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Civil Appeal Nos. 1739 1740 of 1968. (From the Judgment and Decree dated 14 2 1967 of the Delhi High Court in Regular First Appeal Nos. 5 D, and 54 D of 1958). 969 V. section Desai and Girish Chandra, for the Appellant. Sachin Chaudhary, B.P. Maheshwar and Suresh Sethi, for the Respondent No. 1 in (CA. 1739/68) and for Respondent No. 2 in 1739/68) and Respondent No. 1 in (CA. No. 1740/68). A. K. Sen and D. Goburdhan, for Respondent No. 2 in (CA. No. 1740/68). The Judgment of the Court was delivered by SHINGHAL, J. , These two appeals by certificate have been consolidated by an order of this Court dated April 15, 1969. They are directed against a common judgment of the Delhi High Court dated February 14, 1967, in Regular First Appeals Nos. 5 D and 54 D of 1958, by which the judgment and decree of the trial court dated January 13, 1958 have been set aside with costs throughout. As this has resulted in the dismissal of the suit raised by the Union of India, it has filed the present appeals. The facts giving rise to the appeals are quite simple. Harjas Rai Malhotra, defendant No. 3, is the father of Krishan Lal Malhotra, defendant No. 2. The liability of defendant No. 3 to income tax and super tax for the as sessment year 1947 48, was fixed Rs. 1,25,090/11/ in March, 1952. A demand was made for its payment, but he neglected to meet it and a certificate was issued on October 8, 1952 to the Collector of Delhi for its recovery as ar rears of land revenue. The Collector was asked to attach house No. 15, Keeling Road and house No. 9, Hailey Road in New Delhi, of defendant No. 3. Both the houses were attached on October 13, 1952. Meanwhile, defendant No. 3 appealed against the order of assessment. The Appellate Assistant Commissioner allowed the appeal on May 12, 1953, set aside the assessment and directed a fresh assessment. The order of fresh assessment was made on November 30, 1953 and the incometax demand was reduced to Rs. 1,05,769.13. The as sessments for 1944 45 and 1948 49 were completed on March 28 and 31, 1953, respectively, raising a tax demand for Rs. 1,94,738.15. A recovery certificate was issued to the Collector for the same on May 4, 1953 and the house at No. 15, Keeling Road was again attached on August 6, 1953. We are not concerned with the house at No. 9, Hailey Road, for the controversy before us relates to house No. 15, Keeling Road, hereinafter referred to as the house. That house had been ostensibly purchased by defendant No. 2 in December, 1946 for Rs. 60,000/ . He filed an application objecting to the attachment on the ground that the house belonged to him, but the Collector dismissed the objection holding that the house belonged to defendant No. 3. Defend ant No. 2 did not appeal against that order and did not question it by a suit. Thus far, the facts are not in dispute. 970 It was alleged in the plaint that the house was pur chased by defendant No. 3, "benami", in the name of his son defendant No. 2, out of his "own funds drawn from his bank account" and that 'the "full beneficial ownership, right, title and interest in the said property has always belonged and continues to this day to belong to the 3rd defendant. " The plaintiff alleged further that during the pendency of his appeal to the Appellate Assistant Commissioner against the assessment which had been made in March 1952 for 1947 48 and the assessment proceedings for 1944 45 and 1948 49, defendant No. 3 "in collusion and conspiracy with the 2nd defendant and certain other persons, and with the view, intent and purpose of defeating and delaying his creditors including the plaintiff, had recourse to diverse ways and means" as detailed in the plaint. He was thus alleged that, in February 1953, defendants Nos. 2 and 3 and five other persons purported to form a limited company known as Moksh Builders and Financiers Ltd., hereinafter referred to as the Company, which was arrayed as defendant No. 1 in the suit, with an authorised capital of Rs. 5,00,000/ divided into 5000 shares of Rs. 100/ each. There were 7 subscribers to the Memorandum and the Articles of Association of the Compa ny and each of them took 10 shares, Soon after the Appel late Assistant Commissioner made his aforesaid order dated May 12, 1953 for fresh assessment of the income tax liabili ty of defendant No. 3, a sale deed dated May 25, 1953 was brought into existence whereby defendant No. 2 "purported to convey" the house to defendant No. 1 for Rs. 1,00,000/ of which Rs. 90,000/ were payable in the shape of shares in the Company, Rs. 8,000/ payable to Sunrise .Investors Ltd. and Rs. 2000/ in cash. The plaintiff pleaded that "these transactions were all sham, colorable, and effected and entered into with the active aid, instigation and advice of the 3rd defendant and to subserve and carry out the object of placing his property, viz., No. 15, Keeling Road out of the reach of his creditors". It was further urged as fol lows, "The consideration mentioned in the sale deed of 25th May, 1953 was illusory. In effect and substances the 2nd defendant pur ported to sell a house to the I st defendant in which company in return was to become a holder of shares . of controlling interest, the shares being the alleged price. , Except for the legal fiction of the I st defendant Company being juristic person the 'sale was by the vendor to himself. None of these de vices and subterfuges could divest the 3rd ', defendant of his ownership of the property in question. The 1st defendant company by its_promoters directors and office bearers was fully aware of all the facts of the case, including the true state of the title to the property No. 15, Keeling Road, the highly embarrassed financial circumstances of the 3rd defendant the facts that he owed to the plain tiff" alone taxes to the amount of several lakhs of rupees etc. The 1st defendant is not a purchaser in good faith for consideration of the said property or without notice of the title of the 3rd defendant. On the other hand the sale deed dated 25th May, 1953 to the 1st defendant was executed by the name lender the 2nd defendant at the instance of the true owner of 971 the 3rd defendant with intent to defeat or delay the latter 's creditors, and is voidable at the option of any of such creditors includ ing the present plaintiff. " Defendant No. 1 objected to the attachment of the house for the realisation of the arrears of income tax of defend ant No. 3. The Additional Collector allowed the objection by a summary inquiry, and the Chief Commissioner dismissed the appeal on April 1, 1954. Both those officers, according to the plaintiff, proceeded on "prima facie considerations" and left the parties to seek their redress in the civil court. With these specific averments the,plaintiff raised its suit seeking leave to sue on behalf and for the benefit of itself and the other creditors, if any, of defendant No 3. It prayed for a declaration that (i) the sale deed dated May 25, 1953 was void as against the plaintiff and all other creditors of defendant No. 3, and (ii) the house is and continued to be owned by defendant No. 3. In the alterna tive, the plaintiff prayed for a declaration that the shares allotted to defendant No. 2 belonged to defendant No. 3. It also prayed for a declaration that it was entitled to pro ceed against the "properties which may be declared to be of 3rd defendant 's" by attachment and sale to realise the tax arrears due from him. A prayer was made for setting aside the orders of the Additional Collector and the Chief Commis sioner on the objection petition of defendant No. 2. Defendant No. 3 did not appear to contest the suit in spite of personal service and the trial court made an order on April 15, 1955 to proceed against him ex parte. Separate written statements were filed by the Company and defendant No. 2 The Company took the plea, inter alia, that it had been genuinely and properly formed and that it was a bona fide purchaser for value and the "transaction was quite real and genuine". It denied that the sale deed dated May 25, 1953, was executed at the instance of defendant No. 3, or that it was intended to defeat or delay his creditors. P was pleaded that defendant No. 2 was the rightful owner of the house which he had rightfully purchased with "his own money (Rupees 10,000/ ' by cheque No. 32920 dated 14.11.1946 on the New Bank of India Ltd., New Delhi drawn by his mother K. Rani and Rs. 50,000/ paid in cash before Sub Registrar)". The Company also pleaded that the transaction of sale in its favour was without notice of any body else 's claim and was binding. Defendant No. 2 filed a short written statement stating that he was the owner of the house having purchased it with "his own money". He pleaded that he had paid Rs. 10,000/ by cheque on New Bank of India Ltd., New Delhi, and Rs. 50,000/ were paid before the SubRegistrar. He pleaded further that he had no knowledge of the Collector 's order and that his order, if any, was ex parte. As regards the Company, defendant No. 2 pleaded that it was a real and genuine Company and that out of his shares worth Rs. 90,000/ he had sold shares worth Rs. 74,000/ . 12 1338SCI/76 972 The trial court found that the house was purchased "benami" in the name of defendant No. 2, by defendant No. 3 with his own money and that the sale of the house to the Company by defendant No. 2, was "sham and was effected in order to defeat or to delay the creditor of defendant No. 3 and that defendant No. 1 had no real existence. " The trial court therefore granted a decree declaring that the sale deed dated May 25, 1953 was void as against the plain tiff and all other creditors, if any, of defendant No. 3 and that the House" is and continues to be owned by the 3rd defendant and that the plaintiff is entitled to proceed against the said properties by way of attachment and sale to realise the tax arrears due from him. " The trial court set aside the orders dated October 9, 1953 of the Additional Collector on the objection petition of defendant No. 2 and of the Chief Commissioner dated April 1, 1954. As the High Court has set aside the judgment ' and decree of the trial court, the present appeals have been filed by the plaintiff as aforesaid. We shall refer to the findings of the High Court as and when necessary. The main point in controversy was whether the house was purchased by defendant No. 3 'benami ' in the name of defend ant No. 2? This was the subject matter of issue No. 1 in the trial court. We have made a reference to the plaintiff 's plea that the purchase was "benami" and payment was made out of the funds of defendant No. 3, which were drawn by him from his own account. As has been mentioned, defendant No. 3 did not care to appear and contest the suit even though he was served and knew the nature of the plaintiff 's claim and the basis thereof. Defendant No. 2 appeared at the trial and pleaded that he purchased the property "with his own money". The source of the money was within his special knowledge, but it will be recalled that he contended himself by pleading that Rs. 10,000/ were paid by him by a cheque and Rs. 50,000/ were paid before the Sub Registrar. We have made a reference to the plea of the Company in this respect. It is no body 's case that the sale of the house to defendant No. 2 was fictitious and that the title of the transferor was not intended to pass. What we have to examine is whether the title, on sale of the house in Decem ber 1946, was transferred to defendant No. 3, who was. the real purchaser, and not to defendant No. 2, who was only the ostensible transferee and was no more than a "benamidar". It has been held in Gangadara Ayyar and others vs Subrarnania Sastrigal and others(1) that "in a ease where it is asserted that an assignment in the name 011 one person is in reality for the benefit of another, the real test is the source whence the consideration came" It is also necessary to examine in such eases who actually has enjoyed the benefits of the transfer. Both these tests were applied by this Court in Meenakshi Mills, Madurai vs The Commissioner of IncomeTax Madras.(2) It is therefore necessary, in the present case, to (1) A I.R. (2) ; 973 find out the source of the consideration for the. transfer, as also to find out who has been in enjoyment of the bene fits of the transaction. It is equally well settled that, although the onus of establishing that a transaction is 'benami ' is on the plaintiff, 'where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable proba bilities and legal inferences arising from proved or admit ted facts. " The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by 'either side, i.e. on the evidence on record. As has been held by this Court Kalwa Devadattam and others vs The Union of India and oth ers(1) that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth or otherwise of the case must. always be adjudged on the evidence led by the parties. This will be so if the court finds that there is no difficulty in arriving at a definite, conclusion. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evi dence, be a reasonable probability and a legal inference from relevant and admissible evidence. The sale in question was admittedly made in December 1946. Defendant No. 2 had admitted in his statement date May 29, 1957 that he was born in 1928. He was therefore 18 years old at that time. His father (defendant No. 3) was also alive at that time, and it is not his case that he (defendant No. 2) had any money ' of his own, for he has stated that he got Rs. 10,000/ from his mother and Rs. 50,000/ from his grandfather to constitute the sum of Rs. 60,000/ for which he purchased the house. It is however a significant fact that the defendant No. 2 did not disclose any such source of the money in his written state ment dated April 15, 1955. It took ,him two years to come out with such a case. He was given an opportunity, during the course of his cross examination, to explain the omission regarding the disclosure of the source of the sum of Rs. 50,000/ in his written statement, but he contented himself by saying that he could not give "any reason as to why he (I) omitted to mention in the written statement about receipt of Rs. 50,000/ from ' his (my) grandfather". Similarly he failed to explain why he did not mention in his written statement that the cheque for Rs. 10,000/ was drawn by his mother. It is true that there is a mention in document exhibit D1 that out of the sum of Rs. 60,000/ "a sum of Rs. 10,000/ has already been paid to the vendor by the vendee by cheque No. 32920 dated November 14, 1946, on the New Bank of India Ltd., New Delhi," but it is again signifi cant that while the document states that the payment of Rs. 10,000/ was made by (1) ; 974 the vendee (defendant No. 2) 'by the aforesaid cheque, he has stated in the trial court that the cheque for Rs. 10,000/ was issued by his mother, in favour of the vendor. He was not able to explain the discrepancy: and merely stated that his written statement (which did not disclose the source and the name of the person who drew the cheque for Rs. 10,000/ ) was correct. If it had been a fact that defendant No. 2 really obtained a cheque for Rs. 10,000/ from his mother, in the vendor 's name, and, if it was not really a cheque drawn by his father, there was nothing to prevent him from establishing that f. act with reference to the counter foil of his mother 's cheque book or her account with the bank. The defendant has also not stated whether he repaid the money to his mother and, if so, when, or whether it was a gift to him and, if so, why, when she had another son also. As it is, it cannot be said that defendant No. 2 has been able to establish that it was he who paid the sum of Rs. 10,000/ to the vendor. According to the written statement of defendant No. 2, the balance of Rs. 50,000/ was paid before the Sub Regis trar. He has stated that about 7 or 8 days before his death, his grandfather Sohna Mal (who died in October 1946) paid him Rs. 50,000/ ' after taking. out the money which was "lying underneath his pillow. " He could not however stand the test of cross examination, for he could not state where the money was kept by his grandfather and whether, he at all had a bank account. The High Court did not care to examine the reliability of the defendant 's evidence regarding the source from which he received Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to all the other evidence on the record including the statement of Amar Nath Sharma D.W.3. We find that there is no reason for us to disagree with the trial court 's view in the matter, based on the parol evi dence on the record. In arriving at this conclusion, we have not relied on that part of the trial court 's judgment where it has made a reference to the admission of defendant No. 3, for we shall deal with them separately. The reason able preponderance of probability therefore is that defendant No. 2 has failed to establish the source of the consideration of Rs. 60,000/ even though it was art impor tant fact within his special knowledge. He could not therefore be said to be the real owner of the house. It is also an important fact that defendant No. 2 has failed, to prove that he enjoyed the benefit of the sale. He claimed that he had shown the rent of the house in his income tax returns, but he did not produce any rent note. Even the tenant who was 9aid to be living in the house on the date of the sale, has not been examined. While the trial court has examined this aspect of the controversy, the High Court has missed it altogether. The High Court went by the view that statement exhibit P. 1 of defendant No. 3, the income tax return of defendant No. 3 showing the house as his property, his statement of account and the assessment order for the year 1948 49 showing the same, were not admissible 975 in evidence against defendant No. 2 and that there was no evidence either of the plaintiff or the defendants on which a finding as to the "benami" nature Of the transaction could be based. That decision is obviously based on a misap preciation of the law relating to "benami" transactions for, as has been stated, it was necessary to find out whether it was defendant No. 3 who had enjoyed the benefit of the transaction. Moreover, the finding of the High Court is against the evidence on the record, and must be set aside. We have therefore no hesitation in holding that the purchase of the house was "benami" and that its ostensible owner defendant No. 2 was not the real owner but was a "benamidar. " The ancillary question is as to who was the real owner of the house for whom defendant No. 2 was the "benamider"?. We have not taken the admissions of defendant No. 3 into consideration so far, but they have a direct bearing on the question now before us. lie recorded a state ment exhibit P. 1 dated August 12, 1950 before Puran Chand P.W. 1, Income tax Officer, which has been proved by the wit ness. It has been stated there as follows, "I purchased 15 Keeling Road on 12.12.46 for Rs. 60,000/ in the name of my son (Major Krishan Lal). This money was paid out of my bank accounts and I have shown the details and payments from my bank pass books. " 0 Then there is document exhibit P. 6 which is a copy. of the personal account of defendant No. 3. It was filed in connection with the return of his income tax for 1947 48. An attempt was made to argue that the document had not been proved or marked as an exhibit. We have seen the original document and we have no doubt that the whole of it was tendered in evidence and was marked as exhibit P. 6. The identity of the document has been established by the state ment of Puran Chand P.W. 1 that the scribbling on it was made by him. The document has therefore been proved beyond doubt. It shows that it was defendant No. 3 who spent Rs. 60,000/ on "property" in that assessment year. Both exhib its P. 1 and P. 6 go to prove that the house was purchased by defendant No. 3 out of his own funds in the name of his son defendant No. 2 who, it will be recalled, was admittedly only 18 years old at that time and did not have any money of, his own. Moreover defendant No. 3 showed the income accruing from the house as his own income in his return for the years 1947 48 and 1948 49. Counsel for the respondents have urged for the exclusion of these admissions. The main attack was that they were admissions of a co defendant and were not admissible against defendant No. 2. As has been stated, we have not taken them into consideration as evi dence against that defendant. There is however no force in the other argument that they are not admissible in evidence against defendant No. 3 as he was not confronted with them in the, trial court and they were not adverse to the inter est of their maker at the time when they were made. It has 976 been held by this Court in Bharat Singh and another vs Bhagirath(1) that an admission is substantive evidence of the fact admitted, and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. " In taking.this view this Court has noticed the decision in Ajodhya Prasad Bhargava vs Bhawani Shanker Bhargava and another(2) also. The point has been considered and answered as follows in Wigmore on Evidence, Volume IV, 1048 (at page 3), "The theory of the Hearsay rule is that an extra judicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross examination by the party against whom it is offered (post, 1362); e.g. if Jones had said out of court. "The party opponent Smith borrowed this fifty dollars", Smith is entitled to an opportunity to cross examine Jones upon that assertion. But if it is ,Smith himself who said out of court, I borrowed this fifty. dollars, cer tainly Smith cannot complain of lack of opportunity to cross examine himself before his assertion is admitted against him. Such a request would be absurd. Hence the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz, the need and prudence of affording an opportunity of crossexamination. " Moreover, the defendant No.3 had full opportunity,. to appear and defend himself, but he did not do so and the case proceeded against him ex parte. The plaintiff even tried to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant. There is therefore force in the argument to the contrary. So also, there is no force in the argument that the aforesaid admissions or statements of defendant No. 3 could not be read against him as they were not adverse to his interest when made. There is no such requirement of the Evidence Act and the argument is untenable as it unreasona bly restricts the opportunity to prove the true state of affairs on the party 's own showing and to demolish his subsequent claim as self contradictory. This point has also been dealt with in Wigmore on Evidence, 1048 (at page 4) in this way, "It follows that the subject of an admission is not limited to facts against the party opponent 's interest at the time of making it. No doubt the weight of credit to be given to such statements is increased when the fact stated is against the person 's interest at the time; but that circumstance has no bearing upon their admissibility. On principle, it is plain that the probative reason why a party opponent 's utterance is sought to be used against him is ordinarily the reason noted above, in par. (1)b,. viz. that it exhibits (1) ; (2) A.I.R. 1957 All. 1. 977 an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was. at the time .speaking, apparently in his own favour or against his own interest. ' The contrary view, has been characterised by Wigmore as "a fallacy. in the fullest sense. " Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant No. 3 is that they could be evidence only in terms of section 33 of the Evidence Act. That argument is also quite untenable because section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act. The High Court also committed a similar error of law in its impugned judgment. The aforesaid admis sions of defendant No. 3 are therefore satisfactory evidence to prove.that he himself was the owner of the house and his son, defendant No. 2 was merely a "benamidar" for him. It would thus appear that the finding of the trial court on issue No. 1 which dealt with the question whether the house was purchased by defendant No. 3 "benami" in the name of defendant No. 2, was correct and should be restored as the High Court 's finding to the contrary has been viti ated by the substantial errors of law mentioned above. The other important question is whether the sale of the house in favour of the Company (defendant No. 1 ) was a sham transaction and was effected to defeat and delay the creditors of defendant No. 3. This was the subject matter of issue No. 2 and the trial court 's finding in affirmative has not even been examined by the High Court. We find that the admitted facts of the case are by themselves sufficient to show that the finding of the trial court is justified and does not call for any interference. Defendant No. 3 was assessed to income tax for a sum of Rs. 1,25,090/11/ for assessment year 1947 48 in March 1952. Defendant No. 3 failed to pay that amount on demand and a recovery certificate was issued on October 8, 1952. The house was therefore attached on October 13, 1952. Defendant No. 2 raised an objection, and prayed for the release of the house. The Collector rejected the objection on March 3,. No appeal, or other remedy was sought against .that order. The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment of income tax and ordered a fresh attachment by his order dated May 12, 1953. In the meantime, the Company was incorporated in February, 1953. The assessment of incometax for the years 1944 45 and 1948 49 was completed in March 1953 raising the tax demand to Rs. 1,94,735.15, and a recovery certificate was issued on May 4, 1953. It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, has tened to sell it to the Company 22 on May 25, 1953. As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953. These facts speak for themselves and are quite sufficient to justify the trial court 's finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the income tax. The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash. It is also significant that the shares of the other 'relations were insignificant. Moreover the. Company could not lead evidence to show that it was able to transact any substantial business whatsoever. We have therefore no reason to disagree with the trial court 's finding that the Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of defendant No. 3. The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy. In the result, we are constrained to allow the appeals. The impugned judgment and decree of the High Court dated February 14. 1967 are set aside and the decree of the trial court is restored with costs throughout one hearing fee. V.P.S. Appeals allowed.	The appellant (plaintiff) filed a suit on behalf of and for the benefit of itself and of other creditors against the respondents (3 defendants) and prayed for a declaration that,, (1) the sale deed of the house in dispute by the 2nd defendant in favour of the 1st defendant was void as against the plaintiff and all other creditors of the 3rd defendant; and (2) that the house was and continued to be owned by the 3rd defendant. The house was sold in the name of the 2nd defendant for Rs. 69,000. He is the son of the 3rd defend ant who was alleged to be the real purchaser. As the 3rd defendant failed to pay the arrears of income tax due from him the house was attached as his property. The 2nd defendant raised an objection but the objection was reject ed. The 3rd defendant filed an appeal against the assess ment of income tax and while the appeal was pending before the Appellate Assistant Commissioner, the 2nd and 3rd de fendants, and five other persons formed a limited company, namely, the 1st defendant. The Appellate Assistant Commis sioner allowed the 3rd defendant 's appeal and ordered a fresh assessment of his income, and the Income Tax Officer made a fresh assessment. Soon after the 2nd defendant purported to convey the house of the 1st defendant for Rs. 1,00,000 of which Rs. 90,000/ were payable to the 2nd de fendant in the shape of shares in the company. The house was again attached for recovery of the tax due from the 3rd defendant. The 1st defendant objected to that attachment. The objection was allowed and the parties were referred to the Civil Court for. redress and the suit was filed. The trial court decreed the suit, but the High Court, in appeal, set aside the judgment. Allowing the appeal to this Court, HELD: The evidence disclosed that the 3rd defendant 'was the owner of the house, and his son, the 2nd defendant, was merely a benamidar for him; and that the 1st defendant Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of the 3rd defendant. [978 A C] (a) In a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, it is necessary to find out the source whence the consideration came, and to examine who actually was enjoying the benefits of the transfer. [907 F G] Gangadara Ayyar and others vs Subramania Sastrigal and others (A,I.R. referred to Meenakshi Mills, Madurai vs The Commissioner of In come tax, Madras [(1956) S.C.R. 691] followed. (b) Although the. onus of establishing. g that a transaction is benami is on the plaintiff, where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation. , .the case must be dealt with on reasonable probabilities and legal inferences arising from proved. or admitted facts. While the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side. Thus, the burden of proof is not static, and may shift during the course of the trial Where the 968 entire evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, and the truth or otherwise of the case must always be. adjudged on the evidence: led by the parties. It is therefore necessary to weigh the evidence in this case and to decide whether. even if it were assumed that there was nO conclusive evidence to establish or rebut the benami allegation, what would, on a careful assessment of the evidence, be a reasonable. probability and a legal inference from relevant and admissible evidence. [973 A D] Kalwa Devadattam and two Others vs The Union of India and others ; followed. In the present case, the 2nd defendant, at the time of the sale, was just 18 years old, and did not have any money of his own. His father the. 3rd defendant was alive. The High Court did not examine the reliability of the 2nd defendant 's evidence regarding the source. from which he received the sum of Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to the entire evidence on record. The rea sonable preponderance of probability on the evidence is, that the 2nd defendant had failed to establish the source of the consideration of Rs. 60,000/ even though it was an important fact within his special knowledge. [973 E H] (d) The 2nd defendant had also failed to prove that he enjoyed the benefit of the sale. [974 G] In order to find out whether the 3rd defendant was enjoying the benefit of the transaction, the finding of the High Court was clearly against the evidence on record. The admissions contained in the records before the Income Tax Officer proved that the house was purchased by the 3rd defendant out of his own funds in the name, of his son, the 2nd defendant, and that the 3rd defendant was enjoying the income accruing from. it as his own income. [975 E F] (f)(i) The admissions by the 3rd defendant were substan tive evidence of the facts admitted and such admissions, duly proved, were admissible evidence irrespective of wheth er the party making them appeared in the witness box or not, and whether that party when appearing as a witness was confronted with those statements in case a statement con trary to those admissions was made. They were taken into consideration against the 3rd defendant and not against the 2nd defendant. [975 H, 976 A B] Bharat Singh and another vs Bhagirath ; , followed. (ii) There is no requirement of the Evidence Act that unless the admissions were adverse to his interests when made, they could not be read against the person making them. [976 F] (iii) The contention that the evidence of the admissions is admissible only in terms of section 33 of the Evidence Act was untenable because that section deals with statements of persons who cannot be called as witnesses and does not restrict or override the provisions relating to admissions in the Evidence Act. [977 A C] (g) The 2nd defendant, who had failed to obtain an order for the release of the house from attachment when it was first attached, hastened to sell the house when the assess ment proceedings were pending before the Income tax De partment. The 1st defendant Company was in fact dominated by the 3rd defendant and his close relations, it did not even pay the sale price. in cash, and there was no evidence ' to show that it was able to transact any substantial busi ness. Therefore, the sale of the house in favour of the 1st defendant was a sham transaction and was effected only to defeat and delay the creditors of the 3rd defendant. [978 A B]
Civil Misc. Petitions Nos. 20021 22 of 1986. in Civil Appeal No. 2924 of 1984. From the Judgment and order dated 22.7.1983 of the Delhi High Court in W.P. No. 963 of 1982. S.N. Kacker, P.M. Amin, Atul, B. Munim and Ashok Grover for the Applicant. A.K. Ganguli, Miss Sushma Relan and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These two Civil Misc. Petitions are by Star Diamond Company India. The applicant has referred to the judgments of this Court in Raj Prakash 's case dated 5th March, 1986 and Indo Afghan Chamber of Commerce 's case ; dated 15th May, 1986. The applicant states that the applicant was neither a party nor was served with any notice of the said proceedings resulting in the. said two decisions. According to the applicant, it was not bound by the directions therein. We are unable to accept the said contentions. Such decisions of Court laying down the position in law are laws binding on all. In the order of this Court dated 18th April, 1985, the question of 783 entitlement under certain circumstances came up for consideration. The Government had wrongfully refused to allow Export House Certificates to those who had not diversified their exports. It was held by this Court following the decisions of several High Courts that this was wrong. This Court in the order dated 18th April, 1985 in Civil Appeal No. 1423 of 1984, (a) confirmed the orders of the High Court, quashed the impugned orders of the Government and directed the Government to issue necessary Export House Certificates for the year 1978 79; (b) It was further directed that Export House Certificates should be granted within three months from this date. (c) Save and except items which are 'specifically banned under the prevalent import policy at the time of import ', the parties the merchants would be entitled to import all other items whether canalised or uncanalised, and in accordance with the relevant rules. Both canalised and uncanalised items could be imported in accordance with the relevant rules except those which were specifically banned under the prevalent import policy at the time of import. The effect of this direction came to be considered in Raj Prakash Chemicals Ltd. vs Union of India (supra). We have this date explained the effect of the same in Union of India vs M/s Godrej Soaps Pvt. Ltd & Anr., (Civil Appeal No. 3418/86 arising out of SLP (Civil) No. 8144 of 1986). This question further came up for examination in the case of M/s Indo Afghan Chamber of Commerce & Ors. vs Union of India, (Writ Petition No. 199 of 1986) (supra). This day we have also in the judgment in M/s Godrej Soap 's case explained the true purport of the said decision. The respondents have not permitted, according to the applicant clearance of the goods in view of the said two decisions referred to hereinbefore. The case of the applicant is that it is not bound as the applicant was neither a party to any of the aforesaid proceedings nor any notice was given. We are unable to accept this position. For what we held in the said two decisions, we crave leave to refer to the said two decisions. We reiterate as we have mentioned in M/s Godrej Soaps ' case whether importation of canalised items would be covered by the order was not adverted to in the first order dated 18th April, 1985. Use of the expression "whether canalised or not" was intended to convey that both canalised and non canalised items would be covered within the ambit of the order. The position has been clarified by the letter dated 18th June, 1986 written by the respondent which appears at page 132 of the Paper 784 Book. It has been mentioned that the holders of additional licence issued for 1978 79 would be entitled to import only those goods which are included in Appendix 6 Part 11 of AM 85 88. The fact that the Additional Secretary to the Government of India, Ministry of Finance (Department of Revenue) on 23rd April, 1986 wrote a letter which is not in consonance with the subsequent direction would not in any way affect the position or create any estoppel. Nor can such a letter be used as an argument that that was the government 's understanding of the matter. That is irrelevant. In the premises the interim order prayed for in these applications is refused. The applications are thus disposed of. There will be no order as to costs.	This Court by its order dated 18th April 1985 in Union of India vs Rajnikant Bros. (Civil Appeal No. 1423 of 1984) directed that save and except items which were specifically banned under the prevalent Import Policy at the time of import, parties would be entitled to import all other items whether 'canalised ' or 'uncanalised ' and in accordance with the relevant rules. The effect of this direction came to be considered in Raj Prakash Chemicals Ltd. vs Union of India, , and M/s. Indo Afghan Chamber of Commerce & Ors. vs Union of India, (AIR The effect has also been explained in Union of India vs M/s. Godrej Soaps Pvt. Ltd., (S.L.P.No. 8144 of 1986). The applicant was neither a party nor was served with any notice of the aforesaid proceedings. The respondents having not permitted clearance of its goods in view of the decisions in Prakash 's case and Indo Afghan Chamber of Commerce 's case the applicant filed petitions contending that it was not bound by the directions contained therein. Disposing of the petitions, the Court, ^ HELD: Decisions of this Court laying down the position in law, are laws binding on all. [782 G] 782 Whether importation of canalised items would be covered by the order was not adverted to in the first order dated 18th April, 1985. Use of the expression "Whether canalised or not" was intended to convey that both canalised and non canalised items would be covered within the ambit of the order. [783 G] The position has been clarified by the respondent 's letter dated June 18, 1986. The Government of India 's letter dated April 23, 1986 which is not in consonance with the subsequent direction, would not in any way affect the position or create any estoppel. Nor can such a letter be used as an argument that that was the Government 's understanding of the matter. [783 H: 784 A B]
Reportable Criminal Appeal Nos 590-591 of 2021 @ SLP (Crl) Nos. 4998 -4999 of 20 21 Somesh Chaurasia .... Appellant Versus State of M.P. & Anr. .... Respondents Dr Dhananjaya Y Chandrachud, J 1 This appeal arises from an order by a Division Bench of the High Court of Madhya Pradesh dated 23 July 2019. The High Court declined to entertain two applications – IA 6837 of 2019 filed by the State of Madhya Pradesh and IA 5781 of 2019 f iled by the appellant - seeking a revocation of the suspension of sentence and bail granted to the second respondent . 2 The second respondent has been convicted of an offence punishable under Section 302 of the Indian Penal Code (“IPC ”) and sentenced to suffer imprisonment for life. By an order dated 3 February 2016, the High Court directed that the sentence shall , during t he pendency of the appeal , remain suspended under the provisions of Section 389 (1) of the Code of Criminal Procedure 1973 (“ CrPC ”). 3 Two applications were moved before the Division Bench of the High Court (IA 6837 of 2019 and IA 5781 of 2019) for cancellation of bail and revocation of the order dated 3 February 2016 suspending the sentence of the second respondent. These applications for bail were filed by the appellant and by the State of Madhya Pradesh. The appellant sought cancellation of bail on the ground that after the sentence was suspended, FIR No 143 of 2019 was registered against the second respondent at Police Station Hata , District , Damoh, in which he is implicated in the murder of the appellant’s father. The State of Madhya Pradesh sought cancellation of bail on the ground that : (i) The second respondent has two other convictions against him on a charge of murder; (ii) The second respondent has been convicted of another crime for offences punishable under Section 399 and 402 of the IPC and Section 25 (1) (1B)(a) of the Arms Act; and (iii) An FIR has been registered at the behest of the appellant alleging that the second respondent is involved in the murder of his father during the period when he was on bail . 4 The application for cancellation of bail which was moved by the State of Madhya Pradesh sets out the criminal antecedents of the second respondent . Paragraph 8 reads as follows: “8. At this stage, it would be relevant to detail the three convictions suffered by the appellant. The same are detailed hereunder: (a) It is submitted that in the first crime, the appellant committed the murder of the deceased Rajendra Pathak on 13.10.1998 who was going on his scooter and was confronted by the appellant and co- accused Chandu Thakur who were coming on a motorcycle from the opposite direction. At the relevant point of time the appellant Govind Singh fired through Katta on the deceased Rajendra Pathak which hit the deceased on his chest. After receiving the said shot the deceased ran to save his life and on noticing the same co-accused Chandu Thakur fired a shot which hit the deceased on his back. The deceased Rajendra Pathak succumbed to the said injuries. Based on the said incident, session trial was instituted and appellant was convicted for the murder of Rajendra Pathak and sentenced to life imprisonment by judgment dated 30.09.2008. It is thereafter Cr.A No.2353/2008 was filed by the appellant before this Hon’ble Court. It is a lso relevant to mention herein that the similarity of the present case with a case relating to deceased Rajendra Pathak is that the deceased in the present case Pappu @Ramakant Pathak and Kailash Pathak were all belonging to the same family. (b) It is sub mitted that in the second crime, the appellant along with others committed the murder of Munna Vishwakarma. Based on the said incident, Sessions Trial No. 113/2005 was instituted and the appellant was convicted for the murder of Munna vide Judgment dated 27.10.2015. It is thereafter, Criminal Appeal No. 3108/2015 was filed by the appellant before this Hon’ble Court. (c) To put it differently, it can thus be seen that the appellant committed two crimes punishable under Section 302 IPC on the same date i.e. 11.5.2004 viz. the present case in which Ramakant Pathak and Kailash Pathak were killed and Munna Vishwakarma in respect to which Criminal Appeal No. 3108/2015 is pending. (d) It would also be relevant to mention herein that the appellant committed another crime for offences punishable under Section 399 and 402 of the Indian Penal Code and Section 25 (1) (1B)(a) of the Arms Act. In the said case too, the appellant was convicted and thereafter filed a Criminal Appeal No. 1984 /2011, in which case also his sentence was suspended. It is thus clear that the appellant has been a serious threat to the society and that has been continuously committing criminal offences.” Paragraph 10 contains a reference to the FIR lodged on 15 March 2019 at the behest of the appellant alleging that the second respondent has committed the murder of his father: “10 It is also relevant to mention herein that after grant of bail in the said criminal appeals, the appellant has again committed murder of one Devendra Chaurasiva on 15.03.2019 and an F.I.R. to that respect has been registered against the appellant on 15.03.2019 itself for offences punishable U/s 294. 323, 324, 307, 147, 148, 149, 506 of I.P.C. Pertinently, since the deceased died after registration of F.I.R., offence U/s 302 has been added in the present crime. Copy of the F .I.R dated 15.03.2019 bearing crime No. 143/2019 is filed herewith as ANNEXURE -R/1.” 5 By its order dated 23 July 2019, the High Court declined to entertain the application for revocation of the suspension of sentence/ grant of bail. The grounds which weighed with the High Court appear in the following extract : “…we are of the considered opinion that I.A.No.6837/2019 & I.A.No.5781/2019 can be disposed of as per the statement made at bar by Shri Aj ay Gupta, Additional Advocate General for the State that the State Government is further investigating the issue on an application filed on behalf of appellant Govind Singh inter alia stating that he has been falsely implicated. We, therefore, direct that the investigation may be completed as far as possible within three months but not later than 90 days. On completion of the investigation, if the appellant is found involved in commission of the crime, he be immediately taken into custody and the procedure as prescribed be followed. It is also observed that neither appellant Govind Singh shall threaten nor influence the witnesses and the complainant side.” 6 After notice was issued in these proceedings on 18 November 2020, counsel for the State of Madhya Pradesh was granted an adjournment on 11 January 2021 to file a counter affidavit. In the meantime, on 12 February 2021 , counse l for the appellant apprised this Court of the fact that on 8 January 2021, the Additional Session s Judge (“ASJ”) at Aurangabad, issued summons to the second respondent under Section 319 of the CrPC in the course of the sessions trial arising out of the charge sheet filed in FIR 143 of 2019. The Court was apprised that though a warrant of arrest has been issued against the s econd respondent , he was resisting arrest. The order of the ASJ summoning the second respondent to stand trial has been placed on the record. 7 Subsequently, when the proceedings were listed before this Court on 12 March 2021, the Court took note of an order dated 8 January 2021 passed by the ASJ, Hata District , Damoh in Sessions Trial No 30 of 2019 ( Addl. No. 143 of 2019) . 8 The order dated 8 January 2021 passed by the ASJ specifically refers to the criminal record of the second respondent, and is extracted below : “Details of criminal records of accused Govind Singh are accordingly: - PS-Damoh Dehat S.No. Crime Case No. Under Sections 1. 150/93 147, 148, 149, 302, 34 of IPC. 2. 173/94 393, 365, 34 of IPC. 3. 169/04 395, 396, 397, of IPC. 4. 170/04 147, 148, 149, 302, 324 of IPC, and under section 3/5 and under section 25/27 Arms Act. 5. 414/06 399, 402 of IPC, and under section 25/27 Arms Act. 6. 68/07 364, 34 of IPC. 7. 390/07 384 of IPC. 8. S.No. 01/10 Under section 3(2) of the MP Protection Act, 1980. 9. S.No. 02/19 Under section 3(2) of the MP Protection Act, 1980. 10. S.No. 08/19 Under section 110 Jaa.fau. 11. S.No. 160/19 Under section 107, 116 (3) Jaa.fau. 12. 203/95 396, 386, 365 of IPC. 13. 241/96 384, 34 of IPC. 14. 44/99 384 of IPC. 15. 168/2000 341, 294, 506B, 34 of IPC. 16. 80/04 307, 34 of IPC. 17. 171/04 394 of IPC. 18. S.No. 01/13 Under section 6 of the MP Protection Act, 1980. 19. S.No. 01/19 Under section 3(2) of the MP Protection Act, 1980. 20. S.No. 07/19 Under section 110 jaa faa. 21. S.No. 159/19 Under section 107, 116(3) jaa faa. PS-Patharia, Damoh 22. 56/92 294, 323, 34 of IPC, under section 3(1 -10) SC ST Act. 23. 93/92 436, 34 of IPC, under section 24. 31/10 147, 341, 307, 506 of IPC. 25. 157/93 295, 397 of IPC. 26. 169/90 294, 506, 427 of IPC. PS-Kotwali Damoh 27. 578/98 307, 302, 34, 120 of IPC and Arms Act. 28. 214/16 147, 452, 294, 506, 34 of IPC.” The ASJ provided reasons in his order for taking steps in pursuance of the provisions of Section 319 of CrPC to arraign the second respondent as an accused. 9 Thereafter, in his order dated 8 February 2021, the ASJ noted that though he was taking action in compliance with the directions of this Court for ensur ing service on the second respondent, the process of the court was being obstructed. The ASJ expressed a serious apprehension that the accused and the Superintendent of Police (“SP”), Damoh had colluded with the subordinates of the lat ter “to frame serious charges” against the judge. T he accused, the trial judge noted, is a “ highly influential political person” and though false allegations had been made against the judge for transfer of the case, the application for transfer had been dismissed by the District Judge. The relevant extract from the order dated 8 February 2021 reads as follows: “The action in this case is being taken in compliance with the directions given by Hon. Supreme Court expeditiously. But accused persons are highly influential political persons and have raised false allegations against me and made application for transfer of case before Hon. District Judge which was found false and Hon. District Judge had dismissed the application with cost and being contemptuous. But like accused persons, now Police Superintendent Damoh had connived with his subordinates and made false and fabricated pressure on me. From the above such acts it is clear and I am confident that accused persons with Police Superintendent Damoh had colluded with his subordinates to frame serious charges against me in future or any unpleasant incident can be done with me.” 10 Adverting to these developments, this Court took serious note of the a nguish expressed by the ASJ on 8 February 2021 and noted in its order dated 12 March 2021 that : “8. The order of the learned Additional Sessions Judge dated 8 February 2021 indicates that he is being pressurized by the Superintendent of Police, Damoh, who, together with his subordinates, is attempting to pressurize the judicial officer. The judicial officer has expressed the apprehension that the accused who are “highly influential politi cal persons” have raised false allegations against him and applied for transfer of the pending case which was dismissed by the District Judge after it was found to be false. The learned Additional Sessions Judge has apprehended that he may be subjected to an “unpleasant incident” in the future.” 11 The order of this Court dated 12 March 2021 took note of the fact that : (i) Despite the registration of an FIR on 15 March 2019 where the appellant had alleged that the second respondent was complicit in the murder of his father no steps were being taken by the investigating authorities to arrest him; (ii) In this backdrop, it was the ASJ who was constrained to issue summons to the second respondent under Section 319 of the CrPC to face trial; (iii) Despite the issuance of warrants against him , the second respondent continued to abscond; and (iv) It had been stated during the course of the proceedings that the spouse of the second respondent is an MLA and “all possible steps are, therefore, being adopted to shield the second respondent from the coercive arm of the law”. Taking note of the apprehension express ed by the ASJ that he was being targeted, this Court observed: “10. We take serious note of the manner in which the Additional Sessions Judge, Hata who is in charge of the criminal case has been harassed by the law enforcement machinery in Damoh. We have no reason to disbelieve a judicial officer who has made an impas sioned plea that he was being pressurized as a result of his orders under Section 319 of the CrPC. The State which had moved the High Court for cancellation of the bail which was granted to the second respondent as an incident of the suspension of sentence on 3 February 2016, has failed to apprehend the second respondent who continues to evade arrest. A warrant of arrest was issued against the second respondent. Mr Saurabh Mishra, Additional Advocate General appearing for the State, states that a proclamati on has been issued against the second respondent under Section 82 of the CrPC on 4 March 2021 with an award of Rs 10,000. Yet the second respondent continues to evade arrest. The rule of law must be preserved. ” 12 In this back drop, the Director General of Police (“DGP ”) of Madhya Pradesh was directed “to immediately ensure the arrest of the second respondent and report compliance by filing a personal affidavit in this Court”. The DGP was also directed to enquire into the allegations levelled by the second respondent against the SP by the ASJ in his order dated 8 February 2021. 13 Notice was issued to the SP, Damoh. 