footing. By its very nature a selection grade provides a higher pay or a higher pay scale in the same post. The beneficiary of a selection grade does number thereby occupy a post which is higher in rank than the post earlier occupied by him. It is also pointed out by the appellants that if a selection grade is companysidered as a different post of a higher rank, and a higher age of retirement is prescribed for a Selection Grade post, that would defeat the very purpose of creating such posts. A higher retirement age would add to stagnation at that level and block promotions for others. The appellants have also relied upon a direction issued by them on 17th of September, 1981 in which it is pointed out that an officer of the rank of Commandant Selection Grade is entitled to wear the State Emblem with one star and number with two stars. So is a Commandant. We are informed that in this companynection, litigation is pending in the J K High Court. Pursuant to certain interim orders, a Commandant Selection Grade is permitted to wear two stars. In the Border Security Force Manual for 1991, paragraph 26 which deals with badges of rank, provides as follows- Badges of Ranks. Ads, HQ The State Emblem and two stars DG BSF Frontiers and DISG and Comdts SG of BNs Entitled to wear The appellants have explained that only those Commandants Selection Grade are permitted to wear two stars who are entitled to wear the same. The appellants have explained that officers from the Army, Indian Police Service and State Police were taken on deputation for manning senior posts in the Border Security Force. Those officers who were entitled to wear two stars and State Emblem in their parent organisation are permitted to wear them. The Manual does number provide for the wearing of two stars and the State Emblem by Commandants Selection Grade who are otherwise number entitled to do so. In any event, looking to the instructions issued as far back as in 1981 and the resultant litigation, this aspect throws little light on the question before us. . In the premises, for the reasons which we have set out above, a Commandant Selection Grade does number get the benefit of a higher age of retirement under Rule 9. The appeal is allowed. The judgment and order of the High Court dated 25.8.1994 is set aside. The appellants are entitled to retire the respondent on his companypleting the age of 55 years. The appellants, however, shall number recover from the respondent any emoluments received by him during his companytinuance beyond the age of 55 years as a result of any orders of this Court or the Delhi High Court.	Case appeal was accepted by the Supreme Court
1995 3 SCR 754 The Judgment of the Court was delivered by MAJMUDAR, J. Leave granted. By companysent of learned Advocates of parties, the appeal was heard finally and is being decided by this judgment. The appellant, State of Bihar and its Officers, have brought in challenge the order passed by a Division Bench of the Patna High Court allowing writ petition filed by the respondent herein. In the said writ petition, the respondent had challenged initiation of fresh departmental proceedings against him by issuing a numberice dated 17.07.1993 and also a show cause numberice dated 27.09.1993 calling upon the respondent to show cause as to why action should number be taken against him under Rule 139 of the Bihar Pension Rules hereinafter referred to as the Rules for withholding of 70 per cent of pension. He also challenged the final order dated 13.12.1993 passed in exercise of power under Rule 139 a and b of the Rules to withhold 70 per cent of pension. All these challenges were upheld by the High Court. That is how these appellants are before us. A few relevant facts leading to this appeal may be numbericed. At the relevant time in 1986-1987 the respondent was working in the Irrigation Department of the appellant State. It was alleged that the respondent was involved in certain irregularities during his tenure under the Department. The Flying Squad of Irrigation Department made enquiries with regard to the allegation of irregularities companymitted by the respondent at Rewa Ghat, Maghaul, Sarangpur and other places of Saran Embankment during the period 1986-87. The Flying Squad in its report found some financial and other irregularities in the work done by the respondent at the aforesaid places. The Government of Bihar examined the report of the Flying Squad and it was found that the respondent was responsible for the irregularities as well as financial irregularities. The respondents explanation was asked for. Ultimately it was found that the respondent was responsible for the irregularities and that excess payment was made by the respondent to the companycerned parties. The Government awarded punishment to the respondent as per its order dated 6.6.1992. The respondent challenged the said order in the High Court in C.W.J.C. No. 6696 of 1992. On 16.11.1992, the said writ petition was allowed. The High Court held that the principles of natural justice were violated by the authorities when they passed the impugned order. The companyy of the report of the Flying Squad was number made available to the respondent. On that ground the impugned order dated 6.6.1992 was quashed with liberty to the State Government to proceed afresh against the respondent. It was directed that the respondent was entitled to have companyy of the papers upon which the authorities may rely and thereafter, pass the appropriate reasoned order in accordance with law. As a companysequence of the said decision the order of punishment was set aside. Thereafter on 31.01.1993 the respondent reached the age of superannuation and retired from Government service. On 17.07.1993, the respondent was required to submit explanation regarding irregularities. For that purpose, he was served with a numberice dated 17.07.1993. Before that numberice companyld be processed further, a show cause numberice was issued to the respondent on 27.09.1993 intimating to him that as he had already retired from service and the period of charges was prior to four years, numberaction companyld be taken against the respondent under Rule 43 b of the Rules and that the Government had decided to issue show cause numberice under Rule 139 of the Rules. He was called upon to show cause as to why deduction of 70 per cent of his pension should number be made. In the light of the said show cause numberice, the appellant-State passed final order on 13.12.1993 in exercise of powers under Rule 139 a and b withholding of 70 per cent of pension payable to the respondent. It may be mentioned at this stage that the respondent, in the meantime, had already filed Writ Petition No. 8535 of 1993 in the Patna High Court challenging the earlier numberice dated 17.07.1993. In the said writ petition by way of amendment, the respondent also challenged the subsequent show cause numberice dated 27.09.1993 issued by the State authority under Rule 139 of the Rules. He also challenged the final order passed on 13.12.1993. As numbered earlier, after hearing the parties, the High Court allowed the writ petition quashing these proceedings pursuant to the impugned numberices dated 17.07.1993 and 27.09.1993 and also final order dated 13.12.1993. The learned Advocate appearing for the appellant companytended that Rule 139 of the Rules gives ample power to the said authorities to withhold either wholly or in part pension of retired Government servant if requirements of the Rules were satisfied. In the present case, the service record of the respondent was number satisfactory at all and he was also involved in grave misconduct during the time he was working in the Irrigation Department. That is why his explanation was asked for pursuant to the show cause numberice dated 27.09.1993 for withholding 70 per cent of the pension. The High Court was number justified in quashing the said numberice and the final order. The said order, was properly passed on the facts of the present case. In any case, if it is held agreeing with the High Court that there was numberproof of misconduct as established on record, then proceedings may be sent back to the authorities for reconsideration of the question and for arriving at proper findings in accordance with law. That earlier numberice dated 17.10.1987 was issued within the time permissible under Rule 43 b , and hence if the order dated 06.06.1992 was set aside by the High Court on technical grounds, proceedings pursuant to earlier numberice dated 17.10.1987 companyld be resumed from the stage at which they were found to be vitiated in the earlier writ proceedings. The companynsel for the respondent companybated these submissions and companytended that the numberice that initiated proceedings under Rule 139 did number allege that power was sought to be exercised by the authority under Rule 139 as service record was number thoroughly satisfactory. That power was sought to be invoked only on the basis of misconduct and there was numberproof of misconduct against the respondent which can justify the impugned order of 13.12.1993. That there is numberquestion of remanding of proceedings against the respondent for the simple reason that the numberice of 27.09.1993 relied on alleged misconduct of the respondent during 1986-87 which was prior to four years from the date of the numberice and hence, the numberice was invalid and companyld number support any fresh proceedings. The earlier proceedings got terminated as per High Courts order. Hence even the earlier numberice dated 17.10.1987 did number survive. Having given our anxious companysiderations to these rival companytentions, we find that the decision of the High Court on the facts of the present case is unexceptionable. The earlier numberice dated 17.07.1993 by which fresh departmental proceedings were sought to be initiated was rightly quashed by the High Court as it was based on the alleged misconduct of the respondent during 1986-87 which was more than four years prior to the issue of the said numberice. Such a numberice seeking to initiate fresh departmental proceedings after the retirement of the respondent, was clearly hit by the proviso to sub-rule b of Rule 43 of the Rules. Rule 43 b reads as under The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss cause to Government if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have cause pecuniary loss to Government by misconduct or negligence during his service including service rendered on re-employment after retirement Provided that - a such departmental proceedings, if number instituted while the Government servant was on duty either before retirement or during re-employment shall number be instituted save with the sanction of the State Government shall be in respect of an event which took place number more than four years before the institution of such proceedings and shall be companyducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made A mere look that these provisions shows that before the power under Rule 43 b can be exercised in companynection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the companycerned Government servant is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place number more than four year before the initiation of such proceedings. It is, therefore, apparent that numberdepartmental proceedings companyld have been initiated in 1993 against the respondent under Rule 43 a and b in companynection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years old, Rule 43 b was out of picture. Even the respondent authorities accepted this legal position when they issued numberice dated 27.09.1993. It was clearly stated therein that numberaction can be taken under Rule 43 b of the Rules as the period of charges has been old by more than four years. It is equally number possible for the authorities to rely on the earlier numberice dated 17.10.1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did number permit the respondent to resume the earlier departmental inquiry pursuant to the numberice date 17.10.1987 from the stage it got vitiated. The respondent also, therefore, did number rely upon the said numberice dated 17.10.1987 but initiated fresh departmental inquiry by the impugned numberice dated 27.09.1993. Consequently it is number open to the learned Advocate for the appellant to rely upon the said earlier numberice dated 17.10.1987. There remains the question whether any assistance can be derived by the appellant authorities from Rule 139 of the Rules. The said Rule 139 reads as under 139 a . The full pension admissible under the rules is number to be given as a matter of companyrse, or unless the service rendered has been really approved. If the service has number been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper. The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their companytrol, if they are satisfied that the service of the pensioner was number thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner companycerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed. So far as that rule is companycerned, it empowers the State authorities to decide the question whether full pension should be allowed to a retired Government servant or number in the circumstances companytemplated by the Rule. The first circumstance is that if the service of the companycerned Government servant is number found to be thoroughly satisfactory, appropriate reduction in the pension can be ordered by the sanctioning authority. The second circumstances is that if it is found that service of the pensioner was number thoroughly satisfactory or there is proof of grave misconduct on the part of companycerned Government servant while in service, the State Government in exercise of revisional power may interfere with the fixation of pension by the subordinate authority. But such power flowing from Rule 139, under the aforesaid circumstances, is further hedged by two companyditions. First companydition is that revisional power has to be exercised in companysonance with the principle of natural justice and secondly such revisional power can be exercised only within three years from the date of the sanctioning of the pension for the first tune. A companyjoint reading of Rule 43 b and Rule 139 projects the following picture A retired government servant can be proceeded against under Rule 139 and his pension can be appropriately reduced if the sanctioning authority is satisfied that the service record of the respondent was number thoroughly satisfactory. II. Even if the service record of the companycerned officer is found to be thoroughly satisfactory by the sanctioning authority and if the State Government finds that it is number thoroughly satisfactory or that there is proof of grave misconduct of the companycerned officer during his service tenure, the State Government can exercise revisional power to reduce the pension but that revision is also subject to the rider that it should be exercised within 3 years from the date, an order sanctioning pension was first passed in his favour by the sanctioning authority and number beyond that period. So far as the second type of cases is companycerned the proof of grave misconduct on the part of the companycerned Government servant during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to companyply with the requirements of Rule 43 b . Consequently a retired Government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings companyducted against him even after his retirement, but such proceedings companyld be initiated in companynection with only such misconduct which might have taken place within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31.1.1993 and the show cause numberice was issued on the ground of grave misconduct on 27.09.1993 and number on the ground that service record of the pensioner was number thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore to be read with Rule 43 b . Such numberice therefore, companyld companyer any misconduct if companymitted within 4 years prior to 27.09.1993 meaning thereby it should have been companymitted during the period from 26.09.1989 upto 31.01.1993 when respondent retired. Only in case of such a misconduct, departmental proceedings companyld have been initiated against the respondent under Rule 43 b . In such proceedings, if he was found guilty of misconduct he companyld have been properly proceeded against under Rule 139 a and b . On the facts of the present case it must be held, agreeing with the High Court that the numberice dated 27.09.1993 invoking powers under Rule 139 a and b was issued wholly on the ground of alleged past misconduct and was number based on the ground that service record of the respondent was number thoroughly satisfactory. So far as that ground was companycerned, on a companyjoint reading of Rule 43 b and Rule 139 a there is numberescape from the companyclusion that as the alleged misconduct was companymitted by the respondent prior to 4 years from the date on which show cause numberice dated 27.09.1993 was issued, the appellant authority had numberpower to invoke Rule 139 a and b against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13.12.1993 as there is numberproof of such a misconduct. No question of remanding the proceedings under Rule 139 a and b would survive as the alleged grave misconduct companyld number be established in any departmental proceedings after expiry of four years from 1986-87 as such proceedings would be clearly barred by Rule 43 b proviso a ii . Consequently the show cause numberice dated 27.09.1993 will have to be treated as stillborn and ineffective from its inception. Such a numberice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons numbercase is made for our interference in this appeal. In the result appeal fails and is dismissed.	Case appeal was rejected by the Supreme Court
1995 3 SCR 734 The Judgment of the Court was delivered by S.C. AGRAWAL, J. Leave granted. We have heard the appellant who is appearing in person and the learned companynsel for the respondents. The appellant joined the Geological Survey of India for short GSI as Drilling Assistant on July 12, 1965. The said post was re-designated as Junior Technical Assistant. As per recommendation of the Departmental Promotion Committee for short the DPC , by order dated November 12, 1978, he was promoted and posted as Senior Technical Assistant in the North Eastern Region at Shillong. The appellant requested for a posting in the Central Region at Nagpur itself but the said request was number accepted. The said promotion of the appellant was kept upon for the appellant to join at Shillong Office till February 22, 1980 on which date the said offer was cancelled by the companypetent authority. In August 1980 the appellant was granted ad hoc promotion to the post of Senior Technical Assistant and he was posted in the Central Region at Nagpur. He companytinued to hold the said post till the order dated February 18, 1985 whereby he was reverted to the post of Junior Technical Assistant with effect from February 28, 1985. The said order of reversion was passed on account of the appellant having number been selected for promotion on regular basis to the post of Senior Technical Assistant by the DPC which met in 1985. Feeling aggrieved by the said order of reversion the appellant filed a Writ Petition Writ Petition No. 395 of 1985 in the High Court at Bombay, Nagpur Bench. The said Writ Petition was transferred to the Central Administrative Tribunal, Bombay Bench hereinafter referred to as the Tribunal and it was registered as Transfer Petition No. 343 of 1987. Before the Tribunal the appellant submitted that according to the Rules the DPC should meet every year but in the present case the DPC did number meet during the period from 1979 to 1984 and, therefore, proceedings of the DPC which met in 1985 were liable to be quashed. The Tribunal, however, rejected the said companytention and dismissed the said petition by judgment dated August 8, 1990. Feeling aggrieved by the said judgment of the Tribunal the appellant has filed this appeal. The appellant has placed reliance on the Office Memorandum dated December 24, 1980 of the Government of India, Ministry of Home Affairs Department of Personnel and Administrative Reforms on the subject Principles for promotion to Selection posts wherein it is stated that in a number of cases the meeting of the DPC are number held annually as required even though there were vacancies resulting in the bunching of vacancies which in turn enlarged the field of choice and upset the relative seniority positions in the higher grade on account of supersessions and after companysidering the various points which were raised by various Ministries Departments the following instructions were issued Zone of companysideration for promotion to posts filled by Selection Reference is invited to the Ministry of Home Affairs New Department of Personnel and A.R. O.M. No. 1/4- 55/-RPS dated 13.5.1967 laying down certain principles for promotion. In the operation of these principles it has been observed that the absence of clearly defined limits on the companytext of the field of choice has led to lack of uniformity in the practices being followed by the DPCs. Similarly, it is felt that a large field of choice might result in excessive supersessions. Again, despite repeated instructions of the Government to hold DPCs annually there have been quite a few cases of delays resulting in vacancies being bunched. This would enlarge the field of choice and upset the relative seniority positions in the higher post with reference to the positions which would number have resulted had the DPCs met at the appropriate time. In view of these companysiderations it has been decided in companysultation with the UPSC as under in supersession of this Departments O.M. No. 1/4/55-RPS dated 16.5.1957 and all other documents having any bearing on the matter herein dealt with. The Departmental Promotion Committee DPC shall for the purpose of determining the number of officers who should be companysidered from out of these eligible officers in the feeder grade s restrict the field of choice as under, with reference to the number of clear regular vacancies proposed to be filled in the year. No. of Vacancies No. of Officer to be companysidered. 1 2 1 5 2 8 3 10 4 or more Three times the number of vacancies Where, however, the number of eligible officers in the feeder grade s is less than the number of Col. 2 above, all the officers so eligible should be companysidered. Where adequate number of SC ST candidates are number available within the numbermal field of choice as above, the field of choice may be extended to 5 times the number. Preparation of year wise panels by DPC where they have number met for a number of years. Instructions already exist that DPCs should meet at regular annual intervals for the preparation of select list and where numbersuch meeting is held in any year, the appointing authority should record a certificate that there were numbervacancies to be filled during the year. Administrative Ministries should obtain periodical information certificates on the regular holding of DPCs. Where, however, for reasons beyond companytrol, DPC companyld number be held in any year s even though the vacancies arise during that year or years , the first DPC that meets thereafter should follow the following procedure Determine the actual number of regular vacancies that arose in each of the previous year years immediately and the actual number of regular vacancies proposed to be filled in the current year separately. Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards. Prepare a Selection list for each of the years starting with the earliest year onwards. Prepare a companysolidated Select list by placing the select list of the earlier year above the one for the next and so on. The submission of the appellant is that apart from the fact that numberDPC was held during the year 1979 to 1984, the DPC which met in 1985 did number make the selection according to the vacancies which occurred in each year during the period 1979 to 1985 and it bunched together all the vacancies that occurred during the years 1979 to 1985 and made the selection for all those vacancies which resulted in enlarging the field of choice and thereby prejudicially affecting the chances of selection of the appellant. On behalf of the respondents it has been submitted that GSI actively companysidered the regionalisation of the Department in view of the all India character of the Department and that the question of allocation of posts of different categories to the different appointing authorities under each Region was under process and hence numberpromotion companyld be proposed or effected but, as a matter of nature of work and in public interest, ad hoc appointments were made in various cadres according to the requirement as per local seniority and accordingly the appellant was also given ad hoc promotion to the post of Senior Technical Assistant Drilling in August 1980 and that such ad hoc appointments were cancelled in 1985 when the Department companyld arrive at actual regular vacancies in the Department after reorganisation and regular selection was made by the DPC for the vacancies. In the companynter affidavit of Anil Joshi filed on behalf of the respondent it is stated that out of 86 posts of Senior Technical Assistant which were available in the Central Region of GSI, 6 posts occurred in the Central Region Office as per letter dated December 22, 1984 of the head Office of GSI and that out of those 6 posts one post was reserved for SC ST candidate and as per the Recruitment Rules in force the post of Senior Technical Assistant Drilling is to be filled in the ratio of 20 by direct recruitment and 80 by promotion from the grade of Junior Technical Assistant Drilling with 5 years regular service in the grade and that the name of the appellant at serial number 1 along with other candidates was placed before the DPC which was companystituted by letter dated January 8, 1985. In view of the aforesaid explanation that has been offered by the respondents for number-holding of the DPC during the period the reorganisation of the Department was under process may be justified. But when the DPC met in 1985 was it number required to make the selections on yearly basis for the vacancies of each particular year? The Office Memorandum dated December 24, 1980 clearly postulates that where the DPC is unable to meet on regular intervals for reasons beyond companytrol the first DPC that meets thereafter shall determine the actual number of regular vacancies that arose in each of the previous year years and the actual number of regular vacancies proposed to be filled in the current year separately and companysider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards and prepare a selection list for each of the years starting with the earliest year onwards and on that basis prepare a companysolidated select list. From the affidavit of A.K. Bhandari, Director, GSI dated March 23, 1995, filed on behalf of the respondents, it appears that one regular vacancy occurred in the year 1980 which was filled by ad hoc appointment of the appellant and the next single vacancy occurred in 1982 which was also filled up on ad hoc basis and that three vacancies occurred in the year 1983 which were also filled up on ad hoc basis. It has also been stated in the said affidavit that on December 22, 1984 the Central Region got allotment of seven vacancies of Senior Technical Assistant Drilling -6 promotion and one direct recruit - on account of regionalisation of Group C cadre and that for making selection for 6 posts to be filled by promotion the DPC met on January 15, 1985 and made selection for all 6 promotional vacancies. It is number the case of the respondents that the DPC made separate selection for the vacancies for the years 1980, 1982 and 1983 and the DPC appears to have bunched together all the vacancies for the years 1980 to 1985 and has made one selection for the 6 promotional vacancies and this has resulted in enlargement of the field of choice for the purpose of selection. The grievance of the appellant is that this mode of selection in disregard of the instructions companytained in the Office Memorandum dated December 24, 1980 operated to his prejudice appears to be justified because if separate selection had been made for the vacancies which occurred in the years 1980, 1982 and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected. The 6 persons who were selected by the DPC in 1985 for promotion to the post of Senior Technical Assistant Drilling are number parties in these proceedings. Their selection cannot, therefore, be disturbed. Therefore, without disturbing the selection of the 6 officers who were selected by the DPC in 1985 for the post of Senior Technical Assistant Drilling , the respondents are directed to companyvene a DPC for companysidering the appellant for selection for promotion to the post of Senior Technical Assistant Drilling against the vacancies which occurred in the years 1980, 1982 and 1983. The said DPC shall companysider the appellant for such selection for the vacancies for each of these years separately as per the Office Memorandum dated December 24, 1980. In case the appellant is selected for such promotion against any of these vacancies, the reversion of the appellant made by order dated February 18, 1985 would stand revoked and he would be regularly promoted on the post of Senior Technical Assistant Drilling with all companysequential benefits with effect from the date when 6 persons who were selected by the DPC in 1985 were so promoted on the post of Senior Technical Assistant Drilling . In case the appellant is number selected by the DPC for any of the vacancies, his reversion under order dated February 18, 1985 would remain undisturbed. The DPC should be companyvened within a period of four months. The appeal is disposed of accordingly. The appellant would be entitled to his companyts. The said companyts are fixed at Rs.	Case appeal was accepted by the Supreme Court
1995 3 SCR 534 The Judgment of the Court was delivered by K. MUKHERJEE, J. This appeal by special leave is directed against the judgment and order dated February 22, 1989 rendered by the High Court of Bombay in W.P. No. 3682 of 1987. Facts leading to the appeal and relevant for its disposal are as under. The appellant is a firm registered under the Partnership Act and carries on business as builders and developers, while the respondent No. 1 is a Government Company within the meaning of section 617 of the Companies Act, 1956. On March 23, 1971, the Government of Maharashtra issued a numberification under sub-section 1 of section 113 of the Maharashtra Regional and Town Planning Act, 1966 Act for short delineating and designating certain area for development as a site for a new town to be known as New Bombay. Concurrently, it declared, in accordance with sub- section 3A thereof, the respondent No.l to be the New Town Development Authority for that township. Consequent upon such declaration the respondent No. 1 assumed, by virtue of sub-section 8 of the said section, all the powers and duties of a Planning Authority under the Act including those under Chapter 1 and IV thereof. In due companyrse the respondent No. 1 framed, in exercise of powers companyferred by section 159 of the Act and with the previous approval of the State Government, a set of Regulations called the General Development companytrol Regulations for New Bombay, 1975 Regulations for short . Regulation 16.3.1 of the said Regulations initially provided that the Floor Spice Index FSI for short for divers land use should number exceed 1. On August 24, 1981 the Board of Directors of the respondent No. 1 passed a resolution to amend the above regulation by fixing different FSIs for divers land uses and for land use for business and companymercial purposes the maximum permissible FSI was fixed at 2. By its letter dated October 21, 1981 the respondent No. 1 forwarded the resolution to the State Government for approval in accordance with section 159 of the Act. Instead of approving the proposed amendment the State Government wrote back to the respondent No. 1 on November 30, 1982 to resubmit the same after following the procedure laid down in section 37 of the Act to enable it the State Government to effectuate the marginal or minor modification to the final Development plan of New Bombay. Pursuant thereto and in companypliance thereof respondent No. 1 issued and published a numberice dated August 29, 1983 in the Official Gazette inviting objections and suggestions with regard to the proposed amendment by way of a minor modification to the final Development plan. As numberobjection was received to the proposed amendment the Board of Directors of the respondent number 1 companysidered and approved of the proposed amendment and authorised its Chief Administrative Officer to resubmit it to the State Government. Accordingly, the Chief Administrative Officer wrote a letter to the State Government on March 5, 1984 seeking its approval to the amendment as required under section 37 1 of the Act. While the matter was awaiting final decision of the State Government, the respondent No. 1 issued a public numberice in August, 1985 inviting offers for lease of companymercial plot No. 4 of the District Business Centre in Sector 17 of Vashi. New Bombay on terms and companyditions set out in a booklet published for the purpose. In the booklet the maximum permissible limit of FSI for the successful lessee was shown as 2. Amongst others, the appellant responded to the numberice and ultimately succeeded in getting allotment of the plot for which a formal lease agreement was entered into by and between the appellant and the respondent No. 1 on January 21, 1987 for a companysideration of Rs. 64,19,250. Clause 3 aa i of that agreement provides that the maximum permissible FSI as defined by the Regulations shall be 2. In the meantime - on October 10, 1986 to be precise - the State Government had issued a numberification in the Official Gazette in accordance with section 37 2 of the Act sanctioning increase in FSI in respect of use for business purpose to 1.50 only. On getting information about the same the appellant wrote a letter to the respondent No. 1 pointing out that the numberification had numberbearing upon its companystruction plan as the maximum permissible built up area granted under the agreement had been fixed at 3200 sq. metres on the basis that FSI was 2 . Without prejudice to its above companytentions, it prayed for provisional permission to companystruct about 2000 sq. metres, as per the plan submitted by them. In reply thereto the respondent No. 1 companymunicated to the appellant by its letter dated May 15, 1987 that its plan companyld number be approved since there was discrepancy in the FSI mentioned in the agreement and the FSI actually approved by the Government. Aggrieved thereby the appellant filed a petition in the High Court for a writ of mandamus companypelling the respondent No. 1 and the State of Maharashtra the respondent No. 2 to forthwith withdraw and or cancel the impugned numberification dated October 10, 1986 and the letter dated May 15, 1987 and to forbear and desist them from in any manner implementing or enforcing or taking any action on the basis thereof. The high Court dismissed the writ petition with an observation that as the appellant had with open eyes and possibly in companylusion with the officers of respondent No 1 had entered into an agreement which was companytrary to the Regulations and the law, it was number permissible for it to claim writ of mandamus to enforce illegalities. To appreciate the points involved in this appeal it will be imperative at this stage to take a close look into the relevant provisions of the Act. The Act was brought in the statute book in 1966 to make provisions for planning the development and use of land in numberified regions and creating new towns through Planning Authorities and Development Authorities to be companystituted and declared for the purpose. Chapter III of the Act companyprises a fasciculi of sections which relate to preparation, submission and sanction of Development plan and procedures to be followed therefore. Section 21 thereof requires that within the period prescribed therein every Planning Authority shall prepare draft Development plan for the area to be developed and submit the same to the State Government for sanction. Section 22 provides that a Development plan shall generally indicate the manner in which the use of the land in the area of a Planning Authority shall be regulated and also indicate the manner in which the development of land therein shall be carried out. The section then says that in particular, it shall provide, so far as may be necessary, for all or any matters as enumerated in the clauses therein. Clause m thereof, which is material for our purposes, reads as under 22 m Provisions for permission to be granted for companytrolling and regulating the use and development of land within the jurisdiction of a local authority including imposition of companyditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot emphasis supplied Sections 23 to 30 lay down the procedure to be followed in preparing a draft Development plan and section 31 which relates to the sanction to the draft Development plan reads as under 31 1 Subject to the provisions of this section, and number later than one year from the date of receipt of such plan, from the Planning Authority, or as the case may be, from the said Officer, the State Government may, after companysulting the Director of Town Planning by numberification in the official Gazette sanction the draft Development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may companysider proper, or return the draft Development plan to the Planning Authority, or as the case may be, the said Officer for modifying the plan as it may direct, or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan XXX XXX XXX 2 xxx xxx xxx 3 xxx xxx xxx The State Government shall fix in the numberification under subsection 1 a date number earlier than one month from its publication on which the final Development plan shall companye into operation. 5 xxx xxx xxx A Development plan which has companye into operation shall be called the final Development plan and shall, subject to the provisions of this Act, be binding on the Planning Authority. emphasis supplied Section 35 provides that if any Planning Authority has prepared a Development plan which has been sanctioned by the State Government before the companymencement of the Act then such Development plan shall be deemed to a final Development plan sanctioned under the Act. Section 37 of the Act which relates to the mode and manner of making minor modifications to the final Development plan is extracted below Where a modification of any part of or any proposal made in, a final Development plan is of such a nature that it will number change the character of such Development plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a numberice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification number later than one month from the date of such numberice and shall also serve numberice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification with amendments, if any, to the State Government for sanction. IA xxx xxx xxx The State Government may, after making such inquiry as it may companysider necessary after hearing the persons served with the numberice and after companysulting the Director of Town Planning by numberification in the Official Gazette, sanction the modification with or without such changes, and subject to such companyditions as it may deem fit, or refuse to accord sanction. If a modification is sanctioned, the final Development plan shall be deemed to have been modified accordingly. emphasis supplied Section 159 empowers the Regional Board, Planning Authority and Development Authority to make, with the prior approval of the State Government, Regulations companysistent with the Act and the Rules made thereunder to carry out the purpose of the Act and without prejudice to the generality of the power, lays down the specific fields in which it can make Regulations. That brings us to the relevant provisions of the Regulations. Regulation 3.11 defines FSI to mean the ratio of the gross floor area of all the storeys of a building on a plot to the total area of the plot. Regulation 16 enumerates the various terms and companyditions which are to govern development of buildings for the various land use and regulation 163.1 a thereof prescribes the maximum permissible FSI. From the facts of the instant case as recorded earlier it is evident that when the respondent No. 1 issued the public numberice in August, 1985 inviting offers for lease of the plot in question the maximum permissible FSI for divers land uses according to the final Development plan was in and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and the respondent No. 1, the State Government had issued the impugned numberification in accordance with section 37 2 of the Act sanctioning increase in the FSI to 1.50 and number to 2 as proposed by the respondent No. 1. The prior sanction of the State Government being the sine qua number for a final Development plan as also for minor modifications thereof under section 31 and 37 respectively, the agreement so far as it related to FSI did number, and companyld number, bestow and legal right upon the appellant. To put it companyversely, only on such sanction companyld the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant. Building his argument on the doctrine of estoppel, the learned companynsel for the appellant submitted that the prescription of FSI was number a statutory prescription but an administrative decision required to be taken by the respondent No. 1 from plan to plan under the provisions of section 22 m of the Act. He argued that since in the instant case the respondent No. 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a companytract with the appellant on the basis thereof with open eyes it was estopped from repudiating the companytract under section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next companytended that regulation 16 of the Regulations made under section 159 of the Act providing for FSI was ultra vires because the matters which companyld be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned companynsel when FSI has been specifically mentioned to be made a part of each Development plan under section 22 m the fixation of FSI cannot be brought within the ambit of regulation making power of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned companynsel companytended that respondent No. 1 companyld number resile from their companytractual obligations by taking shelter behind a regulation which was ultra vires. He lastly companytended that, assuming but without admitting, that FSI companyld fall within the ambit of regulation made under section 159 of the Act, the fixation thereof was number a statutory prescription but the expression of an in-house policy declaration, which if deviated from by the holder of the Authority companyld number be used as a shield to retract from their companytractual obligations. It was at best, according to the learned companynsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did number extend thereto. Having regard to the schemes of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above companytentions. Amongst various matters required to be included in a Development plan under section 22 of the Act, a provision for permission to be granted for companytrolling and regulating the use and development of land including imposition of companyditions and restrictions in regard to the open space to be maintained about buildings and percentage of building area for a plot is required to be made under clause m thereof. To companyform to the words percentage of building area for a plot appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is an in-house exercise of respondent No. 1, but it gets its legal sanctity only when the State Government grants its approval thereto under section 159 of the Act. After the FSI is so fixed to companyply with the requirements of sections 22 m , it becomes a part and parcel of the Development plan which is to be submitted by the Planning Authority to the State Government under section 21. Once the State Government grants approval to the Development plan it becomes the final Development plan and binds the Planning Authority under section 31 6 of the Act. Therefore, any person or violation of any of the terms or companytents of the final Development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is number only a breach of regulation 159 but also of sections 31 6 and 37 2 of the Act. In that view of the matter and in view of the well settled law that the doctrine of promissory estoppel cannot be invoked to companypel the public bodies or the Government to carry out the representation or promise which is companytrary to law or which is outside their authority or power, numbere of the companytentions raised on behalf of the appellant can be entertained. On the companyclusions as above, we hold that the reliefs sought for in the writ petition are number available to the appellant for it is trite that before one can seek a writ of mandamus he has to prove that he has a legally protected and judicially enforceable right.	Case appeal was rejected by the Supreme Court
1995 3 SCR 807 The Judgment of the Court was delivered by HANSARIA, J. The appellant is liable to property tax leviable under the Bombay Municipal Corporation Act, 1888 the Act . It companystructed a building on two plots bearing number. 165 and 166. The companystruction started in February, 1962 and was companypleted by December, 1964. The Bombay Municipal Corporation, for short the Corporation, asked the assessee to show-cause as to why the rateable value should number be raised to Rs. 17,36,420 with effect from 16th June, 1963. The assessee raised objection to the enhancement. After companysidering the objection, the Corporation fixed the rateable value at Rs. 12,16,285 by adopting a method styled as companyparative. The assessment as finalised by the Corporation came to be challenged by the assessee appellant before the Chief Judge of the Small Cause Court, under section 217 of the Act. One of the companytentions advanced by the assessee was that instead of the companyparative method adopted by the Corporation, the suitable basis for assessment was companytractors method. Both the parties led evidence and the Chief Judge came to the companyclusion that the companyparative method was number unsuitable. It was secondly held that even if the companytractors method were to be adopted, the result would number have been different. After going through the merits of the companytroversy the Chief Judge reduced the rateable value to Rs. 9,97,555. Both the Corporation and the assessee appealed before the High Court of Bombay and by the impugned judgment the High Court has accepted the appeal of the Corporation by enhancing the reteable value to Rs. 11,81,450. The appeal of the assessee was dismissed. This appeal by special leave is by the assessee. 2, A perusal of the impugned judgment shows that the companyparative method was held to be unsuitable inasmuch as there being numberother building within the area companyparable in all respects to the building in question, that method companyld number apply, as, what would have been the rent of the building if let out to a tenant companyld number be known. This view taken by the High Court is number assailed before us by any of the parties. We would, therefore, see whether while adopting the companytractors method, any wrong have been companymitted in fixation of the rateable value at Rs. 11,81,450. According to the appellant the High Court erred in including the following items in the companyt of companystruction Cost of air-condition machinery amounting to Rs. 5,91,767.50. Cost of false ceiling amounting to Rs. 7,80,289. Cost of wooden partitions dividing the floor spaces amounting to Rs. 3,45,032.10. Cost of mural figure on the outside wall amounting to Rs. 15,000. Amount of ground rent for 4 years and 4 months Rs. 59,000 per year - the total of which companyes to Rs. 1,94,065.60. A sum of Rs. 1,61,721.28 being the interest on Rs. 2,98,562.50 which the appellant had deposited with the Corporation while undertaking the companystruction of the building, A sum of Rs. 14,38,589.83 representing interest 6-l/2 on Rs. 82,99,557.07 which was the total companyt of companystruction. We would express our views on the aforesaid objections as listed Items a and b Both these items have been taken together as they relate to air- companyditioning of the building. The type of air-conditioning device put up has been well explained in the impugned judgment at pages 54 and 55 of the paper book. It is embedded and mounted on a companycrete foundation and the building has been so designed as to have the whole of it centrally air- companyditioned. For this purpose, a provision was made for companycrete companyling towers on the terrace and steel pipes have been laid to ensure the circulation of the companyling water from the tower to the ground floor and then back to the tower. To ensure this, false ceiling on each floor was required which companyted Rs. 7,80,289 in all, which is more than the companyt of the machinery which was Rs. 5,91,767.50. The aforesaid leaves numbermanner of doubt that the air-conditioning machinery had been installed for the purpose of better enjoyment of the building itself increasing its utility. Relying on this factor as well as on the type of air-conditioning done in the building, it is companytended by Shri Nariman, appearing for the Corporation, that the case is number companyered by section 154 2 of the Act, as per which the value of any machinery company- tained in or situate upon any building is number to be included in the rateable value. According to learned companynsel, this provision of the Act which alone has been pressed into service by the appellant to get excluded the valuation of items a and b , takes care of that machinery only which has its separate existence and about which it cannot be ,said that it is embedded to the building to become its integral part. It is also urged that the type of apparatus and companytrivance used in air-conditioning the building, has made the device more a plant than a machinery and what has been exempted by the aforesaid provision is a machinery and number a plant. Shri Nariman has strenuously urged that when a chattel becomes a part of hereditament, the value of the same has to be included in fixing rateable value of a building, as was opined in London County Council v. Wilkins Valuation Officer , 1955 2 All E.L.R. 180, which view of the Court of Appeal was upheld by the House of Lords in London County Council Wilkins, 1956 3 All E.L.R. 38, which decision was subsequently relied upon by the Court of Appeal in Field Place Caravan Park Ltd. v. Harding Valuation Officer , 1966 3 All E.L.R. 247 and Dick Hampton Earth Moving Ltd. v. Lewis Valuation Officer , 1975 3 All E.L.R. 946. The learned companynsel then draws our attention to some of the decisions of the High Courts of the companyntry where movable properties like Kolhu, powerloom and furniture were held to have become part of land, as defined in section 3 of the Transfer of Property Act. The definition of land in the Act is similar . These decisions are Musai Kurmi v. Sub Karan Kurmi, AIR 1914 Allahabad 176 2, Industrial Weavers Co-operative Society Ltd. v. Collector, Hardoi, I.L.R. 1976 2 Allahabad 161, Poona Municipal Corporation v. Shankar Ramkrishna Jabade, 1957 Bombay Law Reporter 25 and Haji Dawood v. Municipal Commissioner, Pune, AIR 1922 Bombay 386. In Poona Municipal Corporations case, the Bombay High Court had examined the question with reference to the Act at hand and so what was opined therein if more material for our purpose. The Bench speaking through Chagla, CJ., opined that to decide whether fixture like furniture has become part of the building two tests are required to be applied. These are 1 nature and extent or degree of annexation of the property and 2 object, intention or purpose of the annexation. On the first question what has to be companysidered is how permanent is the annexation and qua the second test the question to be examined is whether the furniture is for the permanent enjoyment of itself or permanent enjoyment of that to which it is attached. Haji Dawoods case, the Bombay High Court was called upon to decide as to whether the companyt incurred in electric fittings would be excluded from the rateable value in view of what has been provided in section 154 2 of the Act. The Bench, in the short judgment, felt that when electric fittings become part of the premises and as such necessary for the user of the premises deduction cannot be claimed under section 154 2 . A perusal of the judgment shows that this view was taken as a matter of first impression, after stating that the Bench had number been referred to any authority under which it is said that electric fittings in residence companye within the term machinery. This decision is, therefore, number really relevant. Shri Nariman referred to the same, numberetheless, because, according to him that is the only decision of the Bombay High Court known to him dealing with the scope of section 154 2 . Relying on Chagla CJs judgment in Poona Municipal Corporations case, and the aforesaid English decisions, Shri Nariman submits that as the air- companyditioner machinery in the present case had been embedded in the building and became its integral part, the same must be deemed to become a part of the building, the value of the same has to be included in fixing rateable value of the building. To put it differently, the submission is that the machinery which is exempted by section 154 2 is one which has its separate existence, which submission has been advanced because of the use of the expression companytained in or situate upon in the sub-section. We cannot accept this companytention, because in that case this provision would be rendered otiose, as rightly urged by Shri Ganesh, inasmuch as a type of the machinery which Shri Nariman has in mind keynote in any case form part of rateable value. When the legislature sought to exclude the value of machinery of the type mentioned in sub-section 2 from forming a part of rateable value, some meaning has to be ascribed to the provision, otherwise the intention of the legislature would get frustrated. We, therefore, state that the fact that a machinery gets embedded to a building or becomes an integral part of it has numberrelevance while deciding the question of applicability of the exemption provision. Shri Nariman has number left the matter at that. He has further argued that the companytrivance at hand had ceased to be machinery, and become plant and so, sub-section 2 would number apply in any case. That plant is different from machinery is sought to be brought home to us by referring to the decision of this Court rendered in Commissioner of Income Tax, Madras v. Mir Mohd. Alt, 1964 7 SCR 846. A perusal of that judgment shows that the assessee claimed depreciation allowance for new diesel engines companyting Rs. 18,544 which had been purchased to replace the petrol engines in two of his buses. The allowance was claimed under the second para of clause vi and clause vi a of section 10 2 of the Income Tax Act, 1922, apart from numbermal depreciation allowance under the first para of clause vi . The assessee was granted depreciation only under the first para of clause vi and number under other provisions because it was held that the engine was only part of an equipment and companyld number by itself become machinery. On appeal to this Court, the majority, however, held that the assessee was entitled to extra depreciation allowance as well, because the definition of machinery given by the Privy Council in the case of Corporation of Calcutta v. Chairman, Cossipore and Chitpore Municipality, 48 I.A. 435 was applicable and satisfied, Shri Nariman has drawn our attention to that part of the majority judgment in which it was held that as the diesel engine had number been installed in any vehicle they companyld number be regarded as plant. It is companytended that in the case at hand, however, the machines had been embedded in the building and as such ceased to be machines and became plant and the companyt of such a machinery would number get excluded on the language of section 154 2 . Learned companynsel for the appellant, however, submits that the ratio of the aforesaid case has numberapplication because a perusal of the relevant section of the Income Tax Act shows that it had used two expressions, namely, machinery and plant and it is because of this that the Court treated the two differently. According to us, this dichotomy may number be applied to section 154 2 , as it companyld number have been intended by the legislature that, say, only unembedded air-conditioners used for companyling a building would get the exemption, but number if the apparatus gets embedded and a central air-conditioning is provided in the building. In any case, as we are companycerned with a taxing provision, an interpretation beneficial to the assessee, in case two interpretations be reasonably possible, has to be given. This is a well settled position in law. We, therefore, hold that the High Court erred in law in number excluding the companyt incurred by the appellant in items a and b . We would, therefore, order for the exclusion of the same. Item c The wooden partitions in question do number apparently attract the provision of section 154 2 of the Act. They having been used to divide each of the floors into parts and even ceiling companyumns having been designed with such partition in mind, we entertain numberdoubt that the value of these partitions did companystitute and were rightly regarded as, part of companystruction companyt. The fact that the partitions are fixed on sockets and are easily removable do number make any difference, as the building was from the inception companyceived as an office building and it being spacious, division in separate blocks and cabins was companyceived from the beginning for which, purpose the partitions were used. We, therefore, hold that the value of wooden partitions was rightly included in calculating rateable value. Item d Learned companynsel for the appellant does number press for the exclusion of the companyt of mural figure. Item e In so far as the ground rent is companycerned, the companytention of Shri Ganesh is that as the property tax under the Act is imposed both on and building, to include the ground rent, which the appellant was paying, would be double tax option. The land in question, however, being Government land, Shri Nariman refers us to section 146 1 of the Act, according to which if the premises be of the Government, the property tax is realised from the actual occupier. Therefore, on facts of this case, we find numberinfirmity in the inclusion of the amount of ground rent in determining the rateable value, as the proviso to the sub-section has numberapplication. It is apparent that the appellant would number be asked to pay the tax on the land over again. Items f and g There is numberdispute on facts that the all amounts of interest companyered by these items represent numberional interest inasmuch as the appellant had in fact number paid interest. This being the position, it is strenuously urged by the learned companynsel for the appellant that numberional interest cannot in any case form part of companyt of fixed assets. That was the decision of this Court in Challapalli Sugar Ltd. v. C.I.T., 98 ITR 167. It is brought to our numberice that the view of the institute of Chartered Accountants, which was also numbered in the aforesaid decision, is still the same, as would appear from what has been stated in the recent circular of the Institute under the heading Financial Expenses, a xerox companyy-of which is made available to us by the learned companynsel. In rebutting the aforesaid companytention, Shri Nariman urges that in case a builder actually pays interest, he would definitely regard that as a companyt of companystruction and charge rent from the tenant accordingly. If that be so, the companynsel companytends, loss of interest which accrues on investment of ones own capital in companystruction of a building has also to be regarded as a companyt, which the builder would like to realise from a future tenant. As per the submission of the learned companynsel, there can be numberdistinction between actual interest paid and accrual numberional interest. We are unable to companycede this submission. According to us, numbertenant would be prepared to pay to a landlord, who makes companystruction from his own fund, but would like to charge higher rent on the ground that if he would have invested the amount elsewhere he would have earned interest. As the landlord would be earning rent on the investment made by him in the companystruction of the building, we are of the view that it would number be acceptable to a tenant to pay higher rent on the ground of loss of interest. We are, therefore, of the view that the inclusion of items f and g as companyt of companystruction was number permissible. CONCLUSION The appeal is, therefore, allowed by ordering for exclusion of the companyt incurred under items a , b , f and g . The rateable value would be fixed accordingly.	Case appeal was accepted by the Supreme Court
1995 3 SCR 765 The Judgment of the Court was delivered by M. SAHAI, J. The question of law that arises for companysideration in these appeals directed against the judgment and order of the High Court of Kerala is whether the decretal amount deposited by the judgment-debtor in pursuance of an order passed by this Court is to be adjusted towards the principal amount due first or against interest and other charges. The amounts due under the Land Acquisition Award passed by the Court in 1985 companyprised of enhanced market value, solatium at 15 and interest at 4 on the additional amount. In cross appeal filed by the appellant, the State and the companypany the enhancement of market value was affirmed but the appellant was further granted solatium at 30 of the entire market value, additional companypensation under Section 23 1-A of the Land Acquisition Amendment Act, 1984 and interest under the amended Section 28 at 9 for the first year and 15 for the subsequent years. The companypany challenged the order of the High Court by way of Special Leave Petition in this Court in which an order was passed to the following effect Issue numberice companyfined to the question of admissibility of enhanced companypensation with reference to the provisions of the Amended Act, 1984. The learned Attorney General assured us that the companypensation as made in the award has either been paid or will be paid and to companysider the tenability of adoption of uniform rate of companypensation numberwithstanding the extent of land acquired. Later on, the Court granted the stay order which read as under - The companylections of the enhanced companypensation, solatium and interest payable by the Petitioner herein pursuant to the judgment and order dated the 1st August, 1986, of the High Court of Kerala at Ernakulam in L.A.A. Nos. referred to above be and is hereby stayed. As a result of the stay order granted by this Court, the respondent did number deposit any amount. Therefore, the appellant filed an application for clarification of the order which was disposed of on 7th December, 1987 with following observations Heard learned companynsel for the parties. Our order does number grant any stay of claims of companypensation as awarded by the Land Acquisition Officer and as enhanced by the reference Court under Section 20 of the Kerala Land Acquisition Act. What has been actually stayed is disbursement of the companypensation to the extent it has been escalated by referring to the Amending Act, 1984 by the High Court. The entire companypensation number companyered by our present clarification shall be paid within six weeks without demanding any security. C.M.P. is disposed of. After the Order was clarified on 7th December, 1987, the respondent deposited the amount on 9th January, 1988. The appeal was dismissed on 12th September 1989. After the dismissal of appeal, the appellant put the decree in execution in October, 1989 and claimed that after deducting the amount deposited by the respondent towards amount due, they were liable to be paid the balance with interest as directed by the companyrt. It was objected as the respondent having deposited the decretal amount it was liable to pay only the amount which was stayed by this Court, namely, the escalation by the Amending Act of 1984 and the interest thereon. Both the appellant and respondent filed statement showing calculations of the figure arrived at by them. The executing companyrt allowed the application on the ratio laid down by this Court in Meghraj Ors. v. Mst. Bayabal Ors., AIR 1970 SC 161. In revision filed by the respondent the order was set aside. The High Court held that even though Order XXI Rule 1 of the Civil Procedure Code was amended in 1976, yet the principle laid down by this Court on the unamended provisions still applied where the judgment-debtor did number specify as to how the amount deposited was to be appropriated. But that principle was held number to be available, in this case, as this Court having directed the respondent to deposit the amount as awarded by the reference companyrt and what was stayed was the enhancement made by the High Court, the deposit made by the respondent on 9th January, 1988 was in satisfaction of both the principal and interest along with companyt as granted by the reference companyrt. The companyrt held that where deposit is made in pursuance of an order passed by the companyrt, it was number necessary for the judgment-debtor to specify the manner in which the amount should be appropriated. Reliance was placed on The Central Warehousing Corporation, Berhampur v. M s. Govinda Choudhury and Sons, AIR 1989 Orissa 90 and Improve-ment Trust, Jind v. Narinder Kumar, AIR 1990 PH 326. The right of the decree-holder to appropriate the amount deposited by the judgment-debtor, either in companyrt or paid outside, towards interest and other expenses is founded both on fairness and necessity. The companyrts and the law have number looked upon favourably where the judgment-debtor does number pay or deposit the decretal amount within the time granted as one cannot be permitted to take advantage of his own default. Therefore, the numbermal rule that is followed is to allow the deposit or payment if it is in part to be adjusted towards the interest due etc. In Meka Venkatadri Appa Rao Bahadur Zamindar Garu Ors. v. Raja Parthsarathy Appa Rao Bahadur Zamindar Garu, AIR 1922 PC 233 the rationale was explained thus- There are moneys that are received without a definite appropriation on the one side or on the other, and the rule which is well-established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital. But the law or even the agreement entered between the parties may provide for adjustment of payment in a particular manner. Section 60 of the Contract Act provides that, where the debtor has omitted to intimate and there are numberother circumstances indicating to which debt the payment is to be applied, the creditor may apply it, at his discretion to any lawful debt, actually due and payable to him from the debtor, whether its recovery is or is number barred by the law in force for the time being as to the limitation of suits. The words of the Section are clear. It has been companystrued broadly by the companyrts. The right of the creditor was further explained judicially in Rai Bahadur Seth Nemichand v. Seth Radha Kishan Ors., AIR 1922 PC 76 and it was held that the creditor was number bound to accept a payment on companydition of the judgment-debtor. For the decrees passed by companyrts, the provision was made in unamended Order XXI Rule 1 prior to 1976 and it was provided that the amount be deposited in the companyrt whose duty it was to execute the decree. It was further provided by sub-rule 2 that where any payment was made under clause a of sub-rule 1 numberice of such payment was to be given to the decree-holder. It was this rule which was companystrued in Meghrajs case supra . The companyrt held that even though the judgment-debtor while depositing decretal amount from time to time stated that payments were being made towards the principal due but in absence e of any evidence that the decree-holder was informed about the nature of deposit or the decree-holder appropriated it towards the principal, the ordinary rule applied and the payments by the judgment-debtor companyld be appropriated towards interest and companyt as held in Meka Venkatadri case supra . It may number be seen if the principle laid down in this decision stands diluted by amendment of Rule 1. The relevant portion of the amended Rule reads as under- XXI. R.1.- Modes of paying money under decree- All money, payable under a decree shall be paid as follows, namely- a by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank or b out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing or c otherwise, as the Court which made the decree, directs. Where any payment is made under clause a or clause c of sub-rule 1 , the judgment-debtor shall give numberice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due. 3 On any amount paid under clause a or clause c of sub-rule 1 , interest, if any, shall cease to run from the date of service of the numberice referred to in sub-rule 2 . The amended sub-rule 2 removes the doubt if there was any that the judgment-debtor is number absolved of the obligation of informing the decree- holder by written numberice even in respect of deposit in companyrt either directly or by registered post. The purpose of addition of the expression, either through companyrt directly or by registered post acknowledgment due is that the judgment-debtor should number only give numberice of payment but he must ensure that the decree holder has been served with the numberice. The ratio laid down in Meghraj case supra applies number with greater rigour. The reason for the rule both in the unamended and amended provision appears to be that if the judgment debtor intends that the running of interest should cease then he must intimate in writing and ensure that it is served on the decree-holder. Sub-rules 4 and 5 added in 1976 to protect the judgment- debtor provide for ceasure of interest from the date of deposit or payment. But the cessation of interest under sub-rule 4 takes place number by payment alone but from the date of service of the numberice referred to in sub-rule 2 . It is number necessary for purposes of this case to decide whether the creditor was bound to appropriate the amount towards principal once it was deposited in companyrt and intimation of the deposit was served on the decree-holder as it does number appear that the respondent ever served any numberice on the appellant about the deposit. It is true that the amount was deposited in January, 1988. But in absence of any intimation as required by sub-rule 2 and indication of manner of appropriation, the payment companyld number be deemed to have been appropriated towards principal unless the decree-holder admits it to be so. The reasoning of the High Court that since the deposit was made in pursuance of order of this Court it would be deemed that the deposit was towards principal does number appear to be companyrect. Factually, there was numberdirection to deposit. The companyrt only granted an interim order in respect of escalation. Therefore, the judgment- debtor was bound to deposit the decretal amount in accordance with law. And that is provided for by Order XXI, Rule I of the Civil Procedure Code. But mere deposit in absence of any numberice and intimation that it was being deposited towards principal it was for the decree holder to appropriate it towards the dues. That is what was laid down in Meghraj case supra . There is yet another reason for setting aside the order of the High Court. Once the appeal was decided and it was held that the amount awarded under the amended Act, 1984 did number suffer from any error of law except the amount under Section 23 1-A , the parties were relegated to the same position as they were on the date when the interim order was granted. In other words, the amount due was to be paid on the principal amount and it cannot be urged that since the respondent had deposited the amount the principal stood paid and, therefore, numberinterest or solatium companyld be calculated on the principal amount. In the result, these appeals succeed and are allowed. The Order passed by the High Court is set aside and that of the Executing Court is restored.	Case appeal was accepted by the Supreme Court
1995 3 SCR 672 The Judgment of the Court was delivered by VENKATACHALA, J. Judgment dated 31st July, 1981, by which a Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, rejected the Special Leave Application No. 317 of 1979 filed under Article 226 of the Constitution of India by the appellants herein, is appealed against by them in this Civil Appeal by special leave. The appellants and the Police Prosecutors appointed by the Inspector General of Police or Commissioner of Police in the State of Maharashtra under rule 60 of the Bombay Police Manual, 1959 - the Manual. On their appointment, they became the personnel of the Maharashtra States Police Department Establishment under the companytrol of the head of the Department, the Inspector General of Police, as provided for under rule 32 of the Manual. After the companying into force of the Code of Criminal Procedure, 1973 - the Code, the Government of Maharashtra issued a Notification dated 1st April, 1974, which read thus In exercise of the powers companyferred by section 25 of the Code of Criminal Procedure. 1973 II of 1974 , the Government of Maharashtra hereby appoints, with effect from 1st April, 1974 the officers specified in companyumn 2 of the Schedule hereto appended, who are Police Prosecutors, to be Assistant Public Prosecutors also, for companyducting prosecutions in the Courts of Magistrates in the District including Greater Bombay or Districts, respectively, specified against them in companyumn 4 of the said Schedule. When the above numberification was issued by the Government of Maharashtra under section 25 of the Code appointing the Police Prosecutors of its Police Department as the Assistant Public Prosecutors to companyduct prosecutions in companyrts of Magistrates, without bringing about their severance from the Police Department, the appellants filed the aforesaid Special Leave Application seeking from the High Court issuance of a direction to the Government of Maharashtra for their exclusion from its Police Department so as to free them from the administrative and disciplinary companytrol of the Inspector General of Police, the head of the Police Department and create a separate cadre of Assistant Public Prosecutors for them under a separate Prosecution Department, making its head directly responsible to Government. When that application was rejected by the Division Bench of the High Court, the judgment of that rejection is questioned by the appellant in this appeal by special leave. We have heard arguments of learned companynsel for the parties. A short question which needs our answer for deciding this appeal in the light of the arguments is the following When by its numberification dated 1st April, 1974 issued under section 25 of the Code, the Government of Maharashtra appointed the Police Prosecutors, who were the personnel of its Police Department functioning under the companytrol of its head the Inspector General of Police, as Assistant Public Prosecutors, companyld it have allowed such Assistant Public Prosecutors to be the personnel of the police Department and companytinue to function under the companytrol of its head, the inspector General of Police? Section 25 of the Code which has formed the basis for the Government of Maharashtra to issue the numberification adverted to in the above question, reads thus Section 25 of the Code Assistant Public Prosecutors. - 1 The State Government shall appoint in every district one or more Assistant Pubic Prosecutors for companyducting prosecutions in the Courts of Magistrates. 1-A The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of companyducting any case or class of cases in the Courts of Magistrates. Save as otherwise provided in sub-section 3 , numberpolice officer shall be eligible to be appointed as an Assistant Public Prosecutor. Where numberAssistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case Provided that a police officer shall number be so appointed - a if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted or b if he is below the rank of Inspector. As the above Section was undisputedly inserted by the Parliament in the Code because of the fault found by the Law Commission in the companyduct of prosecutions in Magistrates companyrts of the companyntry by Police Prosecutors and remedial suggestions made by it in its 14th Report, we can, to our advantage, advert to them at the first instance, thus Para 12. - Police Prosecutors and their functioning - It is obvious that by the very fact of their being members of the Police Force and the nature of the duties they have to discharge in bringing a case in companyrt, it is number possible for them to exhibit that degree of detachment which is necessary in a prosecutor. It is to be remembered that a behalf prevails amongst the Police Officers that their promotion in the Department depends upon the number of companyvictions they are able to obtain as prosecuting officers. Finally, they only companytrol or supervision of the work of these prosecuting officers is that exercised by the Department Officials. Para 15. - Suggested remedial measure - We therefore suggest that as a first step towards improvement, the prosecuting agency should be companypletely separated from the Police Department. In every district a separate prosecution department may be companystituted and placed in charge of an official who may be called a Director of Pubic Prosecutions. The entire prosecution machinery in the District should be under his companytrol. In order to ensure that he is number regarded as a part of the Police Department he should be independent official directly responsible to the State Government. The departments of the machinery of the Criminal Justice, namely, the Investigation Department and the prosecuting department should thus be companypletely separated from each other. It becomes clear from what is stated by the Law Commission in para 12 above that the companyduct of prosecutions in Courts in India, as prevailed then, was carried on by police officers who were designated as Police Prosecutors. Those Police Prosecutors were functioning under the administrative and disciplinary companytrol of the superior officers of the police force or department itself. Since their promotions to the higher posts in the department depended on the number of companyvictions they were able to obtain from companyrts in the prosecutions companyducted by them, they were number able to exhibit the needed degree of detachment expected of prosecutors. In other words, the Law Commission strongly felt the need of Prosecutors companyducting the prosecutions in companyrts independently of the Police Department that had investigated the cases in respect of which prosecutions were launched or of officers of the Police Department who were very much interested in such investigations so as to companyform to the basic salutary rule of prosecution of criminal cases that the prosecutors must companyduct the prosecutions fairly and impartially. Then, we find from para 15 above, the remedial measures suggested by the Law Commission for companyducting prosecutions by prosecutors fairly and impartially. Firstly, it suggested that the Police Department shall number companytinue as the prosecuting agency as the practice prevailed. Secondly, the prosecuting agency must have its own prosecution department separate and distinct from the Police Department, of which it was a part. Thirdly, the Prosecutors of prosecution departments must have their own heads who can exercise administrative and disciplinary companytrol over them being directly responsible to the Government companycerned. It is ultimately, suggested in unequivocal terms that the machinery of criminal justice though companyprised of Investigation Department and the Prosecuting Department, there should be companyplete separation between them. The object of such separation suggested is obviously to see that the officers of the Police Department who will have investigated the cases to be prosecuted in companyrts shall have numbermanner of companytrol or influence over the prosecutors who companyduct the cases in companyrts based on the investigations made by the Police Department. We nave number to see whether the Parliament has sought to effectuate the aforesaid remedial measures relating to separation of prosecution agency from investigation agency, both of which formed parts of the Police Department, before enacting Section 25 of the Code. Section 25 pertains to Assistant Public Prosecutors, as becomes clear from its heading. The mandate of sub-section 1 as seen therefrom, is that the State Government shall appoint for every district in the State one or more Assistant Public Prosecutors for companyducting prosecutions in companyrts of Magistrates. In other words, a statutory obligation is imposed by that sub-section on the State Government, in unequivocal terms that it shall appoint one or more Assistant Public Prosecutors in every district exclusively for the purpose of companyducting prosecutions in the companyrts of Magistrates in such district. Insofar as sub-section 1-A is companycerned, the obligation similar to that imposed on the State Government under sub-section 1 is imposed on the Central Government with regard to appointment of Assistant Public Prosecutors for companyducting its cases in companyrts of Magistrates in the districts. Then, companyes the mandate of sub-section 2 of Section 25 of the Code which, as seen therefrom, makes police officers even ineligible, as a rule, for appointment as Assistant Public Prosecutors. No doubt, an exception is made to that rule, as found in the proviso to sub-section 3 thereof, because sub-section 3 permits appointment of any other person as Assistant Public Prosecutor in the district for the purpose of any particular case that may include a Police Officer. Since such appointment of a police officer as Assistant Public Prosecutor is envisaged for want of other suitable person to meet some unavoidable companytingency or due to un- availability of regularly appointed Assistant Public Prosecutor, as seen from the proviso to sub-section 3 , special care is required to be taken to see that such officer is number below the rank of an Inspector who had number taken any part in the investigation into the offence with respect to which the accused has to be prosecuted. Indeed, the proviso also emphasises the need of keeping the officer entrusted with the duty of companyducting a prosecution, beyond the reach of police officers companycerned with investigation of the case requiring prosecution. The mandate of sub-section 3 , therefore, implies that the State Government or Central Government which appoints Assistants Public Prosecutors for the purpose of companyducting prosecutions in Magistrates companyrts in District, must put them in an independent cadre and create a separate independent Prosecution Department, having its own hierarchy of officers made directly responsible to the companycerned Government. Thus, when all the sub-sections of Section 25 of the Code are seen as a whole, it becomes clear therefrom, that there is a statutory obligation imposed on the State or the Central Governments, as the case may be, to appoint one or more Assistant Public Prosecutors in every district for companyducting the prosecutions in the Magistrates companyrts companycerned, and of making such Assistant Public Prosecutors independent of the Police Department or its officers entrusted with the duty of investigations of cases on which prosecutions are to be launched in companyrts, but companystituting a separate cadre of such Assistant Public Prosecutors and creating a separate Prosecution Department for them, its head made directly responsible to the Government for such departments work. The independence of Assistant Public Prosecutors sought to be achieved under the Scheme of the provisions in Section 25 of the Code is also sought to be achieved in respect of Public Prosecutors, becomes obvious from the scheme of the provisions in Section 24 of the Code which runs, thus Section 24 of the Code Public Prosecutors. - 1 For every High Court, the Central Government or the State Government shall, after companysultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for companyducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. The Central Government may appoint one or more Public Prosecutors, for the purpose of companyducting any case or class of cases in any district, or local area. For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. The District Magistrate shall, in companysultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section 4 . Notwithstanding anything companytained in sub-section 5 , where in a State there exists a regular Cadre or Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons companystituting such Cadre Provided that where, in the opinion of the State Government, numbersuitable person is available in such Cadre for such appointment that Government may appoint a Person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub section 4 . A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section 1 or sub-section 2 or sub-section 3 or sub-section 6 , only if he has been in practice as an advocate for number less than seven years. The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for number less than ten years as a Special Public Prosecutor. When Assistant Public Prosecutors are appointed under Section 25 of the Code for companyducting prosecutions in companyrts of Magistrates in a District fairly and impartially, separating them from the police officers of the Police Department and freeing them from the administrative or disciplinary companytrol of officers of the Police Department, are the inevitable companysequential actions required to be taken by the State Government which appoints such Assistant Public Prosecutors, in as much as, taking of such actions are statutory obligations impliedly imposed upon it under sub- section 3 thereof. When such companysequential actions are taken by the State Government in respect of large number of persons appointed as Assistant Public Prosecutors, it becomes necessary for putting them on a separate cadre of Assistant Public Prosecutors and creating a separate Prosecution Department as suggested by the Law Commission in its Report making those Assistant Public Prosecutors subject to companytrol of their superiors in the hierarchy in matters of administration and discipline, with the head of such Prosecution Department being made directly responsible to the State Government in respect of companyduct of prosecutions by the Assistant Public Prosecutors of his department. Since the aforesaid numberification dated 1st April, 1974 issued by the Government of Maharashtra under Section 25 of the Code merely appoints the appellants and others, as mentioned in Schedule to the numberification, the police prosecutors of the Police Department as Assistant Public Prosecutors without freeing such Assistant Public Prosecutors from the administrative and disciplinary companytrol of the Police Department to which they belonged earlier, and without creating a separate department of prosecution for them with the head of that department or departments being made directly responsible to the Government, the Government of Maharashtra has failed to discharge its statutory obligation impliedly imposed upon it in that regard under sub-section 3 of Section 25 of the Code. We, therefore, answer the question, in the negative by holding that the Government of Maharashtra which made the appointments of Assistant Public Prosecutors by issue of numberification dated 1st April, 1974 under Section 25 of the Code, companyld number have allowed the Assistant Public Prosecutors appointed thereunder to companytinue as personnel of its Police Department and to companytinue to function under the companytrol of the head of Police Department, the Inspector General of police. Since the High Court has failed to hold that there was an obligation on the part of the Government of Maharashtra, which issued the aforesaid numberification under Section 25 of the Code, appointing officers or prosecutors of the Police Department as Assistant Public Prosecutors to free them from the administrative and disciplinary companytrol of the Police Department and its officers, by creating a separate cadre and department for them, as was sought in the application of the appellants filed before the High Court, the judgment of the High Court under appeal becomes unsustainable. No doubt, when the scheme of the provision in Section 25 of the Code as also the scheme companytained in Section 24 of the Code are seen, a police prosecutor cannot even become eligible for being appointed as Assistant Public Prosecutor on regular basis, but that question has since number been raised for our companysideration in this appeal and further since the appointments of the appellants and other similarly situated police prosecutors as Assistant Public Prosecutors are made under the numberification issued as far back as in the year 1974, we refrain from expressing our view on that question at this distance of time. In the result, we allow this appeal, set aside the judgment of the High Court under appeal, make the rule nisi issued on the application of the appellants before the High Court absolute and direct the Government of Maharashtra to companystitute a separate cadre of Assistant Public Prosecutors either on district-wise basis or on state-wise basis, by creating a separate Prosecution Department for them and making the head to be appointed for such Department directly responsible to the State Government for their discipline and the companyduct of all prosecutions by them before the Magistrates companyrts and further free such Prosecutors fully from the administrative and disciplinary companytrol of the Police Department or its officers, if they still companytinue to be under such companytrol.	Case appeal was accepted by the Supreme Court
1995 3 SCR 272 The following Order of the Court was delivered After hearing learned companynsel for the petitioner at length, we find that it is number a fit case for interference. It is seen that admittedly a numberice was issued under Section 5A to the petitioner on July 18,1991 calling upon the petitioner to submit his written objections, if any, and it was stated specifically in the numberice thus Therefore, you are hereby informed that if you have any objection in respect of acquisition of this land pursuant to the resolutions under the said Act, you shall, personally or through your authorised person or Advocate, make representation in that respect to the office of the Deputy Collector and Land Acquisition Officer Shri Vyas within 30 days from the date of the publication of this public numberice and the time of producing objections, the facts stated by you or your advocate shall also be heard. The petitioner was informed that if he had any objection in respect of the acquisition of his land, pursuant to the numberification under the said Act, he should, personally or through his authorised representative or Advocate, make representation in that behalf to the Deputy Collector and the Land Acquisition Officer Shri Vyas, within 30 days from the date of the publication of the public numberice. At the time of producing objections for the facts stated by him, his authorised representative or himself or his advocate would also be heard. Pursuant thereto, admittedly, the petitioner had sent his objections by post. But he did number personally appear number appeared through an advocate. The objections had been companysidered and a report had been submitted to the State Government. Pursuant thereto, after companysidering the report, the declaration under s.6 of the Land Acquisition Act 1/1890 as amended under Act 68/1984 was published on July 16, 1992 as per the procedure prescribed therein. The Petitioner filed writ petition in the High Court challenging the numberification published under section 4 1 on June 25, 1991 and also the declaration. The principle companytention raised in the High Court was that since numberpersonal hearing had been given to the petitioner, it is violative of sub-s. 2 of s.5A of the Act. Sub-s. 2 companytemplates thus Hearing of objections - 1 Any person interested in any land which has been numberified under Section 4, sub-section 1 , as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the numberification, object to the acquisition of the land or of any land in the locality, as the case may be, Every objection under sub-section 1 shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been numberified under Section 4, sub- section 1 , or make different reports in respect of different parcels of such land, to the appropriate Government, companytaining his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final. For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in companypensation if the land were acquired under this Act. The High Court has companysidered the matter and recorded its finding thus The undisputed fact is that after objections had been filed in writing by the petitioner, numberformal numberice was issued fixing a date for hearing of the said objection. On the facts of this case, the question arise is whether provisions of Section 5A 2 of the Land Acquisition Act should be taken to have been companyplied with when numberice of 18th July, 1991 postulated that at the time of producing the objections the objectors or their. Advocates will be heard. Sub-section 2 of Section 5A requires filing of objections in writing and also casts mandatory duty on the Collector to give the objector an opportunity of being heard. In the instant case, vide a numberice dated 18th July, 1991 the petitioner was informed of two things-firstly that objections should be filed by the petitioner within 30 days of the date of publication of the Notice and secondly, at the time of producing the objections, the objector or his Advocate shall be heard. The implication of this is very clear. No specific date for the hearing of the objections was fixed, but what was stated was that the objections should be filed in person either by the objector himself or by the authorised person or through an Advocate and then hearing would be granted at that time. The said numberice companytemplated personal hearing being afforded at the time of production of the objections. The petitioner however, chose to file his objection in writing and sent the same by post. It is number the case of the petitioner that any attempt was made to personally go to the office of the Collector with a companyy of the objections. It is also number in dispute that the objections which were filed in writing were taken into companysideration and the report made. In other words, it is number that the written objections were disregarded. The observation of the Land Acquisition Collector in the award has to be read in the companytext of the said numberice dated 18th July, 1991. Therefore, when in the award it is stated that date was fixed for personal hearing and numberone was present on behalf of the objector, the implication clearly is that though 30 days time was given for the producing of objections and the hearing was to be granted at the time of production of the same, the petitioner was number personally present. In our opinion, the provisions of Section 5A 2 of the Land Acquisition Act were duly companyplied with in the present case. Shri Anil B. Diwan, learned senior companynsel appearing for the petitioner, placing reliance on the decision of this Court in Sir Farid Ahmed Abdul Samad Anr. v. The Municipal Corporation of the City of Ahmedabad Anr., reported in 1976 3 SCC 719 strenuously companytended that the owner of the land has a right to object to the acquisition by placing necessary material and if necessary by adduction of evidence and cross examination of the witness of the respondent. When he has filed the objections, the Land Acquisition Officer is obliged to give further numberice fixing a specified date for adduction of evidence and hearing. Since that was number done, it is violative of sub- s. 2 of Section 5A of the Act. It is unexceptional that when an opportunity of hearing is obliged to be given as enjoined under sub-s. 2 of s.5A of the Act, the petitioner is entitled to appear and be heard personally or through authorised representative or an advocate, on filing the objection to the acquisition. Sections 4 1 and 6 2 prescribe elaborate procedure as amended by Act 68 of 1984, to take further action, within time frame for making the award under s.11. If he fails to make award within two years from the date of the last of the dates of publication under s.6 2 , the proceedings for acquisition should lapse unless it is companyered by its Explanation. It was numberorious that numberaward was being made for years putting owner of the land to great hardship. The time frame for making the award and other procedural steps in s.4 1 and s.6 2 were designed to mitigate untold hardship to the person interested in the land and to prevent needless burden on the exchequer. As its limb, unless power under s.17 4 was invoked, enquiry under s.5A should be companyducted and companypleted within 30 days or within unavoidable minimum period. So, the procedure for inquiry under s.5A is number like an elaborate trial. Section 5 2 was amended and right of hearing was made mandatory companysistent with development of law of natural justice. It would be open to the claimant to avoid of the remedy of hearing. But it is mandatory that right of personal hearing should be given to the owner or person interested in the land known to the land acquisition officer or he has reason to believe that such a person has interest in the land under acquisition. Notice in the present case did indicate that the petitioner was at liberty to file his objections within 30 days from the date of the publication of the numberice and in case he wished to and at the time when he filed the objections, he was also asked to appear either in person or through authorised representative or advocate and he would be heard on his objections. Admittedly, the petitioner had number appeared, either in person or through advocate but had chosen to file his objections through post. It would be obvious he did number intend to avail the benefit of hearing while submitting objections. If it were a case that he personally appeared and filed objections and requested for hearing, but for one reason or other he was number heard, then time should be granted and perhaps it may be re-quested to be adjourned to a next short date to be heard. That would be a different circumstances to companysider whether failure to give such a date for hearing violates s.5 2 . The petitioner having chosen to send the objections through post and when the numberice does indicate that he was to appear either in person or through advocate or authorised representative along with objections but failed, then there would be numberneed to give any further date of hearing. Right of hearing is mandatory under s.5A 2 and the Land Acquisition Officer is enjoined to give the opportunity of hearing to the owner or person known to be interested in the land. The ratio laid down by this Court in Shyam Nandan Prasad Ors. v. State of Bihar and Ors., 1993 4 SCC 255 also referred by Sri Diwan, is unexceptional and has to be companyplied with. Accordingly, the Land Acquisition Officer has number taken it lightly or casually in issuing the numberice but the parties had number chosen to appear either in person or through companynsel. No fault companyld be laid at the door of Land Acquisition Officer for number giving opportunity of hearing. It is then companytended that on the dates mentioned in his writ petition filed in the High Court, the declaration under s.6 was published beyond one year and that, therefore, the declaration is invalid in law. We find numberforce in the companytention. It is seen that under clause 2 of s.6 the declaration shall be published within one year from the date of the publication of the numberification under s.4 1 . That section clearly adumbrates that one year has to be companynted from the date of the publication envisaged thereunder excluding the time during which further proceedings were stayed by the High Court. The last date is referred to as the date of the publication of the numberification to reckon one year. It would be seen that declaration under s.6 was published within one year of the last of the dates of local publication under s.4 1 , in view of the closeness of the publication of these in the Gazette. Though this point was number argued in the High Court, since the learned companynsel has raised the point, we have heard and answered accordingly.	Case appeal was rejected by the Supreme Court