14 In pursuance of the order dated 12 March 2021, the DGP filed an affidavit stating that despite efforts to secure the presence of the second responden t, the police were unable to apprehend and arrest him. T he affidavit provided the following details: (i) After the ASJ by his order dated 8 January 2021, arraigned the second respondent as an accused, an arrest warrant was issued against him. Steps were taken by the Damoh Police to arrest the second respondent from 8 January 2021. H owever , the second respondent was absconding and evading arrest. As a result, an award of Rs. 10,000 was announced for giving information on the whereabouts of the accused; (ii) The DGP directed the formation of a “special team” under the Additional Superintendent of Police (“ASP”), Damoh, to arrest the second respondent to comply with this Court’s order dated 12 March 2021. The Special Task Force, Bhopal (“STF ”) was also tasked to apprehend the accused. The affidavit details the steps taken by Damoh police and the STF; (iii) Provision of security was made for the ASJ Hata; and (iv) An e nquiry into the allegations levelled by the ASJ against the SP in his order dated 8 February 2021 was entrusted to the A dditional Director General of Police (“ADGP ”), STF, Police headquarters, Bhopal . 15 Finding the explanation provided by the DGP for the failure of the police to arrest the second respondent to be unacceptable, this Court in its order dated 26 March 2021 observed: “2 We find the affidavit of the Director General of Police to be completely unacceptable. It defies reason as to how an accused who is the spouse of a sitting Member of the Legislative Assembly has not been arrested despite be ing arraigned in pursuance of the provisions of Section 319 of the Code of Criminal Procedure 1973 to face trial for an offence under Section 302 of the Indian Penal Code 1860. An effort is being made to shield the accused from the due process of criminal law. The Court was informed that earlier, the accused was even given security by the police though it is stated by Counsel for the State that it is now withdrawn.” 16 Accordingly, the DGP was directed to ensure that the previous order of this Court dated 12 March 2021 is complied with , failing which this Court would be constrained to take coercive steps in accordance with law. A t that stage, this Court was also apprised by counsel for the appellant that though the second respondent had been summoned under Section 319 of the CrPC to face trial for an offence punishable under Section 302, he continued to abscond. On the other hand, security had been provided to him by the State of Madhya Pradesh. Accordingly, a further affidavit was directed to be filed by t he DGP stating: (i) The date on which and the cause on the basis of which security was granted to the accused; (ii) Whether the security continues to be provided as on date; and (iii) If the answer to (ii) above is in the negative, the date on which the security was withdrawn. 17 A further affidavit dated 3 April 2021 was filed by the DGP in compliance with this Court’s order dated 26 March 2021 explaining that: (i) Pursuant to the steps taken by the Damoh Police and the STF, the second respondent was arrested from a bus stand in Bhind District on 28 March 2021. The second respondent was presently in the judicial custody at Sub- Jail, Hata District, Damoh; and (ii) The SP had recommended grant of security to the second respondent in view of his enmity with several persons and his political background. On the basis of the recommendation, the second respondent was provided security of one officer on 11 July 2020. This was ratified by State Security Committee on 25 September 2020. The security was withdrawn on 9 January 2021. 18 On 6 April 2021, another affidavit was filed by the DGP detailing the reasons for grant of security to the second respondent. The affidavit stated that: (i) Smt. Rambai Govin d Singh, who is an MLA , made an application dated 3 July 2020 for providing security to her spouse (the second respondent ) “on the basis of his political background and enmity with several persons ”; (ii) A security officer was detailed to the second respondent on 11 July (iii) A threat assessment report was sought from the SP who recommended grant of security on 24 September 2020. The recommendation of the SP was ratified by the S tate Security Committee on 25 September 2020; (iv) Thereafter, a final order for grant of security was passed on 7 October 2020; and (v) The ASP by an order dated 10 January 2021 direct ed the removal of the security provided to the second respondent on the issuance of a warrant of arrest by the ASJ on 8 January 2021. 19 Mr Varun Thakur, learned counsel appearing on behalf of the appellant has, during the course of his submissions, outlined the basis on which cancellation of bail granted pursuant to the order suspending sentence is sought. Learned counsel urged that the second respondent has been implicated in a serious offence punishable under section 302 of the Penal Code after he was enlarged on bail. It has been urged that the sequence of events indicates that despite the order under Section 319 of the CrPC, the second respondent evaded the due course of law despite a warrant against him and a proclamation. It has been submitted t hat the investigating authorities were complicit in this and continued to protect the second respondent whose spouse is an MLA. Despite the order of this court, the DGP reported initially that the second respondent could not be apprehended. The state had provided security to him despite the conviction of an offence under Section 302. The order of the ASJ is a clear indicator of the police attempting to pressurize the trial judge. Hence a cancellation of bail is warranted. 20 These submissions have been contested on behalf of the State and its authorities by Mr Saurabh Mishra, learned A dditional Advocate General . Mr Mishra submitted that the following sequence of events may be borne in mind: (i) 15 March 2019 – an FIR was registered against certain accused including the second respondent; (ii) 13 June 2019 – a chargesheet was submitted to the competent court. Though, the second respondent was named as an accused in the FIR , the charge sheet did not name the second respondent as further investigation was pending a gainst him under Section 173(8) of the CrPC; (iii) 23 July 2019 – the impugned order was passed by the High Court; (iv) 7 September 2019 – a closure report was submitted before the competent court absolving the second respondent ; (v) 24 March 2020 – a new government was formed in the State of MP following a floor test in the legislative assembly on 18 March 2020; and (vi) 8 January 2021 – an application was filed by the appellant under Section 319 of the CrPC for the issuance of summons to the second respondent to face trial. The State did not oppose the application. It was urged on behalf of the State that there is no substance in the charge of collusion since as a matter of fact, the State had not opposed the application under Section 319 of the CrPC . 21 The second limb of the submission is that pursuant to the directions issued by this Court on 12 March 2021, an enquiry was conducted by the ADGP and STF, Bhopal . The ADGP in his report dated 22 March 2021 to the DGP stated that no substance was found in the observations of the ASJ in his order dated 8 February 2021. The conc lusions in the enquiry indicate: “24. Upon analyzing the whole incident the following conclusions are drawn : (a) Ms. Bhawna Dangi, SDOP, had joined her new posting, 6 days prior to appearance before Hon'ble Court and it was her first field posting. (b) Ms. Bhawna Dangi, SDOP informed the incident with her self in the court to her senior officers. (c) Superintendent of Police, Damoh, immediately apprised of the inciden t happened with Ms. Bhawna Dangi to the senior most Judge of the District i.e. Hon'ble District and Session Judge, Damoh on 06.02.21. (d) For coordination at the district level between judiciary and executive, the District and Additional Session Judge and Superintendent of Police remain in touch. Under the same protocol, the Superintendent of Police informed about the incident to the District and Session Judge. (e) During the enquiry, the Hon'ble Additional Session Judge, Hata and both the JMFC, Hata were contacted but they showed their inability to give any statement unless permitted by the Hon'ble High Court of Jabalpur. In this context on 17.03.21 an application was filed before the Hon'ble Registrar General, Madhya Pradesh High Court, Jabalpur. (f) The application dated 12.02.21 filed by Ms. Bhawna Dangi is pending in the office of Hon'ble Registrar General, Madhya Pradesh High Court, Jabalpur and only after its inquiry any comment can be given on the application filed by SOOP, Dangi. 25. It is prov ed from the facts came in inquiry that the Superintendent of Police has endorsed the grievance of his subordinate to his senior officers which is a part of his duty. No evidence of Superintendent of Police intention in connivance with accuseds to level fal se charges is found out. ” Based on the above report, it has been submitted that the SDOP had joined at her new place of posting on 31 January 2021. On 6 February 2021, she appeared before the ASJ and explained the efforts which were made to arrest the second respondent. It is alleged that the ASJ was not satisfied with the explanation and had made her stand in the court for over four hours and had insulted her. The SDOP had expressed her desire to the ASP to resign from service. This incident was narrate d by the A SP to the JMFC, Hata who has attempted to sort out the matter. Subsequently, the SDOP had submitted a complaint to the High Court and had met the Registrar General on 12 February 2021. The order dated 8 February 2021 was made known for the first time when it was published in the newspaper s on 20 February 2021. 22 In this context, it has been submitted that the enquiry against the SP has been conducted in pursuance of the orders of this Court and no substance has been found in the allegations leveled by the judicial officer. 23 The report of the ADGP states that though the ASP had denied communicat ing to the JMFC that, “it is an order of the … Superintendent of Police that the Magistrate … of Hata should be informed that SDOP Dangi is disturbed, she is resigning, Sonkar Sahab to show some leniency ”, he had communicated with the JMFC “to maintain better coordination between the Hon’ble Court and the Executive” on his own accord. The relevant extract of the report is as follows: “21. In this entir e incident, the Additional Superintendent of Police, Damoh communicated with the Hon’ble JMFC’s, Hata to maintain the better coordination between the Hon’ble Court and the Executive. During his statement, Addl. Superintendent of Police admitted some commen ts mentioned in the order sheet and denied some other comments. In his statement, the Additional Superintendent of Police, absolutely denied some references came in between the Hon’ble JM FC, Hata about the Superintendent of Police, Damoh. He further states that Superintendent of Police, Damoh didn’t instruct him to communicate with JMFC, Hata. He had discussed the matter with both the Hon’ble JMFCs’ on his own to maintain better coordinatio n between the parties.” 24 Mr Sidharth Luthra, learned senior counsel appearing on behalf of the SP submitted that on 6 February 2021, the SDOP had made a complai nt about being humiliated by the judicial officer in court and the SP had informed the District and Sessions Judge about the incident on the same date. On 7 February 2021, the Registrar General of the High Court was informed on phone. On 8 February 2021, the ASJ passed an order expressing his apprehension that he was being targeted in the di scharge of his duties. H owever , on the same day, the ASJ addressed a communication to the SP making no such allegations. On 12 February 2021, the Registrar General of the High Court was furnished with the application of the SDOP and met her. The order dated 8 February 2021, it has been submitted, was published in the newspapers on 20 February 2021. In this backdrop, Mr Luthra urged that there is no substance in the allegation which have been leveled against the SP . 25 Mr Shakeel Ahmed, learned Counsel appearing on behalf of the second respondent has submitted that no adverse order may be passed against the second respondent. At this stage, it may be necessary to note that an application for bail was moved before this Court on behalf of the second respondent in IA No 50800 of 2021 in SLP (Crl) Diary No 21783 of 2020. On 1 June 2021, the following order was passed by this Court: “1 After arguing the application for bail, the lear ned counsel appearing on behalf of the applicant (the second respondent in the Special Leave Petitions) seeks the permission of the Court to withdraw the application for bail. 2 The application for bail is accordingly dismissed as withdrawn.” The IA was accordingly dismissed as withdrawn. 26 Before we deal with the rival contentions, it is necessary at the outset to advert to the correctness of the o rder passed by the High Court on 23 July 2019. FIR No 143 of 2019 was registered on 15 March 2019 for offences under Sections 294, 323, 324, 307, 147, 148, 149 and 506 of the IPC against several accused including the second respondent. It was alleged in the FIR that the accused had assaulted the victim , Devendra Chaurasia, by rods and sticks. The injured victim having succumbed to his injuries, an offence under Section 302 was added. Among other accused, the FIR named the second respondent . On 13 June 2019, a charge sheet was filed before the competent court , which did not name the second respondent . Investigation under Section 173(8) of the CrPC was kept pending against the second respondent. 27 In another case, the second respondent was convicted under Section 302 by the Sessions Court on 27 October 2015 against which he had filed Criminal Appeal No 3107 of 2015 before the High Court. During the pendency of the appeal , the sentence was suspended on 3 February 2016. In view of the allegation that the second respondent had committed offence of murder when his sentence was suspended, the State government fil ed an application before the High Court for the revocation of the order suspending the sentence/ granting bail to the second respondent . Another application was filed by the appellant. The High Court disposed of the two applications by noting the statement s of the A dditional Advocate General that the State government is further investigating the application filed by the second respondent stating that he has been falsely implicated. The High Court directed that the investigation may be completed as far as possible within three months but not later, and if upon investigation the second respondent is involved in the commission of the crime, he should be taken i nto custody immediately and "the procedure as prescribed be followed” . 28 On 7 September 2019, the police filed a closure report in relation to the second respondent before the competent court in FIR No 143 of 2019 dated 15 March 2019. An application under Section 319 of the CrPC was filed before the ASJ for summoning the s econd respondent . By an order dated 8 January 2021, the application was allowed and the second respondent was arraigned as an accused. A warrant of arrest was issued against the second respondent. Despite the issuance of the warrant of arrest and a proclamation, the second respondent was not arrested. The order of this Court dated 12 March 2021 speaks for itself. 29 The High Court by its impugned order dated 23 July 2019 allowed the second respondent , who allegedly committed murder during the period when his sentence was suspended, to continue on bail until his claim that he was being falsely implicated was first investigated in ninety days . In adopting such a procedure, the High Court has clearly transgressed into an unusual domain. The High Court has in effect stultified the administration of criminal justice. 30 Section 389 (1)1 of the CrPC allows the court to release a convicted person on bail. The second proviso to Section 389 (1) of CrPC provides that where a convicted person has been released on bail, it is open to the public prosecutor to file an application for the cancellation of bail. However, the grant of bail post -conviction is governed by well-defined procedures and parameters. The factors that govern the grant of suspension of sentence under Section 389 (1) have been discussed by this 1 “Section 389. Suspension of sentence pending the appeal; release of Appellant on bail. --(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. ” Court (speaking through Justice Kurian Joseph) in Atul Tripathi vs. State of U.P.2 in the following terms: “It may be seen that there is a marked difference between the procedure for consideration of bail u nder Section 439, which is pre conviction stage and Section 389 Code of Criminal Procedure, which is post -conviction stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless impractical be given before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life; whereas in the case of post -conviction bail u nder Section 389 Code of Criminal Procedure, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the public prosecutor for showing cause in writing against such release. 15. Service of a copy of the appeal and application for bail on the public prosecutor by the Appellant will not satisfy the requirement of first proviso to Section 389 Code of Criminal Procedure. The appellate court may even without hearing the public prosecutor, decline to grant bail. However, in case the appellate court is inclined to consider the release of the convict on bail, the public prosecutor shall be granted an opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent provision is introduced only t o ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of t he convict, impact on public confidence in the justice delivery system, etc. Despite such an opportunity being granted to the public prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objecti on in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post conviction stage.” 31 This Court in Ramji Prasad vs. Rattan Kumar Jais wal and Anr.3 has observed that in cases involving conviction under Section 302 of the IPC, the sentence should be suspended only in exceptional cases. 32 In Masood Ali Khan vs. State of U.P. and Ors .4, this Court has held that the mere fact that the accused, who were on bail during the period of trial , did not misuse their liberty is not a sufficient reason for the grant of suspension of sentence post-conviction. This Court by placing reliance on Vijay Kumar vs Narendra5 reiterated that all the relevant factors including “nature of accusation made against the accused, the manner in which the crime was alleged to have been committed, the gravity of the offence, desirability of releasing the accused on bail after they have committed the serious offence of murder ” must be looked into. 33 The High Court had suspended the sentence. W e are not in these proceedings called upon to consider whether the order of the High Court grant ing a suspension of sentence was valid in the first place. 34 There are distinct doctrinal concepts in criminal law namely (i) the grant of bail before trial or, what is described as the ‘pre- conviction’ stage; (ii) setting aside an order granting bail when the principles which must weigh in the decision on whether bail should be granted have been overlooked or wrongly applied; (iii) the post - conviction suspension of sentence under the provisions of S ection 389(1); and (iv) the cancellation of bail on the ground of supervening events , such as the conduct of the accused during the period of bail , vitiating the continuance of bail. 35 The present case falls in the last of the above genres where bail was sought to be cancelled on the ground that the second respondent was implicated in an offence under section 302 during the period when his sentence was suspended. 36 This Court in Abdul Basit vs. Abdul Kadir Choudhary6, while discussing the powers of the High Court to cancel bail granted to an accused under Section 439 (2) of the CrPC , has observed that typically the following conduct of the accused would result in the cancellation of bail – (i) misuse of liberty by engaging in similar criminal activity; (ii) interference with the course of investigation; (iii) tampering of evidence or witnesses; (iv) threatening of w itnesses o r engaging in similar activities which would hinder the investigation; (v) possibility of fleeing to another country; (vi) attempts to become scarce by becoming unavailable for investigation or going underground; and (vii) being out of the reach of their surety. Similar considerations govern the cancellation of bail at the post -conviction stage under the second proviso to Section 389 (1) of the CrPC. This Court in Pampapathy vs. State of Mysore7, had held that the High Court had t he power to revoke the suspension of sentence granted under sub-Sections (1) and (2) of Section 4268 of the erstwhile Code of Criminal 7 1966 Supp SCR 477 8 “426. (1) Pending any appeal by a convicted person, the Appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond. Procedure, 1898 (“CrPC, 1898”) using its inherent powers under Section 561- A of the CrPC, 1898. The accused were alleged to have misused their liberty while their sentence was suspended. Sub- Sections (1) and (2) of Section 426 of the CrPC, 1898 are similar to Section 389 (1) of the present CrPC. It may be noted that in Pamapathy (supra), the issue of cancellation of bail of a convict, by taking recourse to Section 561- A of the CrPC, 1898, arose because the second proviso, which, now, has been added to sub- Section (1) of Section 389 CrPC, did not exist under the earlier legal framework . However, since the second proviso to sub- Section (1) of Section 389 CrPC., now, deals with the cancellation of bail, no inherent power, would be required for revocation of suspension of sentence and bail granted to a convicted person during the pendency of appeal at the appellate court . This Court in its order passed in Ramesh Kumar Singh vs. Jhabbar Singh & Ors.9, has held that if the accused misuses their liberty by committing other offences during the suspension of sentence under Section 389 (1) of the CrPC, they are not entitled to the privilege of being released on bail. In that case, the accused was convicted under Section 302 of the IPC for killing the father of the complainant and during the suspension of his sentence, when he was out on bail, he had committed the murder of the b rothers of the complainant. This Court set aside the bail that was granted to the accused by the High Court . (2) The power conferred by this section on an appellate court may be exercised also by the High Court in the case of any appeal by a convicted person to a court subordinate thereto.” 37 The present case was a fit case for the cancellation of bail by the High Court . The narration in the earlier part of the judgment highlights the following facets: (i) The registration of FIR 143 of 2019 implicating the second respondent in the murder of the appellant’s father during the period when the sentence of the second respondent w as suspended after his conviction of a prior offence under Section 302. (ii) The criminal antecedents of the second respondent; (iii) The strong likelihood of the second respondent using his political clout to prevent a fair investigation of FIR 143 of 2019; (iv) The t ruth in the apprehensions of the appellant having become evident by the abject failure of the police to properly investigate the FIR lodged against the second respondent on the allegation that he had committed the murder of the appellant’s father on 15 Mar ch 2019 after his sentence was suspended by the High Court; (v) The submission of a closure report by the police against the second respondent absolving him ; (vi) The order of the ASJ dated 8 January 2021 summoning the second respondent under Section 319 of the CrPC; (vii) The second respondent having evaded arrest despite the issuance of a warrant of arrest and a proclamation; (viii) The failure of the law enforcement authorities to effectuate the arrest of the second respondent in spite of the order of this Court dated 12 M arch 2021; (ix) The peremptory directions issued by this Court on 26 March 2021 requiring the DGP to take necessary steps for compliance with the previous order failing which the Court would be constrained to take coercive steps in accordance with law; (x) The eventual arrest of the second respondent on 28 March 2021 ostensibly from a bus stand; (xi) The apprehension expressed by the ASJ in his order dated 8 February 2021 that he was being targeted at the behest of a politically influential accused; and (xii) The provision of security to the second respondent by the State government at the behest of his spouse who is an MLA despite a prior conviction under Section 302 of the IPC . 38 The High Court mis -applied itself to the legal principles which must govern such a case. The ser ious error by the High Court in its impugned order can be considered from two perspectives. First, the High Court by simply disposing of the IAs seeking cancellation of bail ignored material considerations which ought to have weighed in the decision. Some of the events which we have narrated above have undoubtedly transpired after the order of the High Court. However, taking the position as it stood when the High Court considered the issue, a clear case for cancellation of bail was established. The second aspect which is also of significance is the impact of the order of the High Court. The High Court was apprised of the fact that FIR No 143 of 2019 had been lodged against the second respondent. The investigation into the FIR had to proceed according to law. Instead, the High Court gave a period of ninety days to the police to enquire into the complaint of the second respondent that he was being targeted and allowed the police to thereafter proceed in accordance with law. This order had the effect of obstructing a fai r investigation into the FIR at the behest of the accused despite the nature and gravity of the allegations against him. The events which have transpired since go to emphasize the fact that the High Court was in grievous error in passing its directions whi ch were misused to defeat the investigation. The police submitted a closure report absolving the second respondent . Thereafter, despite the order under section 319, the second responden t evaded arrested in contravention of the warrant of arrest which was issued by the ASJ . The facts which have been narrated in the earlier part of this judgment indicate that the police have been complicit in shielding the second respondent. The criminal antecedents of the second respondent and the prior conviction on a charge of murder have been adverted to earlier. The second respondent, whose spouse is an MLA was provided security by the State. The DGP was sanguine in informing this court that the second respondent could not be arrested despite the directions issued by this Court. It was only after this C ourt issued a peremptory direction indicating recourse to the coercive arm of law that the second respondent was arrested, ostensibly from a bus -stand. The material on the record indicates that an effort has been made to shi eld the accused from the administration of criminal justice. The apprehensions expressed by the ASJ in his order dated 8 February 2021 of the machinations of a highly influential accused evading the process of law are amply borne out by the facts which hav e been revealed before this Court. There is no reasonable basis to doubt the anguish and concern of a judicial officer. That the state did not oppose the application under section 319 is a feeble attempt to justify the inaction of the police. Unfortunately, the High Court failed in its duty to ensure that the sanctity of the criminal justice process is preserved. This court has had to step in to ensure that the rule of law is preserved. 39 We accordingly order and direct that the order of the High Court dated 23 July 2019 shall stand set aside. IA Nos 6837 and 5781 of 2019 shall in the circumstances stand allowed. The bail granted to the second respondent shall stand cancelled . We also direct that the second respondent shall be moved under the directions of the DGP to another jail in Madhya Pradesh to ensure that the fair course of the criminal proceedings is not deflected. 40 During the course of this proceeding, an enquiry was directed to be made into the apprehensions expressed by the ASJ in his order dated 8 February 2021. An independent and impartial judiciary is the cornerstone of democracy. Judicial independence of the d istrict judiciary is cardinal to the integrity of the entire system. The courts comprised in the district judiciary are the first point of interface with citizens. If the faith of the citizen in the administration of justice has to be preserved, it is to the district judiciary that attention must be focused as well as the ‘higher’ judiciary. Trial judges work amidst appalling conditions – a lack of infrastructure, inadequate protection, examples of judges being made targets when they stand up for what is right and sadly, a subservience to the administration o f the High Court for transfers and postings which renders them vulnerable. The colonial mindset which pervades the treatment meted out to the district judiciary must change. It is only then that civil liberties for every stakeholder – be it the accused, the victims or civil society – will be meaningfully preserved in our trial courts which are the first line of defense for those who have been wronged. 41 The functioning of the judiciary as an independent institution is rooted in the concept of separation of powers. Individual judges must be able to adjudicate disputes in accordance with the law, unhindered by any other factors. Thus, “for that reason independence of judiciary is the independence of each and every judge”. The independence of individual judges also encompasses that they are independent of their judicial superiors and colleagues.10 This Court in Madras Bar Association v. Union of India & Anr.11 speaking through Justice L. Nageswara Rao has observed: “29. Impartiality, independence, fairness and reasonableness in decision- making are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, “independence” is the lifeblood of the judiciary. Without independence, impartiality cannot thriv e. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things —securi ty in tenure, freedom from ordinary monetary worries, freedom from influences and pressures 10 M.P. Singh, Securing the Independence of the Judiciary – The Indian Experience, Indiana International and Comparative Law Review 10, No. 2 (2000): 245 -292. 11 2021 SCC OnLine SC 463 within (from others in the judiciary) and without (from the executive). The independence of an individual Judge, that is, decisional independence; and independence of the judiciary as an institution or an organ of the State, that is, functional independence are the broad concepts of the principle of independence of the judiciary/ tribunal. ” 42 Our Constitution specifically envisages the independence of the district judiciary . This is implicit in Article 50 of the Constitution which provides that the State must take steps to separate the judiciary from the executive in the public services of the State. The district judiciary operates under the administrative supervision of the High Court which must secure and enhance its independence from external influence and control. This compartmentalization of the judiciary and executive should not be breached by interfering wi th the personal decision- making of the judges and the conduct of court proceedings under them. 43 There is no gainsaying that the judiciary should be immune from political pressures and considerations . A judiciary that is susceptible to such pressures allows politicians to operate with impunity and incentivizes criminality to flourish in the political apparatus of the State. 44 India cannot have two parallel legal systems, “one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice.” The existence of a dual legal system will only chip away the legitimacy of the law. The duty also falls on the State machinery to be committed to the rule of law and demonstrate its ability and willingness to follow the rules it itself makes, for its actions to not transgress into the domain of “governmental lawlessness”.12 45 At the same time, we believe that judges, while being undeterred in their commitment to follow the law and do justice, should be wary of launching into a diatribe against the State authorities without due care and reflection. 46 The apprehensions expressed by the ASJ should be duly enquired into by the High Court of Madhya Pradesh on its administrative side so that if they are found to be true, necessary action should be taken in order to secure the fair administration of justice. We have already taken note of the fact that the SDOP Hata had submitted a complaint to the Registrar General. The complaint by the SDOP as well the the order of the ASJ dated 8 February 2021 shall be placed befor e the Chief justice of the Madhya Pradesh High Court on the administrative side by the Registrar General within two weeks . The Chief Justice of the High Court of Madhya Pradesh is requested to cause an enquiry to be made on the administrative side so that an appropriate decision in that regard is taken. Having regard to this direction we are not expressing any views on the report which has been submitted by the ADGP and STF, Bhopal. The enquiry as directed above should be concluded expeditiously and preferably within a period of one month from the date of the receipt of a certified copy of this judgment. A copy of this order shall be communicated by the Registrar (Judicial) of this court to the Registrar General of the High Court for compliance. The appeals shall stand disposed of in the above terms. 12 Upendra Baxi, The Crisis of Legitimation of Law in The Crisis of the Indian Legal System: Alternative Developments in Law (Vikas Publishing House, 1982). 47 Pending application(s), if any, stand disposed of. [Dr Dhananjaya Y Chandrachud] [Hrishikesh Roy ]	The Supreme Court in a strongly worded judgment pulled up the State and Police authorities of Madhya Pradesh for attempting to shield the husband of a Bahujan Samaj Party (BSP) MLA accused of murdering congress leader Devendra Chourasia. The Bench of Justices DY Chandrachud and Hrishikesh Roy took strong objection to the fact that Police officials tried to pressurise the trial court judge, and shield the accused Govind Singh. "Singh's spouse was an MLA and that is why security was granted to Singh. Effort has been made to shield the accused from the process of criminal justice system," the Court noted. The verdict came on a plea by Devendra Chourasia's son, Somesh Chourasia. Regarding the allegation the trial judge was being pressured by the BSP MLA, the Court said that such attitude towards the judiciary has to change. "Independence of judiciary is the independence of each and every judge, so that they are independent of their superiors also. Colonial mindset meted out to district judiciary has to change," the Court observed. The Court, therefore, cancelled the bail of the accused noting that there has been an abject failure of the police to complete the investigation into the murder. The Court also did not approve the Madhya Pradesh High Court's refusal to interfere with the bail granted to the accused. "It was a clear case for cancellation of bail but the High Court have 90 days time to complete the probe," the top court said. Read more here.
s 1, 7, 8, 10, 53 and 76 of 1963. Petitions under Art 32 of the Constitution of India for the enforcement of Fundamental Rights. R.V. section Mani and K. R. Shama, for the petitioner (in W.P. Nos. 1 and 76 of 1963). R. V. section Mani and T. R. Y. Sastri, for the petitioner (in W.P. Nos. 7, 8, 10 and 53). A.V. Ranganadham Chetty and A. Y. Rangam, for the respondent (in the petitions). I.N. Shroff, for the interveners Nos. 1 and 5 (in all the petitions). M. C. Setalvad, N. section Bindra and R. H. Dhebar, for inter vener No. 2 (in W.P. No. 1 of 1.963). C. P. Lal, for intervener No. 3 (in W.P. No. 1 of 1963). R. H. Dhebar, for intervener No. 4 (in W.P. No. 1 of 1963). section V. Gupte, Additional Solicitor General, N. section Bindra and R. H. Dhebar, for intervener No. 6 (in W.P. No. 1 of 1963). 83 March 9, 1964. The Judgment of the Court was delivered by WANCHOO, J. These six petitions under article 32 of Constitution raise a common question about the constitution ality of the Madras Land Reforms (Fixation of Ceiling on Land Act, No. 58 of 1961 (hereinafter referred to as the Act), which was assented to by the President on April 13, 1962 and came into force on publication in the Fort St. George Gazette on May 2, 1962. The constitutionality of the Act is attacked on the ground that it violates articles 14, 19 and 31(2) of the Constitution. It is not necessary to set out in full the attack made on the constitutionality of the Act in these petitions. It will be enough if we indicate the two main attacks on the constitutionality of the Act under article 14. The first of these is with respect to section 5 of the Act which lays down the ceiling area. The second is on section 50 of the Act read with Sch. III thereof, which provides for compensation. It is urged that the Act is not protected under article 31 A of the Constitution and is therefore open to attack in case it violates article 14, 19 or 31. The petitioners in this connection rely on the judgment of this Court in Karimbil Kunhikoman vs State of Kerala(1). Before we consider the two main attacks on the constitu tionality of the Act we may briefly indicate the scheme of the Act. Chapter 1 is preliminary, Section 3 thereof provides for various definitions, some of which we shall refer to later. Chapter 11 deals with fixation of ceiling on land holdings. Section 5 thereof fixes the ceiling area. The other sections provide for determining surplus land, and s.18 provides for the acquisition of surplus land which vests in the Government free from all encumbrances. Chapter III provides for ceiling on future acquisition and restriction on certain transfers. Chapter IV provides for the constitution and functions of the land board. Chapter V provides for the constitution and functions of the sugar factory board. Chapter VI provides for compensation. Section 50 thereof read with Sch. III lays down the mode for determining compensation for the land acquired by the Government and other ancillary matters. Chapter VII provides for survey and settlement of lands in the transferred territory which came to the State of Madras by virtue of the States Reorganisation Act of 1956. Chapter VIII provides for cultivating tenants ' ceiling area. Chapter IX provides for exemption of certain lands from the application of the Act. Chapter X provides for land tribunals and Chapter XI for appeals and revision. Chapter XII provides for certain penalties and procedure while Chapter XIII provides for disposal of land acquired by the Government under the Act. Chapter XIV deals with miscellaneous provisions, including s.110, which provides for the framing of rules (1) [1962] Suppl. 1 S.C.R. 829. 84 The main purpose of the Act is to provide for a ceiling on land holdings, for determining surplus land which would be acquired by Government and for payment of compensation therefor. The Act is applicable to agricultural land as defined in section 3(22) and is mainly concerned with persons holding lands in ryotwari settlement or in any other way subject to payment of revenue direct to the Government. It is not in dispute that the Act is not protected under article 31 A of the Constitution and it is in this background that we shall consider the attack based on article 14 on the two main provisions of the Act relating to ceiling area under section 5 and compensation under section 50 read with Sch. III of the Act. It is first necessary to read certain definitions in s 3. Section 3(14) defines family as follows "family" in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her (i) minor sons and unmarried daughters; and (ii) Minor grandsons and unmarried grand daughters in the male line, whose father and mother are dead. " It is unnecessary to refer to the explanation of section 3(14), for present purposes. Section 3 (34) is in these terms: person ' includes any trust, company, family, firm, society or association of individuals, whether incorporated or not. " Section 3 (45) is as follows: " 'surplus land ' means the land held by a person in excess of the ceiling area and declared to be surplus land under sections 12, 13 or 14. " Section 5 is in these terms: "5. (1) (a) Subject to the provisions of Chapter VIII, the ceiling area in the case of every person and, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, the ceiling area in the case of every family consisting of not more than five members, shall be 30 standard acres (b) The ceiling area in the case of every family consisting of more than five members shall, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, be 30 standard acres together with an additional 5 standard acres for every member of the family in excess of five. (2) For the purposes of this section, all the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the family. 85 (3) (a) In calculating the extent of land held by a member of a family or by an individual person, the share of the member of the family or of the individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanthana family or a Nambudiri Illom shall be taken into account. (b) In calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company (other than a non agricultural company) shall be taken into account. Explanation For the purposes of this section (a) the share of a member of a family or of an individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanathana family or a Nambudiri Illom, and (b) the share of a family or of an individual person in the land held by a firm, society or association of individuals (whether incorporated or not), or by a company (other than a non agricultural company), shall be deemed to be the extent of land (i) which, in case such share is held on the date of the commencement of this Act, would have been allotted to such member, person or family had such land been partitioned or divided, as the case may be, on such date; or (ii) which, in case such share is acquired in any manner whatsoever after the date of the commencement of this Act, would be allotted to such member, person or family if a partition or division were to take place on the date of the preparation of the draft statement under sub section (1) of section 10. "(4). . . " It is unnecessary to consider the rest of section 5 for present purposes. The attack on section 5 (1) is that it is hit by article 14 inasmuch as it denies equality before the law or equal protection of law to persons similarly situate, and reliance is placed in this connection on the decision of this Court in Karimbil Kunhikoman(1). In that case this Court was considering the Kerala Agrarian Relations Act, 1961 (hereinafter referred to as the 86 [1962] Suppl. 1 S.C.R. 829. Kerala Act). The argument is that as in the Kerala Act, so in the present Act, the word "family" has been given an artificial definition which does not conform to any kind of natural families prevalent in the State, namely, Hindu undivided family, Marumakkattayam family, Aliyasanathana family or Nambudiri Illom, and that a double standard has been fixed in section 5(1) in the matter of providing ceiling. It is therefore urged that the ratio of that decision fully applies to the present Act. Therefore, section 5(1) should be struck down as violative of article 14 in the same manner as section 58 of the Kerala Act was struck down. We are of opinion that this contention is correct and the ratio of that case applies with full force to the present case. It was observed in that case that "where the ceiling is fixed . . by a double standard and over and above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provision". In the present case also "family" has been given an artificial definition as will immediately be clear on reading. 3(14), which we have set out above. It is true that this definition of "family" in section 3(14) is not exactly the same as in the Kerala Act. Even so there can be no doubt that the definition of the word "family" in the present case is equally artificial. Further in the Kerala Act section 58 fixed a double standard for the purpose of ceiling; in the present case section 5(1)(a) fixes a double standard though there is this distinction that in section 5(1) the same ceiling is fixed in the case of a person as in the case of a family consisting of not more than five members, namely, 30 standard acres while in the Kerala Act, the ceiling fixed for a family of not more than five was double that for an adult unmarried person. But that in our opinion makes no difference in substance. The provision of section 5(1) results in discrimination between persons equally circumstanced and is thus violate of article 14 of the Constitution. This will be clear from a simple example of an undivided Hindu family, which we may give. Take the case of a joint Hindu family consisting of a father, two major sons and two minor sons, and assume that the mother is dead. Assume further that this natural family has 300 standard acres of land. Clearly according to the personal law, if there is a division in the family, the father and each of the four sons will get 60 standard acres per head. Now apply section 5(1) to this family. The two major sons being not members of the family because of the artificial definition given to "family" in section 3(14) of the Act will be entitled to 30 standard acres each as individuals and the rest of their holdings i.e. 30 standard acres in the case of each will be Surplus land. But the father and the two minor sons being an artificial family as defined in section 3(14) will be entitled to 30 87 standard acres between them and will thus lose 150 standard acres, which will become surplus land. This shows, clearly how this double standard in the matter of ceiling read with the artificial definition of "family" will result in complete discrimination between these five members of a natural family. Under the Hindu law each member would be entitled to onefifth share in the 300 standard acres belonging to the family. Under the Act however the two major sons will keep 30 standard acres each while the father and the two minor sons together will keep 30 standard acres which work out to 10 standard acres each. The two major sons will thus lose 30 standard acres each while the father and the two minor sons will lose fifty standard acres each. No justification has been shown on behalf of the State for such discriminatory treatment resulting in the case of members of a joint Hindu family; nor ;.ire we able to understand why this discrimination which clearly results from the application of section 5 (1) of the Act is not violative of article 14 of the Constitution. Examples can be multiplied with reference to joint Hindu families which would show that discrimination will result on the application of this provision. Similarly we are of opinion that discrimination will result in the case of Marumakkattayam family, Aliyasanthana family and a Nambudiri Illom, particularly in the case of the former two where the husband and wife do not belong to the same family. We are clearly of opinion that as in the case of section 58 of the Kerala Act so in the case of section 5 (1) of the Act discrimination is writ large on the consequences that follow from section 5(1). We therefore hold that section 5(1) is violative of the fundamental right enshrined in article 14 of the Constitution. As the section is the basis of Chapter 11 of the Act, the whole Chapter must fall along with it. Next we come to the provisions as to compensation contained in section 50 read with Sch. III of the Act. Here again we are of opinion that the decision of this Court in Karimbil Kunhikoman 's(1) case fully applies to the scheme of compensation provided in the Act which is as discriminatory as was the scheme in the Kerala Act. Learned counsel for the respondent however contends that Sch., III does not provide for any cut in the purchase price as was the case in the Kerala Act, and therefore the provisions in the Act are not discriminatory. If we look at the substance of the matter, however, we find that there is really no difference between the provisions for compensation in the Kerala Act and the provisions in respect thereof in the Act, though the provisions in the Act are differently worded. What was done in the Kerala Act was to arrive at the figure of compensation on certain principles, and a cut was then imposed on the figure thus arrived at and this cut pro gressively increased by slabs of Rs. 15,000. In the present [1962] Suppl. 1 S.C.R. 829. 88 case , a converse method has been adopted and the provision is that first the net annual income is arrived at and thereafter compensation is provided for slabs of Rs. 5,000 each of net income. For the first slab of Rs. 5,000, the compensation is 12 times the net annual income, for the second slab of Rs. 5,000 it is II times, for the third slab of Rs. 5,000 it is ten times and thereafter it is nine times. Let us now work out this slab system. Take four cases where the net annual income is respectively Rs. 5,000, Rs.10,000, Rs. 15,000 and Rs. 20,000. The firstperson whose net annual income is Rs. 5,000 will get Rs.60,000 as compensation, the second person whose net annualincome is Rs. 10,000 will et Rs. 1,15,000, the third personwith a net annual income of Rs. 15,000 will get Rs. 165,000 and the person with a net annual income of Rs. 20,000 will et Rs. 2,10,000. If the same multiplier had been applied as in the case of the first slab of Rs. 5,000 to the other three slabs also, these persons would have got compensation of Rs. 1,20,000, Rs. 1,80,000 and Rs. 2,40,000. This will show that in effect there is a cut of about 4 per cent on the total compensation which corresponds to the purchase price in the Kerala Act in the case of a person with a net annual income of Rs. 10,000, of about 8 per cent in the case of a person with a net annual income of Rs. 15,000 and about 12 per cent in the case of a person with a net annual income of Rs. 20,000. Though the manner of arriving at the total com pensation is ostensibly different from that provided in the Kerala Act, its effect is the same, namely, as the total net income goes up after the first slab of Rs. 5,000 there is a progressive cut in the total compensation just as was the case in the Kerala Act. The argument that the cut is justified on the same basis as higher rates of income tax on higher slabs of income has already been rejected by this Court in Karimbil Kunhikoman 's case(1). Therefore, for the reasons given in that case, we are of opinion that the provisions contained in section 50 read with Sch. III of the Act with respect to compensation are discriminatory and violate article 14 of the Constitution. Sections 5 and 50 are the pivotal provisions of the Act, and if they fall, then we are of opinion that the whole Act must be struck down as unconstitutional. The working of the entire Act depends on section 5 which provides for ceiling and section 50 which provides for compensation. If these sections are unconstitutional, as we hold they are, the whole Act must fall. We therefore allow the petitions and strike down the Act as unconstitutional. The petitioners will get their costs from the State of Madras one set of hearing fee. Petitions allowed. (1) [1962] Suppl. 1 S.C.R. 829.	The constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 was attacked on the ground that it violated articles 14, 19, 31(2) of the Constitution. Held (i) The provisions of section 5(1) of the Act result in discrimination between persons equally circumstanced and are thus violative of article 14 of the Constitution. As this section is the basis of Chapter II of the Act, the whole chapter must fall along with it. The ratio of Karimbil Kunhikoman vs State of Kerala [1962] Supp. 1 S.C.R. 829 applies with full force to the present case. (ii)The provisions in section 50 read with Sch. III of the Act with respect to compensation are discriminatory and violate article 14 of the Constitution. Karimbil Kunhikoman vs State of Kerala [1962] Supp. S.C.R. 829, followed. (iii)Ss. 5 and 50 are the pivotal pro visions of the Act, and as they fall, the whole Act must be struck down as unconstitutional.
Special Leave Petition (Civil) No. 2730 of 1987. From the Judgment and Order dated 8.12.1986 of the Punjab and Haryana High Court in R.S.A No. 1773 of 1986 (0 & M). K.G. Bhagat and Sunil K. Jain for the Appellants. The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question which arises for consideration in this case is whether under the provisions of the (hereinafter referred to as 'the Act ') a step son of a female dying intestate is entitled to claim a share in her property simultaneously with her son. In other words the question involved is wheth er the word 'sons ' in clause (a) of sub section (1) of section 15 of the Act includes 'step sons ' also. The facts involved in this Special Leave Petition are thus. One Battan Singh who was also known as Badan Singh had two wives, namely, Mahan Kaur and Khem Kaur. Mahan Kaur died during his life time after giving birth to two sons Lachman Singh (petitioner) and Gurdas Singh from the loins of Battan Singh. Respondent No. 1 Kirpa Singh is the son of Battan Singh and Khem Kaur. Gurdas Singh died during the life time of Battan Singh leaving behind his widow Gurbux Kaur and his son Amarjit Singh. Battan Singh died intestate after the Act came into force. On his death his property devolved on his heirs including his second wife Khem Kaur in accordance with the provisions of the Act. Thereafter Khem Kaur died. On her death dispute arose between her son Kirpa Singh on the one side and Lachman Singh, Amarjit Singh and Gurbux Kaur on the other. Kirpa Singh claimed the entire property left behind by Khem Kaur on the ground 936 that he was the only son of Khem Kaur. Lachman Singh, Amar jit Singh and Gurbux Kaur claimed that Kirpa Singh was entitled to only one third share in the property of Khem Kaur, Lachman Singh was entitled to one third share and Amarjit Singh, who was the son of Gurdas Singh, was entitled to the remaining one third share. Both the parties relied upon clause (a) of section 15(1) of the Act. While Kirpa Singh contended that the word 'sons ' in section 15(1)(a) of the Act meant only sons born of the body of the Hindu female dying intestate the others contended that the word 'sons ' in that clause included stepsons also. In view of the above dispute Kirpa Singh filed a suit on the file of the Sub Judge 1st Class, Nakodar in the District of Jalandhar inter alia for a declaration that he was entitled to the entire property belonging to Khem Kaur against Lachman Singh, Amarjit Singh and Gurbux Kaur who contested the suit. The trial court vide its judgment dated February 18, 1984 de creed the suit declaring that Kirpa Singh was entitled to the property belonging to Khem Kaur. Lachman Singh preferred an appeal against the decree of the trial court in R.C.A. No. 202 of 1985 on the file of the learned Additional Dis trict Judge, Jalandhar. That appeal was dismissed on Febru ary 19, 1986. The second appeal filed by him against the judgment of the Additional District Judge, Jalandhar, in R.S.A. No. 1773 of 1986 on the file of the High Court of Punjab & Haryana was also dismissed in limine on December 8, 1986. Aggrieved by the judgment of the High Court Lachman Singh has filed this petition for special leave under Arti cle 136 of the Constitution of India. Section 15 of the Act, which is relevant for purposes of this case, reads thus: "15(1). The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. 937 (2) Notwithstanding anything con tained in sub section ( 1 ), (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daugh ter) not upon the other heirs referred to in sub section (1) in the order specified there in, but upon the heirs of the husband. Section 15 of the Act deals with the general rules of suc cession in the case of female Hindus. Sub section (1) of section 15 provides that the property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 of the Act firstly, upon the sons and daugh ters (including the children of any predeceased son or daughter) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father; and lastly, upon the heirs of the mother. Sub section (2) of section 15 of the Act arises for consideration only when a female Hindu dies intestate leav ing property without leaving behind her any son or daughter (including the children of any predeceased son or daughter) and in that event any property inherited by her from her father or mother shall devolve not upon the other heirs referred to in sub section (1) of section 15 of the Act in the order specified therein but upon the heirs of the father and any property inherited by her from her husband or from her father in law shall devolve not upon the other heirs referred to in sub section (1) of section 15 in the order specified therein, but upon the heirs of the husband, Rule 1 of section 16 provides that among the heirs specified in sub section (1) of section 15 those in one entry shah be preferred to those in the succeeding entry and those includ ed in the same entry shall take simultaneously. It is not necessary to refer to rule (2) and Rule (3) of section 16 of the Act for purposes of this ease. The only question which is to be determined here is whether the expression 'sons ' in clause (2) of section 15(1) of the Act includes 938 step sons also, ie., sons of the husband of the deceased by another wife. In order to decide it, it is necessary to refer to some of the provisions of the Act. Section 3(j) of the Act defines 'related ' as related by legitimate kinship but the proviso thereto states that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another and that any word expressing relationship or denoting a relative shall be construed accordingly. Section 6 and section 7 of the Act respectively deal with devolution of interest in coparcenary property and devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru and illom. Sections 8 to 13 of the Act deal with rules of succession to the property of a male Hindu dying intestate. We are concerned in this case with the rules of succession to the property of a female Hindu dying intestate. Sections 15 and 16 of the Act are material for our purpose. Ordinarily laws of succession to property follow the natural inclinations of men and women. The list of heirs in section 15(1) of the Act is enumerated having regard to the current notions about propinquity or nearness of relationship. The words 'son ' and 'stop son ' are not defined in the Act. According to Collins English Dic tionary a 'son ' means a male offspring and 'step son ' means a son of one 's husband or wife by a former union. Under the Act a son of a female by her first marriage will not succeed to the estate of her 'second husband ' on his dying intes tate. In the case of a woman it is natural that a step son, that is, the son of her husband by his another wife is a step away from the son who has come out of her own womb. But under the Act a step son of a female dying intestate is an heir and that is so because the family headed by a male is considered as a social unit. If a step son does not fall within the scope of the expression 'sons ' in clause (a) of section 15(1) of the Act, he is sure to fall under clause (b) thereof being an heir of the husband. The word 'sons ' in clause (a) of section 15(1) of the Act includes (i) sons born out of the womb of a female by the same husband or by different husbands including illegitimate sons too in view of section 3(j) of the Act and (ii) adopted sons who are deemed to be sons for purposes of inheritance. Children of any predeceased son or adopted son also fall within the meaning of the expression 'sons '. If Parliament had felt that the word 'sons ' should include 'step sons ' also it would have said so in express terms. We should remember that under the Hindu law as it stood prior to the coming into force of the Act, a step son, i.e., a son of the husband of a female by another wife did not simultaneously succeed to the stridhana of the female on her dying intestate. In that case the son born out of her womb had precedence over a step son. Parliament would have made express provision in the Act if it intended that there 939 should be such a redical departure from the past. We are of the view that the word 'sons ' in clause (a) of section 15(1) of the Act does not include 'step sons ' and that step sons fall in the category of the heirs of the husband referred to in clause (b) thereof. The decision of the Mysore (Karnataka) High Court in Mallappa Fakirappa Sanna Nagashetti and Others vs Shivappa and another, A.I.R. ; takes the view which we have expressed above. According to the decision of the Bombay High Court in Rama Ananda Patil vs Appa Bhima Redekar and Others, A.I.R. 1969 Bombay 205 the emphasis in clause (a) of section 15(1) of the Act is on the aspect that the sons or the daughters are of her own body and not so much on the husband who was responsible for their birth and that therefore children of a female though by different husbands inherit her estate simultaneously. The High Court of Punjab and Haryana has in Gumam Singh vs Smt. Ass Kaur and Others, A.I.R. 1977 P & H 103 following the observations in the decisions of the Mysore and Bombay High Courts, referred to above, held that the word 'sons ' in section 15(1)(a) of the Act does not include a 'step son '. The High Court of Calcut ta has also taken the same view in Smt. Kishori Bala Mondal vs Tribhanga Mondal & Others, A.I.R. 1980 Calcutta 334. It is true that the Allahabad High Court has taken a contrary view in Ram Katori vs Prakash Wati, I.L.R. 1968 (1) Allahabad 697. In that case the facts were however slightly different, but the point involved was almost the same. The facts of the case were as follows. One Chandu Lal had mar ried a woman. She died during the life time of Chandu Lal leaving behind her a daughter by Ram Katori. Thereafter Chandu Lal married a second woman by name Ram Kali through whom he got a daughter by name Prakashwati. Chandu Lal died in 1920 and on his death Ram Kali being his widow succeeded to his estate as a limited owner. After the coming into force of the Act in 1956 her limited estate ripened into absolute estate and she became the full owner of the estate inherited by her from her husband. Ram Kali died thereafter. On her death Ram Katori, the daughter of Chandu Lal by his first wife contended that she was entitled to succeed simul taneously with Prakashwati to the estate of Ram Kali which originally belonged to her father and claimed one half share in it. Her claim was resisted by Prakashwati stating that the word 'daughters ' in section 15(1)(a) of the Act did not include 'step daughters ' and that Ram Katori would fall under the category of the heirs of the husband and would be entitled to succeed either under clause (b) of section 15(1) or under clause (b) of section 15(2) of the Act and that too in the absence of 940 sons and daughters of Ram kali (including children of prede ceased sons and daughters). It was further contended by Prakashwati that the fact that the property in question had formerly belonged to the husband of Ram Kali did not matter at all because Ram Kali had left behind her who was a daugh ter of her own body entitled to succeed under section 15(1)(a), and that Ram Katori being a step daughter could not claim under section 15(1)(a) of the Act. The High Court of Allahabad felt that there was a distinction between clause (a) of section 15(1) and clauses (a) and (b) of section 15(2) of the Act in that whereas in section 15(1)(a) the words 'sons and daughters ' were unqualified, the words 'son or daughter ' in clauses (a) and (b) of section 15(2) were qualified by the words 'of the deceased ' and therefore conclusion was irresistible that the unqualified words 'sons and daughters ' in section 15(1)(a) of the Act indicated that they included also the children of her husband by another wife. The High Court also appears to have been moved by the consideration that the opposite construction would be pat ently unfair to the children by her husband 's another wife since they would be deprived of their share in the property which originally belonged to their father. We feel that neither of these reasons is correct. The words 'sons and daughters . . and the husband ' in clause (a) of section 25(1) only mean 'sons and daughters . and the husband ' of the deceased. They cannot be 'sons and daughters . and the husband ' of any body else. All relatives named in the different clauses in sub section (1) of section 15 of the Act are those who are related to the deceased in the manner specified therein. They are sons, daughters, husband, heirs of the husband, mother and father, heirs of the father and heirs of the mother of the deceased. The use of the words 'of the deceased ' following 'son or daughter ' in clauses (a) and (b) of sub section (2) of section 15 of the Act makes no difference. The words 'son or daughter of the deceased (including the children of any predeceased son or daughter) ' in clauses (a) and (b) of section 15(2) of the Act refer to the entire body of heirs failing under clause (a) of section 15(1) of the Act except the husband. What clauses (a) and (b) of sub section (2) of section 15 of the Act do is that they make a distinction between devolution of the property inherited by a female Hindu dying intestate from her father or mother on the one hand and the property inherited by her from her husband and from her father in law on the other. In the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter), in a case failing under clause (a) of section 15(2) of the Act the property devolves upon the heirs of the father of the deceased and in a case falling under clause (b) of section 15(2) of the Act the property devolves upon the heirs of the husband of the 941 deceased. The distinction made by the High Court of Allaha bad on the ground of the absence or the presence of the words 'of the deceased ' in sub section (1) and sub section (2) of section 15 of the Act appears to be hyper technical and the High Court has tried to make a distinction where it does not actually exist. The second reason, namely, that exclusion of 'step sons ' and 'step daughters ' from clause (a) of section 15(1) of the Act would be unfair as they would thereby be deprived of a share in the property of their father is again not well founded. The rule of devolu tion in section 15 of the Act applies to all kinds of properties left behind by a female Hindu except those dealt with by clauses (a) and (b) of section 15(2) which make a distinction as regards the property inherited by her from her parents and the property inherited from her husband or father in law and that too when she leaves no sons and daughters (including children of predeceased sons and daugh ters). If the construction placed by the High Court of Allahabad is accepted then the property earned by the female Hindu herself or purchased or acquired by her would devolve on step sons and stepdaughters also along with her sons and daughters. Is it just and proper to construe that under clause (a) of section 15(1) of the Act her stepsons and step daughters, i.e., children of the husband by another wife will be entitled to a share along with her own children when the Act does not expressly says so? We do not think that the view expressed by the High Court of Allahabad represents the true intent of the law. When once a property becomes the absolute property of a female Hindu it shall devolve first on her children (including children of the ' predeceased son and daughter) as provided in section 15(1)(a) of the Act and then on other heirs subject only to the limited change introduced in section 15(2) of the Act. The step sons or step daughters will come in as heirs only under clause (b) of section 15(1) or under clause (b) of section 15(2) of the Act. We do not, therefore, agree with the reasons given by the Allahabad High Court in support of its decision. We disagree with this decision. In the circumstances, we hold that the High Court of Punjab and Haryana against whose decision this petition is filed was right in affirming the decree passed in favour of Kirpal Singh, Respondent No. 1 herein. The Special Leave Petition is, therefore, dismissed. A.P.J. Petition dismissed.	Battan Singh had two wives, namely, Mahan Kaur and Khem Kaur. Mahan Kaur died during his lifetime after giving birth to two sons, Lachman Singh (petitioner) and Gurdas Singh. Gurdas Singh pre deceased Battan Singh leaving behind his widow Gurbax Kaur and his son Amarjit Singh. Respondent No. 1, Kirpa Singh is the son of the Battan Singh and Khem Kaur. Battan Singh died intestate after the came into force and his property devolved on his heirs including his second wife Khem Kaur. On her death, Kirpa Singh claimed her entire property on the ground that he was her only son. Lachman Singh, Amarjit Singh and Gurbax Kaur claimed that Kirpa Singh was entitled to only 1/3rd share in the property of Khem Kaur, Lachman Singh was entitled to 1/3rd share and Amarjit Singh was entitled to the remaining 1/3rd share. Kirpa Singh filed a suit for declaration that he was entitled to the entire property belonging to Khem Kaur against Lachman Singh, Amarjit Singh and Gurbax Kaur. The trial Court decreed the suit. The appeals filed by Lachman Singh before the Additional District Judge and in the High Court were dismissed. Dismissing the Special Leave Petition, HELD: 1. Ordinarily laws of succession to property follow the natural inclinations of men and women. [938C D] 2. The list of heirs in section 15(1) of the is enumerated having regard to the current notions about the propinquity 934 or nearness of relationship. The words 'son ' and 'step son ' are not defined in the Act. [938C D] 3. Under the Act, a son of a female by her first mar riage will not succeed to the estate of her 'second husband ' on his dying intestate. In the case of a woman it is natural that a step son, that is, the son of her husband by his another wife is a step away from the son who has come out of her own womb. But under the Act a step son of a female dying intestate is an heir and that is so because the family headed by a male is considered as a social unit. If a step son does not fail within the scope of the expression 'sons ' in cl. (a) of section 15(1) of the Act, he is sure to fail under cl. (b) thereof being an heir of the husband. [938D F] 4. The word 'sons ' in cl. (a) of section 15(1) of the Act includes: (i) sons born out of the womb of a female by same husband or by different husbands including illegitimate sons too in view of section 3(j) of the Act, and (ii) adopted sons who are deemed to be sons for purposes of inheritance. [938F G] 5. Under the Hindu law as it stood prior to the coming into force of the Act, a step son, i.e. a son of the husband of a female by another wife did not simultaneously succeed to the stridhana of the female on her dying intestate. In that case the the son born out of her womb had precedence over a step son. Parliament would have made express provi sion in the Act if it intended that there should be such a radical departure from the past. [938G H; 939A] 6. The word 'sons ' in cl. (a) of section 15(1) of Act does not include 'step sons ' and that step sons fail in the category of the heirs of the husband referred to in cl. (b) thereof. [939A B] Mallappa Fakirappa Sanna Nagashetti and Others vs Shi vappa and another, A.I.R. ; Rama Ananda Patii vs Appa Bhima Redekar and Others, A.I.R. 1969 Bombay 205; Gumam Singh vs Smt. Ass Kaur and Others, A.I.R. 1977 P & H 103 and Smt. Kishori Bala Mondal vs Tribhanga Mondal & Others, A.I.R. 1980 Calcutta 334 approved. Ram Katori vs Prakash Nati L.L.R., [1968] 1 Allahabad 697, overruled. The rule of devolution in section 15 of the Act applies to all kinds of properties left behind by a female Hindu except those dealt with by cls. (a) and (b) of section 15(2) which make a distinction as regards the property 935 inherited by her from her parents and the property inherited from her husband or father in law and that too when she leaves no sons and daughters (including children of prede ceased sons and daughters). [941B C] 8. When once a property becomes the absolute property of a female Hindu it shall devolve first on her children (including children of the predeceased sons and daughter) as provided in section 15(1)(a) of the Act and then on other heirs subject only to the limited change introduced in section 15(2) of the Act. The step sons or step daughters will come in as heirs only under cl. (b) ors. 15(1) or under cl. (b) or section 15(2) of the Act. [941E F]
Appeal No.241 of 1993. From the Judgment and Order dated 9.10.1991 of the Punjab and Haryana High Court in Civil Writ Petition No. 5727 of 1991. Harish N. Salve Jagdish Singh Kuhar, and A.K. Mahajan for the Appellant. Ujagar Singh, Ms. Naresh Bakshi R.S. Yadav and G.K. Bansal for the Respondents. The Judgment of the Court was delivered by S.C. AGRAWAL ,J. : This appeal relates to the inter se seniority of the appellant and respondent No. 3 in the punjab Superior Judicial Service (hereinafter referred to as 'The Service '). The appellant and respondent No. 3 were both appointed to the Service on May 26, 1986 on the basis of selection by direct recruitment. The appellant belongs to the general category whereas respondent No. 3 is a Mazhbi Sikh, which is a Schedule Caste in Punjab. The recruitment to the Service is governed by Punjab Superior Judicial Service Rules, 1963 (hereinafter referred to as 'The Rules '). By Rule 8 A, which was inserted in the rules by notification dated June 14,1977, the instructions issued by the State Government from time to time in relation to reservation of appointments or posts for Scheduled Castes and Backward Classes were made applicable for the purpose of making appointments to the posts in the Service. The orders of the State Government relating to persons belonging to Scheduled Castes in this regard which have a bearing in this appeal are as follows (1) Letter dated June 6, 1974 from the Secretary to the Government of Punjab, Welfare of Scheduled Castes and Backward Classes Department to all Heads of Department etc. It was communicated that it had been decided to increase the percentage of reservation in direct recruitment in all services from 20% to 25% in the case of members of Scheduled Castes and from 2% to 5% in the case of members belonging to Backward Classes. In the said letter, it was also indicated 599 that the vacancies to be reserved for the members of Scheduled Castes in a lot of 100 vacancies would be at the points specified below 1, 5, 9, 13, 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 77, 8 1, 85, 89, 93 and 97 and so on. It was also directed that the Roster already existing would not be abondoned, but would now be maintained in continuation from the vacancy in the existing Roster last filled up according to the new pattern of reservation that has been prescribed in the earlier paragraphs in the said letter. (2) Circular dated November 19,1974 relates to carrying forward of reservation for members of Scheduled Castes/Backward Classes. It was directed that "the reservation should be carried forward from vacancy to vacancy in the same block until a Scheduled Caste or a Backward Class person, as the case may be, is appointed or promoted in the same block. It was further directed that if all the vacancies in any block determined on the basis of prescribed Roster are filled up by other category person due to non availability of Scheduled Castes or Backward Classes persons, the reservation should be carried forward to the subsequent blocks. The said letter required that the reservation should be carried forward from vacancy to vacancy in each block and from block to block until the carried forward vacancies are filled up by the members of the Scheduled Castes or Backward Classes. It was also provided that only one reserved vacancy out of the carried forward vacancies should be filled in a block of appropriate Roster in addition to the normal reserved point of the block. (3) Letter dated May 5, 1975, from the Secretary to the Government, Punjab, Welfare of Scheduled Castes & Backward Classes Department addressed to all Heads of Departments etc. It was communicated that the Government have decided that henceforth, 50% vacancies of the quota reserved for Scheduled Casstes should be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes candidates. (4) Letter dated. April 8, 1980 addressed by the Under Secretary to the Government of Punjab, Welfare Department Reservation Cell, to all Heads of Departments etc. The position with regard to the implementation of instructions regarding reservation for Mazhbi Sikhs and Balmikis under the letter dated May 5, 1975 was clarified as follows "i) Combined merit list can be disturbed while giving appointment 600 to the candidate belonging to Balmikis and Mazhbi Sikhs. ii) On the basis of 50% reservation the first reserved vacancy can be offered to Balmikis and Mazhbi Sikhs although his name may be below in the merit list. iii)On the basis of 50% reservation, Balmikis and Mazhbi Sikhs 1, 3, 5 and so on reserved vacancies shall go to the candidates of these castes if available and 2,4, 6 and so on reserved vacancies shall go to other Scheduled Castes candidates. It is clarified here that these instructions are to be implemented when the names of the candidates of Balmikis and Mazhbi Sikhs are included in the merit list after selection. If no candidate belonging to these communities has been selected or less candidate selected then the reserved vacancy should be filled up from amongst the other Scheduled Castes candidates meaning thereby no reserve vacancy reserved for Balmkis and Mazhbi Sikhs should be carried forward." After the introduction of Rule 8 A in the Rules, four persons were appointed by way of direct recruitment to the Service in the year 1979. One out of them, Shri Balwant Rai, belonged to a Scheduled Caste (other than Balmikis or Mazhbi Sikhs). Thereafter, in 1981, one post fell vacant but no person belonging to a Scheduled Caste 'could be selected and the candidate belonging to general category was appointed against the said post. In the year 1982, selection was made for two posts but only one person could be selected and he also belonged to the general category and no person belonging to a Scheduled Caste was available for appointment. In 1986, six persons including the appellant and respondent No.3 were appointed on the basis of direct recruitment. Out of those six persons, four belonged to the general category and two belonged to Scheduled Caste. One of the two persons was Shri G.S. Sarma who belonged to a Scheduled Caste other then Balmikis or Mazhbi Sikhs. In the merit list for the said selection the appellant was placed at No. 1, Shri G.S. Sarma was at No. 2 and respondent No. 3 was at No. 5. As per the Roster, Shri G.S. Samra was placed at Point No.7, the appellant at Point No.8 and respondent No. 3 at Point No. 9. After joining the Service, Shri G.S. Samra resigned from the same and had ceased to be a member of the Service prior to April 1, 1988. In the tentative seniority list of the members of the Service as on April 1, 601 1988, the appellant was placed at Serial No. 52 and respondent No. 3 was placed at Serial No.53. Respondent No.3 submitted a representation against his placement in the seniority list and claimed that he should be placed against the post reserved for Scheduled Caste at Serial No. 5 in the Roster and on that basis he should be given the seniority of the year of 198 1. He also submitted that since he is a Mazhbi Sikh, he is entitled to preference over Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs, and he claimed that he should have been placed at Point No.7 in the Roster and Shri G.S. Samra should have been placed at Point No. 9 and on that basis also respondent No. 3 is senior to the appellant. Representation was also invited from the appellant. in this regard. After considering the said representations the High Court, on its administrative side, decided that the respondent No. 3 was entitled to be placed above Shri G.S. Samra in view of the Circular Letter dated May 5, 1975 and that he should have been placed against Point No. 7 in the roster and Shri G.S. Samra should have been placed against Point No.9 in the Roster. On that basis the seniority list was revised and respondent No.3 was placed at Serial No. 52 while the appellant were placed at Serial No. 53. Feeling aggrieved by the revision in the seniority, the appellant filed a writ petition in the High Court which was dismissed by the High Court by judgment and order October 9, 199 1. This appeal is directed against the said judgment of the High Court. There is no dispute that appellant has been rightly assigned Point No. 8. If Respondent No. 3 has to be assigned Point No.7 as found by the High Court, then he would be senior to the appellant but if Respondent No. 3 is assigned Point No. 9 then appellant would be senior to Respondent No. 3 It is, therefore, necessary to determine whether respondent No. 3 is entitled to be placed at Point No. 7 in the Roster in place of Shri G.S. Samra who should be placed at Point No.9 or that the respondent no.3 should be assigned Point No.9 of the Roster. The said question requires consideration of the various orders relating to reservation for Scheduled Castes to which reference has been made earlier. As indicated earlier by letter dated June 6, 1974 points 1, 5, 9, 13, 17, 21, 25, 29, 33, 37,41, 45, 49, 53, 57, 6 1, 65, 69, 73, 77, 81, 85, 89, 93 and 97 in the Roster are reserved for members of Scheduled Castes. By letter dated May 5, 1975, 50% of the vacancies of the quota reserved for Scheduled Castes are required to be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes candidates. In view of the clarifications contained in the letter dated April 8, 1980 on the basis of 50% reservation the first reserved vacancy can be offered to Balmikis and Mazhbi Sikhs although his name may be below in the merit list and on the basis of 50% reservation, amongst the vacancies reserved for Scheduled Caste, vacancies 1, 3, 5 and so on would go to Balmikis and Mazhbi Sikhs, if available, and reserved vacancies 2, 4, 6 and so on would go to other Scheduled 602 Castes candidates. It has also been clarified that if no candidate belonging to the communities of Balmikis and Mazhbi Sikhs was selected or less number of candidates were selected then the reserved vacancies should be filled up amongst the other Scheduled Castes candidates and that no vacancy reserved for Balmikis and Mazhbi Sikhs should be carried forward. In view of the aforesaid clarifications out of the posts reserved for Scheduled Castes in the Roster, there was reservation for Balmikis and Mazhbi Sikhs on the posts against the following points in the Roster 1, 9, 17, 25, 33, 41, 49, 57, 65, 73, 81, 89, and 97. There was reservation for members of Scheduled Castes other than Balmikis and Mazhbi Sikhs on the posts against the following points in the Roster: 5, 13, 21, 29, 37, 45, 53, 61, 69, 77, 85, and 93. The learned counsel for the appellant has urged that since these orders relating to reservation for Scheduled Castes became applicable to the Service with effect from June 14, 1977, when Rule 8 A was inserted, all appointments to the Service after June 14, 1977 have to be made in accordance with these orders. The submission is that the first appointment, by direct recruitment, of a person belonging to the Scheduled Castes was of Shri Balwant Rai made in 1979. That was at point No. 1 in the Roster. That should have gone to a Balmiki or a Mazhbi Sikh but since no person belonging to those communities was available, Shri Balwant Rai, who belongs to a Scheduled Caste other than Balmikis and Mazhbi Sikhs, was appointed. It has been further urged that in view of the clarification contained in the letter dated April 8. 1980, a vacancy reserved for Balmikis and Mazhbi Sikhs is not required to be carried forward and the Balmikis and Mazhbi Sikhs cannot claim reservation in respect of the next vacancy at Point No. 5 which was reserved for Scheduled Castes other than Balmikis and Mazhbi Sikhs and they can only claim the vacancy that was reserved for Balmikis or Mazhbi Sikhs at point No.9. It was submitted that Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs was entitled to be appointed against the reserved vacancy at Point No.5 reserved for a candidate belonging to a Scheduled Caste other than Balmikis and mazhbi Sikhs but since at the time of selections that were made in the years 1981 and 1982, no person belonging to a Scheduled Caste was available. The vacancy at Point No. 5 reserved for Scheduled Castes was carried forward to point No. 7 and Shri G.S. Samra had to be adjusted at point No.7 in the Roster. The submission is that respondent No. 3, being a Mazhbi Sikh, could not claim to be placed at point No. 7 in the Roster against a vacancy which was reserved for a candidate belonging to a Scheduled Castes other than Balmikis and 603 Mazhbi Sikhs and he could be only placed against the vacancy at point No.9 in the Roster. The learned counsel for the respondent No.3 on the other hand has urged that in view of the order dated May 5, 1975, 50% vacancies of the quota reserved for Scheduled Castes have to be offered to Balmikis and Mazhbi Sikhs and since Shri Balwant Rai belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs had been appointed in 1979, the next post should go to Balmikis and Mazhbi Sikhs, and on that basis, respondent No.3 was entitled to be appointed against the second post at point No. 7 of the Roster and Shri G.S. Samra could only be appointed against third post at point No.9 in the roster. In the alternative, it was urged that the order dated April 8, 1980 could only have prospective operation with effect from the date of issue of the said order and the sub roster indicated by the said order could be given effect to only from that date and on that basis the first post reserved for Scheduled Castes should go to Balmikis or Mazhbi Sikhs and on that basis also respondent No.3 was entitled to be placed against point No.7 in the 100point roster and Shri G.S. Samra against point No.9 in the said roster. From a parusal of the letter dated April 8,1980, we find that it gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5,1975. Since the said letter dated April 8,1980 is only clarificatory in nature, there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8, 1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975. In this context it may be stated that according to the principles of statutory construction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be restrospective. (See: Craies on Statute Law, 7th Ed., p. 58). It must, therefore, be held that all appointments against vacancies reserved for Scheduled Castes made after May 5, 1975 (after May 14, 1977 in so far as the Service is concerned), have to be made in accordance with the instructions as contained in the letter dated May 5, 1975 as clarified by letter dated April 8, 1980. On that view, the appointment of Shri Balwant Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8, 1980. If the matter is considered in this light then the sub roster as indicated in the letter dated April 8, 1980 would have to be applied in respect of the post on which Shri Balwant Rai was appointed in 1979 and the said appointment has to be regarded as having been made against the vacancy at point No 1. in the the roster which was reserved for Balmikis or Mazhbi Sikhs but since no Balmiki or Mazhbi 604 Sikh was selected for that post, the said vacancy was assigned to Shri Balwant Rai who belonged to a scheduled Caste other than a Balmiki or Mazhbi Sikh. The said vacancy which was reserved for Balmikis or Mazhbi Sikhs could not be carried forward in view of the directions contained in the letter dated April 8, 1980. The next post reserved for Scheduled Castes at point No. 5 in the roster was meant for a person belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs. In the selections that were made in 1981 and 1982 no person belonging to a Scheduled Caste was selected and, therefore, posts at Points nos. 5 and 6 in the Roster became available to candidates in the general category and the vacancy at Point no.5 reserved for Scheduled Castes was carried forward to point No.7 In 1986, two persons belonging to Scheduled Castes, namely Shri G.S. Samra and respondent No.3 were selected. Shri G.S. Samra belonged to a Scheduled Caste other than Balmiki and Mazhbi Sikh whereas respondent No. 3 was a Mazhbi Sikh. Since the post at point No.5 which had been carried forward to point No.7 was reserved for a candidate belonging to a Scheduled Caste other than Balmiki or Mazhbi Sikh it had to be assigned to Shri G.S. Samra falling in that category and respondent No. 3 who was a azhbi Sikh could only be appointed against the reserved vacancy at point No.9 in the Roster. Respondent No. 3 can not claim that the vacancy at Point No.7 should be assigned to him. If respondent No.3 is adjusted against the vacancy at Point No. 9 in the Roster, he has to be placed in seniority below the appellant who was appointed against point No. 8 in the Roster. In the judgment under appeal, the High Court has placed reliance on the instructions dated March 6, 1961 and the decision of this Court in Jagjit Singh vs State of Punjab, ; The instructions dated March 6, 1961 deal with a situation where the services of a Government Servant belonging to Scheduled Castes/Tribes and Backward Classes are terminated and a resultant vacant occurred. It has been directed as under "With a view to safeguard the interests of the members of the Scheduled Castes/Tribes and Backward Classes, it has been decided that if the services of a Government Servant belonging to Scheduled Castes/Tribes or Backward Classes are terminated, the resultant vacancy should not be included in the normal pool of vacancies to be filled in accordance with the Block System but should be filled up on ad hoc basis from the candidates belonging to these castes and classes. In other words the intention is that the posts vacated by members of Scheduled Castes/Tribes and Backward classes should remain earmarked and be filled up by members belonging to these Classes. " 605 In Jagjit Singh 's case, this Court was dealing with appointments to the Punjab Civil Service (Executive Branch). These selection was made for appointment against 12 vacancies in the said Service and other vacancies in the Allied Services. Two of the vacancies in the Punjab Civil Service were reserved for Scheduled Castes candidates. Three persons were selected from among the members of Scheduled Castes. The appellant in the said appeal was at third place in the merit list of the Scheduled Castes candidates. The first two candidates on the merit list were appointed and the appellant was appointed on the post of "A" Class Tehsildar in one of the Allied Services. Subsequently, one of the two candidates who had been appointed to the Punjab Civil Service resigned his office and a question arose as to whether the appellant was entitled to be appointed to the Punjab Civil Service against the vacancy arising on account of resignation of the Scheduled Castes candidate who had been appointed earlier. The appellant laid his claim for such appointment on the basis of the instructions contained in the circular of March 6, 196 1. The said claim of the appellant was upheld by this Court and it was held that the resultant vacancy caused by resignation of one of the Scheduled Castes candidate should have gone to the appellant. The Circular dated March 6, 1961 and the decision in Jagjit Singh vs State of Punjab (supra) do not have a bearing on the question in controversy in the instant case because here there is no dispute that the respondent No.3 has been appointed against the post reserved for members of Scheduled Castes and the question is about the inter se placement of two persons appointed against vacancies reserved for Scheduled Caste candidates. The Circular dated March 6, 1961 does not deal with the said question and it has to be dealt with on the basis of the instructions contained in the orders dated May 5, 1975 and April 8, 1980. For the reasons aforementioned the appeal is allowed, the judgment and the order of the High Court dated October 9, 1991 is set aside. The Civil Writ Petition filed by the appellant in the High Court is allowed and it is declared that respondent No.3 can only be treated to have been appointed against the vacancy at Point no.9 in the Roster and on that basis he must be placed below the appellant in the seniority list. Respondent No.2 is directed to revise the seniority list of the members of the Service accordingly. The appellant would be entitled to conse quential benefits if any, accruing to him as a result of such revision in the seniority. The parties are left to bear their own costs. N.V.K. Appeal allowed.	Recruitment to the Punjab Superior Judicial Service was governed by the Punjab Superior Judicial Service Rules, 1963. Rule 8 A inserted in the said rules by notification dated June 14, 1977 provided that instructions issued by the State Government from time to time in relation to reservation of appointments for posts for Scheduled Castes and Backward Classes were applicable for appointments to posts in the Service. The Secretary to the Government of Punjab, Welfare of Scheduled Castes and Backward Classes Department by letter dated June 6, 1974 Informed all Heads of Department etc. that it had been decided to increase the percentage of reservation in direct recruitment in all services from 20% to 25 % in the case of members of Scheduled Castes and from 2% to 5 % in the case of members belonging to Backward Classes, and Indicated the vacancies to be reserved for the members of Scheduled Castes in a lot of 100 vacancies and specified the points. It also directed that the Roster already existing would not be abandoned, but would now be maintained in continuation from the vacancy in the existing Roster last filled up according to the new pattern of reservation. Circular dated November 19, 1974 made provision for carrying forward of reservation for members of Scheduled Castes/Backward Classes, and directed that the reservation should be carried forward form vacancy to vacancy in the same block until a Scheduled Caste or a Backward Class person is appointed or promoted in the same block, and that the reservation should be carried from vacancy to vacancy in each Mock and from block to block until the carried forward vacancies are filled up. 594 By letter dated May 5,1975 the Secretary to the Government, Welfare Department Communicated to all Heads of Department ; that the Government has decided that henceforth, 50% vacancies of the quata reserved for Scheduled Castes should be offered to Balmikis and Mazhbi Sikhs as a first preference from amongst the Scheduled Castes candidate, . The Under Secretary, Welfare Department Reservation Cell by his letter dated April 8,1980, clarified the position with regard to the implementation of instructions regarding reservation for Mazhbi Sikhs and Balmikis contained in the aforesaid letter dated May 5,1975, the Clarification was to the effect that : (1) the combined merit list can be disturbed while giving appointment to the candidate belonging to Balmikis and MazhbiSikhs; (ii) the first reserved vacancy can he offered to Balmikis and Mazhbi Sikhs although their name may be below in the merit list, and (iii) on the basis of 50% reservation Bal mikis and Mazhbi Sikhs 1,3,5 and so on reserved vacancies shall go to the candidates of these castes if available and 2,4,6 and so on reserved vacancies shall go to other Scheduled Castes candidates. After introduction of Rule 8 A in the Punjab Superior Judicial Service Rules, four persons were appointed by way of direct recruitment to the Service in the year 1979. One of them, Shri Balwant Rai, belonged to a Scheduled Caste (other then Balmikis or Mazhbi Sikhs). Thereafter, in 1981 one post fell vacant but no person belonging to a Scheduled Caste could be selected and candidate belonging to general category was appointed against the said post In 1982, selection was made for two posts but only one person could he selected and he also belonged to the general category and no person belonging to a Scheduled Caste was available for appointment. In 1986, six persons including the appellant and respondent No. 3 were appointed on the basis of direct recruitment. Out of those six persons, four belonged to the general category and two belonged to Scheduled Castes. One of the two persons was Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis or Mazhbi Sikh. In the merit list for the said selection the appellant was placed at No. 1, Shri G.S. Samra at No. 2, and respondent No. 3 at No. 5. As per the Roster, Shri G.S. Samra was placed at Point No. 7, the appellant at Point No. 8 and respondent No. 3 at Point No. 9. After joining the Service, Shri G.S. Samra resigned and had ceased to be a member of the service prior. to April, 1, 1988. In the tentative seniority list as on April 1, 1988,the appellant was placed at serial No. 52 and respondent No.3 was placed at serial No. 53. Respondent 595 No. 3 submitted a representation against his placement in the seniority list and claimed that he should be placed against the post reserved for scheduled castes at Serial No. 5 in the Roster and on that basis be given the seniority of the year of 1981, and that since he is a Mazhbi Sikh, he is entitled to preference over Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs, and he claimed that he should have been placed at Point No. 7 in the Roster and Shri G.S. Samra should have been placed at Point No. 9 and on that basis also respondent No. 3 is senior to the appellant. Representation was also invited from the appellant in this regard. After considering the representations the High Court decided that respondent No. 3 was entitled to he placed above Shri G.S. Samra in view of the Circular Letter dated May 5, 1975 and that he should have been placed against Point No. 7 in the roster and Shri G.S. Samra should have been placed against Point No. 9 in the Roster, In the revised seniority list Respondent No. 3 was placed at Serial No. 52 while the appellant was placed at Serial No. 53. Aggrieved by the aforesaid decision the appellant filed a Writ petition in the High Court which was dismissed. The appellant appealed to this Court and contended that the first appointment, by direct recruitment, of a person belonging to the Scheduled Castes was of Shri Balwant Rai made in 1979, that was at Point No. 1 in the Roster, and should have gone to a Balmiki or Mazhbi Sikh but since no person belonging to these communities was available Shri Balwant Rai who belonged to a Scheduled Caste was appointed. Relying on the clarification contained in the letter dated April 8, 1980 it was submitted that the vacancy at Point No. 5 reserved for Scheduled Castes was to be carried forwarded to point No. 7 and Shri G.S. Samra had to he adjusted at Point No. 7 in the Roster, that respondent No.3 being a Mazhbi Sikh could not claim to be placed at Point No. 7 against a vacancy which was reserved for a candidate belonging to Scheduled Castes other than Balmikis and Mazhbi Sikhs and that he could the before be only placed against the vacancy at Point No. 9 in the Roster. The appeal was contested on behalf of Respondent No. 3 who urged that in view of the order dated May 5,1975,50% vacancies of the quota reserved for Scheduled Castes have to be offered to Balmikis and Mazhbi Sikhs and since Shri Balwant Rai belonging to a Scheduled Coste other than Balmikis & Mazhbi Sikhs had been appointed in 1979, the next post should go to Balmikis and Mazhbi sikhs, and on that basis, respondent No. 3 was entitled to be appointed against the second post at point No.7 of the Roster and Shri 596 GS. Samra could only be appointed against third post at Point No. 9 in the Roster. It was also urged that the clarification contained in the letter dated April 8, 1980 could only have prospective operation with effect from the date of its issue, and the sub roster indicated therein could be given effect to only from that date, and on that basis also respondent No3 was entitled to be placed against Point No. 7 in the 100 point roster and Shri GS. Samra against Point No. 9 in the said roster. Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD : 1. (a). There is no dispute in the instant case, that respondent No3 has been appointed against the post reserved for members of Scheduled Castes and the question is about the inter se placement of two persons appointed against vacancies reserved for Scheduled Caste candidates. The Circular dated March 6, 1961 does not deal with the said question and it has to be dealt with on the basis of the instructions contained in the orders dated May 5,1975 and April 8,1980. (605 E) Jagjit Singh vs State of Punjab, ; , explained and distinguished. 1.(b). Respondent No.3 can only be treated to have been appointed against the vacancy at point No. 9 in the Roster and on that basis he must be placid below the appellant in the seniority list. Respondent No 2 is directed to revise the seniority list of the members of the Service accordingly. The appellant would be entitled to consequential benefits accruing as a result of revision in the seniority. (605 F) 2. The letter dated April 8, 1980 gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5,1975. Since the said letter dated April 8, 1980 is only clarificatory in nature there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8,1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975. (603 E) 3. A statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective. 597 Craies on Statute Law 7th Edn. p. 58, relied on. (603 F) 4. All appointments against vacancies reserved for Scheduled Castes made after May 5,1975 (after May 14,1977 in so far as the Punjab Superior Judicial Service is concerned) have to be made in accordance with the instructions as contained in the letter dated May 5, 1975 as clarified by letter dated April 8, 1980. (603 F) 5. The appointment of Shri Balwant Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8, 1980. The sub roster as indicated in the letter dated April 8, 1980 would have to be applied in respect of the post on which Shri Balwant Rai was appointed in 1979 and the said appointment has to be regarded as having been made against the vacancy at Point No. 1 in the roster which was reserved for Balmikis or Mazhbi Sikhs but since no Balmiki or Mazhbi Sikh was selected for that post, the said vacancy was assigned to Shri Balwant Rai who belonged to a Scheduled Caste other than a Balmiki or Sikh. (603 H, 604 A) 6. The vacancy at Point No. 1 which was reserved for Balmikis or Mazhbi Sikhs could not he carried forward in view of the directions contained in the letter dated April 8, 1980. (604 A) 7. The next post reserved for Scheduled Castes at Point No. 5 in the roster was meant for a person belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs. (604 A) 8. In the selections that were made in 1981 and 1982 no person belonging to a Scheduled Caste was selected and, therefore, posts at Point Nos. 5 and 6 in the Roster became available to candidates in the general category and the vacancy at Point No. 5 reserved for Scheduled Castes was carried forward to point No. 7. (604 B) 9. In 1986, two persons belonging to Scheduled Castes, namely Shri G.S Samra and respondent No. 3 were selected. (604 B) 10. Since the post appoint No. 5 which had been carried forward to point No. 7 was reserved for a candidate belonging to a Scheduled Caste other than Balmiki or Mazhbi Sikh it had to be assigned to Shri G.S. Samra falling in that category and respondent No.3 who was a Mazhbi Sikh could only be ap 598 pointed against the reserved vacancy at Point No. 9 in the Roster. Respondent No.3 can not claim that the vacancy at Point No.7 should be assigned to him. If respondent No.3. is adjusted against the vacancy at Point No.9 in the Roster, he has to be placed in seniority below the appellant who was appointed against Point No. 8 in the Roster. (604 C)