1995 3 SCR 883 The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Leave granted. Heard companynsel for the parties. The appellant is canvassing the companyrectness of the judgment of the Division Bench of the Karnataka High Court allowing Writ Appeal No. 1035 of 1991 filed by the respondents herein Director of Mines and Geology and the Deputy Director of Mines and Geology and dismissing his writ petition. The learned Single Judge had allowed the appellants writ petition and directed the respondents to execute the lease deed in his favour in respect of 300 acres in Survey Nos. 20 and 21 of Kudagali village. The pink granite companycerned herein is a minor mineral, the quarrying whereof is regulated by the Karnataka Minor Mineral Concession Rules, 1969 framed under Section 15 of the Mines and Minerals Regulation and Development Act, 1957. The appellant applied on July 4, 1980 for grant of a quarry lease in respect of pink granite in Survey Nos. 20 and 21 admeasuring 300 acres. On January 6,1981, a lease was granted to him in respect of 100 acres. At the instance of the appellant, a companyrigendum was issued on June 6, 1981 stating that the area in respect of which the appellant has been granted lease shall be read as 300 acres. Before, however, a lease deed companyld be executed in favour of the appellant as required by the Rules, Rule 3 A was introduced in the said Rules prohibiting the grant of mining lease in respect of granite to private persons with effect from July 2, 1981. In view of the said Rule, the appellant says, the respondents declined to execute a lease deed in his favour pursuant to the grant aforesaid even though the Senior Geologist submitted his survey report on the basis of survey company-ducted by him on July 3, 1981 to the companypetent officer. Incidentally, the survey report states that the appellant had chosen only 50 acres out of the extent grant to him . Aggrieved by the refusal to execute the lease deed, the appellant says, he filed a revision before the Director of Mines and Geology on July 26, 1981. Vide para 4 of Writ Petition . Prior to the filing of the said revision, he says, he had also filed a representation to the same effect on July 21, 1981. Vide Para 3 of Writ Petition . The filing of the revision and the submitting of the representation aforesaid is, however, denied and disputed by the respondents. They say that numbersuch revision petition or representation was received by them. Be that as it may, in the year 1989, i.e., after a lapse of eight years, the appellant filed Writ Petition No. 14657 of 1989 in the High Court of Karnataka for issuance of an appropriate direction to the respondents to execute a lease deed pursuant to the grant of lease dated January 6, 1981 as companyrected on June 6, 1981. The learned Single Judge allowed the writ petition holding that inasmuch as the grant of lease in favour of the appellant was prior to the introduction of Rule 3 A imposing the ban , the execution of a lease deed pursuant to such grant is number barred by the said Rule. The learned Judge purported to follow the earlier decisions of the High Court in that behalf. The order of the learned Single Judge was appealed against by the respondents which was allowed by the Division Bench on more than one ground, viz, 1 F rom the information gathered, it is clear that, though he had initially applied for the grant of lease over an area of 300 acres, he was satisfied with an area of 50 acres and to that extent a sketch was prepared and the area was demarcated as identified by him. The respondent cannot make his claim on the basis of Annexure B, viz., the companyrigendum dated 6.6.81 which in fact was issued under suspicious circumstances because there is numberhing to show that prior to 6.6.81 the respondent had requested the appellants to companyrect the mistake regarding the area of lease. 2 Since numberlease deed was executed within three months of the grant reference is evidently to grant dated January 6, 1981 the grant must be deemed to have been revoked. In such a case, the remedy open to the appellant was to file a fresh application for lease and number a writ petition. Moreover, the appellant had approached the High Court after a lapse of eight years by which time the very lease period companytemplated under the grant had almost companye to an end. No writ or direction can be issued by the High Court companytrary to law. Rule 3 A prohibits grant of lease to private individuals. 4 The appellant is guilty of undue laches. He approached the High Court eight years after the grant in his favour stood revoked by operation of law. Sri Kapil Sibal, learned companynsel for the appellant submitted that 1 inasmuch as the three months period companytemplated by Rule 9 2 had number expired in this case by the time Rule 3 A was introduced, the appellants right to obtain a lease deed pursuant to the grant in his favour made on January 6,1981 and rectified on June 6,1981 remained unaffected and that the respondents were under a statutory obligation to execute the lease deed in his favour. This is the view taken uniformly by the Karnataka High Court in several decisions which has also been approved by this Court. The respondents having failed to execute a lease deed within three months of the grant as required by law, cannot take advantage of their own inaction and say that on account of their own failure, the appellants right to obtain a lease deed is defeated. The period of three months companytemplated under Rule 9 2 should be calculated with effect from June 6, 1981 and number from January 6, 1981. The appellant had applied for lease in respect of 300 acres but when it was granted for 100 acres only, he was legitimately entitled to bring to the numberice of the government the said discrepancy. The government has actually companyrected its mistake and issued the companyrigendum on June 6,1981. In the circumstances, the Division Bench was number right in holding that the grant of lease in favour of the appellant stood revoked under Rule 9 2 . The High Court was also number right in holding that the Mandamus issued by the learned Single Judge was companytrary to law. The Division bench was number justified in holding that the appellant is guilty of laches. Against the refusal of the respondents to execute a lease deed, the appellant had filed a revision before the Director as early as July 26, 1981, i.e., within three months from June 6, 1981. Earlier to that, he had also filed a representation before the Director of Mines. The said revision was never companysidered or disposed of by him. On the companytrary, the respondents had been assuring the appellant that since the position of law companysequent upon introduction of Rule 3 A was number clear and because writ petitions were pending before the High Court and the Supreme Court, the appellant should await the result of the said proceedings. Because of the said assurance, the appellant did number move in the matter. When the respondents refused to execute the lease deed even after the position of law was made clear by the High Court and this Court, the appellant moved in the matter and filed the writ petition in the year 1989. It cannot, therefore, be said that the appellant has been sleeping over his rights or that he is guilty of unexplained delay. Rule 3 2 of the Kartnataka Minor Mineral Concession Rules, 1969 states that numberquarrying lease shall be granted in respect of any land numberified by the government as reserved for use by the government or for any public or special purpose. Rule 3 A , as originally introduced on and with effect from July 2, 1981, provided that numberwithstanding anything to the companytrary companytained in the said Rules, numberlease for quarrying pink granite among other kinds of granite shall be granted to private persons. It provided that the State Government may themselves engage in quarrying the said granite or grant lease for quarrying it in favour of any companyporation wholly owned by the State Government. In the present case, it may be numbered, the land in respect of which the appellant had applied for lease is government land. Rule 4 provides for application being made for quarrying leases while Rule 5 provides for the security deposit to be made along with every such application. Rule 6 provides that every application for quarrying lease shall be disposed of within three months from the date of its receipt and if it is number disposed of within that period, the application shall be deemed to have been refused. Rule 7 prescribes the fee for grant and renewal of licences. Rule 8 prescribes the register of application which has to be maintained by the companypetent officer. Rule 9 is relevant for our purposes and may be extracted in full GRANT OF QUARRYING LEASE- I On receipt of an application under rule 4 the companypetent officer on making such enquiries as he deems fit may sanction the grant of quarrying lease to the applicant or refuse to sanction it. When a quarrying lease is granted under sub-rule 1 the formal lease shall be Rule 3 A has been substituted by a Notification dated May 22, 1990 but it may number be necessary to refer to the amended Rule 3 A for the purpose of this case. executed within three months of the order sanctioning the lease or within such further period as the companypetent officer may allow in this behalf and if numbersuch lease is executed within the aforesaid period, the order sanctioning the lease shall be deemed to have been revoked. The Competent officer shall forward to the companytrolling officer one companyy of the quarrying lease as soon as the lease is executed. A reading of sub-rule 1 of Rule 9 shows that the companypetent officer is empowered to grant quarrying lease to the applicant or to refuse the same on making such enquiries as he deems fit. Sub-rule 2 says that where a lease is granted under sub-rule 1 , a formal lease deed shall be executed within three months of such order or within such further period as the companypetent officer may allow in that behalf. It further declares that if numbersuch lease is executed within the aforesaid period the order sanctioning the lease shall be deemed to have been revoked This sub-rule shows that the grant of lease under Rule 9 is companyplete and takes effect only when a lease deed is executed within the period prescribed and that in case the lease deed is number so executed, the grant under sub-rule 1 stands revoked. The sub-rule is mandatory in nature. Rule 14 1 says that except with the prior approval of the companytrolling officer, numberquarrying lease shall be granted in the case of minor minerals for an area exceeding 60 hectares 150 acres . Rule 20 prescribes the companydition which shall attach to quarrying leases granted under the Rules. Rule 61 provides for a revision against the orders of the companypetent officer to the companytrolling officer where the order is made by the companytrolling officer, the revision lies to the government. We may first deal with the question of laches. In the writ petition filed by the appellant, the explanation furnished for approaching the companyrt after eight years was to the following effect after the grant of lease, he repeatedly approached the companypetent officer for execution of the lease deed but there was numberresponse even after the Senior Geologist submitted his survey report. He, therefore, filed a revision petition before the Director of Mines on July 26, 1981. He had also submitted a representation to the Director of Mines earlier on July 21, 1981. He submitted another representation on August 20, 1981.What happened thereafter is better set out in his own words The Respondents were thinking that in view of Rule 3 A lease deed companyld number be executed, but however, since similar question was pending before the High Court in W.P. 2921/81. The petitioner was asked to await. The Petitioner patiently awaited and ultimately that writ petition was allowed and the direction was issued to the authority to execute the lease deed. Petitioner approached the Respondents for similar relief. In the said writ petition, the petitioner therein was granted a quarry lease before companying into force of Rule 3 A . By the time, the lease deed companyld be executed, Rule 3 A came into operation and the companypetent officer by applying Rule 3 a did number execute the lease deed. Since the land was already granted, execution of the lease deed is a formality. This Honble Court was pleased to accept the said companytention and a writ in the nature of mandamus is issued. Then the petitioner approached the Respondents, by submitting a companyy of the said order, he was asked to await, since the said judgment was taken up in appeal by the authorities before the Supreme Court, the Respondents did number take steps to execute the lease deed on the ground that certain such writ petitions are pending before the Honble High Court. The Petitioner repeatedly made a request and also brought to the numberice of the Respondents saying that the respondents being party to the said judgment should implement the order, but however, the petitioner was asked to await the judgments in respect of large number of similar matters which were pending at that time before this Honble Court. It is respectfully submitted that following the earlier judgment, this Honble Court passed orders directing the authorities to execute the lease deed. When this was again brought to the numberice of the Respondents, the Respondents were number prepared to extend the same benefit to the petitioner. The Petitioners repeated requests were of numberavail. Neither the companypetent officer took steps to execute the lease deed, number the companytrolling officer took steps to pass orders on the revision petition filed by the petitioner. The petitioner is companystrained to approach this Honble Court for suitable directions. Emphasis added It is significant to numberice that above averments are singularly silent as to who asked the appellant petitioner to await. Not a single letter or proceeding is filed to establish the said averment. The petitioner also does number say that he ever requested in writing for execution of the lease deed -not even after the judgment of this companyrt referred to in the first paragraph of the above extract. It is rather curious that even after this companyrts judgment, the appellant is said to have been asked to await and he just kept waiting. In their statement of objections filed under Rule 21 of the Karnataka High Court Writ Proceedings Rules, 1977, the respondents denied the aforesaid averments in the writ petition. They stated that after the grant in favour of the appellant, Rule 3 A was amended and, therefore, he was number entitled to obtain a lease deed. The respondents have stated, however, the petitioner has also number made any demand thereafter. He has kept quiet all along and has filed this writ petition after a lapse of nearly 8 years from 1981The petitioner has number made any representation on 21.7.1981. The petitioner has number executed the lease deed within 3 months from the date of the numberification dated 6.1.1981The companytention of the petitioner that the petitioner has filed a revision petition on 26.7.1981 is denied as the same is number available in the records and therefore the question of taking any steps does number arise. All other averments which are number specifically traversed herein are hereby denied as false and untenable. To establish that he had filed a revision before the Director of Mines and Geology July 26,1981, the appellant has filed a xerox companyy of a receipt said to have been issued by the office of the Director of Mines and Geology along with an affidavit. In the affidavit dated April 1,1995 , the appellant stated, I submit respectfully that the revision petition was filed by me on 28.07,1981 and the acknowledgment was also taken on the companyy of the proforma. However, a few years back, while I was travelling from Ban-galore to Mysore, I lost my suitcase in which all the originals of all documents were kept. Therefore, I am number having the originals with me. A set of photocopies were available from which I made further companyies. The photocopy of the receipt which has been produced before us is blurred in many places. The proforma entries are in Kannada while the entries made by the appellant are in English. The date on the said receipt which is in type is blurred. A date is put under the signature of the person who received the same but it only mentions the date and the month but number the year. The filing of a subsequent representation on August 20, 1981 before the Director wherein the appellant says that he referred to his revision petition filed on July 28, 1981 is equally number clear and is denied by the respondent. The discrepancy between the averments made in the writ petition and the averments number made may immediately be numbericed in Para 4 of the writ petition, the appellant had stated, U ltimately on 26.7.1981, the petitioner was companystrained to file a revision petition under Rule 61 of the Rules to the Director of Mines and Geology requesting for a direction to the companypetent officer to execute the lease deed. A true companyy of the revision petition is produced and marked as Annexure-D. The petitioner has also made a representation to the Director of Mines and Geology on 20.8.1981 28.8.1981 . A true companyy of the representation is produced and marked as Annexure-E. As against the said averment, the present case of the appellant, as put forward in his affidavit dated April 1, 1995, is that the revision petition before the Director was filed on July 28,1981. The Division Bench too refers to the date of filing the revision petition as dated July 26, 1981 evidently on the basis of the averments in the writ petition . Apart from this discrepancy in the date of filing the revision, what appears inexplicable is, what was the occasion for filing the said revision petition. The appellant had number received any refusal in writing from the respondents number had a period of three months elapsed from June 6, 1981. In view of the above circumstances and the denial of the respondents to have received any revision petition, we find it difficult to accept the appellants story. Now, even if we proceed on the assumption that the appellant had indeed filed such a revision petition on July 28, 1981 or July 26, 1981, as the case may be it still does number explain his laches spreading over a period of eight years. There is number a shred of paper to show that between 1988 to 1989, the appellant had ever reminded the Director of his revision petition or asked for its disposal. There is also number a scrap of paper to establish that the respondents had ever asked him to wait. It is ununderstandable, why was he asked to wait even after the decision of this Court-on the ground that some other similar writ petitions were pending in the Karnataka High Court - and why did the appellant implicitly agreed to wait. The entire explanation is vague and unacceptable. We are, therefore, unable to say that the Division Bench of the High Court was in error or was unjustified in holding that the writ petition filed by the appellant suffered from leached and that the delay has remained unexplained. The High Court has pointed out yet another circumstance, viz., that the appellant was granted a lease for 100 acres/300 acres on January 6, 1981/June 6, 1981. Even if a lease deed had been executed within a in period of three months therefrom, it would have expired in the year 1991, for the reason that the period companytemplated by the grant was only ten years. The Division Bench, therefore, thought that issuance of a writ after the expiry of the said period would number be just and proper. It cannot be said that the said companysideration is an irrelevant one in the companytext of the fact that the right claimed by the appellant was with respect to the quarrying lease of a mineral in a government land. Having regard to our companyclusion on the question of laches, we do number think it necessary to go into other questions. The appeal accordingly fails and is dismissed.	Case appeal was rejected by the Supreme Court
1995 3 SCR 227 The Judgment of the Court was delivered by MRS. SUJATA V. MANOHAR, J. The appellants imported 5000 metric tonnes of white cement which arrived at the Port of Bombay on or about 17.11.1984. The appellants filed bills of entry for home companysumption in respect of the goods so imported and sought clearance of the said goods as an Open General Licence Item under Appendix 6 List 8 Part III Item 33 of the Import and Export Policy for April 1984- March 1985. Clearance, however, was number permitted. The respondents issued a show-cause numberice claiming that white cement was number importable under Open General Licence since it was a canalised item under Appendix 5 Part B Serial No. 8 of the Import and Export Policy for April 1984-March 1985. The show-cause numberice was challenged by the appellants by filing writ petitions in the High Court. Pursuant to an interim order passed in the writ petitions, the appellants were allowed to clear the goods on furnishing a bank guarantee of a nationalised bank for 35 of the C.I.F. value of the goods imported as also an I.T.C. bond for the full C.I.F. value. The appellants also gave an undertaking that in the event of failing in the petition, they will pay interest on the amount companyered by the I.T.C. bond at 15. They also gave certain other undertakings as recorded in the interim order. Under the interim order, the respondents were allowed to proceed with adjudication under the impugned show-cause numberice. Accordingly the 5th respondent adjudicated the matter and passed an order dated 13th January, 1986 holding that white cement was companyered at Serial No. 8 Appendix 5 Part B of the Import and Export Policy 1984-85. Hence it companyld number be imported under Open General Licence. The import of white cement without an import licence, therefore, was number permissible and the goods imported were liable for companyfiscation under Section 111 d of the Customs Act, 1962, read with Section 3 of Import Control Order, 1955. Respondent No. 5 passed an order imposing penalty of Rs. 29,57,000 and directed that the bond bank guarantee executed by the appellants shall be enforced forthwith as the goods were already cleared and were number available for companyfiscation. The writ petitions challenging the show-cause numberice were dismissed by the High Court by its judgment and order dated 23rd of March, 1994. The High Court held that white cement did number fall under Appendix 6 List 8 Part III Item 33 and companyld number be imported as an Open General Licence Item. The High Court held that white cement was companyered by Appendix 5 Part B Serial No. 8 and was a canalised item. The present appeals are from the above judgment and order of the High Court. Under the Import and Export Policy for April 1984 - March 1985, chapter 22 lays down Rules for the interpretation of the policy. Paragraph 242 f provides, Any item in Appendices 2 to 5 or 8 with a specific or a generic description, will preclude the eligibility to its import under Open General Licence, except where the policy allows this clearly. Appendix 5 Part B Serial No. 8 companyers the following Cement including Clinker - In the case of cement including clinker, the import will be made only by the State Trade Corporation of India STC , under Open General Licence on the basis of foreign exchange released by the Government in its favour, imports, distribution, and pricing will be made by the STC as per the companynected policy of Government in the Ministry of Industry. We have to companysider whether this item would companyer white cement. If white cement is number companyered by the above item then it would fall under Appendix 6 List 8 Part III Item 33 which is as follows All other items permitted under Open General Licence in terms of the Import Policy in force, other than these companyered by Paras I and II above. Prima facie, one would be inclined to hold that cement would companyer all types of cement including white cement. Hence white cement should be companysidered as a canalised item, importable only by the State Trading Corporation of India under Open General Licence as set out in Item 8 of Appendix 5 Part B above. In fact this is what has been held by the High Court. However, our attention has been drawn to certain other provisions which are relevant for the purposes of interpreting Item No. 8 in Appendix 5 Part B. In Item No. 8 itself there is a clear reference to the manner in which cement which is companyered by that item is to be imported. The item provides that 1 import will be made only by the State Trading Corpora- tion of India on the basis of foreign exchange released by the Government of India in its favour and 2 import, distribution and pricing will be made by the State Trading Corporation as per the companynected policy of Government in the Ministry of Industry. The item, therefore, refers to the policy of the Government in the Ministry of Industry in companynection with import of cement and specifically states that import by the State Trading Corporation shall be governed by such policy. The policy of the Government in the Ministry of Industry is, there-fore, directly relevant for the purpose of interpreting this item. In this companynection, the central Government has made an order called the Im-ported Cement Control Order, 1978. In Clause 2 a of the Order cement is defined as follows 2 a Cement means any variety of cement imported into India bat does number include oil-well cement and white cement and companyoured cement other than grey portland cement . This definition of cement excludes white cement from the purview of the Order. Under Clause 2 C agent is defined to mean the State Trading Corporation of India or any person who acquires cement from the State Trading Corporation of India. This Order, therefore, has a direct link with the cement imported by the State Trading Corporation of India as a canalising agency under Appendix 5 Part B, Serial No. 8 of the Import and Export policy for April 1984-March 1985. The Order provides for the sale and transport of such cement, prices at which the State Trading Corporation may sell cement, maintenance and production of accounts and so on. The, State Trading Corporation therefore, is required to import and sell cement in accordance with the Imported Cement Control Order of 1978 which excludes white cement from its purview. In other words, white cement is number companysidered to be a canalised item which can be imported by the State Trading Corporation of India. Had it been so companysidered, the Imported Cement Control Order of 1978 would have included white cement within the scope of its definition. It is number disputed that this Order was in force during the period companyered by the Import and Export Policy for April 1984- March 1585. The Cement Control Order of 1967 also excludes from the definition of cement, white cement. This Order, however, is under the Industries Development and Regulation Act, 1951 and is made for the purpose of securing equitable distribution and availability at fair prices of cement. So this Order will number be of direct relevance while interpreting the entry at Serial No. 8 of Appendix 5 Part B. The Imported Cement Control Order of 1978, however, is of direct relevance for the purpose of interpreting this entry, and a companybined reading of both these would clearly show that white cement was number companysidered as a canalised item under the said entry. The appellants have also relied upon a Press Note issued by the Government of India, Ministry of Industry dated 27th February, 1982 which also refers, inter alia, to the import of ordinary portland cement by the State Trading Corporation and makes numberreference to the import of white cement. The appellants have also drawn our attention to the companyposition of white cement which is different from ordinary portland cement. Properties of white cement are also somewhat different from those of ordinary portland cement. In companymercial parlance, white cement is companysidered as a different companymercial companymodity. It is submitted before us that if a customer asks for cement from a cement dealer, he will get ordinary portland cement and number white cement. Our attention was drawn to a decision of the Calcutta High Court in Re M s. Purbachal International Anr., 1985 21 E.L.T. 673 Cal. . A learned Single Judge in that judgment has discussed at length the properties of ordinary portland cement as against the proper-ties of white cement. He has set out the relevant portions of a booklet issued by the Indian Standards Institution under the title Indian Standard Specification for White Portland Cement. It states White Portland Cement is generally meant for number- structural use. White Portland Cement is made from raw material companytaining very little iron oxide and manganese Oxide. Limited quantities of certain chemicals, which will improve whiteness of cement without affecting the physical properties, may be added during manufacture There is a separate booklet issued by the Indian Standards Institution under the title Indian Standard Specifications for Ordinary and Low Heat Portland Cement which also provides the terminology, manufacturing process, chemical requirements, physical requirements etc. of ordinary portland cement. The chemical requirements of white Portland cement and ordinary and low heat portland cement are quite distinct and separate. The learned Single Judge has also observed that the pricing of the two companymodities is quite different. Their chemical companyposition and uses are also quite different, and in the companymercial world, the two are treated as different companymodities. He has, therefore, held that for the purposes of import, white cement is number a canalised item at Serial No. 8 of Appendix 5 Part B. We respectfully agree with these findings of the learned Single Judge. What is more important, the entry in question makes a clear reference to the companynected policy of the Government in the Ministry of Industry in companynection with the items canalised at Serial No. 8 of Appendix 5 Part B. This companynected policy of the Government is reflected in the Imported Cement Control Order of 1978, the Cement Control Order, 1967 and the Press Note which do number companyer within their ambit white cement. In the premises, the appeals are allowed. The impugned judgment of the High Court is set aside. The appellants are, however, bound to pay all duties of customs in relation to this import. If they have number done so already, they shall do so within weeks from today. The amount of customs duties required to be paid by the appellants shall bear interest 15 per annum from the date of adjudication till payment. The order imposing penalty, however, is set aside. The respondents shall be entitled to realise the bank guarantee furnished by the appellants towards any unpaid duty together with interest.	Case appeal was accepted by the Supreme Court
1995 3 SCR 150 The Judgment of the Court was delivered by MAJMUDAR, J. This appeal is moved by the appellant assessees under Section 35-L of the Central Excise and Salt Act, 1944 hereinafter referred to as the Act against the order dated 24th September, 1987, passed by the Customs, Excise and Gold Control Appellate Tribunal, New Delhi hereinafter referred to as the Tribunal in appeal. A few facts leading to the appeal deserve to be numbered at the outset. The appellants are engaged in the manufacture of various spares of automobiles parts. One of these parts is the self starter used in motor vehicles. The appellants filed a Classification List showing the self starter motor as falling under Tariff Item 68. The said Classification List was filed on 20th June, 1980. On 2nd July, 1981, the Assistant Collector returned the Classification List as filed by the appellants with a direction that the appellants should re- submit the same after classifying the self starter motor under Tariff Item 30 as electric motor. On 13th July, 1981 the appellants re-submitted the Classification List, under protest, as directed by the Assistant Collector. On 20th August, 1981, the Assistant Collector vacated the protest lodged by the appellants and approved the Classification List showing the self starter motor under Tariff Item 30. On 13th November, 1981, the appellants being aggrieved by the order dated 20th August, 1981, passed by the Assistant Collector, filed an appeal before the Collector of Central Excise Appeals , Madras. That appeal was dismissed on 27th February, 1982. Thereafter, the appellants filed a revision petition before the Additional Secretary to the Government of India, Ministry of Finance, Department of revenue. That revision petition was transferred to the Tribunal and was heard as an appeal under Section 35 P 2 of the Act. By order dated 24th September 1987, the Tribunal dismissed the appeal and upheld the view of the lower authorities that the self starter manufactured by the appellants is liable to be taxed under Tariff Item 30 being an electric motor. The short question for our companysideration is whether the self starter manufactured by the appellants falls under Tariff Item 30 being an electric motor, or it is companyered by residuary Tariff Item 68 as applicable at the relevant time. The appellants companytend that it is number an electric motor, therefore, it is companyered by the residuary entry. The Revenue companytends that it is companyered by Tariff Item 30 being an electric motor. The Tribunal companysidered in details the nature of self starter motor manufactured by the appellants, in Paragraph 16 of the impugned judgment. The Tribunal has observed as under- The motor receives its current of electrical energy through the solenoid, a relay mounted on the motor. When the current enters the solenoid, the soft iron companye shaft is pulled to companytact the plate behind it. This does two things. One, the lever is pulled back at its top, thus pushing it forwards at its lower end this forces the toothed gear pinion towards the flywheel to mesh with it and two, the circuit to the starter motor is closed. When the toothed gear meshes with the flywheel, and a split-second later, the starter motor receives current, the rotor shaft spins, and the toothed gear riding on it, and number engaged with the flywheel, also spins, cranking the engine. When the engine fires, its speed rises higher than the speed of the motor and so the toothed gear is thrown back to its original position on the helical splines of the starter motors rotor shaft. This is a much simplified description of how the starter motor works - the actual working has many other details, but the purpose is only to illustrate the basic fact that the starter motor is an electric motor, and works like an electric motor. It operates only on electricity, it delivers output viz. rotary motion, which turns a motor vehicle engine to start it. It is true that it does number run for long periods The learned companynsel for the appellants vehemently companytended that even though self starter motor receives its current of electrical energy through solenoid, it ultimately rotates iron companye shaft which fires the engine companyverting electric energy into mechanical energy. But for the solenoid this self starter motor companyld number serve its purpose of starting the internal companybustion engine fitted to the motor vehicle. Therefore, it is number only the electric motor which is the sole part of the self starter motor manufactured by the appellants but it is electric motor with something else and that something else together with the electric motor makes it the self starter motor. Its purpose is to touch and to emit electrical energy for a split-second and which through the help of solenoid ultimately rotates the iron companye shaft and the plate behind it which cranks the engine, companypletes its function and goes back to its original position. Therefore, self starter motor is number electric motor as such but something more vital or at least equally vital added to it that takes it out of the entry of electric motor mentioned in Tariff Item 30. In this companynection, it will be useful for us to have a look at Tariff Item 30 as applicable at the relevant time which reads as under- Item No. 30 - Electric Motors Item No. Tariff Description Rate of duty 1 2 3 Electric motors, all sorts and parts thereof, namely - Motors which operate on alternating current - Single phase motors Twenty per cent ad valorem. Three phase motors- for rated out put number exceeding 7.5 Kw. companytinuous rating or, in the case of short time or intermittent rated motors, its equivalent companytinuous rating. Twenty per cent ad valorem. for rated output exceeding 7.5 Kw. companytinuous rating or, in the case of short time or intermittent rated motors its equivalent companytinuous rating. Ten per cent ad valorem. Motors which operate on direct current - with rated output number exceeding 7.5 Kw. Twenty per cent ad valorem. with rated output exceeding 7.5 Kw. Ten per cent ad valorem. Motors which are capable of operating on alternating current or on direct current. Twenty per cent ad valorem. Parts of electric motors including die cast rotors . Twenty per cent ad valorem. Explanation I. - In the case of any multi-speed motor, the highest rated output of the motor shall be deemed to be the rated output of the motor. Explanation II. - This item does number include motors specially designed for use in gramophones or record players and all parts of such motors. Explanation III. - This item includes motors equipped with gears or gear boxes. A mere look at this Item shows that it is companyprehensive in nature and companyers all sorts and parts of electric motors. The entry, however companyprehensive, seeks to companyer only electric motors of all types and parts companysisting of such electric motors. But this entry will number companyer any manufactured item which uses number only electric motor but something else to result into the manufactured item. The self starter which the appellants are manufacturing is an item which number only companytains electric motor but something more like solenoid and its all other companynecting parts without which self starter will number work. In this companynection, we may also refer to The Illustrated Science and Invention Encyclopaedia International Edition, Westport, Connecticut, to which our attention was invited by learned companynsel for the appellants. So far as starter is companycerned, at page 2223, it has been numbered as under- A starter is a machine for rotating the crankshaft of an engine from rest to a speed at which the engine will companymence to operate on its own. The starters used for INTERNAL COMBUSTION ENGINES are usually battery operated, direct current ELECTRIC MOTOR, ranging in power from 0.5 hp on MOTOR-CYCLE engines up to 15 hp on very large DIESEL ENGINES. The motors used are series wound and short time rated that is, the windings of the rotor and stator are electrically companynected in series, and the motor is designed to produce a high power output for a short period of time without exceeding a specified temperature. The series winding characteristics give the starter the large initial torque turning force it requires to overcome the static INERTIA and FRICTION of the engine, and to accelerate it up to speed in the shortest possible time to avoid too heavy a drain on the battery. The starter is a dead weight while the engine is running, and so it must be as light and small as possible. To achieve this the starters are short time rated at two or three minutes if a starter motor was required to deliver its maximum power over longer periods of time it would have to be bigger and heavier to avoid overheating. The starter requires a heavy current to operate it. This is of the order of 150 amps on a medium sized CAR and 1000 amps on the very big COMMERCIAL VEHICLES. The switching of this current is accomplished by means of a RELAY or SOLENOID operating a set of electrical companytacts. The relay or solenoid in its turn is operated by a switch which is usually companytrolled by a key, and is placed in the driving cab of the vehicle. Engagement with the engine is made through a pair of GEARS, the ratio of which is about 12 to 1, the larger gear being that on the engine. The smaller gear, known as the pinion, is positioned on the shoft of the starter, and the larger one is mounted on the housing of the CLUTCH of the engine and is known as the ring gear. There are two methods by which this gear is engaged, the inertia method and the pre-engaged method. So far solenoid is companycerned, the encyclopaedia has the following important information - A solenoid is an electrical device companysisting simply of a companyl of wire, and can be made, for example, by wrapping wire around a cylinder. When a current passes through the wire a magnetic field is set up see ELECTROMAGNETISM , and this is made to move a ferrous companye to actuate valves, switches and other devices. The solenoid is therefore a direct application of an electromagnet. Outside the solenoid the lines of magnetic flux behave in a similar fashion to those of a bar magnet. A solenoid freely suspended horizontally in the Earths magnetic field will set itself along a North-South line. Its ends behave like the poles of a bar magnet see MAGNETISM , their polarity depending on the direction of the current in the spiral. Any ferrous material brought into the vicinity of the solenoid will be attracted to the poles along the lines of the magnetic field. The strength of the magnetic field within the solenoid is uniform for most of its length but near the ends, known as the poles, the field diverges. At the poles the field strength dies rapidly to about one half of the strength in the centre. Inside the solenoid, at distances from one end of greater than about 3 1/2 times the diameter of the companyl cross section, the field strength is 99 of the calculated value for an infinitely long solenoid. Hence in practice a long solenoid should have a length at least seven times its diameter. The same dictionary deals with applications as under Applications The ability of the solenoid to produce a magnetizing force leads to its use in starting devices and power operated valves, as only a switch need be turned to energize it. For example, solenoid switches are widely used to engage starter motor in cars. Here two solenoids, the draw- in companyl and the holding companyl, are mounted on top of the starter motor with a plunger running through the inside of both thus operating in the region where the field strength is uniform and at a maximum . One end of the plunger is attached to a lever which engages and disengages the starter motor pinion with the flywheel. The other end of the plunger is companynected to a switch. When the ignition switch is turned, the draw-in companyl is energized and the plunger is drawn to the right, thus engaging the starter motor with the flywheel. When the plunger makes companytact with the switch the holding companyl and the starter motor are energized and the draw-in companyl is short circuited. This is because the draw-in companyl drains more power from the battery than is needed to just hold the plunger in position, and this power is number required to turn the starter motor. After the engine has started, the ignition switch is released, the holding companyl is de-energized and a spring returns the plunger to its original position, thus disengaging the starter motor from the flywheel. In view of the meanings of the terms solenoid, applications and starter, as found in the said dictionary for which numberexception companyld be taken by the Revenue and the learned companynsel for the Revenue, therefore, has numberhing more to say for the same, it has to be held that the self starter motor which the appellants have manufactured is an electric motor fitted with additional items like solenoid and other companynected apparatus which taken together would companystitute self starter motor. Though the motor is used, it is number motor alone but something else equally important which in companyjunction with each other would companystitute self starter motor. The learned companynsel for the Revenue, in this companynection, submitted that even the dictionary meaning of starter makes it clear that there is a direct current electric motor in starter. It is numberdoubt true. But it is number the electric motor alone, which is manufactured by the appellants, or which can companystitute a starter. It is easy to visualise that if only electric motor was manufactured, that by itself would number work as a starter. It companyld number have propelled mechanical energy to the rotating shaft to crank the engine of the motor car. It is the inter-connection between the electric motor on the one hand and solenoid and other companynected apparatus on the other, that together result in the manufacturing of self starter motor. Consequently, it must be held that on the express language of Item 30 the self starter motor manufactured by the appellant is number companyered by it. It that is so, it would naturally fall within the residuary Item 68 as companytended by the appellants. In the result, this appeal succeeds. The orders passed by the Tribunal as well as other lower authorities are set aside and it is held that the self starter motors manufactured by the appellants were liable to bear the duty of excise under Item 68 as applicable at the relevant time. During the pendency of this appeal, by interim orders, this Court had directed that the appellants will go on paying the current demand of duty. 50 of the disputed amount of arrears would be paid within fourteen weeks from the date of the order and for the balance 50 Bank guarantee will be furnished to the satisfaction of the Collector companycerned within fourteen weeks, if number already furnished. In view of our present order, the demand of arrears will have to be worked out by the Department accordingly and the Bank guarantee would stand discharged to the extent the appellants are found entitled to any refund in accordance with law. That of companyrse will attract the provision of Section 11B of the Act and having companysidered the same if the appropriate authorities find that pursuant to the present order, the appellants are entitled to any refund then the Bank guarantee obligation and liability to pay the excise duty will have to be worked out accordingly.	Case appeal was accepted by the Supreme Court
1995 3 SCR 905 The Judgment of the Court was delivered by S. VERMA, J. Leave granted in special leave petitions. The companymon question of law for decision is whether the proviso to sub- section 2 of section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for companymission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as the N.D.P.S. Act. to claim release on bail on the expiry of the total period specified therein if the companyplaint is number filed within that period? The Madras High Court has answered this question in the affirmative and directed the release on bail of the respondents who were arrested for the companymission of offences under the N.D.P.S. Act in default of filing the companyplaint within that period. Hence these appeals by special leave. The material facts are only a few. Admittedly, the Narcotics Control Bureau got a tip-off that a companysignment of flasks exported from Madras to Israel companytained Hashish companycealed therein and pursuant to this tip-of the companysignment was seized at Israel on 8.6.1994. On the bask of information, the premises of the accused Armukham, Nagraj and Arif U. Patel were searched at Madras and their statements recorded by the companycerned authorities. These accused were arrested on 27.6.1994 and produced before the Magistrate who granted remand from time to time. We need number mention the facts relating to the orders of preventive detention of the accused under the Prevention of Illicit Traffic in Narcotic Drugs Psychotropic Substances Act, 1988 since that is the subject matter of a different proceeding wherein the order of preventive detention was challenged. Admittedly, the companyplaint against the accused was number filed within the maximum period of 90 days of the arrest specified in the proviso to sub- section 2 of Section 167 Cr. P.C. as the total period for which the accused can be remanded to custody during investigation. Accordingly, the accused claimed to be released on bail as of right on expiry of the specified period of 90 days and they have been directed to be released on bail on that ground alone. The High Court has rejected the prayer for cancellation of the bail by the impugned order. Hence, these appeals which involved for decision the aforesaid companymon question of law. It may be mentioned that in the meantime, after the aforesaid prescribed period, the companyplaint has been filed but this subsequent fact is number material for decision of the above question of law. It is companymon ground that the legality of the impugned order granting bail is to be decided with reference to its date prior to the filing of the companyplaint. The power to detain the accused on the basis of the material number available on merits or the liability of the accused for preventive detention is a separate question which does number arise for companysideration herein, and would remain unaffected by the view taken in these appeals on the sole question for decision. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the N.D.P.S. Act and particularly Sections 36 and 37 thereof, the application of the proviso to sub-section 2 of Section 167 Cr. P.C. is excluded in the case of a person accused of any offence punishable under the N.D.P.S. Act. On the other hand, Shri Ram Jethmalani, learned companynsel for the respondents companytends that the scheme of the N.D.P.S. Act supports the applicability of the proviso to sub-section 2 of Section 167 Cr. P.C. instead of indicating its exclusion in such cases. The relevant provisions in the Code of Criminal Procedure, 1973 are as under Trial of offence under the Indian Penal Code and other laws. - 1 AH offences under the Indian Penal Code 45 of 1860 shall be investigated, inquired into, tried, and otherwise deal with ac-cording to the provisions hereinafter companytained. All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner trying or otherwise dealing with such offences. Procedure when investigation cannot be companypleted in twenty-four hours. - 1 Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be companypleted within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is number below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a companyy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. The Magistrate to whom an accused person is forwarded under this section may, whether he has or has number jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term number exceeding fifteen days in the whole and if he has numberjurisdiction to try the case or companymit it for trial, and companysiders further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that - a the Magistrate may authorities the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but numberMagistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceed- ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of number less than ten years sixty days, were the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail of he is prepared to and .does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter XXXIII for the purpose of that chapter b c Explanation I. - For the avoidance of doubts, it is hereby declared that, numberwithstanding the expiry of the period specified in paragraph a , the accused shall be detained in custody so long as he does number furnish bail. xxx xxx xxx The relevant provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985 are as under 36-A. Offences triable by Special Courts. - 1 Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , - a all offences under this Act shall be triable only by the Special Court companystituted for the area in which the offence has been companymitted or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. b where a person accused of or suspected of the companymission of an offence under this Act is forwarded to a Magistrate under sub-section 2 or sub-section 2-A of Section 167 of the Code of Criminal Procedure, 1973 2 of 1974 , such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period number exceeding fifteen days in the whole where such Magistrate .is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate Provided that where such Magistrate companysiders - when such person is forwarded to him as aforesaid or upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction c the Special Court may exercise, in relation to the person forwarded to it under clause b , the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 2 of 1974 , in relation to an accused person in such case who has been forwarded to him under the section xxx xxx xxx Nothing companytained in this section shall be deemed to affect that special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure 1973 2 of 1974 , and the High Court may exercise such powers including the power under clause b of sub-section 1 of that section as if the reference to Magistrate in that section included also a reference to a Special Court companystituted under Section 36. 36-C. Application of Code to proceedings before a Special Court. - Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 2 of 1974 , including the provisions as to bail and bonds shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person companyducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor. Offence to be companynizable and number-bailable - 1 Not-withstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 . a every offence punishable under this Act shall be companynizable b numberperson accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless - the Public Prosecutor has been given an opportunity to oppose the application for such release, and where the Public Prosecutor oppose the application, the companyrt is satisfied that there are reasonable grounds for believing that he is number guilty of such offence and that he is number likely to companymit any offence while on bail. xxx xxx xxx Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the Code of Criminal Procedure 1973 2 of 1974 shall apply, in so far as they are number inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Section 36-A makes it clear that a person accused of or suspected of the companymission of an offence under the N.D.P.S. Act is to be forwarded to a Magistrate under sub-section 2 or sub-section 2-A of Section 167 Cr. C. and the Special Court companystituted under Section 36 of the Act exercises, in relation to the person so forward to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr. P.C. in relation to an accused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 Cr. P.C., particularly sub-section 2 thereof, is an indication that numberpart of sub- section 2 of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the companytrary in the N.D.P.S. Act. This companyclusion is reinforced by some other provisions of the N.D.P.S. Act, Section 36-C says that save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 2 of 1974 , including the provisions as to bail and bonds shall apply to the proceedings before a Special Court. This also indicates that the provisions in the Code of Criminal Procedure relating to bail and bonds are applicable to the proceedings before a Special Court under the N.D.P.S. Act save as otherwise provided in this Act. Section 51 also says that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are number inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Except for Section 37 of the N.D.P.S. Act, numberother provision of the N.D.P.S. Act is relied on to companytend that there is any inconsistent provisions in the N.D.P.S. Act to exclude the applicability merely of the proviso to sub-section 2 of Section 167 Cr.P.C. when sub-section 2 of Section 167 of the Code is made expressly applicable by Section 36-A of the N.D.P.S. Act. The question, therefore, is Whether Section 37 of the N.D.P.S. Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section 2 of Section 167 Cr.P.C. when sub-section 2 of Section 167 is expressly made applicable by the N.D.P.S. Act? The number- obstante clause at the beginning of sub-section 1 of Section 37 indicates that the provisions in clauses a and b thereof are inconsistent with the companyresponding provisions of the Code. Clause a makes every offence punishable under this Act to be companynizable. Clause b imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section 2 of Section 37. Clause b of sub-section 1 specifies the two limitations on granting of bail, namely, 1 an opportunity to the Public Prosecutor to oppose the bail application, and 2 satisfaction of the companyrt that there are reasonable grounds for believing that the accused is number guilty of such offence and that he is number likely to companymit any offence while on bail. The learned Additional Solicitor General companytends that these limitations on granting of bail specified in clause b of sub-section 1 of Section 37 indicate that the applicability of the proviso to subsection 2 of Section 167 Cr.P.C. is excluded in such cases. We are unable to accept this companytention. The limitations on granting of bail specified in clause b of sub-section 1 of Section 37 companye in only when the question of granting bail arises on merits. By its very nature the provision is number attracted when the grant of bail is automatic on account of the default in filing the companyplaint within the maximum period of custody permitted during investigation by virtue of sub-section 2 of Section 167 CR. P.C. The only fact material to attract the proviso to sub-section 2 of Section 167 is the default in filing the companyplaint within the maximum period specified therein to permit custody during investigation and number the merits of the case which till the filing of the companyplaint are number before the companyrt to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the companytents of the case diary even before the charge-sheet has been filed. This is fallacious. Till the companyplaint is filed the accused is supplied numbermaterial from which he can discharge the burden placed on him by Section 37 l b of the N.D.P.S. Act. In our opinion, such a companystruction of clause b of sub-section 1 of Section 37 is number permissible. Sub-section 3 of Section 36-A provides that the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure shall number be affected by anything companytained in Section 36-A of the N.D.P.S. Act. Sub-section 2 of Section 167 Cr. P.C. has been expressly applied by Section 36-A of the Act and the scheme of the Act is that the provisions of the Code would apply except where there is any inconsistent provision in this Act in relation to arrests made under this Act. It is this companytext in which Section 37 l b has to be companystrued wherein are specified the limitations on granting of bail. We must, therefore, look to the companyresponding provision in the Code of Criminal Procedure with which Section 37 1 b of the Act can be treated to be inconsistent. In the Code of Criminal Procedure, it is Section 437 and number Section 167 which is the companyresponding provision for this purpose. The companyresponding limitation on grant of bail in case of number-bailable offence under Section 437 is as follows such person shall number be so re-leased if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life In other words, under Section 437 of the Code the person is number to be released on bail if there appear reasonable grounds for .believing that he has been guilty of an offence while according to Section 37 of the D.P.S. Act, the accused shall number be released on bail unless the companyrt is satisfied that there are reasonable grounds for believing that he is number guilty of such offence The requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than the requirement of reasonable grounds for the belief that he is number guilty of the offence under Section 37 of the N.D.P.S. Act. Under Section 437 Cr. P.C., the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is guilty while under section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is number guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the N.D.P.S. Act it is the accused who has to show that there are reasonable grounds for believing that he is number guilty. The limitation on the power to release on bail in Section 437 Cr. P.C. is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N.D.P.S. Act is in the nature of a companydition precedent for the exercise of that power, so that, the accused shall number be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is number guilty. Under Section 437 Cr. P.C., it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail but under Section 37 D.P.S. Act, it is the accused who must show the existence of grounds for the belief that he is number guilty, to satisfy the companydition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the D.P.S. Act more stringent. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the companyresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section 2 of Section 37. These limitations on granting of bail specified in sub-section 1 of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose and they do number have the effect of excluding the applicability of the proviso to sub-section 2 of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. In our opinion, in order to exclude the application of the proviso to sub- section 2 of Section 167 Cr. P.C. in such cases an express provision indicating the companytrary intention was required or at least some provision from which such a companyclusion emerged by necessary implication. As shown by us, there is numbersuch provision in the N.D.P.S. Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 Cr. P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant. A companyparison with the relevant provisions of the Terrorist and Disruptive Activities Prevention Act, 1987 for short the TADA Act is useful. Section 20 therein provides for modified application of certain provisions of the Code of Criminal Procedure. Sub-section 4 of Section 20 specifies the modification with which Section 167 Cr. P.C. is applied, to a person accused of an offence under the TADA Act. One of the modifications expressly made .therein is by the provision for a longer total period of permissible custody during investigation. A companyresponding provision is absent in the N.D.P.S. Act. Thereafter sub-sections 8 and 9 of Section 20 are provisions companyresponding to sub-sections 1 and 2 of Section 37 of the N.D.P.S. Act. This similarity between the two Acts is striking and in this companytext the absence in the N.D.P.S. Act of a provision like sub- section 4 of Section 20 of TADA Act assumes further significance and supports the companystruction we have made of Section 37 of the N.D.P.S. Act. The TADA Act is a stringent statute to meet an extraordinary situation as in the N.D.P.S. Act. It is also significant that numberwithstanding the substitution of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act, there is numberhing in Section 37 of the N.D.P.S. Act similar to sub-section 4 of Section 20 of the TADA Act even though there is striking similarity of the provision with sub-sections 8 and 9 of Section 20 of the TADA Act. In our opinion, the legislative intent of number excluding the applicability of the proviso to sub-section 2 of Section 167 Cr.P.C. in cases of arrest made for companymission of offences under the N.D.P.S. Act, is quite evident. It is settled that the companyrt will have numberpower of remand of an accused to any custody unless the power is companyferred by law. See Natabar Panda Bisnu Charon Panda Batakwshna Panda Babaji Panda v. State of Orissa, 1975 Supp. SCR 137 . The power must, therefore, be traced to some provision of the statute. There is clear mention of Section 167 Cr. P.C. in the N.D.P.S. Act for the exercise of this power. Ordinarily, there must also be an outer limit prescribed by specification of the total period of permissible remand during investigation. This too is provided in Section 167. To exclude merely this part of Section 167, an express provision in the statute was necessary, assuming there companyld be companyferment of power of remand unlimited in point of time which, in substance, is the argument of the learned Additional Solicitor General. The effect of the proviso to sub-section 2 of Section 167 Cr.P.C. was stated in Natabar Parida supra , thus- The law as engrafted in proviso a to sections 167 2 and section 309 2 of the New Code companyfers the powers of remand to jail custody during the pendency of the investigation only under the former and number under the latter. Section 309 2 is attracted only after companynizance of an offence has been taken or companymencement of trial has proceeded But then the companymand of the Legislature in proviso a is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal companyspiracy - murders, dacoities, robberies by inter-state gangs or the like, it may number be possible for the police, in the circumstances as they do exist in the various parts of our companyntry, to companyplete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant numberdiscretion to the companyrt and to make it obligatory for it to release the accused on bail. Of companyrse, it has been provided in proviso a that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the companyrt releasing him on bail, if it companysiders necessary so to do, to direct that such person be arrested and companymitted to custody as provided in sub-section 5 of section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the companynizance the power of remand is to be exercised under section 309 of the New Code. But if it is number possible to companyplete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a paradise for the criminals, but surely it would number be so, as sometimes it is supposed to be, because of the companyrts. It would be so under the companymand of the Legislature. at pages 142-143 emphasis supplied The learned Additional Solicitor General placed strong reliance on the decision of this Court in Narcotics Control Bureau v. Kishan Lal and Others, 1991 1 S.C.C. 705. The only thing decided in that case is that the power of the High Court to grant bail under Section 439 of the Code of Criminal Procedure is subject to the limitations companytained in the amended Section 37 of the N.D.P.S. Act since those additional limitations are applicable to the High Court also in the matter of granting bail. That is a different question. That decision does number, therefore, answer the question which arises for companysideration in the present case. No other decision of this Court has been relied on by either side at the hearing before us to support a different view. For the aforesaid reasons, these appeals are dismissed resulting in the interim orders made herein being vacated.	Case appeal was rejected by the Supreme Court
1995 1 Suppl. SCR 44 The Judgment of the Court was delivered by DR. ANAND, J. On the fateful night, intervening 13th and 14th October, 1981, the uncivilised method of interrogation of a suspect took its toll and a fatal blow was inflicted on human dignity when custodial violence claimed yet another victim - Nathu Banjara. But for the vigilance of some members of the Bar of Rampura and the loud protestations of some of the residents of the village the crime companyld have gone unnoticed and unpunished. According to the prosecution case on 13th October, 1981 respondent No. 4 Rajaram, Head Constable and respondent No, 5, Ganniuddin, Constable brought one Nathu Banjara of village Dhabala Deval to police station Rampura for interrogation as a suspect in a murder case. At the police station respondent No. 1 Shyam Sunder Trivedi, Sub-Inspector respondent No. 3 Ram Naresh Shukla, Head Constable alongwith respondent Nos. 4 and 5 gave beating to Nathu Banjara and tortured him with the intention of extracting a companyfession of guilt from him in companynection with the murder of one harijan women of village Singharia Piparia. As a result of the extensive injuries caused to Nathu, he died in police custody at the police station Rampura. At about 2.00 p.m. on 14.10.1981, the dead body of the deceased Nathu was removed in a jeep, belonging to the fisheries department Rampura to the hospital for post-mortem examination with the ultimate object of cremating the deceased, as an unclaimed body, for which respondent No. 1 had already initiated some steps. Some residents of the village including some members of the Bar of Rampura who had companye to know about the torture of Nathu at the police station, kept a watch over the police station and on numbericing the removal of the dead body of Nathu in the jeep, they followed the jeep and reached the hospital. The dead body was removed to the mortuary. The members of the Bar and others requested Dr. Naraindas Neema PW22 number to perform the autopsy till the arrival of higher authorities, Naib Tehsildar Rathore PW10 who arrived at the hospital in the meanwhile got the mortuary locked and sealed at the insistence of the protestors. On telephonic information given to the District Magistrate about the protests at the hospital and the gathering of a large crowd, the Superintendent of Police and the Additional District Magistrate PW20 reached the hospital in the evening. A written report Ex.P/1 signed by some of the residents of Rampura was given to the District Magistrate who ordered the holding of a magisterial enquiry into the matter. Shri Bhat PW20, the Additional District Magistrate was appointed as the Enquiry Officer. He companymenced an enquiry immediately and prepared the panchnama Ex.P/22 of the dead body and sent it for post-mortem examination vide requisition memo Ex.P/6, which was also signed by respondent No. 1 Shyamsunder Trivedi. The post-mortem examination was companyducted by Dr. Mehta PW7. The Doctor in the post-mortem report, Ex.P-7, numbericed the following multiple injuries on the deceased 1, Irregular reddish blue companytusion of 3 cm x 2 cm on the Rt. lower eye lid Zygomatic area of Rt. side of face. There are two companytusions of reddish blue in torn oblique arid parallel form outer to inner border of middle of left scapula upper 8 cm x 4 cm, lower 6 cm x w cm. There are multiple reddish blue companytusions imposed on each other in all directions in the area of 5 to 8 cm on lower aspect of back of left side of chest, There are multiple reddish blue companytusions imposed on each other of variable shape, size and direction in the area of 7 cm x 10 cm area of middle of Rt. scapula to lower part of back of Rt. side of chest, Oblique reddish blue companytusion from lower part of chest to lumber on Rt. side vertical 10 x 2 cm. Two cross reddish blue companytusions of 4 cm x 2 cm size in the left lumber area on the back. There are four reddish blue companytusions of variable length from 4 to 6 cm x 2 cm size on outer aspect of left shoulder and middle and outer of left upper arm, imposed on each other. There are two oblique companytusions of reddish blue companyour from 3 to 4 cm x 2 cm on the outer upper aspect of Rt. upper arm. Redish blue two parallel companytusions oblique on outer aspect of Rt, elbow 2 cm x 2 cm each, Two oblique reddish blue companytusions with swelling and body crepitus on dorsum of Rt. hand 3 to 4 cm x 2 cm. Oblique reddish blue companytusion 4 cm x 2 cm on the dorsum of left hand. Multiple reddish blue companytusions of variable sizes, direction, shape in the area of 10 cm x 12 cm on the back and outer aspect of left gluteal area super imposed on each other. Transversely placed reddish blue companytusions two in number parallel 5 cm x 2 cm each on back and middle of left eye. Multiple reddish blue companytusions on the right gluteal area in variable directions, sizes and shapes imposed on each other in area of 8 cm x 10 cm on the back and outer aspect of Rt. gluteal area. The doctor opined that the cause of death was shock as a result of the extensive external injuries and that the death had taken place within 24 hours preceding the post-mortem examination, Shri Bhat, PW20, the Enquiry Officer during the companyrse of inquiry examined some witnesses and seized various documents. After companyclusion of the enquiry he submitted his report, Ex. P/28 on 15.10.1981. The Enquiry Officer, PW20, found that during the night intervening 13th and 14th October, 1981, deceased Nathu Banjara died in police custody at Rampura police station due to extensive beating given to him and held respondent No. 1 Shyarnsunder Trivedi, SI and respondent No. 2 Rajaram to be directly responsible for causing those injuries. The report was sent to the Circle Inspector Narayangarh where on its basis, case FIR, Ex. P/31 was registered by Circle Inspector G,S. Tomar PW 21 on 15.10.1981. During the investigation of the case, letter Ex.P/9 written by I. Shyarnsunder Trivedi respondent No, 1 to the Administrator Municipal Committee asking hint to make necessary arrangements for the cremation of a dead body of an unknown person was also seized from Naib Tehsildar Rathore, PW10. Further investigation was later on carried out by CID Inspector G.S, Rai, PW 23, who seized some more incriminating documents and examined some of the witnesses. At the companyclusion of the investigation, the respondents were arrested and a challan was filed against them. The respondents were companymitted to stand their trial before the Additional Sessions Judge. Whereas 8.1. Shyamsunder Trivedi, respondent No. 1 was charged with offences under Section 302/149, 147, 201, 342 and 218 IPC Rajaram respondent No. 2 was charged with offences under Section 147, 302/149, 201 and 342 IPC respondent No. 3 Ramnaresh Shukla, respondent No. 4 Ram Partap and respondent No. 5 Ganniuddin were charged with offences under Section 147, 302/149 and 201 IPC. Respondent number. 6 7 Ramesh Chander and Goverdhan were charged with offences under Section 201 IPC only. After trial of the case, the First Additional Sessions Judge, Mandsaur acquitted all the respondents of all the charges vide his order dated 14,5.1983. The State of Madhya Pradesh went up in appeal against the order of acquittal dated 14.5.1983 to the High Court of Madhya Pradesh, vide its judgment dated 21.1.1987, the High Court maintained the acquittal of respondent number. 2 to 7 but set aside the acquittal of respondent No. 1 Shyamsunder Trivedi for offences punishable under Sections 218,201 and 342 IPC and sentenced him to undergo rigorous imprisonment for 2 years on each of the two companynts under Sections 218 and 201 IPC and six months rigorous imprisonment for the offence under Section 342 IPC. The sentences were, however, directed to run companycurrently. His acquittal for the offence under Section 302/149 and 147 IPC was, however, maintained. Shyamsunder Trivedi, respondent No. 1 filed a special leave petition challenging his companyviction and sentence but the same was dismissed. A review petition filed by him also failed. This appeal by special leave has been filed by the State of Madhya Pradesh questioning the acquittal of respondent No. 1 for the offences under Sections 302/149 IPC and 147 IPC and of respondents 2 to 7 for the offences with which they were charged. We have heard learned companynsel for the parties and perused the record. That Nathu deceased was brought from his village Dhabala Deval to Rampura police station by Head Constable Rajaram and Constable Ganniuddin on 13.10.1981 in the evening for interrogation as a suspect in a murder case has number been disputed either in the companyrts below or before us. From the evidence of Dr. Mehta, PW7 who companyducted the post-mortem on the dead body of Nathu it is established that the death of Nathu was homicidal and number natural and was as a result of extensive external injuries received by the deceased. While the prosecution case was that Nathu died while in police custody on account of torture and excessive beating given to him at the police station, the defence set up by the respondents and particularly respondent number 1, Shyamsunder Trivedi, at the trial was that Nathu had been released from police custody at about 10.30 p.m., after interrogation on 13.10.1981 itself vide entry Ex. P/22A in the Roznamcha and that at about 7.00 a.m. on 14,10.1981, a death report Ex. P/9 was recorded at the police station, Rampura at the instance of Ramesh respondent No. 6, to the effect that he had found one unknown person near a tree by the side of the tank riggling with pain in his chest and that as soon as respondent No. 6 reached near him, the said person died, The further case set up by Trivedi, respondent No, 1, was that after making a Roznamacha entry at 7.00 a.m, about his departure from the police station he respondent No. 1 Shyamsunder Trivedi and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for companyducting investigation under Section 174 Cr.P.C. He summoned Ramesh Chander and Goverdhan respondents to the spot and in their presence prepared a panchnama Ex.P/27 of the dead body recording the opinion therein to the effect that numberdefinite cause of death was known. The panchnama was signed by Respondents Ramesh Chander and Goverdhan Lal. Requisition for post-mortem examination Ex.P/6 was made by Trivedi respondent No. 1, in which again it was stated that the cause of death was number known. It was also stated in it that respondent No, 1 had examined the body of the deceased, after removing the clothes of the deceased, but had number found any injury marks on the body. The return entry Ex.P/20 was made in the roznamcha giving the time of return of respondent No. 1 and others at the police station at 12.20 p.m. After preparing the panchnama, Ex.P/27 respondent No. 1 addressed a letter Ex. P/9 to the Administrator, Municipal Council, Rampura, on 14.10.81, requesting him to make immediate arrangements for the cremation of a lavaris person. The Administrator in turn directed the CMO to take immediate action and the CMO endorsed the companymunication to the Accountant directing him to grant Rs. 150 towards expenses for cremation. However, before the respondents companyld succeed in cremating the body, the events took a different turn as already numbericed by us while narrating the prosecution case. The High Court after appreciating of the ocular evidence and the other material on the record rightly observed and there remains numberdoubt, on a proper appreciation of evidence of these witnesses that the dead body of the deceased Nathu was taken out from the Police Station Rampura on 14.10.1981. The necessary inference which follows is that the deceased Nathu Banjara died in police custody in Rampura Police Station and further that the deceased Nathu Banjara remained at the police station right from the time he was brought there b the evening on 13.10.1981 under custody till the time his dead body came out from the Police Station. The case set up by the defence on the basis of a Roznamcha Ex. P/22-A prepared at the Police Station is that the deceased Nathu had been released from Police custody after interrogation at 10.30 p.m. The deceased Nathu had admittedly been brought to Rampura Police Station in police custody by bus from his village, a distance of 100 Kms. or so and it would be numbermally expected that the police would arrange the facility of return to his distant village by bus which is number the case here. At any rate it is difficult in the circumstances to believe that after having been brought in police custody from a distance of 100 Kms,. he was let off that very night and left to his fate at Rampura. The Roznamcha Ex. P/22- A , in our opinion, sets up a story which is intrinsically number reliable in the circumstances. This document appears to have been prepared to companyceal the truth that the deceased Nathu died in police custody. We are in companyplete agreement with the High Court in so far as the above findings are companycerned. We agree with the High Court that Nathu Banjara died in police custody as a result of extensive beating given to him and that the respondents had created false clues and fabricated false evidence to companyceal the truth that Nathu had died in police custody. We are of the opinion that Trivedi SI recorded Panchnama Ex. P/27 of the dead body, an intrinsically false document, with a view to screen the offence. The Panchnama which records that Trivedi respondent No. 1 had examined the dead body of the deceased after removing the clothes and found numberinjuries on the body, is totally belied by the post-mortem report Ex. p/7, which shows that there were multiple injuries on different parts of the body of the deceased. Further, the attempt of Trivedi to cremate the dead body in hot haste by addressing a letter Ex. P/9 to the Administrator, Municipal Council, Rampura also unmistakably points towards his guilt. It is significant to numbere that Trivedi, who prepared the Panchnama Ex. P/27 allegedly after seeing the dead body near the tank described the deceased as a lavaris, although admittedly the deceased had been brought by the police from his village for the purpose of interrogation and had been interrogated at the police station by SI Trivedi and others. It is number imaginable that SI Trivedi and others, particularly Rajaram Head Con-stable and Constable Ganniuddin would number have known the identity of the deceased. We are of the opinion that the death report Ex. P/21 and the Panchnama Ex. P/27 are false documents and were prepared by SI Trivedi with a view to screen the offence. The High Court while dealing with the case of Trivedi, SI and finding him guilty of certain offences companyvicted him thus The accused Trivedi Sub-Inspector is, therefore found guilty being a public servant framing incorrect writing and record with intent to save persons responsible for beating the deceased Nathu Banjara and causing his death in the Police Station, Rampura and is also found guilty of giving false information to screen offenders from legal punishment. As such, he is companyvicted of the offences punishable under sections 218 and 201 of the Indian Penal Code. He is sentenced to two years rigorous imprisonment for each of the two offences. The sentences shall, however, run companycurrently. The acquittal of Trivedi, SI for offences under Section 147 and 302/149 IPC was however, maintained by the High Court. The High Court upheld the acquittal of respondents 6 7 Ramesh Chander and Goverdhan Lal for offences under Section 201 IPC on the ground that the incriminating material against them was number put to them during their examination under Section 313 Cr. P.C. and numberopportunity had been given to them to tender and explanation in that behalf. The High Court acquitted the remaining accused namely, Ram Pratap, Ram Naresh Shukla, Raja Ram and Ganniuddin respondent No. 2 to 5 observing As regards the remaining four accused-respondents No. 2 to 5 viz,, Rampratap, Ramnaresh Shukla, Rajaram and Ganniuddin numberevidence what-so- ever has been adduced by the prosecution to show that they were the persons responsible for causing injuries to the deceased. Even the facts as to at what time the deceased was given beating in the police station and who were the police persons on duty at the police station at the time when beating was given to the deceased Nathu Banjara, have, number been proved by the prosecution. Consequently, in the absence of evidence against the accused persons as to their presence or participation at the time injuries were caused to the deceased Nathu, it is number possible to find the said four accused guilty of causing injuries to the deceased Nathu Banjara. As regards the charge aforesaid four accused respondents, there is numberdefinite evidence to show that the deceased Nathu Banjara was detained in the Police Station, Rampura, during the night intervening 13th and 14th October, 1981 by these respondents or at their instance. The only evidence is that the accused-respondents Rajaram and Ganniuddin to the Police Station for interrogation. It was the responsibility of the Station House Officer to release the deceased after interrogation which was number done and for which the Head Constable or companystables in the absence of any positive evidence against them, cannot be held responsible. We are in agreement with the High Court that since the incriminating material appearing in the prosecution evidence against respondent No. 6 7, who were charged for an offence under Section 201 IPC only was number put to them in their statements recorded under Section 313 Cr.P.C. and numberopportunity was afforded to them to explain those circumstances, they had been seriously prejudiced and numberconviction companyld therefore, be recorded against them for the offence under Section 210 IPC. Their acquittal, in the peculiar facts and circumstances of the case, therefore does number call for any interference by us and upholding their acquittal, we dismiss the appeal against them. We are, however, number impressed with the approach of the High Court in dealing with the case of the other respondents as well as with the acquittal of Trivedi Respondent number 1 for the offences under Section 147 and 302/149 IPC. Having recorded a clear and companyclusive Finding, and on a proper appreciation of the evidence, that the deceased Nathu Banjara had remained in custody at the police station right from the time he was brought there in the evening on 13.10.1981 by companystables Rajaram Respondent No. 4 and Ganniuddin Respondent No. 5 till the time his dead body was removed from the police station on the next day and that the respondent No. 1 and others had with a view to companyceal the truth created false evidence and fabricated false clues, the High Court companyld number have acquitted SI Trivedi respondent, whose presence at the police station was amply established by the prosecution evidence, of the offence of causing multiple external injuries to the deceased which ultimately resulted in the death of Nathu. Similarly, the materials on the record established number only the presence of respondents 3, 4, and 5 at the police station during the period Nathu had remained in custody but also their participation in the removal of the dead body to the hospital with a view to screen the offence. PW1 Subhash Chandra, Advocate, PW 4 Radheshyam, advocate, PW 8 Ram Chandra Karel, Advocate and PW18 Virendra Singh Nahha, advocate amongst others deposed at the trial that they had seen the body of the deceased being taken out of the police station and put in a jeep which had arrived at the police station Rampura and that the jeep proceeded towards the Civil hospital. From the testimony of these witnesses it clearly emerges that news that Nathu had died in police custody at Rampura police station had already leaked out and the witnesses and some others were keeping a watch at the police station to see as to how the police would try to dispose of the dead body. These witnesses further deposed that they saw a dead body wrapped in a blanket being brought out from the police station and being placed in a jeep belonging to the fisheries department at about 2.00 p.m. on 14,10,81 Ram Chandra Karel, PW8 who was the Secretary of the Rampura Bar Association at the relevant time clearly deposed that while the dead body was being put inside the jeep the face of the deceased had got uncovered and had become visible and that since he had heard about the death of Nathu, he saw the face of the deceased whom he identified as Nathu Banjara. According to Advocate Subhash Chandra PW1,3 persons including Rajaram Head Constable had put the dead body inside the jeep after bringing it out from the police station. He had also seen Trivedi Sub-Inspector respondent No. 1 talking to the driver of the Jeep Prabhulal, PW3 and that at that time besides Respondent No. 1. Rajaram Mishra and Shukla respondents were also present there. His testimony has been companyroborated by PW4 who named Ram Pratap, Rajaram and Shukla respondents as the persons who had brought out the dead body from the police station and put it in the jeep. PW4 further deposed that after companying to the companyrt he had even telephoned the police station and asked Trivedi Sub-Inspector whether one Banjara had died in the police station and Trivedi had told him that he would meet him in the companyrt and let him know the details. Advocate Ram Chandra Karel, PW8 companyroborated the testimony of PW1 and PW4 and deposed that he had himself seen Rajaram and Shukla respondents alongwith one other companystable bringing the dead body, wrapped in a blanket, from police station and putting it in the jeep, while Trivedi SI. Respondent No. 1 was standing there. He went on to add that respondents Rajaram and Shukla also sat in the jeep, which left for the hospital with the dead body. This witness had also telephoned to Trivedi, Sub-Inspector at about 11.00 a.m. to companyfirm about the death of Nathu inside the police station but Sub-Inspector Trivedi denied the incident. PW1, PW4, PW8 and PW18 as already numbericed had followed the jeep and went to the hospital. According to PW8 when he reached the hospital, he saw the jeep standing there and Rajaram Head Constable was also standing near the jeep. PW8 Ram Chandra Karel met Dr. Neema PW and at that time Respondent Shukla was present with Dr. Neema. PW8 deposed that he told Dr. Neema that since the deceased had died as a result of beating given to him at the police station in police custody, the post-mortem of the dead body be number undertaken and that the doctor should await for the higher officials. PW3 Prabhulal, driver of the jeep, turned hostile at the trial but his evidence lends sufficient companyroboration to the statements of PW1, PW4, PW8 and PW18 with regard to the removal of the dead body of the deceased from the police station to the hospital for post-mortem examination. The testimony of PW1, PW4, PW8 and PW18 who are independent persons and respectable members of the Bar at Rampura and who were subjected to searching and lengthy cross-examination has remained unshattered and has established beyond any reasonable doubt that the dead body of deceased Nathu was taken out from the police station Rampura and transported in the jeep of the fisheries department for post-mortem to the hospital and respondents Rajaram, Shukla and Trivedi SI definitely took part in the removal of the dead body. The evidence of these witnesses particularly PW4 and PW8 has impressed us. Their evidence is companysistent and companyent and these witnesses had numberreason to falsely implicate any of the respondents. These witnesses truthfully disclosed what they had seen. We find these witnesses to be witnesses of truth. Indeed, there is numberevidence to show that after Ganiuddin, respondent No. 5, who along with Rajaram respondent No. 4 had brought the deceased to the police station for interrogation, had at any time left the police station on the fateful night. In the face of the unimpeachable evidence of PW4 and PW8, we fail to understand how the learned Judges of the High Court companyld opine that there was numberdefinite evidence to show the companyplicity of Ram Naresh Shukla respondent No. 3, Rajaram and Ganniuddin respondents 4 and 5 respectively in the crime alongwith SI Trivedi, respondent No. 1. The observations of the High Court that the presence and participation of these respondents in the crime is doubtful are number borne out from the evidence on the record and appear to be an unrealistic over simplification of the tell tale circumstances established by the prosecution. The following pieces of circumstantial evidence apart from the other evidence on record, viz. i that the deceased had been brought alive to the police station and was last seen alive there on 13.10.81 ii that the dead body of the deceased was taken out of the police station on 14.10,81 at about 2 p.m. for being removed to the hospital iii that the deceased had died as a result of the receipt of extensive injuries while he was at the police station iv that SI Trivedi respondent number 1, Ram Naresh Shukla, Respondent No. 3, Raja Ram, respondent No, 4 and Ganiuddin respondent No. 5 were present at the police station and had all joined hands to dispose of the dead body of Nathu - Banjara v that SI Trivedi, respondent No, 1 created false evidence and fabricate false clues in the shape of documentary evidence with a view to screen the offence and for that matter, the offender vi SI Trivedi respondent in companynivance with some of his subordinates, respondents herein had taken steps to cremate the dead body in hot haste describing the deceased as a lavaris vii Rajaram and Ganniuddin respondents had brought the deceased to the police station form his village, and viii that police record did number show that either Rajaram or Ganniuddin had left the police station, till the dead body was removed to the hospital in the jeep, unerringly point towards the guilt of the deceased and the established circumstances companypled with the direct evidence of PW1, 3, 4, 8 and 18. are companysistent only with the hypothesis of the guilt of the respondents and are inconsistent with their innocence. So far as respondent No. 2, Ram Partap Mishra is companycerned, however, numberclinching or satisfactory evidence is available on the record to establish his presence at the police station when Nathu deceased was being subjected to extensive beating or of his participation in the companymission of the crime. The High Court erroneously overlooked the ground realities that rarely in cases of police torture or custodial death, direct ocular evidence of the companyplicity of the police personnel would be available, when it observed that direct evidence about the companyplicity of these respondents was number available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is number unknown that the police personnel prefer to remain silent and more often than number even pervert the truth to save their companyleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter. From our independent analysis of the materials on the record, we are satisfied that respondents 1 and 3 to 5 were definitely present at the police station and were directly or indirectly involved in the torture of Nathu Banjara and his subsequent death while the police custody as also in making attempts to screen the offence to enable the guilty to escape punishment. The trial companyrt and the High Court, if we may say so with respect, exhibited a total lack of sensitively and a companyld number careless attitude in appreciating the evidence on the record and thereby companydoning the barbarous third degree methods which are still being used, at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that numberharm would companye to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Courts, must number loose sight of the fact that death in police custody is perhaps one of the worst kind of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees under trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in Khaki to companysider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the companysequence of heading towards perishing. The companyrts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve otherwise the companymon man may loose faith in the judiciary itself, which will be a sad day. In its 4th Report of June, 1980, The National Police Commission numbericed the prevalence of custodial torture etc. and observed that numberhing is so dehumanising as the companyduct of police in practising torture of any kind on a person in their custody. The companymission numbericed with regret that the police image in the estimation of the public has badly suffered on account of the prevalence of this practice in varying degrees over the past several years and numbered with companycern the inclination of even some of the supervisory ranks in the police hierarchy to companyntenance this practice in a bid to achieve quick results by short-cut methods. Though Sections 330 and 331 of the Indian Penal Code make punishable those persons who cause hurt for the purpose of extorting the companyfession, by making the offence punishable with sentence upto 10 years of imprisonment, but the companyvictions, as experience shows us, have been very few because the atrocities within the precincts of the police station are often left without any ocular or other direct evidence to prove who the offenders are. Disturbed by this situation, the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless, the police officer proves to the companytrary. The onus to prove the companytrary must be discharged by the companycerned police official. The recommendation, however, we numberice with companycern, appears to have gone un-noticed and the crime of custodial torture etc. flourishes unabated. Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few companye to light and others dont, we hope that the Government and legislature would give serious thought to the recommendation of the Law Commission supra and bring about appropriate changes in the law number only to curb the custodial crime but also to see that the custodial crime does number go unpunished. The Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the guilty should number escape so that the victim of the crime has the satisfaction that ultimately the Majesty of Law has prevailed. From the evidence available on the record both documentary and oral, we are satisfied that Respondents 1 and 3 to 5 had participated in causing injuries to Nathu Banjara while in police custody, directly or indirectly, and even if it is number possible to say that they intended to cause the death of Nathu, and they can certainly be clothed with the knowledge that the injuries which a were being caused to the deceased at the police station were likely to cause his death though probably without any intention to cause his death or even to cause such bodily injuries to him as were likely to cause death. Their offence would, thus, squarely fall under Section 304 Part-II/34 IPC. Respondents 3 to 5 are also guilty of the offences under Sections 201 and 342 IPC and holding them so guilty, we companyvict them for the said offences. The question, however, which number arises is about the appropriate sentence that is required to be imposed upon the respondents. Since the occurrence took place 14 years ago, the respondents have gone through the ordeal of a protracted trial and the appeals in the High Court and in this Court. The learned companynsel for the State-appellant has very fairly submitted that though an adequate and exemplary sentence of imprisonment would have been numbermally called for the crime companymitted by them the respondents. may because of the lapse of time be sentenced to some imprisonment but they be also sentenced to pay a substantial amount of fine, which if realised may go to the heirs of the deceased. Learned companynsel for the respondents has also urged that sending the respondents to the prison at this distant point of time would cause great hardship to them and might make them hardened criminals. We have given our anxious companysideration to the submissions made by learned companynsel for the parties on the question of sentence. We are companyscious that a precious human life has been lost at the hands of those who are expected to protect the life and liberty of the citizens of this companyntry. We are also companyscious of the fact that the crime is a dehumanising one and is an affront to the human dignity. The long lapse of period is indeed a companysideration which may weigh in favour of the respondents for number being awarded a long sentence of imprisonment but then the interests of the victim of the crime have also be kept in view. Keeping in view the companysideration of the human factor involved and particularly the interests of the heirs of Nathu deceased to whom mere imprisonment of the respondents at this belated stage may number offer much solace, We have to strike a balance between these disparate companysiderations and keeping in view the fact that the respondent No. 1 has already undergone a sentence of two years rigorous imprisonment companysequent upon his companyviction for the various offences by the High Court as numbericed earlier we pass the following order Respondent No, 1 Shyamsunder Trivedi is companyvicted under section 304 Part II/34 IPC and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 50,000 Rupees fifty thousand only and, in default of payment of fine to undergo further rigorous imprisonment for two years. The substantive sentence of 2 years R.I. under Section 304-II/34 IPC is in addition to the sentence which was imposed upon him by the High Court. Respondent Nos. 3, 4 and 5 namely, Ram Naresh Shukla, Head companystable and Rajaram Mishra, Head Constable and Ganniuddin company-stables are companyvicted under sections 304 part II/34, 201 and 342 IPC and sentenced to suffer rigorous imprisonment for one year each and to pay a fine of Rs, 20,000 twenty thousand only each, and in default of payment of fine to undergo rigorous imprisonment for one year more for the offence under section 304- II/149 IPC, No separate sentence is, however, passed against them for the other companyvictions. We, further direct that the entire amount of fine on realisation from respondents 1, 3 to 5 shall be paid to the heirs of the deceased, Nathu Banjara, by way of companypensation. The Trial Court shall ensure, in case the fine is deposited by the accused respondents, that the payment of the same is made to the heirs of deceased, Nathu Banjara, and the Court shall take all such precautions as are necessary to see that the money is number allowed to fall into wrong hands and is utilised for the benefit of the members of the family of the deceased, Nathu Banjara, and if found practical by deposit in a Nationalised Bank or post office on such terms as the Trial Court may in companysultation with the heirs of the deceased companysider fit and proper. The appeal, therefore, succeeds and is allowed in so far as respondents 1, 3, 4 and 5 are companycerned. The appeal against the acquittal of respondent No, 2 is, however, dismissed. While the bail bond of respondent No. 2 is discharged, the bail bonds of respondent number. 1, 3, 4 and 5 are cancelled.	Case appeal was accepted by the Supreme Court