Criminal Appeal No. 111 and 477 of 1979. From the Judgment and Order dated 19.4.1978 of the Allahabad High Court in Criminal Appeal No. 661 of 1975. N.P. Midha and B.D. Sharma for the Appellant in Crl. A. No. 111 of 1979. Prithvi Raj, Prashant Choudhary and D. Bhandari for the Respondent in Crl. A. No. 111 of 1979 and Appellant in Crl. A. No. 477 of 1979. M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent in Crl. A. No. 477 of 1979. The Judgment of the Court was delivered by AHMADI, J. In Criminal Case No. 3 of 1975, three persons were put up for trial before the learned Special Judge, Sultanpur (U.P.). The case arose out of the death of one Ram Dhiraj Tiwari in police custody. Accused No. 1 Rafiuddin Khan (Respondent in Criminal Appeal No. 477 of 1979) was the Sub Inspector of Police Station Kure Bhar in District Sul tanpur at all material times during the commission of the crime. Accused No. 2 Shamsher Ali (since acquitted) was posted at the said police station as Beat Constable No. 3. His companion Accused No. 3 (Appellant in Criminal Appeal No. 111 of 1979) was the Head Moharrir of the said police station. Crime No. 71 of 1971 under Section 395, IPC was registered at the said police station on 25.5. 1971 concern ing a dacoity committed at Village Khara within 32 the jurisdiction of the said police station. In that connec tion one Jagdamba was arrested on 20.9.1971. During interro gation by AI the said suspect is alleged to have made.a confessional statement involving Ram Dhiraj Tiwari. On the basis of this information A 1 directed A2 and Ram Jas (PW 6) and Harakh, both police chowkidars, to apprehend Ram Dhiraj and produce him before him. Pursuant thereto A2 and his companions apprehended Ram Dhiraj from his residence in village Khajapur on 19.10.1971 at about 11.00 a.m. in the presence of his mother Kamaraji (PW 7), sister 's husband Ram Niranjan Misra (PW 8) and labourer Jiyalal (PW 9). After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 p.m. on the same day and handed over to A1. PW 8 and Ram Baran Dubey (PW 10) are stated to have followed him to the police station. It is alleged that soon charge of A1, he was given a severe beating with lathi and dandas by A1 and two constables, whose identity is not established, with a view to extracting a confessional statement from him. When PW 8 and PW 10 tried to intervene. , A1 demanded a sum of Rs.2000 from them to refrain from ill treating Ram Dhiraj. Thereupon PW 8 went to Village Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla (PW 5) the husband of Ram Dhiraj 's eider sister. On the arrival of PW 5 at the police station, A1 is alleged to have repeated his demand of Rs.2000. Since the bribe was not paid A1 and his two compan ions renewed the torture with vengeance which lasted till about 9 or 10 p.m. As a result of the merciless beating Ram Dhiraj was badly injured. It is alleged that the fact that he was apprehended from his village and was brought to the police station on 19.10.1971 was not entered in the general diary register but a false entry was posted in the said general diary register regarding his arrest on the next day i.e. 20.10.1971, at about 6.00 a.m. from near a culvert in village Hanna Harora by A2 and his two chowkidars. The defence version was that as he tried to resist arrest A2 and his two companions beat him up as a result of which he sustained the injuries in question. Another entry was made in the same general diary on the same day purporting to transfer Ram Dhiraj to police station Sadar for admission to the District Jail. General Diary Entry No. 14 was made to show that Ram Dhiraj was sent from Sardar police station at about 12.15 noon for admission to the District Jail as he had sustained injuries. It, however, transpired later that Ram Dhiraj died at about 4.00 p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanput for remand. On his demise his dead body was taken to Kotwali Sultanpur where an entry No. 30 regarding his death was made in the general diary at about 4.20 p.m. On 21.10.1971 an inquest 33 was made on the dead body and thereafter the dead body was sent for post mortem examination. PW 1 Dr. Mitra performed the autopsy and found as many as 28 ante mortem injuries on the body of the deceased. The prosecution case against A1 was that he was respon sible for having beaten the suspect Ram Dhiraj in the compa ny of two others which resulted in as many as 28 injuries to which he ultimately succumbed. It was also alleged that he had demanded a bribe of Rs.2000 to desist from meting out third degree punishment to the suspect. He was, therefore, charged under Section 304, 330, 201, 218/ 34, I.P.C., while his companion A3 was charged under Section 201 and 218, I.P.C. All the three accused persons denied the charges levelled against them and claimed to be tried. They however did not deny the fact that Ram Dhiraj died in police custo dy. The case set up by A 1 was that he was away from the police station between 5.00 p.m. and 7.30 p.m., on 19.10.1971 and, therefore, the allegation that he had tor tured Ram Dhiraj is fabricated and wholly false. A2 admitted the fact that Ram Dhiraj was arrested outside his village house at Khajapur on 19.10.1971 and was brought to the police station Kure Bhar on the same day at about 4.00 p.m. He, however, denied having caused any injury to him during arrest. A3 denied the prosecution allegation that he had deliberately and wilfully posted false entries in the Gener al Diary to help A 1. The learned Special Judge before whom the accused were tried came to the conclusion that the deceased was arrested from his residence on 19.10.1971 as alleged by the prosecu tion and not from near the culvert of village Hanna Harora on 20.10.1971; that no beating was given to him at the time of his arrest and that he was beaten in police station Kure Bhar where he was taken on 19.10.1971 itself after his arrest by A1 and two other constables who could not be identified. He also found that the fact that he was brought to the police station on 19.10.1971 was deliberately sup pressed and A3 omitted to perform his duty by not posting an entry in that behalf in the General Diary and instead post ing a false entry No. 10 (Exh. Ka 13) on the next day, 20.10.1971. He also found that a false entry was posted in the diary to show that he was sent to Sadar police station where he died before admission to jail. Lastly he found that A2 had counter signed the general diary entry No. 10 without knowing the contents thereof. On facts found proved, the trial court convicted A1 under Section 304 (Part II) and sentenced him to suffer Rigorous Imprisonment for 7 years, under Section 330 and sentenced him to suffer Rigorous Imprisonment for 3 years, under Section 201 and 218/34 and 161 I.P.C. and 34 under Section 5(1)(d) read with Section 5(2) of the Preven tion of Corruption Act, 1947 and sentenced him to Rigorous Imprisonment for 2 years on each count all substantive sentences to run concurrently. A2 was acquitted of all the charges levelled against him. A3 was, however, convicted under Sections 201 and 218 I.P.C. and was ordered to suffer Rigorous Imprisonment for 2 years on each count. The sub stantive sentences were ordered to run concurrently. Both the convicted accused preferred Criminal Appeal No. 661 of 1975 in the High Court. The State did not question the acquittal of A2. The High Court accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m. as proved through DWI and DW2 and, therefore, the prosecution version was unacceptable. It also found that the three prosecution witnesses PW5, PW8 and PW 10 were not eye witnesses to the incident and hence their story about beat ing in the police station and the demand of bribe cannot be accepted. It lastly held that A 1 could not be held respon sible for the omission to post an entry in the general diary about the arrival of the deceased to the police station at 4.00 p.m. as he himself had returned to the police station at 7.30 p.m. On this line of reasoning the High Court al lowed A1 's appeal and set aside the conviction on all counts. The High Court, however, maintained the conviction of A3 but reduced the sentence to Rigorous Imprisonment for 6 months. Criminal Appeal No. 111 of 1979 is preferred by A3 questioning his conviction while Criminal Appeal No. 477 of 1979 is preferred by the State questioning the acquittal of A1. As both these appeals arise out of the same judgment. We think it would be convenient to dispose them of by this common judgment. The fact that Ram Dhiraj died of injuries received by him after his arrest and while he was in police custody is not seriously disputed. The prosecution version is that he was beaten in the police station on 19.10.1971 by A1 and his two companions after he was arrested from his residence and brought to the police station. The defence version on the other hand is that the deceased was arrested on 20.10.1971 by A2 and his two companions from near a culvert in village Hanna Harora and he was beaten up by them as he resisted arrest. Of course A2 has denied this in his statement re corded under Section 313 of the Criminal Procedure Code. Be that as it may, both the prosecution as well as the defence version suggest that the deceased had received a beating at the hands of the police after his arrest. The evidence of PW1, Dr. Misra shows that the deceased had received as many as 28 injuries. by some blunt weapon or weapons which re sulted in his death due to 35 shock and haemorrhage on the afternoon of 20.10.197 1. The trial court has come to a firm conclusion that these in juries were caused to the deceased in the police station after his arrest. The High Court also opines that the "number of injuries speaks that most probably he had not received those injuries only during arrest and that he was subjected to severe assault sometime after his arrest". Even this halting. finding recorded by the High Court shows that both the courts felt that the deceased was seriously beaten while in police custody. The fact that Ram Dhiraj died a homicidal death is, therefore, rightly not contested before us. Having regard to the rival versions, the crucial ques tion which must be answered is regarding the date, time and place of arrest. It is not in dispute that an offence of dacoity at village Khera was registered at Police Station Kure Bhar on 25.5.1971. One Jagdamba was arrested in that connection on 20.9.1971. A1 was investigating that crime. In the course of interrogation by A1, Jagdamba is stated to have revealed the name of Ram Dhiraj as his accomplice. The evidence of PW 6 Chowkidar Ram Jas is that A1 had directed A2 to arrest Ram Dhiraj and produce him before him. A2, PW 6 and Chowkidar Harakh then went to fetch Ram Dhiraj. In the absence of any specific information, the first place to visit to locate the wanted man would be his residence. PW 6 also deposed that the police party went in search of the deceased to his village and apprehended him from near his residence. However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M. Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near a culvert in village Harma Harora on 20.10.1971. The learned trial Judge nega tived this contention as the certified copy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of the Code of Criminal Procedure was inadmissi ble in evidence since the said enquiry could not be equated to a judicial proceedings and was, therefore, inadmissible in evidence. He was of the view that the same could not be admitted in evidence under Section 90 of the Evidence Act. In this view the proper course was to call for the original statement, confront the witness with the contradictory part and on proof use it as evidence to discredit the witness. We agree with the learned trial judge that the contents of a certified copy of the statement recorded under Section 176 of the Code would not be admissible in evidence unless the contradiction is proved by putting it to the witness in cross examination and the maker has had an opportunity to admit or deny it. In our view it has to be proved like any other previous state.meat. The trial judge also opined that even if the statement was admis 36 sible under Section 90, Evidence Act that statement per se cannot efface his substantive evidence in court for the simple reason that at the time of recording of that state ment he was under the direct influence of A1 his superior, and was, therefore, not a free agent. The learned trial judge was, therefore, of the opinion that the contradiction even if proved cannot militate against the truth of his statement. The High Court has endorsed the finding of the trial court that as PW 6 was a chowkidar under the adminis trative control of A1 he could be prevailed upon to support the defence theory in t, he inquiry under Section 176. The High Court also held that the short signature of PW 7 as 'Jassi ' in the General Diary Entry No. 10 must have been obtained by A3 to add sanctity to the defence version. The High Court finally stated that even if absolute reliance is not placed on the evidence of PW 6 in this behalf, his evidence is duly corroborated by the evidence of other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and PW 9 Jai Lal, the mother, brother in law and labourer of the deceased. These three witnesses have also deposed that the deceased was arrested from his village Khajapur at about 11.00 a.m. on 19.10.1971. The High Court has rightly ob served that barring minor discripancies in their evidence as to dress of members of the police party, presence of others, etc., there is nothing brought out in their cross examina tion to discredit their evidence in this behalf. The prose cution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who have their shops near the culvert of village Hanna Harora to negative the defence version regarding the arrest of the deceased from there. Therefore, both the courts have record ed a concurrent finding of fact that the deceased was ar rested on 19.10.1971 at about 11.00 a.m. from his village Khajapur. That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false. The need to make a false entry speaks for itself. The next question is where, when and by whom were the injuries inflicted on the deceased. The High Court observes that the medical evidence on record shows that the injuries found on the person of the deceased were caused on the evening of 19.10.1971. In fact according to the High Court the medical evidence lends credence to the prosecution case that the deceased was arrested on 19.10.1971. The High Court holds as under: "After considering the injuries of the deceased I have not the least doubt in my mind that those injuries were not caused to him during arrest, and that he was beaten some 37 times after his arrest and before he was sent to jail from police station Kure Bhar". There is, therefore, no doubt that the High Court reached a firm finding that the arrest was made on 19.10.1971 at about 11.00 a.m. from village Khajapur and the injuries noticed by the medical officer on the person of the deceased at the time of the autopsy were inflicted after his arrest and not during the course of arrest. Now it is not in dispute that A 1 was serving as the Station Officer of police station Kure Bhar on the 19/20.10.197 1. He was in charge of the investigation of the dacoity case in which Jagdamba was arrested. It was he who had interrogated Jagdamba and had secured a confessional statement from him. The information divulged by Jagdamba necessitated the arrest of the deceased. It is, therefore, reasonable to infer that AI would interrogate the deceased also. Since the arrest was made from village Khajapur, the presence of PW 7, PW 8 and PW 9 at the time of the arrest cannot be doubted. PW 8 and PW 10 deposed that they had followed the deceased to the police station after his ar rest. PW 8, the brother in law of the deceased and PW 10 have deposed that after the deceased was taken to the police station he was subjected to third degree treatment by AI and two policemen whom they have not identified. Both have stated on oath that A 1 and his two unidentified companions beat the deceased with lathi and danda to extract a confes sion from him and when they entreated A 1 not to beat the deceased, he demanded Rs.2000 from them. PW 8 then went to village Desarwa of Pure Nilkanth to fetch PW 5, the husband of the eider sister of the deceased. On the arrival of PW 5 at the police station he too requested A1 not to beat the deceased but Ai reiterated his demand for Rs.2000. When the witness expressed his inability to meet the demand, AI resumed the ill treatment to the deceased. It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour but that by itself, without anything more, was not sufficient to doubt their testimony which receives corroboration from medical evidence. We are, therefore, of the opinion that unless there are sound grounds to reject their evidence it would not be proper to brush aside their evidence on the specious plea that they are interested witnesses. Even though the High Court came to the conclusion that the deceased was beaten after his arrest, the High Court refused to place reliance on the direct testimony of these three witnesses insofar as the involvement of A1 is con cerned. The first reason assigned is that since 38 the village of PW 5 is 11 or 12 miles from Khajapur which in turn is about 10 miles from Kure Bhar, it is not possible that he could have reached the police station by about 4.30 p.m. In the first place the exact time of arrival of de ceased to the police station is not known. Secondly when the witnesses spoke about the time factor they merely mentioned the approximate time and not the exact time of PW 8 's depar ture and return to the police station with PW 5. We are, therefore, of the opinion that the evidence of the prosecu tion witnesses cannot be thrown overboard on such an infirm ground. The High Court has also cast doubts on the evidence of PW 5 on the ground that he told a deliberate lie that there was no sentry at the police station to make his entry in the police station probable. This too appears to us to be a weak reason for discarding his evidence. His presence at the police station is established by the telegram that he sent to the superior police officers complaining about the beat ing given to the deceased. We, therefore, do not think that the High Court was justified in refusing to act on his evidence on this ground. In the application exhibit Ka 3 the name of A2 was mentioned as one of the constable who was assisting A1 in beating the deceased to extract a confession from him. However, in the substantive evidence the witness did not name A2 but merely stated that A1 and two other constables had beaten the deceased. The High Cort, therefore, inferred that he had wrongly named A2 as one of the assailants in exhibit Ka. 3 and was, therefore, not a reliable witness. But both in the telegram, and application exhibit Ka. 3 the name of A1 is men tioned. The omission to name A2 as one of the constables involved in the beating cannot absolve A1. We are, there fore, inclined to think that the High Court was not right in refusing to act on the evidence of the witness on such consideration. The High Court rejects the evidence of the three prose cution witnesses on the ground that the telegram was sent by PW 5 as late as 23.10. In our opinion the High Court failed to appreciate that 19th and 20th were lost in trying to secure the release of the deceased from AI. After the suspect died on the 20th the next day i.e., 21st was lost in post mortem examination and securing the dead body of the deceased for funeral. His evidence discloses that the dead body was not delivered to him till 4.30 p.m. On that day he went to village Khajapur and broke the news of death to PW 7 and other family members. He has deposed that he sent the telegram only after he received threats from A 1. The trial court has discussed this aspect of 39 the case in detail and has rightly pointed out that it was a difficult decision to take for PW 5 as he may not like to incur the wrath of A1. But when A1 threatened him, he was left with no choice but to inform his superiors. The High Court, with respect, has failed to properly appreciate and assess the situation. After all everyone thinks twice before deciding to make so serious a complaint against a police officer. We do not think there was so serious a delay as to throw out the evidence of the three witnesses on that ground. PW 10 's evidence has been rejected on a very flimsy. ground. He is the neighbours of the deceased. He was at the police station upto 7.00 or 8.00 p.m. and claims to have seen A1 beating the deceased. His evidence is rejected on the ground that he was interested in getting the policemen punished because the deceased was beaten to death while in police custody. It is further stated that all others associ ated with him are keen to see that somebody gets punished for the assault on the deceased. We find it difficult to comprehend why this witness would falsely involve A1 if he was not responsible for the injuries caused to the deceased. The conduct of this witness is branded as unnatural because he did not go to inform PW 7 and others about the death of the suspect. Since PW 5 and PW 8 were aware of the death. There was no need for PW 10 to inform the family members of the deceased as he would be justified in believing that PW 5 and PW 8 must have informed them. We are, therefore, of the view that the High Court had rejected the evidence of PW 10 on thoroughly untenable grounds. That brings us to the question whether the alibi set up by A1 can come to his rescue. In this connection reliance is placed on the evidence of DW 1, Jaswant Singh, Station Officer, Machlishahr Police Station. He claims to have come to Kure Bhar on 19.10.1971 for investigation of an offence under Section 363/366 I.P.C. of his police station. He wants us to believe that he was at the Kure Bhar police station from 5.00 p.m. to 9.30 p.m. According to him A1 was not at the police station till about 7.30 p.m. Reliance is placed on the general diary entry dated 19.10.1971 to show that A 1 had left the police station at about 10.30 a.m. for Tikar and had returned to the police station at 7.30 a.m. This entry is proved through DW 2. Now according to DW 1 even though he had come to Kure Bhar for investigation, he him self remained at the police station throughout and sent his men with A.S.I. (II) of Kure Bhar to Dilawar Ka Purwa for investigation. He wants us to believe that he came from his police station to investigate a crime but kept sitting at Kure Bhar police station throughout from 5.00 p.m. to 9.30 p.m. Is this natural conduct? The obvious reason for so stating 40 is to discredit PW 5, PW 8 and PW 10 who have in unmistaka ble terms stated that A1 was at the police station and had beaten the deceased. DW 1 stand belied by the general diary entry made at his police station on 20.10.1971 to the effect that on reaching Kure Bhar he took A.S.I. (II) of that police station and went to village Dilawar ka Purwa for investigation and returned to his police station at 4.00 p.m. According to the said entry from Dilawar ka Purwa he went to Sultanpur where he passed the night, left for Ram nager next morning and returned to his police station via Durgaganj. The learned trial judge dealt with this part of the defence evidence thus: "It is also improbable of belief that once station officer Jaswant Singh had taken care to come to Kurebhar in order to make the investigation of the crime of his police station, he had leisurely lingered on at PS Kurebhar and not person ally proceeded to make the investigation of the said case". The learned trial judge observed that he appears to have come forward to help a member of his own fraternity. The learned trial judge, therefore, came to the conclusion: "If general diary entries Nos. 15 and 21 may have been falsely incorporated, where is the guarantee that the gener al diary entry No. 17 which falls in between these, may not have been falsely incorporated". The learned trial judge also felt that it was not possible to believe that an important police officer like A 1 would spend the whole day from 10.30 a.m. to 7.30 p.m. inquiring about an application at Village Tiker. The learned judge in the High Court considers the ap proach of the learned trial judge unacceptable because: "Sub Inspector Juswant Singh has stated that he himself had stayed at Police Station Kurebhar and had sent other members of his party and an A.S.I. of Police Station Kurebhar to Dilawar Ka Purwa. The mere fact that S.I. Jaswant Singh happens to be a Sub Inspector of Police is no ground to reject his testimony. After all there should be some reason for a police officer posted at police station Machlishahr at Jaunpur to falsely depose for defending Rafi 41 Uddin Khan appellant. If S.I. Jaswant Singh 's evidence is disbelieved in the present case, he himself incurs the risk of losing his job" This line of reasoning does not commend to us. We fail to understand how the learned judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job. The leaned trial judge gave sound reasons for disbelieving the evidence of DW 1 that he did not stir out of Kure Bhar police station from 5.00 p.m. to 9.30 p.m. The High Court failed to appreciate that on realising that the condition of the deceased had deteriorated, a false entry was made by A3 at the behest of A1 to show that (i) the deceased was not arrested on 19.10.1971 nor was he brought to the police station Kure Bhar by about 4.00 p.m. and (ii) that he was actually arrested by A2 from near the culvert of village Hanna Harora on 20.10.71 and was given a beating before actual arrest, a fact which is denied by A2 in his statement under Section 313 of the Code. Thus the foundation for absolving himself from the responsibility of having ill treated the deceased was laid. The trail court rightly holds that there is no guarantee that entry 17 is accurate when entries 15 and 21 are found to be false. The entry in the case diary regarding crime No. 28 of Machlishahr recorded by A.S.I. Bankey Bihari who had accompanied DW 1 clearly men tions that when they reached Kure Bhar they met the Thana Adhiyakshakh (i.e. A 1) at about 5.00 p.m. which negatives the theory that A1 had left the police station at 10.30 a.m. and had not returned till 7.30 p.m. of 19.10. Without coming to grips with the circumstances pointed out by the trial court for disbelieving DW 1, the High Court surpris ingly accepted his evidence as gospel truth only because he ran the risk of losing his job. The High Court should have realised that cases are not unknown where police officer have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation. The High Court should also have realised that it is general ly difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipu late as in this case. It is only in a few cases, such as the present one, that some direct evidence is available. In our view the reasons assigned by the High Court are too weak to stand judicial scrutiny. We are aware that so far as A 1 is concerned, we are called upon to interfere in an acquittal appeal. Since it is said that an acquittal 42 reinforces the presumption of innocence we have carefully considered the reasons given by the High Court for setting aside the conviction of A 1. We are satisfied beyond any manner of doubt that the High Court completely misdirected itself. We have dealt with the facts at some length to justify our interference under Article 136 of the Constitu tion. Had we not been fully satisfied that gross injustice was done because the High Court misdirected itself we would not have interfered in exercise of our powers under Article 136 of the Constitution. For the above reasons we dismiss Appeal No. 111 of 1979 preferred by A3 as we are satisfied that his conviction is correctly recorded. We allow the State 's appeal No. 477 of 1979 and restore the conviction of A1 recorded by the trial court by setting aside his acquittal by the High Court. On the question of sentence a fervent appeal was made by his counsel that having regard to the passage of time and the changed circumstances A1 should not be sent to jail and the sentence of fine should suffice. We are unable to accede to this request. The offence is of a serious nature aggravated by the fact that it was committed by a person who is sup posed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for other wise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency. We, therefore, do not think we would be justified in reducing the punish ment imposed by the trial court. A1 is on bail. Since the trial court 's order of his conviction and sentence is restored he will surrender to his bail within a week 's time to serve his sentence.	Three police personnel were charged with offences aris ing out of the death of one Ram Dhiraj Tiwari in police custody. Rafiuddin Khan (accused No. 1) was the Sub Inspec tor of Police Station Kure Bhar, Shamsher Ali (accused No. 2) was a Beat Constable, and Gauri Shankar Sharma (accused No. 3) was the Head Moharrir. The prosecution version was that AI directed A2 and two police chowkidars, to apprehend Ram Dhiraj, deceased, who was a suspect in a dacoity case. Pursuant thereto, Ram Dhiraj was arrested from his residence on 19.10.1971 at about 11.00 a.m. and brought to the police station. The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the presence of two other constables, whose identity was not established, which resulted in as many as 28 injuries to which he ultimately succumbed. It was also alleged that A1 had demanded a bribe of Rs.2000 to desist from meeting out third degree punish ment to the suspect. The case against A3 was that he delib erately and wilfully posted false entries in the General Diary to help A1. The defence version on the other hand was that the deceased was arrested on 20.10.1971 by A2 and his companions from near a culvert in the village and he was beaten up by them as he resisted arrest. The Trial Court accepted the prosecution version and convicted A1 under section 304 (Part II) section 330, sec tions 201 and 218/34 and 161, IPC, and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. Accused No. 2 was acquitted of all charges. Accused No. 3 was convicted under sections 201 and 218, IPC. The High Court, however, accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m. The High Court found that the three prosecution witnesses were not eye witnesses 29 30 to the incident and hence their story about beating in the police station and the demand of bribe could not be accept ed. The High Court accepted the evidence of DW 1, Jaswant Singh, Station Officer, Machilishahr Police Station, who claimed to have come to Kure Bhar Police Station on 19.10.1971 for investigation of another offence. According to DW 1, AI was not at the police station till about 7.30 p.m. While dismissing the appeal filed by accused No. 3, and allowing the State appeal against the acquittal of accused No. 1, and restoring his conviction recorded by the trial court by setting aside his acquittal by the High Court, this Court, HELD: (1) Both the courts have recorded a concurrent finding of fact that the deceased was arrested on 19.10.1971 at about 11.00 a.m. from his village Khajapur. That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false. The need to make a false entry speaks for itself. [36E F] (2) It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour, but that by itself, without anything more, was not sufficient to doubt their tastimony which receives corroboration from medical evidence. Unless there are sound grounds to reject their evidence it would not be proper to brush aside their evi dence on the specious plea that they are interested witness es. [37F G] (3) It is difficult to understand how the learned Judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job. The High Court should have realised that cases are not unknown where police officers have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation. [41B] (4) The High Court should have realised that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for re sorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case. It is only in a few cases, such as the present one, that some direct evidence is available. [41F G] (5) After carefully considering the reasons given by the High Court for setting aside the conviction of AI, this Court is satisfied beyond any manner of doubt that the High Court had completely misdi 31 rected itself and hence interference by this Court under Article 136 of the Constitution, was justified. [42A B] (6) The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authori ty to brutally assault persons in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency. This Court does not think it would be justified in reducing the punishment imposed by the trial court. [42D E]
ivil Appeal Nos. 2168, 2569, of 1966, 76, 123 and 560 of 1967. Appeals by special leave from the Award dated June 30, 1966 of the Industrial Tribunal, Delhi in I.D. No. 70 of 1958. S.T. Desai, Rameshwar Nath and Mahinder Narain, for the appellant (in C.A. No. 2168 of 1966) and respondents Nos. 1 and 2 (in C.As. Nos. 123 and 560 of 1967). 311 H.R. Gokhale, A.K. Sen, R.P. Kapur and 1. N. Shroff, for the appellant (in C.A. No. 256,9 of 1966) and respondent No. 3 (in C.As. Nos. 123 and 560 of 1967). B. Sen, 1. D. Gupta, M.N. Shroff for 1. N. Shroff, for the appellant (in C.A. No. 76 of 1967). M.K. Ramamurthi, Madan Mohan, Shyamala Pappu and Vineet Kumar, for the appellant (in C.A. No. 123 of 1967), respondents Nos. 1 (a) and 4(a) (in C.A. No. 2168 of 1966), respondent No. 1 (in C.A. No. 2569 of 1966), respondent No. 1 (in C.A. No. 76 of 1967) and respondent No. 5 (in C.A. No. 560 of 1967). V.C. Parashar and O.P. Sharma, for the appellant (in C.A. No. 560 of 1967) respondents Nos. 1 (b) and 4(b) (in C.A. No. 2168 of 1966) respondent No. 2 (in C.A. No. 2569 of 1968) and respondent No. 2 (in C.A. No. 76 of 1967). The Judgment of the Court was delivered by Shah, J. These appeals arise out of an award made by the Industrial Tribunal, Delhi, in I.D. Reference No. 70 of 1958. The first three appeals are filed by the employers, and the last two by the employees. By its award the Industrial Tribunal (Delhi, has framed two schemes relating to payment of gratuity to the workmen employed in four textile units in the Delhi region. The employers and the workmen are dissatisfied with the schemes and they have filed these appeals challenging certain provisions of the schemes. In the Delhi region there are four textile units; the Delhi Cloth Mills which will be referred to. as D.C.M.; Swatantra Bharat Mills which will be referred to as S.B.M.; Birla Cotton Mills which will be referred to as B.C.M. and Ajudhia Textile Mills which will be referred to as A.T.M. The D.C.M. and S.B.M. are under one management. On March 4, 1958, the Chief Commissioner of Delhi made a reference under sections 10(1)(d) and 12(5) of the , relating to four matters in dispute, first of which is as follows: "Whether a gratuity for retirement benefit scheme should be introduced for all workmen on the following lines and what directions are necessary in this respect ? 1. for service less than 5 years Nil. for service between 5 10 years 15 days ' wages for every year of service. for service between 10 15 years 21 days ' wages for every year of service. 312 4. for service over 15 years one month 's wages for every year of service. " The reference related to workmen only and did not apply to the clerical staff or mistries. There are two workmens ' Unions in the Delhi region the Kapra Mazdoor Ekta Union hereinafter called 'Ekta Union ', and the other, the Textile Mazdoor Union. The Ekta Union made a claim principally for fixation of gratuity in addition to the benefit of provident fund admissible to the workmen under the Employees Provident Fund Act, to be computed on the consolidated wages inclusive of dearness allowance. The Ekta Union submitted by its statement of claim that a gratuity scheme based on the region cum industry principle i.e. a uniform scheme applicable to all the four units be framed. The Textile Mazdoor Union also supported the claim for the framing of a gratuity scheme on the basis of the consolidated wages of workmen but claimed that the scheme should be unit wise. At the trial, it appears that both the Unions pressed for a unit wise scheme of gratuity. The Tribunal entered upon the reference in respect of the fixation of gratuity scheme in February 1964 and made an award on June 30, 1966, operative from January 1, 1964. The award was published on August 4, 1966. By the award two schemes were framed one relating to the D.C.M. and S.B.M., and another relating to the B.C.M. and A.T.M. Under the second scheme the digit by which the number of completed year of service was to be multiplied in determining the total gratuity was smaller than the digit applicable in the case of the D.C.M. and the S.B.M. The distinction was made between the two sets of units, because the D.C.M. and S.B.M. were, in the view of the Tribunal, more prosperous units than the D.C.M. and A.T.M. The A.T.M., it was found, was a newcomer in the field of textile manufacture, and had for many years been in financial difficulties. The D.C.M. employs more than 8,000 workmen in its textile unit; the S.B.M. has on its roll 5,000 workmen; the B.C.M. has 6,271 workmen and the A.T.M. has 1,500 workmen. The D.C.M. and S.B.M. have a common retirement benefit scheme in operation since the year 1940. Under the scheme gratuity payable to workmen is determined by the length of service before retirement. The scheme of gratuity in operation in the D.C.M. and S.B.M. is as that, "In case of retirement from service of the Mills as a result of physical disability, due to over age or on account of death after a minimum of seven years '. 313 service in the concern: 7 years . Rs. 350/ 8 years . Rs. 425/ 9 years . Rs. 500/ 10 years . Rs. 575/ 11 years . Rs. 650/ 12 years . Rs. 725/ 13 years . Rs. 800/ 14 years . Rs. 875/ 15 years . Rs. 950/ 16 years . Rs. 1,050/ 17 years . Rs. 1,150/ 18 years . Rs. 1,250/ 19 years . Rs. 1,350/ 20 years . Rs. 1 '500/ The scale of gratuity, it is clear, is independent of the individual wage scale of the workman. In the B.C.M. and A.T.M. units there are no such schemes. Till the year 1958 there were no standardised wages in the textile industry. According to the Report of the Central Wage Board for the Cotton Textile Industry which was published on November 22, 1959, there were in India 39 regions in which the textile industry was located. The basic monthly wages of the workmen in the year 1958 varied between Rs. 18/ in Patna and Rs. 30/ in various centers like Bombay, Indore, Madras, Coimbatore, Madurai, Bhiwani, Hissar, Ludhiana, Cannanore and certain regions in Rajasthan and Delhi. The Wage Board recommended in Paragraph 106 of its Report: "The Board has come to the conclusion that an increase at the average rate of Rs. 8 per month per worker shall be given to all workers in mills of category I from 1st January 1960, and a further flat increase of Rs. 2 per month per worker shall be given to them from 1st January 1962. Likewise an increase at the average rate of Rs. 6 per month per worker shall be given to all the workers in mills of category 11 from 1st January 1960, and a further flat increase of Rs. 2 per month per worker shall be given to them from 1st January 1962. These increases are subject to the condition that the said sums of Rs. 8 and Rs. 6 shall ensure not less than Rs. 7 and Rs. 5 respectively to the lowest paid, and that the increase of Rs. 2 from 1st January 1962 shall be flat for all." Category I included the Delhi region. Since January 1, 1962, the basic minimum wage in the Delhi region is, therefore Rs. 40/Sup. CI/69 3 314 according to the recommendations of the Wage Board. In Bombay City and Island (including Kurla), the basic wage, according to the Report of the Wage Board, was also Rs. 30/and by the addition of Rs. 10 the basic wage of a workman came to Rs. 40/ . The workmen in other important textile centres also get the same rates. The Tribunal was of the view that the average basic wage of the workmen is Rs. 60/ since the implementation of the Wage Board in the Delhi region. No argument was advanced before this Court challenging the correctness of that assumption, by the employers or the workmen. It was also common ground that practically uniform basic wage levels prevail in all the large textile centres like Bombay, Ahmedabad, Coimbatore and Indore. Besides the basic wage the workmen receive dearness allowance under diverse awards made by the Industrial Tribunals which "seek to neutralize the cost of living index. " There is also a provident fund scheme under the Employees. Provident Fund Act, 1962, whereunder 8 1/3% of the basic wage and the dearnear allowance and the retaining allowance for the time being in force is contributed by the employee. Besides, there is a right to retrenchment compensation under the (section 25 FFF) and the Employees Insurance Scheme. In view of the observations of this Court in Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh(1), that "It is no longer open to doubt that a scheme of gratuity can be introduced in concerns where there. already exist other schemes such as provident fund or retrenchment compensation. This has been ruled in a number of cases of this Court and recently again in Wenger & Co. and others vs Their Workmen(2), and Indian Hume Pipe Company Ltd. vs Their Workmen(3). It is held in these cases that although provident fund and gratuity are benefits available at retirement they are not the same ,and one can exist with the other", no serious argument was advanced that the existence of these additional benefits disentitled the workmen to obtain benefits under a gratuity scheme if the employer is able to meet the additional burden. But on behalf of all the employers it was, urged that (1) in determining the quantum of gratuity, basic wage alone could be taken into account and not the consolidated wage; and (2 ) it was necessary for the Tribunal to fix when introducing a gratuity scheme the age of superannuation. On behalf of the D.C.M., S.B.M. and B.C.M. it was urged in addition, that a uniform scheme applicable to the entire industry on the region cumindustry basis should have been adopted and not a scheme or schemes applicable to individual units. On behalf of the A.T.M. (1) , (2) [1963] II L.L.J. 403. (3) [1959] II L.L.J. 830. 315 it was urged that its financial condition is not and has never been stable and the burden of payment of gratuity to workmen dying or disabled or on voluntary retirement from service or when their employment is terminated is excessive and the Unit was unable, to bear that burden. It was also urged on behalf of the A.T.M. that in view of a settlement which was reached between the management and workmen it was not open to the Tribunal to ignore the settlement and to impose a scheme for payment of gratuity in favour of the workmen in this reference. While broadly supporting the award of the Tribunal the workmen claim certain modifications. They claim that a shorter period of qualifying service for workmen voluntarily retiring should be provided, and gratuity should be worked out by the application of a larger multiple of days for each completed year of service; that the ceiling of gratuity should be related to a larger number of months ' wages; that gratuity should be awarded for dismissal even for misconduct; that provision should be made for payment of gratuity to Badli workmen irrespective of the number of days for which they work in a year; that the expression "average of the basic wage" should be appropriately clarified to avoid disputes in the implementation of the gratuity scheme, and that the award should be made operative not from January 1, 1964, but from the date of the reference to the Tribunal. The two schemes which have been flamed may be set out: ANNEXURE 'A ' "Gratuity scheme applicable to the Delhi Cloth Mills and the Swatantra Bharat Mills. ' Gratuity will be payable to the employees concerned, in this reference, on the scale and subject to the conditions laid down below: 1. On the death of an employee while in the service of the mill company or on his becoming physically or mentally incapacitated for further service: (a) After 5 years continuous service and less than 10 years ' service 12 days ' wages for each.completed year of service. (b) After continuous service of 10 years 15 days ' wages for each completed year of service. The gratuity will be paid in each case under clauses 1(a) and 1(b) to the employee, his heirs or executors, or nominee as the case may Provided that in no case will an employee, who is in service on the date on which this scheme is brought 316 into operation be paid an mount less than what he would have been entitled to under the pre existing scheme of the Employees ' Benefit Fund Trust. (ii) Provided further that the maximum payment to be made shall not exceed the equivalent of 15 months wages. (iii) Provided further that gratuity under this scheme will not be payable to any employee who has already received gratuity under the preexisting scheme of the Employees ' Benefit Fund Trust. On voluntary retirement or resignation after 15 years ' service 15 days ' wages for each completed year of service. Provided that the maximum payment to be made shall not exceed the equivalent of 15 months ' wages. On termination of service on any ground whatsoever except on the ground of misconduct As in clauses 1 (a) and 1 (b) above. Provided that the maximum payment to be made shall not exceed the equivalent of 15 months ' wages. Definitions: (a) 'Wages ' The term "wages" in the scheme will mean the average of the basic wage plus the dearness allowance drawn during the 12 months next preceding death, incapacitation, voluntary retirements, resignation or termination of service and will not include overtime wages. (b) "Basic wages" The term "basic wage" will have the meaning as defined in paragraph 110 of the Report of the First Central Wage Board for Cotton Textile Industry. (c) "Continuous service" means un interrupted service and includes service which may be interrupted on account of sickness, authorised leave, strike which is not illegal, lock out or cessation of work which is not due to any fault on the part of the employee: Provided that interruption in service upto six months ' duration at any one time and 18 317 months duration in the aggregate of the nature other than those specified above shall not cause the employee to lose the credit for previous service in the Mills for the purpose of calculation of gratuity, but at the same time shall not entitle him to claim benefit of gratuity for the period of such interruption. Service for the purposes 'of gratuity will include service under the previous management whether in the particular mill or other sister mill under the same management. (d) "Resignation" The word "resignation" will include abandonment of service by an employee provided he Submits his resignation within a period of three months from the first day of absence without leave. (e) "Length of service" For counting "length of service: ', fraction of a year exceeding six months shall count as one full year, and six months or less shah be ignored. "Application for gratuity" Any person eligible to claim payment of gratuity under this scheme shall, so far as possible, send a written application to the employer within a period of six months from the date its payment becomes due. "Payment of gratuity" The employer shall pay the amount of gratuity to the employee and in the event of his death before payment to the person or persons entitled to it under clause 1 above within a period of 90 days of the claim being presented to the employer and found valid. "Claims by persons who are no longer in service" Claims by persons who are no longer in service of the Company on the date of the publication of this award shall not be entertained unless the claims are preferred within six months from the date of publication of this award. "Badli service" Gratuity shall be paid for only those years of Badli service in which the employee has worked for not less than 240 days. 318 9. "Proof of incapacity" In proof of physical or mental incapacity, it will be necessary to produce a certificate from any one of the Medical Authorities out of a panel to be jointly drawn up by the parties. "Nomination" (a) Each employee shall, within six months from the date of the publication of this award, make a nomination conferring the right to receive the amount of gratuity that may be due to him in the event of his death, before payment has been made. (b) A nomination made under sub clause (a) above may, at any time, be modified by the employee after giving a written notice of his intention of doing so. if the nominee pre deceases the employee, the interest of the nominee shall revert to the employee who may make a fresh nomination in respect of such interest. " ANNEXURE 'B ' "Gratuity scheme applicable to the Birla Cotton Spg. & Wvg. Mills and the Ajudhia Textile Mills. Gratuity will be payable to the employees concerned in this reference, on the scale and subject to the conditions laid down below: 1. On the death o/an employee while in the service of the Mill company or on his becoming physically or mentally incapacitated for further service: (a) After 5 years continuous service and less than 10 years service One fourth month 's wages for each competed year of service. (b) After continuous service of 10 years One third month 's wages for each completed year of service. The gratuity will be paid in each case under clauses 1(a) and 1(b) to the employee, his heirs or executors, or nominee, as the case may be. Provided that the maximum payment to be made shah not exceed the equivalent of 12 months ' wages. On voluntary retirement or resignation after 15 years service On the same scale as in 1 (b) above. Provided that the maximum payment to be made shall not exceed the equivalent of 12 months ' wages. On termination of service by the employer for any reason whatsoever eXcePt on the ground of misconduct As in clauses 1(a) and 1(b) above. 319 provided that the maximum payment to be made shall not exceed the equivalent of 12 months ' wages." [Clauses 4 to 10 of Annexure 'B ' are the same I as in Annexure 'A ' and need not be repeated.] Whether against the A.T.M. the Tribunal was incompetent to make an award framing a .scheme for payment of gratuity may first be considered. Counsel for the A.T.M. urged that there was a settlement between the workmen and the management of the A.T.M. in consequence of which the Tribunal was incompetent to make an award. The facts on which reliance was placed are these: After ,the dispute was referred .to the Industrial Tribunal, there were negotiations between the management of the A.T.M. and workmen represented by the two Unions and an agreement was reached, the terms whereof were recorded in writing. Clauses 6 and 11 (4) of the agreement relate to the claim for gratuity: "6. The workmen agree not to claim any further increase in wages, basic or dearness, or make any other demand involving financial burdens on the Company either on their initiative or as a result of any award, till such time as the Working of the mills results in profits. The parties hereto agree to jointly withdraw in terms of this settlement, the following pending cases and proceedings before the Courts, Tribunals and Authorities and ' more especially . . . . . (4) With regard to I.D. No. 70 of 1958 the workers agree not to claim any benefits that ,may be granted under the above reference by the Hon 'ble Industrial Tribunal in case the award is. given in favour of the workmen, subject to clause 7 above." (It is common ground that reference to el. 7 is erroneous: it should be .to cl. 6.) The workmen and the management of the unit submitted an application before the Tribunal on December 28, 1959, admitting that there had been an "overall settlement" of all the pending disputes between the management of A.T.M. and its workmen represented by the two Unions, and requested that an interim award be made in terms of the agreement insofar as the dispute related to the A.T.M. No order was passed by the Tribunal on that application. On June 4, 1962, the Manager of the A.T.M. applied to the Tribunal that an interim award be pronounced in terms of the agreement. The workmen had apparently changed their attitude by that time and filed a written statement and requested that the ,prayer contained in paragraph 3 of the application "be rejected 320 as impermissible in law". The Tribunal made an order on November 26, 1962, and observed: ". the only interpretation that can be given to clause 11(4) of the settlement read with clause 7 is, that the workers of the Ajudhia Textile Mills had bound themselves not to claim any benefits that might be granted by the Tribunal in the award on the present reference, if it turns out to be in favour of the workmen unless and until the working of the Mills results in profit. The fact that the passing of an award on the demands was envisaged under the settlement goes to show that the demands were to be adjudicated upon in any case. The main case will now proceed in respect of all the mills and the effect of the settlement and of the application dated 28th December, 1959, and of the 5th July 1962 will be considered at the time of the final award. " But in making the final award the Tribunal did not specifically refer to the settlement. The terms of cl. 6 of the settlement clearly show that if it be found that the A.T.M. had acquired financial stability, it will be liable to pay gratuity to the workmen. We are unable to agree with the contention of counsel for the A.T.M. that it was intended by the parties that the adjudication proceedings against the A.T.M. should be dropped, and after the A.T.M. became financially stable a fresh claim should be made by the workmen on which a reference may be made by the Government for adjudication of the claim for gratuity against the A.T.M. The contention by the management of the A.T.M. that the Tribunal was incompetent to determine the gratuity payable to the workmen of the A.T.M. must therefore fail. The other contention raised on behalf of the A.T.M. that its financial position was "unstable" need not detain us. The Tribunal has held that the A.T.M. was working at a loss since the year 1953 54 and the losses aggregated to Rs. 6.22 lakhs in the year 1958 59, but thereafter the financial position of the Unit improved. The trading account for the period ending March 31, 1960, showed profits amounting to Rs. 3.10 lakhs. In 1960 61 there was a surplus of Rs. 11.18 lakhs out of which adjusting the depreciation, development rebate reserve and reserve for bad and doubtful debts, there was a balance of Rs. 7.10 lakhs. In 1961 62 the net profits of the Unit amounted to Rs. 7.48 lakhs and the A.T.M. distributed Rs. 52,500/ as dividend. In 1962 63 there was a gross profit of Rs. 4.18 lakhs and after adjusting depreciation and development rebate reserve there was a net deficit of Rs. 30,517/ . In 1963 64 there was a gross profit of Rs. 14.29 lakhs and after adjusting depreciation, reserve for doubtful debts, bonus to employees and development rebate reserve, there re 321 mained a net profit of Rs. 4.71 lakhs. The Tribunal observed that by 1961 62 all previous losses of the Unit were wiped out and that even during the year 1962 63 in which there was labour unrest the gross profits were substantial and taking into consideration the reserves built by the Company "the picture was not disheartening and from the great progress that had been made since 1959 60 there was every reason to think that the Mill had achieved stability and reasonable prosperity and that it had an assured future", and the Company was in a position to meet the burden of a modest gratuity scheme. We see no reason to disagree with the finding recorded by the Tribunal on this question. On behalf of the D.C.M., S.B.M., and B.C.M. it was urged that normally gratuity schemes are framed on the region cum dustry principle, i.e., a uniform scheme applicable to all Units in an industry in a region is framed, and no ground for departure from that rule was made out. It was urged that this Court has accepted invariably the region cum industry principle in fixing the rates at which gratuity should be p.aid. In our judgment no such rule has been enunciated by this Court. In Bharatkhand Textile Mfg. Co. Ltd. vs Textile Labour Association, Ahmedabad(1), this Court in dealing with the question whether the Industrial Court had committed an error in dealing with the claim for gratuity on industry wise basis negatived the contention of the employers that the unit wise basis was the only basis which could be adopted in fixing the rates of gratuity. It was observed at p. 345: "Equality of competitive conditions is in a sense necessary from the point of view of the employers themselves; that in fact was the claim made by the Association which suggested that the gratuity scheme should be framed on industry wise basis spread over the whole of the country. Similarly equality of benefits such as gratuity is likely to secure contentment and satisfaction of the employees and lead to industrial peace and harmony. if similar gratuity schemes are framed for all the units of the industry migration of employees from one unit to another is inevitably checked, and industrial disputes arising from unequal treatment in that behalf are minimaised. Thus, from the point of view of both employers and employees industry wise approach is on the whole desirable. " It is clear that the Court rejected in that case the argument that rates of gratuity should be determined unit wise: the Court did not rule that in all cases the region cum industry principle should be adopted in fixing the rates of gratuity. That was made explicit in a later judgment of this Court: Burhanpur Tapti Mills Ltd. vs (1) ; 322 Burhanpur Tapti Mills Mazdoor Sangh(x). This Court observed at p. 456: ". it has been laid down by this Court that there are two general methods of fixing the terms of a gratuity scheme. It may be fixed on the basis of industry cum region or on the basis of units. Both systems axe admissible but regard must be had to the surrounding circumstances to select the right basis. Emphasis must always be laid upon the financial position of the employer and his profit making capacity whichever method is selected." In Garment Cleaning Works vs Its Workmen(1) this Court observed at p. 713: ". it is one thing to hold that the gratuity scheme can, in a proper case, be flamed on industry cum region basis, and another thing to say that industry cum region basis is the only basis on which gratuity scheme can be framed. In fact, in a large majority of cases gratuity schemes are drafted on the basis of the units and it has never been ,suggested or held that such schemes are not permissible. " The Tribunal in the award under appeal observed: "There are . . certain peculiar features in the textile industry in this region which militate against an indnstry cum region approach. Apart from the fact that one of the four units, namely, the Ajudhia Textile 'Mills is a much weaker unit than the rest and has passed through a chequered career during its existence, it has to be borne in mind that two of the units namely D.C.M. and S.B.M. which axe sister concerns, already have some sort of a gratuity scheme providing for two important retiral benefits, namely, death and physical disablement on a scale which is independent of wage variations and is not unsubstantial at least for categories in the lower levels. " The Tribunal further observed: "if a common scheme is framed for the entire textile industry at Delhi i.e. for all the four units the quantum of benefits under that scheme will naturally have to be much lower in consideration of the financial condition of the Ajudhia Textile Mill, than if a unit wise scheme is framed. Moreover in a common scheme of gratuity the quantum of benefits to be provided will have to be (1) (2) ; [1961] I L.L.J. 513. 323 lower than the benefits already available to workmen in the D.C.M. and S.B.M. units for the most important contingencies for which gratuity benefits are meant, namely, death and retirement on account of physical or mental incapacity. Such a lowering of the quantum of benefits would not in my view be desirable as it would create legitimate discontent. " In our judgment, no serious objection may be raised against the reasons set out by the Tribunal in support of the view that unitwise approach should be adopted in the reference before it and not the region cum industry approach. No case is there/ore made out for interference with the award made determining the rates of gratuity unit wise. We also agree with the Tribunal that on the terms of the reference it was incompetent to fix the age of superannuation forworkmen. We are unable to hold that a gratuity scheme may be implemented only if the age of superannuation of the workmen is determined by the award. Support was sought to be derived by counsel for the employers in support of his plea from the observations made by this Court in Burhanpur Tapti Mills Ltd. 's case(D, where in examining the nature of gratuity, it was observed: "The voluntary retirement of an inefficient or old ' or worn out employee on the assurance that he is to get a retiral benefit leads to the avoidance of industrial disputes, promotes contentment among those who look for promotions. , draws better kind of employees and improves the tone and morale of the industry. It is beneficial all round. It compensates the employee who as he grows old knows that some compensation for the gradual destruction of his wage earning capacity is being built up. By inducing voluntary retirement of old and worn out workmen it confers on the employer a benefit akin to the replacing of old and worn out machinery. " There is, in our judgment, nothing in these observations which justifies the view that a gratuity scheme cannot be effective unless it is accompanied by the fixation of the age of superannuation for the workmen in the industry. There is another objection to the consideration of this claim made on behalf of the employers. By the express terms of reference the Tribunal is called upon to adjudicate on the question of fixation of gratuity: there is no .reference either expressly or by implication to the fixation of the age of superannuation and in the absence of any reference relating to the fixation of the age of (1) [1965] 1 LL.J. 453. 324 superannuation, the Tribunal was not competent to fix the age of superannuation. A gratuity scheme may, in our judgment, be implemented even without fixing the age of superannuation. The gratuity scheme in operation in the D.C.M. and S.B.M. has been effectively in operation without any age of superannuation for the workmen in the two units. An enquiry into the question of fixing the age of superannuation did not arise out of the terms of reference. No such claim was made by workmen and ' even in the written statement filed by the employers no direct reference was made to the fixation of the age of superannuation, nor was there any plea that before framing a gratuity scheme the Tribunal should provide for the age of superannuation. We agree with the Tribunal that fixation of the age of superannuation was not incidental to the ,framing of the gratuity scheme 'and it was neither necessary nor desirable that it should be fixed. Counsel for the employers urged that the Tribunal committed a serious error in relating the computation of gratuity payable to the workmen on retirement on the consolidated monthly wage and not on the basic wage. "Gratuity" in its etymological sense means a gift especially for services rendered or return for favours received. For some time in the early stages in the adjudication of industrial disputes, gratuity was treated as a gift made by the employer at his pleasure and the workmen had no right to claim it. But since then there has been a long line of precedents in which it has been ruled that a claim for gratuity is a legitimate claim which the workmen may make and which in appropriate cases may give rise to an industrial dispute. In Garment Cleaning Works ' case(1) it was observed that gratuity is not paid to the employees gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer. The same view was expressed in Bharatkhand Textile Mfg. Ltd. 's case(2) and Calcutta Insurance Ltd. vs Their Workmen(a). Gratuity paid to workmen is intended to help them after retirement on superannuation, death, retirement, physical incapacity, disability or otherwise. The object of providing a gratuity scheme is to provide a retiring benefit to workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer. It is one of the 'efficiency devices ' and is considered necessary for an 'orderly and humane elimination ' from industry of superannuated or disabled employees who, but for such retiring benefits, would continue in employment even though they function inefficiently. It is not paid to an employee .gratuitously or merely as a matter of boon; it is paid to him for long and meritorious service rendered by him to the employer. (1) (2) ; (3) [1967] II L.L.J. 1. 325 On the findings recorded by the Tribunal all the textile units in the Delhi region are able to meet the additional financial burden, resulting from the imposition of a gratuity scheme. The D.C.M. and S.B.M. have their own schemes which enable the workmen to obtain substantial benefit on determination of employment. The B.C.M. though a weaker unit is still fairly prosperous and is able to bear the burden: so also the A.T.M. But the important question is whether these four units should be made liable to pay gratuity computed on the consolidated wage i.e., basic wage plus the dearness allowance. The Tribunal was apparently of the view that in determining the question the definition of the word "wages. " in the industrial Disputes Act, 1947, would come to the aid of work men. The expression "wages" as defined in section 2(rr) of the 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 or of work done in such employment and includes among other things, such allowances (including dearness allowance) as the workman is for the time being entitled to. But we are unable to hold that in determining the scope of an industrial reference, words used either in the claim advanced or in the order of reference made by the Government under section 10 of the must of necessity have the meaning they have under the . Merely because the expression "wages" includes dearness allowance within the meaning of the , the Tribunal is not obliged to base a gratuity scheme on consolidated wages. The Tribunal has observed that the basic average wage of a workman in the textile industry in the Delhi region may be taken at Rs. 60/ per month, and the dearness allowance at Rs. 100/per month, and even if full one month 's basic wage is adopted as the minimum quantum of benefits to be allowed in the case of wage group with service of 5 years and more the scale of benefit would be very much lower than the present scale in the two contingencies provided in the Employees Benefit Fund Trust Scheme in operation in the D.C.M. and S.B.M. And observed the Tribunal: "In view of the limitations of the terms of reference, the quantum cannot exceed 15 days ' wages for every year of service from 5 to 10 years and 21 days ' wages for every year of service from 10 15 years. Any schemes framed within the limitations of the terms of reference on the basis of basic wage alone will therefore mean a scale of benefits much lower than even the present scheme under the Employees Benefit Fund Trust. Such 326 a scheme cannot, therefore, be framed without causing grave injustice and acute discontent, because it will mean the deprivation of even the present scale of benefits in the case of a large body of workers. In order to maintain, so far as possible, the present level of benefits I have, therefore, no alternative but to frame for these two units a scheme based on basic wage plus dearness allowance. " A scheme of gratuity based on consolidated wages was also justified in the view of the Tribunal because it "was also necessary to compensate for the ever diminishing market value of the rupee". The Tribunal did however observe that normally gratuity is based not on the consolidated wage but on basic wage. But since 13,000 workmen out of a total of 20,000 workmen in the region would stand to lose the benefits granted to them under a voluntary scheme introduced by the D.C.M. and S.B.M. a departure from the normal pattern should be made and gratuity should be based on the consolidated monthly wage. In our judgment, the conclusion of the Tribunal cannot be supported. The primary object of industrial adjudication is, it is said, to adjust the relations between the employers and employees or between employees inter se with the object of promoting industrial peace, and a scheme which deprives workmen of what has. been granted to them by the employer voluntarily would not secure industrial peace. But on that account the Tribunal was not justified in introducing a fundamental change in the concept of a benefit granted to the workmen in the textile industry all over the country by numerous schemes. , The appropriate remedy is to introduce reservations protecting benefits already acquired and to frame a scheme consistent with the normal pattern prevailing in the industry. We consider it fight to observe that in adjudication of industrial disputes settled legal principles have little play: the awards made by industrial tribunals are often the result of ad hoc determination of disputed questions, and each determination forms a precedent for determination of other disputes. An attempt to search for principle from the law built up on those precedents is a futile exercise. To the Courts accustomed to apply settled principles to facts determined by the application of the judicial process, an essay into the unsurveyed expanses of the law of industrial relations with neither a compass nor a guide, but only the pillars of precedents is a disheartening experience. The Constitution has however invested this Court with power to sit in appeal over the awards of Industrial Tribunals which are, it is said, rounded on the somewhat hazy background of maintenance of industrial peace, which secures the prosperity of the industry and improvement of the conditions of workmen employed in the industry, and in 327 the absence of principles precedents may have to be adopted as guides some what reluctantly to secure some reasonable degree of uniformity of harmony in the process. But the branch of law relating to industrial relations the temptation to be crusaders instead of adjudicators must be firmly resisted. It would not be out of place to remember the statement of the law made in a different context but nonetheless appropriate here by Douglas, J., of the Supreme Court of the United States in United Steel Workers of America vs Enterprise Wheel and Car Corporation(1): ". as arbitrator does not sit to dis pense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award. is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator 's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. " We may at once state that we are not for a moment suggesting that the law of industrial relations developed in Our country has proceeded on lines parallel to the direction of the law in the United States. One of the grounds which appealed to the Tribunal in relating to the rate of gratuity to the consolidated wage was the existence of a gratuity scheme in the D.C.M. & S.B.M. and the assumption that the Tribunal in adjudicating a dispute is always, in exercise of its jurisdiction, limited when determining the rate of gratuity to the multiple number of days of service in the order of reference, and cannot depart therefrom. We are unable to hold that Industrial Tribunal is subject to any such restriction. Its power is to adjudicate the dispute. It cannot proceed to adjudicate disputes not referred: but when called upon to adjudicate whether a certain scheme "on the lines indicated" should he framed, the basic guidance cannot be deemed to impose a limit upon its jurisdiction. As already stated, gratuity is not in its present day concept merely a gift made by the employer in Iris own discretion. The workmen have in course of time acquired a right to gratuity on determination of employment provided the employer can afford having regard to his financial condition, to pay it. There is undoubtedly no statutory direction for payment of gratuity as it is in respect of provident fund and retrenchment compensation. The conditions for the grant of gratuity are, as observed in Bharatkhand (1) ; 325 Textile Mfg. Co. Ltd. 's case(1), (i) financial capacity of the employer; (ii) his profit making capacity; (iii) the profits earned by him in the past; (iv) the extent of his reserves; (v) the chances of his replenishing them; and (vi) the claim for capital invested by him. But these are not exhaustive and there may be other material considerations which may have to be borne in mind in determining the terms and conditions of the gratuity scheme. Existence of other retiring benefits such as provident fund and retrenchment compensation or other benefits do not destroy the claim to gratuity: its quantum may however have to be adjusted in the light of the other benefits. We may repeat that in matters relating to the grant of gratuity and even generally in the settlement of disputes arising out of industrial relations, there are no fixed principles, on the application of which the problems arising before the Tribunal or the Courts may be determined and often precedents of cases determined adhoc are utilised to build up claims or to resist them. It would in the circumstances be futile to attempt to. reduce the grounds of the decisions given by the Industrial Tribunals, the Labour Appellate Tribunals and the High Courts to the dimensions of any recognized principle. We may briefly refer to a few of the precedents relating to the grant of gratuity. In May and Baker (India) Ltd. vs Their Workmen(2) the claim of the workmen to fix gratuity on the basis of gross salary was rejected by the Industrial Tribunal and the quantum was related to basic salary i.e., excluding dearness allowance. The view taken by the Tribunal was affirmed by this Court. In British India Corporation vs Its Workmen(3) the existing gratuity scheme directed payment of gratuity in terms of consolidated wages. The Tribunal however modified the scheme while retaining the basis of consolidated wages which was held to be justified and reasonable. This Court observed that prima facie gratuity is awarded not by reference to consolidated wages but on basic wages and the Tribunal had made a departure from that. But in the view of the Court no interference with the scheme framed by the Tribunal was called for. In British Paints (India) Ltd. vs Its Workmen(4) the Court followed the judgment in May and Baker (India) Ltd.(a) that it would be proper to follow the usual pattern of fixing the quantum of gratuity on basic wage excluding dearness allowance. But the same principle was not adhered to in all cases. For instance in Hindustan Antibiotics Ltd. vs Their Workmen(5), it was observed: (1) ; (2) [1961] II L.L.J. 94 (S.C.). (3) [1965] II L.L.J. 556 (S.C.). (4) [1966] I L.L.J. 407. (5) [1967] I L.L.J. 114 (S.C.)==A.I.R. 329 "The learned counsel for the Company then argued that there is a flagrant violation or departure from the accepted norms in fixing the wage structure and the dearness allowance and therefore, as an exceptional case, we should set aside the award of the Tribunal and direct it to. re fix the wages. " In that case the Tribunal had awarded gratuity related to consolidated wages and without any contest the order of the Tribunal was confirmed. In Remington Rand of India vs The Workmen(1) it was contended on behalf of the employer that the Tribunal was not justified in awarding gratuity on the basis of consolidated wages and should have awarded it on the basic wages alone. In dealing with that plea this Court Observed that the Tribunal was on the facts of the case justified in proceeding in that way. It is not easy to extract any principle.from these cases; as precedents they are conflicting. If the matter rested there, we could not interfere with the conclusion of the Tribunal, but the Tribunal has failed to take into account the prevailing pattern in the textile industry all over the country. The textile industry is spread over the entire country, in pockets some large other small. There are large and concentrated pockets in certain regions and smaller pockets in other regions. Except in two or three of the smaller States, textile units are to be found all over the country. It is a country wide industry and in that industry, except in one case to be presently noticed, gratuity has never been granted on the basis of consolidated wages. Out of 39 centres in which the textile industry is located there is no centre in which gratuity. payable to workmen in the textile industry pursuant to awards or settlements is based on consolidated wages. In the two principal centres viz., Bombay and Ahmedabad, schemes for payment .of gratuity to workmen in the textile industry the rates of gratuity are related to basic wages. The B.C.M. have tendered before the Tribunal a chart setting out the names of textile units in which the gratuity is paid to the workmen on basic wages. These are the Textile Units, Bhavnagar (Gujarat) Shahu Chhatrapati Mills, Kolhapur (Maharashtra); Jivajirao Cotton Mills, Gwalior (Madhya Pradesh); Madhya Pradesh Mill owners Association, (Indore), Bombay, Ahmedabad (Gujarat); New Sherrock Spg. & Wvg. Co. Ltd. Nadiad (Gujarat); Raja Bahadur Motilal Mills, Poona (Maharashtra); Shree Gajanan Wvg. Mills, Sangli (Maharashtra); T.I.T. Bhiwani (Haryana); Jagatjeet Cotton Mills, Phagwada (Punjab); 36 Textile Mills in West Bengal; and Umed Mills (Rajasthan). It is true that the chart does not set out the gratuity schemes, if any, in all the 39 centres referred to in the Report of the First Wage Board, but the chart relates to a fairly representative segment of the industry. No evidence has been (1) [1968] I L.L.J. 542. Cl/69 4 330 placed before the Court to prove that in determining gratuity payable under any other scheme in a textile unit the rate is related to consolidated wages. The two large centres in which the industry is concentrated are Bombay and Ahmedabad. In Rashtriya Mill Mazdoor Sangh, Bombay, vs Millowners Association Bombay(1), a scheme was framed by the Industrial Court, exercising power under the Bombay Industrial Relations Act 11 of 1947, in which the quantum of gratuity was related to the basic wages alone. In paragraph 27 at p. 583 the Tribunal rejected the argument advanced by counsel for the workmen that since benefits like provident fund, retrenchment compensation, State Insurance Scheme, are granted in terms of monthly wages, gratuity should also be related to consolidated wages. They observed that in a large majority of awards of the Labour Appellate Tribunals and Industrial. Tribunals gratuity had been awarded in terms of basic wages, and that, "The basic wages reflect the differentials between the workers more than the total wages, as dearness allowance to all operatives is paid at a flat rate varying with the cost of living index. The gratuity schemes for the supervisory and technical staff as well as for clerks are also in terms of basic wages. " They accordingly related gratuity with the average basic wage earned by the workman during the twelve months preceding death, disability, retirement, resignation or termination of service. The scheme in the Bombay region was adopted in the dispute between the Textile Labour Association and the Ahmedabad Mill Owners Association. The award is reported in the Textile Labour Association, Ahmedabad vs Ahmedabad Millowners ' Association(2). The question whether gratuity should be fixed on the basis ,of consolidated wages was apparently not mooted, but it was accepted on both the sides that gratuity should be related to basic wages. An appeal against that decision in the Ahmedabad Millowners ' Association case(2) was brought before this Court in Bharatkhand Textile Manufacturing Co. Ltd. 's case(3), but no objection was raised to the award relating gratuity to basic wages. In the report of the Central Wage Board for the Cotton Textile Industry, 1959, in paragraph 110 gratuity was directed to be given on the basis. of wages plus the increases given under paragraph 106, but excluding the dearness allowance. The only departure from the prevailing pattern to which our attention is invited was made by the Labour Appellate Tribunal in regard to the textile units in the Coimbatore Region: Rajalakshmi Mills Ltd. vs Their Workmen(4). There was apparently (1) [1967] Industrial Court Reporter 561. (2) [1958] I L.LJ. 349. (3) ; (4) [1957] II L.L.J. 426. 331 no discussion on the question about the basis on which gratuity should be awarded. The Labour Appellate Tribunal observed: 2. "In all the appeals there is a contest by the mills on the subject of gratuity, and it is contended that the gratuity as awarded is too high. Both sides had much to say on the subject of the gratuity scheme as given by the adjudicator. During the course of the hearing we indicated to the parties the lines on which the gratuity scheme could be suitably altered to meet their respective points of view. We accordingly give the following scheme in substitution of the scheme at Para 85 of the award: 'All persons with more than five years and less than ten years ' continuous service to their credit, on termination of their service by the company, except in cases of dismissals for misconduct involving moral turpitude, shall be p.aid gratuity at the rate of ten days ' average rate of pay inclusive of dearness allowance for each completed year of service. ' . . . . . ." But this award was modified later by the Industrial Tribunal in Coimbatore District Mill Workers ' Union and Others vs Rajalakshmi Mills Co. Ltd.(1) The earlier award made in 1957 was sought to be reviewed before the Industrial Tribunal. The Tribunal observed that it would be the duty of the Tribunal to modify a gratuity scheme based upon some agreement or settlement if the terms of that agreement are found to be onerous and oppressive. The Tribunal stated that the original scheme was not applicable to all the units and taking into consideration the statutory provident fund scheme and "the fact that recently basic wages and dearness allowance have leaped up", there was No. justification for including the dearness allowance in any new scheme that might be framed for the new Mills; and that it would be most undesirable to have two sets of gratuity schemes in the same region with varying rates. In the view of the Tribunal there should be a uniform scheme for all the Mills, old and new, and on that ground also the retention of the dearness allowance under the old scheme must be refused. Counsel for the workmen relied upon an award made by the Industrial Tribunal in the Chemical Unit belonging to the D.C.M. which is published in D.C.M. Chemical Works vs Its Workmen(2). In that case gratuity was related to consolidated wages. The unit though belonging to the D.C.M. is entirely independent of the tex (1) [1964] I L.L.J. 638. (2) [1962] 1L.L.J. 388. 332 tile unit. The Company was treating that unit as separate from the textile unit and distinct for the purpose of recruitment of lab.our, sales and conditions of service for the workmen employed therein. The Chemical Unit had separate muster rolls for its employees and transfers from one unit to. the other, even where such transfers were possible, considering the utterly different kinds of businesses carried on in the different units, usually took place with the consent of the employee concerned. In upholding the gratuity scheme which was based on the consolidated wages, this Court observed: "As to the burden of the scheme, we do not think that, looking at it from a practical point of view and taking into account the fact that there are about 800 workmen in all in the concern, the burden per year would 'be very high, considering that the number of retirements is between three to four per centum of the total strength." The gratuity scheme was in a chemical unit, and not in a textile unit. The judgment of this Court merely affirmed the award of the Tribunal and sets out no reasons why gratuity should be related to consolidated wages. We do not regard the affirmance by this Court of the award of the Industrial Tribunal as an effective or persuasive precedent justifying a variation from the normal pattern of gratuity schemes in operation in the textile industry all over the country. It is clear that in the gratuity schemes operative at present to which our attention has been invited, in force in the textile industry payment of gratuity is related not to consolidated wages but to basic wages. It is true that under the scheme which is in operation in the D.C.M. and S.B.M. payment which is related to the length of service may in some cases exceed the maximum awardable under a scheme of gratuity benefit related to basic wages. That cannot be a ground for making a vital departure from the prevailing pattern in the other textile units in the country. But it may be necessary to protect the interest of the members governed by the original scheme. Determination of gratuity is not based on any definite rules. In each case it must depend upon the prosperity of the concern, needs of the workmen and the prevailing economic conditions, examined in the light of the auxiliary benefits which the workmen may get on determination of employment. If all over the country in the textile centres payment of gratuity is related to the basic wages and not on consolidated wages any innovation in the Delhi region is likely to give rise to serious industrial disputes in other centres all over the country. The award if confirmed would not ensure industrial peace: it is likely to foment serious unrest in 333 other centres. If maintenance of industrial peace is a governing principle of industrial adjudication, it would be wise to maintain a reasonable degree of uniformity in the diverse units all over the country and not to make a fundamental departure from the prevailing pattern. We are, therefore, of the view that the Tribunal 's award granting gratuity on the basis of consolidated wage cannot be upheld. Tiffs modification will not, however, affect the existing benefits which are available under the schemes framed by the D.C.M. and S.B.M. insofar as those two units are. concerned. Mr. Ramamurthi for the workmen also. contended that in the matter of relating gratuity to wages consolidated or basic the principle of region cum industry should be applied and an "overall view of similar and uniform conditions in the industry ' in different centres" should not be adopted. It was also urged that the basic wage is very low and the class of wage to which gratuity was related played a very important part in the determination of gratuity. The basic wage is however low in all the centres and if it does not play an important part in other centres, we see no reason why it should play only in the Delhi region a decisive part so as to make a vital departure from the scheme in operation in the other centres in the country. We are strongly impressed by the circumstance that acceptance of the award of the Tribunal in the present case is likely to create conditions of great instability all over the country in the textile industry. In that view, we decline to uphold the order of the Tribunal fixing gratuity on the basis of consolidated wages inclusive of dearness allowance. We may refer to the contentions advanced by counsel for the workmen in the two appeals filed by them. It was urged,, that the Tribunal was in error in denying to the workmen gratuity when employment is determined on the ground of misconduct. It was urged that it is now a rule settled by decisions of this Court that the employer is bound to pay gratuity notwithstanding termination of employment on the ground of misconduct. It may be noticed that in the Rashtriya Mill Mazdoor Sangh 's case(1) and in the Ahmedabad Millowners ' Association case(2) provision was expressly made denying gratuity to the workmen dismissed for misconduct. But in later cases a less rigid approach was adopted. In Garment Cleaning Works case(3) tiffs Court observed: "On principle, if gratuity is earned by an employee for long and meritorious service, it is difficult to understand why. the benefit thus earned by long and meritorious service should not be available to the employee even though at the end of such service he may have been found guilty of misconduct which entails his dismissal. Gratuity is not paid to the employee gratui (1) [1957] Industrial Court Reporter, 561. (2) [1958] I L.L.J. 349. (3) 334 tously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned, it is difficult to understand why it should necessarily be denied to him whatever may be the nature of misconduct of his dismissal. " In later judgments also the Courts upheld the view that the denial of the right to gratuity is not justified even if employment is determined for misconduct. In Motipur Zamindari (P) Ltd. vs Their Workmen ( 1 ), this Court opined that the workmen should not be wholly deprived o.f the benefit earned by long and meritorious service, even though at the end of such service he may be found guilty of misconduct entailing his dismissal, and therefore the condition in a gratuity scheme that no gratuity should be payable to a workman dismissed "for misconduct involving moral turpitude" should be held unjustified. The Court therefore modified the condition and directed that while paying gratuity to a workman who was dismissed for misconduct only such amount should be deducted .from the gratuity due to him in respect of which the employer may have suffered loss by the misconduct of the employee. A similar view was expressed in Remington Rand of India Ltd. 's case (2). In Calcutta Insurance Company Ltd. 's case(3) however protest was raised against acceptance of this rule without qualification. Mitter, J., observed at p. 9 that it was difficult to concur in principle with the opinion expressed in the Garment Cleaning Works case(4). Mitter, J., observed: "We are inclined to think that it (gratuity) is paid to a workman to ensure good conduct throughout the period he serves the employer. 'Long and meritorious service must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would, under the general law, have a right of action against the employee for the loss caused, and making a provision for withholding payment of .gratuity where such loss was caused to the employer does not seem to aid to the harmonious employment of labourers or workmen. Further, the misconduct may be such as to undermine the discipline in the workers a case in which it would be extremely difficult to assess the financial loss to the employer. " (1) [1965] II L.L.J. 139. (2) [1968] I L.L.J. 542. (3) [1967] II L.L.J. 1. (4) 335 "Misconduct" spreads over a wide and hazy spectrum of industrial activity: the most seriously subversive conduct rendering an employee wholly unfit for employment to mere technical default are covered thereby. The parliament enacted the , which by section 15 has authorised the appropriate Government to make rules to carry out the purposes of the Act and in respect of additional matters to be included in the Schedule. The Central Government has framed certain model standing rules by notification dated December 18, 1946, called 'The Industrial Employment (Standing Orders) Central Rules, 1946 '. In Sch. I Model Standing Orders cl. 14 provides: (1) . . . . . . (2) A workman may be suspended for a period not exceeding four days at a time, or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct. (3) The following acts and omissions shall be treated as misconduct : (a) wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior, (b) theft, fraud or dishonesty in connection with the employer 's business or property, (c) wilful damage to or loss of employer 's goods or property, (d) taking or giving bribes. or any illegal gratification, (e) habitual absence without leave or absence without leave for more than 10 days, (f) habitual late attendance, (g) habitual breach of any law applicable to the establishment, (h) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, (i) habitual negligence or neglect of work, (j) frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month, (k) striking work or inciting. others to strike work in contravention of the provisions of any law, or rule having the force of law." ' 336 A bare perusal of the Schedule shows that the expression "misconduct" covers a large area of human conduct. On the one hand are the habitual late attendance, habitual negligence and neglect of work: on the other hand are riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, wilful insubordination or disobedience. Misconduct falling under several of these latter heads of misconduct may involve no direct loss or damage to the employer, but would render the functioning of the establishment impossible or extremely hazardous. For instance, assault on the Manager of an establishment may not directly involve the employer in any loss or damage which could be equated in terms of money, but it would render the working of the establishment impossible. One may also envisage several acts of misconduct not directly involving the establishment in any loss, but which are destructive of discipline and cannot be tolerated. In none of the cases cited any detailed examination of what type of misconduct would of would not involve to the employer loss capable of being compensated in terms of money was made: it was broadly stated in the eases which have come before this Court that notwithstanding dismissal for misconduct a workman will be entitled to gratuity after deducting the loss occasioned to the employer. If the cases cited do not enunciate any broad principle we think that in the application of those cases as precedents a distinction should be made between technical misconduct which leaves no trail of indiscipline, misconduct resulting in damage to the employer 's property, which may be compensated by forfeiture of gratuity or part thereof, and serious misconduct which though not directly causing damage such as acts of violence against the management or other employees or riotous or disorderly behaviour, in or near the place of employment is conducive to grave indiscipline. The first should involve no forfeiture: the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third may entail forfeiture of gratuity due to ' the workmen. The precedents of this Court e.g. Wenger & Co. vs Its Workmen(1), Remington Rand of India Ltd. case(2) and Motipur Zamindari (P) Ltd. 's case(a) do not compel us to hold that no misconduct however grave may be visited with forfeiture of gratuity. In our judgment, the rule set out by this Court in Wenger & Co. 's case(1) and Motipur Zamindari (P) Ltd. 's case(3) applies only to those cases where there has been by actions wilful or negligent any loss occasioned to the property of the employer and the misconduct does not involve acts of violence against the management or other employees, or riotous or dis (1) [1963] II L.L.J. 403. (2) [1968] I L.L.J. 542 (S.C.). (3) [1965] II L.L.J. 139 (S.C.). 337 orderly behaviour in or near the place of employment. In these exceptional cases the third class of cases the employer may exercise the right to forfeit gratuity: to hold otherwise would be to put a premium upon conduct destructive of maintenance of discipline. It was urged on behalf of the workmen that the minimum period of 15 years fixed for voluntary retirement is too long and it should be reduced to 10 years. In Hume Pipe Co. Ltd. vs Their Workmen(1) and Hydra (Engineers) Private Ltd. vs The Workmen(2) the minimum period for qualifying for gratuity on voluntary retirement was fixed at 15 years. In other cases a shorter period of 10 years was adopted: Garment Cleaning Works(a); British Paints (India) Ltd.(4); Calcutta Insurance Co. Ltd.(5), and Wengel & Company(x). Counsel for the employers have accepted that qualifying length of service for voluntary retirement should be reduced to 10 years. Counsel for the employers have also accepted that having regard to all the circumstances, notwithstanding the direction given by the Tribunal and the schemes prevailing in the other parts of the country in the textile industry, the maximum gratuity should not exceed 20 months ' basic wages and not 15 months ' as directed by the Tribunal. Further counsel for the D.C.M. and S.B.M. have agreed that in case of termination of employment on voluntary retirement one full months basic wages for each completed year of service not exceeding 20 months ' wages should be granted to workmen. Counsel for the B.C.M. has agreed that gratuity at the rate of 21 days ' wages for each completed year of service in case of voluntary retirement or resignation after 10 years ' service may be awarded as gratuity to the workmen. Counsel for the A.T.M. has shown no disinclination to fall in line with this suggestion. Counsel for the A.T.M. has also not objected to appropriate adjustments in view of the concessions made by the management of the D.C.M., S.B.M. and B.C.M. It was urged by counsel for the workmen that in providing that gratuity shall be paid to Badli workmen for only those years in which a workman has worked for 240 days, the Tribunal has committed an error. It was urged that a Badli workman has to register himself with the management of the textile unit and is required every day to attend the factory premises for ascertaining whether work would be provided to him, and since a Badli workman has to remain available throughout the year when the factory is open, a condition requiring that the Badli workman has worked for not less than 240 days to qualify for gratuity is unjust. We (1) [1959] II L.L.J. 830. (2) C.A. No. 1934 of 1967 decided on April 30, 1968. (3) (4) [1966] I L.L.J. 407 (S.C.) (5) [1967] II L.L.J. 1 (S.C.). (6) [1963] II L.L.J. 403 (S.C.) 338 are unable to agree with that contention. If gratuity is to be paid for service rendered, it is. difficult to appreciate the grounds on which it can be said that because for maintaining his name on the record of the Badli workmen, a workman is required to attend the Mills he may be deemed to have rendered service and would on that account be entitled also to claim gratuity. The direction is unexceptionable and the contention must be rejected. It was also urged by Mr. Ramamurthi that the expression "average of the basic wage" in the definition of "wages" in cl. 4 of the Schemes is likely to create complications in the implementation of the Schemes. He .urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression "wages" will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced. We do not think that there is any cause for such apprehension. The expression "average of the basic wage" can only mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable. Counsel for the employers agree to this interpretation. It was then urged that whereas the reference to. the Industrial Tribunal was made by the Delhi Administration sometime in March 1958, the award is .given effect to from January 1, 1964, and for a period of nearly six years the workmen have been deprived of gratuity, when the delay in the disposal of the proceedings was no.t due to. any fault or delaying tactics on the part of the workmen. The reference was made in the first week of March, 1958. The Textile Mazdoor Union then applied to be impleaded on September 15, 1958, the D.C.M. and S.B.M. moved the High Court of Punjab at Delhi and obtained an order for stay of proceedings in writ petition filed against the order of the Tribunal impleading the Textile Mazdoor Union. That writ petition was dismissed in February 1961 and the proceedings were resumed on December 12, 1962. Thereafter preliminary issues were decided and on December 3, 1963, ,an interim award relating to other disputes was made. It must, however, be noticed that there were four claims and the claim relating to gratuity was taken in hand by the Tribunal after disposal of the other claims. Neither party was dilatory in the prosecution of any claim before the Tribunal. It has also to be noticed that in the D.C.M. and S.B.M. there was in fact a gratuity scheme already in operation. The liability of the A.T.M. to pay gratuity arises after that unit acquired sufficient financial stability and it is not suggested that the unit had acquired financial stability before January 1, 1964. The is.sue remains a live issue only in respect of the B.C.M. It is true that the gratuity 339 scheme of the D.C.M., and S.B.M. was related only to the length of service and did not take into account the varying rates of wages received by the workmen. But the question if at all would, be one of making minor adjustments in the liability of the two units to pay gratuity in the event of gratuity being payable under this award at a higher rate than the gratuity awardable under the scheme already in operation in the two units. If in respect of the A.T.M. which had no scheme gratuity for all practical purposes becomes operative from January 1, 1964, we do not see any reason why in respect of the B.C.M. any different rule should be provided for. Again, the Tribunal has fixed January 1, 1964, as the date for the commencement of the schemes. Giving the schemes effect before January 1, 1964, may rake up cases. in which the workmen have left the establishments many years ago. It would not be conducive to industrial peace to allow such questions to be raised after this long delay. The question is not capable of solution on the application of any principle and must be decided on the consideration of expediency. We do not think that any ground is made out for altering the award of the Industrial Tribunal in this behalf. It was then urged that in any event the workmen of the D.C.M. and S.B.M. should not be deprived of the right to gratuity under the scheme of the two u,nits, if gratuity at a higher rate is payable to them under the voluntary scheme. This contention must be accepted. We direct that in respect of all workmen of the D.C.M. and S.B.M. who were employed before January 1, 1964, and continued to remain employed till that date, gratuity at the higher of the two rates applicable to each workman when he becomes entitled to gratuity either computed under the Employees Benefit Fund Trust scheme of the D.C.M. and S.B.M. or under the terms of this award shall be paid. Workmen employed after January 1, 1964, will be entitled to the benefit of this award alone. Industrial disputes have given rise to considerable strife holding up development of industry and the economic welfare of the nation. Awards have been made by the Tribunals often on considerations adhoc and based on no principle and Courts have upheld or modified those awards without enunciation of any definite or generally accepted principle. In the present case we have been largely guided b37 the consideration of securing a reasonable degree of uniformity in the fixation of gratuity in the textile industry, for, in our view, a departure made from the prevailing pattern in one region is likely to give rise to claims all over the country for modification of the gratuity schemes in operation, and have been accepted as fixing the basis. of gratuity schemes. If having regard to the deteriorating value of the rupee, it is thought necessary that more generous benefits should be available to the 340 workmen by way of gratuity, the remedy lies not before the adjudicators or the Courts, but before the legislative branch of the State. In respect of the bonus, provident fund, retrenchment compensation, State Insurance Schemes as well as medical benefits, legislation has been introduced bringing a reasonable degree of certainty in the laws governing the various benefits available to the workmen and we are of the view that even in respect of gratuity a reasonably uniform scheme may be evolved by the Legislatures which could prevent resort to the adjudicators in respect of this complicated matter of dispute between the employers and the employees. It may no.t be difficult to evolve a scheme which would meet the legitimate claims. of both the employers and the employees and which might, while eliminating cause for friction, ' simultaneously conduce to greater certainty in the administration of the law governing industrial disputes, and secure benefits to the employers as well as the employees and conduce to the prosperity of the industry as well as of the workmen. We propose to summarise the effect of our judgment: (1) A unit wise approach in framing the gratuity scheme for the four units was appropriate, and on the terms of the reference the plea of the employers to fix the age of superannuation was beyond the scope of reference. The financial condition of the D.C.M., S.B.M. and B.C.M. justifies imposition of gratuity schemes as from January 1, 1964. Even the A.T.M. which is the weakest of the four units is financially stable from the date on which the award becomes operative; (2) The settlement between the workmen and the A.T.M. did not operate to bar the jurisdiction of the Tribunal to make the scheme of gratuity payable to the workmen of the A.T.M.; (3) That the Tribunal was in error in relating gratuity awardable to the workmen to the consolidated wage; (4) That the minimum period for . qualifying for voluntary retirement should be reduced to 10 years and one months basic wage in the case of D.C.M. and S.B.M. and 21 days ' basic wage in the case of B.C.M. and A.T.M. for each completed year of service should be paid but not exceeding 20 months wages in the aggregate. (This direction is made with the consent of the Advocates of the employers); 341 (5) That workmen dismissed or discharged from service for misconduct will not be entitled to gratuity if guilty of conduct involving acts of violence against the management or other employees, or riotous or disorderly behaviour in or near the place of employment; (6) No modification need be made with regard to Badli workmen; (7) The award needs no modification with regard to the date of operation of the award; and (8) The workmen of the D.C.M. and S.B.M. who commenced service and continued to serve till January 1, 1964, and thereafter will be entitled to elect at the time when gratuity becomes due to claim gratuity either on the scheme in force under the Employees Benefit Fund Trust of the employers or under this award. We have made some incidental changes to streamline the scheme. On the view we have taken of the schemes, Annexure 'A 'relating to the D.C.M. and S.B. M. of the award will be modified in the following respects: In clause 1 (a) instead of "12 days ' wages", the expression "20 days ' wages" will be substituted; In clause 1 (b) for the expression "15 days ' wages", the expression "1 month 's wages" will be substituted; In proviso (ii) to clause 1 for the expression "15 months ' wages", the expression "20 months ' wages" will be substituted; In clause 2 for the expression. "15 days ' wages", the expression "1 months wages will be substituted; and for the expression ' 15 years service , 10 years service will be substituted; In the proviso to clause 2 for the expression "15 months ' wages", the expression "20 months ' wages" will be substituted; In clause 3 in the proviso for the expression "15 months ' wages", the expression "20 months ' wages" will be substituted; Clause 3 will be followed by an Explanation: "Explanation. The expression "misconduct" means acts involving violence against the management or other employees, or riotous or disorderly behaviour in or near the place of employment. 342 Where the workman is guilty of conduct which involves the management in financial loss, the loss occasioned may be deducted from the gratuity payable." In clause 4 the words "plus the dearness allowance" will be omitted. The remaining clauses will stand unaffected except that for the words "within six months from the date of publication of this Award" ' the words "within six months from the date of this judgment" will be substituted. Annexure 'B ' relating to the B.C.M. and A.T.M. will be modified in the following respects: In clause 1 (a) for the expression "one fourth month 's wages", the expression "15 days ' wages" will be substituted; In clause 1 (b) for the expression "one third month 's wages", the expression "21 days ' wages" will be substituted; In the proviso for the expression "12 months ' wages", the expression "20 months ' wages" will be substituted; In clause 2 for the words "15 years ' service", the expression "10 years ' service" will be substituted; In clause 3 in the proviso for the expression "12 months ' wages", the expression "20 months ' wages" will be substituted and it will be followed by the Explanation of "misconduct" as in Annexure 'A '. In clause 4 the words "plus the dearness allowance" will be omitted. There will be no order as to costs in these appeals. V.P.S. Award modified accordingly.	In the Delhi region there are four textile units. namely, the D.C.M., the S.B.M., the B.C.M., and the A.T.M. The D.C.M. and the S.B.M. are under one management. Since 1940 they had also a common retirement benefit scheme with a scale of gratuity. The ' workmen in all the units were receiving basic wages plus dearness allowance. On March 4, 1958, an industrial dispute between the four units and their workmen was referred to the Industrial Tribunal and one of the matters in dispute related to gratuity. The Tribunal in its award framed two schemes relating to the payment of gratuity, one relating to D.C.M. and S.B.M., and the other, to B.C.M. and A.T.M. They were made operative from January 1, 1964. Both employers and employees appealed to this Court. On the questions: (1 ) Whether in view of a settlement between the management of A.T.M. and its workmen it was open to the Tribunal to ignore the settlement and impose the scheme on the management; (2) Whether in view of the unstable financial condition of A.T.M. the burden of payment of gratuity on A.T.M. was excessive; (3) Whether a uniform scheme applicable to the entire industry on the region cum industry basis should have been adopted instead of schemes applicable to individual units; (4) Whether in determining the quantum of gratuity, basic wage alone should be taken into account and not the consolidated wage including dearness allowance; (5) Whether in deciding this question, an overall view of similar and uniform conditions in the industry in different centers in the country, could he taken into consideration; (6) Whether it was not necessary for the Tribunal to fix the age of superannuation when introducing a gratuity scheme; (7) Whether gratuity should have been awarded even in cases of dismissal for misconduct; (8) Whether provision should have been made for payment of gratuity to badli workmen irrespective of the number of days for which they worked in a year; (9) Whether the schemes should have been made operative from the date of reference; and (10) What is the scope of the expression 'average of the basic wage '. HELD: (1) The settlement between the workmen and management of A.T.M. did not bar the jurisdiction of the Tribunal to make the Scheme of gratuity applicable to A.T.M. [340] Under the settlement all that was agreed to was, that an award should be made and if it he found that A.T.M. acquired financial stability then it would be liable to pay the gratuity to its workmen. It was not agreed that the proceedings before the Tribunal should be dropped and that it 308 was only after A.T.M. became financially stable that a fresh claim should be made by the workmen. [320 D F] (2) The trading accounts of A.T.M. showed that since 1959 60 the Mills had achieved some stability, and that by 1961 62 all previous losses were wiped out. Therefore, though it was a much weaker unit than the others, it was financially stable from the date on which the scheme became operative. [321 A C] (3) A unit wise approach in framing the gratuity scheme 'for the four units was appropriate in the present case. [323 B C; 340 D E] No inflexible rule has been laid down by this Court that gratuity schemes should he framed only on the region cure industry principle. In the present case, if a common scheme was framed for the entire industry in Delhi for all four units, in view of the financial condition of A.T.M., the benefits under such a scheme would be not only low, but would be lower than the existing benefits available to workmen in the D.C.M. and S.B.M. Units. [321 C D, H; 322 E F, H] Garment Cleaning Works vs Its Workmen, [1962] 1 S.C.R. 711: and Burhanpur Tapti Mills Ltd. vs Burhanpur Tapti Mills Mazdoor Sangh, , followed. Bharatkhand Textile Mfg. Co. vs Textile Labour Association ; , explained. (4) The Tribunal was in error in relating the gratuity awardable to the workmen to the consolidated wage instead of the basic wage. [340 G] (a) In determining the scope of an industrial reference words used, either in the claim or in the order of reference, should not necessarily be given the meaning they have under the Industrial Disputes Act. Therefore, merely because the expression "wages" in the Act includes dearness allowance, the Tribunal could not base the gratuity scheme on consolidated wages. [325 D F] (b) An industrial tribunal cannot adjudicate on disputes not referred; but when called upon to adjudicate ' whether a certain scheme, on the terms indicated in the reference should be framed, such basic guidance does not limit its jurisdiction. The Tribunal, in this case, was in error in thinking that in determining the rate of gratuity it was limited to the number of days of service in the order of reference as the applicable multiple. On that assumption, since the gratuity would be too low if only basic wage was chosen, it was not justified in choosing consolidated wage. The proper procedure would have been to choose only the basic wage and fix upon a larger number of days of service as the appropriate multiple. [327 E H] (c) The decisions of this Court in May and Baker (India) Ltd. vs their Workmen, [1961] II L.L.J. 94 (S.C.), British India Corporation vs Its Workmen, [1965] II L.L.J. 556 (S.C.), British Paints (India) Ltd. vs Its Workmen, , Hindustan Antibiotics Ltd. vs Their Workmen, and Remington Rand of India vs The Workmen, are conflicting and no principle can be extracted as to whether basic wage or consolidated wage should be considered for purposes of gratuity. Ordinarily, in those circumstances, this Court would not have interfered with the conclusion of the Tribunal choosing consolidated wage; but, the Tribunal had failed 309 to take into account the prevailing pattern in the textile industry all over the country. It is country wide industry and in that industry, gratuity has never been granted on the basis of consolidated wages. [329 C F; 330 A] (d) The primary object of industrial adjudication is to adjust the relations between employers and employees with the object of promoting industrial peace. If the basic wage alone is taken for purposes of gratuity, it would produce in the present case, a scheme which deprives the workmen of the D.C.M. and S.B.M. of benefits which had been granted to them under the voluntary scheme introduced by the management of those two units and disturb industrial peace therein. But on that account, the Tribunal was not justified in introducing a fundamental change in the concept of gratuity granted by numerous schemes in the textile industry all over the country. The appropriate remedy is to frame a scheme consistent with the normal pattern prevailing in the industry and introduces reservations protecting benefits already acquired. [326 C F] (e) In the report of the Central Wage Board for the cotton textile industry, also, gratuity was directed to be given on the basis of wages excluding dearness allowance. [330 G] (f) In D. C.M. Chemical Works vs Its Workmen, this Court affirmed the award relating gratuity to consolidated wages. Though the unit also belonged to D.C.M. it is a unit entirely independent of the textile unit. So, it cannot be regarded as an effective or persuasive precedent justifying variation from the normal pattern of gratuity schemes in operation in the textile industry all over the country. [331 H; 332 A B, D E] (5) If all over the country, in textile centres, payment of gratuity. is related to the basic wage and not to the consolidated wage any innovation Delhi region alone is likely to give rise to serious industrial disputes in other centres in the country. If maintenance of industrial peace is a governing principle of industrial adjudication, it would be wise to maintain a 'reasonable degree of uniformity in the diverse units all over the country and not to make a fundamental departure from the prevailing pattern.the basic wage is low in all other centres, and if it does not play an important part, there is no reason why it should play, only in the Delhi region, a decisive part so as to make a vital departure from schemes in operation in other centres in the country. The acceptance of the award the Tribunal in the present case is likely to create conditions of great instability in other parts of the country in the textile industry. Therefore, the Tribunal 's award granting gratuity on the basis of consolidated wage could not be upheld. [332 G H; 333 A E] (6) It is not necessary, for a gratuity scheme to be effective, that here should be fixation of the age of superannuation. [323 C D] Burhanpur Tapti Mills Case, , referred Further, on the terms of the reference the plea of the employers to fix the age of superanuation was beyond the scope of the 'reference, nor was such fixation incidental to the framing of the scheme. [323 H 324 c] (7) The object of providing a gratuity scheme is to provide a retiring benefit to workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer. It is therefore not correct to say that no misconduct, however grave, may not be visited with forfeiture of gratuity. Misconduct could be (a) 310 technical misconduct which leaves no trail of indiscipline; (b) misconduct resulting in damage to the employers ' property which may be compensated by forfeiture of gratuity or part thereof; and (c) serious misconduct such as acts of violence against the management or other employees or riotous or disorderly behaviour in or near the place of employment which, though not directly causing damage, is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct, and the third will entail forfeiture of gratuity due to the workmen. [324 F G; 336 D F; 341 A B] Garment Cleaning Works vs Its Workmen, ; (1961) I L.LJ. 513, Wenger & Ca. vs Its Workmen, [1963] II L.L.J. 403 (S.C.), Motipur Zamindari (P) Ltd. vs Their Workmen, [1965] II L.LJ. 139 (S.C.) Calcutta Insurance Co. vs Their Workmen, [1967] II L.LJ. 1 (S.C.), and Remington Rand of India vs The Workmen, [1968] I L.L.J. 542 (S.C.). referred to. (8) The award does not require to be modified with regard to badli workmen. If gratuity is to be paid )for service rendered then there are no grounds for holding that a badli workman must be deemed to have rendered service giving rise W a claim of gratuity, merely because, for maintaining his name on the record of the badli workmen, he is required to attend the mills. [338 A B] (9) The award needs no modification with regard to the date of commencement of the schemes. The liability of A.T.M. to pay gratuity arose after it acquired sufficient financial stability and the unit acquired financial stability only from January 1, 1964. If in respect of the A.T.M. which had no scheme. gratuity becomes operative from January 1, 1964, there is no reason why respect of B.C.M. any different rule should be provided for. As regards D.C.M. and S.B.M. there was already a more advantageous gratuity scheme in operation and the workmen in those two units were not prejudiced by directing the scheme applicable to them, to commence from January 1, 1964. If effect was given to the schemes before January 1, 19 '64, it may rake up cases in which workmen have left the establishment many years ago and it would not be conducive to industrial peace to allow such questions to be raised after a long delay. In the absence of any principle, the matter must be decided on considerations of expediency. [338 G H; 339 A D] (10) The expression 'average of the basic wage ' means wage earned by a workman during a month, divided by the number of days for which he had worked, and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable. [333 C D] [Appropriate directions modifying the schemes were accordingly given.]