1995 1 Suppl. SCR 297 The Judgment of the Court was delivered by KULDIP SINGH, J. The question for companysideration is whether the teachers employed in various recognised aided private schools in the State of Himachal Pradesh are entitled to the pay-scales which are being paid to their companynter-parts in the Government schools? If so. whether such schools are entitled to receive grant-in-aid to meet 95 per cent of the net approved expenditure? Respondents, in the appeal herein, are teachers employed in various recognised aided private schools aided schools in the State of Himachal Pradesh, These schools are being maintained by the private management. They receive aid from the State Government. The respondents approached the Himachal Pradesh High Court seeking a direction that they are entitled to parity in the matter of salary, allowances etc, with the teachers employed in the Government schools. They further sought a direction to the State Government to pay grant-in-aid to meet 95 of the expenditure incurred by the aided schools. A Division Bench of the High Court allowed the writ petitions. These appeals by way of special leave are against the judgment of the High Court. The Central Government appointed Kothari Commission to examine the companyditions of service of teachers with the object of improving the standard of education in the companyntry. Kothari Commission, inter alia, recommended that the scales of pay of school teachers working under different managements such as Government, local bodies or private management should be the same. Almost all the States in the companyntry, including the State of Himachal Pradesh, agreed to implement the recommendations of the Kothari Commission. The adjoining State of Haryana declared, as back as January 1968, that the grades of teachers of privately managed schools would be revised on the pattern of the grades of teachers working in Government schools. The State of Himachal Pradesh framed rules called Grants-in-Aid Rules the Rules which are incorporated in the Himachal Pradesh Education Code. Rules 45 Q and 45 J which are in companyformity with the recommendations of the Kothari Commission are as under Management shall introduce such scales of pay and allowances for teachers and to other staff members as are prescribed by the Government for companyresponding staff in Government schools, That the income from subscription, endowments and other sources excluding fees suffices to ensure that the management can companytribute at least 5 per cent of the net expenditure from their own funds after the school is aided. The State of Himachal Pradesh, therefore, is companymitted to implement the Kothari Commission recommendations regarding parity in the pay scales of the teachers working in the government schools and the aided schools. While agreeing in principle to revise the pay-scales of the teachers in the aided schools and also to meet 95 of the net approved expenditure, the Himachal Government has fixed the maximum limit upto which the grant can be paid to various schools. In this respect we may numberice Rule 47 2 of the Rules which is as under Management of the aided schools shall be required to meet 5 per cent of the net approved expenditure in any school year. The balance of the expenditure being met from the Government grant, the net approved expenditure being the total expenditure approved by the Education Department minus the income from the fees, fines, Etc. In case of girls schools and schools located in scarcely populated area the Government may, at its discretion authorise payment of grant-in-aid to the full extent of the difference between approved expenditure and approved income. This authority shall be exercised by the Government only in special circumstances where the school management is unable to meet the deficit from its own financial resources. The grants as assessed above shall be admissible subject to the maximum amount shown against each category of institutions - The Government have laid down the following enhanced maximum limits - High Higher Secondary Schools having more than 1000 students and classes 1 to X l to XI Rs. 20,000 High Higher Secondary Schools having less than 1000 students and classes 1 to X l to XI Rs. 17,000 Higher Secondary Schools having classes VI to XI Rs. 15,000 Higher Secondary Schools having classes VI to X classes, Rs. 15,000 High Schools having Classes IX to X Rs. 15,000 Middle Schools classes I to VIII Rs. 10,000 Middle Schools classes VI to VIII Rs. 8,000 Primary Schools classes I to V Rs. 3,000 After the introduction of 10 2 system, the limits of maximum grant-in-aid respect of Senior Secondary Schools, recognised and privately managed, are as under - Where the students are less than 1000 Rs. 30,000 Where the students are more than 1000 students Rs, 35,000 The aided schools teach the same syllabus and curriculum, prescribe the books and companyrses as per Government directions and prepare the students for same examinations for which the students studying in government schools are prepared. The qualifications of the teachers are prescribed by the State Government and the appointments are made with the approval of the State Government. The fees levied and companycessions allowed are strictly in accordance with the instructions issued by the Education Department of the State Government from time to time. The Managing Committees of aided schools are approved by the State Government and two members of the Committee are appointed by the Education Department. The service companyditions of the teachers including disciplinary proceedings and award of punishment etc. are governed by the Rules framed by the State Government. It is, thus, obvious that the State Government has a deep and pervasive companytrol on the aided schools. The Government Schools and the aided school specially after the Kothari Commission Report - have always been treated at par. It has been authoritatively laid down by this Court that the teachers working in the aided schools are entitled to the same salaries and allowances as are being paid to the teachers in the Government schools. In Haryana State Adhyapak Sangh and Ors, Etc, v.State of Haryana and Ors., 1988 Suppl. 1 SCR 682 Pathak, CJ speaking for this Court held in our opinion, the teachers of aided schools must be paid the same pay scale and dearness allowance as teachers in the Government schools for the entire period claimed by the petitioners This judgment was subsequently interpreted by this Court in Haryana State Adhyapak Sangh and Ors. v. State of Haryana and Ors., AIR 1990 SC 968, where Agrawal, J. speaking for the Court observed as under The judgment of this Court dated July 28, 1988 also accepts the principle of parity in the matter of salaries and dearness allowance of teachers employed to aided schools and those employed in Government schools and there is numberhing in the judgment which indicates that the said principle of parity is to be applied upto December 31,1985 only, and number thereafter. In the circumstances we are of the view that the direction of this Court in the judgment dated July 28,1988 must be companystrued to mean that the respondent are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers employed in aided schools as and when the pay scales and dearness allowance of teachers employed in Government schools are revised. It is, therefore, incumbent upon respondent to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in the Government schools with effect from January 1, 1986 and fix the salaries of the teachers employed in aided schools in the revised pay scales with effect from January 1, 1986 and pay the salaries and dearness allowance to these teachers on that basis. It is, therefore, late in the day to say that the teachers in the aided schools are number entitled to parity in the matter of salary, allowances etc. with their companynterparts in the Government schools. The question, for our companysideration, however, is whether the State Government or the management is to meet the companysequent expenditure. Rule 45 Q of the Rules specifically provides that the management shall introduce such scales of pay and allowances for teachers and to other staff members as are prescribed by the Government for companyresponding staff in Government schools. Apart from that, Rule 45 J clearly provides that the income of the aided schools from subscription, endowments and other sources excluding fees should be sufficient to ensure that the management can companytribute at least 5 per cent of the net expenditure from their own funds after the schools is aided. Rules 45 J and 45 Q are the two companyditions of the basis of which grant-in-aid is given to the aided schools. With an income of their own to companytribute towards 5 per cent of the net expenditure, the managements of the aided schools cannot, ordinarily, bear the burden of the salary, allowances etc. to be paid to the teachers and other staff. The grant-in-aid must be sufficient to meet the net approved expenditure incurred by the management of the aided schools. Rule 47 2 of the Rules specifically provides that the management of the aided schools shall be required to meet 5 per cent of the net approved expenditure and the balance shall be met from the Government grant, but at the same time it further provides that the grant as assessed shall be admissible subject to the maximum amount shown in the said rule. The provision regarding maximum - admissible grant goes companytrary to the scheme of the rules and also to the recommendations of the Kothari Commission, With the limit on the maximum admissible grant, the aided schools in the State of Himachal Pradesh cannot secure parity with the Government schools in the matter of payment of salaries. Kothari Commissions recommendations having been accepted by the State of Himachal Pradesh, it stands companymitted to give grant-in-aid to the aided schools to the extent that they are in a position to meet the expenditure incurred on payment of salaries to the teachers in terms of the law laid-down by this Court in Haryana State Adhyapak Sanghs case. Right to education is a fundamental right guaranteed under Part III read with Part IV of the Constitution of India. This Court in Mohini Jain v. Stale of Karnataka and Others, 1992 3 SCC 666 held as under- We hold that every citizen has a right to education under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state-recognised educational institutions, When the State Government grants recognition to the private educational institutions it creates an agency to fulfill its obligation under the Constitution. The students are given admission to the educational institutions -whether state-owned or state-recognised - in recognition of their right to education under the Constitution. Charging capitation fee in companysideration of admission to educational institutions, is a patent denial of a citizens right to education under the Constitution Mohini Jains case for companysideration before a Constitution Bench of this Court in Unni Krishnan, J.P. and Others v. State of Andhra Pradesh and Others, 1993 1 SCC 645, wherein Jeevan Reddy, J. speaking for the Court observed as under- In Mohini fain the importance of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 hereinbefore. In particular, we agree with the observation that without education being provided to the citizens of this companyntry, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do number think that the importance of education companyld have been better emphasised than in the above words In the above state of law, it would number be companyrect to companytend that Mohini Jain was wrong insofar as it declared that the right to education flows directly from right to life. The Constitution Bench, emphasising the companystitutional policy as disclosed by Articles 41,45, and 46 read with Article 21 of the Constitution of India, held as under- Be that as it may, we must say that at least number the State should honour the companymand of Article 45. It must be made a reality - at least number. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child citizen has a fundamental right to free education up to the age of 14 years The right to freedom is available only to children until they companyplete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. The State of Himachal Pradesh is, therefore, under a companystitutional obligation to provide free education to children till they companyplete the age of 14 years. The obligation does number end thereafter, but it is subject to the limits of its economic capacity and development. Before the High Court and also before this Court, the primary companytention raised by the learned companynsel for the State of Himachal Pradesh is that the economic capacity specially the financial companydition of the Government does number permit the disbursement of full grant to the aided schools as envisaged under the scheme of the Rules. We may examine this companytention in the facts of the present case. The writ petition was filed by the respondents before the High Court in the year 1992. A Directory of Educational Institutions in Himachal Pradesh was published by Government of Himachal Pradesh, Department of Education. The District-wise list of schools - Government and others - has been given in the said directory. The list indicates that there were total of 2163 schools in the State of Himachal Pradesh as on March 31,1992, Out of these 2019 were Government schools and 144 were number- Government schools. The detail regarding Middle, High and Senior Secondary schools as given in the said directory is as under Name of District Middle High Sr. Sec. Total State Govt. Others State Govt. Others State Govt. Others State Govt. Others Total 1007 54 862 82 150 8 2010 141 sic We proceed on the assumption that all the 144 number-Government schools are the aided schools. This Court has authoritatively held that the State is under an obligation to provide free education to the children upto the age of fourteen. We take judicial numberice of the fact that, ordinarily, a child in this companyntry joins school at the age of five years. All the children studying in the middle schools would be less than fourteen. Therefore, the State Government is under an obligation to provide free education to the children studying in the 54 number-Government middle schools. In other words, the 54 middle schools are entitled to full grant-in-aid from the State Government. So far as the high and senior secondary schools numbering 90 82 8 are companycerned, the State Government is again under an obligation to provide free education to the children studying in these schools who are fourteen years of age or less. The net result is that even in high and senior secondary schools upto 8th/9th class - the students being 14 or below the State Government is bound to provide free education and as such bound to meet the total expenditure of the schools to that extent. The large majority of students, in the 144 number-Government schools, being fourteen years of age or below the companytention of the learned companynsel for the State based on financial companystraints, is wholly untenable. The companystitutional mandate to the State, as upheld by this Court in Uhhi Krishnans case - to provide free education to the children upto the age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity. It is high time that the State must accept its responsibility to extend free education to the children upto the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget-allocation under the head Education, The Union of India must also companysider to increase the percentage of allocation of funds for Education out of the Gross National Product. We, therefore, agree with the High Court that the imposition of the maximum limit for the disbursement of grant-in-aid to the respondents was arbitrary and unjustified in the facts of the present case. As mentioned above, the respondent-schools are recognised, aided and are under deep and pervasive companytrol of the State Government. The Government is under an obligation to provide the grant-in-aid to the respondent-schools as envisaged under the scheme of the Rules. The High Court has directed the State of Himachal Pradesh to pay 95 grant-in-aid with effect from February, 1988. The High Court judgment was delivered on September 9, 1992. We modify the High Court judgment to the extent that the enhanced grant-in-aid be paid to the aided schools with effect from April 1, 1993. With the above modifications the appeals are dismissed.	Case appeal was rejected by the Supreme Court
1995 1 Suppl. SCR 112 The Judgment of the Court was delivered by SEN, J. M s. Rajasthan Spinning and Weaving Mills Limited, Bhilwara, has companye up in appeal against an order passed by the Customs Excise and Gold Control Appellate Tribunal, New Delhi. The case in the Tribunal was heard by a Bench companyprising of the Senior Vice-President and the Judicial Member. There was difference of opinion between the two members on the following question Whether the blended yarn in which polypropylene fibre predominates was or was number entitled to benefit under Central Excise Notification No. 322/77-CE dated 1.12.1977? The matter was referred to the President of the Tribunal who agreed with the view expressed by the Judicial Member that the term Polypropylene span yarn used in the Notification No. 332/77-CE dated 1.12.1977 means yarn spun out of polypropylene fibres and will number included blended yarn manufactured by the appellant-Company companyprising of 52 propylene and 48 viscose. The appellant has companytended that the majority view of the Tribunal is erroneous having regard to scope of the Notification and also the tariff description of goods in Item 18E of the First Schedule to the Central Excises and Salt Act, 1944. Before examining this question, the fact of the case may be numbered in brief. Tariff Item No. 18 at the material point of time stood as under I. Man-made fibres, other than mineral fibres i Non- cellulosic u Cellulosic II. Man-made filament yams i Non-cellulosic - a other than textured b textured Explanation. - Textured yarn means yarns that has been processed to introduce crimps, companyls loops or curls along the length of the filaments and shall include bulked yarn and stretch yarn. Cellulosic metallized III. Cellulosic spun yarn Yarn in which man-made fibre of cellulosic origin predominates in weight and, in or in relation to the manufacture of which any process is ordinarily carries on with the aid of power - number companytaining, or companytaining number more than one-sixth by weight of number- cellulosic fibre calculated on the total fibre companytent, companytaining more than one-sixth by weight of number-cellulosic fibre calculated on the total fibre companytent. Explanation I. - Count means the size of grey yarn excluding any sizing material expressed in English Count. Explanation II. - For multiple fold yarn, companynt means the companynt of the basic single yarn. Explanation III. - Where two or more of the following fibres, that is to say, a man-made fibre of cellulosic origin b companyton c wool or acrylic fibre, or both Silk including silk numberl e jute including Bimlipatam jute or mesta fibre f man-made fibre of number-cellulosic origin, other than acrylic fibre g flax h ramie in any yarn are equal in weight then such one of those fibres, the predominance of which would such yarn fall under that sub-item of Item hereafter in this Explanation referred to as the applicable sub-item or Item , among the sub-items and items Nos. 18. III, 18A, 18B, 18C, 18D, 18E, 18F, I and 18F.II, which, read with the relevant numberification, if any, for the time being in force issued under the Central Excise Rules, 1944, involves the highest amount of duty, shall be deemed to be predominant in such yarn and accordingly such yarn shall be deemed to fall under the applicable sub-item or Item, as the case may be, IV. Non-cellulosic Wastes, all sorts. 18E. Non-cellulosic spun yam.- Spun discontinuous yarn which man-made fibres of number-cellulosic origin, other than acrylic fibre, predominate in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. Explanation. - Explanation III under sub-item III of Item No. 18 shall so far as may be, apply in relation to this Item as it applies in relation to that Item. During the year 1978-79, the appellant-Company manufacture number-cellulosic spun yarn of the following companyposition 52 Polypropylene fibre 48 Viscose fibre Since number-cellulosic fibre predominated in weight, the yarn manufactured by the appellant-company was liable to be classified under T.I.18E of the First Schedule to the Central Excises and Salt Act, 1944. The appellant- Company, however, claimed benefit of exemption from payment of the whole amount of duty of excise leviable under T.I. 18E on such yarn in view of a numberification No. 332/77 dated 1.12.1577 which is as under Notification No. 332/77 dated 1.12.1977 In exercise of the powers companyferred by sub-rule 1 of rule of the Central Excise Rules, 1944, the Central Government hereby exempts Polypropylene spun yarn falling under Item No. 18-E of the First Schedule to the Central Excises and Salt Act. 1944 1 of 1944 from the whole of the duty of excise leviable thereon. This numberification shall remain force upto inclusive of the 31st March, 1979. It is of significance that subsequently in 1988 two separate exemption numberifications were issued 147/18 and 149/80 , in respect of polypropylene and the other in respect of blended yarns. We are, however, in this case companycerned with the scope and effect of the numberification dated 1.12.1977 set out hereinabove. The companytention of the appellant which was upheld by the Collector Appeals and also the dissenting member of the Tribunal, was that the exemption granted by a numberification should be companystrued liberally. The numberification did number require that the exempted yarn must companyprise of polypropylene only. Polypropylene is the predominant fibre in the yarn manufactured by the appellant and, therefore, the blended yarn is numberhing but Polypropylene yarn. It is also known as polypropylene yarn in the trade. It has further been agreed that there is numberdispute that the yarn manufactured by the appellant fails under T.I.No. 18E. The tariff description of Item 18E, Non-cellulosic spun yarn, companyprehends Spun discontinuous yarn which man-made fibre of number-cellulosic origin, other than acrylic fibre, predominate in weight. That means polypropylene spun yarn, which is variety of number-cellulosic spun yarn, will fall under this tariff description, even if it was blended with some other type of yarn, provided that the polypropylene companyponent of the blended yarn was predominant in weight. The numberification dated 1.12.1977 exempted polypropylene spun yarn falling under Tariff Item No. 18E of the First Schedule to the Central Excises and Salt Act, 1944 from the duty of excise, which would include number only pure Polypropylene spun yarn, but also blended yarn, if the Polypropylene companyponent of the yarn was predominant in weight. It came within the mischief of Tariff Item No. 18E and was dutiable as such. The numberification had the effect of exempting from duty all types of polypropylene spun yarn which fell within the ambit of T.I. 18E. The exemption given by the numberification companyld number be restricted only to pure polypropylene spun yarn. The exemption was given to polypropylene spun yarn which means whatever polypropylene spun yarn came within the mischief of I. 18E. It was argued in support of this companytention that in the case of Collector of Central Excise v. Rajasthan Spinning Weaving Mills Ltd., 1933 1 SCC 420, it was held that Item 18 to 18-1 from one group of entries dealing with companyposite yarn of various categories. The tariff items proceeded on the assumption that there were various types of companyposite yarns which companysisted of different categories of yarns which were spun together and the entry specified that the companyposite yarn should be treated as belonging to the categories in which one relevant category predominated in weight. The entry envisaged a companyparison between the weight of the particular yarn which went into its companyposition. Explanation III to sub-item iii of Item 18 proceeded on the assumption that there should be a companyparison between the various types of yarns that had gone into the companystitution of the companyposite fabric. It was argued that there is numberdispute that the appellant-Company has manufactured a companyposite yarn in which both polypropylene and viscose yarn have been used, but the character of the yarn produced is derived from the particular type of yarn which predominates in weight. In the instant case, since polypropylene yarn companystituted 52 and viscose yarn 48 of the blended yarn, the product must be regarded as polypropylene yarn, and but for the numberification, would have been taxed as number-cellulosic yarn falling under Item 18E. We are of the view that the companytentions made on behalf of the appellant cannot be upheld in the facts of this case and in view of the working of the numberification dated 1.12.1977, This numberification exempts from duty polypropylene spun yarn falling under T.1.18E, but number blended spun yarn companytaining polypropylene. Admittedly the blended yarn manufactured by the appellant, companytaining 52 polypropylene and 48 viscose, will fall within the T.I. 18E, companying within the ambit of the tariff description Spun discontinuous yarn in which man-made fibres of number-cellulosic origin, other than the acrylic fibre, predominate in weight. But blended yarn in which polypropylene predominates in weight has number been exempted. The exemption is limited only to one type of number-cellulosic yarn out of a large variety of yarns which fall under the heading of T.I. 18E, Non- cellulosic spun yarn. The exemption is limited to polypropylene spun yarn. Polypropylene fibre blended with other types of fibre will number qualify for the exemption. If in any blended yarn Polypropylene predominates in weight, then such yarn will companye within the description of goods given in T.I. 18E, but that will number turn the blended yarn into polypropylene spun yarn, which has been exempted from duty. It has been numbered in the order of the Judicial Member of the Tribunal that numberevidence has been given to show that the blended yarn manufactured by the appellant is regarded as polypropylene spun yarn in the market. Explanation HI under sub-item III of Item No. 18, on which reliance was placed on behalf of the appellant, does number throw any light on the dispute raised in this case. This explanation only enumerates various types of fibres and deals with cases where two or more of the said fibres in any yarn are equal in weight Explanation III introduces a deeming provision to decide under which sub-items Nos. 18-III, ISA, 18B, 18C, 18D, 18E, 18F, and 18F-II in which such blended yarn will be classified for the purpose of levying duty. But that will number decide the companytroversy raised in this case. Here, we have a case where the appellant has produced a yarn in which polypropylene predominates. Because of the predominance of polypropylene, the goods produced will be classified as number-cellulosic spun yarn under I. 18E. The exemption numberification, however, is companyfined to polypropylene spun yarn only. It does number speak of any blended yarn in which polypropylene predominates or is equal in weight with any other fibre. It has been numbered in the order of the Judicial Member that numberproof was adduced to show that in companymercial parlance such blended yarn was known as polypropylene yarn. Therefore, there is numberreason to hold that the blended yarn produced by the appellant companyprising of 52 polypropylene fibre and 48 viscose fibre will answer the description polypropylene spun yarn as given in the exemption numberification. It is also of significance that subsequently in 1980 two separate numberifications were issued granting exemption from duty under T.I. 18E, one related to polypropylene yarn and the other in respect of blended yarn. Lastly, it is for the assesee to establish that the goods manufactured by him companye within the ambit of the exemption numberification. Since it is a case of exemption from duty, there is numberquestion of any liberal companystruction to extend the term and the scope of the exemption numberification. Such exemption numberification must be strictly companystrued and the assessee should bring himself squarely within the ambit of the numberification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the numberification. The appeal, therefore, fails and is dismissed.	Case appeal was rejected by the Supreme Court
1995 1 Suppl. SCR 63 The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Delay companydoned. Leave granted. Heard S Sri G.L, Sanghi, Rohinton Nariman, V.R. Reddy and Andhyarujina for the appellants and S Sri F.S. Nariman, Soli Sorabjee, B.K. Mehta for the respondents. These appeals are preferred against the judgment of the Gujarat High Court in a batch of first appeals. Two questions arise for companysideration viz., whether a tenant of a building is entitled to file and maintain an appeal against the order assessing the property tax under the provision of the Bombay Provincial Municipal Corporation Act, 1949 as applicable in the State of Gujarat and ii whether proviso aa to sub-clause ii of clause 1A of Section 2 of the said Act is valid and effective. Clause 1A defines the expression Annual Letting Value. Proviso aa says that where in respect of any building or land or premises, standard rent is number fixed under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1944 Bombay Rent Act the annual rent received by the owner in respect of such building or land or premises shall, numberwithstanding anything companytained any other law for the time being in force, be deemed to be the annual rent for which such building or land or premises might reasonably be expected to let from year to year with reference to its use. The Gujarat High Court has held on the first question that an appeal can be preferred only by the owner of the building and number by any other person including the tenant. On the second question, it has recorded its opinion on the meaning and effect of proviso aa , Tenant right to object to assessment and his rent to file appeal The companytention of the learned companynsel for the appellants-tenants is this by virtue of the agreements entered into between the appellants and their respective landlords, the obligation to discharge the property taxes has been placed exclusively upon the tenants. The landlord receives the rent exclusive of the property taxes which means that any increase enhancement of property taxes affects the tenant and tenant alone and number the landlord. The tenants, therefore, have a direct stake in determination assessment of property taxes. Even apart from the agreements between the parties, Section 10 of the Bombay Rent Act empowers the landlord to increase the rent companyrespondingly where the rates or cesses payable in respect of the said premises which includes the property taxes are enhanced. Inasmuch as the liability to pay the property taxes is cast upon the tenants both by virtue of the agreement between the parties and also by virtue of the Bombay Rent Act, the landlords are number taking any interest number are they filing companyplaints or taking other proceedings to have the property taxes companyrectly assessed. In many cases, the landlords are using the enhancement of assessment as a lever of pressure to make the tenant vacate the premises, Notwithstanding such direct interest of the tenant in the matter of determination assessment of property taxes, the High Court has held that they have numberright to file an appeal against the assessment of property taxes. This is causing grave prejudice to the tenants. They are being punished by uncalled for increases in property taxes while at the same time depriving them of the right to appeal and to question the enhancement. The scheme and provisions of the Municipal Corporations Act do enable the tenant to question the assessment or the enhancement in assessment, as the case may be, in respect of the premises occupied by him and also to file appeal and take other proceedings in that behalf. On the other hand, it is submitted by the learned companynsel for the companyporation that the Act makes the owner of the premises alone primarily liable for property taxes and it is that person alone who is entitled to file a companyplaint or appeal in case he feels aggrieved by the assessment or enhancement of the assessment. The Act does number companyfer any such right upon the tenant number does it recognise any such right of the tenant impliedly. The learned companynsel support the reasoning and companyclusion of the Gujarat High Court in this behalf. For a proper appreciation of this question, it is necessary to numberice the relevant provisions of the Bombay Municipal Corporations Act as well as the Bombay Rent Act. Section 127 of the Municipal Corporation Act obliges the companyporation to impose the taxes specified in sub-section 1 . The first and the foremost tax mentioned in the sub-section is a property taxes. Section 139 specifies the person who shall be primarily liable for property taxes assessed upon any premises. Section 139 reads as follows 139. 1 Subject to the provisions of sub-section 2 property taxes assessed upon any premises shall be primarily leviable as follows, namely a if the premises are held immediately from the Government or from the Corporation, from the actual occupier thereof Provided that property taxes due in respect of buildings vesting in the Government and occupied by servants of the Government or other person on payment of rent shall be leviable primarily from the Government b if the premises are number so held -- from the lessor if the premises are let from the superior lessor if the premises are sub-let from the person in whom the right to let the premises vests if they are unlet. If any land has been let for any term exceeding one year to a tenant and such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable from the said tenant or any person deriving title from the said tenant by the operation of law or by assignment or transfer but number by sub- lease or the legal representative of the said tenant or person whether the premises be in the occupation of the said tenant or person or legal representative or a sub-tenant Provided that where the building so erected on the land is of a temporary nature or is unauthorised the property taxes upon the land and building shall be primarily leviable from the person in whom the right to let the land vests. Insofar as it relevant for our purposes, sub-section 1 says that where the premises are let, the property taxes in respect of that premises shall be primarily leviable upon the lessor. Sub-section 2 , however, clarifies that where any land has been let for a term exceeding one year to a tenant and such tenant has build upon the land, the property taxes upon such land and building shall be primarily leviable from such tenant. The proviso to sub-section 2 says that if the companystruction made is of a temporary nature or is unauthorised, the primary liability companytinues to remain with the lessor. Section 140 provides the situations in which occupiers of premises are made liable for paying property taxes. Having regard to the companytentions urged before us, it would be appropriate to quote the section in full 140. 1 If the sum due on account of any property tax remains unpaid after a bill for the same has been duly served under the rules upon the person primarily liable for the payment thereof and the said person be number the occupier for the time being of the premises in respect of which the tax is due, the Commissioner may serve a bill for the amount upon the occupier of the said premises, or, if there are two more occupiers thereof, may serve a bill upon each of them for such portion of the sum due as bears to the whole amount due the same ratio which the rent paid by such occupier bears to the aggregate amount of rent paid by them both or all in respect of the said premises. If the occupier or any of the occupiers fails within thirty days from the service of any such bill to pay the amount therein claimed, the said amount may be recovered from him in accordance with the rules. No arrear of a property tax shall be recovered from any occupier under this section which has remained due for more than one year, or which is due on account of any period for which the occupier was number in occupation of the premises on which the tax is assessed. If any sum is paid by, or recovered from, an occupier under this section, he shall be entitled to credit therefore in account with the person primarily liable for the payment of the same. Sub-section 1 says that a where the property tax due in respect of a premises remains unpaid in spite of service of a bill upon the person primarily liable therefore and b if such person is number the occupier of the premises for the time being, c the Commissioner may serve a bill for the amount upon the occupier of the premises and d if the premises is occupied by more than one occupier, the bill shall be served upon each of the occupiers specifying the amount proportionate to the rent he pays to the total rent payable in respect of the said premises. Sub-section 2 says that if the occupier fails to pay the sum mentioned in the bill within thirty days of its service, such amount can be recovered from him in accordance with the rules. Sub-section 3 , however, clarifies that i numberarrear of a property tax shall be recovered from any occupier under Section 140 which has remained due more than one year and ii numbertenant shall be called upon to pay taxes in respect of period he was number occupying the premises. Sub-section 4 companyfers upon the tenant a right to recover the amount paid by him under Section 140 from out of the rent payable by him to his lessor, It is obvious that the right given to the companyporation by Section 140 to recover the taxes from the occupier other than the person primarily liable does number mean that the companyporations right to recover it from the person primarily liable for such taxes is in any way affected. The right to proceed against the occupier is an additional right given to companyporation. Section 141 declares that property due under the Act shall be the first charge upon the premises subject to the priority of land revenue due, if any, thereon. It farther declares that the charge created by it shall also extend to movable properties found within or upon such premises and belonging to the person liable for such taxes - which may mean movables of the tenant of the premises in the manner and to the extent specified in Section 140. Section 406 provides for appeals against fixation of any rateable value or taxes. The section does number specify the person who is entitled to file the appeal. It only says that appeals against rateable value or tax fixed or charged under the Act shall be heard and determined by a Judge - which means in the city of Ahmedabad, the Chief Judge of the Court of Small Causes or such other Judge of the Court as the Chief Judge may appoint in that behalf. vide clause 29 of Section 2. Sub-section 2 provides the companyditions subject to which the appeals shall be entertained. It is appropriate to quote the section in full 406. 1 Subject to the provisions hereinafter companytained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Judge. No such appeal shall be entertained unless -- a it is brought within fifteen days after the accrual of the cause of companyplaint b in the case of an appeal against a rateable value a companyplaint has previously been made to the Commissioner as provided under this Act and such companyplaint has been disposed of c in the case of an appeal against any tax in respect of which provision exists under this Act for a companyplaint to be made to the Commissioner against the demand, such companyplaint has previously been made and disposed of d in the case of an appeal against any amendment made in the assessment book for property taxes during the official year, a companyplaint has been made by the person aggrieved within fifteen days after he first received numberice of such amendment and his Complaint has been disposed of e in the case of an appeal against a tax, or in the case of an appeal made against a rateable value, the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, up to the date of filing the appeal, has been deposited by the appellant with the Commissioner Provided that where in any particular case the judge is of the opinion that the deposit of the amount by the appellant will cause undue hardship to him the judge may in his discretion, either unconditionally or subject to such companyditions as he may think fit to impose, dispense with a part of the amount deposited so how-ever that the part of the amount so dispensed with shall number exceed twenty five percent of the amount deposited or required to be deposited. According to sub-section 2 , the appeal must he preferred within fifteen days after the accrual of the cause of companyplaint. The expression cause of companyplaint is defined in Section 407, which reads as follows For the purposes of section 406, cause of companyplaint shall be deemed to have accrued as follows, namely a in the case of an appeal against a rateable value, on the day when the companyplaint made to the Commissioner against such value is disposed of b in the case of an appeal against any tax referred to in a clause c of sub-section 2 of the said section on the day when the companyplaint against the tax is disposed of by the Commissioner c in the case of an appeal against any amendment made in the assessment book for property taxes during the official year, on the day when the companyplaint made to the Commissioner by the person aggrieved against such amendment is disposed of d in the case of an appeal against a tax number companyered by clause b above on the day when payment thereof is demanded or when a bill therefore is served. According to clauses a , b and c of Section 407, the cause of companyplaint arises when the companyplaint against the assessment enhancement/ determination is disposed of by the Commissioner. Chapter-VIII in Schedule-A to the Act sets out the Taxation Rules. It is necessary to numberice a few relevant rules in this chapter. Rule 7 prescribes the manner in which rateable value shall be determined. Rue 8 empowers the Commissioner to call for information or return from the owner or occupier of the building, land or premises as also to enter and inspect the premises for the purpose of enabling him to determine its rateable value. Rule 12 2 says that if the person in occupation of the premises refuses to give true information necessary for determining the person primarily liable for the payment of property taxes, such person shall him self be liable until such information is obtained for all property taxes leviable on the premises of which he is in occupation. Rule 14 says that the assessment book shall be open to inspection by a person who claims to be either the owner or occupier of the companycerned premises. Sub-rule 1 of Rule 15 says that where the assessment books are prepared in the manner prescribed in the rules, the Commissioner shall give a public numberice specifying a day which is number less than fifteen days from the date of publication of such numberice within which companyplaints against the amount of any rateable value entered in the assessment book will be received in his office. Sub-rule 2 , upon which strong reliance has been placed by the learned companynsel for the appellants, provides that where any premises is entered in the assessment book for the first time or where the rateable value of any premises is increased, the Commissioner shall, as soon as companyveniently may be after the issue of the public numberice under sub-rule 1 give a special written numberice to the owner or occupier of the said premises specifying the nature of such entry and informing him that any companyplaint against the same will be received in his office at any time within fifteen days from the service of the special numberice. Rule 20 says that upon the representation of any person companycerned or on the basis of any other information received by him during the official year, the Commissioner may amend the entries in the assessment book. Such amendment may relate to the matters specified in the said sub- rule which include increase or reduction in the rateable value. Section 10 of the Bombay Rent Act provides the situation in which the landlord is entitled to enhance the rent. Section 10 reads 10, Increase in rent on account of payment of rates etc, excepted- Where a landlord is required to pay to a local authority in respect of any premises any rate, cess or tax imposed or levied for the purposes of such authority he shall be entitled to make an increase in the rent of the premises by an amount number exceeding the increase paid by him by way of such rate, cess or tax over the amount paid in the period of assessment which included the date of the companying into operation of this Act or the date on which the premises were first let, whichever is later and such increase in rent shall number be deemed to be an increase for the purposes of section 7. According to this section, where there has been an increase in the rate, cess or tax imposed upon a premise after the premise has been let to the tenant, the landlord shall be entitled to enhance the rent companyrespondingly. Indeed, clause 7 of Section 5 defines the expression permitted increase. It means, an increase in rent permitted under the provisions of this Act and Section 1.0 is one such provision. A resume of the above provisions discloses he rights as well as the obligations of the tenants of the premises. Section 10 of the Bombay Rent Act empowered the landlord to pass on the burden of increase in property taxes to the tenant. Having regard to the numbermal companyrse of human companyduct, we must presume that every landlord will invariably pass on the burden of enhancement to the tenant. Section 140 of the Municipal Corporations Act makes him liable to pay the property taxes in case the landlord fails to pay the same. No doubt, this liability is a limited one as explained above and he is also entitled to be reimbursed by the landlord in that behalf, even so it is a liability cast upon him by law. Certain rights arc also companyferred upon the Rules aforementioned. Coupled with this is the fact that neither Rules 12 to 20 number Section 406 companytain any words indicating that the landlord alone can file the companyplaint and appeal. In such circumstances, it would number be just and equitable to deny to the tenant the right of appeal and the right to file the companyplaint. We are inclined to hold that in the scheme of the Municipal Corporations Act read with Section 10 of the Bombay Rent Act, the tenant does possess the requisite locus standi to file a companyplaint pursuant to public numberice issued under Rule 35 1 or pursuant to special written numberice issued under Rule 15 2 as well as the right to file an appeal under Section 406. This should be more so, if there is an agreement between the landlord and tenant whereunder the obligation to discharge and pay the property taxes in cast upon the tenant. IE is true that this is a private arrangement between the parties and cannot form the basis of a legal right but it is certainly an additional factor companyferring the requisite locus standi upon the tenant. Even where the Bombay Rent Act is number applicable to a particular building, the existence and proof of such an agreement would enable the tenant to claim the requisite locus standi. Holding otherwise would be grossly unjust to the tenant. While he made liable, statutorily or by private treaty, for the enhancement in the property taxes, he is number being allowed to question the same. It is true, as companytended by the learned companynsel for the companyporation, that numberprudent owner of a building will allow the assessment to be enhanced unreasonably just to spite the tenant, it cannot at the same time be said that the tenant has numberright to file an appeal against the assessment or enhancement, as the case may be, when he is a person directly affected by such assessment enhancement. There is yet another circumstance any person proposing to file an appeal under Section 406 has to deposit the disputed tax as companytemplated by Section 406 2 e as a companydition for entertaining the appeal since the landlord can pass on the on the enhanced burden to the tenant according to the Bombay Rent Act and also where there is a stipulation between him and the tenant whereunder the liability to pay the property taxes is exclusively placed upon the tenant, the landlord would number be minded to make the trouble of filing the appeal since he would be obliged to deposit the disputed tax he may think - and probably legitimately - why should he deposit the disputed tax and file the appeal when the burden of the said tax is number falling upon him. This is also a relevant circumstance in favour of reading a right to object and appeal in the tenant. At the same time, it cannot be predicated that the special numberice companytemplated by Rule 15 2 has necessarily to be served upon the tenant. No such right can be claimed by the tenant number such an obligation be cast upon the companyporation. The tenant has to be vigilant. There will be a public numberice under Rule 15 1 wherever an enhancement is proposed. Even the special numberice under Rule 15 2 may, in the numbermal companyrse, be served upon him because he is in occupation of the premises but that may or may number happen. In a given case, the landlord may be residing in a portion of the same building there may be more than one tenant b the building and so on. Even if the special numberice is number served upon him, he has to file the companyplaint within time prescribed by the numberices and the Rules. He is equally bound to observe the companyditions prescribed in sub-section 2 of Section 406 while filing an appeal. Inter alia, he is number only obliged in file the appeal within the prescribed period of limitation but also to make the deposit as companytemplated by clause e of sub-section 2 of Section 406, subject, of companyrse, to the proviso to the said clause. For all the above reasons, we find ourselves unable to agree with the High Court that the tenant cannot file an appeal and that it is only the owner landlord of the premises who can file an appeal under Section 406 of the Act. The High Court has proceeded on the footing that since the owner of the premises is primarily liable for the property taxes and also because the Act does number specifically companyfer upon the tenant the right to object and file an appeal, the tenant has numbersuch right. But, as explained hereinabove, the tenant is a directly affected party and it would number be just or equitable to deny him such a right unless the statute says so specifically. We have pointed out supra that it does number create any such bar even by implication. Nor is the right to file an appeal companyditioned upon the filing of a companyplaint by the tenant. In other words, it cannot be said that since the tenant has to filed the companyplaint in a given case, he has numberright to file the appeal. The right to appeal is governed by Sections 406 and 407, Section 407 speaks of disposal of companyplaint it does number say that the companyplaint must have been filed by the person proposing to file the appeal. It may be numbericed that the right of appeal companyferred by Section 406 is more akin to the right of appeal provided by Section 96 of the Code of Civil Procedure. It provides a right of appeal but does number say who can file the appeal. It means that any person who is affected by or who can be said to be aggrieved with the order is entitled to maintain an appeal so long as he companyplies with the companyditions attaching the said appeal. Where the tenant lodges a companyplaint, he can directly file an appeal under Section 406 but where he himself has number filed a companyplaint, he has to file the appeal with the leave of the appellate companyrt. We do, however, recognised that the above holding gives rise to certain practical difficulties. We may elaborate. Where there is one tenant For one premises, numberdifficulty will arise in applying the above principle. By one premises, we mean a unit for the purpose of assessment of property taxes. But there may be cases where there is more than on tenant in one premises. There may indeed be cases where one premises is occupied by a large number of tenants in small portions. If only one or some of such tenants file an appeal, the decision obtained by them would numberdoubt apply to all but before the appeal can be filed, the tenants will have to deposit the disputed tax as companytemplated by Section 406 e . In other words, the tenant or tenants filing the appeal would number only have to deposit the disputed tax proportionate to the premises occupied by them but the disputed tax with respect to the whole of the premises. This may be a little hard but looking to the schemes of the Act it is number possible for us to say that such tenant or tenants would be entitled to say that they would deposit the disputed tax proportionate to the portions occupied by them only or file an appeal only in respect of the portion of the property occupied by him. No such splitting can be thought of or permitted. Such difficulties, we must say, cannot include us to hold that the tenant has numberright to prefer a companyplaint or to prefer an appeal. The circumstances mentioned in the preceding paragraphs are strongly suggestive of such a right in the tenant. The meaning and effect of proviso act to clause 1A in Section 2 Proviso aa to sub-clause ii in clause 1A of Section 2 of the Municipal Corporations Act provides that in cases where standard rent is number fixed under Section 11 of the Bombay Rent Act in respect of a building, land or premises, the actual rent received by the landlord shall be deemed to be the annual rent for which such building etc. might reasonably be expected to let from year to year with reference to its use within the meaning of and as companytemplated by sub-clause ii in Clause 1A . The companytention of the learned companynsel for the appellants is that even where the standard rent is number fixed, it must be presumed that the annual rent for such buildings or lands or premises might reasonably be expected to let from year to year with reference to its use is the standard rent alone and number the actual rent received. The companytention is that the companyporation is number entitled to look to the actual rent received and that it is entitled to look only to standard rent because the landlord is number entitled in law to receive anything more than the standard rent. It is submitted that even where the standard rent is number fixed, an effort must be made by the assessing authorities to ascertain the standard rent in accordance with the provisions of the Bombay Rent Act and then adopt it as the annual rent for which such building, land or premises might reasonable be expected to let from year to year with reference to its use for the purposes of determining Annual Letting Value. Indeed, the validity of proviso aa is also questioned See the ground A in the grounds of appeal in Civil Appeal No. 5405 of 1995 arising out of S.L.P. C No. 21538 of 1994 filed by the Central Bank of India though number urged before us. Strong reliance is placed upon the decisions of this Court in Corporation of Calcutta v. Smt. Padma Debi, 1962 3 S.C.R. 49, Corporation of Calcutta v. Life Insurance Corporation of India, 1971 1 S.C.R. 248, Guntur Municipal Council v. Guntur Town Rate Payers Association etc,, 1971 2 S.C.R. 423, Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee Anr., 1980 2 C.R. 607 and the more recent decision in Morvi Municipality v. State of Gujarat Ors., 1993 2 S.C.C. 521. On the other hand, the companytention of the learned companynsel for the companyporation is that the decisions relied upon by the appellants companynsel have numberapplication and are clearly distinguishable on account of the number-obstante clause in proviso aa companycerned herein. It is submitted that the words numberwithstanding anything companytained in any other law for the time being in force found in proviso aa were number to be found in the enactments dealt with in the aforesaid decisions. They rely upon the decision of this Court in Municipal Corporation Indore Ors. v. Smt. Ratna Prabha Ors., 1977 1 S.C.R. 1017 rendered with reference to Madhya Pradesh Municipal Corporation Act, 1956 and Madhya Pradesh Accommodation Control Act, 1961 - and reaffirmed recently in Indian Oil Corporation Ltd. v. Municipal Corporation Ors., 1995 3 J.T. 626, rendered by J. S. Verma, J. and one of us Sujata v. Manohar, J. - where a similar number-obstante clause occurred in Section 138 b of the Municipal Corporations Act and on which basis the decisions aforesaid were distinguished. For a proper appreciation of this companytention, it is necessary to refer to a few provisions of the Municipal Corporations Act and the Bombay Rent Act. Section 129 c provides that a general tax of number less than twelve percent but number more than thirty percent of the rateable value of the building lands may be levied if the companyporation so determines a on a graduated scale. The expression rateable value is defined in clause 54 of Section 2 to mean, the value of any building or land fixed whether with reference to any given premises or otherwise in accordance with the provisions of this Act and the rules for the purpose of assessment to property taxes. Rule 7 of the Taxation Rules framed under the Act prescribes the manner in which rateable value is to be determined. Rule 7 3 says that in order to fix the rateable value of any building, land or premises, there shall be deduction from the amount of the Annual letting value of such building a sum equal to ten percent of the Annual Letting Value and the said deduction shall be in lieu of all allowances for repairs or on any other account whatsoever. It is in this manner that the definition of Annual Letting Value assumes importance. The said definition, as already stated, occurs in clause 1A in Section 2. Sub- clause i of the definition says that for the period prior to 1st April, 1970, Annual Letting Value shall mean the rent at which the premises can be reasonably be expected to be let if the Bombay Rent Act were number in force. We are number companycerned with this sub-clause. Sub-clause ii , which is relevant for our purposes, says that in relation to any other period, Annual Letting Value shall mean the annual rent for which any building or land or premises, exclusive of furniture or machinery companytained or situate therein or thereon, might reasonably be expected to let from year to year with reference to its use and shall include all payments made or agreed to be made to the owners by a person other than the owner occupying the building or land or premises on account of occupation, taxes, insurance or other charges incidental thereto. The proviso appended to sub-clause ii is of crucial relevance herein and must, therefore, be set out in full a I n respect of any building or land or premises the standard real of which has been fixed under section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the annual Rent thereof shall number exceed the annual amount of the standard rent so fixed aa in respect of any building or land or premises, the standard rent of which is number fixed under section 11 of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947, the annual rent received by the owner in respect of such building or land or premises shall, numberwithstanding anything companytained in any other law for the time being in force , be deemed to be the annual rent for which such building or land or premises might reasonably be expected to let from year to year with reference to its use aaa clause aa shall number apply to a case where the annual rent received by the owner in respect of such building or the owner in respect of such building or land or premises is in the opinion of the Commissioner less than the annual rent for which such building or land or premises might numberwithstanding anything companytained in any other law for the time being in force, reasonably be expected to let from year to year with reference to its use b in the case of any land of a class number ordinarily let the annual rent of which cannot in the opinion of the Commissioner be easily estimated, the annual rent shall be deemed to be six per cent of the estimated market value of the land at the time of assessment c in the case of any building of a class number ordinarily let, or in the case of any industrial or other premises of a class number ordinarily let, or in the case of a class of such premises the building or buildings in which are number ordinarily let, if the annual rent thereof cannot in the opinion of the Commissioner be easily estimated, the annual rent shall be deemed to be six per cent of the total of the estimated market value, at the time of the assessment, of the land on which such building or buildings stand or, as the case may be, of the land which is companyprised in such premises, and the estimated companyt, at the time of the assessment, of erecting the building or, as the case may be, the building or buildings companyprised in such premises Now let us see what does each limb of the proviso say. Proviso a says that where the standard rent has been fixed under Section 11 of the Bombay Rent Act in respect of any building or land, the annual rent of such building land shall number exceed the annual amount of the standard rent so fixed. Proviso aa says that where standard rent has number been fixed under Section 11 of the Bombay Rent Act in respect of any building, land or premises, the annual rent received by the owner in respect of such building etc. shall, numberwithstanding anything companytained in any other law for the time being in force, be deemed to be the annual rent for which such building etc. might reasonably be expected to be let from year to year with reference to its use, within the meaning of sub-clause ii . Proviso aaa is in the nature of a proviso to proviso aa . Where the Commissioner is of the opinion that the annual rent received by the owner is less than the reasonably expected rent, he can ignore the actual rent received. It is evident that proviso aaa is companyfined only to cases where the Commissioner is satisfied that the actual rent received, or said to have been received, by the owner is number genuine. Proviso b says that where the annual rent of any land cannot easily be estimated, the annual rent shall be deemed to be six percent of the estimated market value of such land at the time of assessment. Proviso c companytains a similar provision with respect to buildings. A few relevant provisions of the Bombay Rent Act may also be numbered here. The expression standard rent is defined in clause 10 of Section 5 in the following words Standard rent in relation to any premises means - - a where the standard rent is fixed by the Court and the Controller respectively under the Bombay Rent Restriction Act, 1939, Bom. XVI of 1939 or the Bombay Rents, Hotel Rates and Lodging House Rates Control Act, 1944, Bom. VII of 1944 , such standard rent or b where the standard rent is number so fixed, subject to the provisions of section 11, the rent at which the premises were let on the first day of September, 1940, or where they were number let on the first day of September, 1940, the rent at which they were last let before that day, or where they were first let after the first day of September, 1940, the rent at which they were first let, or in any of the cases specified in section 11, the rent fixed by the Court. Section 7 makes it illegal for any person to demand or received rent in excess of the standard rent. Section 11 provides for fixation of standard rent and specification of permitted increase in the situations specified therein. Section 18 makes it punishable for the landlord to receive anything above the standard rent or permitted increases while Section 20 enables the tenant to recover the amount payable by him in excess of the amounts permitted by the Act. It is true that the Bombay Rent Act defines what standard rent is, provides for fixation of standard rent by the Court and further provides that numberlandlord shall claim or receive any amount over and above the standard rent, making the same punishable with imprisonment and fine. Yet, the fact remains that Municipal Corporations Act says expressly that number with standing anything companytained in any other law for the time being in force, the annual rent received - which means the actual rent received -in respect of buildings etc. for which standard rent is number fixed under Section 11 of the Bombay Rent Act shall be deemed to be the annual rent for which such building etc. might reasonably be expected to let from year to year with reference to its use. The validity of proviso aa , though raised in the grounds of appeal in the special leave petition, has number been urged before us, probably advisedly. Being a taxing enactment and also because the proviso does number more than to treat the actual rent received as the annual rent, the reasonableness of the said provisions can hardly be questioned. Be that as it may, we see numberreason why the express language and companymand of proviso aa is number respected. Both the enactments, viz, Bombay Rent Act and Bombay Provincial Municipal Corporations Act are stated enactments. Indeed, the Municipal Corporations Act is a later enactment. In view of the express provision in proviso aa , it must be held that for the purpose of the Municipal Corporations Act, the actual rent received is a annual rent for the purposes of determining the annual letting value. The companynsel for the appellants say that it cannot be. They say that one State enactment cannot be read so as to defeat and nullify the provisions of another State enactment. The submission is that both must be read harmoniously. The said argument, in our opinion, would have been perfectly justified if the number-obstante clause were number there in proviso aa . In its presence, acceptance of the said argument means that we ignore the number- obstante clause is proviso aa altogether. Such a companyrse is number permissible to us. The companyrt cannot treat any provisions in an enactment as superfluous much less can it ignore its existence. The learned companynsel, however, rely upon certain decisions in support of their submissions to which a brief reference would number be in order. The decision in Padma Debi companycerned a building within the limits of Calcutta companyporation. Section 127 a of the Calcutta Municipal Act, 1923 provided that the annual value of land and the annual value of any building erected for letting purposes or ordinarily let, shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year, less, The building was governed by the West Bengal Premises Rent companytrol Temporary Provisions Act, 1950. On a companysideration of the definition of annual value and the provisions of the aforesaid Rent Control Act, a four-Judge Bench, speaking through Subba Rao, J., held A companybined reading of the said provisions leaves numberroom for doubt that a companytract for a rent at the rate higher than the standard rent is number only number enforceable but also that the landlord would be companymitting an offence if he companylected a rent above the rate of the standard rent. One may legitimately says under those circumstances that a landlord cannot reasonably be expected to let a building for a rent higher than the standard rent. A law of the land with its penal companysequences cannot be ignored in ascertaining the reasonable expectations of a landlord in the matter of rent. In this view, the law of the land must necessarily be taken as one of the circumstances obtaining in the open market placing an upper limit on the rate of rent for which a building can reasonably be expected to let. It is said that S.127 a does number companytemplate the actual rent received by a landlord but a hypothetical rent which he can reasonably be expected to receive if the building is let. So stated the proposition is unexceptionable. Hypothetical rent may be described as a rent which a landlord may reasonably be expected to get in the open market. But an open market cannot include a black market, a term euphemistically used to companymercial transactions entered into between parties in defiance of law. In that situation, a statutory limitation of rent circumstances the scope of the bargain in the market. In numbercircumstances, the hypothetical rent can exceed that limit. According, it was held that the rental value of the building cannot be fixed higher than the standard rent under the Rent Control Act. This decision was followed in Life Insurance Corporation of India and Guntur Municipal Council. In the latter decision, it was clarified it may be that where the companytroller has number fixed fair rent, the municipal authorities will have to arrive at their own figure of fair rent but that can be done without any difficulty by keeping in view the principles laid down in section 4 of the Act Rent Control Act for determination of fair rent. In Ratna Prabha, a three Judge Bench was companyfronted with the above decisions in he the companytext of Madhya Pradesh Municipal Corporation Act, 1956 and Madhya Pradesh Accommodation Control Act, 1961. The definition of annual value in Section 138 b of the Municipal Corporation Act read as follows b the annual value of any building shall numberwithstanding anything companytained in any other law for the time being in force deemed to be the gross annual rent at which such building, together with its be let for use or enjoyment therewith might reasonably at the time of assessment be expected to be let from year to year, less an allowance of ten per cent for the companyt of repairs and for all other expenses necessary to maintain the building in a state to companymand such gross annual rent. Section 7 of the M.P. Accommodation Control Act provides for fixation of standard rent. Section 5 bars recovery of any rent over and above the standard rent. Section 6 says numberpersons shall claim or receive any rent in excess of the standard rent while Section 43 makes receipt of any rent in excess of the standard rent as specified in clause 1 of Section 7 or as fixed by the Rent Controlling Authority under Section 10 punishable with imprisonment and or fine. In view of the said provisions and on the basis of the decisions aforementioned, it was urged by the respondent-house-owner that the annual value within the meaning of Section 138 b cannot and shall number exceed the standard rent as companytemplated by the Accommodation Control Act. This argument was rejected with reference to the number-obstante clause companytained in Section 138 b . It is held It appears to us that it would be a proper interpretation of the provisions of clause b of section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is numberhing to show that that there has been fraud or companylusion, that would be its reasonable letting value, but were this is number so, and the building has never been let out and is being used in a manner where the question of Fixing its standard rent does number arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the number-obstante clause in clause b , with due regard to its other provision that the letting value should be reasonable. The decisions in Padma Debi, Life Insurance Corporation of India and Guntur Municipal Council were distinguished on the ground that the municipal enactments companycerned therein did number companytain a number-obstante clause like the one companytained in Section 138 b of the M.P. Act and that the said number- obstante clause makes all the difference. Dewan Daulat Rai Kapoor arose under the Punjab Municipal Act, 1911 as applicable to Delhi and the Delhi Rent Control Act, 1958. A three-Judge Bench, speaking through P.N. Bhagwati, J., companysidered the aforesaid decisions and followed the ratio in Padma Debi, Life Insurance Corporation of India and Guntur Municipal Council in view of the fact that the definition of annual value in Section 3 l b of the Punjab Municipal Act, 1911 was similar to those in the enactments companysidered in the above decisions it did number companytain a number-obstante clause as the one companytained in P. Accommodation Control Act. When the decision in Ratna Prabha was cited, Bhagwati, J. distinguished by it saying that it is based wholly and exclusively upon the number-obstante clause found in the Madhya Pradesh Act and was, therefore, distinguishable. Having so said, the Bench expressed the following opinions as well We are number at all sure whether this decision represents the companyrect interpretation of Section 138 b because it is rather difficult to see how the number obstante clause in that section can possibly affect the interpretation of the words annual value of any building shallbe deemed to be the gross annual rent at which such buildingmight reasonablybe expected to be let from year to year. The meaning of these words cannot be different in Section 138 b than what it is in Section 127 a of the Calcutta Municipal Corporation Act, 1923 and Section 82 2 of the Madras District Municipality Act, 1920 and the only effect of the number-obstante clause would be that even if there is anything companytrary in any other law for the time being in force, that should number detract from full effect being given to these words according to their proper meaning. The learned Judge added further, B ut it is number necessary for the purposes of the present appeals to probe further into the question of companyrectness of this decision, since there is numbernon-obstante clause either in Section 3 1 b of the Punjab Municipal Act, 1911 or in Section 116 of the Delhi Municipal Corporation Act, 1957 and this decision has, therefore, numberapplication. We may mentioned that both Dewan Daulat Rai Kapoor and Ratna Prabha were decided by Benches of three learned Judges. In Morvi Municipality, this Court was companycerned with a building governed by the Gujarat Municipalities Act, 1963 and the Bombay Rent Act. The Bench followed and applied the ratio of the decisions in Padma Devi Life insurance Corporation of India and Dewan Daulat Rai Kapoor, and distinguished the decision in Ratna Prabha on the same basis as explained in Dewan Daulat Rai Kapoor, viz., the presence of number-obstante clause in the Madhya Pradesh Municipal Corporation Act and the absence of such a number- obstante clause in Section 2 1 of the Gujarat Municipalities Act, which defines the expression Annual Letting Value. Though the Bench in Dewan Daulat Rai Kapoor expressed a doubt as to the companyrectness of the ratio in Ratna Prabha, we are unable to say that on that account the binding nature and effect of Ratna Prabha is whittled down in any manner. The basis on which the said doubt was expressed has also number been clearly - and in our respectful opinion, satisfactorily - articulated. We may mention that a similar view has been expressed by this Court in Indian Oil Corporation Ltd. Supra where it is observed In Dewan Daulat Rai supra , another 3- Judge Bench of this Court while companystruing a similar provision in the Punjab Municipal Act, 1911 referred to the decision in Ratna Prabha supra and distinguished it on the ground that there was numbernon-obstante clause in the relevant provision of the Punjab Municipal Act and, therefore, the decision in Ratna Prabha supra had numberapplication. No doubt, in doing so, a reservation was expressed about the view taken in Rama Prabha supra on the basis of the existence of the number-obstante clause in Section 138 b of the M.P. Act but that cannot have the effect of overruling the decision of this Court in Ratna Prabha supra inasmuch as a later companyequal Bench companyld number overrule it and companyld only refer it for reconsideration to a larger Bench, which it did number do. Indeed, a plea to reconsider the companyrectness of the ratio in Ratna Prabha was rejected in the following words The other submission of the learned Additional Solicitor General is a plea for reconsideration of the decision of this Court in Ratna Prabha, 1977 1 SCR 1017, which can arise only in this Court and was number available in the High Court. The decision in Ratna Prabha supra , the only direct decision of this Court on the companystruction of Section 138 b of the M.P. Act has held the field for a long time and has formed the basis of assessment of the annual value in the State of Madhya Pradesh since then. That decision is based on the presence of the number-obstante clause in the M.P. Act and distinguishes the earlier larger Bench decision in Padma Debi supra on the ground. There can be numberdoubt the view taken by this Court in Ratna Prabha supra is a reasonably permissible companystruction of Section 138 b of the M.P. Act. In the later decisions of this Courts, Ratna Prabha supra was invariably distinguished and number referred for reconsideration by a larger Bench. There is thus numberground number for reconsideration of the decision in Ratna Prabha supra . In this companytext, was may refer to the following observations of a three Judge Bench of which one of us B.P. Jeevan Reddy, J. was a member in Srikant Kashinath Jituri Ors. v. Corporation of the City of Belgaum, 1994 6 J,T, 496 . It was observed Before parting with this appeal, we feel companypelled to express our doubts as to the soundness and companytinuing relevance of the view taken by this Court in several earlier decisions that the property tax mast be determined on the basis of fair rent alone regardless of the actual rent received. Fair rent very often means the rent prevailing prior to 1950 with some minor modifications and additions. Property tax is the main source of revenue to the municipalities and municipal companyporations. To companypel these local bodies to levy and companylect the property tax on the basis of fair rent alone, while asking them at the same time to perform all their obligatory and discretionary functions prescribed by the statute may be to ask for the impossible. The companyt of maintaining, and laying roads, drains and other amenities, the salaries of staff and wages of employees - in short, all types of expenditure has gone up steeply over the last more than forty years. in such a situation, insistence upon levy of property tax on the basis of fair rent alone-disregarding the actual rent received - is neither justified number practicable. None of the enactments says so expressly. The said principle has been evolved by Courts by a process of interpretation. Probably a time has companye when the said principle may have to be reviewed. In this case, however, this question does number arise at this stage and, therefore, it is number necessary to express a final opinion on the said issued. These observations emphasise the impracticality of the proposition that though the landlord may actually receive Rupees ten thousand per month as rent, the property tax in respect of the building can be levied only on the basis of say, Rupees five hundred, because that would be the fair rent standard rent according to the relevant Rent Control Law, number- withstanding the fact that numbersuch fair rent standard rent had actually been fixed. Be that as it may, so far as the present case is companycerned, the relevant provisions are clear. Where the standard rent is number fixed, the actual rent received shall be deemed to be the annual rent in which the property might reasonably be expected to be let, number with standing anything companytained in any other law. The number-obstante clause prevents the application of the Bombay Rent Act to cases falling under proviso aa for determining the rent at which the property might reasonably be expected to be let. The provisions companycerned herein are akin to the provisions companysidered in Ratna Prabha and number with the provisions companycerned in the decision relied upon by the appellants. In this view of the matter, the ratio of Ratna Prabha must be held to be applicable here rather than the ratio of the decision in Padma Debi et al. It is then pointed out that Ratna Prabha was companycerned with a case where the owner herself was occupying the building and number with a building which was let out. The said fact, in our opinion, does number make any difference in principle. In truth, it goes against the companytention of the appellants companynsel inasmuch as if the reasonable rent has to be ascertained without reference to the relevant Rent companytrol enactment with respect to a building occupied by the owner herself, it should be all the more so in the case of a building let out. In the case of a building let out, the actual rent should be deemed to be the reasonable rent. No further enquiry would be necessary. This is the clear purport of proviso aa , which of companyrse applies only to cases where the building is let out. Accordingly, we hold that proviso aa means what it says and has to be applied and followed in the cases companyered by it. So far as the Municipal Corporations Act is companycerned, the annual rent is the actual rent received where the standard rent is number Fixed under Section 11 of the Bombay Rent Act and it companystitutes the basis for determining the annual letting value, rateable value and property taxes. The is the plain effect and meaning of proviso aa . So far proviso aaa is companycerned, an apprehension was expressed that it would enable the Commissioner to question the actual rent received in every case and it would be an endless enquiry. In our opinion, however, the said provision is companyceived to meet situations where the rent put forward as the actual rent received is number a genuine plea, i.e., where it is a false plea. A landlord may let out a building at less than market rent for many a reason, e.g., the tenant is a close friend or a close relative or because the tenant is a charitable or religious organisation. Proviso aaa does number enable the Commissioner to ignore such situations for, in such cases, the rent actually received is the genuinely stipulated one. This power is reserved to the Commissioner only with a view to ensure that by merely putting forward a figure which is number true, persons do number escape the companyrect levy. We must deal with one another companytention urged by Sri Rohinton Nariman. He submitted that the special numberice issued in his case under Rule 15 2 of Chapter - VIII of Schedule - A is totally devoid of any particulars or grounds upon which the assessment was sought to be enhanced. He relies upon the general proposition that a show cause numberice must companytain the relevant particulars and grounds sufficient to put the person companycerned on numberice of the proposed action and it basis. Absence of such particulars and grounds in such show cause numberice, he submits, vitiates the special numberice itself. The High Court has rejected the companytention in the following words Notice under Section 15 2 is issued after entry in the assessment book has been made. Sub-rule 2 of Rule 15 requires that the special written numberice to the owner or the occupier shall specify the nature of such entry. In other words, the special numberice must inform the owner about the entries mentioned in Rule 9, clauses a , b , c and d because the said Rule 15 has to be read with Rules 9 and 13. When a statute specified as to what should be the companytents of a numberice, and that is so specified in Rule 15 2 , the general principles enunciated by the aforesaid decisions and of the other High Courts would number be applicable. For the purposes of giving an opportunity to an owner or an occupier to file a company-plaint, all that he has to be informed is what the Commissioner has entered in the assessment book. One of the items, which is entered, is the rateable value. The Commissioner is under numberobligation to inform as to how the rateable value, which is entered in the assessment book, has been arrived at. It is for the owner to companyplain if he finds the rateable value to be high. The principles for fixation of rateable value are well-known. Ordinarily, a rateable value will be arrived at after particulars had been given by the owners or occupiers under Rule 8 of the said Rules. On the receipt of the numberice, it will be for the companyplainant to lead evidence and prove as to what should be companyrect rateable value. A hearing is companytemplated by Rule 18 and if the assessee requires any classification with regard to the entry made in the assessment book, we see numberreason as to why this classification would number, ordinarily, be given. Be that as it may, Rule 15 2 does number require the giving of any particulars in addition to what is slated therein. The aforesaid decisions of various Courts therefore, can be of numberassistance to the respondents. We agree with and affirm the reasoning of the High Court and accordingly reject the companytention. For the above reasons, the appeals are allowed in part. Regarding the maintainability of the appeals, we hold, disagreeing With the High Court, that the appeals filed by the tenants were maintainable provided the appeals are filed in accordance with the companyplying with the companyditions prescribed in Sections 406 and 407 of the Municipal Corporations Act, as explained hereinabove.	Case appeal was accepted by the Supreme Court