: Criminal Appeal No 188 of 1971. Appeal by special leave from the judgment and order dated the 29 9 1970 of the Gujarat High Court in Criminal Appeal No. 410 304 D. Mookherjee, section K. Dholakia and M. N. Shroff, for the appellant. K. J. Shethna and Vimal Dave and Miss Kailash Mehta, for the respondent. The Judgment of the Court was delivered by GOSWAMl, J. The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali. He was also convicted under sections 326 and 323 I.P.C. and sentenced to rigorous imprisonment for two years and to three months respectively in connection with injuries to two other persons. On appeal to the High Court conviction was altered to one under section 304 A.I.P.C. Only and the accused was sentenced to rigorous imprisonment for eighteen months and to a fine of Rs. 500/ , in default rigorous imprisonment for six months. Briefly the facts are as Follows: It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad. There is a big open space in front of the hotel towards the north and a kutcha road branches off from the highway towards Dangarwa. This kutcha road is almost in the centre of the open space in front of the hotel measuring about 80 feet. It is said that the portion immediately in front of the hotel is about two feet higher in elevation from the kutcha road. On August 23, 1969, the accused came in a tractor and stopped the same on the highway. He saw truck No. G.T.F. 904 which Was parked opposite to the aforesaid hotel of Vasudev (P.W. 7). The owner of the truck had gone to the village leaving his conductor Usman Imamali (P.W. 11) in the truck. It is said that the accused used to drive this truck earlier with permission of the truck owner. This time he used the key of his tractor to start the truck and he drove the same by the open field in front of the hotel. He drove the truck with the head lights on in full speed straight on the steel cot on which The deceased was resting with the result that the truck dashed against the cot and the deceased was thrown away to a distance of about ten feet from the cot. Head Constable Revajit (PW 3) was sitting on the same cot with the deceased and he was also thrown away. There was another wooden cot nearby where Constable Dalpat Singh (PW 4) and Vavdinmiya (PW 5) were sitting. The Head Constable with the other Constable came to meet the Sarpanch in connection with the investigation of a certain case. Since there was enmity between the accused and the deceased on account of Panchayat elections the prosecution case is that the accused willfully and deliberately drove the vehicle towards the cot with the intention of causing death to the A deceased Sarpanch. The accused was originally charged under section 302 IPC and under section 326 and 323 IPC with the result mentioned above. Hence this appeal by the State by special leave against the judgment of the High Court. The question that arises for consideration is whether the facts that `are established against the accused fulfil the ingredients of section 304 305 Part II as submitted by Mr. Debabrata Mukherjee on behalf of the State. According to the learned counsel this is a clear case under section 304 Part II and conviction under section 304A is unsustainable. Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299 IPC or murder under section 300 IPC. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused. The prosecution in this case wanted to establish a motive for committing the offence against the Sarpanch. It was sought to be established that there was enmity between the Sarpanch and the accused ` and his relations on account of Panchayat elections. Some evidence was led in order to prove that the accused and his relations were gunning against the Sarpanch for some time after the latter 's election as Sarpanch. Even an anonymous letter was received by the Sarpanch threatening his life which was handed over to the police by the Sarpanch. Both the Sessions Judge as well as the High Court did not accept the evidence appertaining to motive. Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case. Even so, the learned counsel submits that the act per se and the manner in which the vehicle was driven clearly brought the case under section 304 Part II IPC. The following facts are established. The accused drove the truck at great speed with lights on. He had the conductor with him in the truck. Some time before driving the truck the accused had seen the Constables talking with the Sarpanch at the spot in question. There is no evidence that the accused had a licence to drive the truck. It, however appears from it. 70, which is a complaint in criminal case No. 160 of 1969 dated January 17, 1969 that the accused "had no licence. while driving his truck No. GTF 704. " While the two Constables jumped from the cot and escaped the deceased could not do so in spite of being alerted by the Head Constable as he was in a Lying posture on the cot. It appears from the map of the scene Ext. 9 that the truck while being driven by the field was trying to turn towards the kutcha road at a point near the cot shown in the map. This would go to show that the accused was unable to control the vehicle in high speed while taking a turn to get into the kutcha road from the open field and in this process hit the cot throwing the deceased out of the cot by the impact resulting in injuries which ultimately led to his death. Even the Constables, who jumped from the cot, received injuries. There was no direct impact of the persons with the vehicle in speed. The accused in his statement under section 342, Criminal Procedure Code, stated as follows: "I took the truck in reverse first and as there were other trucks lying round about, I took out my truck from the available way. 306 The accilator (sic) stuck down and hence the truck went in full speed and did not remain in control. One truck was coming from opposite side with full light. While driving with (sic) this way, I heard some noise, and the conductor Usman told me that the truck had struck with something then I heard some shouts and realised that some persons were injured but I did not stop the truck through fear of assault . truck through fear of assault . . I presented myself at the Police Station". Now this version is supported by Usman (PW 11) who, however, has been declared hostile by the prosecution. He was cross examined by the prosecution in order to show that he made a wrong statement in the examination in chief when he stated that the accused drove the truck with the key of the truck whereas he had stated before the police that the accused came on his tractor and started the truck with his key. He was also cross examined about a truck coming from the opposite side with full light that he had not stated to the police to that effect. We do not think that the omission to mention before the police about another truck coming from the opposite direction can be a contradiction within the meaning of section 162, Criminal Procedure Code. We also do not give much importance as to whether the accused drove the truck with his key or with the key of the tractor. That has not much relevance in view of the fact that the accused admitted to have driven the truck. Besides, it is admitted by the prosecution witnesses (PWs ' 2 and 6) that the conductor (PW 11 ) was in the truck when the accused drove the same. PW11 is, therefore, a natural witness and we do not find any reason to disbelieve him when he stated that a truck was coming from the opposite direction with full lights on. Besides, the owner of the truck having not found the truck in the place where he had parked had already telephoned to the Police Station about someone taking away the truck. PW11, who is an employee of the truck owner, was, therefore, not even obliged to speak in favour of the accused. The facts disclosed in the prosecution evidence, therefore, do not make out a case of any wilful or deliberate act on the part of the accused in order to cause the death of the Sarpanch by driving the truck in the way he did. Besides, the presence of the Head Constable and another Constable with the deceased whom the accused had himself seen prior to his driving the truck would run counter to a theory of wilful and deliberate act on the part of the accused to cause the death not only of the Sarpanch but necessarily also of the Constables. Section 304A by its own definition totally excludes the ingredients of section 299 or section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person 's death are ingredients of the offence of culpable homicide. When intent or knowledge as described above is the direct motivating force of the act complained of, section 304 A has to make room for the graver 307 and more serious charge of culpable homicide. Does this happen in A this case ? The tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries would not reveal the accused intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road. There is, therefore, no error committed by the High Court in holding that the falls under section 304A IPC and not under 304 Part II IPC. The appeal is accordingly dismissed. C S.R. Appeal dismissed.	On August 23, 1969, the respondent accused came in a tractor and stopped it on the highway. Seeing the parked truck GTF 904 which he used to drive previously, the accused used the key of his tractor to start the same and drove it with the head lights on in full speed. The conductor of the truck owner was also in the tractor at that time. The tractor while being driven by the field and while he was trying to turn towards the kutcha road hit against the cot in which the village Sarpanch who was resting on it and taking with three policemen. The policemen jumped from the cot and sustained injuries, while the Sarpanch who was thrown away by the impact of the tractor to a distance of about ten feet from the cot, had grievous injuries to which he succumbed later. Since there was enmity between the deceased and the accused over the Panchayat elections, the prosecution put up a case of deliberate and willful driving of the vehicle towards the cot with the intention of causing death of the deceased Sarpanch. The Sessions Judge convicted the accused (i) under section 304 Part IT, I.P.C. for causing the death of the Sarpanch and (ii) under section 326 and 323, I.P.C. for causing injuries to the two other persons and sentenced him for rigorous imprisonment for seven years and two years respectively for the said offences. On appeal to the High Court the conviction was altered to one under section 304A only and the respondent was sentenced to rigorous imprisonment for 18 months and to a fine of Rs. 500/ . Dismissing the State 's appeal by special leave, the Court, ^ HELD . (1) Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299, I.P.C. or murder under section 300 I.P.C. Each case will depend on the particular facts established against the accused. [305A B] (2) Section 304A, by its own definition totally excludes the ingredients of section 299 or section 300, I.P.C. Doing an act with the intent to kill a person or knowledge that doing of an act is likely to cause a person 's death are ingredients of the offence of culpable homicide. When intent or knowledge is the direct motivating force of the act complained of, section 304A has to make room for the graver and more serious charge of culpable homicide. [306 GH, 307A] (3) In the instant case, the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing tho deceased out of it resulting in fatal injuries, would not reveal the accused 's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road. The case falls under section 304A, I.P.C. and not under 3. 304 Part 11, I.P.C. [307 A C]
N: Criminal Appeal No. 271 of 1986 From the Judgment and Order dated 31.1. 1985 of the Gauhati High Court in Cr. A. No. 66 of 1983. S.K. Nandy for the Appellant. R.K. Garg, Sunil K. Jain and Vijay Hansaria for the Respondents. The Judgment of the Court was delivered by 1041 B.C. Ray, J. This appeal by special leave is against the judgment and order passed in Criminal Appeal No. 66 of 1983 by the High Court of Gauhati acquiting both the accused respondents from the charges under Sec. 302 read with Sec. 34 I.P.C. as well as under Sec. 436 read with Sec. 34 of Indian Penal Code, 1860. The prosecution case in short is that on 2nd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and Dulu Dutta came together to the shop of Nagen Dey since deceased and sprinkled and poured kerosine oil in the shop as well as on the person of Nagen Dey and then set fire. Immediately fire caught and spread over the shop as well on the body of Nagen Dey. The shop was a Guliamal (grocery) shop where rice, Dahl, soap, mustered oil, kerosine oil, etc goods were sold and situate at Na Ali Road of Jorhat Town in front of M/s Baruah Printers. Nagen Dey came out of the shop house with ablazing condition all over his body. The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body. Pradip Jyoti Sarma, Assistant Sub Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey. Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosine oil. It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away. Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital. Accused Muhim Barkataki was handed over to the Police by the witness Pradip Joyti Sarma, Assistant Sub Inspector of Police. The information of the incident was received over telephone message at 7.15 p.m. by the Officer Incharge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No. 47 dated 2.11.1978 at 7.15 p.m. The Town Sub Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot. Sri P. Khatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station. He then informed the facts of occurrence to the Officer incharge of the Police Station who recorded the same under G.D. Entry No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m. one Sri 1042 Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext.5) with Jorhat Police Station. Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta. Investigation was carried on by Shri Prafulla Kumar Khatoniar. The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the court for recording their statements under Sec. 164 of the Criminal Procedure Code. The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7.11.1978. The Sessions Judge found that the message received over telephone was an information relating to commission of cognizable offence and same was entered into General Diary of the Police Station as Entry No. 47. On the basis of this information the investigation of the case was entrusted to the Town Sub Inspector Shri Prafulla Kumar Khatoniar with the recording of General Diary Entry No. 47 and the Investigating Officer fairly progressed with the investigation in that very night. Subsequent information of Montu Chandra Dey on 3rd November, 1978 are nothing but statements during the course of investigation and as such those are hit by Sec. 162 of the Criminal Procedure Code. It has, therefore, been held that Exhibit 5 cannot be recoganized as the First Information Report of the occurrence. The General Diary Entry No. 47 which is proved as Ext. 7(1), is the First Information Report of the occurrence. The Sessions Judge duly considered the evidences of P.W. 4 Arun Barua and C.W. 1 Pradip Joyti Sarma as well as the statements under Sec. 164 recorded by the Judicial Magistrate, P.W. 8 on 7.11.1978 and accepted the dying declaration made by the deceased Nagen Dey implicating the accused Muhim Barkataki and Dulu Dutta as pouring kerosine oil on his body and setting fire to his person. P.W. 6 Kiran Saikia also stated in his statement under Sec. 164 of Criminal Procedure Code before the Judicial Magistrate, that Nagen Dey, deceased made a dying declaration that these two accused persons sprinkled kerosine over the body of the deceased Nagen Dey and then set fire to him. These witnesses also proved that the accused Muhim Barkataki was caught hold of red handed at the place of occurrence whereas Dulu Dutta fled away from the place. The Sessions Judge, therefore, convicted both the accused under sec. 302 read with Sec. 34 of the Indian Penal Code and sentence them to rigorous imprisonment for life. The accused persons were further convicted and sentenced under Sec. 436 read with Sec. 34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years each. Both the sentences shall run concurrently. 1043 Against this judgment and order of conviction and sentence the accused person preferred an appeal being Criminal Appeal No. 66 of 1983 in the High Court of Gauhati. The High Court proceeded on the footing that entire evidence in the case was circumstantial as there was no eye witness to the occurrence and the clinching circumstances in which the case according to the prosecution is proved are the circumstances relating to the dying declaration. The learned Judges held that the evidence of P.W. 4 Arun Barua who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed his statement made to the Police that the three persons used to drink liquor and play cards which fact as we have observed, is very material to cast a serious doubt on prosecution version itself. The learned Judges therefore, held that the prosecution failed to prove beyond doubt the offences for which the appellants were charged. The conviction and sentence passed against the accused persons was set aside and the appeal was allowed. There is no dispute that the shop of deceased Nagen Dey situated by the side of Na Ali Road was set on fire and fire was also set on the person of Nagen Dey by pouring kerosine. Eye witnesses P.W. 4 Arun Barua, P.W. 6 Kiran Saikia and P.W. 5 Prabin Barua came to the place of occurrence immediately on seeing the fire. It is also evident from the evidence of P.W. 4 that he and Kiran Saikia who was in the shop of P.W. 4 both came together at the place of occurrence and they tried to put out the fire by throwing dust on the body of Nagen Dey who was on fire by tearing off his dress and Kiran Saikia put the clothing on the person of deceased Nagen Dey. It is also in the evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub Inspector, Police that the deceased Nagen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his person and then set on fire. It is also evident from the depositions of P.W. 4 and C.W. 1 that the accused Muhim Barkataki was caught hold red handed on the spot and he was detained there by the public while Dulu Dutta fled away from the place of occurrence. It is also evident from the G.D. Entry No. 47 i.e., telephonic message received at the Jorhat Police Station at about 7.15 p.m. on the date of occurrence that the said two men set fire to the person of Nagen Dey, deceased as well as to his Guliamal shop which is in front of Baruah Printers after pouring kerosine oil. One of the accused persons was caught hold of by local rija (public) while it was informed that Shri P.K. Khatoniar was investigating for local investigation after giving all entries in the diary. 1044 This is proved by Investigation Officer P.W. 7 and marked as Ext.7(1). It also appeared that immediately after the enquiry and investigation into the incident the Town Sub Inspector Shri Khatoniar returned to the Police Station and informed that Muhim Barkataki and Dulu Dutta entered in the Guliamal shop of Nagen Dey which was in front of Barua Printers of Na Ali and poured kerosine oil kept in the shop for sale and set fire on it and as a result the Guliamal shop was burnt. Nagen Dey was the owner of the shop who also was set on fire. It was also recorded in the G.D. Entry that Muhim Barkataki who was caught hold of at the place by the local people has been sent to the police station. This G.D. Entry No. 50 was proved by P.W. 7 and it was marked as Ext. It also appears that the witnesses P.W. 4 Arun Barua, P.W. 5 Prabin Barua, P.W. 6 Kiran Saikia and C.W.1 Pradip Joyti Sarma who was on duty on that Na Ali locality at that time arrived at the place of occurrence almost simultaneously and all of them found Nagen Dey out of his shop in a complete ablazing state all over his body. It also appears from evidences of these three witnesses Arun Barua, Kiran Saikia and Pradip Joyti Sarma that the injured Nagen Dey was conscious and was crying out due to burning pain. It was also their evidence that the deceased Nagen Dey made a dying declaration at the place of occurrence implicating accused Muhim Barkataki and Dulu Dutta as his assailants. It is also evident from Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia (P.W. 8) recorded the statements of Arun Barua (P.W. 4) and Kiran Saikia (P.W. 6) on 7.11.1978 under Sec. 164 of the Criminal Procedure Code stating about the dying declaration made by the deceased Nagen Dey implicating that Muhim Barkataki and Dulu Dutta had set fire on him. P.W. 4 Arun Barua also in his evidence clearly testifies to this dying declaration made by the deceased Nagen Dey. Of course P.W. 6 Kiran Saikia tried to contradict his statement made before the Police as well as before the Judicial Magistrate as to the dying declaration made by the deceased Nagen Dey. He admitted in his examination in chief that he made a statement about this incident before the Magistrate of Jorhat Court. Exhibit 4 is his statement and Ext. 4 (2) is his signature. He further stated that the Magistrate has recorded his statement. But in cross examination he contradicted himself by saying that he was tutored by the police to say so before the Magistrate. Even if his statement is not taken into consideration there is a clear statement of P.W. 4 Arun Barua before the Magistrate (Ext. 3) as well as his deposition which clearly corroborates his statement before the Magistrate about the dying declaration made by the deceased implicating the two accused persons as his assailants. The court of appeal below has acted 1045 illegally in discarding the evidence of P.W. 4 as well as his statement recorded under Sec. 164 of the Criminal Procedure Code by the Judicial Magistrate on the flimsy ground that it was not reliable because he contradicted his statement made before the Police that these three persons (the two accused and the deceased Nagen Dey) used to take liquor and play cards. Moreover C.W. 1 Pradip Jyoti Sarma who came to the place of occurrence a few minutes after the arrival of P.W. 4 and P.W. 6 at the place of occurrence has stated in his evidence that he saw the body of the deceased under fire and the deceased is crying out of burnt pain. He implicated in his dying declaration that Muhim Barkataki and Dulu Dutta had set fire on his person after pouring kerosine oil on him. He also stated that at the place of occurrence he found that the accused Muhim Barkataki was caught by the public and he was being assaulted. He further stated that to save Muhim Barkataki from assultant he handed him over to the Police Constable who was with him. He also deposed that Nagen Dey has sense and he was speaking. There was no cross examination of this witness as to the dying declaration made by the deceased. This witness further stated that he came to the Thana in the night and told the inspector about the incident. He also stated that he did not know whether O.C. recorded this in the General Diary or not. P.W. 2 Dr. Jibakanta Borah who hold post mortum on the body of the deceased has stated in his evidence that a person sustaining burnt injuries of such nature may have consciousness for some time before death. It cannot, therefore, be ruled out that the deceased Nagen Dey was conscious in spite of the severe burnt injuries on his person and he could speak and could make dying declaration as testified to by the witnesses P.W. 4, and C.W. 1. It has been tried to be urged before us by the learned counsel on behalf of the respondents that there is no evidence to show that the deceased Nagen Dey made a dying declaration as has been alleged as the General Diary Entry was not produced to show such statement of C.W. 1 about the dying declaration recorded therein. Moreover even if such a dying declaration has been made the same being not corroborated cannot be taken into consideration by the court in convicting the accused respondents. It has been further submitted that the court of appeal below rightly discarded the alleged dying declaration as being not corroborated by any other evidence and duly acquitted the accused persons. We have considered and appraised thoroughly the evidence on record and on an overall assessment of the same, we hold that the prosecution has proved beyond reasonable doubt, the charges framed 1046 against them. The order of acquittal passed by the High Court is liable to be set aside for the reasons stated here after. Firstly, eye witnesses P.Ws. 4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurrence immediately on seeing the fire in the grocery shop of the deceased Nagen Dey at about 7 p.m. on 2.11.1978. All these witnesses have seen that the shop is ablaze and there is fire on the person of Nagen Dey. It is also the specific evidence of P.W. 4 Arun Barua and C.W. 1 Pradip Jyoti Sarma, A.S.I. at Jorhat Police Reserve deputed by the Jorhat Thana at Jorhat Town in law and order duty on that day. All these eye witnesses P.W. 4 and C.W. 1 also stated that Nagen Dey was crying a lot in pain out of burnt injuries and he stated clearly that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil on him and set fire on his body. So far as depositions of P.W. 4 and C.W. 1 are considered there is no cross examination on this point. Further more, P.W. 4 and P.W. 6 made statements Exts. 3 and 4 under Sec. 164 of Criminal Procedure Code before the Chief Judicial Magistrate of Jorhat (P.W. 8) to the effect that the deceased Nagen Dey made a dying declaration implicating the accused persons as his assailants. This recording of the statements of P.W. 4 and P.W. 6 was proved by the deposition of the Addl. Chief Judicial Magistrate at Jorhat, Shri Dharyya Saikia (P.W. 8). Of course, P.W. 6 Kiran Saikia tried to contradict his statement made before the Chief Judicial Magistrate. As regards the evidence of C.W. 1 it has been tried to be contended that his statement before the O.C. of the Police Station that the deceased made a dying declaration cannot be accepted as there is nothing to show that this was recorded in the G.D. Entry. This statement cannot be accepted inasmuch as the learned Sessions Judge has assigned cogent reasons as to why Pradip Jyoti Sarma was examined as a court witness under the provisions of Sec. 311 of the Code of Criminal Procedure. It has been clearly found that Shri Sarma was an independent and disinterested witness and he was found to be reliable and trustworthy. It has been also found that Shri Pradip Jyoti Sarma is an important witness of the case and his examination was for the just decision of the case and his evidence has full corroboration with another independent and disinterested witness namely Arun Barua who is also found to be trustworthy and reliable witness. The evidence of Shri Pradip Jyoti Sarma cannot be under estimated merely because he is a police officer. The Sessions Judge also stated in his order that the reasons for examining him as a court witness had been elaborately recorded in the order sheet dated 17.2.1982 and 22.3.1983. Therefore, considering this finding of the Sessions Judge we hold that there is no infirmity in the findings of the Sessions Judge in treating Pradip Jyoti 1047 Sarma as a court witness under the provisions of Sec. 311 of the Code of Criminal Procedure. There is no criticism regarding the evidence of P.W. 4 on behalf of the respondents as to why his testimony regarding the dying declaration shall not be taken into consideration apart from the evidence of C.W. 1 Pradip Jyoti Sarma. Moreover it is evident from Exts. 3 and 4, the statements of P.Ws. 4 and 6 recorded under Sec. 164 of the Code of Criminal Procedure by the Addl. Judicial Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4 and 6 clearly stated about the dying declaration made by Nagen Dey implicating both the accused as his assailants. Along with this testimony of P.W. 4 and C.W. 1 that Muhim Barkataki was caught hold red handed on the spot and was detained by the public while Dullu Dutta fled away from the place of occurrence. All these clearly go to prove the prosecution case beyond any reasonable doubt and it leads to the only conclusion that these two accused persons poured kerosine oil in the shop as well as sprinkled kerosine oil on him and set fire on the deceased as well as to the shop. It has been tried to be contended that the dying declaration as referred to by P.W. 4 in his deposition has not been corroborated by any independent witness and as such the same cannot be relied upon in convicting the accused. In support of this submission reference has been made to the decision reported in Ramnath Madho Prasad & Ors. vs State of Madhya Pradesh, A.I.R. 1953 S.C. 420 wherein it has been observed: "It is settled law that it is not safe to convict and accused merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might be well drawing upon his imagination while he was making the declaration. It is in this light that the different dying declaration made by the deceased and sought to be proved in the case have to be considered. " This observation has been overruled being in the nature of obiter dicta by this Court in a subsequent decision in Khushal Rao vs State of Bombay, ; The same view was taken by this Court in the case of Kusa & Ors. vs State of Orissa; , at 562 para 9. It is pertinent to refer to the observation of this Court on this point made in State of Assam vs Muaizuddin Ahmed, ; at 19 para 10 which are in the following terms: 1048 "Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. " It has been observed by this Court in Jayarajl vs State of Tamil Nadu, A.I.R. 1976 S.C. 1519 at 522 para 16 which reads: "When the deponent (while making his dying declaration) was in severe bodily pain (because of stab injuries in the abdoman) and words were scare, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who stabed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the occular account given by the eyewitness. " In the instant case we have carefully considered the evidences of P.W. 4 as well as of C.W. 1 and we are clearly of the opinion that the deceased Nagen Dey made the dying declaration in question clearly implicating the two accused persons as his assailants. The dying declaration made by the deceased while he was suffering severe pain from grievous injuries is truthful and reliable. Therefore, on an overall as sessment of evidences recorded particularly the evidence of P.W. 4 and C.W. 1 and also the statements recorded under Sec. 164 of Criminal Procedure Code Exts. 6 and 4, we find that the charges under Sec. 382/34 and Sec. 436/34 of the Indian Penal Code, 1860 has been proved by the prosecution beyond reasonable doubt against the two accused persons. They were rightly convicted by the Sessions Judge and sentence to rigorous imprisonment for life under Sec. 302/34 I.P.C. and also to rigorous imprisonment for 5 years under Sec. 436/34 of the Indian Penal Code. Both the sentences will run concurrently. The judgment and order of acquittal passed by the High Court is hereby set aside and the judgment and order of conviction and sentence awarded by the Sessions Judge is hereby affirmed. Let warrant of arrest issue forthwith against the accused for serving out the sentence. P.S.S. Appeal allowed.	The prosecution alleged that the accused respondents set fire to deceased 's body and his shop after sprink ling kerosene oil, that on seeing the fire P. Ws. 4, 5 and 6 rushed to the place and put off the fire from the body of the deceased who had come out of the shop ablaze, and that C.W. 1, the Assistant Sub Inspector of Police, who was on law and order duty also came to the place of occurrence simultaneously and witnessed the incident. The deceased made a dying declaration before these witnesses stating that the said two accused had set fire to his body after pouring kerosene. One of the accused was caught hold of by the public red handed at the shop whereas the other accused fled away. The Officer in charge of Police Station was informed of the incident on the telephone. The deceased was removed to the hospital where he later died. Cases of murder and arson were thereafter registered against the accused. P.Ws. 4 and 6 made statements under section 164 Cr. P.C. before the Magistrate and deposed to the factum of dying declaration made by the deceased implicating the accused. The Sessions Court after considering the evidences of P.W. 4 and C.W. 1 as well as the statements recorded under section 164 Cr. P.C. accepted the dying declaration made by the deceased and convicted the accused under section 302 read with section 34 I.P.C. and sentenced them to 1039 rigorous imprisonment for life. They were further convicted and sentenced under section 436 read with section 34 I.P.C. The High Court on appeal, however, found that the prosecution had failed to prove beyond doubt the offences for which the appellants were charged, that the entire evidence in the case was circumstantial as there was no eye witness to the occurrence, that the evidence of P.W. 4 as to the dying declaration was wholly unreliable, and therefore, set aside the conviction and sentence passed against the accused. The appeal by the State to this Court was opposed by the accusedrespondents contending that there was no evidence to show that the deceased made the dying declaration and even if such a declaration has been made the same having not been corroborated cannot be taken into consideration in convicting them. Allowing the Appeal, the Court, ^ HELD: The accused were rightly convicted by the Sessions Court. The prosecution has proved beyond reasonable doubt the charges framed against them. The order of acquittal passed by the High Court is, therefore, liable to be set aside. [1048G] The dying declaration made by the deceased while he was suffering severe pain from grievous injuries clearly implicating the two accused persons as his assailants is truthful and reliable. [1048E] The eye witnesses, P. Ws. 4, 5 and 6 and C.W. 1 had undoubtedly arrived at the place of occurrence immediately on seeing the fire. They had seen that the shop was ablaze and there was fire on the person of the deceased. Then there is the specific evidence of P.W. 4 and C.W. 1 that the deceased was crying a lot in pain due to burn injuries and that he stated clearly that the accused persons poured kerosene on him and set fire to his body. There are also the statements of P.W. 4 and 6 made under section 164 Cr. P.C. to the effect that the deceased made a dying declaration. P.W. 2, who held post mortem on the body of the deceased has stated in his evidence that a person sustaining burn injuries of such nature may have been conscious for some time before his death. It cannot, therefore, be ruled out that the deceased was conscious in spite of the burn injuries on his person and he could speak and make dying declaration as testified to by P.W. 4 and C.W. 1. [1046A D; 1045E] There is no infirmity in the action of the Sessions Court treating as a court witness. It has assigned cogent reasons as to why P.W. 1 was examined as a court witness under the provisions of section 311 Cr. P.C. He has been found an independent and disinterested witness, to be reliable and trustworthy. He was an important witness of the case and his examination was for the just decision of the case. His evidence has full corroborations with another independent and distinterested witness, P.W. 4, who was also found to be trustworthy and reliable. The evidence of C.W. 1 cannot, therefore, be underestimated merely because he was a police officer. [1046E G] The Court of appeal has acted illegally in discarding the evidence of P.W. 4 as well as his statement recorded under section 164 Cr. P.C. There is no criticism regarding the evidence of this witness on behalf of the respondents as to why his testimony regarding the dying declaration shall not be taken into consideration. [1044H; 1045A B] There is also the testimony of P.W. 4 and C.W. 1 that one of the accused was caught hold red handed at the spot and was detained by the public while the other fled away from the place of occurrence. [1043F G] All these lead to the only conclusion that the two accused persons poured kerosene in the shop as well as on the deceased and set them on fire [1047C D] Ramnath Madho Prasad & Ors. vs State of Madhya Pradesh, AIR 1953 SC 420; Khushal Rao vs State of Bombay, ; ; Kusa & Ors. vs State of Orissa, ; at 562 para 9; State of Assam vs Muaizuddin Ahmed, ; at 19 para 10; and Jayaraj vs State of Tamil Nadu, AIR 1976 SC 1519 at 1522 para 16 referred to.
vil Appeal Nos. 4180 and 4181 of 1989. From the Judgment and Order dated 20/21/22 7 1988 and 18/298 1988 of the Bombay High Court in Writ Petition Nos. 3313 and 3417 of 1987. N.N. Keshwani and R.N. Keshwani for the Appellants. 383 A.B. Rohatgi, Mrs. Gool Barucha, M.J. Paul, Kailash Vasdev, R. Karanjawala, Mrs.M Karanjawala (NP) and H.S. Anand for the Respondents. The Judgment of the Court was delivered by OJHA, J. Special leave granted. These civil appeals have been preferred against a common judgment of the Bombay High Court dismissing writ petition No. 33 13/87 filed by Arjun Khiamal Makhijani who is the appellant in one of these appeals and writ petition No. 3417/87 by Prithdayal Chetandas and others who are the appellants in the other civil appeal. Jamnadas C. Tuliani who is respondent No. 1 in both these appeals is the owner and tile landlord of the suit premises comprising two bed rooms flat together with a garage on the ground floor and a store room on Bhulabhai Desai Road in the city of Bombay. A suit was instituted by him for ejectment from the said premises against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which they had not paid in spite of a notice of demand having been served on them as contemplated by sub section (2) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section (3)(a) of the Act as it then stood. Two other grounds were pleaded by the re spondent No. 1 namely that the tenants had changed the user of the suit premises and that they had committed breach of terms and conditions of the tenancy. Subsequently, Arjun Khiamal Makhijani aforesaid was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sublet a portion of the suit premises namely the garage to him and were consequently liable to be evicted on this ground also. The suit was contested both by the tenants as well as by defendant No. 6. The Trial Court recorded find ings in favour of the landlord in so far as the pleas of default in payment of rent and illegal sub tenancy are concerned. The other two pleas namely that the tenants had changed the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord. On the basis of the findings on the pleas of default in payment of rent and illegal subletting, the suit was decreed. Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by defendant No. 6. Both these appeals were dismissed and the tenants and defendant No. 6 aggrieved by the said decree filed two writ petitions in the High Court. 384 Against the common judgment of the High Court dismissing these writ petitions, the present civil appeals have been preferred. Before dealing with the respective submissions made by learned counsel for the parties it may be pointed out that even though the finding that the tenants were defaulters in payment of rent has been upheld by the High Court, the other finding namely that the tenants had illegally sublet the garage of the suit premises to defendant No. 6 has been set aside and it has been held accepting the case of the tenants that the defendant No. 6 was a trespasser. The tenants had also claimed before the High Court the benefit of sub sec tion (3) of Section 12 of the Act as substituted by Amend ment Act 18 of 1987 which came into force on 1st October 1987. This plea too was repelled. The defendant No. 6 before the High Court on the other hand took up the plea that in view of the finding in the suit that he was an illegal sub tenant of the garage since 1967, he was entitled to the benefit of sub section (2) of Section 15 of the Act as amended by the aforesaid Amendment Act 18 of 1987. The High Court repelled this plea on the finding that he was not a sub tenant but a trespasser and also on the ground that he was not in possession on 1st February 1973, the relevant date mentioned in the said sub section. The High Court also held that benefit of subsection (2) of Section 15 as amend ed, could not be given to defendant No. 6 in a writ peti tion, the same being not a proceeding contemplated by Sec tion 25 of the Amendment Act. In order to appreciate the submissions made by learned counsel for the parties, it will be useful to extract sub section (3) as it stood at the time when the suit was instituted and sub section (3) as it stands after its amendment. Subsection (3) as it stood when the suit was instituted reads as hereunder: "3(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, 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 notice referred to in sub section (2), the Court. shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court max fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to 385 pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. " After its amendment as aforesaid, it reads: "(3) No decree for eviction shall be passed by the Court in any suit for recovery of posses sion on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permit ted increases till the suit is finally decided and also pays costs of the suit as directed by the Court; Provided that, the relief provided under this sub section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant." Sub section (2) of Section 15, on the other hand, after its amendment as aforesaid runs thus: "(2) The prohibition against the sub letting of the whole of any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in subsection (1), shall, subject to the provisions of this subsection, be deemed to have had to effect before the 1st day of February 1973, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything con tained in any contract or in the judgment, decree or order of a Court, any such sublease, assignment or transfer of any such purported sublease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in subsection (1), as purported sub lessee, assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, 386 and any tenant who has sub let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of Section 13. The provisions aforesaid of this sub section shall not affect in any manner the operation of sub section (1) after the date aforesaid." Since considerable emphasis has been placed on Section 25 of the Amendment Act 18 of 1987, the same may also be usefully quoted. It reads: 25. Nothing contained in the principal Act, as amended by this Act, shall be deemed to autho rise the re opening of any suit or proceeding for the eviction of any person from any prem ises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act. Explanation For the purposes of this section, suit or proceeding, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired before the com mencement of this Act. " It has been urged by the learned counsel for the tenants that 14th November 1967 was the first day of hearing of the suit and since in pursuance of an order passed by the Trial Court on that day, the tenants had deposited the entire arrears of rent on 9th January 1968 within the time granted by the Court and continued to deposit the monthly rent thereafter they could not be treated as defaulters in pay ment of rent even if the amendment made in sub section (3) of Section 12 by the Amendment Act 18 of 1987 was ignored. We, however, find it difficult to agree with this submis sion. It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under sub section (2) of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice. It is also not denied that during the said period of one month, no dispute regarding the amount of standard rent or permitted 387 increases was raised by the tenants. On a plain reading of clause (a) of sub section (3) of Section 12 of the Act as it stood at the relevant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed. Clause (b) of sub section (3) on the face of it was not attracted inasmuch. as the said clause applied only to a case not covered by clause (a). This is amply borne out by the use of the opening words "In any other case" of clause (b). In Harbanslal Jagmohandas and Anr. vs Prabhudas Shiv lal, [1977] 1 S.C.C. page 576, these clauses (a) and (b) of sub section (3) of Section 12 of the Act came up for consid eration and it was held that the tenant can claim protection from the operation of the Section 12(3)(a) of the Act only if he makes an application raising a dispute as to standard rent within one month of the service of the notice terminat ing the tenancy. In the instant case this had not admittedly been done by the tenants. The consequence of non payment of arrears of rent claimed in the notice of demand was, there fore, inevitable. In Jaywant section Kulkarni and Others vs Minochar Dosabhai Shroff and Others, [1988] 4 S.C.C.p.108, clauses (a) and (b) of sub section 3 of Section 12 again came up for consideration. It was held: "Sub section (3)(a) of Section 12 categorical ly provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in subsection (2), the court shall pass a decree for evic tion in any such suit for recovery of posses sion. In the instant case, as has been found by the court, the rent is payable month by month. There is no dispute regarding the amount of standard rent or permitted in creases. Such rent or increases are in arrears for a period of six months or more. The tenant had neglected to make payment until the expi ration of the period of one month after notice referred to in subsection (2). The Court was bound to pass a decree for eviction in any such suit for recovery of possession." Faced with this difficulty, learned counsel for the tenants urged that since the Act was a beneficial legisla tion the tenants having deposited the arrears of rent within the time granted by the Trial Court and having continued to deposit future rent thereafter the decree for 388 their eviction deserves to be reversed by this Court. In so far as this submission is concerned, it may be pointed out that in Ganpat Ram Sharma and others vs Gayatri Devi, [1987] 3 SCC page 576, while dealing with almost a similar Rent Control Legislation it was held: "But quite apart from the suit being barred by lapse of time, this is a beneficial legisla tion, beneficial to both the landlord and the tenant. It protects the tenant against unrea sonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingencies. In Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 SCC page 73 while dealing with the scope of clauses (a) and (b) of sub section (3) of Section 12 of the Act, it was held: "It is clear to us that the Act interferes with the landlord 's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord 's power to evict them, in these days of scarcity of accommodation, by assert ing his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus Section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar vs Ranchhodbhai Shan kerbhai Patel, AIR 1968 Guj 172. If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under Section 12(3)(a) to get a decree for eviction. But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in section 12(3)(b) and defeat the landlord 's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to 389 see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation." (Emphasis supplied). When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants. The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose. It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles. Reliance was placed by learned counsel for the tenants on Vatan Mal vs Kailash Nath, [1989] 3 SCC page 79. In that case provisions of Amending Ordinance No. 26 of 1975 whereby Section 13(a) was inserted in the Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950, came up for considera tion. After pointing Out that the object of inserting Sec tion 13(a) was to confer benefit on all tenants against whom suits for eviction on ground of default in payment of rent were pending and to achieve that object, the said Section had been given overriding effect, it was held that the interpretation of Section 13(a) must conform to the legisla tive intent and the courts should not take narrow restricted view which will defeat the purpose of the Act. In our opin ion, in view of the mandatory provisions contained in Sec tion 12(3)(a) of the Act, the decision in the case of Vatan Mal, (supra) is not at all attracted to the facts of the instant case. Clauses (a) and (b) of sub section (3) of Section 12 of Act are calculated to meet entirely different situations and the object of clause (b) was not to defeat the mandatory requirement of clause (a) scope of which has already been discussed above. For the same reason, the decision of this Court in B.P. Khemka Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 SCR page 559 on which too reliance has been placed by the learned counsel for the tenants is of no assistance to them. 390 It was then urged by the learned counsel for the tenants that notwithstanding the provisions contained in Section 12(3)(a) of the Act, this Court can still grant relief to the tenants in view of the power conferred on it under Article 142 of the Constitution "for doing complete justice" in the case. Reliance in support of this submission has been placed on Smt. Kamala Devi Budhia and others vs Hem Prabha Ganguli and Others, [1989] 3 SCC page 145. This submission ignores the basic concept that Article 142 does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provision. In the case of Smt. Kamala Devi Budhia, (supra), the question arose as to wheth er an application under Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act was competent or in the circumstances of the case only a suit under Section 11 thereof could be filed. It was pointed out that it is the same Court before which both a suit under Section 11 and an application under Section 12 are to be filed and it was in this background that it was held: "If it is assumed that an application under Section 12 of the Act is not maintainable in the facts and circumstances of the present case, in our opinion, the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein. A further question may arise as to the effect of the Judicial Commissioner, Ranchi declining to pass a formal decree of eviction and directing the appellants to make an application under Section 12(3) of the Act for that purpose. Can this Court restore the decree of the trial court in absence of an appeal by the appel lants before the High Court? We think.that we can and we should. the question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants. What was left was only procedural in nature and inconsistent with our decision to treat the proceeding as a suit. The occasion for filing an application under Section 12(3) can arise only where the matter is covered by Section 12, and as we have made an assumption in favour of the respondents that Section 12 has no application to the present case, there is no point in asking the appellants to file such an application. As mentioned in Article 142 of the Constitution of India, this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, 391 and the present case is a most appropriate one for exercise of such power." (Emphasis supplied) The said decision apparently cannot be applied to the facts of the instant case. Learned counsel for the tenants then urged, relying on Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 SCR page 950, that at all events the tenants were entitled to be relieved against forfeiture for non payment of rent under Section 114 of the Transfer of Property Act benefit of which could be given if deposit of rent was made at any stage of the hearing of the suit. In our opinion, there is no substance in this submission either inasmuch as Section 114 of the Transfer of Property Act cannot be applied to a case where the suit for eviction of a tenant has been insti tuted not on the basis of forfeiture of lease under the Transfer of Property Act but on the basis of statutory provision dealing specifically with the rights and obliga tions of the landlords and tenants such as Section 12 of the Act. In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and (3)(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction. Such removal of bar is not in any sense forfeiture of any rights under lease which the tenant held. Section 114 of the Transfer of Property Act which provides relief against forfeiture for non payment of rent applies to a case where a lease of immovable property has determined by forfeiture for non payment of rent. Section 111 of the Transfer of Property Act deals with various contingencies whereunder a lease of an immovable property determines. Clause (g) contains one.of such contingencies being by forfeiture inter alia in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter. In a case where forfeiture of lease is claimed for non payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition namely on nonpayment of rent the lessor was entitled to re enter. It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for non payment of rent. In the instant case, the suit was not based on any such forfeiture of lease under the Transfer of Property Act but was filed for the 392 enforcement of the statutory right conferred on the landlord by subsections (2) and (3)(a) of Section 12 of the Act. Lastly, it was urged by the learned counsel for the tenants that after clauses (a) and (b) of sub section (3) of Section 12 were substituted by the consolidated sub section (3) of the Amendment Act 18 of 1987, the tenants should have been given the benefit of the deposit of arrears of rent on the first day of hearing in pursuance of the order of the Trial Court dated 14th November, 1967, and of the deposits of future rent thereafter and at all events they were enti tled to make the necessary deposit after the commencement of the Amendment Act 18 of 1987. In our opinion, the tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation. In this connection, it will be useful to notice that while amending sub section (2) of Section 15 of the Act, it was provided by the Amendment Act 18 of 1987 that the provisions which were substituted in the said sub section, shall be deemed to have been substituted on the 1st day of February 1973. No such provision was made with regard to the substitution of sub section (3) of Sec tion 12 of the Act. Sub section (3) uses the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix". If the deposit of arrears of rent on 9th January 1968 is pleaded as compliance of the deposit contemplated by the amended sub section (3) and even if for the sake of argument this plea is accepted, the said deposit would still not confer on the tenants the benefit of sub section (3) for the obvious reason that the said sub section contemplates not only the deposit of standard rent and permitted increases then due but also of simple interest on the amount of arrears of such rent and permitted in creases at the rate of nine per cent per annum. Such amount of interest was admittedly not deposited by the tenants either on 9th January 1968 or on any date thereafter. We owe turn to the submission of the learned counsel for the ten ants that the tenants were entitled to make the deposit contemplated by sub section (3) "on the first day of the hearing of the suit or on such other day as the Court may fix" after sub section (3) being substituted by the Amend ment Act 18 of 1987. This argument ignores the difference between the terms "at the hearing of the suit" as used in Section 114 of the Transfer of Property Act and the term "on the first day of the hearing of the suit". In the case of former, it may be possible to argue that the deposit can be made at any hearing of the suit either in the Trial Court or the Appellate Court, an appeal being a continuation of the suit but the said argument is not available in the latter case where the words used are "on the first day 393 of the hearing of the suit". In the very nature of things it is not possible to contemplate numerous dates all of which may fulfil the requirement of being "the first day of the hearing of the suit". In this connection, it would be useful to notice that the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix" occurring in sub section (3) of Section 12 of the Act after its amendment by the Amendment Act 18 of 1987 occurred in clause (b) of the unamended sub section (3) also. In S.D. Chagan Lal vs Dalichand Virchand Shroff and Others, [1968] 3 S.C.R. page 346 while dealing with the clauses (a) and (b) of the unamended sub section (3) of the Section 12 of the Act, it was held that the date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purpose of the Act. The same meaning obviously has to be given to the aforesaid words when they have been repeated in the amended sub section (3) of Section 12 of the Act. The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal. The words "on or before such other dates as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in subsection (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit. A deposit made on or before such extended date would also meet the requirement of the subsection. Even Section 25 of the Amendment Act 18 of 1987 would be of no assistance in so far as the interpreta tion of Section 12(3) of the Act is concerned. The said Section provides for certain exceptions in which a suit or proceeding for the eviction of any person may be reopened. A provision containing exceptions cannot be interpreted so as to enlarge the scope of sub section (3) of Section 12 of the Act. The said Section 25 may be applicable to sub section (2) of Section 15 as amended by the Amendment Act 18 of 1987, the amendments whereunder were given retrospective effect as indicated earlier or also to a similar provision. Clause (a) of the unamended sub section (3) of the Section 12 of the Act conferred a substantive right on the landlord to have a decree for eviction in his favour as held by this Court in the case of Ganpat Ladha, (supra) and such a right could be taken away only by a provision which either ex pressly took away that fight or could be interpreted to have taken away that right by necessary inendment We do not find any such indication either in the amended sub section (3) of Section 12 of the Act or even in Section 25 of the Amendment Act 18 of 1987. By taking recourse to the process of reopen ing of proceedings one cannot put the hands of the clock back and create an artificial 394 date as the "first day of the heating of the suit". No other point has been urged by learned counsel for the tenants and consequently we find no merit in the appeal filed on behalf of the tenants. We now turn to the appeal filed by defendant No. 6 to whom the garage was found by the courts below to have been illegally sub let but who has been found to be a trespasser by the High Court. As seen above, the High Court in its judgment under appeal repelled the claim of defendant No. 6 that he was entitled to the benefit of the amended sub section (2) of Section 15 of the Act on three grounds (i) that he was a trespasser and not a person to whom the garage had been illegally sub let, (ii) that he was not in posses sion on the relevant date namely 1st February, 1973 and (iii) that the said benefit could be extended only in a suit or proceeding under the Act and not in a writ petition which did not constitute a continuation of a suit or proceeding under the Act but was an independent proceeding under the Constitution. It has been urged by learned counsel for defendant No. 6 that since the finding of the Courts below that the garage had been illegally sub let to the defendant No. 6 was in consonance with the pleading of the landlord in this behalf, the said finding could not be reversed in a. writ petition first, because it was not within the competence of the High Court to reverse that finding either under Article 227 or even under Article 226 of the Constitution and .secondly, that the landlord was bound by his admission in the plead ing. In so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than evidentiary admissions as held by this Court in Nagin das Ramdas vs Dalpatram Ichharam, [1974] 1 SCC page 242 but on the facts of the instant case to which reference shall be shortly made, it is the proviso to Section 58 which comes into play and the rights of the parties had to be determined de hors the said admission. The said proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions. The scope of this provision did not fall for consideration in the case of Nagain Das (supra). Reverting to the facts of the instant case it would be seen that there was a triangu lar dispute in this case. After getting the plaint amended the landlord no doubt set up the case that the tenants had illegally sub let the garage to the defendant No. 6. The case of the tenants, on the other hand, was that defendant No. 6 was a trespasser and they had never sub let the garage to him. In so far as the defendant No. 6 is 395 concerned, the plea set up by him was that he came into possession of the garage in pursuance of an agreement en tered into between him and Daulat, son of one of the ten ants, for a period of six months. As pointed out by the High Court in its judgment under appeal no positive plea of sub tenancy, whether lawful or unlawful was raised by defendant No. 6 in the Trial Court. It is in this background that the controversy on the question as to whether the garage had been illegally sub let by the tenants to the defendant No. 6 had to be resolved. First, since the defendant No. 6 himself had disputed the contention of the landlord that the garage had been illegally sub let to him by the tenants and had set up the agreement with Daulat who apparently had no interest whatsoever in the garage apart from being the son of one of the tenants, a finding that the garage had been sub let to the defendant No. 6 illegally could obviously not be given simply on the basis of the case set up by the landlord in this behalf. Even if defendant No. 6 was permitted to take a somersault and set up a plea contrary to his pleadings, admitting the case of the landlord, any finding given on the basis of such admission would not be binding on the tenants who were contesting the plea of the landlord and had set up a case that defendant No. 6 was a trespasser and that the garage had never been sub let by them to him. Such a finding as aforesaid vis a vis tenants would be a finding based on the admission of the landlord in his own favour. To resolve the controversy as between the landlord and the tenants in this behalf, therefore, an independent finding on merits based on evidence and not on the basis of the plea raised by the landlord had to be given. These are the peculiar facts of this case on account of which the proviso to Section 58 of the Evidence Act was clearly attracted and the parties had to be required to prove their respective cases by adduc ing evidence de hors the admission of the landlord in his plaint. In so far as the submission made by learned counsel for defendant No. 6 that a finding of fact could not be inter fered with in a writ petition by the High Court is con cerned, by and large no exception can be taken thereto. The rule in this behalf, however, is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated. For in stance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly in structed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents. In our opinion, the instant case is one which falls within the exception to the said rule. It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sub let by the tenants to defendant No. 6. It is, 396 however, equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sub let the garage to defendant No. 6 and that the defendant No. 6 was a trespasser. As regards the defendant No. 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat, the son of one of the tenants. In the life time of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage, apart from using it in his capacity as the son of one of the tenants. He was not in a position either to sub let the garage or even to grant a licence thereof. As seen above, the High Court has emphasised in its judgment under appeal that no positive plea of sub tenancy, whether lawful or unlawful, was raised by defendant No. 6 in the Trial Court. That apart, defendant No. 6 in unequivocal terms admitted in his deposition also before the Trial Court that he came in possession by virtue of the agreement with Daulat, the son of defendant No. 1. He further admitted that he did not know that the defendant Nos. 1 to 5 were the tenants of the flat, store room and garage and that he did not make enquiry as to who were the tenants. This being the situation there was no scope for even drawing an inference that taking of posses sion of the garage for six months by defendant No. 6 in pursuance of the agreement entered into between him and Daulat may have been with the tacit approval of the tenants namely defendant Nos. 1 to 5. Nothing has been brought to our notice to indicate that the case of the landlord was that the tenants had sub let the garage to defendant No. 6 in his presence and he had personal knowledge about the transaction of sub letting. The High Court has also pointed out in paragraph 25 of its judgment under appeal that in support of their plea that defendant No. 6 was a trespasser defendant Nos. 1 to 5 had led evidence and that the lower court had no justification to ignore that evidence. It was apparently, therefore, a case where no one properly in structed in law could have come to the conclusion that the tenants had illegally sub let the garage to defendant No. 6. In this state of affairs it cannot obviously be said that the High Court committed any error in holding that defendant No. 6 was a trespasser. This being so, defendant No. 6 indisputably could not derive any benefit out of the amended subsection (2) of Section 15 of the Act. The finding of the High Court that defendant No. 6 was not in possession on the relevant date namely 1st February, 1973 was based on the circumstance that on that date admit tedly the garage was in possession of a receiver appointed by the Court and not in possession of defendant No. 6. It has been urged by learned counsel for defendant 397 No. 6 that possession of the receiver would enure to the benefit of defendant No. 6. This proposition has been con tested by the learned counsel for the landlord. We, however, do not find it necessary to go into this question in view of our conclusion that the finding of the High Court that the garage had not illegally been sub let to defendant No. 6 and that the said defendant was a trespasser is unassailable. Even if the submission of learned counsel for defendant No. 6 in this behalf is accepted the nature of possession of defendant No. 6 on 1st February 1973 would be in no way better than of a trespasser. For the same reason, we find it unnecessary to go into the correctness or otherwise of the view of the High Court that a writ petition being an inde pendent proceeding was not a proceeding in relation to a suit or proceeding under the Act. It was lastly urged by learned counsel for defendant No. 6 that after the judgment had been delivered by the High Court on 22 July 1988 dismissing the two writ petitions it was not open to the High Court to reopen and hear the writ petitions on 18 August 1988 and 29 August 1988. So far as this submission is concerned it may be pointed out that the very first sentence of the order of the High Court dated 18 August 1988 indicates that the judgment had not been deliv ered earlier but had only been dictated and the transcript was ready. Listing the matter again for further hearing became necessary inasmuch as while dictating the judgment a factual position was noticed that defendant No. 4 had died and there was nothing to show that his heirs had been brought on record. Learned counsel for the parties appeared on that date and an affidavit was taken on record. They prayed for time to make submissions on the said question. The matter was ordered to stand over till 29 August 1988 and in the meantime an affidavit in reply to the affidavit taken on record as aforesaid was permitted to be filed. Time given to defendant No. 1 to file affidavit in support of the undertaking given by him earlier was also extended to 29 August 1988. This submission also made by learned counsel for defendant No. 6 has, therefore, no substance. In view of the foregoing discussion, there is no merit even in the appeal filed by defendant No.6. In the result, both the appeals fail and are dismissed. In the circumstances of the case, however, there shall be no order as to costs. R.N.J. Appeals dismissed.	Jamunadas C. Tuliani is the owner and the landlord of the suit premises. He instituted a suit for ejectment against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which had not been paid inspite of notice having been served on them as required by Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section 3(a) of the Act as it then stood. Two other grounds were that the tenants had changed the user of the suit premises and they had committed breach of the terms and conditions of the tenancy. Subsequently Arjun Khiamal Mak hijani was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sub let a portion of the premises namely garage to him and were thus liable to be evicted on that ground also. The Trial Court decreed the suit in favour of the land lord on the plea of default in payment of rent and illegal sub letting. The other two pleas that the tenants had changed the user of the suit premises and had committed breach of terms and conditions of tenancy were decided against the landlord. Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by the defend ant No. 6 and both these appeals were dismissed. Aggrieved by the said decree the tenants and defendant No. 6 filed two writ petitions in the High Court. Against the common judg ment of the High Court dismissing these writ petitions, the present civil appeals have been preferred. 381 Dismissing both the appeals, the Court, HELD: (i) On a plain reading of clause (a) of sub sec tion (3) of section 12 of the Act as it stood at the rele vant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed. Clause (b) of sub section (3) of the face of it was not attracted inasmuch as the said clause applied only to a case not covered by clause (a). This is amply borne out by the use of the opening words "In any other case" of clause (b). [387A B] (ii) Article 142 of the Constitution does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions. [390B] (iii) In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and 3(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction. Such removal of bar is not in any sense forfeiture of any rights under the lease which the tenant held. In the instant case, the suit was not based on such forfeiture of lease under the Transfer of Property Act but was filed for the enforcement of the statutory right conferred on the landlord by sub sections (2) and 3(a) of Section 12 of the Act. [391D; 391H;392A] (iv) The tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inas much as on a plain reading of the sub section it is not possible to give it a retrospective operation. [392C ] The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal. [393C] The words "on or before such other date as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in sub section (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit. [393D] 382 By taking recourse to the process of reopening of pro ceedings one cannot put the hands of the clock back and create an artificial date as the "first day of the hearing of the suit." [393H; 394A] (v) Interpretation of statutes: "When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fail under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants. The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose. It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." [389B D] Harbanslal Jagmohandas and Anr. vs Prabhudas Sivlal, [1977] 1 SCC page 576; Jaywant section Kulkarni & Ors. vs Mino char Dosabhai Shroff & Ors., [1988] 4 SCC P. 108; Ganpat Ram Sharma & Ors. vs Gayatri Devi, [1987] 3 SCC P. 576; Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 S.C.C.P. 573; Latham vs R. Johnson & Newhew Ltd., (408); Vatan Mal vs Kailash Nath, [1989] 3 S.C.C.P. 79; B.P. Khemda Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 S.C.R.P. 559; Smt. Kamala Devi Budhia & Ors. vs Hem Prabha Ganguli & Ors., [1989] 3 S.C.C.P. 145; Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 S.C.R.P. 950; S.D. Chagan Lal vs Dalichand Virchand Shroff & Ors., [1968] 3 S.C.R.P. 346 and Nagindas Ramdas vs Dalpatram Ichharam, [1974] 1 S.C.C.P. 242, referred to.
Vikram Singh @ Vicky Walia son of Shri Gurjinder Singh alongwith two others was found guilty of the offences punishable under Sections 302, 364-A and 201 read with Section 120B of the Indian Penal Code, 1860 (“IPC” for short) and was sentenced to death in respect of the offences punishable under Sections 302 and 364-A IPC in Sessions Trial No.24 of 2005 on the file of the The sentence of death was confirmed by the High Court in Murder Reference No.1 of 2007 and in Criminal Appeal No.105-DB of 2007 vide its judgment dated 30.05.2008. This Court also upheld the sentence of death in Criminal Appeal Nos.1396-97 of 2008 vide judgment dated 25.01.2010. Mercy Petition preferred by said Vikram Singh @ Vicky Walia having been rejected, Writ Petition No.21274 of 2016 (Q&M) was preferred which came up for consideration before the Single Judge of the High Court, who dismissed the petition by order dated The matter was carried in appeal by preferring Letters Patent Appeal No.1395 of 2019, which was dismissed by the Division Bench as not being maintainable. The decision of the Division Bench is presently under challenge in this Special Leave Petition. It is reported that the mother of said Vikram Singh @ Vicky Walia died on 13.11.2020 and some of the last rites including Bhog Ceremony are to be performed on 19.11.2020 and 21.11.2020 at Patiala. It is, therefore, submitted that said Vikram Singh @ Vicky Walia be permitted to attend these ceremonies. Ms. Jaspreet Gogia, learned Advocate appearing for the State, has submitted that in Punjab Jail Manual, there is no provision that a death convict can be released on parole and to similar effect are the submissions of Mr. Abhishek Singh, learned Advocate appearing for the family of the victim. Ms. Jaspreet Gogia, learned Advocate however submitted that in the peculiar facts and circumstances of the case and in terms of instructions received by her, said Vikram Singh @ Vicky Walia can be afforded the permission to attend the last rites and ceremonies of his deceased mother on the relevant dates from 10.00 a.m. to 4.00 p.m., provided he is accompanied by the Police Escort all the We accept the suggestion and direct: a) Vikram Singh @ Vicky Walia, convict in Sessions Trial No. 24 of 2005 shall be allowed to attend the last rites and ceremonies of his deceased mother on 19.11.2020 and 21.11.2020 in Police Escort; b) the facility shall be available only from 10.00 a.m to 4.00 p.m. on the relevant dates and after 4.00 p.m., said Vikram Singh @ Vicky Walia shall be re- c) the facility shall be available only for the aforesaid purpose and apart from the residential address, details of which are given here, he shall not be taken to any other place. d) utmost care shall be taken by the Police Escort in every behalf. A copy of this order shall immediately be sent to the concerned Police Station Urban Estate, Patiala as well as to the Superintendent of the Jail where said Vikram Singh @ Vicky Walia is presently lodged. A compliance affidavit shall be filed in this Court on or List this matter for further consideration on 02.12.2020. Let the order be issued today itself.	The Supreme Court has permitted a death row convict to to attend the last rites and ceremonies of his deceased mother under police escort.Vikram Singh @ Vicky Walia and Jasvir Singh were convicted and sentenced to death for the offence of kidnapping Abhi Verma alias Harry, a school student, in Hoshiarpur, and killing him with an anesthesia overdose in 2005. The Supreme Court had confirmed... The Supreme Court has permitted a death row convict to to attend the last rites and ceremonies of his deceased mother under police escort. Vikram Singh @ Vicky Walia and Jasvir Singh were convicted and sentenced to death for the offence of kidnapping Abhi Verma alias Harry, a school student, in Hoshiarpur, and killing him with an anesthesia overdose in 2005. The Supreme Court had confirmed their death sentences by dismissing their appeals in 2010 and the review petitions filed by them were dismissed in 2017. After the Mercy Petition preferred by them got rejected, they approached the Punjab and Haryana High Court. The said writ petition was dismissed by the High Court (single bench judgment was upheld by the division bench) and thus he approached the Apex Court by filing an SLP. Before the Apex Court, it was submitted that the mother of Vikram Singh @ Vicky Walia died on 13.11.2020 and some of the last rites including Bhog Ceremony are to be performed on 19.11.2020 and 21.11.2020 at Patiala and thus he be permitted to attend these ceremonies. In this regard, the State Counsel submitted that there is no provision that a death convict can be released on parole. However, he suggested that he can be afforded the permission to attend the last rites and ceremonies of his deceased mother on the relevant dates from 10.00 a.m. to 4.00 p.m., provided he is accompanied by the Police Escort all the time. The bench comprising Justices Uday Umesh Lalit, Vineet Saran and S. Ravindra Bhat accepted this suggestion and issued the following directives: a) Vikram Singh @ Vicky Walia, convict in Sessions Trial No. 24 of 2005 shall be allowed to attend the last rites and ceremonies of his deceased mother on 19.11.2020 and 21.11.2020 in Police Escort; b) the facility shall be available only from 10.00 a.m to 4.00 p.m. on the relevant dates and after 4.00 p.m., said Vikram Singh @ Vicky Walia shall be relodged in the concerned jail; c) the facility shall be available only for the aforesaid purpose and apart from the residential address, details of which are given here, he shall not be taken to any other place. "House No.206, Street No.2, Baba Deep Singh Nagar, Patiala, Punjab." d) utmost care shall be taken by the Police Escort in every behalf. Case: JASBIR SINGH @ JASSA vs. STATE OF PUNJAB [ SLP (Crl.) Nos.9650-9651/2019]Coram: Justices Uday Umesh Lalit, Vineet Saran and S. Ravindra Bhat Counsel: Sr. Adv. V. Giri, AOR Jaspreet Gogia Read Order
Appeal No. 214 of 1962. Appeal from the judgment dated July 8, 1960 of the Kerala High Court, Emakulam, in Income tax Referred Case No. 10 of 1957. section T. Desai and Sardar Bahadur, for the appellant. K. N. Rajagopal Sastry, R. N. Sahthey and P. D. Menon, for the respondent. October 25. The judgment of the Court was delivered by HIDAYATULLAH, J. The assessee, A.V. Thomas & Co., Ltd., Alleppey, claimed a deduction of Rs. 4,05,072 8 6 in the assessment year 1952 53 as a bad debt which was written off in its books of account on December 31, 1951. This claim was disallowed. After sundry procedure, the following question was considered by the High Court of Kerala and answered against the assessee company : "Whether on the facts and the circumstances of the case, the Tribunal was correct in holding 778 that the amount of Rs. 4,05,071 8 6 claimed by the assessee Co. as a deduction was not admis sible either under section 10(2) (xi) or 10(2) (xv) ?" The High Court certified the case as fit for appeal to this Court and this appeal has been filed by the assessee company. The Commissioner of Income tax (Bangalore) Kerala, is the respondent. The assessee company was incorporated in 1935 and, as is usual with companies, its Memorandum of Association, authorised it to do multifarious businesses. According to clauses 1, 5, 18 and 23, it was authorised "to be interested in, to promote, and to undertake the formation and establishment of other companies", to make investments and to assist any company financially or otherwise. At the material time the assessee company had three directors, whose names are given below 1. A. V. Thomas 2. section Sankaranarayana lyer and 3. J. Thomas. There was another private limited company known as the Southern Agencies Limited, Pondicherry, and its directors were : 1. A. V. Thomas 2. section section Natarajan, and 3. C, section Ramakrishna Karayalar. There was a mill in Pondicherry known as Rodier Textile Mill belonging to the Anglo French Textiles Limited, Pondicherry. The assessee company averred that the Southern Agencies Ltd., took up in 1948 the promotion of a limited company to be known as Rodier Textile Mills Ltd., Pondicherry, with 779 a view to buying and developing the Rodier Textile Mill. The assessee company, so it was stated, financed the Southern Agencies Ltd., Pondicherry, by making over funds aggregating to the sum of Rs. 6,05,071 8 6. This amount was not given directly by the assessee company but at its instance by India Coffee and Tea Distributors Ltd., Madras. The assessee company further stated that though an entry in its own books dated December 31, 1948, showed this amount as an advance for purchase of 6,000 shares of Rs. 100 each in the Rodier Textile Mills Ltd., the main intention of the assessee company was to assist and finance the Southern Agencies Ltd. within the terms of the assessee company 's Memorandum. The subscription list for the Rodier Textile Mills Ltd. remained open from January 5 to January 20, 1949. No application for shares was made on behalf of the assessee company and the shares were not acquired. The public took no interest in the new company which was being promoted and the whole project tailed. On September 1, 1950, the assessee company approved of the action of Mr. A. V. Thomas in making the said advance and on September 18, 1950, a resolution was passed by the Board of Directors of The assessee company that the amount of Rs. 6,00,000 should be shown as an advance for purchase of shares in the Rodier Textile Mills Ltd. (in formation) and the balance of Rs. 5,072 8 5 be shown under sundry advances due from the promoters of the new company. The Southern Agencies Ltd. however, did not return the ' entire amount. On December 7, 1951, it paid back Rs. 2,00,000 which appears to have been received in full satisfaction. Though as late as June 12, 1951, the advance was considered to be good and recoverable, the balance was written off on December 31, 1951, which was the close of the year of account of the assessee company. It was this amount which was claimed in the assessment year 1952 53 as a bad 780 debt actually written off, or alternatively as an expenditure, not of a capital nature, laid out or expended wholly and exclusively for the purpose of the assessee company 's business. The Income tax Officer, Alleppey, held that the debt was written off at a time when it was neither bad nor doubtful and the claim to write it off was premature. He, therefore, disallowed it. An appeal was taken to the Appellate Assistant Commissioner and he upheld the order of the Income tax Officer though on a different ground. He held that the advance was made for the purpose of purchasing shares of the new company then in formation and it was thus made for the acquisition of a capital asset, which was either the control of the new company or ""to gain its good will likely to result in the grant of agency rights" to the assessee company. According to the Commissioner, the loss, if any, was of a capital nature and the question whether the claim of bad debt was premature or otherwise did not arise for consideration. The Appellate Assistant Commissioner also held that the deduction could not be claimed as an allowance under section 10(2)(xv) of the Income tax Act. The assessee company appealed to the Tribunal. The Tribunal upheld the order of the Appellate Assistant Commissioner but on a third ground. The Tribunal accepted that one of the objects of the assessee company was the promotion and financing of other companies for gain but this advance of Rs. 6,00,000 was not made by the assessee company in the normal course of its business. It was rather a transaction "actuated only by personal motives". In reaching this conclusion the Tribunal observed that the advance was made to Southern Agencies Ltd. which was not a company promoted by the assessee company, that between these two companies there was no previous business connection and at the assessee company had no expectancy of a financial benefit. The Tribunal held that the 781 Rodier Textile Mills Ltd.,, Pondicherry, was not being financed or promoted by the assessee company and that the statement by the assessee company that it would have received some agency right was not supported by evidence. The Tribunal was of the opinion that this advance was probably due to the " substantially common ownership of the assessee company and the Southern Agencies Ltd., of two individuals, namely, A. V. Thomas and section section Natarajan." The Tribunal thus held that this deduction could not be claimed as it was given out of " 'personal motives" and not as a part of the business of the assessee company. The assessee company demanded a case but it was refused by the Tribunal. The assessee company in its application for the case had propounded three questions as under : "(i) Whether on the facts and in the circums tances of the case, the sum of Rs. 4,05,072 8 5 can be claimed by the assessee as a bad debt written off under the provisions of Section 10(2) (xi) of the Act, (ii) Whether on the facts and in the circums tances of the case, the assessee can claim the sum of Rs. 4 '.05,072 8 5 as permissible deduction under Section 10(2) (xv) of the Act, and (iii) Whether co the facts and in the circums tances of the case, the assessee is permitted to claim the deduction of the said sum of Rs. 4,05,072 8 5 as a proper debit and charge it to the Profit and Loss account of the assessee company. " These questions show that the deduction was claimed (i) as a loss in the doing of the business under 782 section 10(1); (ii) as a bad debt actually written off under section 10(2)(xi); and (iii) as an expenditure laid out wholly and exclusively for the purpose of the business under section 10(2)(xv) of the Income tax Act. The assessee company applied to the High Court and the High Court directed a reference on the single question which has been quoted. That question shows that the High Court did not direct the case under section 10(1) of the Act. The Tribunal had considered the case from the point of view of the business and had held that this was not an advance in the normal course of business but one out of ""personal motives". The High Court apparently had not accepted that the matter could be considered under section 10(1) and framed the question under cls. (xi) and (xv) of section 10(2). The question as propounded and considered by the High Court related to the two clauses only. An attempt was made before us to raise the issue under section 10(1) and to claim the deduction as an ordinary business loss. We disallowed the argument because in our opinion the question as considered in the High Court does not embrace it. The assessee company should have requested the High Court at some stage to frame a question that there was no material for the Tribunal to reach the conclusion that this was not a business transaction but a case of an advance out of personal motives. It was contended before us that the High Court in calling for a reference on the single question had stated that that question would cover three matters. The first two 'here mentioned in the question and the third which was said to be implicit was whether the Tribunal was competent to decide a case which had not been made out by the Department at an earlier stage. But this was not the same thing as saying that the Tribunal had no material before it on which it could reach the conclusion that this was not an advance in the ordinary course of business by the assessee company. No doubt, the High Court in its order calling for a statement of the case has observed that there was no dispute at any 783 earlier stage that this was not in the ordinary course of business, but that conclusion of the High Court in the order it made under section 66(2) can have no relevance or binding force. Indeed, the High Court was in error in giving a finding of its own and it is not surprising that the Tribunal protested against this finding. It was open to the High Court to frame a question whether there was any material to support the finding of the Tribunal and to ask the Tribunal to state a case thereon. Not having done so, the question as framed drives the assessee company to prove its case either under section 10(2)(xi) or under section 10(2)(xv) and it is from these two angles that the case will be considered by us. Clauses (xi) and (xv) of section 10(2) read as follows : "(2) Such profits or gains shall be computed after making the following allowances, namely x x x a (xi) when the assessee 's accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, and in the case of an assessee carrying on a banking or money lending business, such sum in respect of loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of the assessee : (Proviso omitted) (xv) any expenditure (not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or 784 personal expenses) laid out or expended wholly and exclusively for the purpose of such business, profession or vocations". In support of its case, the assessee company stated that as there was no dispute about the facts that this was an advance in the ordinary course of business it should be treated as a trading loss or alternatively as a bad debt or an expenditure claimable under section 10(2)(xv). The assesses company relied strongly upon certain Ledger entries of the Rodier Textile Mills Ltd. in the books of the assessee company. These have been marked as Annexures A. 1 to A. 3. The High Court also referred to these accounts and they have been construed as showing, that there was an attempt by the assessee company to acquire a capital asset. These accounts began in 1948 and ended on December 31, 1951. The accounts are headed "Personal Ledger. " In December, 1948, sundry amounts totalling Rs. 6,05,071 8 5 are shown as amounts "paid to you by Indian Coffee and Tea Distributors Ltd., Madras, towards purchase of shares. " On January 1, 1949, the account opened with a debit balance of Rs. 6,05,071 8 5. Nothing appears from the accounts who this " 'you" was. A number of reversing entries were made in respect of certain amounts and then on December 31, 1949, the amount was shown as follows : By advance for sundry expenses due from the promoters of new company debited to this trans ferred 5,071 8 5 By balance 6,00,000 0 0 1950 opened with entry on January I To Balance 6,00,000 0 0 and closed with an entry By Amount paid to Southern Agencies Ltd, 6,00,000 0 0 785 This was shown as an opening balance on January 1, 1951. On December 7, a payment of Rs. 2,00,000 was shown and Rs. 4,00,000 were transferred for writing off. On December 31., 1951, Rs. 4,00,000 were written off and so also the amount of Rs. 5,072 8 5. The last amount included a sum of Rupee 1, hire for carriage which was also written off after the entry had been reversed. From these accounts it is quite clear that to begin with the amount was shown as an advance for purchase of shares of the Rodier Textile Mills Ltd. If this was the purpose, it was not an expenditure on the revenue side. The High Court correctly pointed out that it was not the business of the assessee company to buy agencies and sell them. The shares were being acquired by the assessee company so that it might have the lucrative business of selling agency and similar other agencies from the Rodier Textile Mills Limited. As late as December 15, 1952, the Chairman of the assessee company stated in his speech as follows : "You are aware that an advance was made to the Southern Agencies (Pondicherry) Ltd. to acquire for us shares in Rodier Textile Mills Ltd. It was felt that when the promotion and working of Rodier Textile Mills Ltd., became a fait ac compli, our company stood considerably to gain by securing their agency for handling their goods. " This clearly shows that the assessee company intended to acquire a capital asset for itself This purpose takes the case of the assessee company out of section 10(2)(xv) of the Income tax Act, because no expenditure can be claimed under that clause which 'is of a capital nature. By the declaration of the Chairman of the assessee company the case under section 10(2)(xv) becomes completely untenable. In any event, the 786 amount was not expended in the year of account ending with December 31, 1951 : it was expended in 1948. It remains to consider the case under section 10(2)(xi). In this connection, we were referred to the Memorandum of Association to show that it was one of the objects of the assessee company to promote other companies and this amount was paid to Southern Agencies Ltd. to promote the Rodier Textile Mills Ltd. There is no doubt that the objects mentioned in the Memorandum of Association of the assessee company include the promotion and financing of other companies. A Memorandum, however, is not conclusive as to the real nature of a transaction. That nature has to be deduced not from the Memorandum but from the circumstances in which the transaction took place. Here, the different versions given in the books of account of the assessee company belie the assertion that this was an amount paid to promote the Rodier Textile Mills Ltd. Even though this money was available on December 31, 194 8, and the subscription list for the shares remained open from January 5 to 20, 1949, no application for a single share was made on behalf of the assessee company. The entry till the end of 1949 was that the amount was laid out for purchase of shares. It was only subsequently that it was shown to be an advance to the Southern Agencies Ltd. In fact, the entry comes only at the end of 1950 when it is set down "By Amount paid to Southern Agencies Ltd." The assessee company raised three contentions in support of the case that this became a bad and doubtful debt which was actually written off : (a.) that the High Court was wrong in saying that before the assessee could claim the deduction under section 10(2)(xi) it must prove that it had in the past purchased and sold agencies, (b) that the object of the assessee company was to apply for shares but as it did not 787 apply for shares the transaction between it and the Southern Agencies remained an advance in the ordinary course of business, and (c) Southern Agencies having failed to give back the money the assessee company was within its rights to write off this bad and doubtful debt. Now, a question under section 10(2)(xi) can only arise if there is a bad or doubtful debt. Before a debt can become bad or doubtful it must first be a debt. What is meant by debt in this connection was laid down by Rowlatt, J., in Curtis v.1. & G. Oldfield Ltd.,(1) at p. 330 as follows : "When the Rule speaks of a bad debt it means a debt which is a debt that would have come into the balance sheet as a trading debt 'in the trade that is in question and that it is bad. It does not really mean any debt which, when it was a good debt, would not have come in to swell the profits. " A debt in such cases is an outstanding which if recovered would have swelled the profits. It is not money handed over to someone for purchasing a thing which that person has failed to return even though no purchase was made. In the section a debt means something more than a mere advance. It means something which is related to business or results from it. To be claimable as a bad or doubtful debt it must first be shown as a proper debt. The observations of Rowlatt, J., were applied by the Privy Council in Arunachalam Chettiar vs Commissioner of income tax(2), at p. 245, where their Lordships observed as follows: "Their Lordships moreover can give no countenance to a suggestion that upon a dissolution of partnership a partner 's share of the losses for several preceding years can be accumulated and thrown into the scale against (1) , 330. (2) (1936) L. R. 63 I. A. 233, 245 788 the income of another partner for a particular year. No principle of writing off a bad debt could justify such a course, whether in the year following the dissolution or., as logic would permit, in some subsequent year in which the partner 's insolvency has crystallised. The ; 'bad debt" would not, if good, have come in to swell the taxable profits of the other partner. " This Court also approved the dictum of Rowlatt, J., in COMMissioner of Income tax vs Abdullabhai Abdulkadar (1) at p. 550 and referred to the observations of Venkatarama Ayyar, J., in Badridas Daga, vs Commissioner of Income, tax, (2) where the learned judge speaking for this Court said that a business debt "springs directly from the carrying on of the business and is incidental to it and not any loss sustained by the assessee, even if it has some connection with his business." Section 10(2)(xi) is in two parts. One part deals with an assessee who carries on the business of a banker or money lender. Another part deals with business other than the aforesaid. Since this was not a loan by a banker or money lender, the debt to be a debt proper had to be one which if good would have swelled the taxable profits. Applying these tests, it is quite obvious that an advance paid by the assessee company to another to purchase the shares cannot be said to be incidental to the trading activities of the assessee company. It was more in the nature of a price paid in advance for the shares which the Southern Agencies had a right to allot in the Rodier Textile Mills Ltd. This cannot, therefore, be described as a debt and indeed the changes in the books of account of the assessee company clearly show that the assessee company itself was altering the entries to convert the advance into a debt so as to be able to write it off and claim (1) ; , 954. (2) ; 789 the benefit of section 10 (2) (xi). In our opinion, section 10(2)(xi) was inapplicable to the facts of this case. In the result the appeal must fail and it is dismissed. The assessee company shall pay the costs of the respondent. Appeal dismissed.	The assessee company was incorporated in 1935 and its Memorandum of association authorised it, inter alia, to promote and to undertake the formation and establishment of other companies and to assist any company financially or otherwise. There was another company known as the Southern Agencies Ltd. and Mr. A. V. Thomas was director of both these companies. In 1948 the Southern Agencies Ltd. began the promotion of a company to be known as the Rodier Textile Mills Ltd., with a view to buying up a Mill known as the Rodier Textile Mills. The assessee company made an advance of Rs. 6 lakhs odd to the promoter for the purchase of 6000 shares of the new company. The public took no interest in the new company and the whole project failed. No application for shares was made on behalf of the assesee company and no share was acquired. The Southern Agencies Ltd., however, did not return the entire amount. On December 7, 1951, it paid back only Rs. 2 lakhs which was received in full satisfaction. The balance of Rs. 4,05,071 8 6 was written off on December 31, 195 1, which was the close of the year of account of the assessee company. For the assessment year 1952 33 the assessee company claimed a deduction of that amount as a bad debt actually written off, or alternatively as an Expenditure, not of a capital nature laid out or expended wholly and exclusively for the purpose of its business. 777 Held, (1) that the amount advanced for the purchase of shares was of a capital nature and, therefore, the balance was not allowable as an expenditure under s 10 (2) (xv) of the Indian Income tax Act, 1922, as it was not the business of the assessee company to buy agencies and sell them; and in any event the amount was expended in 1948 and not in the year of account ending December 31, 1951. (2) that it was not a bad debt under section 10 (2) (xi). A debt in such cases is an outstanding which is recovered would have swelled the profits. It is not money handed over to some one for purchasing a thing which that person has failed to return even though no purchase was made. Curtis vs J. & G. Old field Ltd., , Arunachalam Chettiar vs Commissioner 'of Income tax, (1936) L. R. 63 I. A. 233, Badridas Daga vs Commissioner of Income tax; , and Commissioner of Income tax vs Abdullabhi Abdulakadar; , , relied on.
Bombay Lawyers Association a body registered under the Societies Registration Act, 1860, having its office at 4th Floor, Onlooker Building, Sir P.M. Road, Fort, Mumbai – 400001 Through its President Adv.Ahmad M. Abdi, email : abdiandco@gmail.com Tel No.9820073915 ….. Petitioner Versus 1. Jagdeep Dhankar, Vice President of India and Ex-Officio Chairman of Council of States, Office of the Vice President of India, Vice President Secretariate, 6, Maulana Azad Road, New Delhi – 110011 2. Kiran Rijiju, Law Minister, Government of India, 4th Floor, A-Wing, Shastri Bhawan, New Delhi – 110001 3. Secretary General, Rajya Sabha, Room No.29, Parliament House, New Delhi – 110001 4. Union of India, Through Cabinet Secretary, Cabinet Secretariat, Rashtrapati Bhawan, New Delhi - 110004 ….. Respondents Basavraj 1/7 Mr. Ahmad Abdi with Mehmood Abdi I/b. Eknath Dhokale and Mohammad Abdi for the Petitioners Mr. Anil C. Singh, Additional Solicitor General a/w. Mr. Aditya Thakkar, Ms. Savita Ganoo, Mr. D. P. Singh, Ms. Smita Thakur, Mr. Chaitnya Chavan and Mr. Pranav Thakur I/b. Mr. A. A. Ansari for the Respondents 1.The present PIL is filed with the following reliefs: “a.This Hon'ble Court may be please to declare that the conduct of the Respondent No. 1 & 2 have disqualified themselves for holding any constitutional posts of Vice President and Minister of the Union Cabinet respectively by expressing lack of faith in the Constitution of India and the law established by their behaviour and utterances made in public. b. This Hon'ble Court may be please to restrain the Respondent No.1 from discharging his duty as Vice President of India. c.This Hon'ble Court may be please to restrain the Respondent No.2 from discharging his duty as cabinet Minister of Union of India. 2.The Petitioner claims to be a body registered under the Societies Registration Act 1860 established by a group of Advocates practicing at Bombay High Court with the primary purpose to undertake activities to uphold rule of law, promote high values in legal profession and to protect independence of judiciary. Basavraj 2/7 3.Mr. Abdi, the learned Counsel for the Petitioner submits that Respondent Nos.1 and 2 have disqualified themselves to hold the constitutional post by showing lack of faith in the Constitution of India by their conduct and utterances made in public and by attacking its institutions including Hon’ble Supreme Court of India and showing scant regard for the law laid down by the Hon’ble Supreme Court. The conduct of Respondent Nos.1 and 2 appeared to have shaken public faith in Hon’ble Supreme Court of India and the Constitution. Respondent Nos.1 and 2 have affirmed oath that they will bear true faith and allegiance to the Constitution of India. However, their conduct has shown lack of faith in Constitution of India. Respondent Nos.1 and 2 have launched frontal attack on the institution of judiciary, particularly the Hon’ble Surpeme Court of India in most derogatory language without any recourse which is available under the constitutional scheme to change the status quo as per the law laid down by the Hon’ble Supreme Court of India. Respondent Nos.1 and 2 are attacking the collegium system as well as basic structure in public platform. This kind of unbecoming behaviour by Respondent Nos.1 and 2 who are holding constitutional posts is lowering the majesty of the Hon’ble Supreme Court of India in the eye of public at large. The learned Counsel referred to various statements made by Respondent Nos.1 and 2. Basavraj 3/7 4.The learned Counsel for the Petitioner submits that Article 51- A of the Constitution of India lays down the fundamental duties. It directs every citizen to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Respondent Nos.1 and 2 have failed to abide by their fundamental duties and have not shown respect to the constitutional institution i.e. Hon’ble Supreme Court of India. The learned Counsel submits that Respondent Nos.1 and 2 are also guilty of committing contempt of Court by lowering the authority of the Hon’ble Supreme Court. The authorities who are responsible to take action against Respondent Nos.1 and 2 have failed in their duty, as such, this Court, under Article 226 of the Constitution of India may exercise its powers. The learned Counsel relies upon the judgment of the Calcutta High Court in the case of Babul Supriyo Vs. State of West bengal & Anr.1 and submits that it has been held by the Calcutta High Court that it is expected from a representative of the people that he must be courteous in his behaviour, dignified in his manners and cautious on the words spoken by him. The learned Counsel also relies upon the judgment of the Supreme Court in the case of A.I.I.M.S. Students Union Vs. A.I.I.M.S. & Ors .2 to submit that the fundamental duties, though not enforceable by a writ of Court, yet provide valuable guide 1 dated on 14th October 2020 2 Appeal (Civil) No.7366 of 1996 Basavraj 4/7 and aid to interpretation of constitutional and legal issues. 5.Mr. Anil Singh, the learned Additional Solicitor General submits that the present PIL is filed for publicity purpose. It is false and frivolous. Respondent Nos.1 and 2 have complete faith in the Constitution. The Petitioner has annexed the statement of Respondent No.2 wherein it is said that the Central Government, under the Prime Minister has never undermined the authority of the judiciary and its independence will always remain untouched and promoted. Respondent No.1 has also said that he has highest respect for the judiciary and committed to the Constitution. The Vice President cannot be removed by orders under Article 226 of the Constitution. The learned ASG relies upon the judgment of the apex court in the case of Dattaraj Nathuji Thaware Vs. State of Maharasthra & Ors.3 and submits that the PILs are to be admitted with great care. The PILs cannot be for redressal, publicity oriented or political disputes. 6.We have considered the submissions. 7.Juridically, the expression “Public Interest Litigation” means a legal action initiated in a Court of Law for the enforcement of public interest. The PIL is a power given to the public by the Courts Basavraj 5/7 through judicial activism. It is a litigation filed in the Court of law for protection of public interest. The PIL can be used for redressal of a genuine public wrong or public injury and it cannot be publicity- oriented. The parameters of PIL have been indicated by the apex court in catena of judgments. 8.In the present matter, the Petitioner claims to be established by a group of Advocates practicing at Bombay High Court with the primary object of undertaking activities to uphold rule of law, promote high values in legal profession and to protect independence of judiciary. The Petitioner seeks disqualification of Respondent Nos.1 and 2 holding constitutional post on the ground that their utterances have shaken the public faith in the Hon’ble Supreme Court of India and the Constitution. 9.The credibility of the Hon’ble Supreme Court of India is sky- high. It cannot be eroded or impinged by the statements of individuals. The Constitution of India is supreme and sacrosanct. Every citizen of India is bound by the Constitution and is expected to abide by the constitutional values. The constitutional institutions are to be respected by all, including constitutional authorities and persons holding constitutional posts. 10.The statements made by Respondent Nos.1 and 2 are Basavraj 6/7 annexed with the petition. The learned Additional Solicitor General has referred to some of the statements made by Respondent Nos.1 and 2, wherein it has been said that the Government has never undermined the authority of the judiciary and its independence will always remain untouched and promoted and they respect the ideals of the Constitution. Respondent No.1 has also made a statement that he has highest respect for the judiciary and is committed to the Constitution of India. The constitutional authorities cannot be removed in the manner as suggested by the Petitioner. Fair criticism of the judgment is permissible. It is no doubt, fundamental duty of every citizen to abide by the Constitution. Majesty of law has to be respected. 11.Considering the totality of the factual matrix, we do not find it a fit case to invoke our writ jurisdiction under Article 226 of the Constitution of India in entertaining the PIL.	The Bombay High Court on Thursday dismissed a public interest litigation (PIL) petition seeking action against Vice President Jagdeep Dhankhar and Union Law Minister Kiren Rijiju for their alleged public statements against the Collegium, judiciary and the Supreme Court. [Bombay Lawyers Association vs Jagdeep Dhankhar and Ors.] A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep Marne stated that it will pass a detailed order shortly. During the course of hearing, the High Court asked the petitioner's counsel Ahmed Abdi under which provision a Vice President can be disqualified by a court of law. "There are steps (that can be) taken in Parliament," Abdi said. "What provisions? What are the steps," the bench persisted. "There has been violation of oath. Others may follow them. It is not that this is happening in darkness, it is happening in open sunlight," Abdi responded. The bench was, however, not satisfied and rejected the plea. The PIL by Bombay Lawyers Association, highlighted the several incidents where Dhankhar and Rijiju allegedly “attacked the Constitution with complete impunity”. It termed the incidents as “frontal attack” launched on the judiciary in “most insulting and derogatory language” without using any recourse available under the Constitution. It took exception to the conduct of the two executive officials, claiming the same lowered the prestige of the Supreme Court in public. “The Vice President and the Law Minister are attacking the collegium system as well as the doctrine of basic structure openly in a public platform. This kind of unbecoming behaviour by respondents who are holding constitutional posts is lowering the majesty of the Supreme Court in the eyes of the public at large,” the petition emphasized. The petition filed through Advocate Eknath Dhokale claimed that the two officers have disqualified themselves for holding any constitutional posts by expressing their lack of faith in the Constitution. It, therefore, requested the Court to pass orders restraining Dhankhar from discharging his duties as Vice President, and Rijiju from discharging duties as cabinet minister for Central government. Abdi submitted that while verbal debates are welcome, doing the same on public forums would affect confidence of public in the institutions. "We are not against debate verbal, but whether it should be held in parliament or on streets. When it happens on streets, it is flooring the constitution and affecting the faith of citizen in constitution," Abdi submitted. Constitutional functionaries have to be circumspect about their conduct, he underlined. "Constitutional authorities have to mind their conduct, is this the way? This is affecting public at large and it will lead to gradual anarchy. Constitutional posts speaking like this," Abdi said. Additional Solicitor General (ASG) Anil Singh, appearing for the Central government, submitted that the PIL was a frivolous one filed only for publicity. "This is a grossly frivolous pil. This is gross waste of court’s time. This is only to gain publicity, because even before it was heard, it was reported widely in media," the ASG said. He further said that the prayers raised in the petition cannot be allowed. "See the prayer, and how can such prayer be granted by the court? Hence I am saying this PIL is frivilous and should not only be dismissed, but even cost should be imposed," the ASG said. The removal of Vice President and minister can be only as per Constitutional provisions, he emphasised. "There are provisions in Constitution which speak about the removal of Vice President and Cabinet Minister. This is not public interest litigation, this is publicity stunt. You cannot just file 2 pages PIL, without any research or data to back your petition," the ASG contended.