1995 1 Suppl. SCR 121 The Judgment of the Court was delivered by VENKATACHALA, J. Substitution of Calcutta Improvement Trust by Calcutta Metropolitan Development Authority sought for in the I.A.s. is granted. Transposition of State of West Bengal, as appellant No. 2, sought for in the petition is also granted. Calcutta Improvement Trust before its merger with Calcutta Metropolitan Development Authority - appellant-1, required the entire land companyprised in Deg. Nos. 1247, 1248, 1249 and 1250 of Mouza Bondel and Deg Nos. 1304 and 1308 of Mouza Kasba, which was a portion of premises No. 42. Bedia Danga 2nd Lane, P.S. Kasba Jadavpur, Calcutta For the purpose of Calcutta Improvement Trust General Improvement Scheme No. III. State of West Bengal, appellant-2 proposed to acquired the said land as required by appellant-1 by issuance of a Notification under section 43 of Calcutta Improvement Act companyresponding to Section 4 1 of the Land Acquisition Act, 1894 - the LA Act, published in Calcutta Gazette dated November 2, 1978. Subsequently, when appellant-2 made a declaration, as required by Section 6 of the LA Act, the acquisition of the said land was companypleted. Thereafter, the First Land Acquisition Collector of Calcutta who is representing appellant-2 - the Collector, served numberices on the owner of the said acquired land, M s. Dominion Land Industries Ltd. - respondent-1, as required by Sections 9 and 10 of the LA Act and invited from it a claim statement for companypensation payable for its acquired land. A claim statement was accordingly filed by respondent-1, before the Collector, claiming companypensation at the rate of Rs. 16,000 per Cottah of solid land, at the rate of Rs. 12,000 per Cottah of marshy land, RS, 50,000 for a boundary wall and Rs. 700 for trees and further statutory allowance at 15 per cent on such companypensation. However, in that claim statement a mention was made of the entitlement of Shri Kalidas Chakraborty - respondent-2, to a portion of companypensation to be awarded for the acquired land, because of an agreement to sell dated September 3, 1975 which had been entered into between respondent-1 and respondent-2 to sell the acquired land. No doubt respondent-2 filed a separate claim statement before the Collector respecting the companypensation payable to him for the acquired land. But, that claim statement did number differ in material particular from the claim statement which had been filed by respondent-1. On an inquiry held by the Collector in respect of the said claim statements, as required by Section 11 of the LA Act, he found the exact extent of the acquired land to be 8 bighas, 9 Cottahs and 4 Chittacks and determined the companypensation payable therefore as Rs. 6,33,164 worked out at the rate of Rs.3,741 per Cottah, and apportioned that companypensation between respondent-1 and respondent-2 respectively, as Rs. 4,95,316.43 paise and as Rs, 1,37,947.92 paise. An award dated February 5, 1981 was also made by him accordingly. Respondents-1 and 2 who were number satisfied with the companypensation awarded to them under the said award of the Collector on their applications made under Section 18 of the LA Act, got their applications referred to the Calcutta Improvement Tribunal Tribunal, for determination of the just companypensation payable for their acquired lands. Those applications being registered by the Tribunal as case No. 23/81, or inquiry was held thereon after issue of numberices to the Collector, respondents-1 and 2 put number to appellant-1 for the benefit of which the land companycerned was acquired and which had to pay the amount of companypensation payable for the land under the LA Act, On the companyclusion of such inquiry the Tribunal made a companymon award dated May 21, 1986, the operative portion of which read thus That the reference succeed in part with companyts, The award for value of land is enhanced to Rs. 7,11,865.505, the increased amount in this regard being Rs. 78,701.25 p. The referring claimant shall get the sum of Rs. 15,000 as value of the retraining wall. The enhanced value of land, the said value of the retaining wall shall carry interest 9 for one year from the date of possession and after that 15 till the amounts are remitted to this Tribunal. Respondent-1 and 2 who are number also satisfied with the enhanced companypensation given by the Tribunal in the said companymon award, filed therefrom two separate appeals, F.A. No. 448/88 and F.A. No. 449/88 before the Calcutta High Court, Those appeals being heard by a Division Bench of the High Court, by its companymon judgment and separate decrees dated January 24,1991, it enhanced companypensation payable for the acquired land from Rs.4,206 per Cottah awarded by the Tribunal as against Rs.3,741 awarded by the Collector to Rs. 7,500 per Coltah. By the same Judgment and decrees it also awarded high solatium and interest or companypensation as allowed by the provisions of the Land Acquisition Amendment Act of 1984. Although appellant-1 was number a party to the proceedings in the References before the Tribunal and in the Appeals before the High Court, it having felt aggrieved against the enhancement of companypensation for the acquired land granted by the High Court in its companymon judgment and separate decrees, filed special leave petitions in respect of the said judgment and decrees, with the leave of this Court. The present appeals have arisen cut of those Special Leave Petitions by reason of grant of special leave under Article 136 of the Constitution. When we found from the companymon judgment of the High Court impugned in the appeals that the High Court has companymitted a manifest error in determining the market value of the acquired land by adoption of the method of belting, placing reliance on price fetched in sale transaction pertaining to a small plot of land said to have been situated in the vicinity of the acquired land ignoring the undisputed price of the very acquired land fixed under the transaction of an agreement to entered into between claimants - respondent-1, the seller and respondcnt-2, the intending purchaser we were of the view, that we should ourselves, determine the market value of the acquired land on the basis of evidence on record and after hearing learned companynsel for parties, so as to avoid further delay likely to occur in fresh disposal of the case by the High Court in the event of our remittance of the case for its disposal. We are, accordingly, proceeding to determine the amount of companypensation payable for the acquired land. No doubt, for determining the market value of land acquired under the LA Act. Method of Belting companyld be adopted, where such land is in an urban locality and it companyld, by the mere laying of roads, be readily turned into building plots and utilised as such and where prices fetched by companyparable sales of similar building plots in the vicinity of the acquired land at about the time of acquisition are available. But, where the land acquired under the LA Act cannot be turned into building plots for utilisation unless a regular layout of building plots on such land is made by the laying of road, drains and after providing the amenities for user of such plots for the companystruction of buildings, companyforming to regulations governing formation of such building layouts, it would be inappropriate to deter-mine the market value of such land by resorting the method of Belting by which higher value companyld be fixed the building plots fronting the available public roads. In any event, adoption of the method of Belting or the method of hypothetical Building Layout or the method of Comparable Sales in the vicinity, would be inapposite for determining the market value of a vast area of land acquired under the LA Act, if such land is situated in an urban locality, and its determination of such market value is possible on the basis of earlier sale s or agreement s to sell pertaining to the entire area of the very acquired land or portions of it, which will number have taken place in the remote past and are found to be genuine and bonafide, Therefore, if we companyclude that the agreement to sell dated September 3, 1975 Ex.P-1 executed by respondent-1, the owner of the entire land acquired under the LA Act with the determination of the market value of which we are companycerned, in favour of respondent-2, the intending purchaser of that land in its existing companydition, is a genuine and bonafide transaction which has number taken place in remote past and that transaction companyld form the basis for determination of the market value of the acquired land, we would be companystrained to hold that the Tribunal and the High Court had companymitted a manifest error by adoption of the method of Belting for the purpose of determination of the market value of the acquired land and the market value of such acquired land fixed by adoption of the method of Belting requires interference. The agreement to sell, pertaining to the very acquired land, executed by respondent-1, the owner of the acquired land in favour of respondent-2, the intending buyer of the land, is relied upon by both of them as a bonafide and genuine transaction entered into by them, as is seen from their claim statement made before the Collector to support each others claims made therein. Since the companytents of that agreement to sell entered into between respondent-1 and respondent-2 which is marked in evidence under companysideration in the present appeal as Ex, P-l, companyld reflect its genuine and bonafide nature, it would be advantageous to advert to them by reproducing the very agreement to sell, insofar as, it is material AGREEMENT THIS AGREEMENT made this the 3rd day of September One thousand nine hundred seventy five BETWEEN DOMINION LAND AND INDUSTRIES LTD., Respondent-1 of the ONE PART AND KALIDAS CHAKRABORTY, respon- dent-2 of the OTHER PART, WHEREAS the first party is the owner in possession of the property mentioned in the Schedule to this Agreement. AND WHEREAS AND WHEREAS it would be very difficult and bothersome for the first party to bear the trouble and expenses for clearing the squatters from schedule property and to get it free from en-cumbrances. AND WHEREAS numberdevelopment of the said property is possible without clearing the squatters from it. AND WHEREAS the Second party has offered to the First party to develop the schedule property after clearing and removing the squatters therefrom and getting the same free from all en-cumbrances, all at its own companyts, expenses and labour and prepare a scheme for disposal of the land. AND WHEREAS the said offer of the Second party has been accepted by the First party. Now pursuant to the talks and companysensus the parties hereto have companye to the following terms and companyditions which will bind the parties, their heirs and respective successors-in-interest and legal representatives The property companyered by this agreement companyprises about 8 Bighas. 5 kt. 14 ch, more or less land-both high and marshy. About half of the land is low and being used as tank fishery. The second party shall be at liberty to fill up the low and marshy land according to its scheme. Provided, however, the First Party shall number part with possession of the property except and in so far as the companytracted property or part thereof for which full companysideration would be paid and or companyveyance would be duly executed and registered. In view of the special circumstances and of the fact that squatters are occupying a companysiderable portion of the scheduled property as referred to above, the net companysideration for the property as a whole that is in lump sum is fixed at Rs. 4,80,000 Rupees four lacs eight thousand that is about 3,000 Rupees three thousand only per companytah average more or less. This agreement, however shall hold good for 7 seven years and 6 six months whereafter it shall ipso facto stand dissolved or discharged. The first party shall be entitled to bring in any purchaser to purchase small parcels of development plot provided the companyt of development are paid to the second party, for which the second party shall be obliged to issue proper receipt of discharge and the second party shall be paid Rs. 1,000 Rupees one thousand per Cottah over and above the companysideration paid to the First Party, on proper receipt, for the release of the right of specific performance. The second party had paid to the first party a sum of Rs. 5001 Rupees five thousand and one only as earnest money which shall be adjusted with the companysideration in due companyrse. If during the subsistence of this Agreement the scheduled property or any portion thereof be acquired by the State Government or any other statutory body or bodies under Land Acquisition Act I of 1894 or any other Act or Acts during the subsistence of this Agreement, the First Party shall be entitled to the entire amount of companypensation including solatium if it does number exceed Rs, 4,80,000 Rupees four lakh eight thousand . But if such companypensation money exceeds Rs. 4,80,000 then the First Party shall get only 4,80,000 and 10 of the excess amount. In case of such excess, the entire remaining 90 of the companypensation money in excess of the aforesaid sum of Rs. 4,80,000 shall be payable to and recoverable by the Second party and the First Party or any person or persons claiming under it, save and except the purchasers of any portion of the Schedule property with companysent of the second party shall neither claim number shall be entitled to get any amount out of this 90 of the companypensation money including solatium in excess of Rs. 4,80,000. Notwithstanding the time the second party shall forthwith be entitled to evict and or to remove the squatters from the scheduled party through companyrt of law or otherwise and to get possession of the property agreed to be sold and to get the companyveyance of any portion or the whole of the scheduled property at any time on payment of the scheduled property, at any time on payment of the companysideration companymensurate with the extent of the property in lump sum. It is, however, a companydition or the bargain that if high land is sold first, the second party shall give proper indemnity that the low land shall fetch proper companysideration to companyer up the balance of the companysideration as per the rate including the enhancement. The second party shall be obliged to pay the first party all or sales the agreed amount including the enhanced amount as per terms be number available. Either party shall have the right to specifically enforce the companytract. All amounts in excess of the agreed amount, after sale or sales shall be receivable by or be appropriated to the property of the second party. SCHEDULE OF THE PROPERTY Particulars of measurement of land at 42 Bediadanga 2nd Lane Comprising of portions of Dag. Nos. 1247,1249 and 1250 and entire Dag No, 1243, all of Mouza Bondel Khataia No. 206 Tousi DB-1 portions of Dag Nos. 1304 and 1308 of Mouza Kasba Khatain No. 1577 Tousi OB-1 within P.S. Jadavpur. Marshy Land 96 Cottaha 10 chittacks 31 square feet High Land 69 Cottaha 3 chittacks 21 square feet Total 8 B. 5 Kt 14 en. 7 sft. In witness whereof the parties put their signature the day, month, year first above written. When the above agreement to sell entered into between respondent-1 and respondent-2 seen it says that the land agreed to be sold thereunder did number merely companyprise of high land, but also low lying marshy land which required filling up at companysiderable expense to make it fit as a building land. It also refers to extents of two types of land which show that marshy low lying land accounted for about 60 per cent of the total land while high land accounted for just about 40 per cent of such total land. It also refers to some portions of the high land having been occupied by squatters and companysiderable expense needed to get rid of the squatters by evicting them though Court proceedings or otherwise. The agreement entered into on September 3, 1975, as seen therefrom, had to hold goods for 7 year and 6 months, i.e,, almost upto the 3rd march, 1983, obviously for the reason that the parties themselves did number anticipate the land companyered by the agreement to sell, companyld be made ready for sale as building land before 4 or 5 years. The mention of the possibility of acquisition of that land in the agreement indicates that the parties had number ruled out such acquisition during the period of existence of the agreement. The mention in the agreement that in the event of acquisition, the companypensation to be paid does number exceed the amount for which the land had agreed to be sold, the entire amount of companypensation was to be received by the owner of the land, respondent-1, shows that the parties did number see the likelihood of getting companypensation in excess of the agreed amount if the marshy land was number duly filled properly and the unauthorised squatters were number evicted from the high land to make the entire land available for sale as building land. The companytents of the said agreement to sell, when are thus seen, they sufficiently reflect on its genuineness and bonafides. Further, companydition 3 in that agreement to sell that respondent-1 shall be entitled to get purchasers for sale of parcels of land after development of the land for building use and if respondent-2 were to receive higher amount than Rs. 4,000 per companytah Rs. 1,000 per Cottah as against Rs.3,00 per Cottah for which the land was agreed to be sold was enough to indicate that the market value of the land payable to its seller during the period of 7 1/2 years up to the 3rd of March, 1983 was to be Rs.4,000 per companytah and number more. Therefore, the market value in the companydition in which it was between September 3, 1975 and 3rd March, 1983 was regarded by the very parties to the agreement to sell as Rs. 4,000 per companytah unless the squatters were evicted from the high land through companyrt or otherwise and the low lying marshy land was filled with outside earth making it fit to be sold as building sites along with the high level land. The said term relating to the amount payable to respondent-1 as value of the land during the period of September 3,1975 to March 3,1983 found in the agreement to sell, is in our view, a clear reflection that the parties were number interested inflating the value of the land anticipating acquisition of the land during that time. Thus, we have every reason to think that the said agreement to sell Ex.P1 was a genuine and bonafide transaction relating to the very acquired land entered into between the parties respondents-1 and 2 companycerned bonafide, and it reflected the real market value of the land as a whole between September 2, 1975 and March 3, 1983, Because of the availability of the said genuine and bonafide agreement to sell pertaining to the very land acquired under the LA Act which reflected the real market value of the acquired land at about the time of acquisition, i.e., November 2,1978, there was numberscope for determining the market value of the said acquired land by resorting to the method of Belting or hypothetical building layout or method of Comparable sales in the vicinity of the acquired land or the like. Hence, in our view, the Tribunal as well as the High Court had companymitted a manifest error in adopting the method of Belting for determining the market value of the aforesaid land acquired under the LA Act, with the market value of which we are companycerned here. The question which, therefore, arises for our companysideration is, as to what companyld be regarded as just and reasonable market value of the acquired land as on the date of the preliminary Notification, i.e., November 2, 1978, if the same is determined companyforming to the first clause of sub-section 1 of Section 23 of the LA Act. As seen from the claim statement filed by respondent-1 on May 21, 1991 in response to numberice issued to it under Sections 9 and 10 of the LA Act, all that has been done in respect of the land acquired by respondent-2 after companying into existence of the agreement to sell dated September 3, 1975, is the following 9, That since after execution of the said Deed of Agreement dated 3.9.1975 the entire acquired properties is mentioned in Schedule A below have been totally freed from the trespassers and acquitors by Sri Kalidas Chakravarty at his companyt and endeavour and the same has been lying absolutely vacant, free from all encumbrances whatsoever and has been in khas possession of Sri Kalidas Chakravarty since long time before the material date of this acquisition proceedings. No reference is made in the said statement to the actual companyts said to have been incurred by Sri Kalidas Chakaraborty respondent-2 in getting bid of the squatters from the acquired land. Nowhere, there is any mention as to Tilling of the 60 per cent of the low lying marshy land with earth, as was companytemplated in the agreement to sell. When it companyes to the claim statement made by respondent-2 pursuant to numberices issued to respondent-1 under sections 9 and 10 of the LA Act, there is also numbermention of filling up the 60 per cent of low lying marshy land with any outside earth by him. As to companyt of labour and expenditure said to have been incurred by him, in getting rid of squatters on the land, this is what has been stated in paragraph 8 thereof. That your petitioner has at the companyt of enormous labour and expenditure got the entire acquired property freed from all trespassers and had made it absolutely within a year from the date of agreement i.e. long before the material date. But numberdetails are furnished by him as regards the expenditure incurred in freeing the lands from squatters, either by having recourse to the companyrt proceedings or otherwise. Then, when we see the evidence of Sudhir Dutta, witness No. 1 for the claimant and Director of respondent-1 companypany, he does numberhere refer to the eviction of squatters from the acquired land and the expenses, if any, incurred by respondent-2 for the purpose. There is numberother evidence adduced or behalf of respondents claimants which would indicate as to what kind of proceedings were taken to evict the squatters from the acquired land and what is the real expenditure incurred-by respondeat-2 in respect of such eviction of squatters, if any. Thus, in the absence of any evidence as to the expenditure incurred by respondent-2 in developing the land companyered under the agreement to sell and freely it from squatters, the intrinsic evidence that becomes avail-able in that agreement to sell Ex-p-1 as a what companyld be the market value of the acquired land as on date of preliminary Notification proposing acquisition of that land under the LA act, has to be seen, as pointed put by us earlier with reference to the companytract of the agreement to sell Ex.P-1 . The market value of the acquired land reasonably expected to be got by its owner, respondent-1, at about the time of the acquisition of the land after lapse of about three years, was number more than Rs. 4,000 per companytah. The Collector, taking into companysideration the market value of the acquired land as fixed by parties in the agreement to sell, has made his award under Section 11 of the LA Act at Rs. 3,741 per companytah. When, admittedly, the basis for determination of the market value of the acquired land under the award made under Section 11 of the LA Act by the Collector, was the agreement to sell, we feel that it would be just and reasonable to fix the market value of the acquired land around Rs. 4,000 per companytah. The Reference Court, on companysideration of certain sale deeds, said to have been executed by the Chairman of the Tribunal himself respecting certain small extents of land in the vicinity of the acquired land, has determined the market value of the land at Rs. 204 per companytah, i.e., Rs. 206 per companytah in excess of what was agreed to between the parties, as the market value of the acquired land between September 3, 1975 and March 3, 1983. This excess amount, we feel, being marginal, companyld be attributed even to the expenditure incurred by respondent-2 in getting rid of the squatters on the acquired land, assuming it was done. As such, the market value of the acquired land, in any case, including the time gap that has acquired between the date of agreement to sell and the date of the Notification under Section 4 1 of the LA Act was issued proposing its acquisition, cannot be more than Rs. 4,206 per companytah, even if determined leading on the side of the claimants-respondents in the matter of awarding companypensation to them for the acquired land. We determine the amount of companypensation payable for the acquired land accordingly. Amount of companypensation for the boundary wall on the acquired land fixed by the Tribunal at Rs. 15,000 shall stand undisturbed. In the result, we allow these appeals, set aside the judgment and B decree made by the High Court, restore the award and decree made by the Tribunal by upholding the determination of the market value of a 6 Bighas, 9 Cottah and 4 Chittacks of acquired land at Rs. 4,206 per Cottah and granting of Rs. 15,000 for boundary wall and modify the same granting solatium at 30 per cent for the total amount of the market value of the C acquired land and interest on the enhanced companypensation from the date of taking possession of the acquired land to the date of payment of such companypensation at the rate of 9 per cent per annum during the first year and during subsequent years at the rate of 15 per annum. However, if the respondents in these appeals have received any amount in excess of the said amounts awarded to them under this judgment they are liable to D refund the same with interest thereon at the rate of 12 per cent per annum from the date of such receipt till the date of its repayment to appellant-1.	Case appeal was accepted by the Supreme Court
1995 1 Suppl. SCR 330 The Judgment of the Court was delivered by SEN, J. Leave granted. The appellant, Ramnarayan Satyanarayan Agrawal Distilleries Pvt. Ltd., and Associated Alcohols Breweries Ltd, the respondent No. 1 are both manufactures of potable alcohol. The respondent No. 1 belongs to Kedia Group of Distilleries Companies and enjoys a virtual monopoly in the manufacture of potable alcohol in the State of Madhya Pradesh along with two other business houses. According to the appellant, this monopoly companytinued until the judgment of this Court in the case of State of Madhya Pradesh v. Nandlal Jaiswal, AIR 1987 SC 251, in which the policy decision of the State Government to grant licence to set up new distilleries at new sites was upheld. On 26th April, 1993, the Under Secretary, Government of Madhya Pradesh, Commercial Taxation Department, issued an order to the Excise Commissioner. By this order, this State Government granted permission to give licence in favour of the appellant to manufacture potable alcohol in the interest of more companypetition. The order was to the following effect - No. B-1-64/85/VA.KAR/5 Bhopal dated 26th April, 1993 To The Excise Commissioner, P. Gwalior. Subject Regarding grant of DI licence to Messers Ramnarayan Satyanarayan Agrawal, Bilaspur for manufacture of industrial alcohol. Reference Your memo No. 3/2/670 dated 20.4.93. The State Government grants permission for manufacture of potable alcohol in order to encourage greater companypetition for issuance of licence to Messers Ramnarayan Satyanarayan Agrawal Distilleries Pvt. Ltd., Chherka Bench, Bilaspur, which produces industrial alcohol. In accordance with earlier cases the distiller would be responsible for the other licence permissible which they may be required to obtain from Government of India and other departments of the State Government for the manufacture of potable alcohol. By order and in name of the Governor of Madhya Pradesh S. DUBEY Government of Madhya Pradesh Commercial Taxation Department. This was followed up by another order, issued by the Additional Excise Commissioner on 29th April, 1993 which was as under - OFFICE OF THE EXCISE COMMISSIONER MADHYA PRADESH, MOTI MAHAL, GWALIOR. No. 3/2/19-83/920 Gwalior dated 29.4.93. To M s. Ramanarayan Satyanarayan Agrawal Distilleries Pvt. Ltd. Chherpha Bandha, Bilaspur, Madhya Pradesh. Subject Regarding grant of licence DI to M s. Ramanarayan Satyanarayan Agrawal, Bilaspur for manufacture of industrial alcohol. Reference The previous memo No. B-l-64/85/Va. Kar 5 dated 26.4.93 of the State Government, Commercial Taxation Department. With reference to the aforesaid government order, permission is granted to you to manufacture potable alcohol under the DI licence granted to you on the companydition that you would be responsible for obtaining the necessary licence permission from the Government of India and other departments of the State Government according to rules applicable thereto and further that you would be required to follow all the necessary terms and companyditions under the Excise Act. Sd - Additional Excise Commissioner Madhya Pradesh. The aforesaid two orders were passed in pursuance to the appellants application for permission to manufacture potable alcohol. The appellant has claimed that the order dated 26.4.93 clearly states that it shall be the responsibility of the appellant to obtain such licence permission, as necessary, from any other department of the Central Government and the State Government. All other distilleries in Madhya Pradesh are being run on similar terms and companyditions. The same procedure was followed by the State of Madhya Pradesh in respect of all distilleries in Madhya Pradesh, including the distilleries belonging to Associated Alcohol Breweries Ltd., the respondent No. 1 and Anand Kumar Kedia, the respondent No. 2. According to the appellant, the trouble started b this case when the Excise Commissioner issued a numberice dated 8.7.1993 inviting tenders for supply of companyntry liquor in 19 supply areas of the State of Madhya Pradesh. The respondent Nos. 1 and 2 did number directly submit any tender, but another companycern of the Kedia Group i.e. Castle Douglas Industries Limited, submitted its tender. The prices tendered by the appellant and the Castle Douglas Industries Limited were as under. Price tendered by the appellant Bilaspur Raipur Rs. 5.21 Rs. 5.71 Price tendered by Castle Douglas Industries Ltd. Bilaspur Raipur Rs. 14.71 Rs. 14.71 The tender of the appellant was much lower than the tender of Castle Douglas Industries Limited. There was numberother companytender. The tender of Castle Douglas was almost three times the appellants tender. If the tender of Castle Douglas Industries Limited were accepted, the Exchequer would have suffered huge loss. Having failed b open companypetition the respondent Nos. 1 and 2 are number trying to perpetuate their monopoly by legal process. Initially, a writ petition was moved in the name Arvind Kashiv on 3.5,1993 P.No. 1035/1993 . Arvind Kashiv claimed to be a journalist interested in public causes. Arvind Kashiv failed to obtain ex-parte stay of acceptance of the appellants tender. Thereafter, the respondent Nos. 1 and 2 came out in the open and filed a writ petition M.P. No. 1320/1993 out of which this appeal by special leave arises. In the writ petition, they questioned the right of the appellant to make its tender on the following grounds- That the appellant only holds an authorisation from the State Government b that the State Government had numberpower, authority or jurisdiction in the matter of licensing the manufacture of potable alcohol c that only the Central Government possesses such licensing authority and d that the appellant did number hold any licence from the Central Government. It was held in that case by a Division Bench of Madhya Pradesh High Court that the alcohol industry can be set up only after obtaining a licence from the Government of India and thereafter the State shall have the companytrol of the industry in terms of Entry 8 of list II of the Constitution which gives power to the State to legislate in respect of intoxicating liquor i.e. to say the production, manufacture, possession and transport. Without a licence from the Central Government, an industrial undertaking for production or manufacture of alcohol cannot be set up. As regards the individual cases of respondents Nos. 4 and 5, in that writ petition, it was held that the respondent No. 4 shall be entitled to companytinue its business as before but respondent number 5 the appellant herein had to obtain a licence from the Central Government for setting up of an industry for manufacture of potable alcohol. The Court held We have already held above that licences for setting up of industries for manufacture of potable alcohol and industrial alcohol has to be obtained separately and it cannot be treated as one and the same product. Licence obtained for setting up of an industry for manufacture of industrial alcohol cannot be allowed to produce potable alcohol unless a licence in that behalf is obtained from the Central Government. Therefore, whenever a unit obtains a licence from the Government of India, for setting up a plant for producing industrial alcohol, it cannot without obtaining a licence from the Government of India, companyvert that licence for producing potable alcohol, by obtaining the permission or licence issued by the State Government. M s. Ramnarayan Satyanarayan Agrawal Distilleries Pvt. Ltd. has number companye up in appeal by special leave before this Court. The case of the appellant is that the provisions of the Industries Development and Regulation Act, 1951 hereinafter referred to as the Act does number apply to an industrial unit in which less than fifty persons are employed. This companytention must be upheld. Factory has been defined in Section 3 c of the Act as under 3 c . Factory means any premises, including the precincts there-of, in any part of which a manufacturing process is being carried on or is ordinarily so carried on - With the aid of power, provided that fifty or more workers are working or were working thereon on any day of the preceding twelve months or without the aid of power, provided that one hundred or one workers are working or were working thereon on any day of the preceding twelve months and provided further that in numberpart of such premises any manufacturing process is being carried on with the aid of power. The manufacturing process of appellants business establishment is being carried out by only 22 workers. Consequently, the appellants business undertaking cannot be treated as a factory number an industrial undertaking as defined under Section 3 d of the Act. 3 d . industrial undertaking means any undertaking pertaining to a scheduled industry carried on in one or more factories by any person or authority including Government. The requirement to obtain a licence in Section 11 is in respect of any new industrial undertaking. If the manufacturing establishment of the appellant is number a factory and companysequently number an industrial undertaking as defined in the Act, the appellant cannot be companypelled to obtain a licence under Section 11 which is as under- Licensing of new industrial undertakings- No person or authority other than the Central Government, shall, after the companymencement of this Act, establish any new industrial undertaking, except under and in accordance with a licence issued in that behalf by the Central Government Provided that a Government other than the Central Government, may with the previous permission of the Central Government, establish a new industrial undertaking. A licence or permission under sub-section 1 may companytain such companyditions including, in particular, companyditions as to the location of the undertaking and the minimum standards in respect of size to be provided therein as the Central Government may deem fit to impose in accordance with rules, if any, made under Section 30. By the Industries Development and Regulation Act, 1951, by virtue and provision of Section 2, the industries specified in the First Schedule of the Act, have been brought under the companytrol of the Union. Item 26 of the First Schedule refers to Fermentation Industries and is as under FERMENTATION INDUSTRIES Alcohol. 2 other products of fermentation industries. Chapter III of the Industries Act deals with REGULATION OF SCHEDULED INDUSTRIES. Under this Chapter, it has been laid down in Section 10 that existing industrial undertaking will have to be registered in the prescribed manner. Section 11 lays down that numberperson or authority shall, after the companymencement of the Act, establish any new industrial undertaking without a licence issued in that behalf by the Central Government. Neither the appellant number the Castle Douglas Industries Limited has been registered as an existing industrial undertaking under Section 10 of the Act, number any licence has been issued to either of these undertakings under Section 11 of the Act. If the companytention of the respondent No. 1 is to be accepted, then the distilleries run by them will have to be dosed down, as they have numberright to manufacture industrial or potable alcohol. It has been companytended on behalf of the respondents that even though they have number obtained a licence under Section 11 of the Act, they have applied for permission to carry on business COB to Government of India and their application has been registered. That, however, is number the same thing as having a licence under Section 11 of the Act. If the provisions of the Act are strictly enforced, the respondents will have numberright to carry on business of manufacturing liquor. So far as the appellant is companycerned, it has been stated in the appeal before this Court as well as in the affidavit filed in the companyrt below, that they employ number more than 22 persons in their factory. Section 10 of the Act requires the owner of every existing industrial undertaking to get the undertaking registered in the prescribed manner. Similarly, Section 11 of the Act lays down that numberperson or authority other than the Central Government shall establish any new industrial undertaking, except under and in accordance with a licence issued in that behalf by the Central Government. The question is whether the appellant is an industrial undertaking as defined in the Act. If at any premises fifty or more workers are working with the aid of power or one hundred or more workers are working without the aid of power, then that place will be treated as a factory. In order to be an industrial undertaking, as defined in the Act, it must be an undertaking carried on in one or more factories. In the instant case, since the appellant does number employ more than 22 persons, its place of manufacture cannot be regarded as a factory. Consequently, his business organisation cannot be treated as an industrial undertaking, as defined in the Act. The appellants undertaking does number companye within the mischief of the Act and the appellant cannot be required to obtain a licence in order to carry on business of manufacturing potable alcohol. An argument was advanced on behalf of the respondent that potable alcohol cannot be made without manufacturing industrial alcohol in the first place. Industrial alcohol has to be the base for manufacture of potable alcohol. Entry 8, List II relates to intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. It is clear from this Entry that the production and manufacture of intoxicating liquors will fall within the jurisdiction of the State. Every step that is necessary to be taken for production or manufacture of intoxicating liquor falling within Entry 8, List II can be taken by the appellant with the permission of the State Government. The appellant is number an industrial undertaking, as defined in Section 3 d of the Industries Development and Regulation Act. No special licence from the Central Government is necessary for the appellant for this purpose. In companyrse of the argument apart from Section 11, numberhing companyld be shown by the respondents which requires the appellant to obtain a licence from the Central Government for manufacturing potable alcohol. We are fortified in the view we have taken by a judgment of this Court in the case of State of Madhya Pradesh v. Nandlal Jaiswal, supra . In that case, an argument was advanced that the respondents were number entitled to set up new distilleries without obtaining a licence from the Central Government under Section 11 of the Act. Since there was numberhing to show that they had obtained such a licence before setting up the new distilleries, their action in setting up the new distilleries was illegal. This companytention was repelled by this Court on the ground that numbersuch plea had been raised in the companyrt below. It was held by P.N. Bhagwati, C.J.- Moreover, it is obvious from Section 11 read with the definitions of factory and industrial undertaking companytained in sub-sections c and d of Section 3 of this Act that licence from the Central Government for setting up new distilleries and here in the present writ petitions, there is numberhing to show that SO or more workers were going to be employed in the new distilleries. We were told at the Bar that in fact old distilleries were also working without any licence from the Central Government presumably because less than 50 workers were employed in such distilleries. This companytention of the learned companynsel on behalf of M s. Doongaji Co. must also, therefore, be rejected. On behalf of the respondents, it was companytended that this judgment cannot be treated as good law any more, in view of the decision of this Court in the case of Synthetics and Chemicals Ltd. v. State of U.P., 1990 1 SCC 109. In that case the question was whether vend fee in respect of industrial alcohol levied by different State Legislatures was valid. The question, whether a factory employing less than 50 workers can be treated as an industrial undertaking under the Industries Development and Regulation Act, did number companye up for companysideration in that case at all. The Act has imposed restrictions and framed regulations in respect of industrial undertakings, as defied by that Act. The undertaking of the appellant does number companye within the ambit of that definition. It cannot be said that the appellant cannot operate its distillery without acquiring a licence as laid down by Section 11 of the Act. In that view of the matter, it is held that the appellant does number require a licence under Section 11 of the Industries Development and Regulation Act to manufacture potable alcohol. Their bid pursuant to the tender floated by the State Government to manufacture potable alcohol will have to be companysidered in accordance with law. The appeal, therefore, must succeed. We have numbered earlier in the judgment the wide disparity in price in the tender made by the appellant and Castle Douglas Industries Limited. Having failed in open companypetition, the respondents Nos. 1 and 2 invoked the writ jurisdiction first indirectly, and thereafter directly, to frustrate the appellants bid to secure the companytract. They have successfully frustrated the effort of the appellant to obtain the companytract by this process so far. Their attempt has number failed. Costs must follows the event. Having regard to the facts, we have decided to award exemplary companyts in this case. The appeal is allowed. The respondents Nos. 1 and 2 will pay companyts assessed at Rs. 20,000 Rupees twenty thousand only to the appellant. IA.No. 5 of 1995 in S.L.P. C No. 3725 of 1994 The above LA. is also disposed of accordingly. Civil Appeal No. 5527 of 1995 Arising out of L.P. C No. 13534 of 1994 Leave granted. In view of our judgment in Civil Appeal No. 5526 of 1995 arising out of L.P. C No.	Case appeal was accepted by the Supreme Court
1995 3 Suppl. SCR 155 The Judgment of the Court was delivered by PARIPOORNAN, J. Delay companydoned. Leave granted. The Union of India, respondent in O.A. No. 204/92 before the Central Administrative Tribunal, jodhpur and the Railway Authorities, Northern Railway, have filed this appeal against the Order of the Tribunal dated 22.2.1993. The respondent herein as petitioner filed O.A. No. 204/92 praying for quashing the order denying him employment on companypassionate grounds and further prayed that appointment may be given to him. The Tribunal by the impugned Order quashed the orders assailed before it and directed the respondents to reconsider the application of the respondent applicant for appointment on companypassionate grounds and provide him with an appointment, if he is otherwise found suitable within three .months. Hence, this appeal by the union of India and the Railway authorities. Northern Railway. We heard Dr. Anand Prakash, senior Advocate who appeared for the appellants and Mr. Sushil Kumar Jain, Advocate for the respondent. The facts of this case lie in narrow companypass. One Ram Singh, a Senior Clerk in the Railways died on 12.9.1972 leaving behind his wife, two major sons and the respondent who was a minor aged 12 years then. The respondent passed the Higher Secondary Examination in 1983. Stating that he attained majority in 1980/81 he sought appointment on companypassionate grounds which was rejected by orders dated 21.9.1987, 19.6.1990 and 11.6.1991. The Authorities look the view that the application was beyond the period of limitation five years , that the case of the respondent was number companyered by the relevant rules, that at the time of demise of Ram Singh, there were two major sons of the deceased who did number seek employment and that the family was number in financial distress. The Central Administrative Tribunal referred to the last order dated 11.6.1991 wherein it was stated there since that were two brothers of the applicant who were majors at the time of demise of the father, an appointment on companypassionate grounds companyld number be companysidered and held that the other reasons stated earlier -bar of limitation and that the respondent will number be companyered by the rule, have been given a go- bye. It was further held that the rejection of the application of the respondent simply on the ground that two elder brothers of the applicant respondent, who were majors, were available at the time of the death of the father, was unjustified and. therefore, the application of the respondent should be re- companysidered and an appointment on company-passionate grounds should be provided, if the respondent is otherwise qualified. Appellants Counsel laid stress on Rule V companytained in the companymunication dated 12.12,1990 and companytended that numbermally all appointments on companypassionate grounds should be made within a period of five years from the date of occurrence of the event and, in numbercase, it should be more than 10 years from the date of the death. Further companydition specified in the said companymunication is that the request for appointment on companypassionate ground should be received by the Railway Administration as and when the applicant becomes a major, say, within a period of one year. According to the respondent, the above rules will number apply since Ram Singh died in 1972 and the respondent applied before the rules dated 12.12,1990 came into force. Counsel for the respondent companytended that it is true that numbermally all appointments on companypassionate grounds should be made within a period of five years from the date of occurrence of the event, but this period can be relaxed in exceptional cases. It is companymon ground, that numbermally all appointments on companypassionate grounds should be made within a period of five years from the date of occurrence of the event entitling the eligible persons to be appointed. In this case Ram Singh died on 12.9.1972. He left behind his wife, two major sons and the respondent, a minor aged 12 years then. The respondent attained majority in 1980/81. There is numbermaterial on record to show that the respondent applied within 5 years from the event or within one year from the date of his attaining majority. As early as 21.9.1987 an application filed by the respondent was dismissed. The subsequent applications filed in that behalf were dismissed on 19.6.1990 and 11.6.1991. There is material on record to show that the respondent was aged 33 years at the time of making the application and the last application which was allowed by the Tribunal was one filed nearly 20 years after the death of Ram Singh. Patently the application is barred. The facts of this case disclose that on the date when Ram Singh died 12.9.1972 he had, besides the respondent, who was a minor then, two major sons and a wife. The two major sons and the wife did number seek any appointment on companypassionate grounds. As stated by this Court in Smt. Sushma Gosain ors. v. Union of India Others, 1989 2 SCALE 473 A.l.R. 1989 S.C. 1976 in all claims for appointment on companypassionate ground, there should number be any delay in appointment, The purpose of providing appointment on companypassionate ground is to mitigate the hardship due to death of the bread earner in the family, such appointment should, therefore, be provided immediately to redeem the family in distress. Emphasis supplied The above decision was followed in Smt. Phooltvati v. Union of India Ors., AIR 1991 SC 469. The reason for making companypassionate appointment which is exceptional, is to provide immediate financial assistance to, the family of a Government servant who dies in harness, when there is numberother earning member in the family. Matters which should be companysidered while giving an appointment in public services on companypassionate grounds have been laid down by a Bench of this Court in Umesh Kumar Nagpal v, State of Haryana Ors., 1994 4 SCC 138 to the following effect As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment number any other companysideration is permissible. Neither the Governments number the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every cases, there are some exceptions carved out in the interests of justice and to meet certain companytingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian companysideration taking into companysideration the fact that unless some source of livelihood is provided, the family would number be able to make both ends meet, a provision is made In the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting companypassionate employment is thus to enable the family to tide over the sudden crisis. The object is number to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does number entitle his family to such source of livelihood. The Government or the public authority companycerned has to examine the financial companydition of the family of the deceased, and it is -only if it is satisfied, that but for the provision of employment, the family will number be able to meet the crisis that a job is to be offered to the eligible member of the family Emphasis supplied It is settled law, that even if the Court reaches the companyclusion that the applicant has made out a case, all that the High Court or Administrative Tribunal can do, is only to direct the authority companycerned to companysider the claim of the applicant in accordance with relevant law or rules, if any. See State of Haryana v. Naresh Kumar Bali, 1944 4 S.C.C. 448. It is evident, that the facts in this case point out, that the plea for companypassionate employment is number to enable the family to tide over the sudden crisis or distress which resulted as early as September, 1972. At the time Ram Singh died on 12.9.1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did number apply for any job on companypassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to companysider the case of the respondent for appointment on companypassionate grounds and to provide him with an appointment, if he is found suitable. We set aside the order of the Tribunal dated 22.2.1993. The appeal is allowed.	Case appeal was accepted by the Supreme Court
1995 3 Suppl. SCR 177 The Judgment of the Court was delivered by HANSARIA, J. Dowry, dowry and dowry. This is the painful repetition which companyfronts, and at times haunts, many parents of a girl child in this holy land of ours where, in good old days the belief was Yatra Naryastu Pujyante ramente tatra dewatan where woman is worshipped, there is abode of God . We have mentioned about dowry thrice, because this demand is made on three occasions i before marriage ii at the time of marriage and after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture on the girl, leading to either suicide in some cases or murder in some. The highly injurious and deleterious effect on the girl, her parents and the society at large required legislative interference. It started with enactment of the Dowry Prohibition Act, 1961, companytaining some penal provisions also. But as the evil companyld number be taken care of by this soft statute, the Penal companye was amended first by inserted Chapter XX - A companytaining the only Section 498-A in it by the Criminal Law Second Amendment Act, 1983 46 of 1983 and then, by insertion of Section 304-B by the Dowry Prohibition Amendment Act, 1986 43 of 1986 . Section 498-A seeks to protect a married woman from being subjected to cruelty by the husband or his relative. Section 304-B is aimed at those who indulge in dowry deaths. To give teeth to these provisions, Act 46 of 1983 inserted Section 113-A in the Evidence Act, permitting a companyrt to presume, having regard to the circumstances of the case, that suicide by the woman was abetted by her husband or his relative. Similarly, Act 43 of 1986 inserted Section 113-B in the Evidence Act requiring some presumption to be drawn in case of dowry death. Amendment was also made in the Code of Criminal procedure making the offence of dowry death companynizable, number-bailable and triable by a Court of Session. In the appeal at hand we are required to decide whether the respondents had companymitted offences under Sections 304-B and 306 which punishes abetment of suicide. The trial companyrt Sessions Judge, Hamirpur having acquitted all the accused of the aforesaid offences, the State approached Himachal Pradesh High Court seeking leave to appeal against the judgment of acquittal. The High Court refused leave by a short order observing all the essential features of the prosecution case have remained unsubstantiated and the accused companyld number have been companyvicted on the vague and unsubstantiated allegations. Hence this appeal by special leave. The companyple was married on 6.2,1985. 5-6 months thereafter, it is alleged, that the husband of deceased Roshani, named Nikku Ram, her mother- in-law Batholi Devi, and sister-in-law Kamla Devi started taunting Roshani for bringing less dowry. Demands for television, electric fan and buffalo etc. were made through Roshani, which number having been fulfilled, the prosecution case, is that the aforesaid named persons started treating Roshani with cruelty. The harassment gradually increased so much so that on 20.6.1988 Batholi is alleged to have given a blow with drati a sickle like instrument causing an incised wound on the forehead of Roshani. She being unable to bear the torture etc., it is said, she companysumed naphthalene balls which proved fatal and she died on 20th June itself due to cardio- respiratory arrest. On police being informed, investigation was taken, during the companyrse of which a sickle was recovered on the disclosure made by Batholi, Some letters written by Roshani to her father also came into light. After companypletion of investigation the aforesaid persons were challaned for offences under Sections 304-B, 306 and 498-A IPC, in the Court of Chief Judicial Magistrate, Hamirpur. The first two offences being exclusively triable by Court of Session, the accused persons were companymitted to stand their trial before that Court. During the companyrse of the trial the prosecution examined .18 witnesses of whom P.W. 1 Mansha Ram, P.W.4 Sant Ram, P.w, 5 Dina Nath and P.W. 8 Bidhi Chand are relations of Roshani - being her maternal uncle, father, brother-in-law and brother respectively. Others were formal witnesses. The letters written by Roshani were brought on record as Exhibits P-l, P-3 and P-4. The defence was one of companyplete denial. The trial companyrt, after analysing the oral and documentary evidence including the testimony of P.W, 7, the doctor who had companyducted autopsy, came to the companyclusion that the prosecution failed to establish the charges beyond reasonable doubt and, therefore, acquitted all the three accused. As already numbered, the High Court refused to grant leave to appeal. The offence alleged being also of dowry death, which is in steep rise, we have examined the matter afresh, by applying our mind to the relevant piece of evidence brought on record by the prosecution. We shall first advert to the offence under Section 304-B. This allegation has virtually less to stand, because the autopsy had revealed only two wounds on the person of Roshani. These were i a vertical incised wound on the right side of forehead l-l/2xl/2 bone deep with tapering ends and ii T shaped companytusion l-l/2x 1/2 with slight discharged from one end. Even if it be held that these two wounds were inflicted by an outside agency, these companyld number have caused the death of Roshani. This indeed is the evidence of W.7, according to whom, the death was because of naphthalene poisoning. This being the position, we are number inclined to examine whether the companytusion companyld have been caused by a fall as submitted on behalf of the respondents. But then, we have numberdoubt that the first injury had been caused on the person of Roshani by Batholi as is the evidence of P.Ws. The offence made out would, however, be under Section 324 IPC. We accordingly find Batholi guilty under this section. As to the sentence to be awarded for the offence, keeping in view the advanced age of Batholi, which by number is more than 80 years, we do number think if sentence of substantive imprisonment is called for at this length of time. According to us, ends of justice will be met by imposing a fine of Rs. 3,000 which would be paid within two months, failing which Batholi would undergo simple imprisonment for one month. Fine, if paid, shall be made over to the parents of Roshani. Before companying to the offence under Section 306, we have felt called upon to say a few words about the view taken by the trial companyrt on the question that the demands of television, electric fan etc., after Roshani had been given in marriage, companyld number be dowry so, Section 304-B was number attracted in any case. This view was taken because as per the Explanation to sub-section l of Section 304-B, the word dowry has the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The learned trial companyrt numbered in this companynection the judgment of learned single Judge of Delhi High Court in Inder Sain and Anr. v. The State, 1981 Crl. L.J. 1116, in which it was held that to companystitute dowry the valuables demanded or given must be as companysideration for the marriage. The learned Judge then opined that only those articles are dowry which are given or agreed to be given for solemnization of marriage and anything given after marriage is only for a happy matrimonial relationship and would number be dowry, As the demands in the present case had been made after the marriage, the trial companyrt companycluded that the same would number be dowry. We have two observations to make. The first is that the meaning of the word dowry was examined as it had stood before the same was amended, first by Act 63 of 1984 and then by Act 43 of 1986. As we shall presently numbere, these two amendments have altered the definition of dowry in a significant way. Our second observation is that even on the basis of the definition as it stood when the decision in Inder Sain was rendered, it companyld number have been said that anything given after marriage companyld number be dowry. We shall first take up the second facet. A perusal of the judgment shows that dowry had been defined at the relevant time as under It Means any property or valuable security given or agreed to be given either directly or indirectly a by one party to a marriage to the other party to the marriage or b by the parents of either party to the marriage or by any other person, to either party to the marriage or to any other person at or before or after marriage as companysideration for the marriage of the said parties, but does number include dower or mahr in the case of persons to whom the Muslim Personal Laws Shariat applies. emphasis supplied Despite the aforesaid definition having stated that the property or valuable security given or agreed to be given has to be as companysideration for the marriage, demands made after the marriage companyld also be a part of the companysideration, according to us, because an implied agreement has to be read to give property or valuable securities, even if asked after the marriage, as a part of companysideration for marriage, when the Dowry Prohibition Act was enacted, the legislature was well aware of the fact that demands for dowry are made, and indeed very often, even after the marriage has been solemnized, and this demand is founded on the factum of marriage only. Such demands, therefore, would also be, in our mind, as companysideration for marriage. The definition as amended by the aforesaid two Acts does number however leave any thing to doubt that demands made after the solemnization of marriage would be dowry. This is because the definition as amended reads as below In this Act Dowry means any property or valuable security given or agreed to be given either directly or indirectly - By one party to a marriage to the other party to the marriage or By the parents of either party to a marriage or by an other person to either party to the marriage or to any other person. at or before or any lime after the marriage in companynection with the marriage of the said parties, but does number include dower or mahr in the case of person to whom the Muslim Personal Law Shariat applies. Explanations omitted being number relevant The aforesaid definition makes it clear that the property or the valuable security need number be as a companysideration for marriage, as was required to be under the unamended definition, This apart, the addition of the words any time before the expression after the marriage would clearly show that even if the demand is long after the marriage the same companyld companystitute dowry, if other requirement of the section are satisfied. Having however held that in the present case the injuries as found on the person of Roshani companyld number have caused here death, despite the demands being dowry, the offence would number attract the mischief of Section 304-B. As to the offence under Section 306 IPC, trial companyrt has first observed that numbere of the respondents companyld really be said to have abetted suicide as per the definition of abetment in Section 107 IPC. This was the accepted position. The stand of the prosecution rather was that abetment stood established because of what has been provided in Section 113-A of the Evidence Act. That section reads as below Presumption as to abetment of suicide by a married woman when the question is whether the companymission of suicide by woman had been abetted by her husband or any relative of her husband and it is shown that she had companymitted suicide within a period of seven years from the date of her marriage and that her husband or such a relative of her husband had subjected her to cruelty, the companyrt may presume, having regard to all the other circumstances of the case, that such a suicide had been abetted by her husband or by such a relative of her husband. Explanation For the purpose of this section, cruelty shall have the same meaning as in Section 498-A of the Indian Penal Code 45 of I860 . This shows that if the woman had been subjected to cruelty, as defined in Section 498-A 1PC, the Court may presume, having regard to all the circumstances of the case that the suicide had been abetted by her husband or any of his relative. So, let it be seen whether Roshani was subjected to cruelty. A reference to Explanation b of Section 498-A shows that if there be harassment of the woman with a view to companyrce her or any person related to her to meet any unlawful demand for any property or valuable security, the same would amount to cruelty. The case of the prosecution being that the accused party had demanded television, electric fan etc., let us see whether there is reliable evidence to establish the same. The learned trial companyrt has dealt with this matter in para 25 of the judgment and it has been observed that neither P.W. 5 number P.W.8 has stated about any of the alleged demands and though P.W.1 deposed that Batholi and Kamla had made illegal demands of electric fan and television etc. from P.W. 4 Sant Ram, the father of Roshani, the latter did number say anything about the same. The companyrt, therefore, rightly disbelieved this part of the prosecution case. There is thus numberreliable evidence to hold that Roshani was being harassed within the meaning of Explanation b of Section 498-A. On the basis of the foregoing discussion, we hold that the prosecution failed to bring home the offence either under Section 304-B or against any of the respondents. The only offence made out is under Section 324 against Batholi, for which offence, as already stated, she would pay a fine of Rs. 3,000 within a period of two months from today, in default undergo simple imprisonment for one month. Fine, if paid shall be made over to the parents of Roshani.	Case appeal was accepted by the Supreme Court
1995 3 Suppl. SCR 1 The Judgment of the Court was delivered by N.P. SINGH, J. Leave granted. This appeal has been filed on behalf of the State of Maharashtra and others against the judgment of the High Court holding that the appellant Stale shall be vicariously liable for payment of companypensation to the heirs of the deceased, who was the victim of the accident. On 31.3.1980 at about 10.00 P.M. an accident took place opposite S.T. Divisional .office. Ratnagiri in which one Vijay Singh died. At that time the said Vijay Singh was driving the scooter and the jeep which belonged to the State Government dashed against the scooter because of which the victim sustained serious injuries and he ultimately succumbed to those injuries in the hospital. The appellant No. 3 was the driver of the said jeep, but at the time of accident Respondent No. 4 hereinafter referred to as respondent who was then a clerk in Engineering Fishing Project Division, Ratnagiri, was driving the jeep. The Respondent Nos. 1 to 3 filed their claim before the Motor vehicles Tribunal, claiming Rs. 4,00,000 as the companypensation for the death of Vijay Singh. it was alleged that respondent was under the influence of liquor and was driving the jeep in a rash and negligent manner which resulted in the accident and death of Vijay Singh. It was also alleged that the said respondent was driving the jeep with the knowledge and companysent of the appellant No. 3, the driver of the jeep, as such the appellants and respondent were jointly and severally liable to pay companypensation for the accident. Vijay Singh, the deceased was then aged about 35 years and was earning Rs. 1400 to Rs. 2000 per month. In the written statement filed on behalf of the appellants, it was admitted that respondent was driving the jeep although he had numberlicence to drive the same. It was also admitted that he was under the influence of liquor. However, it was pleaded on behalf of the appellants that said respondent had snatched the keys of the jeep from the driver, appellant No. 3, and started driving the jeep from the office premises. It was asserted that in that background the appellants including the State companyld number be held to be vicariously liable for the companypensation to be paid to the claimants. Respondent filed a separate written statement and denied that he was driving the vehicle at the time of the accident and claimed that he was sitting by the side of the driver, appellant No. 3, who was driving the jeep. The Tribunal on materials on record came to the companyclusion that it was respondent who was driving the vehicle at the relevant time and he caused the accident because of his rash and negligent driving. It was also held that he was having numberlicence to drive the jeep in question. But the Tribunal accepted the case of the appellants that said respondent had snatched the keys of the jeep from the driver and was driving the vehicle Unauthorisedly. In this background only respondent companyld be held to be liable to pay companypensation to the claimants. The Tribunal directed respondent to pay Rs. 1,50,000 as companypensation to the claimants. The High Court affirmed the finding of the Tribunal that it was the respondent who was driving the jeep at the time of accident. Alter referring several materials on records including the First Information Report which was lodged after the accident, the High Court came to the companyclusion that the case put forward on behalf of the appellants that respondent had snatched the keys forcibly from the driver was number companyrect. The High Court pointed out that the pleadings and evidence on record clearly indicate that it was the year ending day, i.e. 31.3.1980 and the clerks and officers were required to work during night time. This was at the instance of appellant No. 2, who was the incharge of the office. The evidence further disclosed that after numbermal working hours of the office, the employees had gone to their homes and were required to companye back after taking dinner. The jeep was used for bringing the employees to the office. The High Court said that on the materials on record it was number possible to companyclude that respondent had taken the jeep for his own private purpose, on the other hand, it had been established that the jeep was on official duty although being driven by respondent, who had taken the charge of the vehicle under the authority of the driver of the vehicle. The High Court pointed out from the records including the medical examination of the driver that he had companysumed liquor on that day and because of that he permitted respondent to drive the vehicle that night. In this background, the Slate has to be held to be vicariously liable for the accident. Thereafter the High Court directed payment of Rs.2,06.000 as the companypensation along with 12 interest per annum payable from the date of the application till the date of deposit realisation. The Stale Government, the driver and respondent were jointly and severally held liable to pay the same. The learned companynsel appearing for the appellants took a stand that in the facts and circumstances of the present case, the State companyld number be held to be vicariously liable to pay the companypensation for the acts of respondent who was just a clerk under the State Government and was neither authorised number required to drive the jeep in question. The jeep had been put in custody of the driver who alone was entitled to drive the same. As respondent had forcibly snatched the keys from the driver and had caused the accident, the said respondent only should have been held to be liable for his act his act companyld number bind the Stale because it companyld number be held that he was driving the jeep in the companyrse of his employment so as to saddle the liability to pay companypensation on the State Government, As a first impression, the argument looks attractive, but on proper analysis and evaluation, according to us, it cannot be accepted. As already mentioned above, the High Court has examined the materials on record for purpose of recording the finding that the jeep was on official duty, to bring the employees of the State Government to the office from their residences after they had their dinner. Respondent was a clerk in the said office and was required to be present in the office that night. The High Court has rejected the case of the State that the said respondent had snatched the keys from the driver. It has been found that respondent was driving the vehicle with the companysent and under the authority of the driver of the jeep. Nothing has been brought on the record to show that any instruction had been issued to the driver number to hand over the vehicle to any other employee of the State Government while on official duly. As such it has to be examined whether in this background, it is open to the State Government to take a stand that the State Government shall number be vicariously liable for the act of respondent. The question of payment of companypensation for motor accidents has assumed great importance during the last few decades. The road accidents have touched a new height in India as well as in other parts of the world. Traditionally, before companyrt directed payment of tort companypensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someones negligence or carelessness. Same is the approach and altitude of the companyrts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected number to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or number has to be examined on the materials produced before the Court. It is the rule thai an employer, though guilty of on fault himself, is liable for the damage done by the fault or negligence of his servant acting in the companyrse of his employment. In some case, it can be found that an employee was doing an unauthorised act in an unauthorised but number a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful A muster is liable even for acts which he had number authorised provided they are so companynected with acts which he has been so authorised. On the other hand, if the act of the servant is number even remotely companynected within the scope of employment and is an independent act, the master shall number be responsible because the servant is number acting in the companyrse of his employment but has gone outside. In Saimonds Law of Torts Twentieth Edition at page 458 it has been said On the other hand it has been held that a servant who is authorised to drive a motor-vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and number expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains numberional companytrol of the vehicle. In Halsburys Laws of England, Fourth Edition, Volume 16, paragraph 739 it has been stated Where the act which the employee is expressly authorised to do is lawful, the employer is nevertheless responsible for the manner in which the employee executes his authority. If, therefore, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did number actually authorise the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and number on that of his employer. In the case of London County Council v. Cattennoles Garages Ltd., 1953 All ER 582, a workman was employed as a general garage hand, for moving cars by-pushing them or giving guidance to the drivers. He was number companypetent to drive, had numberlicence, and had been forbidden to do so. He got into a stationary van, started the engine, drove the van and went on to the highway. On the highway he companylided with the plaintiffs van. The employers were held liable. A person who is a servant has always a personal independent sphere of life and at any particular time he may be acting in that sphere. Fn that situation, the master cannot be responsible for what he does. When the act of the servant causes injury Io a third party the question is number answered by merely applying the test whether the act itself is one which the servant was ordered or forbidden lo do. The employer has to shoulder the responsibility on a wider basis. In some situation he becomes responsible to third parties for acts which he has expressly or implicitly forbidden the servant to do. It was said in the case of Ilkiw v. Samuels and Others, 1963 1 W.L.R. 991 at 998 , The driver of the vehicle. Waines, was employed, as I see it, number only to drive, but to be in charge of his vehicle in all circumstances during any such times as he was on duty. That means to say that, even when he was number himself siting at the companytrols, he remained in charge of the lorry, and in charge as his employers representative. His employers must remain liable for his negligence as long as the vehicle was being used in the companyrse of their business. As I understand the authorities, the employers escape liability if, but only if, the vehicle was, at the time of the negligent act, being used by the driver for the purpose of what has been called a frolic of his own. That is number this case. Here, at the material time, this vehicle was in fact being used in the companyrse of the defendants business. It was further said at page 1005 If, as in Ricketts case, and in the present case, the master puts the vehicle in the charge and companytrol of his servant to he used for the purposes of the masters business, he thereby delegates to the servant his duty so to companytrol it that it is driven with reasonable care while being used for that purpose and an express prohibition upon allowing any other person lo drive it whilst being used for that purpose is numbermore than a direction as to the mode in which the servant shall perform the duty. It is a prohibition dealing with companyduct within the sphere of employment. In respect of a companytention that the driver to whom the vehicle had been entrusted for driving had numberauthority from employer to delegate the driving of the vehicle to another person and because of that the employer cannot he made vicariously liable for the negligence of some one to whom he had purported to delegate the companytrol of the vehicle, it was said at page 1006 The duty in tort of which he was in breach was, in my view, a duty delegated to him by the defendants under his companytract of employment, and for that breach the defendants are vicariously liable numberwithstanding that it resulted from his breach of an express prohibition by the defendants against permitting any other person to drive, for that prohibition did number limit the sphere of his employment, but dealt with the companyduct of Waines within that sphere. It need number be pointed out that different companysiderations might arise if the servant or some stranger was using the vehicle for purpose other than the purpose of his masters business and the accident occurred while the vehicle was being used for that other purpose. But once it is found and established that vehicle was being used for the business of the employer, then the employer will be held vicariously liable even for the lapse, omission and negligence of his driver to whom the vehicle had been entrusted for being driven for the business of the employer. In Staveley Iron Chemical Co. Ltd, v, Jones, 1956 AC 627 1956 1 All ER 403, it was said that the legislation has in numberway altered the standard of care which is required from workmen or employers or that the standard can differ according to whether the workman is being sued personally or his employer is being sued in respect of his acts omissions in companyrse of his employment. In the case of Pitshpabai v. Ranjit Ginning Co., 1977 3 SCR 372, it was said We would like to point out that the recent trend in law is to make the master liable for acts which do number strictly fall within the term in companyrse of the employment as ordinarily understood. We have referred to Sitaram Motilal Kalal v. SantanuprasadJaishankar Bhat, supra where this Court accepted the law laid down by Lord Denning in Onnrod and Another v. supra that the owner is number only liable for the negligence of the driver if that driver is his servant acting in the companyrse of his employment but also when the driver is, with the owners companysent driving the car on the owners business of for the owners purposes. This extension has been accepted by this Court, The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd., already referred to i.e. the first question is to see whether the servant is liable and if the answer is yes, the second question is to see whether the employer must shoulder the servants liability, has been uniformally accepted as stated in Salmond Law of Torts. 15th Ed., p. 606 in Crown Proceedings Act, 1947 and approved by the House of Lords in Staveley Iron Chemical Co. Ltd. v. Jones 1956 A.C. 62? and CI. Ltd. v. Shatwell, 1965 A.C. 656 From the facts of Pushpabais case supra , it will appear that one Purshottam Udeshi was travelling in a car which was driven the Manager of the first respondent companypany. The car dashed against a tree resulting in the death of purshottam. The widow and children of purshottam filed a claim for companypensation. The High Court held that the respondent-company companyld number be held vicariously liable for the act of their driver in taking Purshottam as a passenger as the said act was neither in the companyrse of his employment number under any authority whatsoever. Therefore, the respondent-company was number liable to pay any companypensation. It was pointed out by this Court that recent trend in law was to make the master liable for acts which do number strictly fall within the term in the companyrse of the employment as ordinarily understood. It was held that the respondent-company was vicariously liable in respect of the accident. On behalf of the appellants reliance was placed on the judgment in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697 19661 3 SCR 527. In that case the owner of the vehicle entrusted it to A for plying as a taxi. B used to clean the taxi. He was either employed by the owner or by A. A trained B to drive the vehicle and, took B for obtaining the licence for driving. While taking the test B caused bodily injury to the respondent. At the time of the accident, A was number present in he vehicle. On the question whether the owner was liable, it was held in the majority judgment that the owner was number liable because evidence did number disclose that owner had employed B to drive the taxi or given him the permission to drive the taxi. However, Subba Rao, J. as he then was held that the owner was liable because A did number exceed the authority companyferred on him by the owner in employing B as a servant and permitted him to drive the vehicle in order to obtain the licence for assisting him as a driver. This case was companysidered by this Court in the case of Pushpabais supra and it was said that recent trend in law is to make the master liable for acts which do number strictly fulls within the term in the companyrse of the employment as ordinarily understood. The learned companynsel for the appellants sought to distinguish Pushpabais ease by companytending that therein this companyrt accepted the unauthorised act of the driver being within the companyrse of employment because of his occupying high position of Manager, whereas in the case at hand appellant No, 3 - the driver - was a class IV employee. We do number think that the ratio of the case turns on the position occupied by the driver. The real thrust .of the decision is acceptance of the trend to make the master liable for acts which do number strictly fall within the term in the companyrse of employment as ordinarily understood. In view of sub-section 1 of Section 94 of the Motor Vehicles Act, 1939 Section 146 of the Motor Vehicles Act, 1988 numberperson can use or allow any other person to use a motor vehicle in a public place, unless there is in force relation to the vehicle by that person, a policy of insurance companyplying with the requirements of Chapter VIII. In view of sub-section 2 of Section 94 sub-section 2 of Section 146 of Motor Vehicles Act, 1988 , the said provision is number applicable to any vehicle owned by the Central or State Government and used for government purposes. Sub-section 3 vests power in the appropriate Government to exempt from the operation of sub- section 1 of Section 94 any vehicle even owned by any local authority of any transport undertaking. Section 94 of the old Act as well as Section 146 of the new Act requires that a policy of insurance must provide insurance against any liability to third parties incurred by the person using the vehicle. But there is numbersuch requirement so far the vehicles owned by the Central or State Government are companycerned and if the exemptions are granted from operation of sub-section 1 of Section 94 it is number incumbent even on the part of any local authority or any State transport undertaking to take out insurance policy providing insurance against any liability to third parties incurred by the person using the vehicle. In this background, according to us, the Courts while judging the liability of the Central or Slate Government or local authorities or transport undertakings, which have been exempted from the provision of sub-section 1 of Section 94, have to be more cautious, while recording a finding as to whether in the facts and circumstances of a particular case the Central or the State Government or the local authority of the transport undertaking In question can he held vicariously liable for any act of its employee in the companyrse of employment. As a result of companymercial and industrial growth, even motor accidents are on sleep rise. For numberfault or any companytributory negligence of the victims of such accidents, he families are deprived of their bread carners. The jurisprudence of companypensation for motor accidents must develop towards liberal approach, because of mounting highway accidents. Incidentally, it may be pointed out that in Motor Vehicles Act, 1939, Chapter VII A liability without fault in certain .cases has been introduced Chapter X of the Motor Vehicles Act. 1988 . Sub-section 1 of Section 92A provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use. of a motor vehicle, the owner of the vehicle shall be liable to pay companypensation in respect of such death or disablement in accordance with the provisions of the said Section, Sub-section 2 specifies a fixed amount for such liability without fault. In view of sub-section 3 the claimant is number required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle. Sub-section 4 of that Section says in clear and unambiguous words that a claim for companypensation under sub-section 1 of that section shall number be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death of permanent disablement the claim has been made. Section 92B clarifies that the right to claim companypensation under Section 92A in respect of death or permanent disablement of any person shall be in addition to any other right i.e. the right to claim companypensation on principle of fault. The introduction of provisions creating liability without fault gives out that the Parliament has provided for payment of companypensation within certain limits, ignoring the principle of fault. When even under the law of tort, companyrts have held that the employer is vicariously liable for an authorised act done in an unauthorised manner taking into companysideration the interest of the victims of the accident, according to us, this approach is all the more necessary while judging the liability of the owner of the vehicle under the Statutory provisions of the Motor Vehicles Act. So far the facts of the present case are companycerned, the High Court has rightly companye to the companyclusion, on basis of the pleadings and evidence on record, that it was the year ending day i.e. 31.3.1980 and the clerks and officers were required to work during night time. This direction had been given by the appellant No. 2 who was incharge of the office. It further appears that after numbermal working hours of the office, the employees had gone to their homes and were required to companye back after taking dinner. The jeep was used for bringing such employees to the office. In this background, there is numberescape from companyclusion that jeep was being used in companynection with the affairs of the State and for official purpose. The High Court has also found that respondent who was the clerk in the office of appellant No. 2 was driving the vehicle under the authority of the driver who was in charge of the said vehicle and as the driver had companysumed more liquor on that day he permitted respondent to drive the vehicle that night, The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may number be proper but numberetheless it was directly companynected with in the companyrse of employment- it was number an independent act for a purpose or business which had numbernexus or companynection with the business of the State Government so as to absolve the appellant State from the liability. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injuries caused to third parties who are number directly involved or companycerned with the nature of authority vested by the master to his servant are number deprived from getting companypensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are companycerned on the ground that he had number actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicles had been fully authorised to drive the jeep for a purpose companynected with the affair of the state and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was in the companyrse of employment the appellant State shall be liable for the same. We are of the view that the appellant Stale cannot escape its vicarious liability to pay companypensation to the heirs of the victim.	Case appeal was rejected by the Supreme Court
1995 3 Suppl. SCR 48 The following Order of the Court was delivered Leave grunted. We have heard the companynsel for the parties These appeals by special leave arise from the order dated December 18. 1991 of the Division Bench of Patna High Court at Ranchi in C.WJ.C. No. 911/91. The facts are number in dispute. Respondent No. 1 was appointed as a Government servant on April 13, 1955 and at the relevant time when he went on deputation he was Senior Research Assistant working in the Agriculture Department. He was transferred i.e. sent on deputation to the Rajendra Agricultural University. He tendered his resignation in 1977 and was absorbed as an employee of he University. Similarly, respondents 2-9, while working as Government servants, went on deputation to the Rajendra University and they resigned in 1981. and were absorbed as University employees. On their retirement, a question arose whether the Government is liable to pay pension and if so, to what extent, Since the Government was disowning the liability to pay pension, they approached the High Court under Article 226 of the Constitution. The stand taken by the Government was that under s,39 20 of the Rajendra Agricultural University Act, 1971 for short, the Act , they must he deemed to be re-employed and, therefore, the State was number liable to pay any pension since they resigned and were re-employed in the University, The Government also relied upon letter bearing No. 1/A, P.G.O. 30/85 Agrl. Patna dated 11.5.1.990 and companytended that rule 161 b of Bihar Pension Rules, 1950 for short, the Rules would stand attracted to the respondents and, therefore, the respondents are number entitled to any pension in excess of the pension calculable on the last substantive pay drawn by them. The High Court, relying upon s.39 19 of the Act, which is pari materia with the provisions of the Bihar Agricultural University Act, held that the Governments liability to pay pension still subsists. Therefore, the Government is liable to pay the companypensation proportionate pension to the respondents. Accordingly allowed the writ petition. Mr, B.B. Singh, learned companynsel for the State, companytended that since the respondents had resigned and were re-employed by the University, by operation of the instructions issued in letter dated 11.5.1990, they must be deemed to have been re-employed. Therefore, they are number entitled to pension higher than what they would have got, had they remained as Government servants by operation of Rule 161 b of the Rules. Though he companytended that the Government does number bear the proportionate pension. we do number think that the stand taken by the Government is at all tenable. Section 39 19 of the Act reads thus Such Government servants who choose to resign government service and enter the service of the University shall be companysidered for companypensation, proportionate pension, provided that numbersuch companypensation, proportionate pension shall be allowed to any employee, who resigns in spite of being required by Government lo serve on some other post, under the Government carrying emoluments number less than his pay at the time of such resignation. The first part of section clearly indicates that such Government servants while on deputation with the University service who choose to resign from Government .service and enter the service of the University, shall he companysidered for companypensation proportionate pension. The other part is number material for the purpose of this ease. Hence, it is number necessary to companysider the same. Therefore, it is clear that if a Government servant, while on deputation in the University, had chosen to resign from Government service and was absorbed in the University service, by operation of s.39 19 the State bears proportionate pension companypensation payable to such a former Government servant. At what rate, the University and the Government would proportionately bear the companypensation proportionate pension has number been dealt with under the Act. Therefore, necessarily the Government has to fall hack Upon the Rule 161 b , which envisages thus 161. h A Government servant on re-employment should draw the initial pay of the post unless Government sanction advance increments under Rule 83 of the Bihar Service Code, provided always that the sum total of pay plus pension does number exceed, the substantive pay last drawn by him before discharge. Where the sum total exceeds the last substantive pay only so much of the pension may be allowed lo be drawn as number to make the total of pension plus the initial pay of the post exceed the .substantive pay last drawn. Note 1 - In cases of re-employment of pensioners part of whose pension is recoverable from other Government - provincial or central - if the sum total of pay plus pension exceeds the substantive pay drawn at the time of discharge. the pay on reemployment should number he fixed by keeping the pension in abeyance either in full or in part i.e., the reduction in such cases should be made in the pay itself instead of keeping the pension in abeyance. Note 2 - These restrictions do number apply to ex-policemen whose pension does number exceed Rs, 10 a month. A reading of the Rule clearly indicates that by a fiction it would apply to the University employees of the erstwhile Government servant deeming them to be re-ernployed in the University, Such Government servant should draw his initial pay of the post unless the Government sanctions advance increments under rule 83 of the Bihar Service Code. The proviso makes it clear that the sum total of pay plus pension would number exceed the substantive pay last drawn by him before discharge. In other words, if a Government servant opts for absorption in University service after resignation from Government service, he is entitled to the sum total of pay plus pension which would number exceed the substantive pay last drawn by him before he had tendered his resignation and was discharged by the Government. In other words, the proportionate pension of such Government employee should be calculated with reference to the last drawn pay of the Government employee at the time of acceptance of his resignation by the Government. The rest of the benefits, which such an employee would gel with reference to the last drawn pay on his retirement from the University service on attaining superannuation, would number be borne by the Government. The proportionate liability which the Government is required to bear, by operation of section 39 19 would be with reference to the last drawn pay and the sum total as envisaged in proviso to sub-rule b of Rule 161. The appeals are accordingly allowed. The matter is clarified and the Government and the University shall accordingly calculate the pension and make payment within three months from the date of the receipt of the order.	Case appeal was accepted by the Supreme Court
1995 3 Suppl. SCR 186 The following Order of the Court was delivered The question that arises for determination in this appeal is whether involuntary transfers such as a companyrt sale, is a transaction valid under the provisions of sub-sections 6 and 8 of Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 for short the Ceiling Act , and to be reckoned in decreasing the surplus area? One Jagdish Chander was a tenure-holder in village Bijeser Bijoria, Distt. Shahjahanpur in the State of U.P. He had a large holding being over 1.00 acres of land. On 10-1-1974, he was served with a numberice companytaining the necessary statement of his holding under the provisions of Section 102 of the Ceiling Act. A proposal was appended therewith as to which of his area was proposed to be declared surplus The tenure-holder thereafter filed certain objections. His objections mainly were that his entire holding was unirrigated and had wrongly been termed as irrigated and for this twist, he gave various reasons. He also raised the plea that he had one major unmarried daughter and therefore was entitled to get two additional hectares of land for her. He did number mentioned about his son. Perhaps he was a minor on the crucial date. Lastly, he made an option to effect a change in the lands proposed to be declared surplus. These facts are crystal clear from the narration given in the order of the Additional District and Sessions Judge, Shahjahanpur, appended as Annexure A to the special leave petition. During the pendency of the proceedings, Jagdish Chander died and his heir Ajai Verma was substituted in the year 1984. On 22-8- 1984, 82.49 acres of land of the tenure-holder was declared surplus. The matter rested there so far as Jagdish Chander and his family members were companycerned. The matter for them became closed. The appellants before us were the writ petitioners in the High Court. They are sons of one Dharmendra Nath. This Dharmendra Nath, apparently, had certain money claims on the basis of pronotes against the aforesaid Jagdish Chander, He filed four suits in the civil companyrt for the recovery thereof. The sums involved were small. The suit were decreed basically on companysent or companypromise. All of them were instituted and decided in the year 1972. Purporting to recover those decretal amounts, auction of land on the judgment-debtor was suggested in execution and the executing companyrt in order to recover the decretal sums, put to auction 75.51 acres of land on 17-10-1975 belonging to the Jagdish Chander, permitting the decree-holders, the appellants herein, to purchase the same. The sale was companyfirmed and sales certificates were issued. It is in these circumstances that the appellants moved the Prescribed Authority for setting aside the determination of the surplus area of the decree-holder vide order dated 20-8-1984. Their objection was dismissed by the Prescribed Authority. Their appeal, too, was dismissed by the Additional District Judge on 12-9-1985. This gave an occasion to them to approach the High Court in proceedings under Article 226 of the Constitution. The appellants, however, raised a number of pleas to companytend that their claim had wrongly been negatived being bonafide purchasers of surplus area measuring 75.51 acres by an auction sale and, hence they, were entitled to the protection of law. In fact, it was their father who was the auction-purchaser but on his demise they had been projecting his case as his legal representatives . The State, on the other hand, questioned the auction sale terming it as neither being a bona-fide transaction number for adequate companysideration, giving justification to the Ceiling Authorities to ignore the same. It was highlighted that since the proceedings for determination of surplus area were pending from 10-10-1974 till 22-8-1984, the auction sale effected within that period had to be treated as Void companyferring numberright on the appellants. Section 5 of the Ceiling Act, insofar as it is relevant for our purposes, provides 5. 1 IMPOSITION OF CEILING - 1 On and from the companymencement of the Uttar Pradesh Imposition of ceiling on Land Holdings Amendment Act, 1972, numbertenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. EXPLANATION I - In determining the ceiling area applicable to a tenure- holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. EXPLANATION II - If on or before January 24, 1971, any land was held by a person who companytinues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the companytrary is proved to the satisfaction of the prescribed authority, that the first mentioned person companytinues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person. 2 xxxxxxxx 3 xxxxxxxx 4 xxxxxxxx 5 xxxxxxxx In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January , 1971 which but for the transfer would have been declared surplus land under this Act, shall be ignored and number taken into account PROVIDED that numberhing in this sub-section shall apply to - a a transfer in favour of any person including Government referred to in sub-section 2 b a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate companysideration and under an irrevocable instrument number being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family. EXPLANATION I - For the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 1971 includes a a declaration of a person as a companytenure-holder made after twenty- fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty- fourth day of January, 1971 b any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner. EXPLANATION II- The burden of proving that a case fails within clause b of the proviso shall rest with the party claiming its benefit. 7 xxxxxxx Notwithstanding anything companytained in sub-sections 6 and 7 , numbertenure-holder shall transfer any land held by him during the companytinuance of proceedings for determination of surplus land in relation to such tenure- holder and every transfer made in companytravention of this sub-section shall be void. EXPLANATION - For the purposes of this sub-section, proceedings for determination of surplus land shall be deemed to have companymenced on the date of publication of numberice under sub- section 2 of Section 9 and shall be deemed to have companycluded on the date when an order in relation to such tenure-holder is passed under sub-section 1 of Section 11 or under sub- section 1 of Section 12, or as the case may be, under Section 1.3. The High Court in its judgment under appeal, on applying the abovesaid provisions, arrived at a decision that the appellants had numbercase since they had purchased the area in an auction-sale in the year 1975, sale of which was companyfirmed in 1977, after the date of the companymencement of the Act, i.e., 8-6-1973, when the disputed area belonged to Jagdish Chander, the tenure holder. The High Court viewed that the Ceiling Authorities were fully justified in ignoring the auction sale and treating the auctioned area as holding of the tenure-holder while determining his surplus area. Notice was found to have been given to the son of the tenure-holder, even though residing in Sweden at that time. The High Court also opined the sale would be Void in the facts and circumstances, even though involuntary and being an auction-sale. Besides, the High Court was also of the view that the appellants had failed to produce relevant documents to demonstrate that valid decrees had been passed in good faith against the tenure-holder and that the auction-sale was held in good faith and was valid and legal, removing the suspicion of a large area of 75.51 acres being sold for just a sum of Rs. 10,000 only. The transaction, as such, was viewed by the High Court as number bona fide or for adequate companysideration. The Ceiling Act came as a measure to further promote agrarian reforms and to curtail the size of the land holdings to 7.5 hectares per family. The provisions of the ceiling Act enjoy the protection of the 9th Schedule to the Constitution. In reading the provisions thereof one has to attune oneself with the purposes of the Act. As it is, Section 5 imposes a ceiling on land holdings and has taken care to plug all escape routes by which the measure of the holding companyld, by patent or latent devices, be diminished. The companyrts, and especially the officers in the hierarchy, have to have the necessary insight to see that the purposes of the Ceiling Act are number frustrated. The view of the companyrts would necessarily have to bear that slant in giving full effect to the provisions of the Act. As reproduced above, Section 5 lays down the method of determination of the ceiling area. It is to be companyputed as the holding stood on 24.1.71. All transfers effected thereafter, would have to be ignored number taken into account. Exceptions thereto are provided in the proviso and the explanations. A transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate companysideration and under an irrevocable instrument number being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family is excepted from the purview under sub-section 6. Then again sub-section 8 which starts with a number-obstante clause, inter alia, provides that Notwithstanding anything companytained in sub-section 6 , numbertenure-holder shall transfer any land held by him during the companytinuance of proceedings for determination of surplus land in relation to such tenure-holder and every transfer made in companytravention of this sub section shall be void. The Explanation thereto gives the duration during which proceedings can be said to have companytinued for determination of surplus area. Undeniably, had the transfer of 75,51 acres been made by the tenure-holder himself, sub-sections 1 , 6 8 of Section 5 would warrant ignoring thereof and number being taken into account. Further, if that transfer was within the time during the companytinuance of the proceedings for determination of surplus land then it would be void altogether. This being the scheme of the Act, principly it would number make any difference whether the sale is voluntary or involuntary, for in either way the surplus area would get diminished and susceptible to the adoption of devices so as to diminish the extent of surplus area, expected to be reaped in the measure of agrarian reforms. The High Court was, thus, number wrong in trying to discover and then finally determine that in the absence of full particulars regarding the auction- sale, it was difficult to hold that the auction-sale happened to be bona fide and for adequate companysideration or otherwise valid. The appellants themselves have produced before us the companyies of the judgments decrees of the Civil Court. They are, as said before, for paltry sums of money basically on companypromise or companysent. Significantly, they date back to the year 1972 when agrarian reforms throughout India w.e.f. 24.1.71 was a talk of the times, in media, Press and policy statement of the government of the time. Those amounts were number such which the judgment-debtor companyld number pay off and had to let auction take place of such a large chunk of land of 75.51 acres to be purchased by the decree-holders themselves for a paltry sum of Rs. 10,000 only, even if the tenure-holder were to be believed that the area was unirrigated, though number holding so. That the auction-sale took place at a time when the surplus area proceedings were pending, further goes to show that the transfer was void. The auction-sale cannot be validated merely because it was companyducted under Orders of the Civil Court especially when such sale if allowed to stand would tend to defeat the provisions of the Ceiling Act. That Act would stand as a clear bar to the claim of the decree-holder in respect of lands which were involved in the surplus area proceedings. The view of the High Court thus, as it appears to us, was in companysonance with the letter and spirit of the Act and quite just in the circumstances. We agree with that view. We, thus, companyclude to say that the sales, voluntary or involuntary, are required to pass the test of being bona fide sales and for adequate companysideration so as to be excluded from being companyputed in the surplus area of the tenure-holder and are to be treated as void when taking place during companytinuance of surplus area proceedings.	Case appeal was rejected by the Supreme Court
1995 2 Suppl. SCR 693 in W.P. No. 649 of 1984 and W.P. No. 2249 of 1994. The following Order of the Court was delivered Delay of 840 days companydoned. Leave granted. The appellant is challenging the numberification under s.4 1 of the Land Acquisition Act published on February 3, 1970. Initially, he filed W.P. 649/84 and obtained stay of dispossession of February 16, 1984. That writ petition was dismissed on merits on March 31,1992. The Land Acquisition officer made the award on March 30, 1994 which was challenged in W.P. No. 2249 of 1994, but without success. Thus these appeals by special leave against the original writ petition as well as the second writ petition. Shri Khanwilkar, learned companynsel for the appellant, has stated in fairness that in the first petition he companyld number canvas the bar of limitation under s.11A of the Act for the reason that the appellant had obtained an order through the companyrt on February 16, 1984 injuncting dispossession of the land from him and in view of the judgments rendered by this Court that direction would be an impediment for the authorities to make the award within two years. Therefore, he raised a further companytention that since the award has number been made within two years from the date of the decision of the High Court, namely, March 31, 1992, the award passed under s. 11 is without jurisdiction. We find numberforce in the companytention. It is seen that the bar under s.11A was available to the appellant when the first writ petition was filed, since the Amendment Act 68 of 1984 had companye into force on September 24, 1984 during the pendency of the writ petition. He did number raise the point. Therefore, the doctrine of might and ought engrafted in Explanation IV to s.11 of the CPC would companye into play and the appellant is precluded to raise the companytroversy once over. Therefore, the doctrine of companystructive res judicata puts an embargo on his right to raise the plea of bar of limitation under s.11A. Further, we have seen the xerox companyy of the award, companyy of which had been supplied to the appellant. It clearly indicates that the Land Acquisition Officer made the award on March 30, 1994 under his signature and seal. Under s.12 1 of the Act it is companyclusive evidence of making of the award. Because of the mere fact that the appellant had received the companyy of the award on April 12, 1994, it cannot be held that the award was made on that date. There are numberinterpolations in the signature made by the officer along with the date. It is seen that the over-writing is only in respect of some other matters. Under s.11 2 , it is mandatory that the authorities shall obtain prior approval of the companypetent authority or the State Government in case where the value of the land exceeds the value prescribed under the rules made by the appropriate Government. In fact the award clearly indicates that on May 17, 1993 endorsement was made subject to prior approval. Obviously, the award was made on May 17, 1993 and after obtaining the prior approval, it was signed by the Land Acquisition Officer on March 30, 1994. Therefore, the award was clearly made within two years from the date of the judgment of the High Court. We do number, therefore, find any illegality warranting interference. The appeals are accordingly dismissed.	Case appeal was rejected by the Supreme Court
W I T H CIVIL APPEAL NO.10421 OF 1995 Arising out of SLP C No. 3746 of 1979 O R D E R A. NO.3009 OF 1983 The facts are very brief. Notification under Section 4 1 of the land Acquisition Act, 1894 for short, the Act , acquiring land for a public purpose, namely, to establish Electricity Sub-Station for the Maharashtra State Electricity Board as published in the State Gazetle on April 19, 1966. The Land Acquisition officer in his award determined the companypensation at Rs.5,000/- per acre in respect of an extent of 7 acres 9 gunthas of land in Survey No.124-A situated in Airavali Village in Thane District of State of Maharashtra, but deducted 1/3rd towards the interest of the Government. The respondent had challenged the Governments power to deduct 1/3rd companypensation. The appellate companyrt companyfirmed the same. On appeal, the High Court, while increasing the companypensation to Rs.6,000/- per acre, had directed payment of the deducted 1/3rd amount to the respondent by its judgment and decree dated 10.9.1976 made in F.A. No.574/70. Thus this appeal by special leave. Learned companynsel appearing for the State has companytended that the Government in its circular dated April 26, 1972 issued by Revenue and Forests Department in Letter No. LON- 4767-H, directed deduction of 1/3rd of the market value of the land for the interest in such land held by the Government and that, therefore, the High Court was number justified in interfering with the order. He also companytended that Section 43 of the Bombay Tenancy and Agricultural lands Act, 1948 for short, the Tenancy Act empowers the Collector to grant sanction. It is also empowered thereunder to fix companysideration, as companydition to alienate the land when the Collector has the power to determine the companypensation when the land was acquired for a public purpose. We are wholly unable to appreciate the stand taken by the Government. The object of the Tenancy Act, is to protect the rights of the tiller of the soil, namely, the tenant or who later became owner so as to remain in possession and enjoyment of the land as part of economic justice assured in the preamble and the directive principles of the Constitution. Under the tenancy Act the tenant has been given right to purchase the lands from the erstwhile owner as provided in different sections of the said Act. Sections 43 1 and 43 1A provide that 43 1 No land or any interest therein purchased by a tenant under Section 17 B , 32, 32F, 32-I, 32-O, 32U, 43-1D or 88E or sold to any parson under Section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in companysideration of payment of such amount as the State Government may by general or special order determine and numbersuch land or any interest therein shall be partitioned without the previous sanction of the Collector. 1A The sanction under sub-section 1 shall be given by the Collector in such circumstances and subject to such companyditions, as may be prescribed by the State Government. Other sub-sections are number relevant for the purpose of this case. Hence omitted. A reading thereof clearly indicates that Section 43 was enacted to protect the right, title and interest of the tenant who purchased the property and became owner thereof with a view to see that he is number deprived of his ownership, right to possession and enjoyment thereof as a tiller of the soil to perpetuate the object of the Tenancy Act. As its scheme previous sanction is a companydition precedent for any transfer except when the land is being mortgaged to a companyperative bank or a lending institution envisaged in sub- section 1AA and the Explanation appended thereto amplifies such institutions so as to enable him to obtain loans for improving the land for better cultivation and to augment economic empowerment. The companysideration mentioned thereunder was also to protect the tiller from exploitation, indigence or companypelling dire necessity to alienate the loans and under a fictitious and companyourable transaction or for inadequate companysideration. That, under numbercircumstance, gives power to the Government, when it acquires the land exercising the power of eminent domain to deduct any amount from the companypensation payable to the owner of the land as determined under Section 23 1 of the Act. The sanction required under Section 43 is only when there is a bilateral valid agreement between the owner and a third party purchaser or a lessee or a mortgagee etc. as envisaged under Section 43 1 . But when the State exercises its power of eminent domain and companypulsorily acquires the land, the question of sanction under Section 43 does number arise. Section 23 2 of the Act off sets the unwillingness on the part of the owner paying time scheme. The question, therefore, is whether the Government under the aforestated numberification is entitled to deduct 1/3rd from the companypensation determined under Section 23 1 of the Act. We have seen the numberification and we are unable to accept the validity of the said numberification. When the Collector exercises the power to grant sanction under Section 43 1 , he does it as a statutory authority to protect right, title and interest of the erstwhile tenant who subsequently became the owner to see that he remains to be the owner and companytinues to be in possession and enjoyment of the same. But that companydition to grant sanction is number headed with any right to the Government to deduct 1/3 when it exercises its power of element domain for a public purpose. The owner under Section 23 1 is entitled to the full companypensation of the market value prevailing as on the date of publication of the numberification under Section 4 1 . Therefore, the circular relied on is clearly ultra vires of the power of Section 43 or any other power. The appeal is accordingly dismissed and the order of the High Court is sustained.	Case appeal was rejected by the Supreme Court
1995 3 SCR 113 The following Order of the Court was delivered Mr. Maheshwari, Advocate, accepts numberice for the respondents. Leave granted. We have heard learned companynsel for the appellant and Mr. Gopal Subramaniam, learned senior companynsel for the respondents, placed reliance on the order passed by this Court in CA No.174 and 602- 605/82 dated October 29,1987, wherein the companynsel appearing for the appellant had companyceded in those appeals that the respondents have agreed that the provisions of the amending Act shall apply and escalated rates provided therein would be available. Based thereon, it is companytended by Sri Gopal Subramaniam that it is numberlonger open to the appellant to companytend that the respondents are number entitled to the benefits provided under section 23 1-A of the Land Acquisition Act as amended under Act 68/1984. Section 23 1-A provides that in addition to the companypensation the owner is entitled to the payment of 12 per annum of the enhanced companypensation from the date of the numberification under Section 4 1 till date of passing award by the Collector or taking possession, whichever is earlier. This is independent of the escalation of the solatium and interest provided under sub-s 2 of Section 23, and Section 28 of the Land Acquisition Act as amended under Act 68 of 1984, respectively. Therefore, what was meant by this Court in the above quoted direction is escalation but number independent of the claims available under section 23 1-A since by then that question was pending adjudication before this Court. Under these circumstances, the respondents are number entitled to the benefits under section 23 1-A of Land Acquisition Act. It should accordingly be deleted from the award. It is needless to mention that the respondents shall pay the balance amount as directed by this Court in the earlier order within a period of one month from today. The appeal is allowed accordingly.	Case appeal was accepted by the Supreme Court
1995 2 SCR 669 The Judgment of the Court was delivered by VENKATACHALA, J. The appellant was the plaintiff in suit - O.S. No. 3980/69 in City Civil Court at Madras, while respondents-1 to 5 were defendants-I to 5 therein. That suit had been instituted by the plaintiff-the trustees of Port of Madras against the defendants for recovery of demur-rage charges and other incidental charges in respect of certain textile goods in their custody in the customs area of the Port of Madras. Defendant-I was the companysignor-exporter of those goods. Defendant-2 was the shipping agent who had to put those goods on board the ship for their export. Defendant-5 is the alleged successor of defendant-2 firm. Defendant-4 is the Collector of Customs who, on behalf of the Union of India, defendant-3 was responsible for illegal detention of the goods in the customs area of the Port of Madras giving rise to the claim for demurrage charges and other incidental charges by the plaintiff. The City Civil Court dismissed the suit against all the defendants as in its view companysignor - exporter of those goods companyld number be held liable for demurrage charges and incidental charges payable for those goods when they had been illegally detained in the customs area of the Port of Madras by respondent- 4, purporting to exercise his powers under Customs Act. The plaintiff questioned the companyrectness of that judgment and decree of the City Civil Court dismissing its suit against all the defendants, by presenting an appeal therefrom before the High Court of Madras in Appeal No. 494/73. But, that appeal was also dismissed. It is the judgment and decree of dismissal of that appeal by which the judgment and decree of dismissal of the suit by the City Civil Court is affirmed, which is appealed against in this Court in the present appeal of the plaintiff. We have heard learned Counsel for the parties in the appeal A three Judge Bench of this Court in International Airports Authority of India v. M s. Grand Slam International Ors., 1995 1 SCALE 859, has ruled that the importer- companysignee of goods cannot avoid his liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the Airport by the Customs Authorities under the Customs Act. The said ruling of this Court as regards liability for demurrage charges and other incidental charges by importer-consignee of goods illegally detained in the customs area of the Airport by the Customs Authorities applies to the liability to pay demurrage charges or incidental charges by the exporter-consignor of goods illegally detained in the customs area of the sea-port by the Customs Authorities under the Customs Act, for such goods illegally detained by the Customs Authorities, the fact that they belonged to either the importer-consignee or exporter-consignor does number make any difference. In the said view of the matter, the judgments and decrees under appeal are liable to be set aside and the suit of the plaintiff calls to be decreed against exporter-consignor, defendant-1. In the result, we allow, this appeal, set aside the judgments and decrees of the companyrts below and decree the suit O.S.	Case appeal was accepted by the Supreme Court
1995 3 SCR 268 The following Order of the Court was delivered Leave granted. We have heard the companynsel on both the sides. The appellant was appointed as a Temporary Constable on September 9, 1982. After his undergoing training, he was posted to 7th Bn. The Central Services Temporary Service Rules, 1966 for short the Rules and other Rules as numberified vide Delhi Administrations Notification No. 10/5/79 Home P Establishment dated December 17, 1980 are applicable to the Service companyditions of the appellant. He companytinued upto September 14, 1988 on. which date the respondents issued and served an order under Rule 5 e of the Rules terminating his services with the expiry of a period of one month from that date. The appellant when questioned the same in the Central Administrative Tribunal in C.A. No. 1969/88, by order dated December 15, 1993 it had dismissed the petition and his review application also was dismissed. Thus, this appeal. In the companynter affidavit it was stated that from the perusal of his service record it was observed that the appellant had absented himself willfully in unauthorised manner on 65 occasions from time to time during his entire service of six years and he was number found fit for issue of quasi permanency by various officers and was awarded punishment of censure and period of absence without pay after regular departmental enquiry. That the appellant was found habitual absentee and incorrigible type police employee and this companyld have set bad example to other employees of uniformed force. The appellant had number shown any capacity or devotion to his duties number he performed the same efficiently. Therefore, his retention in service for more period was companysidered number desirable for the discipline of the force. Rule 5 e of the Rules reads as follows e i All direct appointments of employees shall be made initially on purely temporary basis. All employees appointed to the Delhi Police shall be on probation for a period of two years. Provided that the companypetent authority may extend the period of probation but in numbercase shall the period of probation extend beyond three years in all. The services of an employee appointed on probation are liable to be terminated without assigning any reason. After successful companypletion of period of probation, the employee shall be companyfirmed in the Delhi Police by the companypetent authority, subject to the availability of permanent post. A reading thereof clearly indicates that all direct recruits are required to be on probation for a period of two years and in numbercase the probation would extend beyond the period of three years. During the period of probation the probationer is required to companyplete successfully the probation companyplying with the companyditions of passing the test etc. There- after, they need be companyfirmed in the Delhi Police service. The companyfirmation into the service,- therefore, is a companydition precedent, to companytinue as a member of Delhi Police Service. In spite of giving repeated opportunities to improve himself he failed to improve his performance. So he was given numberice on 14.9.1988 terminating his service by the impugned order. It is companytended by the learned companynsel for the appellant, placing reliance on State of Punjab v. Dharam Singh, AIR 1968 SC 1210, that even if the appellant was number companyfirmed by passing any order, on expiry of three years he must be deemed to have been companyfirmed as a member of the Service. Thereafter, the respondents had numberjurisdiction to terminate his service. It is difficult to accept the companytention. Dharam Singhs case bears numberrelevance, as similar provision was number there in the companycerned rule. Successful companypletion of probation is a companydition precedent for companyfirmation as envisaged in clause iii of Rule 5 e of the Rules. The authorities have power to allow maximum period of 3 years of probation. In this case instead of giving him three years, they have given long 5 years period so as to see whether the appellant would improve his performance in the service. Since they found that there was numbersatisfactory improvement, his probation was terminated and was removed from service as a probationer. Under these circumstances, we do number find any illegality in the action taken by the respondents warranting interference. The appeal is accordingly dismissed.	Case appeal was rejected by the Supreme Court
1995 3 SCR 264 The following Order of the Court was delivered Leave granted. Appellant, Mohan Singh, was promoted as an Assistant on 20.10.1973 and was companyfirmed with effect from 13.10.1980. When vacancy in the post of Superintendent Grade-I arose on 27.11.1989 on promotion of one Gurdev Singh as Assistant Registrar, the Advocate General, Punjab promoted him as Superintendent Grade-I. Calling that promotion in question, respondents Tarlok Singh and Deena Nath Singla filed CWP No. 80/90 in the High Court which was allowed by the learned Single judge and LPA No. 796/94 filed by appellant Mohan Singh was dismissed by a Division Bench by order dated 26.11.1994. Thus, these appeals by special leave. The only question is whether the appellant is entitled for promotion from the post of Assistant to the post of Superintendent Grade-I. Learned companynsel for the respondents companytended that the post which fell vacant on the promotion of Gurdev Singh was number reserved, it being the fifth post and, therefore, the appellant was number entitled to that post. We find numberforce in the companytention. The chart at page 16 of the Paper Book prepared on the basis of averments made in the companynter affidavit of the Advocate General filed in the High Court clearly indicates that the first vacancy occurred on 3.6.70. On second occasion, namely, 17.7.1975, a second post of Superintendent Grade-I was created and Shiv Kumar Sharma, who was working as P.A. to the Advocate General was appointed to that post. It is companytended that the same cannot be companysidered as second vacancy. We do number agree, as when the second post was created on 17.7.1975, though the incumbent was promoted along with creation of the post, it is clear that a vacancy had arisen. Thus companysidered, the Advocate General was right in his stand taken in the High Court that the vacancy at hand was the 6th vacancy reserved for member of the Schedule Castes as per the roster. The companytention raised in this matter, which was accepted by the High Court, is whether double jump can be given from the post of Assistant to the post of Superintendent Grade-I when intermediary post of Superintendent Grade-II is available. Though prima facie the companytention appear to be attractive as indicated in the order dated 16.1.1995 while issuing numberice, on going through the rules we find that the same is really number acceptable. It is number in dispute that Rule 8 of the Punjab Civil Secretariat State Service Class III Rule, 1963 provides thus The posts in the service shall be filed in the following manner In case of Superintendent or Section Officer i by promotion from amongst Assistants. Section Officers of the Punjab Civil Secretariat having an experience of working on that post for a minimum period of one year or from amongst such Deputy Superintendents, Assistants-in-charge and Assistants as are members of the Punjab Civil Secretariat State Service Class-Ill and have an experience of working as Deputy Superintendent for a minimum period of one year or an experience of working as an Assistant for a period of ten years, as the case may be. It would clearly indicate that a Section Officer of the Punjab secretariat having an experience of working on that post for a minimum period of one year, or Deputy Superintendent, Assistants- in-charge and Assistants as members of the Punjab Civil Secretariat State Service Class-III and having experience of working as Deputy Superintendent for a minimum period of one year or an experience of working as an Assistant for a period of ten years, as the case may be, are eligible for promotion to the post of Superintendent Grade I. In other words, a Deputy Superintendent with a minimum experience of one year in that post or an experience of 10 years as an Assistant is eligible for promotion to the post of Superintendent Grade- It is true, as rightly companytended for the companytesting respondents, that Rule 8 is inapplicable, as admitted by the Government in their appeal which is a companypanion to this appeal. But Rule 8 permitted the promotion in question. The Advocate-General also drafted rules similar to Rule 8 and sent to the Government and are pending approval When a practice has grown to accept aforesaid Rules and when Rule 8 is being applied to the Secretariat service, we find that there would be numberjustification to deny the same benefit to the persons in allied services though the rules are number per se applied, unless discernible differentia touching the nature of the service is shown to which effect there is numberhing before us. The Government in their appeal has supported the companytention of the Advocate-General in promoting the appellant. It is seen that earlier this principle was followed in the office of the Advocate- General numberdoubt prior to creation of the post of Superintendent Grade II. When the practice has grown and the Government itself has been following the same rules and draft rules also companytain such a provision, we think that the same may also be followed in the office of the Advocate-General which is part of .the wing of the Government. Under these circumstance, the High Court was number right in allowing the writ petition filed by respondent Nos. 3 and 4. The appeals are accordingly allowed. The orders of the Division Bench and the Single Judge are set aside. The Writ Petition filed by these respondents stands dismissed.	Case appeal was accepted by the Supreme Court
1995 3 SCR 129 The following Order of the Court was delivered Leave granted. Heard both the companynsel on merits. The only question is whether the appellant is entitled to the benefit of Rule 6-A of the Karnataka Government Servants Seniority Rules, 1957, for short the Rules, amended with effect from November 13, 1969. The factual matrix lie in a short companypass. The appellant was appointed in the defence service as an Emergency Commissioned Officer with effect from June 30, 1963 and he was released from defence service on 16.9.1967 after numbern. Thereafter, he was again granted companymission in NCC and he joined the service on 30.12.1967. He companytinued in NCC upto 21.6.1972 after-noon. In the meanwhile, he had applied for the recruitment in the Karnataka State Civil Service as a Probationary Commercial Tax Officer. He was selected and appointed with effect from 27.6.1972 Forenoon. On its basis, he claimed seniority from 1963 and when denied, he approached the Tribunal in Application Nos. 1875/90 and 4720/90. When there was a difference of opinion between the two members of the Tribunal, on reference, the Full Bench held that the matter is companyered by the orders of this Court in State of Karnataka v. B.S.N. Reddy Ors., 1995 Suppl. 3 SCC 657 and rejected the relief. Thus this appeal by special leave. Rule 6-A reads thus Rule 6-A The transfer or appointment of 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 to any equivalent class or grade of service in the State Civil Services shall number be treated as first appointment to that class or grade of service in the State Civil Services shall number be treated as first appointment to that class or grade of service for purpose of seniority, and the seniority of an officer so transferred or appointed shall be deter-mined with reference to his first appointment to the class or grade of service or services to which he belonged prior to such transfer or appointment. Provided that, where such transfer or appointment is made at the request of the officer, he shall be placed in the seniority list of the class or grade of service to which he is transferred or appointed below the persons borne on that class or grade of service immediately prior to the date of such transfer or appointment. Provided further, that the seniority of a person transferred in public interest via a vis the person actually holding the post in the class or grade to which he is transferred shall be determined on the date of such transfer with reference to his first appointment to the class or grade from which he was transferred. Explanation is number relevant, hence omitted. In B.S.N. Reddys case supra this Court had specifically left this point open thus In the present case it is number necessary to examine the impact of that Rule on the question of fixation of seniority of any person who while in the Defence Service or an All India Service named in the Rule came to be appointed to the State Service without any break in the companytinuity of his services. In that case since there was a break in service, it was held that Rule 6-A did number apply to the respondents therein. Thus, it companyld be seen that question of seniority of a person, who had the companytinuity of service in the Defence as well as State Civil Services, was left open. Therefore, the point is at large and is available to the appellant for companysideration in this case. A reading of the Rule would clearly indicate that the transfer or appointment of an officer of the Defence Services to an All India Service or a Civil Service of the Union or the Civil Service of any other State to any equivalent class or grade of service in the State Civil Services shall number be treated as first appointment to that class or grade of service for purpose of seniority. Therefore, the Rule indicates that there should be companytinuity of the service. In other words, there would number be any break in service. If there is numberbreak in service, certainly the appellant is entitled to fixation of seniority with effect from 30.6.1963. But the question is whether he had the companytinuity of service. It would appear that when he requested for companydonation of the break in service between the Defence and the NCC, the Government of India in its proceedings dated 18.12.1972 stated thus Granted seniority with effect from 13th Oct., 1963 for the previous companymissioned service rendered in the Armed Forces vide Dte. Gen. NCC letter No. 5110/68/NCC-PRES A VOL VIII dated 20 Nov. 68. In other words, the companytinuity was given for the purpose of seniority w.e.f. October 13, 1963. But the larger question is whether the service in the NCC is a Defence Service? By way of an amendment, the appellant sought for relief in the petition but that was number decided and the tribunal observed that, that would be eminently a matter to be decided by the Government. Under these circumstances, we cannot make any declaration whether the service rendered by the appellant in the NCC would be a part of Defence Service. In the event, the Government companyes to the companyclusion that the service rendered by the appellant in NCC would be a part of the Defence Service, certainly, he would be entitled to the companytinuity of the service w.e.f. 30.6.1963. The appeals are, therefore, allowed. The orders of the Tribunal are set aside. The matter is remitted to the Government for companysideration of the case of the appellant whether the service rendered by him in NCC would be companysidered to be a Defence Service for the purpose of applying Rule 6-A of the Rules.	Case appeal was accepted by the Supreme Court
1995 3 SCR 1062 The Judgment of the Court was delivered by RAMASWAMY, J. Leave granted in SLP NOS. 3554, 5453, 6054, 2815/79, 3182/87, 4150/92, 12520/86 and 5791/95. These appeals by Certificate under Article 133 arise from the judgment of the Full Bench of Allahabad High Court in Smt. Chandra Rani v. Vikram Singh, 1979 Allahabad Law Journal 401. The respondents laid the suits in the Courts of Small Causes for recovery of arrears of rent or for rent and possession from the appellants. On their companymitting default in payment of rent in pending suit, their defence was struck off under Order 15 Rule 5 of CPC as amended by U.P. Civil Laws Reforms and Amendment Act, 1976, U.P. Civil Laws Amendment Act 37/1972 and U.P. Civil Laws Amendment Presidents Act 19/73. They challenged the vires of Order 15 Rule 5. On reference, the Full Bench held that it is number inconsistent with the CPC Central Amendment Act 104/76 for short, the Central Act and is number void under Article 254 1 of the Constitution. By U.P. Act 37/72, s.4 of the Provincial Small Causes Court Act was amended empowering the Court of Small Causes to decree suit for possession of immovable property and for recovery of arrears of rent or interest in such property. By U.P. Act 37/72, brought on statute, Rule 5 of Order 15, stating thus- Striking off defence on failure to deposit admitted rent, etc. - I In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or companypensation for use and occupation, the defendants shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or number he admits any amount to be due, he shall throughout the companytinuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the companyrt may subject to the provisions of sub-rule 2 , strike off his defence. Explanation 1. - The expression first hearing means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2. - The expression entire amount admitted by him to be due means the entire gross amount, whether as rent or companypensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making numberother deduction except the taxes, if any, paid to a local authority in respect of the building on lessors account and the amount, if any deposited in any companyrt under Section 30 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972. Explanation 3. - The expression monthly amount due means the amount due every month, whether as rent or companypensation for use and occupation at the admitted rate of rent, after making numberother deductions except the taxes, if any, paid to a local authority in respect of the building on lessors account. Before making an order for striking off defence, the companyrt may companysider any representation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or, of the expiry of the week referred to in sub-section 1 , as the case may be. The amount deposited under this rule may at any time be withdrawn by the plaintiff Provided that such withdrawal shall number have the effect of prejudicing any claim by the plaintiff disputing the companyrectness of the amount deposited Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the companyrt may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same. Consequentially Order L Rule l b of CPC was suitable amended by Presidents Act 19/1973 so that Rule 5 of Order 15 would companysistently be applicable to the suits for recovery of possession and arrears of rent or recovery of rent simplicitor, as the case may be. After the Central Act was enacted on September 1976 and received the assent of the President on the same day, i.e. September 9, 1976, it was published in the Central Gazette on December 10, 1976, the U.P. State Legislature swung into action and enacted U.P. Civil Laws Reforms and Amendment Act 57/76 on December 13, 1976 reserved for companysideration and received the assent of the President on December 30, 1976. It was published in the Gazette on December 31, 1976 brought into force with effect from January 1, 1977. The Central Act became operative with effect from February 1, 1977. In U.P. Act 57/76 by s.7 thereof, three Explanations to Sub-rule 1 to Rule 5 of Order 15 were added as referred to hereinbefore. When these appeals came up for final disposal, on July 14, 1987 a Bench companysisting of E.S. Venkataramaiah and K.N. Singh, JJ as they then were referred the appeals for companysideration by a Bench of three Judges. Thus these appeals have companye up before us. Shri Parag, learned companynsel, after thorough preparation, placing strong reliance on Ganpat Giri v. Ilnd Addl. District Judge, 1986 1 SCR 151, argued with companymitment and companyviction, that the object of the Central Act was that Parliament intended that CPC should be uniform throughout India. The U.P. Act came into force prior to the Central Act was brought into force on February 1, 1976. The State Act or a provision made by a High Court to the order previously made by companysistent with the provisions of the Code as amended by the Central Act which alone remain valid. All the pre-existing amendments made by the appropriate State legislature or a High Court stand repealed. Order 15 Rule 5 is one such prior amendment made by the State Legislature which is companysistent with the Central Act from the date of its companymencement. By operation of clause 1 of Article 254, the State Act became void. The striking of the defence, therefore, is companytrary to law. Shri Manoj Swarup companytended that the State amendment violates Article 14. An honest litigant who admits of arrears is made to suffer the onslaught of Order 15 Rule 5, while dishonest tenant who denies rent is permitted to defend the suit by adduction of evidence. The striking off valid defence raised by an honest litigant, for his failure to pay the arrears is made to pay the penalty of his defence being struck off creating unjust and unfair procedure violating Article 14. The High Court certified two questions of law for decision by this Court as under Whether Rule 5 inserted in Order XV C.P.C. by the U.P. Civil Laws Amendment Act, 1972 and substituted by new Rule 5 of the U.P. Civil Laws Reforms and Amendment act, 1976 is companysistent with the provisions of the Principal Act as amended by the Central Civil Procedure Code Amendment Act, 1976 and stands repealed? Whether Section 97 1 and 3 and of the Central Civil Procedure Code Amendment Act, 1976 are retrospective and the orders passed before 1.2.1977 striking off the defence for number- companypliance of Rule 5 are to be set aside? It would appear that companysequent upon Rent Acts made by the State legislature to protect unreasonable eviction of the tenants by the landlords torrent racket and when tenants taking aid of accrued statutory tenancy, companymit default in the payment of rent and drive the landlords to recover the same by filing civil suits, undue delay in disposal of the suits cause companysiderable hardship to the landlords. To remedy the situation of occupation of the building without paying arrears or accumulated arrears of rent, with a view to restoring the equilibrium between the companypeting interests of the tenants and landlords and to relieve the latter from hardship, the State legislature stepped in and introduced Rule 5 to Order 15 so as to enable the landlord to make an application to the Court for direction to pay the admitted rent and on an order passed in that behalf and on failure to companyply therewith, the Court is empowered to strike off the defence of the tenant so as to enable the landlord to have the suit decreed and to recover possession and arrears of rent. The Central Act was enacted pursuant to the recommendation made by the Law Commission of India. The Central Act is an Amending Act as its title itself unmistakably indicates. In Order 15, the Central Act amended only Rule 2 but Rules 3 and 4 remain unamended. The U.P. Act, added Rule 5 to get over the inequilibrium created by recalcitrant tenants, giving an opportunity to the defaulting tenants to pay the admitted rent pending suit at the pain of striking down the defence. The question, therefore, is whether Rule 5 of Order 15 is inconsistent with the Central Act and thereby became void under Article 254 1 of the Constitution? Entry 13 of the Concurrent List of the 7th Schedule to the Court, namely, Civil Procedure, including all matters included in the Code of Civil Procedure, empowers the Parliament and the legislature of the State to make or amend the law in that behalf. The Legislature of the State has power to amend Sections as well as Schedules to the Code while a High Court is empowered to amend the orders on the Schedules. The Central Act being an Amending Act to the Code of the Civil Procedure Act 5/1908 existing at the companymencement of the Constitution appropriate amendments are permissible. Article 254 1 envisages that if any provision or law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is companypetent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause 2 , the law made by the Parliament whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void. Clause 2 of Article 254 is an exception to clause 1 which adumbrates that where a law made by the Legislature of a State with respect to one of the matters enumerated in the companycurrent list companytains any provision repugnant to the provision of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the companysideration of the President and has received his assent, prevail in the State, provided that numberhing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding or, amending, varying or repealing the law so made by the Legislature of the State. Emphasis supplied . In Zaverbhai Amaidas v. State of Bombay, 1955 SCR 799 at 809, a Constitution Bench of this Court companysidered whether s.7 of the Essential Supplies Temporary Powers Act, 1946 as amended in 1948 and 1949 repealed by implication, the Bombay Act XXXVI of 1947 being inconsistent with Article 245 1 of the Constitution. At page 809, the Constitution Bench held that Whether an Act of Parliament prevails against a law of the State, numberquestion of repeal arises but the principle on which the rule implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will equally applicable to a question under article 254 2 whether the further legislation by Parliament is in respect of the same matter as that of the State law. It was held that Bombay Act cannot prevail against the Central Act. This Court in Ch. Tika Ramji v. State of U.P., 1956 SCR 393, another Constitution Bench was to companysider whether the U.P. Sugarcane Act, 1953 was inconsistent with the Essential Commodities Act, 1955. Having adverted to the three principles laid by Nicholas in his Australian Constitution, 2nd Ed. p.303 approved them as those applicable to test inconsistency or repugnancy, namely 1 there may be inconsistency in the actual terms between companypeting statutes, 2 though there may be numberdirect companyflict, a State law may be inoperative because the Commonwealth law or the award of the Commonwealth Court, is intended to be companyplete exhaustive companye, and 3 even in the absence of intention, a companyflict may arise when both State and Commonwealth seek to exercise their powers for the same subject matter. It was, therefore, held that there was numberconflict between the State Act and the Central Act and both do companyexist. In Deep Chand v. State of Uttar Pradesh, 1959 Supp. 2 SCR 8 at 43. Subba Rao, J. speaking for majority held that the repugnancy between two statutes may thus be ascertained on the basis of the following three principles Whether there is direct companyflict between the two provisions Whether Parliament intended to lay down an exhaustive companye in respect of the subject matter replacing the Act of the State Legislature and Whether the law made by Parliament and the law made by the State Legislature occupy the same field. Examining the provisions of the U.P. Transport Service Development Act 9/1955 and the Motor Transport Amendment Act, 1956, held that the State Law did number, on the passing of the Central Act, become wholly void under Article 254 1 of the Constitution and companytinued to be valid and subsisting law supporting the scheme already framed under the U.P. Act. Entire case law was reviewed by yet another Constitution Bench in M. Karunanidhi v. Union of India, 1979 3 SCR 254, and held that the Tamil Nadu Public Men Criminal Misconduct Act, 1973 was number repugnant to the Code of Criminal Procedure or the Prevention of Corruption Act or Criminal Law Amendment Act, 1952. In that behalf, this Court emphasised that in deciding the question of repugnancy, it must be shown that the two enactments companytain inconsistent and irreconcilable provisions so that they cannot stand together or operate in the same field. There companyld be numberrepeal by implication unless the inconsistency appears on the face of the two statutes. Both statutes, if operate in the same field without companying in companylision with each other there would be numberrepugnancy. If the statute occupying the same field seeks to create distinct and separate offences, numberquestion of repugnancy arises and both statute companytinue to operate in the same field. In Krishna Dist. Cooperative Marketing Society Ltd., Vijayawada, v. N.V. Pumachandra Rao, AIR 1987 SC 1960, following the Maxwells Interpretation of Statutes, held that when the latter Act is capable and reasonably applicable without extending it to the subjects specially dealt with by the earlier legislation, it cannot be held that earlier special legislation indirectly repealed, altered or derogated merely by force of such general words without any indication of a particular intention to do so. Mere general rule is number enough even though by its term, it is stated widely that it would, taken by itself, companyer special cases of that kind referred to earlier. In Gauri Shankar Gaur v. State of U.P., 1994 1 SCC 92, the question was whether the Land Acquisition Amendment Act 68/84 repealed the U.P. Avas and Vikas Parishad Adhiniyam, 1965, one of us K. Ramaswamy, J. companysidered the case law whether Central Act would be applicable by reference or by incorporation and held that certain provisions of the Central Act were by incorporation and number by reference. On incompatibility under Article 254 of the Constitution, companysidered the cases starting from Zaverbhais upto T. Barai v. Henry Ah Hoe, 1983 1 SCR 905, held that the State law was number repugnant to the Central Act and both would operate companysistently and they did number occupy the same field. State law was number fully inconsistent with the Central Act. Equally, it is number absolutely irreconcilable. Both the State and the Central Acts do companyexist in relation to the procedure prescribed under the respective Acts. Both the Acts companyexist independently without, in any way, companyliding with each other. Therefore, s.55 of the Adhiniyam and the Schedule did number become void. Clause 2 of Article 254 is an exception to Clause 1 . If law made by the State Legislature is reserved for companysideration and received assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central Law and operates in that State as valid law. If the Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State legislature, if found inconsistent with the Central amended Law, both Central law and the State Law cannot companyexist without companyliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State Law becomes void under Article 254 1 unless the State Legislature again makes law reserved for the companysideration of the President and received the assent of the President. Full Bench of the High Court held that since U.P. Act 57/76 received the assent of the President on December 30, 1976, while the Central Act was assented on September 9, 1976, the U.P. Act made by the State Legislature, later in point of time it is a valid law. Shri P.P. Tripathi companytented that the repugnancy arises number with the making the law as envisaged in Clause 1 of Article 254 but when Act was brought into operation since State Act came into force with effect from January 1, 1977 while the Central Act became operative from February 1, 1977, the U.P. Act is an earlier enactment to the Central Act. The Parliament evinced intention to bring about an exhaustive amendment to the CPC and is applicable to all States. The State amendments, being inconsistent with the Central Act, became void. We find numberforce in the companytention. Section 97 1 , with a marginal numbere repeal and savings , envisages that any amendment made or any provision incorporated in the Principal Act by a state legislature or a High Court before the companymencement of the Central Act shall, except in so far as amendment or provision is companysistent with the provisions of the Principal Act as amended by the Central Act, stands repealed. The emphasis as rightly stressed by Sri Parag is any amendment to CPC made by the state legislature or a provision by the High Court before the companymencement of this Act stood repealed. It is to be numbered here that the Central Act is an amending Act, number a repealing and companysolidating statute to supplant the Principal Act, namely, Act 5 of 1908. Since CPC is a companycurrent subject, the Parliament and the Legislature of a State or a High Court in respect of orders in the Schedule are companypetent to enact or amend CPC respectively. In fact several local amendments made to CPC before the companymencement of the Central Act do exist. Pursuant to the recommendation made by the Law. Commission of India to shorten the litigation, the Parliament made the Central Act to streamline the procedure. It is true that inconsistency in the operation of the Central and the State Law would generally arise only after the respective Acts companymenced their operation. Section 3 13 of the General Clauses Act defines companymencement to mean the day on which the Act or Regulation companyes into force. The founding fathers were companynizant to the distinction between making the law and companymencement of the operation of the Act or Regulation. Article 254, clauses 1 and 2 and in a way s.97 of the Central Act are also alive to the distinction between making the law and companymencement of the law. In Collins English Dictionary at p.889 make is defined to mean, to cause to exist, to bring about or to produce. Blacks Law Dictionary, 6th Edn. at p.955 making is defined to cause to existto do in form of law to perform with due formalities to execute in legal form The verb made in Art. 254 brings out the companystitutional emanation that it is the making of the law by the respective companystituent legislatures, namely, the Parliament and the State Legislature as decisive factor. Commencement of the Act is distinct from making the law. As soon as assent is given by the President to the law passed by the Parliament it becomes law. Commencement of the Act may be expressed in the Act itself, namely, from the moment the assent was given by the President and published in the Gazette, it becomes operative. The operation may be postponed giving power to the executive or delegated legislation to bring the Act into force at a particular time unless otherwise provided. The Central Act came into operation on the date it received the assent of the president and shall be published in the Gazette and immediately on the expiration of the day preceding its companymencement it became operative. Therefore, from the mid- night on the day on which the Central Act was published in the Gazette of India, it became the law. Admittedly, the Central Act was assented to by the President on September 9, 1976 and was published in the Gazette of India on September 10, 1976. This would be clear when we see the legislative procedure envisaged in Arts. 107 to 109 and assent of the President under Art. 111 which says that when a Bill has been passed by the House of the People, it shall be presented to the President and the President shall either give his assent to the Bill or withhold his assent therefrom. The proviso is number material for the purpose of this case. Once the President gives assent it becomes law and becomes effective when it is published in the Gazette. The making of the law is thus companyplete unless it is amended in accordance with the procedure prescribed in Arts. 107 to 109 of the Constitution. Equally is the procedure of the State Legislature. Inconsistency or incompatibility in the law on companycurrent subject, by operation of Art. 254, clauses 1 and 2 does number depend upon the companymencement of the respective Acts made by the Parliament and the State legislature. Therefore, the emphasis on companymencement of the Act and inconsistency in the operation thereafter does number become relevant when its voidness is required to be decided on the anvil of Art. 254 1 . Moreover the legislative business of making law entailing with valuable public time and enormous expenditure would number be made to depend on the volition of the executive to numberify the companymencement of the Act. In companypatibility or repugnancy would be apparent when the effect of the operation is visualised by companyparative study. It is true that CPC, the principal Act No. 5 of 1908 as amended by the Central Act and the pre-existing State amendment or a provision made by a High Court was intended to be companysistent so that the procedure would uniformly be efficacious and expeditious in adjudicating the substantive civil rights of the parties. It, thereby manifested its intention that there should be amendment to the Principal Act by the Central Act to a particular Section or a Rule or sub-rule or a provision in an Order in the Schedule. If the Principal Act, as so amended, and the pre-existing State amendment or a provision made by the High Court is found to be inconsistent with the amendment brought under the Central Act, then to the extent of inconsistent pre-existing amendments made by State Legislature or a provision made by the High Court becomes void by operation of clause 1 of Art. 256. By operation of sub-s. 1 of s.97 of the Central Act, it stands repealed unless State Act is passed, reserved for companysideration and received the assent of the President under clause 2 of Article 254. Section 1 2 of the Central Act visualises that the Central Government may bring into operation different provisions in the Central Act at different dates by a numberification published in a Gazette. As a matter of fact, three different numberifications were published in the official gazette bringing diverse provisions of the Amendment Act into operation form three different dates. All the provisions except amended ss.28, 34 and 148A were brought into force on February 1, 1977. Sections 28 and 148A were brought into force with effect from February 1, 1977 and s.34 was brought into force with effect from July 1, 1977. The legislative business done by the appropriate State Legislature cannot be reduced to redundance by the executive inaction or choice by the Central Government by issuing different dates for the companymencement of different provisions of the Central Act. The Constitution, therefore, made a clear demarcation between malting the law and companymencement of the law which, therefore, bears relevance for giving effect to Article 254. In this view the expression that provision in s.97 l of the Amendment Act must be understood in juxtaposition to Art.254 of the Constitution and number in derogation thereof. If the companytention of the companynsel that the companymencement of the provision is a companydition precedent to bring about inconsistency by statutory interpretation, the word made be substituted with the word companymencement in Article 254 1 and 2 of the Constitution which is impermissible by interpretative process and amounts to judicial legislation. The companytention of the learned companynsel proceeded on the assertion that the Central Act is a companysolidation Act intended to repeal Act 5/1908 and re- enact Act 104/76 to be a companyplete companye is misconceived. The title of the Act itself manifests the intention of the Parliament that it is an Amending Act to various provisions of the CPC by only 96 Sections to the main Code. It is also true that s.97 l of the Central Act says that any amendment, made, or any provision inserted to the principal Act by a State legislature or a High Court before the companymencement of the Central Act shall, except in so far as amendment or provision is companysistent with the provisions of the principal Act as amended by the Central Act, stood repealed. The companytention advanced by the learned companynsel for the appellants is that all pre-existing amendments stood obliterated unless fresh amendment, by the State Legislature or a High Court, is made after February 1, 1977 reserved for companysideration and received the assent of the President. In support thereof they placed reliance on the ratio in Ganpat Gins case. It may be mentioned at once that Justice Venkataramaiah as he then was who rendered the judgment in Ganpat Gins case, on behalf of a Bench of two judges, himself referred the cases for companysideration by a three Judge Bench. In that case, some observations made would lend support to the companytention of the appellant. It was observed thus The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil companyrts subject to companyrse to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be in accordance with law. Until such amendment is made the Code as amended by the Amending Act along should govern the procedure in civil companyrts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is number under appeal before us. Section 97 1 of the Amending Act takes numbere of the several local amendments made by a State Legislature and by a High Court before the companymencement of the Amending Act and states that any such amendment shall except insofar as such amendment or provision is companysistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operatives on the companymencement of the Amending Act, i.e. on February 1, 1977. The repealing provision in section 97 1 is number companyfined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The ratio therein must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the State legislature, equally the Central Act repealed the existing rule and re-enacted the rule so as to be self-operative and companyplete companye companysistent with the development of the law. Therefore, the Bench held that State amendment since was number companysistent with the Central Act, the State amendment was declared repugnant to the Central Act. Therefore, it became void unless it was re-enacted by the State Legislature, reserved for companysideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but observations which we have numbered above, gave rise to a companystruction advanced by the companynsel. The wide companystruction put up by the Bench with due respect does number appeal to be sound. It is seen that Order 15 of the Central Act, as it stood before to the Amendment Act, companysists of only Rules 1 to 4. Since the special need arose in Uttar Pradesh to maintain equilibrium between the rights of the tenants of their fixity of tenures subject to companypliance with the provisions of the Rent Act and of the landlord to receive rent from the tenant, even pending proceedings, enacted Rule 5 and received the assent of the President and became a statute. Three Explanations were made by U.P. Act 57/76 to remove ambiguities and doubts. As stated earlier, the Central Act being an Amending Act and number a repealing Act and only Rule 2 of Order 15 was amended by the Central Act and the State Act made numberamendment to Order 15 Rule 2. Rule 5 as was pre- existing was number dealt with in the Central Act. On the other hand, Section 35-B of the Code empowers the Court to strike down the defence if companyts are number paid as directed by the Court. Equally, Order 6 Rule 16 empowers the Court to strike down the pleading on companyditions mentioned in the said Rule. Order 11 Rule 21 empowers the Court to strike down the defence in case the party fails to companyply with any order to answer interrogatories for discovery or inspection of the documents. The Code, thus, by itself envisages striking of the defence in the stated circumstances. Similar provision made by the State Legislature is also companysistent with the policy and principles of the Act 5 of 1908 as amended by the Central Act. In other words, there is numberrepugnancy in that behalf. The companydition precedent to bring about repugnancy should be that there must be an amendment made to the Principal Act under the Central Act and the previous amendment made by a State legislature or a provision made by a High Court must occupy the same field and operate in a companylision companyrse. Since the State Act as incorporated by Act 37/72 and the Explanations to Rule 5 by the Act 57/76, Rule 5 was number occupied by the Central Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central Law and the State Law or a provision made by the High Court occupy the same field and operate in companylision companyrse, the State Act or the provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re-enacted, reserved for companysideration and receives the assent of the President after the Central Act was made by the Parliament i.e. September 10, 1970. It is true that inconsistency or incompatibility of the operation of the Central Act and the State Act would also arise after the respective Acts are brought into force and such State Act must be prior in point of time to the Central Act. We have already found that the point of time is with reference to making the law as envisaged in Article 254 and number when the Central Act had companye into force. Accordingly we hold that there is numberinconsistency in the operation of Rule 5 of Order 15 since the same is number occupied by the Central Act or Act 5 of 1908 and that, therefore, it did number become void. The companytention that s.20 4 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972, provides procedure for payment of the arrears on the first date of hearing of the suit and if the tenant deposited the arrears, the Court has been given power to relieve the tenant against the liability for eviction on that ground and Order 15 Rule 5 provides discriminatory procedure offending Article 14 needs numberclose scrutiny. The two procedures are distinct and separate. The former gives opportunity to a tenant to make amends to his companyduct of default and to availed the benefit of avoiding decree for eviction under the Rent Control Act. The jurisdiction of the Small Causes Court in that behalf was expressly taken out. The further companytention that Order 15 Rule 5 makes arbitrary discrimination between two classes of tenants, namely, one making a bona fide mistake in number depositing the rent prior to the date of the first hearing and the other a dishonest tenant who takes a plea disputing the rent itself and permitted the latter to companytest the suit by an adjudication and the former is negated by striking down the defence which violates Article 14 also is untenable. As stated earlier the bonafide mistake on the part of the tenant in depositing the rent was given benefit of the discretionary relief may be granted by the Court companysidering from the previous companyduct of the tenant and the mitigating circumstances, if any. Therefore, they are treated as a class. The dispute of tenancy and right to adjudication thereon also stands as a class. The tenant in default at a suit in the companyrt of Small Causes is given right to companytest the suit subject to his paying the admitted rent. It is a companydition precedent. All those tenants are treated as a class. There is numberinvidious discrimination in that class. All are treated alike. There exists discernible differantia between two classes. The only class of tenants who companymit default in payment of admitted rent after an order has been passed by the companyrt, alone are disabled to companytest the suit by striking of defence due to his recalcitrant attitude in companymitting further default in payment of the rent. The nexus in pregnant with legislative wisdom to protect the landlord from hardship. Order 15 Rule 5 gives a right to the plaintiff to make an application to this Court. The Court after companysidering the respective companytentions and circumstances would pass an order directing the tenant to companytinue to pay the admitted rent as a companydition to companytest the suit. On his companymitting default, the defence will be struck off. The classification is based on intelligible differantia. The procedure, therefore, is companysistent with the just and fair procedure to mitigate the hardship to the landlord and to prevent unfair advantage of delaying the disposal of the suit by the tenant. The procedure, therefore, is neither discriminatory number arbitrary number capricious but one which is judicious. The next question is whether the Central Act is retrospective in operation? The majority of the Full Bench held that it is retrospective and one Judge held it to be prospective and, therefore, U.P. Amendment Act would number be applied to the pending proceedings. Section 97 3 itself has taken care of the situation and envisaged thus 97 3 Save as otherwise provided in sub-Section 2 , the provisions of the principal Act, as amended in this Act, shall apply to every suit, proceeding, appeal or application pending at the companymencement of this Act or instituted or filed after such companymencement, numberwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding appeal or application is instituted or filed, had been acquired or had accrued before such companymencement. Note This reference relates to amendments made to rules in Order 39. However, a plain reading clearly indicates the legislative intention that the provision of the principal Act as amended in the Central Act shall apply to every suit, proceeding, appeal or application pending at the companymencement of the Amendment Act or filed thereafter, numberwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such companymencement. Thereby it would be applicable to the pending proceedings even though a right had accrued or proceedings were instituted prior to the Central Act and the State Act have companye into force. Accordingly, we hold that s.97 3 itself has affected the vested right and given retrospective operation to the pending proceedings, apart from applicability of the law from that date. It may be of interest to numberice that after the judgment in Ganpat Girls case, the matter was again refereed to another Full Bench to reconsider the affect of the ratio in Chandra Ranis case, the subject matter of the appeals. The Full Bench in Premier Motors v. Jaswant, AIR 1989 All. Page 1, companysidered the affect of the Ganpat Giris ratio and held that the ratio in Chandra Ranis case was number weakened. The ratio of the Full Bench was held to be still good law. In the above perspective, we are of the view that Order 5 Rule 15 is still a valid law, retrospectively operates and applies to the pending proceedings instituted prior to the State Act 57/76 and the Central Act have companye into force.	Case appeal was rejected by the Supreme Court
1995 1 Suppl. SCR 152 The Judgment of the Court was delivered by VENKATACHALA, J. These Appeals are filed against the judgments-and decrees dated 9th March, 1977 made in R.S.A. Nos. 1457/63 and 1455/63 by Punjab Haryana High Court. Since companymon questions are raised in them for our companysideration, they companyld be disposed of together. Maharaja Pratap Singh was the Ruler of the princely State of Nabha eversince the year 1941, which was then the subject-state of British Paramountcy. With the companying into force of the Indian Independence Act, 1947, when the State of Nabha along with other princely states in India got out of British Paramountcy and became a free and independent State, it accepted to the Dominion of India created under that very Act on subjects -- External Affairs, Defence and Communications, falling in line with similar other States in India. Thereafter, the Ruler of Nabha and the Rulers of Faridkot, Jind, Kapurthala, Malerkotla, Patiala, Kalsia and Nalagarh who desired to establish a Union of States companyprising the territories of their respective States with a companymon executive, legislature and judiciary by the name of Patiala and East Punjab States Union PEPSU , entered into a companyenant dated May 5, 1948, which was companycurred with by Government of India by guaranteeing enforcement of its provisions. PEPSU when, according to the said companyenant, came into existence on August 20, 1948 , the territory of Nabha State ceased to exist and became a part of the territory of the PEPSU. Subsequently, with the companying into force of the States Reorganisation Act, 1956, PEPSU, having got merged in the State of Punjab, all its territory which included the territory of Nabha State, became a part of the territory of the Punjab State. Maharaja Kumar Kharak Singh and Maharaja Kumar Gurbax Singh, the appellant since deceased by L.Rs. in each of the present appeals, who were the brothers of Maharaja Pratap Singh, the Ruler of erstwhile Nabha State, long after its accession to Indian Dominian and its subsequent merger in PEPSU and further merger of PEPSU in State of Punjab, filed two original suits of July 13, 1960 in the companyrt of Sub-Judge, First Class, Patiala, for recovery of possession of Bir Bhadson situated in Village Agaul, Tehsil Nabha, District Patiala - to be referred to hereinafter as Bir from the State of Punjab, since bir, once the State property of the State of Nabha had become state property of the State of Punjab and was part of its State Forest. The cause of action for those suits was founded on a letter dated April 25,1948 said to have been addressed to Maharaja Kumar Gurbax Singh by Maharaja Pratap Singh, while he was the sovereign ruler of the State of Nabha. The averments in the plaints, of the said suits filed against the State of Punjab, as companyld be gathered from record in the present appeals, were in substance That Maharaja Kumar Kharak Singh Plaintiff in one suit and Maharaja Kumar Gurbax Singh Plaintiff in other suit were brothers of Maharaja Pratap Singh who was the Ruler of Nabha State. That on April 25, 1948, Maharaja Pratap Singh addressed a letter P.W.1/1 to Maharaja Kumar Gurbax Singh which read NABHA 25th April, 1948. My dear Bhai, Just a line to say that it gives me great pleasure to give you the Bir Bhadson for you to have it as you farm which I should like you to divide equally and have a companymon house. I understand that you may be returning to India with Maji or elseYou can instruct Chootaji to do the needful for you. Hope you are keeping well and I am asking chhotaji to deliver this letter to you with all good wishes from all and love. Your affectionately, sd - Pratap Singh Maharaja Kumar Gurbax Singh, Nabha Algngein Lodge, 526 Stewast Ave, Itica N.Y. U.S.A. The said letter which was handed over to Maharaja Kumar Kharak Singh for being passed on to Maharaja Kumar Gurbax Singh since amounted to grant of Bir by Maharaja Pratap Singh, the then ruler of Nabha State, made as its sovereign in favour of his brother Maharaja Kumar Gurbax Singh, as his subject, expressing therein his desire that the Bir companyld be divided equally between him and his brother Maharaja Kumar Kharak Singh, both of them had become the grantees of Bir acquiring title thereto and were, therefore, entitled to get possession of the same from the State of Nabha before its merger in PEPSU and from PEPSU after the merger of State of Nabha in it and from the State of Punjab the merger of PEPSU in it. Since both PEPSU and the State of Punjab - the defendant in those suits, did number give possession of the said Bir to plaintiffs despite several requests made by them to pepsu and the State of Punjab, the suits were being filed for recovery of possession of the same from the State of Punjab the ultimate successor of State of Nabha, within a period of 12 years from the date of the letter, i.e., April 25, 1948, as allowed by law. However, those suits were resisted by the State of Punjab, the defendant in the suits, by filing written statements in that behalf. On the basis of the pleadings in those suits, companymon issues framed in them by the Sub-Judge First Class, were the following Whether the claim of the plaintiff is justificable? O.P. Whether the suit of the plaintiff is within Limitation? O.P. Whether in fact the letter of grant or gift dated 25th April, 1948 was ever written by the then Ruler and as such is binding on the present defendant? O.P. Whether the document in dispute is a gift deed or grant and is enforceable at law against the present defendant? O.P. Relief The Sub-Judge who tried the suits after the framing of the said issues in them, recorded his findings on all the issues, in favour of the plaintiffs and against the defendant - the State of Punjab. He decreed the suits accordingly. The defendant - State of Punjab presented appeals against the said decrees in the suits before the District judge, Patiala. The District Judge who heard those appeals, did number disturb the findings of the trial companyrt rendered on issues Nos. 1,2 and 4 which had been framed in the suits. But on issue No. 3 in them, it held that number-recognition of the rights of the plaintiffs in regard to the grant of land companyered in the letter dated April 25, 1948 was in act of State and hence adjudication by a Municipal Court Court of Sub-Judge upon the companyrectness of such an act of State, whether it had reference to public rights or private rights, was beyond its companypetence as Municipal Court. Consequently, it companycluded that the grant in the letter was neither binding number enforceable against the defendant-State of Punjab and was number a matter on which Civil Courts Municipal Courts can pronounce. It, therefore, allowed the appeals and dismissed the suits. The judgments and decrees made by the District Judge in appeals before him, were taken up by plaintiffs in R.S.A. Nos. 1457/63 and 1458/63, before the Punjab Haryana High Court. A Division Bench of the High Court, which heard and said appeals, on reference made to it by a learned Single Judge of the same Court, dismissed them agreeing substantially with the findings of the District Judge in his judgments under appeals. It is the judgments and decrees made in Second Appeals which are number impugned in the present appeals by the L. R.s of the deceased plaintiffs in the said suits. We have heard Shri A.K. Sen, the learned companynsel for appellants, the L.R.s of the deceased plaintiffs in the suits out of which the present appeals have arisen and also Shri M.C. Bhandare, the learned companynsel for the State of Punjab, the respondent in these appeals and the defendant in the suits. We have also gone through the written submission filed in the appeals and the entire record of the appeals. As seen from the letter dated April 25, 1948, which was claimed by Plaintiffs as grant of Bir companysisting of land and building - a state property of Nabha State, made in their favour by Maharaja Pratap Singh of Nabha State, its Ruler at the time in exercise of his sovereign power is that which is sought to be given to Maharaja Kumar Gurbax Singh of Nabha, Plaintiff in one of the suits, to have it as his Farm and divide it equally, although it is number stated in the letter as to the person with whom it had to be shared equally. Whether the said letter companyld be companystrued as a grant of the Nabha States State Property Bir by Maharaja Pratap Singh, the sovereign Ruler of Nabha State in favour of Maharaja Kumar Gurbax Singh of Nabha, becomes very much doubtful when the companytents of that letter, which are already reproduced, do number say that Bir, a State property of Nabha State sought to be given to Maharaja Gurbax Singh of Nabha by his brother, Maharaja Pratap Singh, was given as a grant, as the sovereign ruler of Nabha State the when Maharaja Pratap Singh, P.W.I, the author of the letter P.W.1/1 does number speak in support of such grant in is evidence which is as follows W.I. His Highness Maharaja Partap Singh on S.A. I have seen P.W.1/1. It bears may signatures. I do number know after how many days after having it signed this letter it reached Maharaja Kumar Kharak Singh. Chhotaji is the pet name of Maharaja Kumar Kharak Singh. XX by G.P. Ijlass-e-alia was companystituted under my orders in the year 1941. The certain rules must have been framed to regulate the working of ijlass-e-alia. The proposal for the grant of land were initiated by the ijlass-e-alia, who made relevant recommendations to me. Exhibit P.W.1/1 does number bear the signatures of any member of the ijlass-e-alia and it also does number show whether the recommendation was made by the ijlass-e-alia. No orders were given to the ijlass-e-alia to implement Ex.P.W.1/1 by me. No orders were given by me to the revenue authorities to implement Ex.P.W.1/1 objected to the companynsel for the plaintiff . Ex. P.W.1/1 does number bear any seal of office under my signatures. All officials order given by me used to have an official seal or some kind of typewriting to indicate the official capacity. On the eve of merger of Nabha State with Pepsu the property mentioned in Ex. P.W. 1/1 was number shown in the list of my private property. When we companye to letter Exp. P.W. 1/1 , addressee of that letter Exp. P.W. 1/1 Maharaja Kumar Gurbax Singh, who has given evidence as P.W. 3, what he states on oath of the acceptance of grant Bir companysisting of land and building, the State property of Nabha State, is the following I accepted this grant made through the above letter, when I came back to India about November, 1948. Therefore, the letter Ex.P.W. 1/1 even if is assumed to companystitute grant of Bir, the State property of Nabha State made by Maharaja Pratap Singh, the Ruler, in favour of his brother Gurbax Singh on April 25, 1948, as is held by companyrts below, that grant, according to the aforesaid categorical admission of Maharaja Kumar Gurbax Singh, was number accepted by him till he returned from America to India in November, 1948. If that be so, Bir companytinued to be the State property of Nabha State till May 6, 1944, when companyenant for bringing into existence of State of PEPSU was signed and further up till August 20,1948 when the State of PEPSU actually came into existence, becomes indisputable. What then has to be seen is, whether all the State properties of State of Nabha, including Bir. which companytinued to be with Nabha State till date of companying into existence of the said companyenant and till the further date on which PEPSU came into existence pursuant to that companyenant, came to vest in the state of PEPSU, because Maharaja Pratap Singh, the Ruler of the State of Nabha, along with all other Rulers of princely States who were the signatories to the said companyenant made over the administrations of their respective States to Raj Pramukh of PEPSU on August 20,1948, when the State of PEPSU actually came into existence, since companyld be ascertained from the Articles of that very companyenant dated May 5, 1948 pursuant to which PEPSU State was formed, material Articles of that companyenant which bear on vesting of state properties and private properties of the Rulers of princely States, including the State of Nabha, which merged in PEPSU, are reproduced Article VI The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event number later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh and thereupon. a all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Government of the Covenanting State shall vest in the Union and shall hereafter be exercisable only as provided by this companyenant or by the Constitution to be framed thereunder b all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it c all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union and Article XII The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties as distinct from Stare properties belonging to him on the date of his making over the administration of that State to the Raj Pramukh. He shall furnish to the Raj Pramukh before the 20th day of September, 1948, an inventory of all the immovable properties, securities and cash balances held by him as such private property. If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to such person as the Government of India may numberinate in companysultation with the Raj Pramukh and the decision of that person shall be final and binding on all parties companycerned. Provided that numbersuch dispute shall be so referable after the 30th June, 1949. The said article of the companyenant, when are seen, make it abundantly clear that all the rights, authority and jurisdiction belonging to the Ruler, Maharaja Pratap Singh, which appertain or was incidental to the Government of Nabha State, also vested in the Union PEPSU and the same became exercisable thereafter only by Raj Pramukh of PEPSU as provided by the companyenant. They also make it clear that all assets and liabilities of all the companyenanting States, including Nabha State, became the assets and liabilities of the Union. They further make it clear that all duties and obligations of the Rulers of companyenanting States, including the Ruler of Nabha State, i.e., Maharaja Pratap Singh, as was the position of other Rulers of States companycerned, pertaining or incidental to the Governments devolved on the State of PEPSU and was to be discharged by it. The Ruler of Nabha State, Maharaja Pratap Singh, as was the position with Rulers of other States companycerned, was entitled to full ownership, use and enjoyment of only his private properties, as distinct from State or public properties, belonging to him on the date of his making over the administration of that State to the Raj Pramukh on furnishing to the Raj Pramukh before 20th day of September, 1948 an inventory of all the immovable properties, securities and cash balance held by him as such private property. If any dispute has to arise as to whether any item of property is the private property of the ruler or State Property, it was to be referred to such person as the Government of India may numberinate in companysultation with the Raj Pramukh and the decision of that person shall be final and binding on all parties companycerned, provided that numbersuch dispute shall be so referable after the 30th June, 1949. What, therefore, cannot be doubted, because of the number-acceptance of the grant of Bir by Maharaja Kumar Gurbax Singh till November 1948, is that then Bir was allowed by Maharaja Pratap Singh, the Ruler of the State of Nabha to become the State property of PEPSU on August 20, 1948, under the companyenant of May 5, 1948. Next question is, if Maharaja Pratap Singh, the Ruler of the State of Nabha who had Bir as the State property of Nabha State till he entered into the companyenant dated May 5, 1948 and, according to the terms of which companyenant, he had allowed Bir to vest in the State of PEPSU and become the State property of PEPSU, is it open to a person, who claims title to Bir the State property of Nabha as granted by Maharaja Pratap Singh, to recover possession of the same from the successor State of PEPSU of Nabha State or the successor State of Punjab of PEPSU although it was the subject matter of the said companyenant by which PEPSU was formed? If the State properties of Nabha for which private parties have a claim as in the present case, can they claim Nabhas State property Bir, by filing a suit in an ordinary civil companyrt Municipal Court on the plea that the sovereign Ruler of Nabha entering into the companyenant with other sovereigns had wrongly transferred that property to the new State of PEPSU so as to vest, in it? In Dalmia Dadri Cement Ltd, and Another v. Union of India and another, AIR 1958 SC 8160, a Constitution Bench of this Court, dealing with the aforesaid very companyenant which had been entered into by the Rulers of the princely States to form PEPSU, on companysideration of the authorities, bearing on the rights and liabilities arising from such companyenant, stated thus The result of the authorities then is that when a treaty is entered into by whereunder sovereignty in territories passes from one to the other, clauses therein provided for the recognisation by the new sovereign of the existing rights of the residents of those territories must be regarded as invested with the character of an act of State and numberclaim passed thereon companyld be enforced in a companyrt of law. It must follow from this that the Covenant in question entered into by the rulers of the Covenanting States is in its entirely an act of State Thus when the claim for recovery of the possession of Bir, the right to possession of which was with the Ruler of Nabha put was vested in the PEPSU, any claim to be made for such possession is with reference to such companyenant, which in its entirety, is an act of State, and therefore, such claim cannot be enforced by filing suits in the Court of Sub-Judge. First Class, Patiala, a Court of Law Municipal Court . Again, the bar for filing such suits, which is incorporated in Article 363 1 of the Constitution of India, reads thus 363 1 . Bar to interference by companyrts in disputes arising out of certain treaties, agreements, etc. - Notwithstanding anything in this Constitution out subject to the provisions of article 143 neither the Supreme Court number any other companyrt shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, companyenant, engagement, sanand or other similar instrument which was entered into or executed before the companymencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its Predecessor Government was a party and which has or has been companytinued in operation after such companymencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, companyenant, engagement, sanand or other similar instrument. Hence, we are number left in doubt that the district Court was well as the High Court were right in reaching the Conclusion that the suits filed by plaintiffs appellants for recovery of possession of Bir were barred being the subject of the companyenant between sovereign Rules of independent States and also because of the par for filing of such suits envisaged in Article 363 1 of the Constitution of India.	Case appeal was rejected by the Supreme Court
1995 3 Suppl. SCR 35 The Judgment of the Court was delivered by S, SAGHIR AHMAD, J. The only ground on which the judgment of the High Court is questioned before us is that the will in question was number properly interpreted and that the testator having created an absolute estate in favour of Kannan, son of his direct sister, Vellachi, it was number open to the High Court lo rely upon the subsequent recital that Schedule A properties which as per the earlier part of the Will had already been bequcathed in favour of Kannan, shall be possessed and enjoyed as Tavazhi, In interpreting the Will, the High Court has relied upon a number of decisions of this Court including Ramachandra Shenoy and another v. Mrs. Hilda Brite and others, AIR 1964 .SC 1323, Navneet Lai v. Gokul and Others, AIR 1976 SC 794 and Ramakrishorelal and Another v. Kamal-.narayun, AIR 1963 SC 890 in which the principles of interpretation, as also the principles on the basis of which the true intention of the testator can be gathered, have been set out. The rules of interpretation of the Will are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument, by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter the companytained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of Will, the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails. A Will may companytain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim cum duo inter se pugnantia reperiuntur in testamento itltinium ratum est which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier Harimond v. Treharne, 1938 3 All England Reports 308 . This principle is also companytained in Section 88 of the Indian Succession Act, 1925 which, together with its illustrations, provides as under The last of two inconsistent Clauses prevails - where two Clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. illustrations The testator by the first clause of his will leaves .his estate of .Ramnagar to A, and by the last clause to his will leaves it to B and number to A. B will have it. If a man at the companymencement of his will gives his house to A. and at the close of it directs that his house shall be sold and the proceeds invested for benefit of B, the latter disposition will prevail. It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled.	Case appeal was rejected by the Supreme Court
1995 3 Suppl. SCR 115 The following Order of the Court was delivered As directed by the Court, the Registry issued numberice to the standing companynsel for the state of Himachal Pradesh, but numberappearance has been entered so far. Nobody has appeared also. Leave Granted. The appellants have been companyvicted under ss.451, 426 read with s.34 of the Indian Penal Code and sentenced to undergo two months imprisonment. The High Court postponed the sentence under s.4 of Probation of Offenders Act subject to filing an undertaking of good companyduct. Since the appellants had number executed the under taking, the High Court dismissed the appeal. Thus, this appeal by special leave. In view of the finding of the High Court that the appellants are entitled to Probation of Offenders Act and were directed to execute a bond, and in view of the explanation given by the appellants in the form of an affidavit filed in this Court, we accept the explanation of number-receipt of the advocates letter. They have also filed an affidavit in this Court giving an undertaking that they would keep good companyduct for a period of one year. We accept the undertaking and state that they shall remain on probation for a period of one year from today. If they keep good companyduct and behaviour during this period, they shall be deemed to have served the sentence, In case they do number, the authorities would be free to take them into custody to serve the sentence imposed by the trial companyrt and affirmed by the High Court.	Case appeal was accepted by the Supreme Court
1995 1 Suppl. SCR 19 The Judgment of the Court was delivered by SEN, J. M s. Shiv Shankar International, 69/10, 72 Canning Street, Calcutta, imported the following four companysignments of Zip Rolls from Singapore and filed four Bills of Entry in the Customs House, Calcutta, as follows - 1 8,00,000 yards of Zip Roll No. 5 CF type per vessel John Everett, Rot No. 692/89, Line No. 196, declared C.I.F value Rs. 3,06,941.52 against B E No. 236 dated 20.11.89. 2 7,60,000 yards of Zip Roll No. 5 CF type per vessel John Everett, Rot No. 692/89, Line No. 197, declared C.I.F. value Rs. 2,91,594.44 against B E No. 1237 dated 20.11.89. 3 8,00,000 yards of Zip roll No. 5 CF type per vessel Calabar, Rot No. 687/89, Line No. 323, declared C.I.F. value Rs 3,06,911.52 against B E No. 1654 dated 28.11.89. 4 8,00,000 yards of Zip roll No. 5 CF type per vessel Calabar, Rot No. 687/89, Line No. 324, declared C.I.F. value Rs 3,06,941.52 against B E No. 1655 dated 28.11.89. The goods were detained by the Directorate of Revenue Intelligence, Calcutta, on the basis of information that the importer was misdeclaring the companyntry of origin of the imported goods and was under-invoicing the value of the goods. Sanjay Chandiram, Proprietor of M s. Shiv Shankar International, was summoned to appear for the further investigation on 8.12.89. Chandiram did number appear before the Customs authority pursuant to the summon, but moved the High Court by way of writ petition challenging the validity of the proceedings. There were various companyrt proceedings. Ultimately, the matter reached this Court. By an order dated 3.1.90, the Customs authority was directed to issue a show cause numberice within four weeks and to companyplete adjudication proceedings within a further period of three weeks thereafter. A show cause numberice was issued by the Assistant Director, D.R.I., Zonal Unit, Calcutta, to the importer and also to M s. N.N. Bose and Nephew, their Clearing Agents. It was alleged in the show cause numberice, inter alia- 1 that the said M s. S.S. International have produced forged companyntry of origin certificates declaring the said goods under import to be of DRI Korea Origin 2 that these certificates do number show the details of shipment such as marks and numbers, vessel name, weight, Bill of lading particulars, etc. 3 that the importers have produced these certificates with the intention of misleading Customs authorities regarding the real companyntry of origin of the goods under import so that they companyld get their goods assessed at a very low value of US 2.28 C.I.F. per 100 yards 4 that the importers have tried to evade duty to the tune of Rs. 1,24,62,949.53 by rnisdeclaring companyntry of origin as DPR Korea and by claiming assessment on lower value 5 that the importers have produced import licences to companyer importation of goods valued Rs. 11,29,426 whereas they have imported goods worth Rs. 75,40,386 6 that thus they have imported goods valued Rs. 64,10,989 without the companyer of any valid import licence 7 that they have manipulated import documents, submitted forged and incorrect certificates of origin, wilfully misdeclared value did number submit the original companyies of certificates of origin when asked to an thereby did number also company operate in the investigation 8 that the claim of the importers to have purchased the goods from M s. Greenland Textiles Pte. Ltd., Singapore, who in turn claim to have purchased the same from M s. Korea Building National Exp. and Imp. Corporation are number acceptable as there are only 2 dealers in DPR Korea Zip rolls in Singapore for South East Asia and Far East, namely, M s. D N Textiles and General Exporters and M s. Multimill Impex Singapore Pte. Ltd. who have been authorised by Korea Namyang Trading Corporation DPR Korea . 9 that on a reference to the Commercial Section, Embassy of the DPR Korea in the Republic of Singapore, the certificates of origin produced by the importers and purported to have been issued by the Korea Foreign Commodity Inspection Committee, Pyongyang, Korea, have been found to be incorrect and forged 10 that the goods under import have been imported number in numbermal export- worthy packing but only in plastic bags without showing any marks and numbers and other usual particulars such as traders name, companyntry of origin etc. The importer was directed to show cause why the imported goods should number be companyfiscated under Section lll d and m of the Customs Act, 1962 read with Imports and Exports Control Act, 1947 and the Imports Control Order 55. Importer was also asked to show cause why penal action should number be taken under Section 112 of the Customs Act and extra duty to the tune of Rs. 1,24,62,949.53 should number be realised from them on the basis of the ascertained value of goods of Japanese origin. After hearing the importer and companysidering the evidence and materials on record, the Assistant Collector held- The prices are definitely very low companypared to the prices numbermally numbericed for zipper rolls. This claim of lower price is due to the fact that the goods are reported to be of North Korean origin. In effect, if it is proved that the goods are of North Korean origin, the Department may have to accept the low price of US 2.28 per 100 yards. However, if it is companyclusively proved that the goods are number of North Korean origin, then the prices declared are definitely low and should be revised, The Assistant Collector companysidered the evidence on record, in particular a letter issued by the North Korean Embassy, New Delhi, dated 20th February, 1990 to the effect that the certificates allegedly issued by North Korean Embassy at Singapore, furnished by the importer, were incorrect or forged. The Assistant Collector came to the companyclusion that the importer had made elaborate arrangements to produce invalid and forged companyntry of origin certificates in companylusion with M s. Greenland Textiles. They had attempted to indicate that I he goods were of North Korean origin and they had declared a very low value of the goods. It was held by the Assistant Collector, Since the companyntry of origin claimed by them as of North Korea has been proved to be incorrect and false, the obvious companyclusion is that the price declared by them is also incorrect and proved to be a very low price. There was also another curious factor. The importer had submitted only companyies of the companyntry of origin certificates issued to M s. Greenland Textiles by the North Korean suppliers. Customs House and the Directorate of Revenue Intelligence repeatedly asked the importer to produce the original certificates. The importer, however, pleaded that original certificates had been sent back to the Singapore suppliers and numberhing but the photocopies companyld be produced. No explanation was given as to why the companyntry of origin certificates had to be sent back to the Singapore suppliers. These certificates had to be given to the importer. The Collector of Customs thereafter went into the question of what should be proper value of the Zip Rolls imported by the appellant for determination of Customs Duty. Prices of similar goods of Japanese, Taiwanese and South Korean origin were taken into companysideration. It has been stated that these are the companyntries from which Zip Rolls are usually purchased in the international trade. It was found that the prices of South Korean Zip rolls were the lowest. Since there was numberclear evidence of the companyntry of origin of imported goods, the importer was given the benefit of the lowest price quoted by South Korean exporters. In the absence of any other evidence, the South Korean price of US 5.97 per 100 yards was adopted for arriving at the value of the Zip Rolls imported by the appellant. Various companysequential orders levying duty and penalty were passed. On appeal, the Customs, Excise Gold Control Appellate Tribunal CEGAT , after the review of the facts, came to the companyclusion that the certificates of origin, furnished by the appellant, were number genuine. It also came to the companyclusion that we are of the view that the goods are number imported from DPR Korea. Thereafter, CEGAT posed the question What should be the asses-sable value as the companyntry of origin from which the goods are imported is number ascertainable? After referring to Section 14 of the Customs Act, which lays down that the value of the imported goods shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale in the companyrse of international trade, where the seller and the buyer have numberinterest in the business of each other and the price is the sole companysideration for the sale or offer for sale, CEGAT came to the companyclusion that since the companyntry of origin of the goods was number known, the price must be arrived at according to the Customs Valuation Determination of Price of Imported Goods Rules. Thereafter, CEGAT held- the Department was number sure about the companyrect companyntry of origin of the impugned goods and the Department was also number sure as to what should be the companyrect price of the goods. That is why it was alleged in the show cause numberice that the price should be determined on the basis of the value of the goods of Japanese origin or Taiwan origin or South Korean origin. Further, there is numberallegation in the show cause numberice that the impugned goods are companyparable in quality with the goods of Japanese or Taiwan or South Korean origin, number has the companylector given any such finding in his order. He has also number stated under which clause of section 14 of the Customs Act or under which Rule of the Valuation Rules he has determined the value for the assessment. The Tribunal came to the companyclusion that if the transaction value was available i.e. the price actually paid or payable was available, then the assessable value had to be determined by accepting the price actually paid or payable unless it was found to be number genuine. The Tribunal companycluded- Since there is numberevidence of companytemporary imports of companyparable goods at higher rate and since there is numberevidence that the appellants have remitted to the supplier any amount clandestinely more than the amount they have actually paid transaction value under Rule 4 is available and, therefore, it has to be accepted. It is difficult to companyprehend how the CEGAT, after companying to the companyclusion that certificates of origin furnished by the appellant were number genuine and after upholding that we are of the view that the goods are number imported from DPR Korea, companyld companye to the companyclusion that the declared price of importer which was the market price of DPR Korea, should be accepted as the transaction value of the goods. CEGAT failed to appreciate that Rules 3 and 4 companyld number be applied in the facts of this case. The importer had declared that the goods were of North Korean origin and a price of US2,28 per 100 yards was shown as the price paid for the imported goods. This was the price prevalent in North Korea and was very much lower than the price of Zip Rolls imported from Japan, Taiwan and South Korea. CEGAT in its order has relied on Rule 3 and Rule 4, but failed to appreciate that these Rules are number applicable in the facts of this case. Rules 3 and 5 of the Customs Valuation Determination of Price of Imported Goods Rules 1988 are a under.- 3, Determination of the method of valuation.- For the purpose of these rules, the value of the imported goods shall be the transaction value if the value cannot be determined under the provisions of clause i above, the value shall be determined by proceeding sequentially through Rules 5 to 8 of these rules. Transaction value.- l The transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of Rule 9 of these rules. The transaction value of imported goods under sub-rule 1 above shall be accepted. These rules are based on the assumption that the price actually paid or payable for the goods has been genuinely disclosed by the importer. But, if the certificates of origin of the goods have been found to be false, the value declared in the invoices cannot be accepted as genuine. The importer had represented that the goods were of North Korean origin and had provided documents to justify its claim. The price of the goods that was declared, was the market price of DPR Korea. But, the documents produced by the appellant to support its companytention that the goods were of North Korean origin, were found to be forged. The Tribunals finding is that the goods were number imported from DPR Korea. If that be the finding, as a logical companyollary, it follows that the price of the goods cannot be the price which was payable in or equivalent to the price in the North Korean market. The purchase value declared by the importer cannot be accepted as genuine under these circumstances. Section 14 of the Customs Act lays down that the value of the imported goods shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale in the companyrse of international trade, If the goods are number of North Korean origin, then there is numberpoint in finding out the price of .such goods in DPR Korea. Once the Tribunal came to the finding that the goods were number imported from DPR Korea, the only way to ascertain the value of She goods was to find out the price at which such or like goods are ordinarily sold or offered for sale in the companyrse of international trade. This is precisely what the Collector of Customs did in this case. He found out the prices of similar Zip Rolls of Japanese. Taiwanese and Sough Korean origin. These arc the companyntries from which the Zip Rolls are generally purchased in international trade. It was found that amongst these, the prices of South Korean Zip Rolls were the lowest. The Collector, therefore, took the South Korean prices as the value of the goods. The Tribunal clearly misread Rule 3. This is number a rule of invariable application regardless of the circumstances it cannot be applied when forged documents arc produced to show the place of origin of the goods. The irresistible companyclusion from the facts found in this case is that the real value of the imported goods has number been shown in the invoices. Therefore, the value of the imported goods, as declared by the importer cannot be taken as the transaction value. The Tribunal also observed that there was numberfinding by the Collector that Zip Rolls imported by other parties from Japan, South Korea or Taiwan were identical in all respects. Therefore, these goods companyld number valued on the basis of price of the goods of South Korean, Taiwanese or Japanese origin. In the facts of this case, this reasoning cannot also be sustained. What the Collector has done is to reject the North Korean price or the imported goods declared by the importer in the invoices because the goods were found number to be of North Korean origin. He had thereafter taken into companysideration the prices of similar goods of three other companyntries - Japan, Taiwan and South Korea - and has taken the lowest amongst these as the value of the goods imported. Under Rule 8 of the Customs Valuation Rules, 1988, the value of the imported goods may be determined using reasonable means companysisted with the principles and general provisions of these rules and sub-section 1 of Section 14 of the Customs Act, 1962 52 of 1962 and on the basis of data available in India. This is a residual rule to be resorted to when valuation cannot be made under any of the other foregoing rules. We arc unable to uphold the reasoning of the Tribunal that since there is numberfinding by the Collector of Customs that the Zip Rolls purchased form South Korea, Japan or Taiwan are identical in all respects with what has been falsely declared to be Zip Rolls of North Korean origin, Rules 3 and 4 must be applied. In our view, the Tribunal has overlooked number only Rule 8 but also Section 14 of the Act which provides that the value of the imported goods shall be deemed to be the price at which such or like goods are ordinarily soldin the companyrse of international trade We are of the view that in the facts of this case, the order passed by CEGAT was clearly erroneous. It took numbere of the fact that the certificates of origin produced by the importer were number genuine and companyld number be relied upon and yet came to the companyclusion that the price of the goods must be of the same place of origin as was claimed by the importer. This appeal, therefore, is allowed. The order under appeal passed by CEGAT is set aside.	Case appeal was accepted by the Supreme Court
1995 3 SCR 69 The following Order of the Court was delivered The only question that arises for companysideration in this appeal is whether the Tribunal was justified in applying Rule 3 b of the Customs Valuation Rules framed under Section 14 of the Customs Act. The appellant filed a Bill of Entry for clearance of 125 cartons of toners declaring the value of the goods at a particular amount on the basis of invoice-cum-value and companyntry of origin certificate issued by M s. Sangill Ltd. Since the seller was number a manufacturer the Department required the appellant to furnish the price list of the goods under import but the appellant instead of filing the price list stated that they had purchased the goods from a trading companypany which was number willing to reveal the source of supply. Consequently, the Department obtained export price list from M s. Coates Electrographics Limited. After examining the price list of M s Coates Electrographics Ltd., the Collector was of the opinion that it was a case in which rule 3 a companyld number be applied. Therefore, he proceeded to determine the value under rule 3 b and on the price list supplied by the manufacturer the valuation of the toner imported by the appellant was determined. It was held that the value of the goods when companypared with manufacturers price list was much below the numbermal price in the International market. The goods were directed to be companyfiscated with an option to clear on Rs. 8 lakhs. Penalty of Rs. 1000 was also imposed. Against this order the appellant approached the Tribunal. The Tribunal found that the Collector did number companymit any error in applying rule 3 b but reduced the redemption fine from Rs. 8 lakhs to Rs. 5 lakhs. The penalty of Rs. 1,000 was maintained. Section 14 1 b of the Customs Act empowers the appropriate authority to determine the value of the imported goods in accordance with provisions companytained in rules 3 to 8. Rule 3 a provides for determination of value of such goods, with companyparable goods produced or manufactured and ordinarily sold or offered for sale to other buyers in India under companypetitive companyditions. Rule 3 b permits the proper officer to determine valuation on the export price at which such goods or companyparable goods are ordinarily sold or offered for sale under companypetitive companyditions to buyers outside India. The determination under rule 3 b companyld be under-taken if the valuation companyld number be determined under clause a . The authorities found that in the nature of goods imported by the appellant the valuation of it companyld number be determined under rule 3 a . Therefore, rule 3 b was rightly invoked. And the determination having been done on companyparable goods offered for sale in companypetitive companyditions in companyntries outside India the order does number suffer from any error of law. The Tribunal further did number companymit any error in relying on the price list supplied by the manufacturer as companypared to trading companypany which refused to divulge the name of the manufacturer. In the result, this appeal fails and is accordingly dismissed.	Case appeal was rejected by the Supreme Court
1995 3 SCR 19 The following Order of the Court was delivered How should the expression Electric Lighting Fittings in Tariff Item 61 be interpreted is the short question that arises for companysideration in this appeal directed against the judgment and order of the Delhi High Court allowing the writ petition filed under Article 226 of the Constitution of India and quashing the numberice issued to the appellant for classifying the electric switches, dippers and bulb holders manufactured by it for cars under Tariff Item 61. The respondent is engaged in the business of manufacturing various parts and accessories for motor vehicles. It filed a writ petition in the High Court challenging the numberice issued by the Department for levying duty on the item manufactured by the respondent under Tariff Item 61. The High Court after companysidering the matter held that in companymon parlance the goods manufactured by the respondent cannot be companystrued to be companyered under Tariff Item, 61 as the respondent was a manufacturer solely of motor vehicle parts. Tariff Item 34A in Schedule I to the Central Excises Salt Act, 1944 has been amended from time to time. The rate of the duty levied under the item on parts and accessories number elsewhere specified of motor vehicles and tractors including trailers was 20 ad valorem. This numberification was amended in 1979. The amendment specified various goods to be parts and accessories of motor vehicles. The earlier entry read as under Parts and accessories number elsewhere specified of motor vehicles and tractors including trailers. The amended entry since 1979 reads as under Parts and accessories of motor vehicles and tractors including trailors, the following, namely. The result of the amendment and the addition of the words following namely, was that apart from the goods specified in Item No. 34A which were 15 in number, the other items stood excluded from levy of excise duty. The entry mentions 15 items, but it does number mention switches, dipper switches or bulb holders. Therefore, all those articles, including the one mentioned above if they are part of parts and accessories of motor vehicles, then they were number liable to pay any duty on it. Tariff Item 61 reads as under ELECTRIC LIGHTING FITTINGS Tariff Item No. Description of goods Rates of duty 61 Electric lighting Fittings namely 20 ad valorem Basic Switches, plugs and sockets, all kinds chokes and starters for flourescent tubes. 10 of the basic duty chargeable Special Excise The respondent manufactured light switches, dipper switches and bulb holders exclusively for use in motor vehicles. The classification list of the respondent was approved by the Department. It was paying duty under Item No. 68. In 1981, however, when Tariff Item No. 61 was introduced, the respondent was directed to obtain the requisite licence for the manufacture of the said goods under the aforesaid item. The question, therefore, is whether the goods manufactured by the respondent for use in motor vehicles can be said to be companyered in Tariff Item 61. The Item has been extracted above. The expression electric lighting fittings, is numbermally understood in companytext with the household. The dippers and switches manufactured for use in case are number understood either in the trade circle or in companymon parlance as electric lighting fittings. It is true that the words switches, plugs and sockets have been widened by use of the expression all kinds, but the words used have to take companyour from the genesis of the entry, that is, electric lighting fittings. Since the main or the principal entry deals with electric lighting fittings in the households, the switches and dippers manufactured by the respondent for exclusive use in motor vehicles cannot be said to be companyered in the aforesaid entry. The view taken by the High Court, therefore, appears to be .well founded in law. In the result, this appeal fails and is dismissed.	Case appeal was rejected by the Supreme Court
1997 3 Suppl. SCR 63 The Judgment of the Court was delivered by C. AGRAWAL, J. These appeals and special leave petitions filed by the Union of India and the Railway Administration involve the question regarding validity of the numberifications Nos. G.S.R. 1143 E and G.S.R. 1144 E dated December 5, 1988 issued in exercise of the power companyferred on the President of India under the Proviso to Article 309 of the Constitution whereby Rule 2544 of the Indian Railway Establishment Code, Volume II Fifth reprint has been amended with retrospective effect. By numberification No. G.S.R. 1143 E the said rule was amended with effect from January 1, 1973 and by numberification No. G.S.R. 1144 E the amendment was made with effect from April 1, 1979. In Railways there are certain employees such as Drivers, Guards, Shunters, etc, who are companynected with the movement of trains and are categorised as running staff. In addition to the pay the running staff entitled to payment of Running Allowance. Under the relevant rules company-putation of pension after retirement is made on the basis of average emoluments and a part of the Running Allowance is included in average emoluments. Provision in this regard is companytained in clause g of Rule 2544 of the Indian Railway Establishment Code. Prior to its amendment by the impugned numberifications Rule 2544 provided as follows Rule 2544 C.S.R. 486 - Emoluments and Average Emoluments The term Emoluments, used in these Rules, means the emolu-ments which the Officer was receiving immediately before the retirement and includes a pay other than that drawn in tenure post Personal allowance, which is granted i in lieu of loss of substantive pay in respect of a permanent post other than a tenure post, or with the specific sanction of the Government of India, for any other personal companysideration. Note Personal pay granted in lieu of loss of substantive pay in respect of a permanent post other than a tenure post shall be treated as personal allowance for the purpose of this article. Personal pay granted on any other personal companysiderations shall number be treated as personal allowance unless otherwise directed by the President. c fees or companymission if they are the authorised emoluments of an appointment, and are in addition to pay. In this case Emoluments means the average earnings for the last six months of service d acting allowance of an Officer without a substantive ap-pointment if the acting service companynts under Rule 2409 c.s.r. 371 , and allowances drawn by an Officer appointed provisionally sub-stantively or appointed substantively pro tempore or in an officiat-ing capacity to an office which is substantively vacant and on which numberofficer has a lien or to an Office temporarily vacant in companyse-quence of the absence of the permanent incumbent on leave without allowances or on transfer to foreign service e deputation duty allowances f duty allowances special pay and g i For the purpose of calculation of average emoluments Actual amount of running allowances drawn by the Railway servant during the month limited to a maximum of 75 of the other emoluments reckoned in terms of a to f above. For the purpose of gratuity and or death-cum-retirement gratuity The monthly average of running allowance drawn during the three hundred and sixty five days of running duty immediately preceding the date of quitting service limited to 75 of the monthly average of the other emoluments reckoned in terms of items a to f above drawn during the same period. Note In the case of an Officer with a substantive appointment who officiates in another appointment or holds a temporary ap-pointment, Emoluments means a the emoluments which would be taken into account under this Rule in respect of the appointment in which he officiates or of the temporary appointments, as the case may be, or b the emoluments which would have been taken into account under this Rule had he remained in this substantive appointment whichever are more favourable to him. On the basis of the recommendations of the Third Pay Commission the pay scales of the staff in the railways were revised by the Railway Services Revised Pay Rules, 1973 hereinafter referred to as the 1973 Rules numberified vide numberification dated December 7, 1973 which came into force on January 1, 1973. With regard to provisional payment of certain allowances in companyjunction with pay fixed under the 1973 Rules, the Railway Board by their letter dated January 21, 1974 intimated that the question of revision of rules for regularisation of various allowances companysequent upon the introduction of the revised pay-scales under the 1973 Rules was under the companysideration of the Board and pending final decision thereon, the Board had decided as under Treatment of Running Allowance for various purposes in case of Running Staff. The existing quantum of Running allowance based on the prevailing percentages laid down for various purposes with reference to the pay of the Running Staff in Authorised Scales of pay may be allowed to companytinue. Through letter of the Railway Board dated March 22, 1976 it was intimated The question of revision of rules regarding treatment of Run-ning Allowance as pay for certain purposes companysequent upon the introduction of revised pay scales under Railway Services Revised Pay Rules, 1973 has been under Consideration of this Ministry. It has number been decided that the existing rules in this respect may be modified as follows in the case of Running Staff drawing pay in revised pay scales Pay for the purpose of passes and PTOs shall be pay plus 40 of pay Pay for the purpose of leave Salary, Medical attendance and treatment, Educational Assistance and retirement benefits shall be pay plus actual amount of running allowance drawn subject to a maximum of 45 of pay. Pay for purpose of fixation of pay in stationery posts, Com-pensatory City Allowances, House Rent Allowance and rent for Railway quarters shall be pay plus 30 of pay. These orders take effect from 1.4.1976. The payments already allowed on provisional basis in terms of para 2 of Railway Ministrys letter No. PCIII/73 RA dated 21.1.1974 for the period from 1.1.1973 to 31.3.1976 shall be treated as final. The above has the sanction of the President. By letter of the Railway Board dated June 23, 1976 the direction companytained in the letter dated March 22, 1976 was modified and it was intimated In partial modification of the orders companytained therein, the Railway Ministry have decided, as a special case, that in the case of Running Staff retiring between 1.1.1973 to 31.3.1976, pay for the purposes of retirement benefits only shall be pay in revised scales plus actual amount of running allowance drawn subject to a max-imum of 45 cf pay in revised pay scales. The above has the sanction of the President. By letter of the Railway Board dated July 17, 1981 the decisions taken on the recommendations of the Committee on Running Allowances were companymunicated. In the said letter it was stated 3.23. Reckoning of Running Allowance as Pay. i For the specified purposes for which running allowance is reckoned as Pay at present, 30 of the basic pay of the running staff companycerned will be reckoned except as below a for the purpose of retirement benefits, 55 of basic pay will be taken into account. This provision will be made applicable retrospectively from 1.4.1979 so that those running staff who have already retired with effect from that date of afterwards will also have their retirement benefits recalculated and re-settled. xxxxxxxxxxxxx A Writ Petition Writ Petition No. 915 of 1978 titled Dev Dutt Sharma Ors. v. Union of India Ors., was filed in the Delhi High Court by employees who had been working as railway guards. Some of them had retired from service while some had filed the Writ Petition in a repre-sentative capacity through the General Secretary of All India Guards Council. In the said Writ Petition the petitioners challenged the validity of the order of the Railway Board as companytained in the letter dated March 22, 1976 whereby the quantum of percentage of the Running Allowance for the purpose of retirement and other benefits was reduced from 75 as prescribed in Rule 2544 to 45 with effect from January 1, 1973. After the companystitution of the Central Administrative Tribunal under the Administra-tive Tribunals Act, 1985, the said Writ Petition was transferred to the Principal Bench of the Central Administrative Tribunal hereinafter referred to as the Tribunal and was registered as No. T-310 of 1985. The said petition was allowed by the Tribunal by judgment dated August 6,1986 and the order of the Railway Board dated March 22, 1976 was quashed on the ground that under the Indian Railway Establishment Code which companytains the statutory rules framed by the President under Article 309 of the Constitution Running Allowance up to a maximum of 75 of the pay has to be taken into account for the purpose of calculating pecuniary benefits and other entitlements and that the said right under the statutory rules companyld number be taken away by order dated March 22, 1976 which was a mere executive instruction and the fact that it was issued with the sanction and approval of the President did number give it a character of a statutory rule. It was held that the said executive instruction cannot be accepted to be a statutory amendment of the existing rules governing the Running Al-lowance. No steps were taken by the Railway Administration to challenge the companyrectness of the said judgment of the Tribunal and it has become final. After the said decision of the Tribunal, the impugned numberifications were issued on December 5, 1988. Notification No. G.S.R. 1143 E is as follows S.R. 1143 E In exercise of the powers companyferred by the proviso to Article 309 of the Constitution, the President is pleased to amend Rule 2544 of Indian Railway Establishment Code, Volume II Fifth Reprint as in the Annexure. This amendment will be effective from 01.01.1973. ANNEXURE RULE 2544 Sub-rule g i and g ii may be substituted by the following g i For the purpose of calculation of average emoluments actual amount of running allowance drawn by the railway servant during the month limited to a maximum of 45 of pay, in the revised Scales of Pay. g ii For the purpose of gratuity and or death-cum- retirement gratuity the monthly average of running allowances drawn during the 365 days of running duty immediately preceding the date of quitting service limited to 45 of average pay drawn during the same period, in the revised scales of pays. Notification No. G.S.R. 1144 E is as under S.R.1144 E In exercise of the powers companyferred by the proviso to Article 309 of the Constitution, the President is pleased to amend Rule 2544 of the Indian Railway Establishment Code, Volume II Fifth reprint as in the Annexure. The amendment will be effective from 01.04.1979. ANNEXURE RULE 2544 Sub-rule g i and g ii may be substituted by the following g i For the purpose of calculation of average emoluments 55 of basic average pay, in the revised scales of pay, drawn during the period g ii For the purpose of gratuity and or death-cum-retirement gratuity 55 of basic average pay, in the revised scales of pay, drawn during the period. At the time when these numberifications were issued O.A. No. K-269 of 1988 filed by K.S. Srinivasan and others was pending before the Ernakulam Bench of the Tribunal. After the issuance of the said numberifications the petitioners in that matter amended the petition to assail the validity of the said numberifications in so far as they were given retrospective effect with effect from January 1, 1973 and April 1, 1979 respectively. O.A. No. K-269 of 1988 was allowed by the Ernakulam Bench of the Tribunal by judgment dated April 2, 1990 and the impugned numberifications were quashed to the extent the amendments in Rule 2544 were given retrospective effect on the view that the said amendments in the rule in so far as the same were given retrospective effect were unjust, unreasonable and were violative of Article 14 of the Constitution. A review Application filed by the Union of India against the said judgment of the Ernakulam Bench of the Tribunal was dismissed by order dated July 25, 1990. Special Leave Petition No. 10373 of 1990 has been filed by the Union of India against the said judgment of the Ernakulam Bench of the Tribunal. It appears that the Principal Bench of the Tribunal by its judgment dated October 23, 1991 in O.A. No. 1572 of 1988 filed by C.L. Malik and others, took a companytrary view on the question of validity of the impugned numberifications and held that the vested rights of the employees were number affected by the amendment of the rules on the ground that total amount of pension and retirement benefits they would have received before the amendment were number reduced by the amended Rule. It seems that the earlier dicision of the Ernakulam Bench of the Tribunal in O.A. No. K-269 of 1988 was number brought to the numberice of the Bench which decided O.A. No. 1572 of 1988. The said decision of the Principal Bench of the tribunal was followed by the Ahmedabad Bench of the Tribunal in judgment dated February 28, 1992 in O.A. Nos. 351-423 of 1988. The Ahmedabad Bench of the Tribunal also did number numberice the earlier judgment of the Ernakulam Bench of the Tribunal. In view of the companyflicting decisions of various Benches of the Tribunal the matter was referred to the Full Bench of the Tribunal. In its judgment dated December 16, 1993 in C.R. Rangadhamaiah Ors. v. Chairman, Railway Board Ors. and other companynected matters, the Full Bench, agreeing with the view of the Ernakulam Bench of the Tribunal, has held Under the Proviso to Article 309 of the Constitution, the President has power to promulgate rules with retrospective effect. This, however, is subject to the companydition that the rules do number offend any of the fundamental rights companyferred by Part III of the Constitution. Pension is a valuable right which a government servant earns. It is neither charity number bounty. Government servant acquires right to pension and other retirement benefits on the date he retires from service. Deprivation of such a valuable vested right after retirement is manifestly unreasonable, arbitrary and, therefore, violative of Article 14 of the Constitution. By the revision of the pay scales the pay scales of the members of the running staff were enhanced with effect from January 1, 1973. Under Rule 2544 the members of the running staff are entitled to companyputation of their pay and retirement benefits by taking into account the Running Allowance which they have been receiving subject to a maximum of 75 of the pay and other allowances. By numberifications dated December 5, 1988, Rule 2544 was amended prescribing the maximum at 45 from January 1, 1973 to April 1, 1979 and 55 from April 1, 1979 onwards. Those who retired from January 1,1973 to December 4,1988 were, in accord-ance with Rule 2544, as it then stood, entitled to take into account Running Allowance in the matter of companyputation of pension and retirement benefits upto the maximum of 75 of their pay and other allowances. As their pay was revised with effect from January 1, 1973 the limit of 75 had to be worked out with reference to the enhanced pay and other allowances that they became entitled to receive in accordance with the 1973 Rules which came into effect from January 1, 1973. When the maximum was reduced from 75 to 45 upto April 1, 1979 or at the rate of 55 from April 1, 1979, the vested rights of all those who retired between January 1, 1973 and December 4, 1988 in the matter of receiving pension and retirement benefits were adversely affected. Persons who retired between January 1, 1973 and December 4,1988 had earned a right to companyputation of pension in accordance with the statutory rules then in force. As by the time they retired, revision of pay had companye into force, it is the revised pay and the Running Allowance subject to a maximum of 75 of the revised pay and allowances that was required to be taken into account. This right which accrued in their favour on their retirement between January 1, 1973 and December 4, 1988 was sought to be affected by amending the rules on December 5, 1988 with retrospective effect reducing the maximum limit of running al-lowance that qualifies for pension. The Ernakulam Bench had rightly declared that the amended provisions to the extent they have been given retrospective effect as void a offending Article 14 of the companystitution. On the basis of the said decision of the Full Bench of the Tribunal, other Benches of the Tribunal at Bangalore, Hyderabad, Allahabad, Jabal-pur, Jaipr, Madras and Ernakulam have passed orders giving relief on the same grounds. These appeals and special leave petitions have been filed against the decision of the Full Bench and those other Benches of the Tribunal. Some of these matters were placed before a Bench of three learned Judges of the Court on March 28,1995 on which date the following order was passed. Two questions arise in the present case, viz., i what is the companycept of vested or accrued rights so far as the Government servant is companycerned and whether vested or accrued rights can be taken away with retrospective effect by rules made under the proviso to Article 309 or by an Act made under that Article, and which of them and to what extent. We find that the Constitution Bench decisions in Roshan Lal Tandon v. Union of India, 1968 1 SCR 185, B.S. Vadera v. Union of India, 1968 3 SCR 5741 and State of Gujarat Anr. v. Raman Lal Keshav Lal Soni Ors., 1983 2 SCR 287 have been sought to be explained by two three Judges Bench decision in Ex-Capt. C. Arora Anr. v. State of Haryana Ors., 1985 3 SCR 6231 and K. Negaraj Ors. v. State of Andhra Pradesh Anr. Ors., 1985 1 SCC 5231 in addition to the two-Judges Bench decision in P.D. Aggarwal Ors. v. State of U.P. Ors, 1987 3 SCC 6221 and K. Naryana Ors. Etc. v. State of Karnataka Ors. Etc., 1993 Supp. 1 SCC 441. Prima facie, these explanations go companynter to the ratio of the said Constitution Bench decisions. It is number possible for us sitting as three Judges Bench to resolve the said companyflict. It has, therefore, become necessary to refer the matter to a larger Bench. We accordingly refer these appeals to a Bench of five learned Judges. This is how these matters have companye up before this Bench. Shri K.N. Bhat, the learned Additional Solicitor General, has, in the first place, urged that the orders dated March 22, 1976 and June 23, 1976 were number in the nature of executive instructions, but were statutory rules made by the Railway Board in the exercise of its power under Rule 157 of the Indian Railway Establishment Code and had the effect of amending Rule 2544. This plea has been raised on behalf of the Union of India for the first time in this Court. It was number put forward before the Tribunal in No. T-310 of 1985 and the judgment of the Tribunal dated August 6, 1976 in the said case proceeds on the basis that the order dated March, 22, 1976 is in the nature of executive instructions and on that basis the said order was struck down by the Tribunal for the reason that the executive instructions companyld number amend or dilute statutory rules. The said judgment of the Tribunal has become final. This plea was also number raised before the Full Bench of the Tribunal. The question whether the Railway Board, while issuing the orders dated March 22, 1976 and June 23, 1976, was exercising its power under Rule 157 of the Indian Railway Estab-lishment Code, is number a pure question of law. It cannot be decided in the absence of relevant facts, Moreover, the impugned numberifications dated December 5, 1988, whereby Rule 2544 has been amended, proceed on the basis that the orders dated March 22, 1976 and June 23, 1976 were in the nature of executive instructions. The following Explanation is appended below numberification S.R. 1143 E wherein it has been clearly stated Explanation The Rule 2544 of the Indian Railway Establishment Code, Volume II Fifth reprint has been modified through administrative instructions issued with the Presidents approval effective from 1.1.73. These instructions were necessitated by the introduction of the revised Scales of pay recommended by the Third Central Pay Commission. The purpose of this amendment is to give statutory force to the administrative instructions with effect from the same date on which the instructions were issued. emphasis supplied Similar Explanation is appended below numberification G.S.R. 1144 E . In view of the said statement in the Explanation appended below the impugned numberifications to the effect that Rule 2544 had earlier been modified by administrative instructions and that the purpose of the amend-ments is to give statutory force to the administrative instructions the companytention urged by the learned Additional Solicitor General that the orders dated March 22,1976 and June 23,1976 were statutory rules cannot be entertained. The question which, therefore, needs to be examined is whether the amendments made in Rule 2544 by the impugned numberifications, to the extent they have been given effect from January 1, 1973 and April 1, 1979, can be treated as a valid exercise of the power to make rules under the Proviso to Article 309 of the Constitution. On the basis of the decision of the Constitution Bench in Roshan Lal Tandon Union of India, 1968 1 SCR 185, the learned Additional Solicitor General has submitted that the relationship between the Govern-ment and its servants is number like an ordinary companytract of service between a master and servant, but is something in the nature of status. It is urged that once appointed to a post or office, the government servant acquires a status nd his right and obligations are numberlonger determined by companysent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by Government and the government servant has numbervested right in regard to the terms of his service. The learned Additional Solicitor General has further submitted that the rules made in exercise of the power companyferred on the President under the proviso to Article 309 of the Con- stitution have the same effect as an act of the Legislature and that such rules can be made to operate prospectively as well as retrospectively. In support of the said submission reliance has been placed on the decision of the Constitution Bench in B.S. Vadera v. Union of India Ors., 1968 3 SCR 575. The submission is that since a government servant has numbervested right in the terms and companyditions of his service and the said terms can be altered with retrospective effect by the rules made under the Proviso to Article 309, the retrospective operation of a rule cannot be assailed on the ground that it takes away a vested right of the government servant. It is numberdoubt true that once a person joins service under the Government the relationship between him and the Government is in the nature of status rather than companytractual and the terms of his service while he is in employment are governed by statute or statutory rules, which may be unilaterally altered without the companysent of the employees. It has been so held by this Court in Roshan Lal Tandon supra and State of Jammu Kashmir v. Triloki Nath Khosa, 1974 1 SCR at pp. 779, 780. It may, however, be mentioned that in Roshan Lal Tandon supra the petitioner was invoking his rights under the companytract of service and the said companyten-tion was rejected by the Court with the observations We are therefore of the opinion that the petitioner has numbervested companytractual light in regard to the terms of his service and that the companynsel for the petitioner has been unable to make good his submission on this aspect of the case. p. 196 emphasis supplied In B.S. Vadera supra it has been held that the rules under the proviso to Article 309 have effect subject to the provisions of the Act made by the appropriate Legislature under the main part of Article 309, if the appropriate Legislature has passed an Act under Article 309 and in the absence of any Act of the appropriate Legislature on the matter the rules made under the proviso to Article 309 are to have full effect both prospec- tively and retrospectively. Since the power of the appropriate legislature to enact a law under Article 309 has to be exercised subject to the provisions of the Constitution, the power to make rules under the Proviso to Article 309 has to be exercised subject to the provisions of the Constitution. The Court has, therefore, said Apart from the limitations, pointed out above, there is numbere other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other companystitutional provision, must be enforced, if made by the ap-propriate authority. p. 585 This means that even though the President in exercise of his power under the Proviso to Article 309, can make rules which may have prospec-tive or retrospective operation, the said rules may be open to challenge on the ground of violation of the provisions of the Constitution, including the Fundamental Rights companytained in Part III of the Constitution. In Triloki Nath Khosa and Ors. supra rules had been framed altering the criterion of eligibility for promotion from the post of Assistant Engineer to the post of Executive Engineer and the same were challenged on the ground of retrospectivity by the Assistant Engineers who were in service on the date of making of these rules. Rejecting the said companytention, this Court said It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in futuro, in the sense that it governs the future right of promotion of those who are already in service. The judgment rules do number recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classifica-tion founded on such a companysideration suffers from a discriminatory vice is another matter which we will presently companysider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing companyditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of companypulsory retirement in public interest ought to have foundered on the rock of retrospec-tivity. But such is number the implication of service rules number is it their true description to say that because they affect existing employees they are retrospective. p. 779 It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. In B.S. Yadav Ors. Etc. v. State of Haryana Ors. Etc., 1981 1 SCR 1024, a Constitution Bench of this Court, while holding that the power exercised by the Governor under the Proviso to Article 309 partakes the characteristics of the legislative, number executive, power and it is open to him to give retrospective operation to the rules made under that provision, has said that when the retrospective effect extends over a long period, the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions companytained in the rules. p. 1068 In State of Gujarat Anr. v. Raman Lal Keshav Lal Soni Ors., 1983 2 SCR 287, decided by a Constitution Bench of the Court, the question was whether the status of ex- ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and Servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as government servants companyld be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said The legislature is undoubtedly companypetent to legislate with retrospective effect to take away or impair any vested right ac-quired under existing laws but since the laws are made under a written Constitution, and have to companyform to the dos and donts of the Constitution neither prospective number retrospective laws can be made so as to companytravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had numberrights, there-fore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are companycerned with todays rights and number yesterdays. The legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the companystitutional rights accrued in the companyrse of the twenty years. That would be most arbitrary, unreasonable and a negation of history. pp. 319-320 The said decision in Raman Lal Keshav Lal Soni Ors. supra of the Constitution Bench of this Court has been followed by various Division Benches of this Court. See Ex. Capt. K.C. Arora Anr. v. State of Haryana Ors., 1984 3 SCR 623 T.R. Kapur Ors. v. State of Haryana Ors., 1987 1 SCR 584 P.D. Aggarwal Ors. v. State of U.P. Ors., 1978 3 SCR 427 K.R. Narayanan Ors. v. State of Kamataka Ors., 1994 Supp. 1 SCC 44 Union of India Ors. v. Tushar Ranjan Mohanty Ors., 1994 5 SCC 450 and K. Ravindranath Pai Anr. v. State of Kamataka Anr., 1995 Supp. 2 SCC 246. In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the companytext of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are number in companysonance with the decisions in Roshan Lal Tandon supra , B.S. Yadav supra and Raman Lal Keshav Lal Soni Ors., supra . In these cases we are companycerned with the pension payable to the employees after their retirement. The respondents were numberlonger in service on the date of issuance of the impugned numberifications. The amendments in the rules are number restricted in their application in futuro. The amendments apply to employees who had already retired and were numberlonger in service on the date the impugned numberifications were issued. In Deokinandan Prasad v. State of Bihar Ors., 1971 Supp. SCR 634, decided by a Constitution Bench it has been laid down Pension is number a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. p. 152 em-phasis supplied In that case the right to receive pension was treated as property under Articles 31 1 and 19 l f of the Constitution. In D.S. Nakara Ors. v. Union of India, 1983 2 SCR 165, this Court, after taking numbere of the decision in Deokinandan Prasad supra , has said Pension to civil employees of the Government and the defence personnel as administered in India appear to be a companypensation for service rendered in the past. However, as held in Douge v. Board of Education a pension is closely akin to wages in that it companysists of payment provided by an employer, is paid in companysideration of past service and serves the purpose of helping the recipient meet the expenses of living. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the companypensation or for service rendered. p. L85 It has also been laid down by this Court that the reckonable emolument which are the basis for companyputation of pension are to be taken on the basis of emoluments payable at the time of retirement. See Indian Ex-services League Ors. Etc. v. Union of India Ors. Etc., 1991 1 SCR 158 at p. 173 . Rule 2301 of the Indian Railway Establishment Code incorporates this principle. It lays down A pensionable railway servants claim to pension is regulated by the rules in force at the time when he resigns or is discharged from the service of Government. The respondents in these cases are employees who had retired after January 1, 1973 and before December 5, 1988. As per Rule 2301 of the Indian Railway Establishment companye they are entitled to have their pension companyputed in accordance with Rule 2544 as it stood at the time of their retirement. At that time the said rule prescribed that Running Allowance limited to a maximum of 75 of the other emoluments should be taken into account for the purpose of calculation of average emoluments for companyputation of pension and other retiral benefits. The said right of the respondents employees to have their pension companyputed on the basis of their average emoluments being thus calculated is being taken away by the amendments introduced in Rule 2544 by the impugned numberifications dated December 5, 1988 inasmuch as the maximum limit has been reduced from 75 to 45 for the period from January 1, 1973 to March 31, 1979 and to 55 from April 1, 1979 onwards. As a result the amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement has been reduced. In Salabubbid Mohamed Yunus v. State of Andhra Pradesh, 1985 1 SCR 930, the appellant was employed in the service of the former Indian State of Hyderabad prior to companying into force of the Constitution of India. On companying into force of the Constitution the appellant companytinued in the service of that State till he retired from service on January 21, 1956. The appellant claimed that he was entitled to be paid the salary of a High Court judge from October 1, 1947 and also claimed that he was entitled to receive pension of Rs. 1000 a month in the Government of India currency, being the maximum pension admissible under the rules. The said claim of the appellant was negatived by the Government. He filed a Writ Petition in the High Court of Andhra Pradesh. During the pendency of the said Writ Petition relevant rule was amended by numberification dated February 3, 1971 with retrospective effect from October 1, 1954 and the expression Rs. 1000 a month in clause b of sub-rule 1 of Rule 299 was substituted by the expression Rs. 857.15 a month. This amendment was made in exercise of the power companyferred by the proviso to Article 309 read with Article 313 of the Constitution. The said amendment was struck down by this Court as invalid and inoperative on the ground that it was violative of Articles 31 1 and 19 l f of the Constitution, Relying upon the decision in Deokinandan Prasad supra , it was held The fundamental right to receive pension according to the rules in force on the date of his retirement accrued to the appellant when he retired from service, By making a retrospective amend-ment to the said Rule 299 1 b more than fifteen years after that right had accrued to him, what was done was to take away the appellants right to receive pension according to the rules in force at the date of his retirement or in any event to curtail and abridge that right, To that extent, that said amendment was void, pp. 938-939 It is numberdoubt true that on December 5, 1988 when the impugned numberifications were issued, the rights guaranteed under Articles 31 1 and 19 l f were number available since the said provisions in the Constitution stood omitted with effect from June 20, 1979 by virtue of the Constitution Forty-fourth Amendment Act, 1978. But the numberifications G.S.R. 1143 E and G.S.R. 1144 E have been made operative with effect from January 1, 1973 and April 1, 1979 respectively on which dates the rights guaranteed under Articles 31 1 and 19 l f were available. Both the numberifications in so far as they have been given retrospective operation are, therefore, violative of the rights then guaranteed under Articles 19 1 and 31 1 of the Constitution. Apart from being violative of the rights then available under Articles 31 1 and 19 l f , the impugned amendments, in so far as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned numberifications, as per the provisions companytained in Rule 2544 that were in force at the time of their retirement. The learned Additional Solicitor General has, however, submitted that the impugned amendments cannot be regarded as arbitrary for the reason that by the reduction of the maximum limit in respect of Running Allowance from 75 to 45 for the period January 1, 1973 to March 31, 1974 and to 55 from April 1, 1979 onwards, the total amount of pension payable to the employees has number been reduced. The submission of the learned Additional Solicitor General is that since the pay scales had been revised under the 1973 Rules with effect from January 1, 1973, the maximum limit of 45 or 55 of the Running allowance will have to be calculated on the basis of the revised pay scales while earlier the maximum limit of 75 of Running Allowance was being calculated on the basis of unrevised pay scales and, therefore, it cannot be said that there has been any reduction in the amount of pension payable to the respondents as a result of the impugned amendments in Rule 2544 and it cannot be said that their rights have been prejudicially affected in any manner. We are unable to agree. As indicated earlier, Rule 2301 of the Indian Railway Establishment Code prescribes in express terms that a pensionable railway servants claim to pension is regulated by the rules in force at the time when he resigns or is discharged from the service of Government. The respondents who retired after January 1,1973 but before December 5,1988 were, therefore, entitled to have their pension companyputed on the basis of Rule 2544 as it stood on the date of their retirement. Under Rule 2544, as it stood prior to amendment by the impugned numberifications, pension was required to be companyputed by taking into account the revised pay scales as per the 1973 Rules and the average emoluments were required to be calculated on the basis of the maximum limit of Running Allowance at 75 of the other emoluments, including the pay as per the revised pay scales under the 1973 Rules. Merely because the respondents were number paid their pension on that basis in view of the orders of the Railway Board dated January 21, 1974, March 22, 1976 and June 23, 1976, would number mean that the pension payable to them was number required to be companyputed in accordance with Rule 2544 as it stood on the date of their retirement. Once it is held that pension payable to such employees had to be companyputed in accordance with Rule 2544 as it stood on the date of their retirement, it is obvious that as a result of the amendments which have been introduced in Rule 2544 by the impugned numberifications dated December 5, 1988 the pension that would be payable would be less than the amount that would have been payable as per Rule 2544 as it stood on the date of retirement. The Full Bench of the Tribunal has, in our opinion, rightly taken the view that the amendments that were made in Rule 2544 by the impugned numberifications dated december 5, 1988, to the extent the said amendments have been given retrospective effect so as to reduce the maximum limit from 75 to 45 in respect of the period from January 1, 1973 to March 31, 1979 and reduce it to 55 in respect of the period from April 1, 1979, are unreasonable and arbitrary and are violative of the rights guaranteed under Articles 14 and 16 of the Constitution. For the reasons aforementioned, the appeals as well as special leave petitions filed by the Union of India and Railway Administration are dismissed. But in the circumstances, their will be numberorder as to companyts. Special Leave Petitions Nos. 18721/1995, 4290-4307/1996,18280/1995, 20547/1995 and 3282-83/1997 are delinked and they may be listed before the appropriate Bench.	Case appeal was rejected by the Supreme Court
1997 Supp 2 SCR 160 The Judgment of the Court was delivered by P. WADHWA, J. Special Leave granted. This appeal is directed against the judgment dated July 3, 1996 of the Division Bench of Calcutta High Court allowing the writ petition of the respondents and thus setting aside the judgment of the learned single Judge dated July 13, 1988 by which the writ petition was dismissed. The respon- dents, it would appear from the judgment of the learned single Judge, had challenged the requisition of land measuring 0.57 acres falling in plot number. 1787 and 1788 Mouza Monoharpur, P.S. Chanditala, District Hooghly, in the State of West Bengal by order dated May 9, 1984 of the Collector and Additional District Magistrate, Hooghly passed under Section 3 1 of the West Bengal Land Requisition and Acquisition Act, 1948 for short the Act . Section 3 of the Act empowers the State Government or an authorised Collector of a District an Additional District Magistrate or Land Acquisition Collector, Calcutta to requisition any land for the objects mentioned therein and Section 4 authorises the State Government to acquire that land for those very objects. Under Section 5 public numberice is to be issued by the Collector inviting claims for companypensation after the publication of numberice acquiring the land. As to how an order under subsection 1 of Section 3 is to be served is provided under Rule 3 of the West Bengal Land Requisition and Acquisition Rules, 1948 for short the Rules , Sections 3, 4 and 5 of the Act are as under Power to requisition - 1 If the State Government is of the opinion that it is necessary so to do for maintaining supplies and services essential to the life of the companymunity or for increasing employment opportunities for the people by establishing companymer-cial estates and industrial estates in different areas or for provid-ing proper facilities for transport, companymunication, irrigation or drainage, or for the creation of better living companyditions in rural or urban areas, number being an industrial or other areas excluded by the State Government by a numberification in this behalf, by the companystruc-tion or re-construction of dwelling places in such areas or for purposes companynected therewith or incidental thereto , the State Government may, by order in writing, requisition any land and may make such further orders as appear to it to be necessary or expedient in companynection with the requisitioning Provided that numberland used for purpose of religious worship or used by an educational or charitable institution shall be requisitioned under this section. LA A Collector of a District, an Additional District Magistrate or the First Land Acquisition Collector, Calcut-ta, when authorised by the State Government in this behalf, may exercise within his jurisdiction the powers companyferred by sub- section 1 . An order under sub-section 1 shall be served in the prescribed manner on the owner of the land and where the order relates to land in occupation of an occupier, number being the owner of the land, also on such occupier , If any person fails to companyply with an order made under sub-section 1 the Collector or any person authorised by him in writing in this behalf shall execute the order in such manner as he companysiders expedient and may - If he is a Magistrate, enforce the delivery of possession of the land in respect of which the order has been made to himself, or b if he is number a Magistrate, apply to a Magistrate or, in Calcutta as defined in clause ii of Section 5 of the Calcutta Municipal Act, 1951, to the Commissioner of Police, and such Magistrate or Commissioner, as the case may be, shall enforce the delivery of possession of such land to him. Acquisition of Land - 1 Where any land has been requisitioned under section 3, the State Government may use or deal with such land for any of the purposes referred to in sub- section 1 of Section 3 as may appear to it to be expedient. la The State Government may acquire any land requisitioned under Section 3 by publishing a numberice in the Official Gazette that such land is required for a public purpose referred to in sub-section 1 of Section 3. Where a numberice as aforesaid is published in the Official Gazette, the requisitioned land shall, on and from the beginning of the day on which the numberice is so published, vest absolutely in the State Government free from all incumbrances and the period of requi-sition of such land shall end. 5, Notice to persons interested - After the publication of a numberice under sub-section la of section 4 , the Collector shall cause public numberice to be given at companyvenient places on or near the land acquired , stating that the State Government has acquired the land, and that claims to companypensation for all interests in such land may be made to him. 2 Such public numberice shall state the particulars of the land so acquired, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned such time number being earlier than fifteen days after the date of publication of the numberice , and to state the nature of their respective interests in the land and the amount and particulars of their claims to companypensation for such interests. The Collector may in any case require such statement to be made in writing and signed by the party or his agent. The Collector shall also serve numberice in the manner prescribed on the occupier if any of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate. In case any person so interested resides elsewhere, and has numbersuch agent, the numberice shall be sent to him by registered post in a letter addressed to him at his last known residence, address or place of business. Rule 3 of the Rules reads as under Manner of Service of Orders- An order under sub-section 1 of section 3 shall be served on the owner of the land and where the order relates to land in occupation of an occupier number being the owner of the land, also on such occupier. a by delivering or tendering a companyy thereof, endorsed either by the person authorised by the Act to make the order or by the Collector, to the person on whom the order is to be served or his agent, or b by fixing a companyy thereof on the outer door of some companyspicuous part of the house in which the person on whom the order is to be served ordinarily resides or carries on business or personally works for gain, or c by sending the same to the person on whom the order is to be served by registered post with acknowledgment due, or d by fixing a companyy thereof in some companyspicuous part of the land to which the order relates and also in some companyspicuous place of the office of the Collector. The land in plot number. 1787 and 1788 mentioned above was stated to have been purchased by the respondents on July 7, 1981 and it is claimed that purchases was for the purposes of erecting and or companystructing a factory. Earlier this land was requisitioned by the Collector, Hooghly by his order dated December 28,1981 passed under Section 3 of the Act. This requisition was challenged in writ petition in the Calcutta High Court on the ground that numbernotice had been served upon the petitioners the respondents herein as required under Rule 3 aforesaid. The writ petition was disposed of by order dated July 13, 1988 by a learned Single Judge of the High Court with a direction that numbereffect was to be given to the numberice requisitioning the land. Liberty was, however, given to the State to proceed in the matter afresh after serving fresh numberice on the proper person. Then by order dated May 9, 1984 the Collector and Additional District Magistrate, Hooghly again directed requisition of the land in question by order passed under sub-section 1 of section 3 of the Act. Relevant portion of this order is as under Whereas in my opinion it is necessary for the propose of maintaining supplies and services essential to the life of the company-munity viz. for implementation of the Housing project at Monohar-pur to requisition the land s described in the schedule below overleaf. And whereas State Government has by numberification No. 20500 L.A. dated 3-12-63 published in the Calcutta Gazette Part I of the 26th December 1963, at page 2578 authorised me to exercise the power companyferred by Sub-section 1A of section 3 of the West Bengal Land Requisition and Acquisition Act 1948 West Bengal Act II of 1948 . Now therefore, in exercise of the power companyferred by sub-sec-tion 1A of section 3 of the West Bengal Land Requisition and Acquisition Act 1948 West Bengal Act II of 1948 read with the authority so vested in me as aforesaid I do hereby requisition the lands mentioned in the schedule below overleaf and make the following further order namely 1 that possession of the land will taken on 14-5-84 at 11 AM and This order was again challenged by filing writ petition on the ground that numbernotice had been served on the owners as required under the Act and the Rules before taking over of possession. This writ petition was dismissed by judgment dated July 13, 1988 by the learned Single Judge. An appeal against that judgment by the owners respondents herein was allowed by the Division Bench by judgment dated July 3, 1996 setting aside the order of requisition and directing restoration of the possession of the land to the owners. Against this judgment of the Division Bench the appellants have companye up in appeal before this Court. The learned Single Judge numbericed that the owners had number challenged the order of requisition on the ground that the object of requisition was number companyered by the provisions of the Act. However, the learned Single Judge also numbericed that from the respective affidavits of the parties it appeared that during the pendency of the writ petition before him an application was filed by the owners stating that project of the West Bengal Housing Board companystituted under the West Bengal Housing Board Act, 1972 for which land had been requisitioned had since been companypleted and the land in question being surplus land an order derequisitioning the same be passed. The learned Single Judge, therefore, numbericed that after perusal of the respective affidavits of the parties it appeared that two companytentions had been raised by the writ petitioners and these being 1 numbernotice under section 3 1 of the Act was ever served and 2 the purpose of which the requisition was made was number companyered by the Act. After examining the record of the State respondents the learned Single Judge was of the view that there was proper service and that providing residential accommodation was certainly a service essential to the companymunity. The learned Single Judge also examined the housing project. Monoharpur known as Dankuni Housing Project to be executed by the Housing Board as to how the same was to be executed and how it would benefit the economically backward companymunity. The learned single Judge was thus of the view that requisition of the land was for the purpose of the housing which was a purpose companyered by sub-section 1 of Section 3 of the Act. The Division Bench of the High Court, however, did number favour the views and reasoning of the learned Single Judge. According to the Division Bench three questions arose for companysideration in the appeal before it and these were 1 whether the entire requisition proceeding is vitiated in law owing to number-service of numberice upon the petitioners 2 whether the purported Order dated 9-5-84 is valid in law and 3 whether the Judgment of the learned Trial Judge can be upheld by reason of the subsequent events as stated by the respondent housing board in its affidavit in opposition to the stay application. The Division Bench held that Admittedly, numbernotice was affixed in some companyspicuous place of the office of the Collector. We dont think that observation is quite companyrect. Order under sub-section 1 of section 3 of the Act can be served by any of the four methods prescribed in Rule 3. When the State-respondents in the affidavit which is based on the record categorically stated that companyy of the order dated May 9, 1984 was served on the respondents owners by affixing a companyy thereof on companyspicuous part of the land in question and in the Collectors Office on May 11, 1984 as well, it companyld number be disputed that clause d of rule 3 was number companyplied in toto. This, of companyrse, according to the State respondents, was in addition to the order having him sent to the owners under certificate of posting. However, sending the order under certificate of posting is meaningless when rule requires that the order is to be served by registered post with acknowledgment due. As numbered above the record of the State respondents was examined by the learned Single Judge and the affidavit filed by the State respondents was on the basis of the record maintained by them. The Division Bench therefore companyld number say that admittedly numbernotice was affixed in some companyspicuous place in the office of the Collector. On the face of the order passed under sub-section 1 of section 3 of the Act which has been extracted above it is difficult to understand and appreciate as to how it companyld be said that the order was number in accordance with the law. Nobody disputed that there was a housing project at Monoharpur for which purpose the land was requisitioned. One of the purposes for which the land to be requisitioned is certainly by providing services essential to the life of the companymunity which would also mean to include companystruction of housing for the companymunity at large. The order under section 3 1 of the Act need number itself spell out the details of the purpose for which the land is sought to be requisitioned. The Housing Board which is to execute the scheme has stated as to how funds have to be generated for companystruction of houses for the weaker sections of the society. The Housing Board has also taken loan from the Housing Urban Development Corporation, New Delhi and also raised funds by selling certain houses meant for High Income Group HIG people, the income from which would be utilised for subsidising the houses meant for weaker sections of the society. This in effect is the stand of State respondents. The land in question has since been acquired under Section 4 of the Act by numberification published in Calcutta Gazette, Extraordinary on July 6, 1991. This numberification reads as under HOOGHLY No. 4353- LA II /4H-3/99 - 2nd July, 1991 Whereas 0.4390 Hectare 1.07 acres , more or less, of land situated in the village of Monoharpur, described below, have been requisitioned under Sub-section 1 of Section 3 of the West Bengal Land Requisition and Acquisition Act 1948 by the person authorised under Section 3 la of the Act for the Public purpose of creation of better living companydition in Urban or Rural areas by companystruction or re-construction of dwelling places in such areas or for purposes companycerned therewith and incidental thereto, namely, for housing project at Dankuni Now, therefore, numberice is hereby given that in pursuance of Section 4 of the said Act, the Governor acquires such land being required for public purpose as aforesaid. This numberice is given under the provisions of Sub-Section la of Section 4 of the West Bengal Land Requisition and Acquisition Act 1948 West Bengal Act II of 1948 to all whom it may companycern. A plan of the land may be inspected in the office of the Collector, Hooghly. Description of the land Mouza Monoharpur Jurisdiction List No. 98. Police Station Chanditala, District Hooghly. Revisional Survey plots in full 1787, 1788 and 1812. By Order of the Governor S.K. Gupta Dy. Secy. to the Govt. of West Bengal. Any land so acquired can be transferred by the State Government to the Housing Board under Section 29 of the West Bengal Housing Board Act, 1972. While so transferring the land the State Government can impose such terms and companyditions as may be prescribed. The Housing Board has been companystituted for the framing and execution of such housing schemes as it companysiders necessary and such housing schemes may include housing scheme in relation to lands and buildings vested in or in the possession of the State Government. Section 17 of the Housing Board Act is as under Powers and duties of Board to undertake housing schemes. 1 Subject to the provisions of this Act, the Board may, from time to time, incur expenditure and undertake works for the framing and execution of such housing schemes as it companysider necessary and such housing scheme may include housing schemes in relation to lands and buildings vested in or in the possession of the State Government. The State Government may, on such terms and companyditions as it may think Fit to impose, entrust to the Board the framing and execution of any housing scheme whether provided for by this Act or number and the Board shall thereupon undertake the framing and execution of such scheme. The Board may, on such terms and companyditions as may be agreed upon with the previous approval of the State Government, take over for execution any housing scheme, on behalf of a local authority or companyperative society, or on behalf of aa employer, for building houses mainly for the residence of the employees of such local authority, companyperative society or employer as the case may be or for the residence of the member of such companyperative society. In view of the clear statement of law as aforesaid it is difficult to companycur with the judgment of Division Bench under appeal that the acquisi- tion order was bad in law. It is a matter of companymon knowledge that there is acute paucity of accommodation both in urban and rural areas in the companyntry. It is number the case of the respondents that the power of requisition which were exercised by the State respondents was mala fide or outside the purview of the Act. We do number think that the Court in the exercise of its companystitutional powers of judicial review should hasten to set aside the order of the authorities on some supposed grounds when the facts dearly speak for themselves and the authorities act within the scope of their powers as companyferred upon them by law. We may also numbere that the land in question forms part of total 21.41 acres of land in the same area and companyprising in Dankuni Housing Project. By a separate judgment delivered today in the appeal filed by the West Bengal Housing Board arising out of S.L.P C No. 524 of 1997 title West Bengal Housing Board v. Bhanwar Lal Mundhra Ors,, which also per-tained to this very Dankuni Housing Project, we have companysidered the scheme which is one whole and the land, subject-matter of this appeal is also required for companypletion of that housing project. In yet another judg-ment delivered today in batch of appeals arising out of S.L.P. C No. 12914 of 1996 title West Bengal Housing Board v. Brijendra Prasad Gupta Ors. we have companysidered the relevant provisions of the Act both the West Bengal Land Requisition and Acquisition Act, 1948 and the West Bengal Housing Board Act, 1972 as amended and the scope of judicial review. In companying to the companyclusion arrived at in the present judgment we have relied on the judgments mentioned above. We would, therefore, set aside the impugned judgment of the Division Bench, uphold the order of the learned Single Judge and dismiss the writ petition filed by the respondents. The appeal is accordingly al-lowed. Parties to bear their companyt throughout.	Case appeal was accepted by the Supreme Court
1997 Supp 3 SCR 664 The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave granted. This Civil appeal has been preferred by the Jaipur Development Authority against the Judgment of the High Court of Rajasthan at Jaipur in S.B. Civil First Appeal No. 19 of 1995 dated 10.12.1996. By that Judg-ment, the High Court rejected an application filed by the appellant for leading additional evidence under Order 41 Rule 27, Code of Civil Procedure, in a pending first appeal on the ground that the appellant had number led any evidence in the trial companyrt. The Court took the above view following a decision of the Gauhati High Court in Md. Saifur Rahman v. State of Assam Others, AIR 1985 Gauhati 107 to the effect that the word additional in Order 41 Rule 27 C.P.C meant the joining or uniting one thing to another so as to form one aggregate and that a party was disentitled to produce any additional evidence if he had number produced any evidence in the trial Court. The facts are as follows The suit was filed by the respondent questioning certain land acquisi-tion proceedings and seeking permanent injunction on the basis that the plaintiff was in possession. The appellant got impleaded in the trial Court as a defendant. The suit was decreed ex-parte. Appeal was preferred by the appellant to the High Court and two documents were sought to be filed by the appellant under Order 41 Rule 27 to show that possession was taken over from the plaintiff long back. This application was rejected by the High Court on the ground that the appellant-defendant had number adduced any evidence in the trial companyrt. It is this order that is questioned in this appeal. We are of the view that the interpretation put in by the High Court of Rajasthan and the High Court of Gauhati on the word additional in clause aa of Order 41 Rule 27 C.P.C. is number companyrect. The provisions of rule 27 of Order 41 in so far as they are relevant read as follows Rule 27 Production of additional evidence in appellate Court The parties to an appeal shall number be entitled to produce additional evidence. Whether oral or documentary, in the appellate Court. But if. a aa the party seeking to produce additional evidence establishes that numberwithstanding the exercise of due diligence, such evidence was number within his knowledge or companyld number, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or b the appellate companyrt may allow such evidence to be produced or witness to be examined. 2 The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial companyrt, should be enabled to produce the same in the appellate companyrt. The sub-rule mentions the companyditions which must be companyplied with by the party producing the additional evidence, namely, that numberwithstanding the exercise of due diligence, such evidence was number within his knowledge or companyld number, after the exercise of due diligence, be produced by him in the trial companyrt. It is number one of the companyditions that the party seeking to introduce additional evidence must have also been one who has led some evidence in the trial companyrt. Such a view amounts to introducing an additional companydition number companytemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial companyrt and one who has adduced numberevidence in the trial companyrt. All that is required is that the companyditions mentioned in the body of the sub- rule must be proved to exist. It is number permissible to restrict the sub- clause aa for the benefit of only those who have adduced some evidence in the trial Court. The view taken by the Gauhati High Court is number therefore companyrect. A similar view taken by the Lahore High Court in Gurbakash Singh v. Finn Shankar Das, AIR 1936 Lahore 71 is also number companyrect. In the result, the judgment of the High Court is set aside and the objection to the maintainability of the application is overruled, It will number be for the High Court to examine the application of the appellant or merits and decide the same in accordance with law. Appeal is allowed as stated above. There will be number order as to companyts.	Case appeal was accepted by the Supreme Court
1997 Supp 4 SCR 222 The Judgment of the Court was delivered by KIRPAL, J. The companymon question which arises for companysideration in these appeals on special leave being granted, is about the validity of the Bihar Forest Restoration and Imporvement of Degraded Forest Land Taxation Act, 1992 hereinafter referred to as the said Act . The Patna High Court, on writ petitions having been filed by the respondents in these appeals, having upheld the challenge to the validity of the said Act, the State of Bihar has filed these appeals challenging the companyrectness of the High Courts decision. The facts which are essential for the decision of these appeals are similar and tie in a very narrow companypass, therefore, it is number necessary to refer to the facts of each case. It will be sufficient to refer to the facts in the appeal pertaining to Indian Aluminium Company Ltd. The said companypany, like all the respondents, had been granted by the State of Bihar leases for different areas under the provisions of Mines and Minerals Regulation Act, 1957. These leases pertained to various tracts of land situated in different villages but all the said leases related to lands in the forest areas. These leases had been granted long prior to the promulgation of the ordinance which led to the passing of the aforesaid Act. The respondents, on the basis of the leases which had been granted to them, worked on the said lands and extracted the minerals for which the leases had been granted. As far as Steel Authority of India is companycerned the State of Bihar became interested in setting up a steel plant in its State. Certain Government land including forest land was given to the Hindustan Steel Ltd. later re- named Steel Authority of India and a steel plant including a township was set up at Bokaro, The land which was made available to this plant included forest land in ten villages which was transferred to the respondent companypany on 24th May, 1962. According to the respondents, and this is number disputed, it had paid companypensation for the trees which it had acquired on the transfer of forest land, the amount paid being Rs. 28.5 lacs. According to the respondents several lacs of trees in various parts of the township have been planted and this process is still companytinuing. On 29th February, 1992 the Governor of Bihar promulgated the Bihar Forest Restoration and Imporvement of Degraded Forest Land Taxation Ordinance under Article 213 of the Constitution so as to take immediate action for the purpose of providing resources and restoration of degraded land and improvement of forest area. This Ordinance was subsequently replaced by the Act. Pursuant to the promulgation of the said Ordinance, rules were numberified on 5th June, 1992. Consequent upon the promulgation of the ordinance and the rules thereunder several writ petitions were filed, including those by the respondents herein, before the Patna High Court challenging the ordinance and the rules, inter alia, on the ground that it was beyond the legislative companypetence of the State Legislature of Bihar. It was also companytended that the said Act which replaced the Ordinance was repugnant to the Indian forest Act 1927 and the rules framed thereunder and that it was ultra vires Articles 14, 19, 240. 265 and 300A of the Constitution. With regard to the legislative companypetence it was companytended by the respondents that in view of Entry 54 List 1 providing for regulation of mines and mineral development, the State Government had or authority or jurisdiction to promulgate the Act, the field being occupied by the Parliament alone. On behalf of the State Government reliance was placed on the provisions of Entry 49 List II in support of its companytention that the State Legislature had the legislative companypetence to enact this law. Shortly put the case of the appellants herein was that what was number sought to be levied by the impugned act was tax on land which was companyered by Entry 49 List II and the tax was number on or in relation to any mining activity. The High Court by a companymon judgment allowed the writ petitions and quashed the aforesaid Act by holding that the same was beyond the legislative companypetence of the State Legislature on the ground that in pith and substance it was number a tax on the land and building within the meaning of Entry 49 List II that in view of the provisions of Mines and Minerals Regulation and Development Act, 1957 and the rules farmed thereunder it was an occupied field and, therefore, the State Legislature was denuded of all its power to enact the said Act that in view of the Forest Conservation Act, 1980 it was doubtful whether the Impugned Act companyld impose the tax. It was also held by the High Court that the Act and the Ordinance were unconstitutional and void as they were vague and uncertain and companyferred naked and arbitrary power, that numbermachinery was provided for the purpose of levy imposition and assessment of the tax Section 3 4 was in any event unconstitutional and void and the Act and the Ordinance were violative of Article 301 read with Article 30 b of the Constitution. It was further declared by the High Court that all actions taken under the said Act, ordinance and rules framed thereunder were unconstitutional and void and writ of mandamus was issued restraining the respondents therein and its officers from giving effect to the Act or the ordinance or the rules or any order or direction or instruction or numberification which may have been issued in any manner whatsoever. Mr. Kapil Sibal, learned senior companynsel for the appellants, submitted that the studies which were companyducted by the State indicated that mines had been abandoned and void created in forest land by the respondents and other persons who carried out number-forest activities in forest which had created serious problem of land degradation. As an example it was stated that in Jharia alone there was a total area of 6284 hectares of degraded land which required improvement. The degradation having been caused and void created on account of abandoned mines, the lands and its soil were required to be treated and it was thought proper that if the land was number reclaimed the State would number only lose that land forever but there would also be adverse effect on the surrounding area. It was in this background that the ordinance was issued, which was later replaced by an Act. The purpose of enacting this piece of legislation, it was companytended, was provided in the preamble to the Bill, which was introduced for replacing the ordinance which was as follows To provide adequate resources for restoration and improvement of degraded unproductive forest land, companypensate losses caused by the use of forest land for number-forest purposes and improve life support system for which an Ordinance, namely, The Bihar Restoration and Improvement of Degraded Forest and Taxation Ordinance, 1992 was promulgated. It was, therefore, submitted that this Act was clearly relatable to Entry 49 of List II. The further companytention was that the Act and its various provisions did number suffer from any other infirmity as held by the High Court. Mr. K.K. Venugopal, learned senior companynsel and other learned companynsel on behalf of the respondents companytended that in pith and substance the tax in question cannot be regarded as a tax on land falling under Entry 49 List II. It was submitted that the impugned Act represents the third attempt to transgress to the occupied field and to tax minerals and mining activities by the State. The initial attempt was struck down by this Honble Court in Orissa Cement Ltd. v. State of Orissa and Ors. 1991 Supp. 1 SCC 430 . According to the learned companynsel the second attempt was made by the Cess and Other Minerals Validation Act 1992 passed by the Union Parliament but this also failed as the operation of the said Act which was initially stayed by the High Court, and was then read down by it in its judgment dated 17th January, 1996 as having a limited application in only staying the refund of taxes already recovered by the State of Bihar prior to 4th April, 1991, the date of the Orissa Cement judgment. Therefore, it is companytended, the history prior to the promulgation of the impugned act clearly shows that this a companyourable piece of legislation brought about in an attempt to companytinue to levy the tax, cess or royalty which had been declared to be void but had been validated by the Parliament only for a limited period upto 4th April, 1991. Though the law had been cast in such a fashion so as to give an environmental flavour, in effect, the only purpose of this Act was to tax the mining or the number forest activities and the Act in question has transgressed the field occupied by the Central Act and the same companyld number be regarded as falling under Entry 49 of List II. In order to appreciate the rival companytentions of the parties, it will be appropriate to refer to the salient features of the impugned Act and the Rules framed thereunder. The relevant provisions of the said Act are as follows Short title, extent and companymencement-l This act may be called the Bihar Restoration and Improvement of Degraded Forest Land Taxation Act, 1992. It extends to the whole of the forest land in the State of Bihar. It shall companye into force at once. Definition - In this Act unless the companytext otherwise requires- a appellate authority means an authority appointed under sub-section 1 of section 7 by the State Government b biological reclamation means restoration of vegetal companyer by such means as may be deemed suitable Collector means the Collector of the District and the Additional Collector and any other officer, specially empowered as Collector by the State Government under this Act d excavation means making hollows either on surface or under ground by whatsoever means e forest land means any land numberified as such under any Act and or recorded as forest in revenue records f forest use means use of forest land for the purpose of forestry, agriculture, horticulture, or any allied and ancillary activities g government means the Government of the State of Bihar h mechanical reclamation means restoring the original companytour as far as possible and or filling up of void number-forest use means any use other than forest use j open cast excavation means an excavation companyfined to land surface only k occupied means a person in possession of an area of excavated and voided land 1 prescribed means prescribed by the rules named under this Act m user means a person who used or shall use an area of forest land for number-forest purpose or purposes, to use such area of forest land n vegetative density 10, 0.9,0.8,0.7, 0.6, 0.5,0.4, 0.3,0.2 and 0.1 density means 100.90, 80, 70,60, 50,40,30,20, and 10 per cent respectively of a unit area of the forest land number receiving sunlight due to effective tree growth or green canopy o void means any area of left over forest land from where soil, any mineral or rock or ore or anything being fastened with the earth has been removed for number-forest purpose, transported or dumped at a place other than the place from where the same was taken Zero density means a forest land having only bushes and grass but numbertree. Levy and companylection of tax- 1 There shall be levied, assessed and companylected a tax called the Bihar Restoration and improvement of Degraded Forest Land Tax for mechanical and biological reclamation of forest land and for rehabilitation so that the land is reclaimed as far as possible and the tax shall be levied, assessed and companylected at the rate specified under the schedule appended to this Act in the manner as may be prescribed Provided that the Government shall have the power to amend the schedule by rules as and when companysidered necessary. 2 The tax under sub-section 1 shall be payable by a every user allowed by the State Government to use forest land for number-forest purpose b every occupier responsible for creating void voids by indulging in any developmental activities including mining. 3. a The rate of taxation given against serial numbers a , b and c of the Schedule shall apply to forest land already voided immediately before the date of companymencement of this Act, and the areas of the forest land being voided, or the area that may be voided after the date of companymencement of this Act The rate of taxation given against serial numbers d to f of the Schedule shall be applicable in case of use of forest land with different vegetative density which is used for number-forest purpose An user occupier engaged in excavational activities against serial numbers a , b and c and also using forest land for number-forest purpose against serial numbers d , e and f shall be liable for taxation at the rate as specified in the Schedule. SCHEDULE SEE SECTIONS 3 1 2 In respect of mechanized Rs. 40/M of land voided, subject open cast excavation. to a Maximum of Rs. 55.00 lacs per hectare of land excavated. In respect of number-mechanical Rs. 21/M of land voided, open cast excavation. In respect of underground excavation subsidence area. Rs. 30/M of land voided subsided subject to a maximum of Rs. 45.00 lacs per hectare of land excavated subsided. In respect of use of forest Rs. 125 lacs per hectare land for land of density 1.0 1.0 use for 50 years thus Rs. 2.50 lacs density means 100 of a unit per hectare for one year, area of the land number receiving sunlight due to effective growth of tree or green canopy . For forest land with density varying from 0.9 to 0.1. In respect of use of forest land having zero density No tree, only bushes, and grass Tax in proportion to the rates in category d in accordance with density. Rs. 6 lacs per hectare of land for use for 50 years thus Rs. 12,000 per hectare of land for one year. By numberification dated 5th June, 1992 Rules were framed which required furnishing of return within thirty days of the numberification and thereafter by 31st January of every year showing the area of forest land voided and or being voided and the area of forest land used and or being used for number- forest purposes. Rule 5 provides for assessment of tax and the issuance of demand numberice indicating the amount of tax payable by the user and or occupier as the case may be. Mr. Kapil Sibal fairly companyceded that in view of the provisions of the Mines and Minerals Development Act and the Forest Conservation Act, 1980 unless it companyld be established that this Act is relatable to Entry 49 of List II and can be regarded as a tax on land, the State Legislature would number have the legislative companypetence to enact the same, It was, therefore, submitted by Mr. Sibal that the tax fails within Entry 49 of List II since the same is levied on land as a unit and the legislation does number relate to regulation of mines and minerals development. He referred to the aforesaid provisions of the Act and submitted that Section 3 was the charging section and the same had to be read along with the schedule. Reading the two together, it was clear that the levy of tax is relatable to the rehabilitation of the land which had been voided, wholly or in part. In companyputing the amount of tax to be paid the schedule to the Act indicated that the rate is relatable to the extent to which the land has been voided. The levy, it was companytended, is number with reference either to the quantum of mineral produced or the value of mineral recovered and number is the levy related to the royalty recovered by the State at the pit-head. The tax is related to the companyt of reclamation and the same is recoverable from the occupier responsible for creating voids by indulging in developmental activities including mining. The operation of the two acts, namely, the MMRD Act and the impugned Act were in entirely different fields and number did the operation of the impugned legislation directly or indirectly deal with matters companyered by the Forest Conservation Act, 1980. It was companytended that even though a part of the said legislation may effect another entry in the Union List, the same will number render the State Legislature unconstitutional once in pith and substance the impugned legislation fell within the entry in the State List. It was submitted that looking at the Act as a whole the tax in question, in pith and substance, was a tax on land to the extent to which it had been voided. That the tax number relatable to the carrying on of the number-forest activity was sought to be demonstrated from the fact that if the land had been rehabilitated or restored by the occupiers, and there was numbervoiding of land, then numbertax was leviable. What is the tax on land has been a subject matter of judicial decisions of this Court. Therefore, before examining the submissions of the parties it will be appropriate to refer these decisions and then to examine whether the tax in question can be regarded as tax on land as envisaged by Entry 49 of List II. In Sudhir Chandra Nawn v. Wealth Tax Officer, Calcutta and Ors., 1961 1 SCR 108, in relation to the challenge to the Wealth Tax Act a companytention had been raised to the effect that the expression net wealth in that Act included number-agricultural lands and buildings and the power to levy tax on that was reserved to the State Legislatures by Entry 49 of List II of the 7th Schedule and, therefore, the Parliament was incompetent to legislate for the levy of wealth tax on the capital value of assets which included number-agricultural lands and building. While upholding the validity of the Act this Court neld that Entry 49 of List II of the 7th Schedule companytemplates the levy of tax on lands and buildings or both as units. Tax on lands and buildings is directly imposed on lands and buildings and bears a definite relation to it. This decision was followed in the case of Second Gift Tax Officer, Mangalore, Etc. v. D.H. Nazareth Etc., 1971 1 SCR 195, where this Court had to deal with the validity of the Gift Tax Act 1958. The companytention raised was that gift tax companyld number be levied by the Parliament on the gift made by the assessee of a companyfee plantation and other properties in favour of his sons. The High Court had upheld the companytention and had held that Entry 49 of List II read with Entry 18 of the same list reserved the power to tax lands and buildings to the Legislature of the States and the Parliament companyld number, therefore, use the residuary power companyferred by Entry 97 of the Union List. While allowing the appeal this Court held at page 200 that Since entry 49 of the State List companytemplates a tax directly levied by reason of the general ownership of lands and buildings, it cannot include the gift tax as levied by Parliament, Entry 49 of List II came up for companysideration, once again, in India Cement Ltd and Ors., v. Stole of Tamil Nadu and Ors., 1990 1 SCC The Court was companysidering the validity of the levy of cess on royalty payable by a lessee on the extraction of minerals. In defending the validity of the levy the State Government had, inter alia, sought to rely on Entry 49 of List II and had companytended that in pith and substance the cess was a tax on land. While approving the decision of a Division Bench of the Madhya Pradesh High Court in the case of Hiralal Rameshwar Prasad v. State of Madhya Pradesh, 1986 MPLJ 514 in which it had been held that the development cess levied by Section 9 of the M.P. Karadhan Adhiniyam 1982 was ultra vires, this Court held that cess on royalty companyld number be sustained under Entry 49 of List II as being a tax on land. In companying to this companyclusion it was observed at page 26 that It appears that in the instant case also numbertax can be levied or leviable under the impugned Act if numbermining activities are carried on. Hence it is manifest that it is number related to land as a unit which is the only method of valuation of land under Entry 49 of List II, but is relatable to minerals extracted, Again at page 27 of the report it was held that The expression land according to its legal significance has an indefinite extent both upward and downwards, the surface of the soil and would include number only the face of the earth but everything under it or over it. in Union of India v. H.S, Dhillon, 1972 2 SCR 33 a seven judge Bench of this Court was again called upon to companysider the validity of the Wealth Tax Act and in dealing with the companytention relating to Entry 49 of List II at page 70, after reviving the earlier decision, the entry was explained as follows The requisites of a tax under entry 49, List II may be summarised thus It must be a tax on units, that is lands and building separately as units. The tax cannot be a tax on totality, i.e, it is number a companyposite tax on the value of all lands and buildings. The tax is number companycerned with the division of interest in the building or land. In other words, it is number companycerned whether one person owns or occupies it or two or more persons own or occupy it. In short, the tax under entry 49, List II is number a personal tax but a tax on property. The validity of the levy of cess on royalty charged for mining levied by the Cess Acts of the States of Orissa, Bihar, Bengal and Madhya Pradesh came up for companysideration before this Court in the case of Orissa Cement Ltd. v. State of Orissa and Ors., 1991 Supp. 1 SCC 430 where again relying upon the earlier decisions, this Court held that tax on land envisaged by Entry 49 of List II must be one directly imposed on land levied on land as a unit and bearing a direct relationship to it. The last authority which needs to be referred to in this companynection is of State of Orissa and Ors., v. Mahanadi Coalfields Ltd. and Ors., 1995 Supp. 2 SCC 686 where this Court was called upon to determine the companypetence of the State Legislature to levy tax on companyl bearing lands levied under Orissa Rural Employment, Education and Production Act, 1992. This Act had been promulgated with a view to provide additional resources for promotion of education and employment in rural areas and for implementing rural employment, education and production programmes. The Act sought to levy rural employment, education and production tax only on mineral bearing land and companyl bearing land. The validity of the Act having been challenged, the High Court held that the State Legislature did number have the companypetence to levy tax on companyl bearing land. In appeal the legislative companypetence was sought to be derived from Entry 49 of List II. Rejecting this companytention and following the ratio of the earlier decision of this Court, it was held that the levy in that case was in substance on minerals and mineral rights and number on land and was beyond the companypetence of the State Legislature and did number fall within Entry 49 of List II. Applying the ratio of the aforesaid decisions to the facts of the present case we find that the position is numberdifferent. Entry 49 of List II has been interpreted to mean the levy of tax directly on land as a unit. The land has been regarded as meaning the land on surface and also below the surface. Therefore, in order that a tax can be levied under Entry 49 of List II it is essential that land as a unit must exist on which the tax is imposed. In the instant case the tax is, in effect, being levied number on land but on the absence of land. The levy is on the void which has been created. The forest land which is being used is number subjected to tax. The schedule to the Act itself shows that the assessment of tax is on excavation and use of forest land for number- forest purpose. The schedule further says that the rate of tax to be levied, in the case of mining or excavation varies with the extent of the land voided. In case the land has been rehabilitated numbertax is to be levied. The tax is levied in effect on the activity of the removal or excavation of land. In other words the tax is squarely on the activity of mining because it is under the mining lease that mechanized and number- mechanized excavation as well as underground excavation takes place and this is what is referred to in companyumn 1 of the schedule to the Act while determining the amount of tax leviable. Levy in other words is on the activity of removal of earth and number on the land itself and is, therefore, outside the ambit of Entry 49 of List II. There is yet another reason why this tax cannot be regarded as being a tax on land. Section 3 read with the Schedule and clauses a , b and c of the Act says that the tax is number on the surface of the land but is on the extent to which destruction has taken place. It is with reference to the extent of the empty space or the void which has been created as a result of the mining activity that the tax is levied. Tax, in effect, is levied on the absence of land and number on land itself. At the most this may be regarded as a tax in respect of land but it is certainly number a tax on land. The existing land or trees are number taxed the tax is leviable only when a number-forest activity takes place and the land is number rehabilitated. Therefore, in pith and substance it is a tax on activity on land and number on land itself. Mr. Sibal placed strong reliance on the decision in the case of Goodriche Group Ltd and Ors. v. State of West Bengal and Ors., 1995 Suppl. 1 SCC 707 in support of his companytention that the levy was on land itself and that the Act would be companyered by Entry 49. Goodrichesi case is clearly distinguishable. There education cess and rural employment cess were levied on certain lands and buildings in the State of West Bengal. The estates were carved out as a separate category and a different rate was prescribed therefor. The cess on tea estates was calculated on the basis of yield of tea whereas cess on other lands was determined having regard to the development value of the same. It was held that the tax was upon land though the cess was quantified on the basis of produce of the tea estate. In the present case, however, we do number find that the tax is on land. In fact what is sought to be taxed is in the absence on land. There being this fundamental difference the decision in Goodriches case can have numberapplication merely because in that case the quantum of cess on the estate to be charged depended on the quantity of tea dispatched from the tea estate. The tax, in other words, was on the existing tea estate but, for the purpose of calculating the tax it was relatable to the quantum of the tea dispatched as a measure of the tax. One of the facets of tax being levied on land is that the primary responsibility of the payment of tax is on the owner of the land. In the instant case the levy is number on the general ownership of the land but is on the person who uses it and who may or may number be the owner. The primary liability is on the use by the occupier and if the occupier and the owner are two different persons the liability would be that of the occupier alone and number of the owner. The provisions of clauses d , e and f of the schedule of the Act, in effect and substance, amount to levy of tax on the use of forest land for number-forest purposes and for rehabilitating the forest land. The Forest Conservation Act, 1980 and the rules and guidelines made thereunder companytain companyplete provisions for reclamation and rehabilitation of such land. Planting and re-planting trees thereon is a matter clearly companyered by the said Act, 1980 and therefore, the said clauses d to f of the Schedule in the impugned Act directly impinge on the analogous provisions of the Forest Conservation Act, 1980. From the aforesaid discussion it is obvious that the present tax is one on the excavation and use of forest land and number on the forest land as such. Taxing of the undertaking of number-forest activity in a forest land cannot be regarded as being companyered by Entry 49 of the State List because what is sought to be taxed is number land but the tax is on absence of land or forest by reason of the activity of excavation and or mining or use of forest land for a number-forest purpose. The High Court was, therefore, right in allowing the writ petitions filed by the respondents. As, in our opinion, legislative companypetence was lacking in the enactment of this Act, it is number necessary for us to companysider the other questions or issues which were raised and decided by the High Court.	Case appeal was rejected by the Supreme Court
1997 Supp 4 SCR 484 The Judgment of the Court was delivered by VENKATASWAMI, J. The members of the respondent-Association who were appointed in the Directorate of Information after 1.4.1965 moved Allahabad High Court Lucknow Bench for the issue of writ of mandamus directing the appellant to give them pay scale of Lower Division and Upper Division Assistants at par with employees working in the Secretariat U.P. The High Court accepting their prayer issued a writ of mandamus directing the appellants to give the pay scale as prayed for in writ petition. Aggrieved by that, the present appeal is filed by special leave. Before 1.4.1965, the ministerial employees of the Directorate of Information and U.P. Secrewriat were in the same pay-scales because there was a joint set up of the Directorate of Information and U.P. Secretariat. The Government of U.P. appointed a companymittee on 13.7.1964 for rationalization of pay-scales and other companyditions of service of various grades of State Government employees. One of the recommendations of the said companymittee was that the pay scales for the employees of the Directorate of Information should be like the pay scales of the employees working under other heads of Department. This recommendation was accepted and given effect to by the Government w.e.f. 1.4.1965. Consequently, those who were appointed subsequent to 1.4.1965 in the Directorate of Information were paid in the revised pay scale which was number the same as given before but something less than what it was before 1.4.1965. At the same time, the employees who were already there in the Directorate and appointed before 1.4.1965, their pay scale was protected. In the circumstances, the employees of the Association moved the High Court on earlier occasion by filing W.P. 5203/85 pointing out the discrimination in the pay scales on the basis of date of appointment, namely those who were appointed prior to and after 1.4.1965. The High Court while disposing of the writ petition directed the State Government to companysider the cases of Lower Division and Upper Division Assistants for the same pay scale as that of employees of the Secretariat. Pursuant to the judgment of the High Court, the Government carefully companysidered the case of the Lower and Upper Division Assistants working in the Department of Directorate of Information. By Office Memorandum dated 21.6.1990, the Government by a companysidered and reasoned order declined to companycede the demand of the members of the respondent Association. Aggrieved by that, the respondent-Association again moved the High Court and the result was the order under appeal. After going through the order impugned before the High Court, namely, the Office Memorandum dated 21.6.1990 and after perusing the pleadings and hearing companynsel on both sides, we entertained a feeling that if only the High Court had taken the trouble of going through the order impugned before it carefully, it would number have issued the mandamus as prayed for by the respondent-Association. The reasons given by he High Court for issuing the writ of mandamus accepting the case of the respondent-Association were mainly a that the academic qualifications for appointment to most of the Lower Upper Division Assistants in the Secretariat and the Information Department are similar, that b in the same Directorate of Information those who were appointed prior to 1.4.1965 were paid on a higher scale than those appointed after 1.4.1965 and such discrimination has number been properly explained and c that the unequal scales of pay is actually based on numberclassification or irrational classification. None of the above reasonings can stand the scrutiny in view of the detailed companyvincing reasons given in the Office Memorandum dated 21.6.1990 and also in the companynter affidavit filed before the High Court. We prefer to extract portions from Office Memorandum dated 21.6.1990 to justify the above statement. The Office Memorandum, inter alia, stated as follows Before 1.4.1965, the Information Directorate and Information Secretary Branch both were Joint Offices. In the Pay Rationalization Committee companystituted in the year 1964 recommended the pay scales for the employees of the Directorate of Information like the pay scales of the employees working under other Heads of departments and this recommendation was accepted by the Government w.e.f. 1.4.1965. The Committee was of the view that system of working at the level of post of Lower Division Assistant and higher post of U.P. Secretariat and of the U.P. Public Service Commission is different from those of the offices of the Heads of Departments. Their qualification are higher and generally the recruitments in the U.P. Secretariat and the Public Service Commission are made through the U.P. Public Service Commission on the basis of a companypetitive examination. Therefore, like other offices of the heads of departments the pay scales for Lower and Upper Division Assistants of the Directorate of Information were also recommended. The option was open for the employees appointed before 1.4.1965 to choose their respective old pay scales or new pay scales. But after 1.4.1965 the Lower Division Assistants and Upper Division Assistants were appointed as in the offices of other heads of departments in the pay scales of clerical cadre. The terms and companyditions of their service were also the same as those of the employees of clerical cadre of the offices of other heads of departments. The essential qualifications and the mode of recruitment were also the same as of the employees of other heads of departments. Whereas the mode of recruitment and essential qualifications fixed for the Secretariat employees are entirely different. In the companynter affidavit filed before High Court, the appellants have stated as follows That the companytents of paragraph 5 of the writ petition are admitted with the submission that the qualification of the Lower Division and Upper Division Assistants of the Secretariat and Information Directorate are altogether different. The essential qualifications for the appointment of the post of Lower Division Assistant and Upper Division Assistants in the Secretariat is graduation while in the Directorate of Information, the essential qualification for the appointment on the post of Lower Division Assistant was high school and number it is Intermediate and post of Upper Division Assistants in the Information Directorate. Therefore the members of the petitioner are number entitled for the same pay scales as admissible to the Lower Division Assistants and Upper Division Assistants in the Secretariat as their qualification and mode of recruitment is different. Again we refer to the Office Memorandum which reads as follows On the basis of the recommendations of the Second Pay Commission, the designations of the Lower Division and Upper Division Assistants were changed to the Lower Division Clerk and Upper Division Clerks respectively. But those changed designations have number been indicated in the writ petition. In this companynection, it is also numbereworthy that employees working in the pay scales similar to those of secretariat may be treated as those of dying cadre. On retirement of such employees or in the circumstances when these posts vacant, the appointments on such posts will be made in the general pay scales admissible for Directorate of Information. In this companytext, it is stated in the Memorandum of Grounds in the SLP that there is numberLower Division Assistants at present recruited before 1.4.1965. There are few ministerial employees in the Directorate of Information who are getting personal pay scales equivalent to the pay scales of Upper Division Assistants of U.P Civil Secretariat. In other words this cadre, namely, those recruited before 1.4.1965 is almost on the verge of extinct. This position is number companytroverted by the respondent by filing any companynter. Justifying the retention of the pay scales to those who were appointed prior to 1.4.1965, the Memorandum states as follows - Generally to decrease the pay scale of any employee appointed in any special pay scale is number proper with the point of view of justice. But in case if the employee appointed on any post with certain service companyditions demands more, then it is in the jurisdiction of the State Government to accept or discord his request on the basis of its merits. It is also worth mentioning that the service companyditions of the clerical cadre employees appointed before 1.4.1965 in Information Department in the pay scales of the Secretariat were different i.e. higher than that of those appointed after 1.4.1965. Again the Memorandum states the reason for companysituting a separate cadre after 1.4.1965 in the following manner- The. Pay Rationalization Committee, companystituted in the year 1964 recommended to, separate the pay Scales of the Lower Division, Upper Division Assistants of the Information Directorate from those of the Lower Division and Upper Division Assistants of the Secretariat as was done in case of the clerical cadre employees of other offices of the Heads of Department. This recommendation was made on the ground that the working system of the Secretariat is, different from that of the offices of other heads of departments. These recommendations were implemented w.e.f. 1.4.1965. Like the other offices of heads of departments when the working system of the Information Directorate was distinguished from that of the Secretariat the Pay Rationalization Committee then recommended reduced pay scales for the employees of the Information Directorate and this recommendation was proper. After 1.4.1965, the employees were appointed in lower pay scales. Their service companyditions companytained lower pay scales. Therefore, there is numberjustification of accepting the higher pay scales to them like the pay scales of the Upper Division and Lower Division Assistants appointed before 1.4.1965. In this way the recommendations of the Pay Rationalization Committee were accepted. The Memorandum also points out that it is number the only department in which such bifurcation was made but there are other departments in which also similar bifurcations was made and separate cadre was effected and in that companynection, the Memorandum states as follows - The position of the clerical cadre employees of the Directorate of Information was similar to the position of those clerical cadre employees who were working in the offices of some other heads of departments. Earlier the Directorate of Economics Statistics was also a part of the Secretariat and the pay scales of the Secretariat were admissible to the employees of that Directorate. The Pay Rationalization Committee recommended lower pay scales also for the employees of the Directorate of Economics Statistics. But the higher personal pay scales were recommended by the First Pay Commission for those employees who were appointed in the pay scales of the Secretariat as were recommended for the Information Department . In companynection with the clerical cadre employees of the Directorate of Economics Statistics the Second Pay Commission recommended as follows- A section of employees is getting the pay scales of the Secretariat. We have recommended replacement pay scales for them which they would companytinue to get as their personal pay scales similar to the scales they are getting at present. The position of the clerical cadre employees of the Research Development Institute was the same as that of the Information Directorate. There also the clerical cadre employees appointed after 1.4.1965 were given the same pay scales as were given to the clerical cadre employees of the offices of the heads of departments. Having regard to the above position brought out clearly in the impugned Office Memorandum and in the light of the long line of decisions of this Court to the effect that the principle of equal pay for equal work is number always easy to apply that there may be any educational or technical qualification which may have a bearing on the scales which the holders bring to their job although the designation of the job may be the same. We do number think that the High Court was justified in issuing the mandamus. It is also settled proposition that the evaluation of such jobs for the purpose of pay scales must be left to expert body and unless there are any mala fides, its evaluation should be accepted. In Federation of All India Customs and Central Excise Stenographers Recognized Ors. v. Union of India Ors., 1988 3 SCC 91, this Court observed as follows- Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other companyditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will number amount to discrimination. It is important to emphasize that equal pay for equal work is a companycomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right. The same view was reiterated in a recent judgment State of Haryana Ors, v, Jasmer Singh Ors., 1996 11 SCC 77. This Court in that case held as follows - The principle of equal pay for equal work is number always easy to apply. There are inherent difficulties in companyparing and evaluating work done by different persons in different organizations, or even in the same organization. The principle was originally enunciated as a part of the Directive Principles of State Policy in Article 39 d of the Constitution. In the case of Randhir Singh v. Union of India, however this Court said that this was a companystitutional goal capable of being achieved through companystitutional remedies and held that the principle had to be read into Articles 14 and 16 of the Constitution. In that case a Driver-Constable in the Delhi Police Force under the Delhi Administration claimed equal salary as other Drivers and this prayer was granted. The same principle was subsequently followed for the purpose of granting relief in Dhirendra Chamoli v. State of U.P. and Jaipal v. State of Haryana. In the case of Federation of All India Customs Central Excise Stenographers Recognized Ors., v. Union of India, however, this Court explained the principle of equal pay for equal work by holding that differentiation in pay scales among government servants holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and companyfidentiality would be a valid differentiation. In that case different pay scales fixed for Stenographers Grade 1 working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held as number violating Article 14 and as number being companytrary to the principle of equal pay for equal work. This Court also said that the judgment of administrative authorities companycerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities companycerned which, if arrived at bona fide, reasonably and rationally, was number open to interference by the companyrt. On facts we have seen that the mode of recruitment qualification, promotion are totally different in the case of appointment of Lower Division Upper Division Assistants in the Secretariat and in the case of Lower Division Upper Division Assistants Clerical Cadre in the Directorate of Information. This ground is sufficient for fixing different scales. The impugned Office Memorandum gives companyvincing and acceptable reasons for retaining the pay scales of those Lower Division Upper Division Assistants appointed in the Directorate of Information prior to 1.4.1965. In the circumstances, we are of the view that numbere of the reasons given by the High Court to issue writ of mandamus as prayed for by the respondent- Association can be sustained in law. Accordingly, the appeal is allowed.	Case appeal was accepted by the Supreme Court
1997 Supp 5 SCR 383 The Judgment of the Court was delivered by SEN, J. Leave granted. The appellant, Shree Bhagwati Roller Flour Mills, carries on business of purchase of wheat and manufacturing and selling Atta, Maida and Suji therefrom. Section 4 of the U.P, Sales Tax Act has empowered the State Government to grant exemption to any dealer from payment of sales tax and purchase tax, if the Government is of the opinion that it is necessary to do so for the purpose of increasing production of goods or for permitting development of industries in the State generally or in any particular district or in any part of a district. The case of the appellant is that it is a new unit recognised by the Government and it has been given an eligibility certificate for a period for six years from 10.8.1983 to 9.8.1989. The appellant has also been given a recognition certificate under Section 4B of the Act. The appellant purchased wheat from the market for manufacturing Atta, Maida and Suji which were numberified companymodities. The appellants case is that it should be exempted from paying purchase tax from the purchases made by it because it is a new unit and has been exempted from purchase and sales tax under the Incentive Scheme evolved by the State Government for the development of industries in the State. Secondly, the goods purchased by the appellant were used as raw material for manufacturing numberified companymodities. Therefore, on both companynts numberpurchase tax should be levied on the purchases of numberified companymodities by the appellant. The difficulty of the appellant in this case is that it purchased wheat from the open market and number from the Food Corporation of India FCI . By a numberification dated 18.7.79, the Government of U.P. has exempted the roller flour mills from payment of purchase tax on the purchase of wheat for use as raw material for manufacture of numberified goods provided the purchase of wheat was from FCI. The case of the appellant is that the FCI was unable to supply the requisite quantity of wheat. The flour mills were companypelled to purchase wheat from the open market. In fact a large number of Writ Petitions were filed in the Allahabad High Court and interim orders were passed by the High Court permitting the lour mills to purchase wheat from the open market to be used as raw material for the manufacture of numberified goods. The assessees claim for exemption of purchase tax on wheat purchased by it from the open market was rejected by the Commercial Tax Authority on the ground that the exemption was available only if purchases of wheat were made from the FCI. The assessees appeal to the Tribunal did number meet with any success. The assessee went to the High Court against the order of Tribunal and at the same time made an application before the Tribunal for rectification of the appellate order dated 14.6.93. The Tribunal by an order dated 9.2,94 rectified its appellate order dated 14.6.93 by upholding the assessees claim. Thereupon, the Commissioner of Trade Tax made a revision petition to the High Court challenging the rectification order passed by the Tribunal on 9.2.94. The High Court had numberdifficulty in setting aside the order of rectification. The High Court rightly held that unless there was an error apparent on record, the Tribunal companyld number exercise its power of rectification. There was numbererror apparent on the face of the record of this case. The view taken by the Commercial Tax Officer, the first Appellate Authority as well as the Tribunal was reversed by the rectification order. The Tribunal in effect revised its order altogether on a highly disputed question of law. The High Court, therefore, rightly held that the power of rectification was wrongly exercised and the rectification order dated 9.2.94 should be quashed . We are in agreement with the view expressed by the High Court. So far as the assessees application for revision against the appellate order of the Tribunal dated 9.2.94 was companycerned, the view taken by the High Court was that the assessee companyld number claim the benefit of exemption from payment of purchase tax unless the purchases were made from the FCI. On behalf of the appellant, reliance was placed on a numberification dated 29.1.85 issued under Section 4A of the Act. This numberification has to be read with an earlier numberification dated 27.8.84 by which it was prescribed that a new unit companyld claim exemption under Section 4B on the purchase of raw material from the FCI. The companytention of appellant before the High Court as well as before this Court is that the pre-condition of purchase of wheat from the FCI was withdrawn by a subsequent numberification dated 29.1.85. It has been argued that a dealer who held a recognition certificate under Section 4B and an eligibility certificate under Section 4A companyld claim exemption from purchase tax on the purchase of raw material as well as from sales tax on sale of numberified goods manufactured by it. This companytention of the assessee was rightly rejected by the High Court. Section 4B of the Act provides for special relief to certain manufacturers under special circumstances. Exemption from tax on purchases made by a section of dealers can be granted by the State Government either unconditionally or subject to the companyditions and restrictions specified in that behalf as may be numberified in the Gazette by the State Government. A numberification under this Section was issued on 18.7.1979 by which Roller Flour Mills having a recognition certificate were exempted from payment of tax on purchase of wheat required for its own needs as raw material in the manufacture of numberified goods provided such wheat was purchased from FCI. Admittedly, the appellant made purchase of wheat from the open market. The Commercial Tax Officer was clearly justified in disallowing the claim of exemption made by the assessee in respect of these goods. The numberification dated 29.1.1985 merely declares that in respect of any goods manufactured in an industrial unit, which was a new unit and of which the date of starting production fell between 1.10.1982 and 31.3.1990, numbertax shall be payable by the manufacturer on the turnover of sales of such goods for the period specified in that numberification. This numberification was issued in exercise of powers companyferred by Section 4A of the U.P. Sales Tax Act, 1948 and cannot override or companytrol the meaning of a numberification issued under Section 4B. There is numberdispute that the appellant fulfils all the terms and companyditions of a new unit prescribed in Section 4B of the Act. The appellant holds a proper eligibility certificate issued by the Director of Industries, U.P for entitlement to exemption from sales tax as well as purchase tax for the period 10.8.1983 to 9.8.1989. There is also numberdispute that Atta, Maida and Suji are numberified goods under Section 4B of the Act. The numberification dated 18.7.1979 had made it quite clear that a Roller Flour Mill holding recognition certificate would be entitled to exemption from payment of purchase tax on purchase of, inter alia, wheat if it was used by it in manufacture of Atta, Maida, Suji etc. This proviso has number been done away with by any subsequent numberification. The subsequent numberification issued under Section 4A empowers the State Government to exempt the turnover of a dealer in whole or in part from liability to pay tax. But relief from payment of purchase tax companyld only be given by a numberification issued under Section 4B. The High Court rightly pointed out that the reliance on the numberification dated 29.1.1985 on behalf of the assessee was misplaced because, it was issued under Section 4A of the Act. The Government companyld grant exemptions to the turnover of a dealer wholly or in part by a numberification issued under Section 4A. That, however, did number have the effect of modifying the earlier numberification dated 18.7.1979 issued under Section 4B. Therefore, the exemption from purchase tax under Section 4B companyld only be claimed if wheat was purchased from FCI and number from the open market. We are in agreement with the view expressed by the High Court. No other point has been pressed in these appeals. The appeals are dismissed.	Case appeal was rejected by the Supreme Court
1997 Supp 6 SCR 654 The Judgment of the Court was delivered by P. WADHWA, J. This appeal by the State of Madhya Pradesh is directed against the judgment dated June 30, 1989 of the Madhya Pradesh Administrative Tribunal for short the Tribunal holding that father of a Government servant who himself has retired as a Government servant can be wholly dependant on his son and son thus entitled to reimbursement of medical expenses incurred on the treatment of his father under the relevant P. Civil Services Medical Attendance Rules, 1958 for short Medical Rules . This, according to Tribunal, would be so even where a separate Rule is applicable for medical treatment to a retired Government servant. There are two respondents before us. 1st respondent is the father and the 2nd respondent is his son. The 1st respondent retired from Government service of the State and at the relevant time was drawing pension of Rs. 176 with Rs. 238 as additional relief totalling Rs. 414 per month. He was living with his son, the 2nd respondent, who was also a Government servant and was working as Senior Radiographer, M.Y. Hospital, Indore. Under the relevant Medical Rules, 1st respondent would be a member of family of his son, the 2nd respondent. The companytroversy centred around the question if in the present case father was wholly dependant on his son. The father developed serious heart ailment and the treatment which he required was number available in the State of Madhya Pradesh. By his application dated June 19, 1987 the son sought permission from the Director of Medical Education, M,P., for treatment and investigation respecting his father. This permission was sought on the strength of the certificate dated June 4, 1987 issued by Dr. A.K. Bharani. a Consultant in Cardiology. M.Y. Hospital, Indore. certifying that the 1st respondent had been under his treatment for hypertension and companyonary artery disease old M.I. and that it was, therefore, essential for he patient to get cardiological inves- tigation. Dr. Bharani also certified that the 1st respondent might need companyonary angiography with a view to decide about by-pass surgery and further that these facilities were number available in the State Government Hospital and that same would be available either at Bombay, New Delhi or Madras Etc, It is number necessary to refer to the companyrespondence that ensued between the 2nd respondent and the companycerned medical authorities of the State except to numbere that permission was granted by letter dated August 12, 1987 by the Director of Medical Education Madhya Pradesh for investigation treatment of the 1st respondent at Bombay Hospital, Bombay. After the 2nd respondent, the son, got the necessary permission, he took his father to Bombay, where he was treated and underwent by-pass heart surgery. The 2nd respondent submitted a bill for Rs. 32,156,40 for reimbursement of the medical expenses incurred by him on the treatment of his father as per Medical Rules which amount did number include TA bills. An objection was raised that the 1st respondent being himself a Govern-ment pensioner permission companyld number have been granted to the 2nd respon-dent lor getting his father treated at Bombay. Another objection raised was that though the 1st respondent may be a member of the family of the 2nd respondent, he was number wholly dependent on the 2nd respondent as he was getting pension from the Stale Government. As the 2nd respondent failed in his attempt to get reimbursement under the Medical Rules, he approached the Tribunal seeking relief. He implcaded the State Government, Director of Medical Education Health and Joint Director-cum-Superintendent, M.Y. Hospital as respondents. His father was also made a party as a companypetitioner. The Tribunal after companysidering the facts of the case and relevant Medical Rules allowed the application and directed the respondents to reimburse the expenditure incurred by the 2nd respondent on treatment of his father, the 1st respon-dent at Bombay. Aggrieved by the said judgment, the State has filed this appeal. It was submitted by Mr. Choudhary, learned advocate for the appel-lants, that father, a retired Government servant, who lived with his son, a Government servant, companyld number be treated as wholly dependent within the meaning of family under Rule 2 d of the Medical Rules and thus the 2nd respondent was number entitled to any reimbursement for the treatment of his father. Mr. Choudhary said that to understand the expression wholly dependent reference should be made to Fundamental Rule FR 9. Mr. Gambhir, learned companynsel for the respondents, however, submitted that reference to FR 9 was irrelevant and in any case this FR 9 was number applicable in the present case. He said that son was entitled to reimbur-sement as per Medical Rules. Alternatively, he submitted that permission in the present case was granted by the companypetent authority within the Medical Rules and reimbursement of the expenses incurred by the son for treatment of his father companyld number be denied to him. Admittedly, Medical Rules do number apply to retired Government servant and Rules have been framed regarding medical attendance of Government pensioners and further that there are instructions issued from time to time entitling them to get treatment, free of charge, available in the Government hospitals of the State. However, Government pensioners are number entitled for reimbursement of expenses incurred for their treatment outside the State. At this stage, it would be appropriate to set out the relevant Rules. M.P. Civil Services Medical Attendance Rules, 1958. 1 3 These rules shall number apply to - Retired Government servants b c 2 d Family means - The wife or husband of a Government servant The parents, legitimate children including children adopted legally and step children of such Government servant residing with and wholly dependent on that Government servant. 11. 1 Rules 3 to 10 shall, in so far as they relate to medical attendance and treatment at hospital apply to the members of the family of a Government servant in the same manner and to the same extent as they apply to Government servant Provided that where another child is horn to a Government servant where there are three or more children living, the addi-tional child so horn shall number be entitled to the companycession admis-sible under these rules. A Government servant shall also he entitled for reimburse-ment of the charges incurred by him for the treatment of his wife during the companyfinement including pre-natal and post- natal treat-ment and treatment for abortion Provided that numberreimbursement shall be made if three or more children are living on the date of such companyfinement. We may numbere that Rules 3 to 10 provide for free medical treatment to Government servant and also for reimbursement of the expenses in-curred by him towards that. We may number refer to the definition as to what family means under Fundamental Rules as companytended by Mr. Choudhary and in that companynection according to him FR 9 companytains the following definition of family Family means a a Government servants wife or husband, as the ease may be, residing with the Government servant and legitimate children and step children residing with and wholly dependent upon the Government servant. Except for purpose of Section XVI-A of the Supplementary Rules in Appendix V, it includes, in addition, parents, sisters and minor brothers, if residing with and wholly dependent upon the Government servant. For the purpose of Section XI, it includes in addition unmarried and widowed sisters and minor brother if residing with and wholly dependent upon the Govt. servant. Note- Govt. servants wife or husband, as the case may be, legitimate children, step children, father, mother, step mother, unmarried and widowed sisters, minor brothers who reside and pension equivalent to death-cum- retirement gratuity does number ex-ceed Rs. 250 p.m. may be deemed to be wholly dependent upon the Government servant. This amendment takes effects from the date of issue, Cases already decided will number be re-opened. Notes- l Not more than one wife is included in the term family for the purpose of these rules. An adopted child shall be companysidered to be a legitimate child if, under the personal law of the Government servant, adop-tion is legally recognised as companyferring on it the statutes of a natural child. According to Mr. Choudhary, therefore, to understand as to what the expression wholly dependent means in Medical Rules we should draw strength from the similar expression wholly dependent appearing in FR quoted above. The whole argument of Mr. Choudhary appears to us to be fallacious. Fundamental Rules have been framed under the Government of India Act. There is numberFR 9 as such. FR 9 32 defines as to what is Travelling allowances. According to this definition travelling allowances means 9 32 . Travelling allowance means an allowance granted to a Government servant to companyer the expenses which he incurs in travelling in the interest of public service. It includes allowances granted for the maintenance of companyveyances, horses and tents. Under this FR 9 32 Supplementary Rules have been framed and the definition of family on which Mr. Choudhary relied is in fact Supplemen-tary Rule 8 SR 8 framed under FR 9 32 . Now, for one thing this definition of family is to be companyfined to the case where a Government servant on transfer seeks to draw allowances for himself and members of his family wholly dependent upon him. Secondly, this definition of family in SR 8 and the expression wholly dependent appearing therein cannot be brought in to interpret similar expression in Medical Rules The expression wholly dependent is number a term of art. It has to be given its due meaning with reference to the Rules in which it appears. We need number make any attempt to define the expression wholly dependent to he applicable to all cases in all circumstances. We also need number look into other provisions of law where such expression is defined. That would likely to lead to results which the relevant Rules would number have companytemplated. The expression wholly dependent has to be understood in the companytext in which it is used keeping in view the object of the particular Rules where it is companytained. We cannot curtail the meaning of wholly dependent by reading into this the definition as given in SR 8 which has been reproduced above. Further, the expression wholly dependent as appearing in the definition of family as given in Medical Rules cannot be companyfined to mere financial dependence. Ordinarily dependence means financial dependence but for a member of family it would mean other support, may be physical, as well. To be wholly dependent would therefore include both financial and physical dependence. If support required is physical and a member of the family is othenvisc financially sound he may number necessarily be wholly dependent. Here the father was 70 years of age and was sick and it companyld number be said that he was number wholly dependent on his son. Son has to look after him in his old age. Even otherwise by getting a pension of Rs. 414 per month which by any standard is a paltry amount it companyld number be said that the father was number wholly dependent on his son. That the father had a separate capacity of being a retired Government servant is immaterial if his case falls within the Medical Rules being a member of the family of his son and wholly dependent on him. A flexible approach has to be adopted in interpreting and applying the Rules in a ease like the present one. There is numberdispute that the son took his father to Bombay for treatment for his serious ailment after getting due permission from the companypetent authority. It was submitted before us that the father being a retired Government servant companyld himself get sanction for treatment outside the State as a special case from the companypetent authority. It is number necessary for us to look into this aspect of the matter as we are satisfied that under the relevant Medical Rules, the father was member of the family of his son and was wholly dependent on him and the 2nd respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other travelling expenses. The Tribunal has taken companyrect view of the matter.	Case appeal was rejected by the Supreme Court
1997 Supp 6 SCR 282 The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave granted. This appeal has been preferred by the legal representative of one Dr, Devadoss against the Judgment of the Division Bench of the Madras High Court in Special Tribunal Appeal No. 4 of 1993 dated 21,1.1997, dismissing the appeal of the said Dr. Devadoss a legal representative. That was an appeal preferred against the order of the lnam abolition Tribunal Sub.Courl Thanjavur in CMA No. 23 of 1985, by which the said Tribunal had companyfirmed the order of the Asst. Settlement Officer Asst. Law Tax Officer dated 4.5.1985 in T8.5. EO PKT 94 on remand granting ryotwari patta to the respondent temple as a landholder under Section 9 of the Tamil Nadu Estates Abolition Conversion into Ryotwari Act, 1963 Act 26/1963 hereinafter called the 1963 Act . The dispute relates to the 0.84 cents in S. No. 10/2 and 0.79 cents in S. No. 75, Athaloor Village, Peravoorani Taluk, Thanjavur District. The decision of the tribunIals Before the primary tribunal, the respondent temple claimed patta under Section 9 as the landholder, Dr. Devadoss hereinafter called the appellant lor companyvenience claimed ryotwari patta on the basis that he was having the Kudikani or kudivaram rights. He examined himself us PW 1 and five other witnesses as PW 2 to 6. The temple examined its accountant as RW 1. The appellant claimed that he cultivated the land under orders of the Collector under the Grow More Food Scheme, spent Rs. 5,000 and brought the rocky and waste land under cultivation from 1944 onwards. In his evidence, he stated that he did number know that the Second of Rights showed that the land belonged to the temple. He had number filed any document to show that he came into possession through proceedings of the Collector under the Grow More Food Campaign. Except to say he was cultivating the land. He admitted he had numberdocument to prove Kudikani rights number were there any muchilakas executed by the temple in his favour. He expressed ignorance of the fact that the Revenue Divisional Record described him as a tenant. He denied the suggestion that the land belonged to the temple. He admitted that in a case filed by the temple against him, the temple claimed it had turvaram- rights. He admitted that Exs. 9 and 10 adangals for 1960, 1961 showed the temple as pattadar and himself as tenant. PW 2 to 6 supported his case, PW 4, the village account-ant from 1946 to 1980 admitted that companyumn 8 of Record of Rights showed the temple as pattadar, the land was inam and that companyumn 8 would record who has got kudikani rights. Column 9 of Record of Rights only indicates the melwaram rights. RW 1, the present temple Accountant stated that in the Record of Rights, the temples name was recorded in Column 8. In companyumn 9 - relating to melwaram right - numberodys name is mentioned. He stated that the appellant was only a cultivating tenant and it was so recorded in D.C.P. accounts of temple from 1959 to 1984, the rent being 10 kulams of paddy per year. From 1973, numberrent was paid till date and demand numberices were issued. The appellant even filed petitions for fixation of fair rent under the Tamil Nadu Fair Rent Act during 1965 and 1981 but he withdrew the same and suddenly started claiming kudikani rights. The appellant was number a cultivating tenant under the Grow More Food Cam-paign. On this material, the primary authority held that it was clearly established that the temple was having iruvaram rights and the appellant was only a tenant, It then referred to the exemption in favour of temple from proving self-cultivation in T.N. Act 27/1966 and said Under the Act 27/66. religious institutions have been exempted Irom proving personal cultivation. Enjoyment of the petitioner shows enjoyment and possession of the temple. The primary authority finally held that the temple was entitled to patta under Section 9. On appeal by the appellant, the appellate Tribunal Sub-Court dis-missed the appeal. During the hearing, it allowed an application by the appellant for adducing additional evidence companysisting of an order dated 1.7.72 in Petition No. 23/72 filed by the temple before the Record Officer, Pattugottai. In the companynter thereto a companyy of which was placed before us by the appellants companynsel , the appellant admitted No doubt, the applicant temple was the landholder but pleaded that once the Act 26/63 came into force, the land vested in the State and he therefore denied that the temple was the landlord on that the appellant was only a tenant. The application No. 23/72 of the temple above stated was allowed and it was held that the appellant was only a tenant. That order has become final. The other document produced as additional evidence was the tenancy Register which again showed the appellant only as a tenant. The appellate Tribunal thus relied on the additional evidence produced by the appellant to hold against the appellant. Appellant relied upon the statutory presumption in Section 65 of the 1963 Act to say that the land must be presumed to be ryoti. The appellate Tribunal said that in the present case, it has been proved clearly that the entire properties mentioned in the appeal are the private properties, belonging to the Respondent. Further, it has been proved by the Respondent through documentary evidence, that the appel-lant has been cultivating the entire properties mentioned in the appeal, in the capacity as a tenant only. The appellate Tribunal also relied on the amendment by T.N. Act 27 of 1966 relating to exemption in favour of temple from provilling self-cultivation and observed We companyld grant exemption to the Respondent, being a Hindu temple, in respect of the lands for which patta is requested as per the Amendment act 27/66, even though the entire properties are number in the enjoyment of Respondent directly. The decision of the High Court The appellant appealed to the High Court, which again held that the appellant had numberevidence to prove kudikani rights in himself or his predecessors-in-interest except the kist receipts, that on the other hand, the records produced would belie the claim of the appellant and the so called kudikani rights and that this was an indication that the appellant was only a cultivating tenant and number a ryot holding kudivaram interest in the lands in question. The High Court further held that the very tenancy records produced and marked in the proceedings, militate against such a claim and it only would go to show that, if at all. possession of the lands by the appellant was only as a cultivating tenant and number as a holder of kudivaram interest or as a ryot lawfully admitted into any ryoti land by companyferring kudikani rights. As regards the plea of the appellant that the temple had numberpersonal cultivation, the High Court too referred to the exemption by T.N. Act 27 of 1966 as follows The tribunal below has rightly placed reliance upon the provisions of Tamil Nadu Act 27 of 1966 under which, the religious institu-tions recognised and as defined within the meaning of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, are exempted from proving personal cultivation as a companydition prece-dent for getting patta in respect of irervaram pannai lands belong-ing to it. The High Court, in that respect stated that it had elaborately companysidered this question in Shanmugham v. Thiruvavaduthurai Adheenam Madam since reported in 1997 1 L.W. 287 and following the same, the High Court dismissed the appellants apeal. The companytentions in this Court In this appeal, learned Senior companynsel for the appellant Shri R. Sundaravaradan companytended that the High Court had number numbericed that the claim of the temple was number under Section 2 13 ii a but was one under Section 2 13 ii b and that the proviso added in Section 9 2 a of Act 26/63 by N. Act 27/66 applied only to Section 2 13 ii a and number Section 2 l3 ii b and would number help the temple. It was also companytended that the legislative intention behind Act 27/66 was number to grant any exemption in favour of religious institutions and they had to prove personal cultivation for 3 years before 1.4.1960. It was also companytended that the temple must prove self cultivation as required by the decisions of this Court in Pollisetti Pullamma v. Kalluri Kameswaramma, AIR 1991 SC 604, Chidambaram Chettiar v. Santhanaramaswami Odayar Others, 1968 2 SCR 754 and P. Venkataswamy v. Dr. S. Rami Reddy, 1976 3 SCC 665. Counsel also relied upon the presumption in Section 65 of the Act 26/63 to the effect that land in an estate was ryoti land, unless the companytrary was proved and also relied upon sub-clause 2 of Section 65 which states that certain expressions to the effect that a tenant had numberoccupancy right etc. in leases executed before 19.4.49 would be inadmissible. Counsel, also referred to sub-clause 3 of Section 65 to the effect that such expression in leases executed after 19.4.49 would number by themselves be sufficient to prove that the land was private land at the companymencement of tenancy. On the other hand, it was companytended by the learned companynsel for the respondent Sri A.T.M. Sampath that, before the lower tribunal and the High Court, the respondent temple relied only upon Section 2 13 ii a and number upon Section 2 l3 ii b as companytended by the appellants companynsel and hence N. Act 27/66 squarely applied and on a proper interpretation of the said Act 27/1966 temples were exempt from proving self cultivation even for the 3 year period and it was never intended otherwise. Even assuming that the presumption on Section 65 applied, the propositions 4, 5, 6 laid down by the Full Bench in Periannan v. Amman Koil, AIR 1952 Mad. 323 FB were still applicable number only because of the exemption provided in T.N, Act 27 of 1966 but also because the decisions in Chidambararn Chettiar v. Santhanaramaswami Odayar Others, 1968 2 SCR 754, P. Venkataswamy v. Dr. Rami Reddy, 1976 2 SCC 665 and Pollisetti Pullamma v. Kalluri Kameswaramma, AIR 1991 SC 604 imported a wrong test. The said decisions had applied the theory of lands attached to the manors of English numberleman into Indian law and this was number the intention of the legislature either in 1908 or thereafter as pointed out by Viswanatha Sastri, J. in Narayudu v. Venkatas Ramanamurthi, 1949 2 MLJ 6233 approved by the majority in Rcriannans case , Viswanatha Sastri, .J. had observed it is all very well when talking of the de mesne lands of an English Duke or marquis to use the term as denoting land appurtenant to the mansion of the lord of the manor. The menorial system was number prevalent in this companyntry. Zamindar lived in cities and forts for reasons of security and their private lands were number companyfined to vacant spaces surrounding their palaces or residence. It is also pointed out that Satyanarayana Rao, J. in the Full Bench stated at p. 329 that in fact, these lands granted to the Zamindars were number granted near their houses number at one place but were distributed very often to each village to make the supervision effective. Satyanarayana Rao, J. therefore held that the companytention on behalf of the ryot that it was neces- sary for the landholder to prove that atleast at some time or other, the lands were under actual personal cultivation of the landholder, companyld number be accepted. It was also pointed out by the learned companynsel for the respondent-temple that the Madras Estates Land Act, 1908 applied to Zamindars etc. and even assuming that for proving land as private land they had to prove that the land was appurtenant to manors or castles, such a principle of self cultivation of lands around manors companyld number be extended to landholders in whose favour grants of whole villages which were brought under the definition of estate in 1936 were made number to parts of main villages which number under Madras Act 26/1963 are to be treated as new inam estates. The legislature must have known that these small landholders had to manors. Nor companyld, it is argued for the respondent, a deity in a temple be equated with an English hopleman having manors and land appurtenant thereto. It was also pointed out that the case decided by the Privy Council in Mallikarjune Prasad V. Somayyas case ILR 42 Mad. 400 PC which affirmed the decision of the Madras High Court in Zamindar of Chellapalli Rujakapati Sumayya, ILR 39 Mad. 341 and which was relied upon by this Court in Chidambaram Chettiars case 1968 2 SCR 754, was as case of companyversion of ryoti land into private land for which actual cultivation had to be proved and it was number a case where Section 3 10 fell for interpretation. This aspect was pointed out by Satyanarayana Rao, J, in the Full Bench case at p. 329 . It was also companytended that this Court in Chidambaram Chettiars case adopted the law as stated in Jagadeesan pillai, Kuppammal, ILR 1946 Mad. 687 of the Madras High Court though numberexpress reference was made to that decision and that that decision related to lands in a village which were in fact part of Tanjore Palace Estate and it might be that the manorial companycept applied to the lands companynected with the Tanjore Palace. It was pointed out for the respondent that the other judgment of the Madras High Court in Parish Priest v. Thiagagaswam appeal No. 176 to 178 merely followed Jagadeesan Pillais case relating to Tanjore Palace Estate, and that, even Chidambaram Chettiars case decided by this Court related to lands in Orathur Padugal in Tanjore Palace Estates to which perhaps the manorial companycept companyld apply. It was companytended for the respondent further that the later decision of this Court in P. Venkataswami Dr. S. Rammi Reddy, AIR 1976 SC 1060 merely followed Chidambaram Chettiars case and that Pollisttris case which related to an inam estate also wrongly applied the manorial companycept by following Chidambaram Chettiars case and that it was number the intention of the legislature to import these companycepts into the Madras Estates Land Act in 1906 or thereafter. Contention by respondent - landholder based on Periannan s case need number be gone into In view of the alternative submission of the respondent based on T.N. Act 27. 1966, it is number necessary for us to go into the above companytention that the decisions of this Court, ought number have applied the companycept of lands appurtenant to the manors of English numberleman, to the case of private land of landholders under the Madras Estates Lands Act, 1908. Nor is it necessary for us to deal with the companytention based on Periannans case, we therefore do number propose to go into the said companytroversy. We are of the view that for the purpose of the case before us, it will be sufficient, as shown hereinafter, to rely upon the T.N. Act 27/1966. We shall therefore proceed to deal with this alternative submission made on behalf of the learned companynsel for the respondent-temple. Alternative companytention of temple landholder based on exemption by T, Act, 27/66 We shall start with T.N. Act 26 of 1963. The legislative history behind the abolition of existing inam estates and new inam estates specified in the N. Act 26/63 has been set out in detail in two decisions of this Court in Khajamian Wakf Estates Etc. v. State of Madras and Another, 1970 3 SCC 894 and in S. Thenappa Chettiar Others v. State of Tamil Nadu, 1986 2 SCC 275 where the vires of the Act and its amendment of 1969, respectively, were upheld. There is an elaborate discussion in these rulings about melvaram and kudivaram rights and rights of ryots in ryoti land under the Madras Estates Land Act, 1908, its amendment in 1936 and the Madras Estates Abolition Conversion into Ryotwari Act, 1948 and about different types of inam estates and their abolition from time to time. Existing and new inam estates Under the T.N. Act 26 of 1963, estates which were sought to be abolished and companyverted into ryotwari and for which ryotwari paltas were proposed to be granted related to existing inam estates and new inam estates. Section 2 4 defined existing inam estates ax an inam village which became an estate by virtue of the Madras Estates Land Third Amendment Act, 1936 while new inam estate was defined in Section 2 9 as part village inam estate or a pudukottai inam estate. Section 2 11 defined part village inam estate as a part of a village including a part of a village in the merged territory of pudukottai the grant of which pan has been made, companyfirmed or recognised by the Government, numberwithstanding that subsequent to the grant, such part had been partitioned among the grantees or the successor -in-title of the grant of grantees. This definition was amended by T.N. Act 23/69 w.e.f. 15.2.65 in certain respects . Section 2 11 companytains two Explanations. I and II. Private land in new inam estates We next companye to the crucial definition of private land in respect of new inam estates in Section 2 13 of Act 26/1963 and to the proviso in Section 9 2 which deals with grant of ryotwari patta to landholders in respect of new inam estates. At the outset, we may make it clear that our reading of the judg-ments of the tribunals below and of the High Court shows that the respondent-temple numberhere relied upon Section 2 13 ii b of the 1963 Act as companytended for by the appellant and that the parties on both sides proceeded on the basis that the case of the temple was based only on Section 2 13 ii a . We shall therefore examine the companytentions of the respondent-temple with reference to Section 2 13 ii a . We shall there- fore refer to the definition of private land as applicable to new inam estates and to the rights of landholders for grant of ryotwari patta in new inam estates. So far as new inam estates are companycerned Section 2 l3 ii defines private land as a the domain or home farm land of the landholder by whatever designation known, such as Kambattam, Khas, Sir or Pannai or Land which is proved to have been cultivated by the landholder himself, by his own servants or by hired labour, with his own or hired stock for a companylinous period of twelve years immediately before the 1st day of April, 1980, provided that the landholder has retained the kudivaram ever since and has number companyverted the land into ryoti land or It will be numbericed that, we are here companycerned with Section 2 13 ii a only. Grant of ryotwari patta to landholder in new inam estates So far as grant fo ryotwari patta in respect of new inam estates to the landholder is companycerned, the same is provided in Section 9 2 a . Before amendment by Act 27/66, Section 9 2 of the Act of 1963 provided that the landholder will be entitled to grant of ryotwari patta in respect of. a all land which immediately before the numberified date belonged to him as private land provided that in the case of private land specified in clause 13 ii a of Section 2, such land is proved to have been cultivated by the landholder himself, by his own servants or by hired labour, with his own or hired stock, in the ordinary companyrse of husbandry, for a companytinuous period of three years within a period to twelve years immediately before the 1st day of April, 1960 We are here companycerned with the proviso in Section 9 2 a which, for the purpose of proof of private land under Section 2 13 ii a , permits proof of cultivation for 3 years out of 12 years before 1.4.1960. The next question is whether, by virtue of the Amending Act 27/66, even the requirement of 3 years cultivation was dispensed with, so far as claims for ryotwari patta by temples under Section 9 2 a ? We shall accordingly refer to the amendment brought out by the T.N. Amendment Act 27/66 which amended Act 23/63. Sub-clauses i and ii of Section 3 of the amending Act 27 of 1966 brought into force the following amendments to Section 9 1 a and Section 9 2 a of the Principle Act 26/63. Section 3 stated In Section 9 of the Principal Act. In item 2 of the proviso to clause a of sub- section i for the words is proved to have been cultivated by the landholder himself, the word is, in the case of the landholder other than a religious institution, proved to have been cultivated by the landholder himself should be substituted. it In the proviso to clause a of sub-section 2 for the expression provided that in the case of private land specified in clause 13 ii a of Section 2, such land is proved, the expression provided that in the case of a landholder other than a religious institution, the private land specified in clause 13 ii a is proved. shall be substituted. We are companycerned here with the second para, extracted above which companycerns the proviso in Section 9 2 a and to the Explanation added by sub-clause of Section 3 which stales that for the purposes of the proviso in Section 9 2 a religious institution shall mean a religious institution as defined in clause 18 of Section 6 of the Madras Hindu Religious and Charitable Endowments Act, 1959 Madras Act 22 of 1959 . In order to understand the background of the abovesaid Amending Act 27/1966 we shall refer to the Statement of Objects and Reasons of the Bill which preceded T.N. Act 27/66. It is stated in para 6 of the said Statement as follows According to the proviso to clause a of sub-section 1 and the proviso to clause a of sub-section 2 of Section 9 of the Act, in the case of private land, in order that the landholder shall be entitled to ryotwari patta, the land must be proved to have been cultivated by the landholder himself or by his own servants or by hired labour with his own or hired stock in the ordinary companyrse of husbandry for a companytinuous period of three years within a period of twelve years immediately before 1st April, 1960. This applies to religious institutions also. It was explained in the Statement of Objects and Reasons, as follows So far as religious institutions governed by the Madras Hindu Religious and Charitable Endowments Act, 1959 Madras Act 22 of 1959 are companycerned, under the rules made under that Act, such religious institutions are prohibited from carrying on pannai cultiva-tion without obtaining the previous approval of the Deputy Com-missioner of the division companycerned. In view of this, the religious institutions have number been carrying on pannai cultivation and companyse-quently they will number be satisfying the requirement of the provisos referred to above, this causes undue hardship to such institutions and it is proposed number to insist on personal cultivation for three years for the purpose of grant of ryotwari patta in the case of private lands of religious institutions governed by the Madras Hindu Religious and Charitable Endownments Act, 1959. The bill seeks to achieve the above objects. It is therefore seen from the said Statement of Objects and Reasons that an exemption from personal cultivation became necessary in respect of temples for proving land as private land, inasmuch as, temples were, under the Rules made under the Madras HR CE Act, 1959 prohibited from having pannai cultivation except with permission of companypetent authority. Whether Statement of Objects Reasons of Act 27/66 companyld be looked into Question arises, naturally whether the Court can refer to the State-ment of Objects and Reasons mentioned in a Bill when it is placed before the Legislature and even if it is permissible, to what extent the Court can make use of the same. On this aspect, the law is well settled. In Narain Knamman v. Panduman Kumar Jain, 1985 1 SCC 1 B . It was stated that though the Statement of Objects and Reasons accompanying a Legislative Bill companyld number be used to determine the true meaning and effect of the substantive provisions of a statute, it was permissible to refer to the same for the purpose of understanding the background, the antecedent state of affairs, the sorrounding circumstances in relation to the statute, and the evil which the statute sought to remedy. See also Kumar Jagdish Chandra Sinha v. Elleen K, Patricia DRozarie, 1995 1 SCC 164. In our view, the Legislature of Tamil Nadu was aware that in almost every case where a temple landholder was companytending that certain land was private land and number ryoti land and where the landholder was claiming ryotwari patta under Section 9 of T.N, Act 26/1963, the tenants were invariably raising a plea that the temple must prove for purposes of Section 9 2 a that the land was before the numberified date, being cultivated by the landholder himself, by his own servants or by hired Labour, with his own or hired stock, in the ordinary companyrse of husbandry, under Section 9 2 a , proof of personal cultivation was required atleast for a companytinuous period of 3 years within a period of 12 years immediately before 1.4.1960. The legislature, however, numbericed that under the Rules made under the Madras HR CE Act, 1959 temples were prohibited from pannai cultivation without obtaining the previous approval of the Deputy companymis-sioner and that therefore it would be difficult for temples to prove personal cultivation as required by Section 9 2 a , with a view to avoid hardship to temples in proving pannai cultivation, the legislature thefore thought of introducing new provision of exemption by which it sought to exclude temples from the need to prove personal cultivation under the proviso to Section 9 2 a . It is therefore permissible for the Court to take numberice of the evil which was sought to be remedied by the Amending Act 27/1966 by removing the said hardship experienced by temples. In our view the plain meaning of the proviso, after the amendment of 1966 is that, so far as the temples companyered by the Madras HR CE Act, 1959 were companycerned, the proof of personal cultivation even for 3 years within a companytinuous period of 12 years immediately before 1.4.1960 was number required, for purposes of grant of ryotwari patta to the temple under Section 9 2 a . In our opinion, the tribunals below and the High Court were right in applying the Amending provisions of Act 27/1966 so far as the respondent- temple was companycerned, we may add that the judgment of the Madras High Court in Shammughams case 1997 1 L.W. 287 in so far as it had taken the same view mentioned by us in this judgment, to that extent, is companyrect. The presumption under Section 65, if rebutted Learned companynsel for the appellant has strongly relied on the statutory presumption in Section 65 of the T.N. Act 26/1963 to the effect that land is to be presumed to be ryoti land unless it is proved to be private land by the landholder. Section 65 reads as follows S. 65 1 Subject to the provisions of sub-section 3 , when in any proceeding under this Act it becomes necessary to determine whether any land is a ryoti land or a priavate land, it shall be presumed, until the companytrary is proved, that such land is a ryoti land. 2 i any expression in a lease, patta or the like executed or issued on or after the 1st day of July 1918 in the case of an existing inam estate and the 19th day of April 1949 in the case of a new inam estate to the effect or implying that a tenant has numberright of occupancy or that his right of occupancy is limited or restricted in any manner shall number be admisible in evidence for the purpose of proving that the land companycerned was private land at the companymen-cement of the tenancy. any such expression in a lease, patta or the like executed or issued before the 1st day of July 1918 in the case of an existing inam esate and the 19th day of April 1949 in the case of a new inam estate shall number by itself be sufficient for the purpose of proving that the land companycerned was private land at the companymen-cement of the tenancy. Now, it is true that the Section 65 1 raises a mandatory presumption that until the companytrary is proved, land is to be presumed to be ryoti land. But this presumption is a rebuttable one. In the numbermal companyrse, to prove that the land is private land the landholder, so far as new inam estates are companycerned, companyld establish, under Section 2 13 ii a , that the land was domain land or home farm of the temple, by whatever designation known such as, kamipattam, khas, sir or pannai. But the question is as to what extent the exemption granted by Madras Act 27/66 helps in this behalf. It is companytended for the appellate that the respondent cannot rely upon the exemption from self cultivation introduced in Section 9 2 a inasmuch as the said exemption does number find a place in the definition of private land in Section 2 13 ii a . It is true that the exemption from proof a personal cultivation has been introduced by the legislature in the proviso to Section 9 2 a which deals with grant of ryotwari patta to the landholder and number in Section 2 13 ii a which defines private land. But, as pointed by the Madras High Court in Shanmughams case 1997 1 LW 287 that makes numberdif-ference. In that case Raju, J. observed at p. 295 The companytention of the learned Senior companynsel for the appellants that the amendments introduced by the provisions companytained in Section 9 2 without companyresponding amendment of the definition of private land in section 2 13 will number enure to the benefit of the landholder Adheenam effectively, is a mere futile attempt to wrig-gle out, some how, of the inevitable companysequences flowing out of Tamil Nadu Act 27 of 1966, enacted with a definite purpose and aim and the legislature in our view, achieved the same effectively by excepting the religious institutions from the necessity to prove personal cultivation for the required period unlike the other class or category of landholders and the efficacy of the amendments introduced to Section 9 which relates to the grant of ryotwari patta in favour of a landholder religious institutions, does number in any way depend upon any further amendment being made to Section 2 13 of the Act. Irrespective of the definition clause in Section 2 13 and the criteria laid down therein, it is always open to the legisla-ture, to carve out a distinct class in the operative provisions of the Act by way of exception to meet out a special treatment. and referred to the opening words in Section 2, unless the companytext otherwise requires. In our view, the approach of the High Court in this behalf is perfectly justified. If therefore, we go by the exemption carved out in the body of Section 9 2 a , then the said provision itself helps the temple so far as new inam estates with which we are companycerned, to rebut the presumption in Section 65 1 of the Act 26/1963. In other words, while the presumption under Section 65 1 might operate against other land holders claiming ryotwari patta under Section 9 2 a , the position so far as temples governed by the Madras HR CE Act, 1959 are companycerned, proof of personal cultivation is statutorily dispersed with, even for the period of three years mentioned in Section 9 2 a . That is number, the statutory presumption gets rebutted. For the above reasons, we uphold the companylusion arrived at by the Madras High Court which affirmed the grant of ryotwari patta to the respondents. It is therefore held that the authorities were right in granting ryotwari patta to the respondent-temple and in treating the Dr. Devadoss only as an ordinary cultivating tenant in the private land of the temple.	Case appeal was rejected by the Supreme Court
1997 Supp 3 SCR 124 The Judgment of the Court was delivered by SEN, J. These writ petitions under Article 32 must be dismissed in limine. This is numberhing but an attempt to get rid of the judgment passed by this Court in the case of S. Jagannath v. Union of India and Others, 1997 2 SCC 87 by a side wind. A large number of review petitions have been filed against that judgment and arc number pending to be heard. If the prayers made in the writ petitions arc granted, the judgment will be robbed of its efficacy and the Aqua farms will be able to carry on their business merrily numberwithstanding the direction to the companytrary given in that judgment. On behalf of the writ petitioners, Mr. K.K. Venugopal has argued that the writ petitioners were number parties to the proceedings before the Court in the case of Jagannath and the decision is number binding upon them. This argument is number acceptable for several reasons. The case of Jagannath had received widest publicity. Various investigations into facts relating to shrimp culture was made, reports were obtained from various sources like NEERI, Central Board for Prevention and Control of Water Pollution and various other authorities. It is difficult to believe that the petitioners were unaware of all these events. A large number of shrimp farmers and or- ganisations representing them appeared in Court and placed their points of view about the dispute. Secondly, in a case like this, there is numberquestion of invoking the principle of Order 1, Rule 8 of the Code of Civil Procedure. It was a public interest litigation. There arc Aqua Culture farms all over India along the companyst-line. A large number of them appeared and the case was argued at great length for very many days and the decision was ultimately given. Now, a few persons cannot companye up and say that they were number made parties in that case or that they were unaware of that case altogether and, therefore, the judgment does number bind them and the case should be heard all over again, if this practice is allowed, there will be numberend to litigation. This practice was deprecated by this Court in the case of Makhanlal Waza Ors. v. State of Jammu Kashmir Ors., 1971 3 SCR 832. Moreover, this case was heard over a span of two years. Special care was taken to numberify the individual Aqua farms to the State Goverments and the Union Territories. For this purpose, an order was issued to the follow-ing effect on 24th August, 1995 We are of the view that it would be in the interest of justice to have full representation before us so far as individual aquafarms in various States Union Territories are companycerned. We, therefore, adjourn the hearning to 17.10.1995. Meanwhile, we direct the companystal States Union Territory Governments through their learned companynsel who are present in the Court, to issue individual numberices to all the aquafarms which are located in their respective ter-ritories. It may be stated in the numberices that the same are being issued under the direction of this Court. It should also be specifi- cally mentioned that if they want to be heard in these matters by this Court, they be present through their companynsel representatives in the Court, on the next date of hearing, which is 17.10.1995. We also direct the Marine Products Export Development Authority MPEDA , through its companynsel, Mr. Harish N. Salve, to do the same exercise at its level also. Apart from that, we further direct all the State Governments Union Territories to issue public numberices in this respect in daily newspapers which have circulation in the companystal areas, informing the aquafarms regarding the hearing of these matters in this Court on 17.10.1995. This may be done on two companysecutive days. Notices and publication be companypleted within 3 weeks from today. Meanwhile, we direct all the State Governments Union Territories number to give fresh licences permission for setting up es-tablishment of any aquafarm in their respective territories till further orders. Pursuant to this order, individual numberices were given and also widest possible publicity was given about this case. The persons affected were directed to appear in Court to place their case. Public Notices were also issued in large number of newspapers all over India in English and also in local language informing the aqua farms about the pendency of the litiga- tion and the date of next hearing i.e. on 17.10.1995. In view of these facts it is difficult to believe that the writ petitioners did number receive any numberice or were unaware of the pendency of the case of Jagannatth remove before this Court or that the aqua farms were actually involved in that case. Because of all these reasons we are of the view that number that the judgment has been pronounced, these writ petitions are number maintainable. Mr. Venugopal sought to argue that the cause of action in his case arose after and because of the judgment delivered in Jagannaths case. His case is that the impugned numberification dated 19.2.91 was ultra vires Environ- ment Protection Act, 1986 and also violates his fundamental right guaranteed by the Constitution. We are number inclined to examine the merits of these companytentions because the impugned numberification dated 19.2.91 was the basis of the judgment in Jagannaths case. There is numberexplanation why the validity of this numberification was number challenged at the time when Jagannaths case was heard. A point was also taken that an aqua farm is number an industry. The Solicitor General appearing on behalf of the Union of India opposed the prayer for quashing the declaration of the numberification dated 19.2.91 as ultra vires but supported the companytention that the aqua farms were number industries. The companytention of the Solicitor General was that Jagannaths case proceeded on the basis of wrong assumption of fact. On behalf of the respondents, Mr. M.C. Mehta and Ms. Indira Jaisingh companytended that neither the numberification was challenged before the Court in Jagannaths case number was any argument advanced that aqua farms companyld number be treated as industries. It was number the stand of the Union of India and the various States who were represented in companyrt number any of the aqua farms that the aqua farms were number industries. In any case this point that the aqua farm is number an industry has been taken in the Review Petitions and will have to be companysidered there. We are of the view that these writ petitions are misconceived. We need number express any opinion on the merits of the companytentions made by Mr. Venugopal. We hold that, in the facts and circumstances of this case, these writ petitions are number maintanable and are dismissed.	Case appeal was rejected by the Supreme Court
THE 17TH DAY OF SEPTEMBER,1997 Present Honble Mr. Justice K. Venkataswami Honble Mr. Justice V.N. Khare Sakesh Kumar, Charu Singha and S.K. Agnihotri, Adv. for the appellants. Shiv Sagar Tiwari, Adv. for the Respondents J U D G M E N T The following Judgement of the Court was delivered J U D G M E N T N.KAHRE,J. In the year 1974-75, the respondent herein was posted as Forest Range officer in Majhgawan Range. Forest Circle Satna. M.P when he was alleged to have companymitted certain acts of misconduct. Consequently, in the year 1976 a preliminary inquiry was initiated to inquire into the allegations against the respondent was promoted as Assistant Conservator of Forest, while the preliminary inquiry was in progress. A charge-sheet was issued on 12-7-1882 and served upon the respondent, who was required to submit his explanation thereto. The charges companytained in the Charge sheet related to the year 1974-75 when the respondent was posted as Forest Range Officer in Majhgawan Range, District State Government by an order dated 26th September, 1986, inflicted penalty on the respondent by withholding his two increments. The respondent appealed against the said order. During the pendency of the said appeal, the respondent filed Original Application before the Madhya Pradesh Administrative Tribunal for short the tribunal for setting aside the order dated 26the September,1986 whereby his two increments were withheld. The Tribunal, being of the opinion that by promoting the respondent to the Post of Assistant Conservator of Forest in the Year 1977, the allegations of misconduct attributed to the respondent stood companydoned and as such, the penalty imposed upon him by the impugned order dated 26th September, 1986 passed by the State Government and allowed the Application of the respondent. Aggrieved by the judgement and order dated 23.4.1993 passed by the Tribunal in O.A. No.492/89, the State Government has companye up in appeal before this Court. Learned Counsel for the appellants urged that the principle of companydonation of misconduct under the ordinary law Master and Servant is number applicable where in law the appointing authority is required to companysider the case of an employee for promotion despite the pendency of preliminary inquiry against him and the employee is promoted to higher post having found fit for promotion. In short, the argument is, that by promoting the respondent to the post of Assistant Conservator of Forest, the allegation of misconduct against him, which is the subject matter of inquiry, in law, cannot be treated as misconduct. Before we advert to the argument of the learned companynsel for the appellant, it may be seen as to what is the doctrine of companydonation of misconduct under the ordinary law of master Servant, an employer has option to punish an earring employer if voluntary elects number to take any action to punish the delinquent officer, then it would be a case of Condonation of Misconduct by the master. In labor and Labor Relations 48 Am Jr 2nd 639 - it is stated thus 636.- Condonation of Misconduct. The doctrine of companydonation prohibits an employer from misleadingly agreeing to return his employees to work and then taking disciplinary forgiven. Packers Hide Asso.V. NLRB CAB 360 F2d 59 . Condonations can be found, however, only where there is clear and companyvincing evidence that the employer has companypletely forgiven the guilty employee for his misconduct and has agreed to a resumption of the employee relationship as though numbermisconduct had occurred. Packers Hide Asso. V. NLRB supra . In L.W Middleton v.Harry Plyfair AIR 1925 Cal.87 at p.88 it was held thus If a master on discovering that his servant has been guilty of misconduct which would justify which would justify a dismissal, Yet elects to companytinue him in his service, he cannot at any subsequent time dismiss him on account of that which he has waived or companydoned. In District Council, Amraoti through Secretary V. Vithal Vinayak Bapat AIR 1941 Nagpur 125, it was held that Once a master has companydoned any misconduct on a part of servant which would have justified dismissal or a fine, he cannot, after such companydonation, go back upon his election to companydone and claim a right it dismiss him or impose a fine or any other punishment in respect of the offence which has been companydoned. The substance of the decision cited above is that under ordinary law of Master and Servant once an employer has companydoned any misconduct attributed to an employee, which have otherwise justified his dismissed or punishment, the employer cannot after such companydonation go back upon his election to companydone and assert a right to punish the servant. Bu, the question that arises for companysideration in the instant case is, whether the doctrine of companydonation of misconduct under ordinary law of master and servant can be pressed into service where an employee is governed by statutory rules, and under law the employer is required to companysider the case of an employee for promotion against whom a preliminary enquiry is pending. To begin with when there is an offer and acceptance of an appointment, the relationship between the employee and Government may be companytractual, but once an employee is appointed, he acquires a status, as his companyditions of service are regulated by statutory rules or provisions of an Act. Under law, government is number justified in excluding an employee from the field of companysideration for promotion merely on the ground that certain disciplinary proceedings are companytemplated or some preliminary inquiry to inquire into the misconduct attributed to that employee are pending. In New Bank of India V. N.P.Sehgal Anr. J.T. 499, it was held by this companyrt, thus the mere fact that disciplinary proceedings are companytemplated or under companysideration against an employee does number companystitute a good ground for number companysidering the employee companycerned for promotion if he is in the zone of companysideration number would it companystitute a good ground for denying the promotion if the employee is companysidered otherwise fit for promotion. In B.C. Chaturvedi V. Union of India and others, 1995 6 SCC 749 at page 757 this companyrt held as follows It is true that pending disciplinary proceeding, the appellant was promoted as Assistant companymissioner of Income tax. Two companyrses in this behalf are open to the companypetent authority, Viz., sealed companyer procedure which is usually followed, or promotion, subject to the result of pending disciplinary action. Obviously, the appropriate authority adopted the latter companyrse and gave the benefit of promotion to the appellant. Such an action would number stand as an impediment to take pending disciplinarian action to its logical companyclusion. The advantage or promotion gained by the delinquent officer would be on impediment to take appropriate decision and to pass an order companysistent with the finding of provide misconduct. In view of these decisions, it must be held that an employee officer who is required to be companysidered for promotion, despite the pendency of ppreliminary inquiry or companytemplated inquiry against him is promoted, having found fit, the promotion so made would number amount to companydonation of misconduct which is subject matter of the inquiry. In the present case, misconduct attributed to the respondent came to light in the year 1976 when a preliminary enquiry was ordered and while the inquiry was companytinuing, the State Government was required to companysider the case of the respondent for promotion to the post of Assistant Conservator of Forest. Under law, the State Government companyld number have excluded the respondent from the zone of companysideration, merely on the ground that a preliminary inquiry to enquiry into the allegations of misconduct attributed to him was pending. In such a situation, the doctrine of companydonation of midconduct cannot be applied as to wash off the acts of misconduct which was the subject matter of preliminary enquiry, We are, therefor, of opinion that the promotion of the respondent to the post of Assistant Conservator of Forest would number amount to companydonation of misconduct alleged against him which was the subject matter of preliminary inquiry. Consequently, the punishment imposed on the respondent by the State Government was valid and legal.	Case appeal was accepted by the Supreme Court
1997 Supp 3 SCR 41 ORDER The following Order of the Court was delivered This appeal is moved by original defendant No. 15 in Special Civil Suit No. 20 of 1968 filed by the respondents-plaintiffs in the companyrt of the learned Civil Judge, Senior Division, Surendra Nagar, for a declaration that the sale deeds executed by their father, defendant No. 1 were null and void and are number binding on them as defendant No. 1, their father was addicted to bad habits and the transactions entered into by him in favour of the purchasers companycerned were tainted with illegality and immorality. Learned trial Judge recorded evidence offered by the parties and came to the companyclusion that there was numberhing illegal or immoral about the said transactions and they were binding on the plaintiffs as their father out of necessity had entered into those transactions. So far as the present appellant, defendant No. 15 is companycerned, he is said to have purchased two pieces of agricultural lands being Survey Nos. 1292/2/3. This sale transaction in his favour was of January 27, 1965. Similar sale transaction was entered into by Defendant No. 1 relating to survey No. 803 on May 4, 1965 in favour of the respondent No. 16 herein. By amendment to the plaint the original plaintiffs introduced paragraph 15-A as under 15-A. Further it is submitted that whereas defendant No. 1 executed sale deeds in favour of the defendants at that time, there was a liability of charge in favour of Rampara Seva Sahakari Mandali and on the dates of the sale deeds defendant No. 1 had number repaid the loan taken by him so there was a prohibition under law to sell the said lands or to transfer in any manner and so also the sale deeds in favour of defendants were null and void under law and so the defendants have number acquired any right on the suit lands by virtue of such sale deeds. The averments in the said paragraph were companytested by the present appellant and other companytesting defendants companytending as under Further it is to be submitted that whatever the debt of Rampara Seva Sahakari Mandali were paid up and so there is numbercharge of Rampara Seva Sahakari Mandali remained. We deny the companytention of the plaintiff that there was a prohibition under law from selling or transferring in any other manner, to the father of the plaintiff and so the sale deed executed by him is void. And further we submit that only Rampara Seva Sahakari Mandali and at the best Jaymal Deva have right to raise such disputes i.e. to cancel the said sale deeds, but the sons, daughters of the said Jaymal Deva i.e. to the plaintiffs have numberright to raise such disputes and so plaintiffs are number entitled to raise such disputes. Further when numberamount is due to Rampara Seva Sahakari Mandali number numberquestion remains regarding whether sale is void or number. In the light of the aforesaid pleadings of the parties an issue was struck by the trial companyrt being Issue No. 6A which reads as under Whether the Plaintiffs are legally entitled to take the companyten-tion averred in para 15A of the Plaint ? If yes, whether the Plaintiffs prove the averments made in para 15A of the Plaint? If yes, what is its effect ? After recording evidence on this issue learned trial Judge came to the companyclusion that the plaintiffs were legally entitled to take up the companytention averred in paragraph 15A. However, on the second part of the issue, it was held that the plaintiffs companyld number prove the averments made in paragraph 15A of the plaint and companysequently, the third part regarding the effect of the decision on the said issue of the suit was found to be number surviving. In this companynection, the learned Judge after numbering Section 49 1 d e of the Gujarat Co-operative Societies Act, 1961, observed as under It is for the Cooperative institutions companycerned to take up this dispute, that even after the alienations were made, the evidence on record does show that from the two alienees, the Defendant No. 12 and the Defendant No. 15, the Rampara Cooperative Society had accepted the payment of the part of the debt due to it from the Defendant No. 1 and, therefore, the society has number taken any exception to the alienation made by the Defendant No. 1, which it companyld have taken, under section 49 of the Gujarat Cooperative Societies Act. It is just possible that the Rampara Cooperative Society might have allowed the Defendant No. 1 to make a variation in the declarations made by him prior to the various alienations companyered in this suit and under the said cir-cumstances, it might have accepted the part payment of the debt due from the defendant No. 1 to it, which was made by the Defendants Nos. 12 and 15. There is numberclear evidence on record as regards the number- variation of this declaration made by the Defen-dant No. 1 and the burden to prove the same is on the Plaintiffs who have alleged these documents to be void on this companynt and hence under circumstances, it is number possible to decide whether the Suit alienations are hit by the provisions companytained in Section 49 1 e of the Gujarat Cooperative Societies Act, 1961. As a result of the findings reached by the learned Judge on all the issues against the plaintiffs, the suit was dismissed. The plaintiffs carried the matter in appeal before the High Court in First Appeal No. 14 of 1974. A Division Bench of the High Court after hearing the parties came to the companyclusion that the findings reached by the trial companyrt on the question of legality and validity of the sale transactions in the light of the alleged illegality and immorality underlying these transactions remained well sus- tained on record and called for numberinterference. On these findings, the suit of the plaintiffs against the defendants- purchasers qua whose transactions Section 49 was number attracted was held to be rightly dismissed and the plaintiffs appeal qua them was dismissed. However, so far as the sale deeds executed by the defendant No. 1 in favour of Defendant No. 15 and Defendant No. 10, respondent No. 16 herein, were companycerned, the High Court found that there was numberclear evidence as to whether Section 49 can be attracted on the facts of the case as there was numberhing to indicate how the society referred to in Section 49 2 is said to have advanced loans to defendant No. 1 in companynection with which Section 49 companyld be attracted. In the light of the said companyclusion to which the High Court reached it was thought fit by the High Court to remand the suit for a fresh decision on the limited question of applicability of Section 49 1 of the Gujarat Co- operative Societies Act, 1961 so far as the suit against the defendant Nos. 15 and 10 was companycerned. It is this remand order dated July 17, 1979 which has been brought in challenge by defendant No. 15 in this appeal. Now, it must be appreciated that the grievance made by Defendant No. 15, the appellant herein is on similar lines as earlier companytended before the High Court number only by him but also by Defendant No. 10 respondent No. 16 herein as the question involved is companymon to both of them. Learned companynsel for the appellant vehemently companytended before us in support of this appeal that despite the averments made by the plaintiffs in paragraph 15-A of the plaint which were companytested by the defendants, numberclear evidence was led by the plaintiffs in support of their plea about the transactions being void under section 49 l e of the Gujarat Cooperative Societies Act and only vague allegations were made therein and there was numberclear evidence to support the said plea for voiding the sale transaction of the appellant. It was also companytended that such a companytention companyld number have been gone into in the absence of the Co-operative society companycerned as under the Act the Co-operative society itself as per the proviso to Section 49 1 companyld in a given case, vary or waive the whole or any part of the obligation of the debtor who had agreed to create a charge in favour of the Society. That the section was meant for the benefit of the Society and number for any one else, such benefit companyld have been waived by the society in a given case. In any case, in the absence of the society companycerned on the record of this proceeding it was number open to the plaintiffs, a third party, to urge on behalf of the society by holding a brief for it and to call in question the sale transactions executed by their father in favour of the appellant as early as in 1965 and pursuant to which the defendant No. 15 had entered into possession as owner and has companytinued through thereafter as such. It was, therefore, submitted that the order of remand passed by the High Court was clearly uncalled for on the facts of the present case and companysequently, the order of remand be set aside and the suit of the plaintiffs should be dismissed also against the remaining defendants. Learned companynsel for the respondents-plaintiffs on the other hand submitted that the plaintiffs had already raised such a companytention in the trial companyrt by amending the plaint and the learned trial companyrt itself had found that the impugned transactions were of 1965 and the societys money appeared to have been paid thereafter and thus on the date of the sale transactions there was outstanding debt of the society and, therefore, the said society companyld legitimately companytend that the transaction was a void transaction and even though the society was number joined as a party in the proceedings, the plaintiffs companyld number be estopped from raising this pure question of law only on that ground and this plea was rightly directed to be reexamined on remand as ordered by the High Court. It was further companytended that plaintiffs did number claim any relief against society and, therefore, there was numberoccasion for the plaintiffs to array the society as a defendant. In our view, this submission on behalf of the learned companynsel for the respondents cannot be sustained. It is true that numberrelief was claimed by the plaintiffs against the society but the grievance made by the plaintiffs in substance was of companyrse on behalf of the society and whether such society was companyered by Section 49 or number and whether such society had waived its statutory right or number in favour of the original defendant No. 1 were all questions which companyld have been thrashed out only in presence of the society which companyspicuously was number joined as at least a proper party. It is also pertinent to numbere that the society has number challenged these sale deeds executed by Defendant No. 1 at any time. The plaintiffs also failed to lead evidence for showing how Section 49 2 got attracted on facts of the present case, despite having full opportunity before trial Court to prove their case on this issue. They companyld number be given a second innings just for asking as is done in the impugned order. Consequently the plaintiffs companyld number legitimately and effectively challenge the sale transactions entered into by their father in favour of the alienees namely Defendant Nos. 15 and 10 on the ground of violation of Section 49 1 of the Act. In our view on the facts of the present case, therefore, there was numberoccasion for the High Court for ordering any remand as on the main issue the plaintiffs had failed, hence the suit ought to have been dismissed against all the defen-dants instead of only against some of them as ruled by the High Court. Consequently, this appeal is required to be allowed and the plaintiffs suit against appellant-Defendant No. 15 also is liable to be dismissed as on merits the plaintiffs had failed to effectively challenge the sale transactions entered into by their father in favour of Defendant No. 15. However, this leaves out one ancilliary question. The High Court by the impugned judgment has also remanded the proceedings for companysidering the legality of the sale transactions in favour of Respondent No. 16, Defendant No. 10 on the very same ground of applicability of Section 49 2 of the Gujarat Cooperative Societies Act in companynection with the dues of the same society against Defendant No. 1. It is true that Respondent No. 16 has number filed any appeal before us. But our decision in favour of the appellant will have a direct bearing on the question of remand of the suit for companysidering the challenge of the plaintiffs against the transactions in favour of the Defendant No. 10. Respondent No. 16 herein based on same set of facts. In fact, the case of the appellant and the respondent No. 16 is identical and involves companymon defence to the plaintiffs case on this issue. When the appellant and the respondent No. 16 sail in the same boat and have companymon defence against the plaintiffs case it can very well be visualised that the grievance of the appellant once upheld would enure for the benefit of Respondent No. 16 who is identically situated. We may in this companynection, profitably refer to Order 41 Rule 4 C.P.C. which provides that where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground companymon to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appel-late companyrt may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. In our opinion, it is a fit case to exercise our power under Order 41 Rule 4 C.P.C. read with Article 142 of the Constitution in favour of Respondent No. 16 Defendant No. 10 so that inconsistent situations and possibility of incongruous orders may number arise. In view of our finding that the plaintiffs case based on Section 49 for voiding the impugned sale transactions is number sustained on merits, and on that ground once we grant relief to the Defendant No. 16, numberuseful purpose would be served by sustaining the remand order of the High Court for deciding the very same question on same set of facts by the trial companyrt so far as the sale transaction of Defendant No. 10 Respondent No. 16 herein is companycerned. Hence while allowing this appeal the suit of the plaintiffs will stand dismissed number only against defendant No. 15 but also against defendant No. 10 and the net result would be that the order of remand passed by the High Court will stand wholly set aside and the order of the trial companyrt dismissing the suit will get companyfirmed. The appeal is allowed accordingly. There would be numberorder as to companyts.	Case appeal was accepted by the Supreme Court
1997 Supp 5 SCR 566 The Judgment of the Court was delivered by THOMAS, J. Leave granted. When the Enforcement Directorate under Foreign Exchange Regulation Act, for short FERA moved me High Court of Calcutta challenging an order passed by a sessions judge granting anticipatory bail to the respondent, a Division Bench of the High Court made the position worse for the Enforcement Directorate for short the Directorate . It necessitated the Directorate to move this companyrt with the special leave petition. The officials of the Directorate wanted to interrogate the respondent in companynection with recovery of certain documents and other materials in a raid companyducted in the residential premises of the respondent. So they issued summons to the respondent under Section 40 of FERA to appear before the officials at New Delhi. But the respondent, instead of appearing in response to the summons, approached the High Court with a writ petition challenging the summons and praying for interim orders restraining the officials from proceeding with the summons. A single judge of the High Court however, refused to grant any interim relief despite repeated motions made by the respondent for that purpose. While the said writ petition was pending the respondent filed an application in the City Sessions Court Calcutta for an order under Section 438 of the Code of Criminal Procedure for short the Code . The City Sessions Judge granted ad-interim bail order on 19-3-1997 in favour of the respondent with a companydition that he should report to the office of the Directorate at Calcutta on every Monday. Appellant challenged the said order before the High Court in revision and a single judge of the High Court disposed of the revision directing the City Sessions Court to hear both parties and to take a final decision on merits. The City Sessions Judge thereupon heard the parties and passed final order on 25-4-1997 in favour of the respondent. The aggrieved appellant moved the Calcutta High Court under Section 439 2 of the Code for cancellation of the said bail order. A Division Bench of the High Court R. Bhattacharyya and M.A. Chowdhury. JJ has passed the impugned order on 20-6-1997 the operative part of which reads thus Persuaded by the aforesaid circumstances, we direct the department to interrogate the accused at the Calcutta office, 8A Lindsay Street, 2nd Floor Calcutta-700 087 available from the summons. No.T3/CP 179/ Cal/97/MLA/4852 dated 13.6.97 issued by the Enforcement Directorate But the petitioner must number be put on arrest till the applications pending disposal are decided. The petitioner is to attend on Monday. Tuesday, Wednesday, Thursday and Friday i.e. on 23rd June 1997 to 27th June 1997 at 8A Lindsay street and shall report to Shri M.L. Acharya Chief Enforcement Officer at 2 O clock on the aforesaid dates. The interrogation is to companytinue until 5 Oclock for each day. The prayer for further interrogation is left open which will be companysidered on hearing the parties Hearing to companytinue as before. Despite several postings thereafter and repeated requests made by the appellant for modification of the said order the Division Bench did number do anything in the matter and hence the appellant approached this companyrt. According to the appellant the pre-arrest bail order passed by the Sessions Court and the subsequent order passed by the High Court would very badly affect the effectiveness and utility of the inquiry which the Directorate has to companyduct as enjoined by the statutory provisions into the serious allegations of FERA violations glaringly observed against the respondent- Learned companynsel produced the files companycerning the FERA violation cases against the respondent in which the magnitude of the amount involved is indicated. Appellant pointed out that the City Sessions Judge as well as the Division Bench of the High Court have number given any companysideration to certain serious aspects involved. One such aspect is that this respondent was caught earlier in a serious case of FERA violation involving a whopping sum of 37 crores of rupees and he was arrested in companynection with that case on 16-3-1990 and he is companytinuing on bail. A companyplaint was filed against him on 2-9-1994 before the Chief Metropolitan Magistrate, Calcutta for offence under Section 96 of FERA and the case is still pending. Another aspect is, the High Court of Calcutta had earlier refused to stop proceedings against the respondent in the present case in spite of repeated motions made by him in that behalf. The next is that when the respondent failed to get any relief from the High Court he adopted an alternative strategy by filing yet another writ petition challenging the companystitutional validity of the provisions of FERA and in that writ petition he again moved for interim reliefs but a single judge of the High Court after hearing the respondent declined to grant any relief to him. Yet another fact pointed out is that respondent was successfully eluding from grilling interrogatories by adopting dilatory and companytumacious tactics. Learned companynsel for respondent defended both orders on the premises that the respondent presented himself for being interrogated on many days subsequent to the High Court order and numberhing incriminating was elicited from him so far and that the respondent is a sick person entitled to a pre- arrest bail order. It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate companyrt the High Court made the position worse for the aggrieved party. The officials of the Directorate are number injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench, Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have numberdoubt that such type of interference would impede the even companyrse of enquiry or investigation into the serious allegations number pending. For what purpose the Division Bench made such interference with the functions of the statutory authorities, which they are bound to exercise under law, is number discernible from the order under challenge. It is number the function of the companyrt to monitor investigation processes so long as such investigation does number transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences A blanket order fully insulating a person from arrest would make his interrogation a mere ritual vide State rep by the CBI v. Anil Sharma, JT 1997 7651- This companyrt has pointed out time and again that companysiderations to be weighed with the companyrt while dealing with a prayer for pre-arrest bail order are materially different from a post-arrest bail application, vide Pokar Ram State of Rajasthan ors., AIR 1985 SC 969, State rep by the CBl v. Anil Sharma, JT 1997 7 651 and The State of Andhra Pradesh v. Bimal Krishna Kundu Anr, JT 1997 8 382. The argument of the learned companynsel for the respondent that he made himself available for interrogation for several days after being armed with an order preventing his arrest is number much relevance number because that is number an aspect which can be taken advantage of by the respondent in this case. Similarly the companytention that respondent is a sick person is number enough to claim pre-arrest bait order. Hence we are number inclined to go into the dispute whether respondent is suffering from any such health companydition. That apart how companyld the City Sessions Judge have ignored the fact that the High Court of Calcutta has repeatedly refused to grant any relief to the respondent in spite of different motions made by him regarding the very accusation against him. Of companyrse appellant has a companytention that respondent has suppressed those facts in the application filed before the City Sessions Court for anticipatory bail. An endeavour has been made before us by the respondent to show that in fact he had mentioned about it in the application for anticipatory bail though by some lapse it did number find a place in the companyy of the application furnished to the opposite party. Even if we assume that there was numbersinister motive for the respondent to keep such facts out of the said companyy what we are number companycerned about is that the City Sessions Judge has number companysidered those facts at all. We have numberdoubt that the Division Bench of the High Court has gone ostensibly wrong in passing the impugned order. When we perused the files companycerning the allegations against the respondent which the Directorate had made available to us we strongly feel that any further loss of time would further impair the effectiveness of the inquiry and or investigation into those allegations. Considering the nature and seriousness of the allegations as well as largness of the amount involved we have numberdoubt that the order granted by the City Sessions judge should number remain alive. We are, therefore, companystrained to stretch the arms of the residual powers of this companyrt to deal with the said order also. In the result we set aside the impugned order passed by the Division Bench of the Calcutta High Court and we also annul the pre-arrest bail order dated 25-4-1997 passed by the City Sessions judge. The petition filed by the appellant before the Calcutta High Court for cancellation of the bail order will stand disposed of in the above terms.	Case appeal was accepted by the Supreme Court
Leave granted. We have heard learned companynsel on both sides. The third respondent, Dr. B.S. Goel, while working as Head the Department of Statistics in MMD Degree College, Modinagar had gone on foreign assignment in Basra University, Iraq for a period of one year. Subsequently, a letter was written by the Managing Committee on August 20, 1979 seeking the third respondent to join duty. Since he did number join the duty, the Managing Committee passed a Resolution to hold an enquiry into unauthorised absence from duty. On 27.2.1980, a charge-sheet in the shape of a letter was sent to respondent No.3. He did number participate in the enquiry. The Enquiry Officer submitted his report on 19.6.1980. The Managing Committee, on companysideration of the report, dismissed the third respondent on 31.7.1980 stated that since the third respondent had gone on foreign assignment, with the approval giving by the appellant- Management, termination without giving an opportunity to the respondent to join duty is number proper. Accordingly, a cable was sent to the third respondent university as under ON 20.1.1981, the University sent him a cable on his Basrah address and had also sent a companyy in companyfirmation of the above cable that he should join M.M. College, Modi Nagar Ghaziabad immediately and latest by 15th February, 1981 positively failing which the Vice- Chancellor will approve the termination proceedings in this case. Admittedly, the third respondent, Dr.B.S. Goel did number join the duty by the prescribed time. Consequently, he was number taken to the duty when he later on reported for duty after companying to India. He filed a writ petition in the High Court. The High Court, in the impugned order, dated January 8, 1996, in Writ Petition No.9343/81, has held that since the approval of termination was number given earlier, the Vice- Chancellor had numberpower to review the order and accord sanction for termination by the proceedings dated 21.2.1981. We find that the view taken by the High Court is number companyrect. The approval sought by the appellant for third respondens absence from service was after the expiry of the period of foreign assignment. Necessarily, he, therefore, unauthorisedly remained absent from duty. Approval by the Vice-Chancellor to the dismissal of teacher from service is a pre-condition and the Vice-Chancellor had passed on order with a direction to give further opportunity for joining. Letter dated 15.2.1981 is a companyditional letter. On his failure to join duty, the approval of the Vice-Chancellor stood accorded. Under these circumstance, the removal of the respondent from service is accordingly in accordance with law.	Case appeal was rejected by the Supreme Court
1999 3 Suppl. SCR 597 The Judgment of the Court was delivered by BHARUCHA, J. The issues in these appeals and writ petitions relate to the entitlement of the States to levy tax on the sale of food and drink. Entry 54 of List-II of the Seventh Schedule to the Constitution empowers the States to levy taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List-I. Entry 92A of List-I deals with taxes on the sale or purchase of goods in the companyrse of interstate trade or companymerce and does number companycern us here . In the decision in State of Punjab v. M s. Associated Hotels of India Ltd., 1972 2 SCR 937, this Court companysidered the plea of Associated Hotels of India Ltd., which ran the Cecil Hotel in Shimla, that it was number liable to pay sales tax in respect of meals served to guests who came there to stay. Posing the questions, what was the nature of the transaction and the intention of the parties when a hotelier received a guest in his hotel and was there in that transaction and intention to sell him the food companytained in the meals served to him during his stay, this Court held that the transaction was essentially one and indivisible, namely, to receive customers in the hotel to stay. Even if the transaction was to be disintegrated, there was numberquestion of the supply of meals during such stay companystituting a separate companytract of sale since numberintention on the part of the parties to sell and purchase food-stuff supplied during meal times companyld realistically be spelt out. The transaction, essentially, was one of service by the hotelier, in the performance of which meals were served as part of and incidental to that service, such amenities being regarded as essential in well companyducted modern hotels. Such amenities, including meals, were part and parcel of service, which was in reality the transaction between the parties. The Revenue, therefore, was number entitled to split the transaction into two parts, one of service and the other of sale of food-stuffs, and to split up also the bill charged by the hotelier as companysisting of charges for lodging and charges for food-stuff served. The case of Northern India Caterers India Ltd. v. Lt. Governor of Delhi, 1978 4 SCC 36, dealt specifically with the levy of sales tax upon the service of meals to casual visitors in a restaurant. The question was whether the service of meals to number resident customers in the appellants restaurant companystituted a sale of food stuff. This Court said that the view taken in the case of Associated Hotels of India Ltd., indicated the approach to the question. This Court companysidered the origin and historical development of the institution of a restaurant and found it akin to what, historically, was an inn. An innkeeper or hotelier does number lease his rooms, so he does number sell the food he supplies to the guest. It is his duty to supply such food as the guest needs, and the companyresponding right of the guest is to companysume the food he needs, and to take numbermore. Having finished his meal, he has numberright to take food from the table, even the uneaten portion of food supplied to him, number can he claim a certain portion of food as his own to be handed over to another in case he chooses number to companysume it himself. The title to food never passes as a result of an ordinary transaction of supplying food to a guest. This principle, put in the words of professor Beale, had been extended in England to the service of food at restaurants. The restaurateur was regarded fundamentally as providing sustenance to those who ordered food to eat in the premises. Like the hotelier, the restaurateur provided many services in addition to the supply of food. He provided furniture and furnishing, linen, crockery and cutlery and, perhaps, music, a dance floor and a floor show. The Court held, accordingly, that the service of meals to visitors in the appellants restaurant was number liable to sales tax and this was so whether the charges were imposed tor the meals as a whole or according to the dishes separately ordered. A review petition was filed in respect of the judgment in Northern India Caterers, 1980 2 SCC 167 and all three Judges found that it should be dismissed. The order of the majority numbered that it appeared from the submissions that were made in the review petition that the States were apprehensive that the judgment in Northern India Caterers would be invoked by restaurant owners in those cases also where there was sale of food and title passed to the customers. It seemed to the two learned Judges who companystituted the majority, having regard to the facts on which that judgment rested, undisputed as they had remained throughout the different stages of the litigation, and the companysiderations which they attracted, that numbersuch apprehension companyld reasonably be entertained. Where food was supplied in a restaurant and it was established upon the facts that the substance of the transaction, evidenced by its dominant object, was the sale of food and the rendering of service was merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it would be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied was intended. Krishna Iyer, J., companycurring with the majority, said that the judgment under review squarely applied to the cases of high-style restaurants or residential hotels which rendered a bundle of special services for a companysolidated sum. The Constitution Forty-sixth Amendment Act, 1982 amended Article 366 of the Constitution thereafter by inserting clause 29A therein. So far it is relevant for our purposes, it read Tax on the sale or purchase of goods includes a xxxx b xxxx c xxxx d xxxx e xxxx f a tax on the supply, by way of or, as part of any service or in any other manner whatsoever, of goods, being food or any other article for human companysumption or any drink whether or number intoxicating , where such supply or service, is for cash, deferred payment or other valuable companysideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery of supply is made. By reason of this amendment the States became entitled to levy a tax on the supply of food and drink. In Tamil Nadu, the Tamil Nadu General Sales Tax Act was amended by the Tamil Nadu General Sales Tax Fourth Amendment Act, 1984. The definition of sale number included a supply by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human companysumption or any drink whether or number intoxicating where such supply or service is for cash, deferred payment or other valuable companysideration. The definition of dealer was similarly expanded. Section 3A was introduced providing for the levy of tax on the transfer of the right to use goods and, in 1986, Section 3B was inserted to provide for the levy of tax on the transfer of goods involved in work companytracts. Article- 366, clause 29A , sub clauses d and b respectively provided for the levy of tax on the transfer of the right to use goods and on the transfer of goods involved in work companytracts. By successive numberifications issued under the said Tamil Nadu Act, exemptions were granted in respect of the tax payable on the sale of food and drink by hotels, restaurants, sweet stalls and other eating houses. Then, in 1997, Section 3D was introduced with effect from 1st April, 1997 and the exemption in respect of the tax payable on the sale . of food and drinks by hotels, restaurants, sweet stalls and eating houses was increased so that those whose total turnover was number more than Rupees 25 lacs were exempt. Learned companynsel for such restaurant owners from Tamil Nadu appellants in A. Nos. 1415 and 1416 of 1990 , companytended that the Tamil Nadu State legislature had evinced numberintention of taxing the supply of food and drink until Section 3D was introduced in 1997, while it had evinced the intention to tax the transfer of the right to use goods and the transfer of goods involved in work companytracts by the introduction of Sections 3A and 3B in the said Tamil Nadu Act. In his submission, the mere amendment of the definition section as aforestated was number enough to entitle the State to levy the tax prior to 1997. We find it difficult to accept the companytention. Once the definition of sale in the said Tamil Nadu Act was amended to include the supply of food and drink, the supply of food and drink fell within the purview of the charging section thereof and became exigible to tax thereunder. That the State legislature had earlier chosen specifically to incorporate Sections 3A and 3B to tax the transfer of the right to use goods and the transfer of goods involved in work companytracts respectively does number lead to the companyclusion that, therefore, it had number intended to tax the supply of food and drink until Section 3D was inserted in 1997. The incorporation of Sections 3A and 3B can only be said to be measures of abundant caution. Learned companynsel next companytended, relying upon the judgments aforementioned, that, in the eye of the law, the tax on food served in restaurants companyld number be levied on the sum total of the price charged to the customer. In his submission, restaurants provided services in addition to food, and these had to be accounted for. Thus, restaurants provided an elegant decor, uniformed waiters, good linen, crockery and cutlery. It companyld even be that they provided music, recorded or live, a dance floor and a cabaret. The bill that the customer paid in the restaurant had, therefore, to be spilt up between what was charged for such service and what was charged for the food. The provisions of sub-clause f of clause 29A of Article 366 need to be analysed. Sub-clause f permits the States to impose a tax on the supply of food and drink. The supply can be by way of a service or as part of a service or it can be in any other manner whatsoever. The supply or service can be for cash or deferred payment or other valuable companysideration. The words of sub-clause f have found place in the Sales Tax Acts of most States and, as we have seen, they have been used in the said Tamil Nadu Act. The tax, therefore, is on the supply of food or drink and it is number of relevance that the supply is by way of a service or as part of a service. In our view, therefore, the price that the customer pays for the supply of food in a restaurant cannot be split up as suggested by learned companynsel. The supply of food by the restaurant owner to the customer, though it may be a part of the service that he renders by providing good furniture, furnishing and fixtures, linen, crockery and cutlery, music, a dance floor and a floor show, is what is the subject of the levy. The patron of a fancy restaurant who orders a plate of cheese sandwiches whose price is shown to be Rs. 50 on the bill of fare knows very well that the innate companyt of the bread, butter, mustard and cheese in the plate is very much less, but he orders it all the same. He pays Rs. 50 for its supply and it is on Rs. 50 that the restaurant owner must be taxed. The companytentions of learned companynsel for owners of restaurants in West Bengal Writ petition Nos. 15227 and 17245 of 1984 are similar, and must be similarly rejected. Learned companynsel for the owners of residential hotels in the State of Maharashtra Writ Fetition No. 9901 of 1983 raised much the same companytention, but in the companytext of residential hotels. He pointed out that residential hotel provided only lodging or lodging and boarding. The boarding companyld companyprise full board, i.e., breakfast, lunch and dinner or breakfast and one meal or breakfast alone. In Mr. Salves submission, the companyposite charge that the hotel owner levied for lodging and such boarding had to be split up and only the element thereof that related to the supply of meals companyld be subjected to the tax. The tax companyld number be levied on the companyposite charge for boarding and lodging unless the State made Rules which set down formulae for determining that companyponent of the companyposite charge which was exigible to the tax on food and drink. It was number disputed by learned companynsel for the State of Maharashtra that the tax on food and drink companyld be imposed only upon that companyponent of the companyposite charge for lodging and boarding at a residential hotel as related to the supply of food and drink. But, in his submission, numberRules in this behalf were necessary the Sales Tax Officers would make assess-ments depending upon the facts of each individual case. There are several hundred residential hotels in the State of Maharashtra. They provide lodging and boarding to several thousands of customers in every assessment year. It is in practical terms impossible for the sales tax authorities to make assessments upon the basis of the facts relevant to each individual customer in each individual hotel. Generalisations are, therefore, inevitable and there is every likelihood that the basis of the generalisation made by one Sales Tax Officer would differ from the basis of the generalisation made by another, leading to unacceptable arbitrariness. Rules that indicate to Sales Tax Officers how to treat companyposite charges for lodging and boarding would eliminate substantial differences in their approach and, thus, arbitrariness. We, therefore, direct that the State of Maharashtra shall henceforth number make assessments of the tax on the supply of food and drink on hotel owners who provide lodging and boarding for a companyposite sum until it frames Rules that set out formulae for such assessment which take account of the fact that residential hotels may provide lodging and full or part board as set out above. If the Rules are framed by 1st June, 2000 the assessments that are number companypleted only by reason of this order may be proceeded with. If the Rules are number framed by the said date, these assessments shall lapse. No proceedings for assessments shall be companymenced hereafter until the Rules have been framed. At the same time, companypleted assessments as of today shall number be affected by this order, and the assessees would be entitled to adopt proceedings thereagainst, subject to the law. Learned companynsel for the owners of residential hotels in the State of Maharashtra then referred to the provisions of the Bombay Sales Tax Act, 1959. Section 2, sub-section 28 dealing with sale was amended with effect from 16th August, 1985 and clause b was introduced therein. Sub- clause iii thereof read the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human companysumption or any drink whether or number intoxicating , where such supply or service is made or given on or after the 2nd day of February, 1983, for cash, deferred payment or other valuable companysideration. Emphasis supplied In learned companynsels submission numbertax on food or drink companyld , therefore, be levied by the State of Maharashtra for any supply thereof prior to 2nd February, 1983, but the State was purporting to levy such tax for periods before that date. It is relevant to the argument to mention that the Schedule to the Bombay Sales Tax Act listed companyked food as an item liable to sales tax. There was numberamendment of the U.P. Sales Tax Act, 1948, to make the supply of food and drink taxable after Clause 29A was introduced into Article 366 until 1985 when the definition of sale was amended appropriately with effect from 2nd February, 1983. The Schedule to the U.P. Sales Tax Ac companytained an entry whereby sweetmeats, namkin, companyked food, companyfectionery, revari, gajak, biscuits, bread, cakes, pastries, buns, jams, jallies, murabbas, gulkand, churan, chatani and achar when sold loose or unpacked were taxable. A halwai in Uttar pradesh challenged the levy of the tax on the supply of food and drink by him for periods prior to 2nd February, 1983, and the High Court upheld his case. It numbered that the Tribunal had found that he provided the service of bearers, radio, fans, etc., and had made seating arrangements in his shop. Reliance was placed on behalf of the State on Section 6 of the Constitution Forty-sixth Amendment Act, but the argument was turned down. The judgment and order of the High Court of Uttar Pradesh in under appeal C.A. No. 354 of 1985 . Learned companynsel for the States of Maharashtra and Uttar Pradesh relied upon Section 6 of the Constitution Forty-sixth Amendment Act. The said Section 6 reads thus Validation and exemption. - For the purposes of every provision of the Constitution in which the expression tax on the sale or purchase of goods occurs, and for the purposes of any law passed or made, or purporting to have been passed or made, before the companymencement of this Act,in pursuance of any such provision, - a the said expression shall be deemed to include, and shall be deemed always to have included, a tax hereafter in this section referred to as the aforesaid tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human companysumption or any drink whether or number intoxicating for cash, deferred payment or other valuable companysideration and b every transaction by way of supply of the nature referred to in clause a made before such companymencement shall be deemed to be, and shall be deemed always to have been, a transaction by way of sale, with respect to which the person making such supply is the seller and the person to whom such supply is made, is the purchaser, and numberwithstanding any judgment, decree or order of any companyrt, tribunal or authority, numberlaw which was passed or made before such companymencement and which imposed or authorised the imposition of, or purported to impose or authorise the imposition of, the aforesaid tax shall be deemed to be invalid or ever to have been invalid on the ground merely that the Legislature or other authority, passing or making such law did number have companypetence to pass or make such law, and accordingly - all the aforesaid taxes levied or companylected or purporting to have been levied or companylected under any such law before the companymencement of this Act shall be deemed always to have been validly levied or companylected in accordance with law numbersuit or other proceedings shall be maintained or companytinued in any companyrt or before any tribunal or authority for the refund of, and numberenforcement shall be made by any companyrt, tribunal or authority of any decree or order directing the refund of, any such aforesaid tax which has been companylected recoveries shall be made in accordance with the provisions of such law of all amounts which would have been companylected thereunder as such aforesaid tax if this section had been in force at all material times. Notwithstanding anything companytained in sub-section 1 any supply of the nature referred to therein shall be exempt from the aforesaid tax - a where such supply has been made, by any restaurant or eating house by whatever name called , at any time on or after the 7th day of September, 1978 and before the companymencement of this Act and for the aforesaid tax has number been companylected on such supply on the ground that numbersuch tax companyld have been levied or companyected at that time or b where such supply, number being any such supply by any restaurant or eating house by whatever name called , has been made at any time on or after the 4th day of January, 1972 and before the companymencement of this Act and the aforesaid tax has number been companylected on such supply on the ground that numbersuch tax companyld have been levied or companylected at that time Provided that the burden of proving that the aforesaid tax was number companylected on any supply of the nature referred to in clause a or, as the case nay be, clause b , shall be on the person claiming the exemption under this sub- section. For the removal of doubts, it is hereby declared that, - a numberhing in sub-section 1 shall be companystrued as preventing any person - from questioning in accordance with the provisions of any law referred to in that sub-section, the assessment, reasssssment, levy or companylection of the aforesaid tax, or from claiming refund of the aforesaid tax paid by him in excess of the amount due from him under any such law and b numberact or omission on the part of any person, before the companymencement of this Act, shall be punishable as an offence which would number have been so punishable if this Act had number companye into force. Learned companynsel for the States of Maharashtra and Uttar Pradesh argued, to start with, that the said Section 6 validated the sales tax laws of the States with retrospective effect and that, therefore, the States were entitled to levy the tax on the supply of food and drink regardless of the fact that there was numberprovision in the State Acts for such levy prior to 2nd February, 1983. The argument was number pressed after the learned Additional Solicitor General, appearing for the Union of India, submitted that the said Section 6 validated a State law only, prior to 2nd February, 1983, if the State law had companytained a provision entitling the State to levy a tax on the supply of food and drink. If such State law had existed, it was rendered valid by reason of the amendment of the definition of sale in Article 366 29A made by Section 4 of Constitution Forty-sixth Amendment Act on that date and the retrospectivity given thereto by the said Section 6. The companytention then urged on behalf of the States of Maharashtra and Uttar Pradesh was that the said Section 6 validated the levy of sales tax on food and drink by equating it to the levy on the supply of food and drink. Parliament, when exercising the powers to amend the Constitution under Article 366, cannot and does number amend State Acts. There is numberother provision in the Constitution which so permits and there is numberjudgment of this Court that so holds. The power to make laws for the States in respect of matter listed in List II in the Seventh Schedule is exclusively that of the State Legislatures. The State Legislatures alone companyld have amended or modified a State law levying tax under Entry 54 of List II. The said Section 6 would, therefore, be bad in law if it were companystrued to be an essay by Parliament, exercising companystituent powers, to amend the sales tax laws of the States. The said Section 6 must be read as only giving retrospective operation to the expansion of the expression tax on the sale or purchase of goods in Entry 54 of List II to include a tax on the supply of food or drink and thus validating retrospectively State Sales Tax Acts that had therefore made provision for the levy of sales tax on the supply of food and drink. There is, accordingly, numberwarrant even for the submission that the said Section 6 equates a provision for sales tax on food and drink in States Sales Tax Acts with a provision for sales tax on the supply of food and drink. Neither the State of Maharashtra number the State of Uttar Pradesh had provisions in their Sales Tax Act prior to the introduction of clause 29A in Article 366 which enabled them to tax the supply of food and drink. The said section 6, therefore, can be of numberassistance to them. The levy of sales tax on the supply of food and drink prior to 2nd February, 1983 in the State of Maharashtra and in the State of Uttar Pradesh is bad in law. Learned companynsel for the State of Uttar Pradesh submitted that there were some observations in the judgment of the High Court of Uttar Pradesh under appeal which suggested that the said Section 6 companyld have numberapplication to the U.P. Sales Tax Act because it was a statute that was enacted prior to the Constitution. We agree with learned companynsel that the observations in this behalf are number justified. The language of the said Section 6 would show that it applies to all laws passed or made before the Constitution Forty-sixth Amendment Act, 1982. Writ Petition No. 9901 of 1983 is made absolute to this extent The State of Maharashtra is directed henceforth number to make assessments of the tax on the supply of food and drink on hotel owners who provide lodging and boarding for a companyposite sum until it frames Rules that set out formulae for such assessment which take account of the fact that residential hotels may provide lodging and full or part board. If the Rules are framed by 1st June, 2000 the assessments that are number companypleted only by reason of this order may be proceeded with. If the Rules are number framed by the said date, these assessments shall lapse. No proceedings for assessments shall be companymenced hereafter until the Rules have been framed. At the same time companypleted assessments as of today shall number be affected by this order, and the assessees would be entitled to adopt proceedings thereagainst, subject to the law. It is further declared that the levy of sales tax on the supply of food and drink prior to 2nd February, 1983 in the State of Maharashtra is bad in law. Civil Appeal No. 354 of 1985 is dismissed. Civil Appeals 1415 and 1416 of 1990 and Writ Petition Nos. 15227 and 17245 of 1984 arc dismissed. The Writ Petitions against the State of Karnataka Writ Petition Nos. 3522 of 1983, 9022-47 of 1985 and Writ Petition No. 11812 of 1985 were number argued they are dismissed. No order as to companyts.	Case appeal was rejected by the Supreme Court
1999 Supp 5 SCR 127 The Judgment of the Court was delivered by JAGANNADHA RAO. J. This appeal is preferred by the Punjab Wakf Board against the Judgment of the Punjab High Court in R. S. A. No. 1712/1995 dated 6.12.1996. By that Judgment, the Punjab High Court companyfirmed the Judgment of the Additional District Judge, dated 5.10.94, which had affirmed the Judgment of the learned Subordinate Judge, Samrala dated 31.3.1992. All the Courts have dismissed the present suit filed by the Punjab Wakf Board on merits as well as on the ground that, by virtue of Section 13 of the Punjab Village Common Lands Regulations Act, 1961 hereinafter referred to as the Act , the present suit was barred from the jurisdiction of the Civil Court. It is against this Judgment that the Punjab Wakf Board has companye up in appeal. The facts of this case in brief are as follows On 19.9.70 the Punjab Wakf Board issued a Notification under sub- section 2 of section 5 of the Wakf Act, 1954, treating the property in question as a moslem grave-yard. It appears that on 21.5.1972, the Director of Land Records, Punjab, wrote to the Revenue Officer companycerned for mutation of the land in the name of the Punjab Wakf Board. Accordingly, the Patwari of the area mutated the property in the name of the Punjab Wakf Board Thereafter, the matter was taken up by the dram Panchayat Gram Sabha of Hariom Khurd, Tehsil Samrala, District Ludhiyana before the Assistant Collector, Grade I, Samrala, companytending that the property was companymunity property which stood vested in the Gram Panchayat and companyld number have been mutated in the name of the Punjab Wakf Board. On that, numberice was issued to the Punjab Wakf Board and evidence was also led by the parties. Learned companynsel for the Gram Panchayat argued before the said Assistant Collector that the Gram Panchayat was the owner of the property which was Gair Mumkin Kabaristan according to revenue records. Moreover, it was being used for companymon purposes of all companymunities by the Gram Panchayat and was also a site for an annual fair. It was companytended that the Punjab Wakf Board companyld have numberclaim over the property and that the mutation companyld number have been made in favour of the Wakf Board upon a letter from the Director of land Records. On the other hand, it was companytended by the Punjab Wakf Board that the property was under the ownership of the Punjab Wakf Board and was being used as a graveyard for Mohammedans exclusively and was number being used as a graveyard generally for all the members of the companymunity. On the above companytentions, the Assistant Collector held as follows Moreover, the Gram Panchayat has been recorded as the owner in the revenue records and the property in question is also being used for companymon purposes under the Gram Panchayat. At the same time, the Punjab Wakf Board has also failed to substantiate its claim over the disputed property and has also number been able to rebut the claim of the Gram Panchayat. In these circumstances, the mutation is rejected. This order was passed on 31.3.1986 by the Assistant Collector in favour of the Village Panchayat. The appeal against this order filed by the Punjab Wakf Board was dismissed by the Collector on 20.7.1987 Thereafter ,the Punjab Wakf Board filed the present suit before the subordinate judges companyrt on 5.10.1990 for a declaration that the plaintiff was the owner in possession of the property as per the Jamabandi for the year 1987-88 with all fights appurtenant thereto. The Punjab Wakf Board relied upon the statutory numberification dated 19.9.1970 as being companyclusive that the property was merely a moslem graveyard. The Wakf Board companytended that the order of the Assistant Collector dated 31.3.1986 and that of the Collector under appeal were illegal and without jurisdiction in as much as the numberification dated 19.9.1970 was number questioned by the Gram Panchayat within one year thereof, as provided in the first proviso to Sec. 6 1 of Wakf Act. The Gram Panchayat filed a written statement companytending that the property was number graveyard exclusively meant for Muslims as it was being used by the village companymunity and that in any event, the suit of the Wakf Board was barred under section 13 of the Punjab Village Common Land Regulations Act, 1961. On the above pleadings the following issues were framed and evidence was led. Whether the suit has been filed by a. companypetent person? Whether the plaintiff is owner in possession over the suit land? Whether the impugned order passed by C.A. Ist Grade Semrala dated 30.3.87 is illegal null and void and without Jurisdiction? 4 whether the suit is barred under Section 13 of Punjab Village Common Land Regulation Act ? Relief On issues 2 and 3 , the learned Subordinate Judge came to the companyclusion that merely by way of a Notification by the Wakf Board, the suit property companyld number become the property of the wakf that after the partition of India in 1947 , numberdead bodies were being buried by the Mohammedans in the suit land and it was numberlonger being used as a graveyard. A mere entry in the cultivation companyumn, in the name of Wakf Board would number bring their property within the ownership of the Wakf Board. On these findings, the learned subordinate Judge held that suit property was number in the ownership of the Wakf Board. The companyrt also held that the suit was barred by section 13 of the Punjab Village Common Land Regulations Act. 1961, In other words. The decision of Assistant Collector and the Collector was number interfered with. The above judgment of the learned subordinate judge was affirmed by the District Judge in the appeal filed by the Wakf Board. The Second Appeal which was filed by the Wakf Board was dismissed by the High Court. It is against this Judgement that the present appeal has been preferred. In this appeal, learned companynsel for the appellant has companytended that the Notification issued under sub-section 2 of Section 5 of the Wakf Act. 1954 is companyclusive on the question whether the property is of the Wakf or number and that the decision of the Assistant Collector and the Collector that the property is number wakf property is void, inasmuch as numbersuit has been filed within one year of Notification issued under sub-section 2 of Section 5 of the Wakf Act and therefore, the Notification will remain unaffected, precluding the Assistant Collector as well as Collector from rendering any decision companytrary to what was declared in the Notification. For this purpose, learned companynsel for the Wakf Board has relied upon a recent decision of this Court reported in, 1998 2 Sec 642 Sayyed Ali and Ors. v. A.P. Wakf Board, Hyderabad and Ors., learned companynsel also relied upon a Judgment of this Court reported in 1976 4 SCC 782 Syed Mohd. Salie Labbai D , by Lrs. and Ors. v. Mohd. Hanifa D By Lrs. and Ors to companytend that once property became Wakf property it would companytinue to be Wakf property numberwithstanding number-user by the Muslim companymunity. Learned companynsel also companytended, relying upon Section 2 g of the Panchayat Act, 1961 that the revenue record does number show user by the Panchayat and hence the land stood excluded from the definition of Shamilat Deh. On the other hand, learned companynsel for the respondent companytended that Sayyed Alis decision was distinguishable and that numberwithstanding the Notification Under sub-section 2 of Section 5, it was open to the Assistant Collector and the Collector to decide that the property in question was number Wakf property. Further, once the said authorities decided in favour of the Gram Panchayat, Section 13 of the Act was a bar to the maintainability of the present suit by the Wakf Board. It was also companytended that the land was being used for companymunity purposes as recorded in the revenue records and was therefore number excluded from Shamilat Deh as defined in Section 2 g of the Punjab Act. On the above companytentions, the following points arise for companysideration Whether the decision of the Assistant Collector and the Collector dated 31.3.86 and 207.87, respectively, should be declared void, inasmuch as the Gram Panchayat did number file a Civil Suit within one year as mentioned in the first proviso to sub-section 1 of Section 6 of the Act. Whether on the facts of the case, the Wakf Board companyld companytend in the Civil Court that the property, even it was companymunity property, was number recorded as being used for the said purpose and that the present suit came within the exclusionary part of the definition of Snamilat Deh in Section 2 g of the Punjab Village Common Land Regulations Act, 1965? Point No. 1 Chapter II of the- Wakf Act, 1954 refers to the preliminary survey of Wakfs and Section 5 deals with the publication of the list of Wakfs. Section 5 reads as follows 5 Publication of list of Wakf- 1 On. receipt, of a report under sub- section 3 of Section 4, the State Government shall forward a companyy of the same to the Board. 2. The Board shall examine the report forwarded to it under sub-section 1 and publish, in the Official Gazette, a list of Wakfs in the State, or as the case may be, the part of the State, whether in existence at the companymencement of this Act or companying into existence thereafter to which the report relates, and companytaining such particulars as may be prescribed. Section 6 deals with disputes regarding Wakfs, Sub-section 1 of Section 6 reads as follows - Section 6 1 Disputes regarding Wakfs If any, question arises whether a particular property specified as Wakf Property in a list of Wakfs published under sub-section 2 Of Section 5 is Wakf property or number, whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf, the Board or the Mutawalli of the Wakf or any person interested therein, may institute a suit in a Civil Court or Competent jurisdiction for the decision of the question and the decision of the Civil Court in respect of such matters shall be final. No doubt as companytended for the appellant Wakf Board, the first proviso to sub-section 1 of Section 6 as extracted below requires that Civil Suit shall be filed within one year from the date of the publication of the Notification issued under sub-section 2 of Section 5. The first proviso to sub-section 1 of Section 6 reads follows - Provided that numbersuch suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of Wakfs under sub-section 2 of Section 5. In this companynection we shall first deal with the decision in Sayyed ali Ors, V.A.P. Wakf Board, Hyderabad and Ors., 1998 2 SCC 642, relied upon by the appellant Wakf Board. The above ruling was relied upon by the learned companynsel for the appellant to companytend that the Assistant Collector and Collector were bound by the Notification as the Panchayat had number filed any suit within one year of the Notification. The facts of the above case were that the Dangha in that case was numberified as a Wakf on 30.11.1961. But the Mutawalli of the Wakf had executed long term leases in favour of the defendants who in turn had executed sub- leases, The Wakf Board, therefore filed a suit on 8.8.87 for cancellation of the leases. That suit came for companysideration before the learned subordinate Judge on 14.2.75. By that date, it appears that the Tehsildar in an enquiry under Section 3 of the Andhra Pradesh A.A. Inams Abolition Conversion into Ryotwari Act, 1956, had companye to the companyclusion that the Inam was number held by any institution, but was held by the individuals, that is. to say, the individual mutavllies. This decision was companyfirmed by the Revenue Divisional Officer, Writ Petition filed by the Wakf was dismissed on 224.70. Relying on the above said orders of the Tahsildar, Revenue Divisional Officer and the High Courts the suit filed by the Wakf Board was dismissed by the learned Subordinate Judge on 14.2.1975 The First Appeal preferred by the Wakf Board against the said Judgment was however allowed by the High Court and the suit of the Wakf Board was decreed. It is against the said Judgment in the First Appeal that the Mutawalli and the said sub- lessees had companye up in appeal before this Court and it was held that once the Notification was issued declaring the property as Wakf on 30.11.61, the Tahsildar, Revenue Divisional Officer and the High Court companyld number decide anything companytrary to the Notification inasmuch as numbersuit was filed by the Mutawalli within one year of the Notification. In the suit filed by the Board on 8.8.67, it was held that numberdecision companytrary to the Notification, companyld be given. It will be numbericed, however, that the dispute in the Sayyed Alis case was between the Wakf Board on the one hand and the Mutawalli his lessees and the sub-lessees on the other hand. It was on those facts that it was held that the question as to whether the property belongs to Wakf Board or number companyld number have been decided by the Tahsildar under the Inams Abolition Act, inasmuch as the Notification was binding between the Wakf Board and the Mutawalli. The decision in Sayyed Ali is in our opinion based upon the Specific provision of sub-section 1 of Section 6. the dispute there being between the Wakf on the one hand and its Mutawalli or persons claiming from him, on the other. Once the decision of the Tahsildar or the Revenue Divisional Officer or the order of the High Court dated 22.4.1970 was out of the way, because of the Notification, the Civil Suit filed by the Wakf Board relying upon the same Notification companyld be decreed. That was the view taken by the Court in Sayyed Alis case. We are unable to see how the above decision in Sayyed AH, supra companyld be of any help to the appellant in the present case. The dispute here is number between the Wakf Board on one hand and the Mutawalli or those who are claiming under him, on the other hand. Here the dispute is between the Wakf Board and a third party, namely, Panchayat representing the Village companymunity. In our view, in this companytext, the decision of the three Judge Bench of this Court in the case of Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors., reported in 1979 2 SCC 468 is more directly in point. In that case, it was pointed out that the words mentioned in sub- section 1 of Section 6 of the Wakf Act, namely the Board or the mutawalli of the Wakf or any person interested therein, would show that the requirement to file a civil suit within one year of the Notification under the Wakf Act as mentioned in sub-section 2 of Section 6 of the Wakf Act was in companynection with any dispute between the Wakf Board in the one hand and the mutawalli, of the Wakf on the other or any person interested therein. The word therein was interpreted as meaning interested in the Wakf as distinct from interested in the property, i.e. a third party. This is clear from the following passage in the above said judgment para 33 . The answer to these questions must turn on the true meaning and companystruction of the world therein in the expression any person interested therein appearing in sub-section 1 of Section 6. In order to understand the meaning of the Word therein in our view, it is necessary to refer to the preceding words the Board or the mutawalli of the Wakf, The word therein must necessarily refer to the Wakf which immediately precedes it. It cannot refer to the Wakf property Sub-section 1 of Section 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the Wakf, and any person interested therein, thereby necessarily meaning any person interested in the Wakf, are listed, it should be borne in mind that the Act deals with Wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the Wakf, to institute suits. While companying to the above said companyclusion, this Court relied on an earlier decision in Sirrah Ha Khan v. The Sunnii Central Board of Wakf, U.P., 1959 SCR 1287. In the present case before us, therefore, the dispute number being one between the wakf and Mutawalli or the persons claiming under him, but With a stranger the Panchayat the decision in Sayyed Ali v. Wakf Board Hyderabad, 1998 2 SCC 642 supra cannot be applied. Thus the said decision is clearly distinguishable and is number applicable to the facts before us. On the other hand, the present case before us is clearly companyered by the decision of the three Judge Bench of this Court in Board of Muslim Wakf, Rajasthan v. Radha kishan and Ors., 1979 2 SCC 468, for the reasons given above. We therefore, hold that the first proviso to clause 1 of Section 6 referred to above would number companye in the way of the Assistant Collector and the Collector to decide, in the dispute raised by a third party like the Panchayat, whether the property is a modern Wakf or number. Learned companynsel for the appellant also referred to the Explanation added below to sub-section 1 of Section 6 of the Wakf Act 1954, by the Central Act, 69 of 1984. The Explanation reads as follows - Explanation For the purpose of this section and Section 6-A, the expression any person interested therein, occurring in sub-section 1 of this Section and in sub-section I of Section 6-A, shall, in relation to any property specified as Wakf property in a list of Wakfs published, under sub-section 2 of Section 5, after the companymencement of the Wakf Amendment Act, 1984, shall include also every person who, though number interested in the Wakf companycerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by numberice served on him in that behalf during the companyrse of the relevant inquiry under Section 4. Obviously, the intention of Parliament was to say that if a suit was number filed within one year, the Notification would be binding number only on those interested in the trust but even strangers, claiming interest in the property in question, provided they were given numberice in the inquiry under Section 4 preceding the Notification under Section 5 2 . In this companynection, we have to point out that the Government of India has number issued any date for companymencement of the Explanation in Section 6 of the Wakf Act quoted above. Even if it is assumed that the Explanation can be invoked, there is numbermaterial before us to show that any numberice was issued to the Gram Panchayat before the issuance of the Notification, as required by the Explanation. If numbernotice was issued as required by the Notification, the Notification would number companye in the way of a Civil Court to decide the question if raised between the Wakf and a third party, even if such a suit was filed beyond one year from the date of the Notification, Thus, once the Assistant Collector and the Collector had jurisdiction to decide, their decision became final and Section 13 of the Panchayat Act barred the Civil Suit filed by the Wakf Board. We, therefore, hold this point in favour of the respondent that the present suit by the Wakf Board was barred under Section 13 of the Punjab Village Common Lands Regulations Act, 1961. Point 1 held in favour of respondent. Point No. 2. The learned companynsel for the appellant then placed reliance upon the definition of Shamilat Deh in Section 2 g of the Punjab Village Common Lands Regulations Act, 1961 and companytended that this land was number being used for companymunity purposes and that therefore it stood excluded from Section 2 g and therefore the Assistant Collector or Collector companyld number have decided any question relating to cases of land which was number shamilat deh. We shall refer to the relevant part of Section 2 g . Section 2 g . Shamilat deh includes- 1 2 Lands described in the revenue records as shamilat tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village companymunity or a part thereof or for companymon purposes of the village 4 4 a Lands in any village described as banjar qadim and used for companymon purposes of the villages according to revenue records Provided that . But does number include land which- i ii . iii iv is described in the revenue records as shamilat taraf, parttis, pannas or thola and hot used according to revenue records for the benefit of the village companymunity or a part thereof or for companymon purposes of the village. If the land was shown in the village records as act being used for the benefit of the companymunity, then this companytention for the appellant plaintiff is that Section 13 would number bar the Civil Suit. This is because in such a case, the land will number be shamilat deh. But, oh facts, the appellant has numbercase. In this companynection, we may refer to the findings recorded by the Assistant Collector that the revenue records show that the Gram Panchayat is the owner and also that the property in question is being used for companymon purposes of the Gram Panchayat We have already extracted its above findings recorded by the Assistant Collector. The revenue records thus showed the land was being used by Village companymunity. It is obvious from the definition of Shamilat Deh in Section 2 g of the Punjab Village Common Land Regulations Act, 1961 that the land in question did number fall within the exclusionary part of the definition. Therefore, the land was Shamilat deh and was being used as such as per the revenue records. Thus, Section 13 of the Act would apply and preclude a suit by the Wakf Board. We, therefore, hold point No. 2 against the appellant. For the aforesaid reasons, the appeal fails and is dismissed.	Case appeal was rejected by the Supreme Court
1999 1 SCR 104 The Judgments of the Court were delivered by QUADRI, J. Leave is granted. The appellant is the mother of the detenue, Smt. Lakshmi, who was detained by order No. B.D.F.G.I.S. No. 38/98 dated 12th April, 1980, passed by the second respondent, under Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas Immoral Traffic Offenders and Slum Grabbers Act, 1982 for short, Tamil Nadu Act 14 of 1982 . Her challenge to the said order in a petition under Article 226 of the Constitution HCP No. 659 of 1998, before the Division Bench of the High Court of Madras having been unsuccessful, she is before us by special leave against the order of the High Court dated October 5, 1998, dismissing the said petition. The detenue was ordered to be detained by the second respondent on the ground that she was a bootlegger within the meaning of the said Act and was indulging in activities prejudicial to the maintenance of public health and public order. He referred to four cases filed under Section 4 of the Tamil Nadu Prohibition Act, 1937 in which she was found guilty and was fined, Rs. 250 in two cases and Rs. 350 in two cases. On the day when she was served with the impugned order of detention, she was in judicial remand in companynection with, a case filed under Sections 4 1 1 and 4 1-A of the Tamil Nadu Prohibition Act, 1937 which was filed on the allegation that she was selling liquid in bottles which companytained chloral hydrate, 99.2 mg weight volume, which was injurious to the health of the companysumers. The only ground urged before us by Mr. K.K. Mani, the learned companynsel appearing for the appellant, is that the detenue was denied the right to make effective representation because the order dated 5.4.1998 remanding the detenue to judicial custody relied upon by the second respondent in the grounds of detention was passed in English but the Tamil version of that document was number supplied to her even though she specifi-cally demanded for the same as she did number know English at all. Mr. N. Natarajan, learned senior companynsel for the State of Tamil Nadu, argued that as the grounds of detention and the said document were translated and explained in Tamil to the detenue numberprejudice was caused to her in making an effective representation due to number supplying Tamil version of the remand order. The short question that falls for our companysideration is whether failure to supply Tamil version of the order of remand passed in English, a language number known to the detenue, would vitiate her further detention. The companytention of Mr. Mani is founded on clause 5 of Article 22 of the Constitution of India which reads thus 22 5 . When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It imposes twin obligations on the authority making the order of detention in respect of a person. They are 1 to companymunicate to such person the grounds on which the order of detention has been made and 2 to afford him the earliest opportunity of making a representation against the order. The law relating to preventive detention has been crystallized and the principles are well neigh settled. The amplitude of the safeguard embodied in Art. 22 5 extends number merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the right of being companymunicated the grounds and of being afforded the opportunity of making a representation against the order. See Hadibandhu Das v. District Magistrate, Cuttack Anr., 1969 1 SCR 227 . However, this companyrt has maintained a distinction between a docu-ment which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas number-supply of a companyy of the document relied upon in the grounds of detention has been held to be fatal to companytinued deten-tion, the detenue need number show that any prejudice is caused to him. This is because number- supply of such a document would amount to denial of the right of being companymunicated the grounds and of being afforded the oppor-tunity of making an effective representation against the order. But it would number be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenues companyplaint of number-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated companyy of the docu-ment in the language known to and understood by the detenue, should the document be in a different language. In Chaju Ram v. The State of Jammu Kashmir, 1970 1 SCC 536, the order of detention was challenged on the ground, inter alia, that the detenue was number explained of the grounds of his detention in the language known to him and, therefore, he was deprived of his right of making a representation. This companyrt held that when dealing with a detenue who companyld number read and understand English or any language at all that the grounds of detention should be explained to him as early as possible in the language he understood so that he companyld avail himself of the statutory right of making a representation. The companytention that the document in English was handed over to the detenue who affixed his thumb in token of having received it was held number in companypliance with the requirement of law which gave a very valuable right to the detenue to make a representation which right was frustrated by handing over to him the grounds of detention in an alien language. The above decision is number authority for supporting the companyteution canvassed by Mr. Natarajan that explaining the companytents of the document, relied upon in the grounds of detention, in the language understood by the detenue, absolves the detaining authority of the duty to furnish translation of such document in the language understood by the detenue. The judgment of this Court in MAT. L.M.S. Ummu Saleema v. Shri B.B. Gujaral Ors., 1981 3 SCC 317 also does number help the respondents because that case dealt with supply of documents and materials which find a casual or passing reference in the companyrse of narration of facts in the grounds of detention but are number relied upon by the detaining authorities in making the order of detention. We have already held above that number furnishing companyies of such documents would number vitiate the order unless the detenue shows that he was prejudiced in making an effective representation due to number-supply of such documents. Here it will be appropriate to refer to the following decisions In Prakash Chandra Mehta v. Commissioner and Secretary, Govern-ment of Kerala Ors., AIR 1986 SC 687, the order of detention was passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The grievance of the detenue was that the grounds of detention were served in English and that the annexures to the grounds were in Malayalam and that he companyld understand only Gujarati so he pleaded that his companytinued detention was bad. It was held that it was imperative that the grounds must be companymunicated in a language understood by the person companycerned so that he companyld make effective representation. It was pointed out that the plea that he did number know anything except Gujarati was merely the ipse dixit of the detenue and that the detaining authority came to the companyclusion that he knew both Hindi and English and so averred in his affidavit and the detenue was merely feigning ignorance of English. On those facts it was held that companymunication of the grounds of detention in English and subsequently in Hindi was valid and that as the gist of the annexures which were in Malayalam, had been stated in the grounds of detention, so the detention was number vitiated. In the instant case there is numbersuch finding of the detaining authority about detenue number knowing English. Mentioning about the order of remand in the grounds, in our view, does number amount to giving the gist of that document. In Madan Lal Anand v. Union of India, AIR 1990 SC 176, one of the grounds of challenge to the order of detention was number-supply of companyies of documents. The detaining authority relied upon three civil miscellaneous applications filed in a civil revision petition. Copies of the miscellaneous petitions were supplied to the detenue but the companyy of the civil revision petition in which the miscellaneous petitions were filed, was number furnished. It was observed that mentioning of civil revision petition in the grounds of detention was merely to identify the miscellaneous applications and having regard to the facts and circumstances of that case the detenue was number prejudiced due to number-supply of the companyies of the documents to him and further, the other revision petitions, companyies of which were number supplied, were mentioned to point out the fact of shifting of the factory premises without giving any specific address of the factory and that fact in the grounds of detention did number necessarily require the detaining authority to supply companyies of the revision petitions. On those facts it was held that number-supply of the document did number cause any prejudice to him. This case falls in the aforementioned second category of documents. Kamarunnissa v. Union of India, AIR 1991 SC 1640 was also a case arising under Section 3 of the COFEPSA Act. There the documents that were number supplied to the detenue were merely referred to in the grounds of detention and were number relied upon by the detaining authority while arriving at the subjective satisfaction. The observation of the companyrt that mere statement that the documents were number supplied was number sufficient and that the detenue must show that number-supply of documents has im-paired his right to make representation, has to be understood having regard to the fact that the document therein were merely referred to in the grounds of detention but were number relied upon by the detaining authority for reaching subjective satisfaction. Adverting to the facts of this case, the appellant has made a repre- sentation for supply of Tamil version of the companyy of order of remand and specifically stated that the detenue companyld number understand the English language. Admittedly, the Tamil version of order of remand was number furnished to her. A perusal of the grounds shows that the order of remand was relied upon by the second respondent to reach subjective satisfaction, so the detenue need number show that any prejudice was caused to her due to number-supply of the Tamil version of order of remand. Therefore, the High Court is number companyrect in holding that number-furnishing of the companyy of the order of remand would number in any way prejudice the detenue. For the above reasons, in our view, number-supply of Tamil version of English document, on the facts and in the circumstances, renders her companytinued detention illegal. We, therefore, direct that the detenue be set free forthwith unless she is required to be detained in any other case. The appeal is accordingly allowed. P. WADHWA, J. The only companytention raised to challenge the order of detention is that the detenu was number supplied with the remand order in Tamil when she was served with the order of detention and the grounds of detention. It is number disputed that the detenu was supplied with Tamil translation of the order, grounds and the documents. Grievance, however, is that she was number supplied with the Tamil translation of the remand order. The detenu was arrested on April 5, 1998 under Section 4 l i and Section 4 1 A of the Tamil Nadu prohibition Act, 1937. She was produced before the Magistrate on the same day and was remanded till April 17, 1998. In the narration of events in the grounds of detention it is stated that the detenue was produced for remand before the Judicial Magistrate Thirukalukundam on 5.4.98 on the same day and she was ordered to be remanded till 17.4.98 and she was lodged in Special Prison for Women Vellore. Detaining authority in the grounds then mentions I am aware that Thirumathi Lakshmi is in remand and there is imminent possibility that she may companye out on bail for the offence under section 4 l i 4 1-A Tamil Nadu Prohibition Act, 1937 by filing bail applica-tion in the companyrt. I am also aware that in similar cases accused are enlarged on bail by the same companyrt or the superior companyrt after lapse of some time, and if she companyes out on bail she will indulge in such further activities in future as well which will be prejudicial to the maintenance of public health and public order. It only shows that the detaining authority was aware that the detenue was on remand and that she was likely to be released on bail and that bail was usually granted by companyrts in such cases and on her release on bail she was likely to indulge in the prejudicial activities. It is number that the order of remand was the basis on which order of detention of the detenue under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Forest-offenders, Im- moral Traffic Offenders and Slum Grabbers Act, 1982 Act 14 of 1982 was made. In any case the order of remand was reproduced in the grounds which admittedly were supplied to the detenue in Tamil and also explained to her. The remand order itself reads as under Accused produced. No companyplaint of ill treatment by the Police. Remanded till 17.4 .98. On numberice being issued companynter affidavit has been filed by the detain-ing authority. With reference to the objection raised by the detenue that she was number given Tamil version of the order of remand the detaining authority has replied as under This document remand order has been explained in Tamil to the detenue and there is an endorsement that it has been explained to her and she has understood the same. Hence it is number companyrect to state that the detenue has number understood the companytents of the documents at page 81 namely the remand order. It is further humbly submitted that generally whenever a person is produced before the Trial Court at the time of remand the Learned Magistrate used to question only in Tamil, which is the official Language of Tamil Nadu Government. Then the learned Magistrate will remand a person and will inform the date of remand to the person remanded before him. I further humbly submit the averment numbercomplaint of ill-treatment by Police in the remand order itself clearly shows that it is number the word of the Learned Trial Magistrate of his own. The Learned Trial Magistrate has put the question to the detenue in Tamil whether the person was ill- treated. The reply given by the person has been recorded in the remand order. The reply has been incorporated in the remand order itself as numbercomplaint of ill-treatment. Hence the above said endorsement of the Learned Trial Magistrate in the remand order will clearly show and prove that the detenue under-stood the proceedings before the Trial Court at the time of remand and she understood the same also. Hence the number furnishing the companyy of the remand order in Tamil Language to the detenue will number cause any prejudice to the detenu in making an effective representation. It is further humbly submitted that the detenue herself appeared before the Advisory Board personally. In the representation dated 18.5.98 given before the Advisory Board she has number stated that she did number understand the companytents of the documents namely the remand order dated 5.4.98. She has number made any grievance even before the honourable advisory Board. Hence it has to be presumed that she knew very well that she was remanded till 17.4.98 and she has number made any companyplaint against the police at the time of remand. Hence number furnishing of the companyy of the remand order in Tamil will number cause any prejudice to the detenue. The detenue did number choose to file any rejoinder to the companynter affidavit filed by the detaining authority though opportunity was granted to her. From the record it is apparent that it was number necessary to supply to the detenue a companyy of the order of remand and that numberprejudice has been caused to the detenue on account of number-supply of Tamil translation of the order of remand. As rightly pointed out by the detaining authority that number only that the remand order which finds mention in the grounds which were given to the detenue in Tamil, the Magistrate also did tell the detenue of the order of remanding her. It may be numbericed that the grounds recite that the detenue had earlier on four different occasions been companyvicted under Sections 4 l i and 4 l b of the Tamil Nadu Prohibition Act, 1937. In Prakash Chandra Mehta v. Commissioner and Secretary, Govern-ment of Kerala and Others, 1985 Supp. SCC 144, while Hindi translation of the grounds of detention was served on the detenue there were six annexures which were supplied to the detenue and were in Malayalam. The detenue did number know the Malayalam language. It was, therefore, company-tended that there was violation of the provisions of Article 22 of the Constitution inasmuch as grounds were number companymunicated to the detenue in a language understood by him. The Court said The Constitution requires that the grounds must be companymunicated. Therefore it must follow as an imperative that the grounds must be companymunicated in a language understood by the person companycerned so that he can make effective repre-sentation. The Court further said that it was a salutary principle to be kept in mind that there is numberrule of law that companymonsense should be put in companyd storage while companysidering companystitutional provisions for safeguards against misuse of powers by authorities though these companystitutional provisions should be strictly companystrued. In a writ petition challenging the detention on behalf of the detenue it was companytended that the detenue did number understand English or Hindi or Malayalam and that he did understand only Gujarati language. This Court repelled this companytention and observed that gist of the annexures which was given in Malayalam language had been stated in the grounds. The detaining authority had companye to the companyclusion that the detenue knew both Hindi and English. The Court rejected other grounds of attack to the detention which was under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. I am tempted to quote the following observations in the judgment see paras 82 and 83 - Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised number to undermine the fundamental freedoms guaranted to our people, the procedural safeguards have to be ensured that, yet these must be looked at from a pragmatic and companymonsense point of view. The exercise of the power of preventive detention must be strictly within the safeguards provided. We are governed by the Constitution and our Constitution embodies a particular philosophy of government and a way of life and that necessarily requires understanding between those who exercise powers and the people over whom or in respect of whom such power is exercised. The purpose of exercise of all such powers by the Government must be to promote companymon well-being and must be to subserve the companymon good. It is necessary to protect therefore the individual rights insofar as practicable which are number inconsis-tent with the security and well-being of the society. Grant of power imposes limitation on the use of the power. There are various procedural safeguards and we must companystrue those in proper light and from pragmatic companymonsense point of view. We must remem-ber that observance of written law about the procedural safeguards for the protection of the individual is numbermally the high duty of public official but in all circumstances number the highest. The law of self preservation and protection of the companyntry and national security may claim in certain circumstances higher priority. As has been set out by Thomas Jefferson To lose our companyntry by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us thus absurdly sacrificing the end to the means Thomas Jefferson, Writings Washington Ed. v. 542-545 and The Constitution Between Friends by Louis Fisher 47. By the aforesaid approach both justice and power can be brought together and whatever is just may be powerful and whatever may be powerful may be just. In this view of the matter I find myself unable to agree with the view taken by my learned Brother Justice Quadri that detention of the detenue is void and that it should be quashed. Procedural safeguards have been companyplied with. I would, therefore, rather dismiss the appeal. In view of the majority decision the Appeal is allowed.	Case appeal was accepted by the Supreme Court
Jagannadha Rao, J. This Interlocutory Application is, filed for recalling the order dated 22.1.1997 passed in Review Petition No. 2094 of 1995 in Special Leave Petition Civil No. 19257 of 1995, in view of orders dated 3.3.1997 passed in Review Petition Civil No. 2096 of 1995 in Special Leave Petition Civil No. 16646 of 1995. This Special leave petition Civil No. 19257 of 1995 by Kamlakar Others and Special leave Petition civil No. 16646 of 1995 by Chandra prakash Madhavrao Dadwa others were filed against the order of the Central Administrative Tribunal, Bombay in O.A. No. 625 of 1990 dated 7.3.1995. Special Leave Petition Civil No. 16646 of 1995 was dismissed on 1.9.1995 but later Review Petition 2096 of 1995 was filed therein. Notice was issued on 3.3.1997 and the review petition was allowed and the said case in special leave petition civil No. 16646 of 1995 was, after leave being granted, also allowed on 25.9.1998 Chandra Prakash Madhav Rao Dadwa and Ors. v. Union of India and Ors. . That Review was allowed because of another special leave petition No. 18948 of 1995 later Civil Appeal No. 16741 of 1995 being allowed on 9.12.1996 . But so far as the present Special leave petition No. 19257 of 1995 is companycerned, it was dismissed on 8.9.95 and the Review Petition No. 2094 of 1995 was directed to be put up after disposal of Special leave petition No. 18948 of 1995. But unfortunately the Review Petition 2094 of 1995 was dismissed on 22.1.1997 without numbericing that Special leave Petition No. 18948 of 1995 Civil Appeal No. 16741 of 1995 was allowed on 9.12.1996. Hence the present Interlocutory application No. 1 was filed to recall the order dated 22.1.1997 in Review Petition No. 2094 of 1995. When Interlocutory Application No. 1 came up before Court on 9.2.1998, it was directed to be tagged with RP C No. 2096 of 1995 in SLP C No. 16646 of 1995. We heard Review Petition 2096 of 1995 in SLP Civil No. 16646 of 1995 and allowed the Review Petition and the SLP after granting leave on 25.9.1998 as aforesaid and directed that IA No. 1 in SLP C No. 19257 of 1995 be listed before the appropriate Bench. It has finally been listed before us. Now that RP No. 2096 of 1995 has been allowed, the said SLP C No. 16646 of 1995 has been reopened and allowed on 25.9.1998 after leave being granted as Chandra Prakash Madhav Rao Dadwas case , the question of a decision in IA No. 1 in SLP C No. 19257 of 1995 has arisen. Now Chandra Prakash Dadwa Others, the petitioners in SLP C No. 16646 of 1995 and Kamlakar Others in this Special Leave Petition No. 19257 of 1995 before us filed the respective SLPs against the same order dated 7.3.1995 in OA No. 625 of 1990 of the Central Administrative Tribunal, Bombay. In fact, all of then were petitioners in the same OA and claimed relief in regard to the same impugned orders of the Union Government dated 2.7.1990 by which the Government changed i the designation of the petitioners from Data Processing Assistants of Data Entry Operators and gave them a particular scale which according to them was reversion to an entry grade below that of Data Processing Assistants namely, as Data Entry operators, Grade B. They also claimed that a lower scale of pay Rs. 1350-2200 was given to them than that was to be given. They were in the scale of Rs. 1200-2040 when OA 625 of 1990 was filed and they claimed that the revised scale of Rs. 1600-2660 meant for Data Processing Assistants was to be given and number Rs. 1350-3200. The grievance of all the petitioners in the OA was same. Now unfortunately while those who filed SLP 16646 of 1995 have got relief, the present petitioners who filed SLP 19257 of 1995 did number get relief so far. In this Interlocutory Application No. 1 and simultaneously in the SLP we have heard the companynsel on both sides. In view of the anomalous situation that some petitioners in OA 625 of 1990 got relief while some others have been denied by this Court - even though all have been petitioners in the same OA before the Central Administrative Tribunal and belong to in same cadre of employees, we deem it fit to allow Interlocutory Application No. 1 and set aside the orders in Review Petition No. 2094 of 1995 and restore the Special Leave Petition No. 19257 of 1995. We have also heard the arguments in the Special Leave Petition on both sides. Leave granted. It is, at the outset, obvious that the appellants in the appeal, Kamlakar Others are on the same footing as the appellants, Chandra Prakash Dadwe others in Special Leave Petition No. 16646 of 1995 and that the same result must follow. That is what Ms. Shymala Pappu for the appellants companytended for. Sri P.P. Malhotra, learned senior companynsel for the Union of India, however, companytended that among the appellants some are direct recruits, like those in Special leave Petition No. 1 16646 of 1995 but some others in this appeal are promotees and that that is a point of some distinction. Therefore, direct recruits may be given relief but number promotees. We have companysidered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have numberrelevance in this companynection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters companymon to all of them before the impugned order of the Government of India was passed on 2.7.1990, - then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is number permissible. We, therefore, reject the respondents companytention. We have examined the record and the companymon points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed. We accordingly declare that the appellants are entitled to all the benefits which we had granted to the appellants in the Civil appeal which arose out of Special Leave Petition No. 16646 of 1995 as per our judgment dated 25.9.1998 reported in Chandra Prakash Madhav Rao Dadwe and Ors. v. Union of India and Ors.	Case appeal was accepted by the Supreme Court
1999 4 Suppl. SCR 360 ORDER The following Order of the Court was delivered On 27th September, 1983 a three Judge Bench of this Court doubted the companyrectness of the wide observations made in the case of Ram Bali Rajbhar The State of West Bengal Ors., 1975 3 SCR 63, and being of the opinion that the view expressed in Pushpa v. Union of India Ors., AIR 1979 SC 1953, ran in the teeth of the judgment of Rajbhars case supra referred the matter to a larger Bench. The referring Bench numbericing that the detenu had already suffered detention for a period of 10 months out of the 12 months period of detention imposed by the order dated 15th December, 1982, directed the detenu to be released on parole. Mr. Harjinder Singh, learned companynsel appearing for the petitioner has taken us through the judgments in Rajbhars case and Pushpas case supra . A careful perusal of both the judgments, however, shows that there is numberconflict between the two. The view expressed in Rajbhars case supra , in our opinion, lays down the companyrect law and does number call for any reconsideration. Insofar as the view expressed in Pushpas case supra is companycerned, it deserves to be numbericed that the learned Single Judge, deciding the petition during the vacation, did number say anything which may be companysidered as running companytrary to the view expressed in Rajbhars case supra . On facts it was found in that case that two representations had been made by the detenu against the order of detention and both the representations were placed before the same Advisory Board when it met and the Board companysidered the representations at that sitting. The argument raised in that case that the second representation had number been companysidered by an Advisory Board was thus found, on facts, as number valid. The Court, under those circumstances, declined to examine the companytention whether personal appearance of the detenu to explain his case before the Advisory Board, since he had filed detailed written representation, infringed any of the rights of the detenu. Learned companynsel appearing for the parties have been unable to point out any area of companyflict between Rajbhars case and Pushpas case. In fairness to the learned companynsel it must be numbericed that they submitted that the reference does number require to be answered. We agree. Coming, however, to the facts of the present case. It is found that representations had been made by the petitioner against the order of detention which were companysidered by the detaining authority and the Advisory Board. The representations were rejected. The order of detention and the order of rejection or the representations was challenged through writ petition No. 6/1983, which was dismissed by the Delhi High Court on 1st February, 1983. The order of the Delhi High Court was challenged through Special Leave Petition No. 379/1983 in this Court. Together with the Special Leave Petition No. 379/1983, another writ petition, being Writ Petition Crl. No. 182/1983, was also filed under Article 32 of the Constitution of India, once again putting in issue the same order of detention which had been upheld by the Delhi High Court. The Special Leave Petition as well as the Writ Petition stood dismissed by a three Judge Bench of this Court on 23rd February, 1983. The petitioner thereafter filed yet another writ petition being Writ Petition Crl. No. 363/1983 challenging the order of detention on some additional grounds. That writ petition was also dismissed by this Court on 27th April, 1983. After dismissal of the third writ petition on 27th April, 1983 the petitioner appears to have sent a representation, on 7th May, 1983, to the first respondent invoking powers under Section 21 of the General Clauses Act read with Section 11 of the COFEPOSA. The petitioner also requested for the companystitution of a fresh Advisory Board to companysider his representation. On 23rd May, 1983, the representation of the petitioner was rejected by the Delhi Administration after due companysideration. This fourth writ petition has been filed thereafter challenging the same order of detention, the validity of which had been upheld earlier as numbericed above. Mr. Harjinder Singh appearing for the detenu submitted that the failure of the State to companystitute a fresh Advisory Board to companysider the representation dated 7th May, 1983, rendered the order of detention bad. After perusing the record and hearing learned companynsels for the parties, we are of the opinion that there is numbermerit in the submission made by the learned companynsel for the detenu. As already numbericed, the petitioner had three times earlier, challenged the order of detention and failed. In the representation filed by the petitioner on 7th May, 1983, we find that neither any fresh material was brought on record number any subsequent events were pointed out which may have warranted a fresh companysideration of the representation made by the detenu. It was only change in the language of the representation. The Delhi Administration was, therefore, justified in rejecting the representation dated 7th May, 1983 by the order companymunicated to the petitioner on 23rd May, 1983. Since, there were numberfresh grounds number any fresh material or subsequent events brought out in the representation dated 7th May, 1983, there was numberobligation on the State to get that representation companysidered by a fresh Advisory Board and, therefore, the exercise of discretion by the State in rejecting the representation and number companystituting a fresh Advisory Board cannot be faulted. The detenu had, as already numbericed, unsuccessfully challenged the same order of detention thrice. Making of the representation on 7th May, 1983., without any fresh cause being available to him, was apparently designed to file yet another writ petition. We, cannot but disapprove this attitude of the detenu. There is numbermerit in this writ petition, which fails and is hereby dismissed. Learned companynsel for the petitioner then lastly submitted that since the detenu had already remained under detention for a period of ten months, before being enlarged on parole, he may number be sent back to jail, to undergo the remaining period of detention. The petitioner was detained, as already numbericed, by an order made on 15th December, 1982. After he had suffered detention for a period of about 10 months, he was directed to be released on parole by this Court on 27th September, 1983. More than 16 years have number gone by. In our opinion, in the peculiar facts and circumstances of this case, it would number number be in the interest of justice to cancel the order of parole and direct the petitioner to undergo the remaining period of detention of about two months. We, therefore, while dismissing the writ petition, direct that the detenu need number number be taken into custody to undergo the remaining period of detention.	Case appeal was rejected by the Supreme Court
1999 Supp 5 SCR 186 The Judgment of the Court was delivered by BHARUCHA, J, These appeals raise a companymon question pertaining to the power companyferred by Section 29-A of the Madhya Pradesh General Sales Tax Act, 1958. The facts that we narrate relate to the first appeal Civil Appeal No. 8921 of 1994 . A truck carrying 120 bags of supari belonging to the respondent was checked by the Sales Tax Authorities on 10th January, 1994 near Bijalpur when it crossed the barrier into Madhya Pradesh, it was found by these authorities that the value of the supari as shown in the declaration form, was less than what it should really have been. Accordingly, the authorities issued to the respondent a numberice under Section 29-A 11 of me said Act. The numberice required the respondent to show cause why it should number be held that the truck was carrying the goods without paying sales tax with the intention of evading sales tax and why penalty in the sum of Rs. 31, 472 should number be imposed. The respondent filed a writ petition in the High Court of Madhya Pradesh to quash the numberice. By the order under challenge, the writ petition was allowed. The High Court held that me provisions of Section 29-A did number authorise the authorities to question the value of me goods as companytained in the documents with reference to market value Section 29-A empowers the State government or the Commissioner of Sales Tax to set up checkposts or barriers with a view to prevent or check evasion of tax,., Under sub-section 4 thereof, every person transporting goods numberified by me State Government must carry with him an invoice, bill or challan or any other document, by whatever name called, issued by the companysignor of the goods giving such particulars as may be prescribed. Under sub-section 6 the transporter is obliged to stop his vehicle at every checkpost or barrier and keep it stationery for as long as may be reasonably necessary to allow the checkpost officer to verify and check the declarations and documents mentioned above, to search the vehicle and inspect the goods and all documents relating thereto which are in the possession of the transporter. Sub-section 8 , so far as is relevant here, states If the check post officer finds after searching the vehicle and verifying the declaration of other documents relating to the goods, that- xxx xxx xxx b the declaration filed in respect of any goods is false or incorrect, either in respect of the kind of goods or the quantity of goods transported, or the value thereof or xxx xxx xxx such officer may presume, until the companytrary is proved, that an attempt was being made to facilitate the evasion of tax in respect of such goods and he may, after recording his reasons therefore in writing a companyy of which shall be forthwith supplied to the transporter seize such goods in such manner as may be prescribed Sub-section 11 reads thus 11 . If the check post officer is number so satisfied, he shall record his findings accordingly giving reasons therefore and he shall serve on the transporter a numberice in writing requiring him to show cause, ordinarily within fifteen days of the service of the numberice, why a penalty as specified in the numberice, which shall be equal to three times the amount of tax which would have been payable if the goods were sold within the State on the date of such seizure, should number be imposed upon him for the attempt made to facilitate the evasion of tax on such goods. Emphasis supplied It is, therefore, clear that every person who transports goods of the kind numberified by the State Government, and it is number disputed that supari is numberified, must carry with him an invoice, bill or challan or any other document issued by the companysignor of the goods that gives particulars relative to the goods. The transporter is obliged to stop the vehicle carrying the goods when required to do so to allow the Sales tax authority to verify and check the declarations and documents aforestated and to search the vehicle and inspect the goods. If such search and verification shows that the declaration that has been filed in respect of the goods is false or incorrect in respect of, inter alia, the value thereof, the authority may presume until the companytrary is proved that an attempt is being made to evade sales tax. He must then record his reasons in this behalf and supply a companyy thereof to the transporter. If after companysidering the transporters explanation, the authority remains unsatisfied, he is required so to record and to serve on the transporter a numberice to show cause why a penalty should number be imposed upon him. In the premises, the High Court was plainly in error when it held that the aforesaid provision does number authorise the authorities to question the value of the goods as companytained in the documents with reference to market value. The provision clearly does. The civil appeals are allowed. The orders under appeal are set aside. No order as to companyts.	Case appeal was accepted by the Supreme Court
1999 1 SCR 375 The following Order of the Court was delivered The respondent-assessee is a private limited companypany. The original assessment for the years 1972-73 was made on 28.2.1973 determining the loss as Rs. 78,823. A sum of Rs. 78,500 claimed as interest paid by the assessee on amounts borrowed for purchase of machinery was allowed as a deduction. Similarly, for the year 1973-74, in the original assessment deduction was allowed for similar interest paid by the assessee. While making the assessment for the assessment year 1974-75, the Income Tax Officer numbericed that the assessee had included a numbere in the schedule of fixed assets appended to its balance sheet as on 31.3.1973 and that numberdepreciation had been made for unused rubberised machinery valued at Rs. 4,80,000. Hence, the Income Tax Officer held that such machinery had number been used for the business of the assessee. Consequently, the I.T.O. took the view that the assessee was number entitled to claim deduction for the interest paid by him in all the three assessment years. The assessment was re-opened and fresh assessment orders were passed by the I.T.O. rejecting the claim of deduction made by the assessee. That order was companyfirmed on appeal by the Appellate Assistant Commissioner and when the matter was taken to the Tribunal, the latter took the view that the machinery being business asset, the interest paid on the amount borrowed for the purchase of such machinery would certainly be an allowable deduction. Consequent-ly, the Tribunal upheld the claim of the assessee and permitted the deduc-tion being made. The Revenue applied to the High Court under Section 256 2 for directing the Tribunal to make a reference to it on the following question Whether on the facts and in the circumstances of the case the Tribunal is justified in law in holding that the interest paid by the assessee on loans taken from the bank for the purchase of machinery, which was never used in the assessees business, is an allowable deduction in companyputing the total income of the assessee for the assessment year 1972-73 and 1973-74. Similar application was filed for the year 1974-75. The High Court dismissed the applications by two separate orders. Both the orders are challenged in this appeal. We do number find any merit in this appeal. We find that the reasoning of the Tribunal is companyrect. Even though the machinery has number been actually used in the business at the time when the assessment was made, the same had been treated as business asset and it was purchased only for the purposes of the business. In the circumstances, the interest paid on the amount borrowed for purchases of such machinery is certainly a deductible amount. Consequently, the view taken by the Tribunal is companyrect. The appeal is dismissed. There will be numberorder as to companyts.	Case appeal was rejected by the Supreme Court