Civil Appeal No. 824 of 1968. Appeal by Special Leave from the Judgment and order dated the 23 8 1967 of the Allahabad High Court in Civil Misc. (Review) application No. 32 of 1966 (in S.A. 4357/65). J. P. Goyal for the Appellant. V. section Desai and V. N. Ganpule for Respondent No. 1. The Judgment of the Court was delivered by SARKARIA, J. The following pedigree table illustrates the relationship of the parties: Hira Lal=Smt. Naraini Devi (plaintiff). (died in 1925). Kapoor Chand Nemi Chand Chandra Bhan (died in 1954) (Judgment debtor) (died in 1930) =Smt. Ramo Devi, (extinct) (Respondent 1) Decree holder. 5 L390 SCI/76 56 Smt. Ramo Devi, widow of Kapur Chand (shown in the above pedigree table) obtained a money decree against her husband 's brother Nemi Chand. In execution of her decree she got attached one half share in the double storeyed House No. 4416, situated at Agra representing it to be of the judgment debtor. Naraini Devi, widow of Hira Lal, filed an objection petition under 0.21, r. 58, Code of Civil Procedure against that attachment claiming the house to be her property. That objection was dismissed by the executing court on the 16th July, 1962. Thereafter, she filed a suit under 0.21, r. 63, Code 11 of Civil Procedure to establish her claim. The suit was decreed by the trial court. On appeal, the District Judge reversed the judgment t and dismissed the suit. Naraini Devi 's second appeal was summarily dismissed by the High Court. She filed a review petition which was rejected by the High Court on August 23, 1967. Hence, this appeal by special leave. i It is common ground between the parties that under a registered J award dated January 4, 1946, the plaintiff Smt. Naraini Devi was given a life interest in the house in dispute. The appellant 's contention is that her limited interest in the house was enlarged into that of a full owner by the operation of sub section (1) of section 14 of the Hindu Succession Act. As against this, the respondents maintain that her case falls under sub section (2) of section 14. The question thus turns on a construction of the award exhibit 2. We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed` by the respondent. This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house. This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers. A part of this house was in the occupation of a tenant at Rs. 32/ per month. Naraini Devi was given a right to get that rent. A part of it was in the personal occupation of Kapoor Chand. The award protects and assures his right of remaining in possession of the same. A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent and no more for her life time. Thus the award confers on her only a restricted estate in the house within the meaning of sub section (2) of section 14 which says: "Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restrict ed estate in such property." Mr. Goyal however, submits that her case would fall within this Court 's ruling in Badri Prasad vs Smt. Kanan Devi(1) according to (1) ; 57 which, if the widow has a pre existing right in the property, then the A case will fall under sub section (1), and sub section (2) which is in the nature of a proviso to sub section (1) of section 14 will not be attracted. The rule in Badri Prasad 's case (supra) is not applicable here. Ill that case the widow had acquired a share in the property by virtue of the Hindu Women 's Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devi 's husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre existing right or interest in the house in question. It was the award dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls; squarely within the ambit of sub section (2) of section 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings. For reasons aforesaid the appeal fails and is dismissed with no order as to costs.	'N ' a widow of 'H ', who, under the Hindu law then applicable and in the presence of her three sons did not get any share or interest in the house left by her late husband and therefore got a life interest by virtue of a registered award filed 3 suit under order 21 Rule 63 C.P.C. to establish her claim to the property that had been attached in execution of the decree against her second son obtained by her eldest daughter in law. 'N 's suit was decreed by the trial Court. The first appellate court reversed that decree. The second appeal and he review in the High Court failed. On appeal by special leave, rejecting the contention that "the appellants limited interest was enlarged into that of a full owner by the operation of sub sec. (I) of Section 14 of the Hindu Succession Act, the Court ^ HELD: (I) A reading of the award as a whole, leaves little doubt, that the only interest in the house created in favour of the widow was that she would be entitled to its rent, and no more for her life time. [56 F] (2) In the present case, the appellant did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. She had no pre existing right or interest in the property. [57 B] (3) The award created a restricted estate for her in the house, and [57 B] (4) The ease fell squarely within the ambit of sub section (2) of section 14 of the Hindu Succession Act and her interest came to an end on her death. [57 C] Badri Prasad vs Smt. Kanan Devi ; , not applicable.
Appeal No. 1948 of 1966. Appeal from the judgment and decree dated March 22, 1965 of the Gujarat High Court in First Appeal No. 718 of 1960. Purshottam Trikamdas, M.H. Chhatrapati and A.K. Varma, for the appellant. G.L. Sanghi, Urmila Kapur and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Bachawat, J. The appellant was the owner of land bearing survey No. 910 situated on the Bhachau Rahapur Road in Kutch District. In November 1949 the Government of Kutch took possession of the land under an arrangement that the Government would give to the appellant in exchange other suitable lands of equal value. On that date Kutch was part of the territory of India and the Land Acquisition, Act, 1894 was in force there. After taking possession of the land the Government constructed thereon the State Guest House and the Court House. Thereafter the Government was neither willing to return the land nor to give other suitable land in exchange and instead it decided to acquire the land compulsorily. On February 1, 1955 the Government issued a notification under sec. 6 (1 ) of the Land Acquisition Act declaring that the land was needed for public purposes stating that possession of the land had already been taken over and directing the Collector to take action under sec. The necessary action was duly taken and in due course the Collector made his award on April 22, 1957. The appellant objected to the amount of compensation and asked the Collector to make a reference to the Court under sec. The Collector duly made the reference. At the hearing of the reference before the District Judge, Kutch, the Government conceded that the appellant was entitled to the market value of the land as on February 1, 1955. The District Judge awarded compensation accordingly. The Government filed an appeal in the High Court. At the hearing of the appeal the Government contended that in the absence of a notification under sec. 4( 1 ), no compensation could be awarded to the appellant. The High Court accepted the contention and observed that the appellant would be at liberty to contend in other proceed 62 ings that the acquisition was bad in the absence of a notification under sec. 4( 1 ). In this view of the matter the High Court allowed the appeal and set aside the order of the District Judge. The present appeal has been filed after obtaining a certificate from the High Court. The main question arising in this appeal is whether the Government can take up inconsistent positions in Court at successive stages of the same litigation to the detriment of its opponent and whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February 1, 1955 it could at the appellate stage resile from that position and contend that there was no notification under sec. 4(1) on that date and that consequently its opponent was not entitled to any compensation. The scheme of the Land Acquisition Act is well known. If the Government desires to acquire land, it has to issue a preliminary notification under sec. 4( 1 ) declaring that the land is needed or is likely to be needed for any public purpose. This notification has to, be issued in order to give an opportunity to all persons interested in the land under section 5A( 1 ) to object to the acquisition within 30 days after the issue of the notification. After hearing the objections the Collector has to make a report under sec. 5A(2). On considering this report the Government may issue a notification under sec. 6 (1 ) declaring that the land is needed for a public purpose. In cases covered by see. 17(4) the Government may direct that the provisions of sec. 5A shall not apply and if it does so a declaration may be made under sec. 6( 1 ) at any time after the publication of the notification under sec. 4 (1 ). When the Collector has made an award under sec. 11, he may under see. 16 take possession of the land which thereupon vests in the Government. Section 18 requires the Collector to make a reference to Court on the application of any person interested in the land who has not accepted the award. It is the market value of the land at the date of the publication of the notification under sec. 4( 1 ) that can be awarded as compensation by the Collector under sec. 11 and by the Court under sec. These provisions show that the issue of the notification under sec. 4(1) is a condition precedent to the acquisition of the land. Where the procedure under sec. 5A has to. be followed, there must necessarily be an interval of time between the issue of the notification under sec. 4(1) and the notification under sec. But where sec. 5A does not stand in the way, the prior publication of a notification under 4( 1 ) is not a condition precedent to the publication of a notification under sec. 6( 1 ). For this reason this Court held in Somavanti vs State of Punjab(1) that where an order was passed [1963] 2, S.C.R. 775, 821 823. 63 under sec. 17(4) dispensing with the procedure Under sec. 5A, it was lawful for the Government to publish both the notifications on the same date. The procedure under sec. 5A being entirely for the benefit of the persons interested in the land they may waive it, see Toronto Vol. 36, p. 444: "A statutory right which is granted a privilege may be waived either altogether or in a particular case. " If all persons interested in the land waive the benefit of the procedure under sec. 5A the Government may lawfully issue a composite notification under secs. 4 ( 1 ) and 6 ( 1 ). In this background let us examine ,the facts of the present case. The Government having constructed buildings on the land was not in a position to restore it and had: no option but to acquire it compulsorily. With a view to make the acquisition the Government published a notification under sec. 6( 1 ) on February 1, 1955. On finding that there was no separate notification under sec. 4( 1 ) the Government had a choice between two courses of conduct. It could say that in the absence of such a notification the acquisition was invalid and that no compensation could be awarded under sec. If it did so it would be compelled to start fresh acquisition proceedings and pay a larger sum by way of compensation. The other course was to treat the notification of February 1, 1955 as. a composite one under secs. 4(1) and 6(1) with the consent of the appellant and to say that the market value of the land on that day could be awarded by way of compensation. The Government elected to choose the latter course. At the hearing of the reference, it conceded that the appellant was entitled to the market value of the land on February 1, 1955. The appellant agreed to accept compensation on that footing. Having regard to the consent of both parties, it could properly be assumed that the procedure of section 5A had1 been waived by the appellant and that the notification of February 1, 1955 could be treated as a composite one under sections 4 ( 1 ) and 6 ( 1 ). The District Judge could therefore lawfully award the market value of the land that day. Relying on the concession made by the Government, the appellant acted to its detriment. It did not challenge the acquisition and took no steps to recover the land. The result is that the Government has been in adverse possession of the land for more than 12 years since 1949 and has gained an advantage which it could not otherwise obtain. In these.circumstances the Government cannot be permitted to resile from the election which it deliberately made and to say that the appellant is not entitled to the market value of the land on February 1, 1955. A party litigant cannot be permitted to take up inconsistent positions in (1) 64 Court to the deteriment of his opponents [see Rama Charan Chakrabarty vs Nimai Mondal(1), Bigelow on Estoppel, 6th ed., page 783]. He cannot approbate or reprobate (see Halsbury 's Laws of England, 3rd, ed., vol. 15 article 340). The concession cannot now be retracted. The High Court should have disposed of the appeal before it on the footing that the appellant is entitled to the market value of the land on February 1, 1955. As the High Court did not hear the appeal on the merits, the matter must be remanded to it for final disposal. In the result, the appeal is allowed, the order of the High Court is set aside and the matter is remanded to the High Court for disposal on the merits. The respondent shall pay to the appellant the costs of the appeal in this Court. R.K.P.S. Appeal allowed. (1) 15 C.L.J. 58.	In 1949 the Government took possession of certain land belonging to the appellant under an arrangement whereby the Government was to give to the appellant in exchange other suitable lands of equal value. After the Government had constructed some buildings on the land, it decided to acquire the land compulsorily. On February 1, 1959, the .Government issued a notification under section 6(1) of the Land Acquisition Act, 1894, declaring that the land was needed for public purposes and stating that possession of the land had already been taken. The Collector made an award on April 22, 1957 but the appellant objected to the amount of compensation and the Collector, on his application, made a reference to the Court under section 18. At the hearing of the reference before the District Judge, the Government concluded that the appellant was entitled to the market value of the land as on February 1, 1955 and the District Judge awarded compensation accordingly. Thereafter the Government filed an appeal in the High Court and contended that in the absence of a notification under section 4(1); no compensation could be awarded to the appellant. The High Court allowed the appeal and set aside the order of the District Judge. On appeal to this Court, HELD: Allowing the appeal: The Government having constructed buildings on the land was not in a position to restore it and had no option but to acquire it compulsorily. With a view to make the acquisition the Government published a notification under sec. 6(1) on February 1, 1955. On finding that there was no separate notification under sec. 4(1) the Government had a choice between two courses. It could say that in the absence of such a notification the acquisition was invalid and that no compensation could be awarded under sec. If it did so it would be compelled to start fresh acquisition proceedings and pay a larger sum by way of compensation. The other course was to treat the notification of February 1, 1955 as a composite one under sections 4(1) and 6(1) with the consent of the appellant and to say that the market value of the land on that day could be awarded by way of compensation. The Government elected to choose the letter course and the appellant agreed to accept compensation on that footing. Having regard to the consent of both parties, it could properly be assumed that the procedure of section 5A had been waived by the appellant and that the notification of February 1, 1955 could be treated as a composite one under sections 4(1) and 6(1). The District Judge could therefore lawfully award the market value of the land on that day. [63 C G] Somavanti. vs State of Punjab, , 821 823 and Toronto Corpr. vs Russell, ; referred to. 61 Furthermore, relying on the concession made by the Government the appellant had acted to its detriment in that it did not challenge the acquisition and the Government had come to be in adverse possession of the land for more than 12 years. In these circumstances the Government could not be permitted to resile from the election which it deliberately made and to say that the appellant was not entitled to the market value of the land on February 1, 1955. [63 G H] Rama Charan Chakrabarty vs Nimai Mondal, 15 C.L.J. 58; referred to,
Appeal No. 35 of 1959. Appeal from the judgment and decree dated October 29, 1956, of the Allahabad High Court in Writ Petition No. 327 of 1956. H. N. Sanyal, Additional Solicitor General of India, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants. G. C. Mathur and C. P. Lal, for the respondents. 1960, December 13. The Judgment of Imam, Kapur, Das Gupta and Dayal, JJ. was delivered by Das Gupta, J. Ayyangar, J. delivered a separate judgment. DAS GUPTA, J. This appeal is against an order of the High Court of Judicature at Allahabad rejecting the appellants ' application under article 226 of the Constitution. The first appellant is the Diamond Sugar Mills Ltd., a public limited company owning and operating a sugar factory at Pipraich in the District Gorakhpur, for the manufacture of sugar from 244 sugarcane. The second appellant is the Director of the company. By this application the appellants challenged the imposition of cess on the entry of sugarcane into their factory. On February 24, 1956, when the application was made the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (U. P. XXIV of 1953), was in force. Section 20 of this Act gave to the Governor of U. P. the power to impose by notification "a cess not exceeding 4 annas per maund on the entry of sugarcane into an area specified in such notification for consumption, use or sale therein". This Act it may be mentioned had taken the place of an earlier Act, the U. P. Sugar Factories Control Act, 1938, section 29 of which authorised the Governor of U. P. to impose by a notification after consultation with the Sugar Control Board under the Act "a cess not exceeding 10 per cent of the minimum price, if any, fixed under section 21 or 4 annas per maund whichever was higher on the entry of sugarcane into a local area specified in such notification for consumption, use or sale therein". Notifications were issued under this provision for different crushing seasons starting from 1938 39, the last notification issued thereunder being for the crushing season of 1952 53. These notifications set out a number of factories in a schedule and provided that during 1952 53 crushing season cess at a rate of three annas per maund shall be levied on the entry of all sugarcane into the local areas comprised in factories mentioned in the schedule for consumption, use or sale therein. Act No. XXIV of 1953 repealed the 1938 Act. The first notification under the provisions of section 20 of the 1953 Act was in these terms: "In exercise of the powers conferred by sub section (1) of section 20 of Uttar Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1953; (U. P. Act No. XXIV of 1953) the Governor is pleased to declare that during the 1954 55 crushing season, a cess at a rate of three annas per maund shall be levied on the entry of all sugar cane into the local areas comprised in the factories mentioned in the Schedule, for the consumption, use or sale therein". 245 Similar notifications were also issued on October 23, 1954, for the crushing season 1954 55 and on November 9, 1955, for the crushing season 1955 56. The appellants ' factory was one of the factories mentioned in the schedule of all these notifications. On the date of the application, i.e., February 24, 1956, a sum. of Rs. 2,59,644 9 0 was due from the first appellant and a further sum of Rs. 2,41,416 3 0 as liability on account of cess up to the end of January, 1956, also remained unpaid. The appellant contended on various grounds that section 20 of Act XXIV of 1953 was unconstitutional and invalid and prayed for the issue of appropriate writs directing the respondents the State of U. P. and the Collector of Gorakhpur not to levy and collect cess on account of the arrears of cess for the crushing season 1954 55 and in respect of the crushing season 1955 56 and successive crushing seasons and to withdraw the notifications dated October 23, 1954, and November 9, 1955 , which have been mentioned above. During the pendency of this application under article 226 before the Allahabad High Court the U. P. Legislature enacted the U. P. Sugarcane Cess Act, 1956 (U. P. XXII of 1956), repealing the 1953 Act. Section 3 of this Act as originally enacted was in these words: "The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein: Provided that the State Government may like. wise remit in whole or in part such cess in respect of cane used or to be used in factory for any limited purpose specified in the notification. Explanation: If the State Government, in the case of any factory situate outside Uttar Pradesh, so declare, any place in Uttar Pradesh set apart for the purchase 'of cane intended or required for use. consumption or sale in such factory shall be deemed to be the premises of the factory. (2) The cess imposed under sub section (1) shall 246 be payable by the owner of the factory and shall be paid on such date and at such place as may be prescribed. (3) Any arrear of cess not paid on the date prescribed under sub section (2) shall carry interest at 6 per cent. per annum from such date to date of payment. " There is a later amendment by which the words "four annas" have been altered to "twenty five naye paise" and the words "Gur, Rab or Khandsari Sugar Manufacturing Unit" have been added after the words "factory" in sub section (1). These amendments are however not relevant for the purpose of this appeal. Section 9 of this Act repealed section 20 of the Sugar Cane (Regulation of Supply and Purchase) Act, 1953. Sub sections 2 and 3 of section 9 are important. They are in these words: "2. Without prejudice to the general application of section 24 of the U.P. General Clauses Act, 1904, every notification imposing cess issued and every assessment made (including the amount of cess collected) under or in pursuance of any such notification, shall be deemed a notification issued, assess ment made and cess collected under this Act as if sections 2, 3 and 5 to 8 had been in force at all material dates. Subject as provided in clause (1) of Article 20 of the Constitution every notification issued cess imposed and act or thing done or omitted between the 26th January, 1950, and the Appointed date in exercise or the purported exercise of a power under section 29 of the U. P. Sugar Factories Control Act, 1938, or of section 20 of the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, which would have been validly and properly issued, imposed, done or omitted if the said sections had been as section 3 of this Act, shall in law be deemed to be and to have been validly and properly imposed and done, any judgment, decree or order, of any court notwithstanding. " The position after the enactment of the U. P. 247 Sugarcane Cess Act, 1956, was that the imposition and assessment of cess that had already been made under the 1953 Act would operate as if made under the 1956 Act. In view of this the first appellant, the Diamond Sugar Mills Ltd., prayed to the High Court for permission to raise the question of constitutionality and validity of the 1956 Act. It also prayed for the issue of a writ in the nature of mandamus directing the respondents not to levy cess upon the petitioners appellants under this new Act, the U. P. Sugarcane Cess Act, 1956. This application was allowed and the High Court considered the question whether section 3 of the U. P. Sugarcane Cess Act, 1956, 'empowering the State Government to impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for the consumption, use or sale therein was a valid law. The principal ground urged in support of the appellants ' case was that the law as enacted in section 3 was invalid and that it was beyond the legislative competence of the State Legislature. Several other grounds including one that the provisions of the section went beyond the permissible limits of delegated legislation were also raised. All the grounds were negatived by the High Court which accordingly rejected the appellants ' petition. The High Court however gave a certificate under Article 132(1) and also under article 133(1)(c) of the Constitution and on the basis of that certificate the present appeal has been filed. Of the several grounds urged before the High Court only two are urged before us in appeal. One is that the law was invalid, being beyond the legislative competence of the State legislature; the other is that in any case the provision giving the Governor power to levy any cess not exceeding 4 annas without providing for any guidance as to the fixation of the particular rate, amounted to excessive delegation, and was accordingly invalid. The answer to the question whether the impugned law was within or beyond the legislative competence of the State legislature depends on whether the law falls under Entry 52 of the State List 248 List II of the Seventh Schedule to the Constitution. It is quite clear that there is no other entry in either the State List or the Concurrent List under which the legislation could have been made. Entry 52 is in these words: "Tax on the entry of goods into a local area for consumption, use or sale therein". Section 3 of the impugned Act which has already been set out provides for imposition of a cess on the entry of sugarcane into the premises of a factory for use, consumption or sale therein. Is the "premises of a factory" a local area within the meaning of the words used in Entry 52? If it is the legislation was clearly within the competence of the State legislature; if it is not, the law was beyond the State legislature 's competence and must be struck down as invalid. In considering the meaning of the words "local area" in entry 52 we have, on the one hand to bear in mind the salutary rule that words conferring the right of legislation should be interpreted liberally and the powers conferred should be given the widest amplitude; on the other hand we have to guard ourselves against extending the meaning of the words beyond their reasonable connotation, in. an anxiety to preserve the power of the legislature. In Re the Central Provinces & Berar Act No. XI V of 1938 (1) Sir Maurice Gwyer, C. J., observed: "I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of correcting any supposed errors". Again, in Navinchandra Mafatlal vs The Commissioner of Income Tax, Bombay City (2) Das, J. (as he then was) delivering the judgment of this Court observed: ". . . The cardinal rule of interpretation however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most (1) , 37. (2) [1955] 1 S.C.R. 829. 249 liberal construction should be put upon the words so that the same may have effect in their widest amplitude. " Our task being to ascertain the limits of the powers granted by the Constitution, we cannot extend these limits by way of interpretation. But if there is any difficulty in ascertaining the limits, the difficulty must be resolved so far as possible in favour of the legislative body. The presumption in favour of constitutionality which was stressed by the learned counsel for the respondents does not take us beyond this. On behalf of the appellants it has been urged that the word "local area" in its ordinary grammatical meaning is never used in respect of a single house or a single factory or a single plot of land. It is urged that in ordinary use the words "local area" always mean an area covering a specified region of the country as distinguished from the general area. While it may not be possible to say that the words "local area" have acquired a definite and precise meaning and the phrase may have different connotations in different contexts, it seems correct to say that it is seldom, if ever, used to denote a single house or a single factory. The phrase appears in several statutes, some passed by the Central Legislature and some by the Provincial or State Legislatures; but in many of these the words have been defined. These definitions being for the peculiar purpose of the particular statute cannot be applied to the interpretation of the words "local area" as used in the Constitution. Nor can we derive any assistance from the judicial interpretation of the words "local area" as used in the Code of Criminal Procedure or other Acts like Bengal Tenancy Act as these interpretations were made with reference to the scope of the legislation in which the phrase occurs. Researches into dictionaries and law lexicons are also of 'no avail as none of these give the meaning of the phrase "local area". What they say as regards the meaning of the word "local" offers no guidance except that it is clear that the word "local" has different meanings in different contexts. 32 250 The etymological meaning of the word "local" is "relating to" or "pertaining to" a place. It may be first observed that whether or not the whole of the State can be a "local area", for the purpose of Entry 52, it is clear that to be a "local area" for this purpose must be an area within the State. On behalf of the respondents it is argued that "local area" in Entry 52 should therefore be taken to mean "any part of the State in any place therein". So, the argument runs, a single factory being a part of the State in a place in the State is a "local area". In other words, "local area" mean "any specified area inside the State". The obvious fallacy of this argument is that it draws no distinction between the word "area" standing by itself and the phrase "local area". If the Entry had been " entry of goods into any area of the State. . . some area would be specified for the purpose of the law levying the cess on entry. If the Constitutions were empowering the State Legislatures to levy a cess on entry of goods into any specified area inside the state the proper words to use would have been "entry of goods into any area. . . " it would be meaningless and indeed incorrect to use the words they did use "entry of goods into a local area". The use of the words "local area" instead of the word "area" cannot but be due to the intention of the Constitution makers to make sure that the power to make laws relating to levy on entry of goods would not extend to cases of entry of goods into any and every part of the state from outside that part but only to entry from outside into such portions of the state as satisfied the description of "local area". Something definite was sought to be expressed by the use of the word "local" before the word "area": The question is: what exactly was sought to be expressed? In finding an answer to the question it is legitimate to turn to the previous history of constitutional legislation in the country on this subject of giving power to legislature to levy tax on the entry of goods. In the State of Madras vs Gannon Dunkerley & Co., Ltd.(1) (1) ; 251 this Court referred with approval to the statement of law in Halsbury 's Laws of England, Vol. II, para. 157, p. 93, that the existing state of English law in 1867 is relevant for consideration in determining the meaning of the terms used in the British North America Act in conferring power and the extent of that power. This has necessarily to be so as in the words of Mr. Justice Brewer in South Carolina vs United States (1) "to determine the extent of the grants of power, we must, therefore place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants. " Turning now to the previous legislative history we find that in the Government of India Act, 1935, Entry 49 of the Legislative List (List II of the 7th Schedule) was in the same words as Entry 52 of the Constitution except that instead of the words "taxes" as in Entry 52 of List II of the Constitution, Entry 49 List II of the Government of India Act, used the word "cess". In Government of India Act, 1915, the powers of the provincial legislatures were defined in section 80A. 'Under clause (a) of the third sub section of this section the local legislature of any province has with the previous sanction of the Governor General power to make or take into consideration any law imposing or authorising the imposition of any new tax unless the tax was a tax scheduled as exempted from this provision by rules made under the Act. The third of the Rules that were made in this matter under Notification No. 311/8 dated December 18, 1920, provided that the legislative council of a province may without the previous sanction of the Governor General make and take into consideration any law imposing or authorising a local authority to impose for the purpose of such local authority any tax included in Schedule II of the Rules. Schedule II contained 11 items of which items 7 and 8 were in these words: 7. An octroi 8. A terminal tax on goods imported into a local (1) ; 252 area in which an octroi was levied on or before 6th July, 1917. Item 8 was slightly modified in the year 1924 by another notification as a result of which it stood thus: 8. A terminal tax on goods imported into or exported from a local area save where such tax is first imposed in a local area in which an octroi was levied on or before July 6, 1917. Octroi is an old and well known term describing a tax on the entry of goods into a town or a city or a similar area for consumption, sale or use therein. According to the Encyclopedia Britannica octroi is an indirect or consumption tax levied by a local political unit, normally the commune or municipal authority, on certain categories of goods on their entry into its area. The Encyclopedia Britannica describes the octroi tax system in France (abolished in 1949) and states that commodities were prescribed by law and were divided into six classes and for all the separate commodities within these six groups maximum rates of tariff were promulgated by presidential decree, specific rates being fixed for the three separate sorts of octroi area, established on the basis of population, namely, communes having (1) less than 10,000 inhabitants, (2) from 10,000 to 50,000 and (3) more than 50,000. While we are not concerned here with other features of the octroi tax system, it is important to note that the tax was with regard to the entry of goods into the areas of the communes which were local political units. According to the Shorter Oxford English Dictionary "commune" in France is a small territorial division governed by a maire and municipal council and is used to denote any similar division elsewhere. The characteristic feature of an octroi tax then was that it was on the entry of goods into an area administered by a local body. Bearing in mind this characteristic of octroi duty we find on an examination of items 7 and 8 of the Schedule Rules mentioned above that under the Government of India Act, 1919, the local legislature of a Province could without the previous sanction of the Governor General impose a 253 tax octroi for entry of goods into an area administered by a local body, that is, a local government authority and the area in respect of which such tax could be imposed was mentioned in item 8 as local area. It is in the background of this history that we have to examine the use of the word "local area" in item 49 of List II of the Government of India Act, 1935. Here the word "octroi" has given place to the longer phrase "cesses on the entry of goods into a local area for consumption, use or sale therein. " It was with the knowledge of the previous history of the legislation that the Constitution makers set about their task in preparing the lists in the seventh schedule. There can bring title doubt therefore that in using the words "tax on the entry of goods into a local area for consumption, use or sale therein", they wanted to express by the words "local area" primarily area in respect of which an octroi was leviable under item 7 of the schedule tax rules, 1920 that is, the area administered by a local authority such as a municipality, a district Board, a local Board or a Union Board, a Panchayat or some body constituted under the law for the governance of the local affairs of any part of the State. Whether the entire area of the State, as an area administered by the State Government, was also intended to be included in the phrase "local area", we need not consider in the present case. The only other part of the Constitution where the word "local area" appears is in article 277. That Article is in these words: "Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district, or other local area may, notwithstanding that these taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law. " 254 There can be little doubt that "local area" in this Article has been used to indicate an area in respect of which there is an authority administering it. While the scope of Article 277 is different from the scope of entry 52 so that no direct assistance can be obtained in the interpretation of the words "local area" in entry 52 from this meaning of the words in article 277 it is satisfactory to find that the meaning of "local area" in entry 52 which appears reasonable on a consideration of the legislative history of the matter is also appropriate to this phrase in its only other use in the Constitution. Reliance was sought to be placed by the respondents on a decision of the Allahabad High Court in Emperor vs Munnalal (1) where the word "local area" as used in section 29 of the U. P. Sugar Factories Control Act, 1938, fell to be considered. That section, as we have already mentioned, authorised the Governor of U. P. to impose by a notification, after consulting the Sugar Control Board under the Act, a cess on the entry of sugarcane into a local area specified in such notification for consumption, use or sale therein. The notifications which were issued under this provision set out a number of factories for the levy of a cess at the rate of three annas per maund on entry of all sugarcane into the local area comprised in the factories mentioned in the schedule for consumption, use or sale therein. Section 29 was clearly within the words of entry 49 of List 11. The question that arose before the Court was whether the specification of certain factories as local areas was valid law. The learned Judge appears to have proceeded on the basis that the Governor had notified the area comprised in 74 factories as one "local area" and held that once this was 'done the entire area covered by all these factories should be considered as one statutory local area. It appears to us that the learned Judge was not right in thinking that the area comprised in 74 factories was notified as one local area. What appears to have been done was that the area of each factory was being notified as a local area for the purpose of the Act. Proceeding on (1) I.L.R. 1942 All. 302. 255 the basis that the area comprised in the 74 factories was notified as one local area the learned Judge addressed himself to the question whether this entire area was a local area within the meaning of the Act. He appears to have accepted the contention that the word local area was used in the sense of an administrative unit, but, says he, the administration need not be political, it may be industrial and educational or it may take any other form of governmental activity. "I cannot see," the learned Judge observed, "why it is not open to the provincial government or the provincial legislature to make an industrial survey of the province and to divide up the entire province into industrial areas or factory areas or mill areas or in any other kind of areas, and each one of these areas may be notified and be treated as a local area. And once such areas come into existence and remain in operation they can be regarded as local areas within the meaning of entry No. 49 of List II in which a cess may be levied". Even if this view were correct it would be of no assistance to the respondents. It is no authority for the proposition that the area of one single factory is a local area within the meaning of entry 49. We think however that the view taken by the learned Judge is not correct. It is true that when words and phrases previously interpreted by the courts are used by the Legislature in a later enactment replacing the previous statute, there is a presumption that the Legislature intended to convey by their use the same meaning which the courts had already given to them. This presumption can however only be used as an aid to the interpretation of the later Statute and should not be considered to be conclusive. As Mr. Justice Frankfurter observed in Federal Commissioner vs Columbia B. System (1) when considering this doctrine, the persuasion that lies behind the doctrine is merely one factor in the total effort to give fair meaning to language. The presumption will be strong where the words of the previous statute have received a settled meaning by a (1) 311 U.S. 131. 256 series of decisions in the different courts of the country; and particularly strong when such interpretation has been made or affirmed by the highest court in the land. We think it reasonable to say however that the presumption will naturally be much weaker when the interpretation was given in one solitary case and was not tested in appeal. After giving careful consideration ' to the view taken by the learned Judge of the Allahabad High Court in Emperor vs Munnalal (supra) about the meaning of the words "local area" and proper weight to the rule of interpretation mentioned above, we are of opinion that the Constitution makers did not use the words "local area" in the meaning which the learned Judge attached to it. We are of opinion that the proper meaning to be attached to the words "local area" in Entry 52 of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like. The premises of a factory is therefore not a "local area". It must therefore be held that section 3 of the U. P. Sugarcane Cess Act, 1956, empowering the Governor to impose a cess on the entry of sugarcane into the premises of a factory did not fall within Entry 52 of the State List. As there is no other Entry in either State List or Concurrent List in which the impugned law could fall there is no escape from the conclusion that this law was beyond the legislative competence of the State Legislature. The law as enacted in section 3 of the U. P. Sugarcane Cess Act, 1956, must therefore be struck down as invalid. It may be mentioned that this is not a case where the law is in two parts and one part can be severed from the other and saved as valid while striking down the other portion which is invalid. Indeed, that was not even suggested by the learned counsel for the respondents. It is unnecessary for us to consider whether if section 3 had instead of authorising levy of cess for entry of sugarcane into the premises of a factory for use, consumption or sale therein had authorised the imposition of a cess on entry of cane into a local area for 257 consumption, sale or use in a factory that would have been within Entry 52. It is sufficient to say that we cannot re write the law for the purpose of saving a portion of it. Nor is it for the Court to offer any suggestion as to how the law should be drafted in order to keep it within the limits of legislative competence. As the law enacted by the Legislature stands there is no escape from the conclusion that this entire law must be struck down as invalid. In view of this conclusion on the first ground raised on behalf of the appellant it is unnecessary to consider the other ground raised in the appeal that section 3 has gone beyond the permissible limits of delegated legislation. As we have held that the impugned legislation was beyond the legislative competence of the State Legislature the appellants are entitled to the relief asked for. We accordingly allow the appeal, set aside the order passed by the High Court and order the issue of a writ directing that the respondents do forbear from levying and collecting cess from the appellants on account of arrears of cess for the crushing season 1954 55 and in respect of the crushing season 1955 56 and successive crushing seasons under the U. P. Sugarcane Cess Act, 1956. The appellants will get their costs here and below. AYYANGAR, J. I have had the privilege of perusing the judgment just now pronounced, but with the utmost respect regret my inability to agree with the order proposed. The learned Judges of the High Court held that the impugned enactment was within the scope of Entry 52 of the State Legislative List in Schedule 7 to the Constitution, by placing reliance on the following passage in the Judgment of Das, J. in Emperor vs Munna Lal (1) where the learned Judge said: "Indeed I cannot see why it is not open to Provincial Government or Provincial Legislature to make an industrial survey of the Province and to divide up the entire province into industrial areas (1) I.L.R. [1942] All. 302, 328. 33 258 or factory areas or mill areas or in any other kind of areas, and each one of these areas may be notified and be treated as a local area. And once such areas come into existence and remain in operation they can be regarded as local areas within the meaning of Entry No. 45 of List II in which a cess may be levied. " In other words, the view which they favoured was to read the expression "local area". practically to mean any "area" entry into which was by the relevant fiscal statute, made the subject of taxation. In my opinion that is not a correct interpretation of the entry and agree with my learned brethren that having regard to the historical material, which has been exhaustively set out and discussed in their judgment, the word "local area" can in the entry designate only a predetermined local unit a unit demarcated by statutes pertaining to local self government and placed under the control and administration of a local authority such as a municipality, a cantonment, a district or a local board, an union or a panchayat etc. and not any region, place or building within the State which might be defined, described or demarcated by the State 's taxing enactment as an area entry into which is made taxable. But there my agreement stops and we diverge. In my opinion, this construction of the expression "local area" in entry 52 does not automatically result in the invalidity of the impugned enactment and of the levy under it, but the extent to which, if any the charging section exceeds the power conferred by the entry would depend on matters which have not been the subject of investigation, and it is this point that I shall elaborate in the rest of this judgment. It is unnecessary for the purposes of this case and possibly even irrelevant, to determine the precise scope, content and incidents of an "octroi" duty except that in the context in which it appeared in the Scheduled Taxes Rules framed tinder the Government of India Act, 1919, the expression signified a tax levied on entry into an area of an unit of local administration. It is unprofitable to canvass the question 259 whether a local authority empowered at that date to levy an 'octroi ' might or might not lawfully confine the levy to entry for consumption alone, to use alone or for sale alone. But when that entry was refashioned and enacted as item 49 of the Provincial Legislative List under the Government of India Act, 1935 (in terms practically identical with Entry 52 in the State Legislative List under the Constitution), the matter was no longer left in doubt. The new item ran: "Cesses on the entry of goods into a local area for consumption, use or sale therein". In connection with the use of the words "for consumption, use or sale therein" in the item three matters deserve notice: (1) Where the entry into the "local area" was not for one of the purposes set out in it, viz., for consumption, use or sale therein, but the entry was, for instance in the course of transit or for warehousing during transit, the power was not available; in other words, a mere entry could not per se be made a taxable event. (2) It was sufficient if the entry was for any one of the three purposes; the use of the disjunctive 'or ' making this clear. (3) The passage of goods from one portion of a local area to another portion in the same local area, would not enable a tax to be levied, but the entry has to be "into the local area", i.e., from outside the local area. It is the second and the third of the above features that call for a more detailed examination in the context of the points requiring decision in the present case. With this background I shall analyse the terms of section 3(1) of the Act (United Provinces Act XXII of 1956) to ascertain where precisely the provision departs from the scope or content of entry 52. I will read that section which runs: "3. The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein: Provided that the State Government may likewise remit in whole or in part such cess in respect 260 of cane used or to be used in factory for any limited purpose specified in the notification. Explanation: If the State Government, in the case of any factory situate outside Uttar Pradesh, so declare, any place in Uttar Pradesh set apart for the purchase of cane intended or required for use, consumption or sale in such factory shall be deemed to be the premises of the factory. " Leaving the Explanation for the present, there are two matters which require advertence: (1) The first was the point emphasised by Mr. Sanyal for the appellant, that entry into the premises of a factory "for the purpose of consumption, use or sale therein" is fastened on as the taxable event treating the factory premises as if that were itself a "local area". (2) Apart from entry into factory premises for use, consumption or sale therein, entry of the cane into other places within the local area, i.e., into "unit for local administration" is not made the subject of tax levy. The second of the above matters cannot invalidate the legislation, because a power to tax is merely enabling, and apart from any question of discrimination under article 14 which does not arise for consideration before us the State is not bound to tax every entry of goods into "a local area". Again, the tax could undoubtedly be confined to entry of goods into a "local area" for consumption or use in particular modes; in other words, there could be no legal objection to the tax levy on the ground that it does not extend to entry of goods into "a local area" for every type of consumption or use. In my judgment the real vice of the charging section 3(1) lies not in that it Confines the levy to cases where the entry is for purposes of consumption etc. in a factory but 'in equating the premises of a factory with "a local area" entry of goods into which, occasions the tax. Another way of expressing this same idea would be to say that whereas under Entry 52 the movement of goods from within the same local. area in which the factory is situated into the premises of the factory, could not be the subject of tax liability, because there 261 would in such cases be no entry of the goods "into a local area" under section 3(1) of the Act, not merely is the movement of goods into the factory from outside the 'local area ' in which the factory is situate made the subject of tax, but the words used are capable of imposing the tax even in those cases where the entry into the factory is from within the same local area. What I have in mind may be thus illustrated: If factory A situated in Panchayat area B gets its supply of cane from outside the Panchayat area, the levy of the tax on the entry of the cane into the Panchayat area would clearly be covered by entry 52. The State is not bound to tax every entry of the cane into the area but might confine the levy to the entry of the cane for the purpose of consumption in a factory. The tax might be levied and collected at the border of the Panchayat area but there is no legal obligation to do so, and the place at which the entry of the goods is checked and the duty realised is a matter of administrative machinery which does not touch on the validity of the tax imposition. It would thus not detract from the validity of the tax if by reason of convenience for effecting collection, the tax was levied at the stage of entry into the premises of a factory. So long, therefore, as the cane which enters a factory for the purpose of consumption therein comes from outside that local unit of administration in which the factory is situated, in my opinion it would be covered by the words of entry 52 and well within the legislative competence of the State Government. The language of section 3, as it stands appears, however, also to extend to cases where the supply of cane to a factory is from within the same local unit of administration; in other words, where there is no entry of the cane into the local area as explained earlier. If this were the true position, the enactment cannot be invalidated as a whole. It would be valid to the extent to which the tax is levied on cane entering a factory for the purpose of consumption etc. therein from outside the local area, within which the factory premises are situated, and only invalid where it out steps this limitation. 262 The next question is whether this is a case where the valid and invalid portions are so inextricably interwoven as to leave the Court no option but to strike down the entire enactment as invalid as beyond the legislative competence of the State, or whether the charging provision could be so read down as to leave the valid portion to operate. In my opinion, what is involved in the case before us is not any problem of severance, but only of reading down. Before taking up this question for discussion two objections to the latter course have to be considered. The first is that this aspect of the matter was not argued before us by learned Counsel for the State as a ground for sustaining the validity of the legislation. In my judgment this is not an objection that should stand in the way of the Court giving effect to a view of the law if that should appear to be the correct one. In making this observation one has necessarily to take into account the fact that legislation in nearly this form, has been in force in the State for over twenty years, and though its vires was once questioned in 1942, that challenge was repelled and the tax levy was held valid and was being collected during all this period. The sugar cane cess has been a prime source of State Revenue for this length of time and this Court should not pronounce such a legislation invalid unless it could not be sustained on any reasonable ground and to any extent. The second ground of objection which has appealed to my learned brethren but with which, I regret, I cannot concur is that it would require a rewriting of the Act to sustain it. Now if the first paragraph of sub section (1) of section 3 bad read: "The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory (from outside the local area in which the factory premises were situate) for use, consumption or sale therein:" (The words in brackets added by me) 263 the levy would be entirely within entry 52 even according to my learned brethren. The question is whether the implication of these words would be a rewriting of the provision or whether it would be merely reading the existing provision so as to confine it to the powers conferred upon the State Legislature by the relevant legislative entry. In view of the strong opinion entertained by my learned brethren, I have given the matter the utmost consideration, but I feel that the words which I have suggested are a permissible mode of construction of a statute by which wide words of an enactment which would cover an event, contingency or matter within legislative power as well as matters not within it, are read as confined to those which the law making only had authority to enact. In my judgment the opinion of the Federal Court in In re Hindu Women 's Rights to Property Act, 1937 (1), affords a useful analogy to the present case. The enactment there impugned provided for the devolution or succession to "property" in general terms which would have included both agricultural as well as nonagricultural property, whereas the Central Legislature which enacted the law had no power to deal with succession to agricultural property. The contention urged before the Court was that by the use of the expression "property", the legislature had evinced an intention to deal with property of every type and that it would be rewriting the enactment and not carrying out the legislative intent if the reference to "property" in the statute were read as "property other than agricultural property". Dealing with this contention, Sir Maurice Gwyer, delivering the opinion of the Court said: "No doubt if the Act does affect agricultural land in the Governors 'Provinces, it was beyond the competence of the Legislature to enact it: and whether or not it does so must depend upon the meaning which is to be given to the word "property" in the Act. If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers (1) 264 of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference 'to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffec tive, the Court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land. . . The Court does not seek to divide the Act into two parts, viz., the part which the Legislature was competent, and the part it was incompetent, to enact. It holds that, on the true construction of the Act and especially of the word "property" as used in it, no part of the Act was beyond the Legislature 's powers. " The Court accordingly held that the Hindu Women 's Rights to Property Act, 1937, applied to non agricultural property and so was valid. In this connection it might be interesting to refer to the decision in Blackwood vs Queen (1) which Sir Maurice Gwyer, C.J., referred to with approval. That case related to the validity of a duty imposed by the Legislature of Victoria (Australia) on the personal estates of deceased person. The learned Chief Justice observed "The Judicial Committee construed the expression "personal estate" occurring in the statute to refer only to: "such personal estate as the colonial grant of probate conferred jurisdiction on the personal representatives to administer, whatever the domicile of the testator might be, that is to say, personal estate situate within the Colony, in respect of which alone the Supreme Court of Victoria had power to grant probate: Their Lordships thought that "in imposing a duty of this nature the Victorian Legislature also was contemplating the property which was under its own hand, and did not intend to levy a tax in respect of property (1) 265 beyond its jurisdiction". And they held that "the general expressions which import the contrary ought to receive the qualification for which the appellant contends, and that the statement of personal property to be made by the executor under section 7(2) of the Act should be confined to that property which the probate enables him to administer" (1). To confine the tax to the limitations subject to which it could, under the Constitution, be levied is, in my opinion, not an improper method of construing the statute. The manner in which the word "property" was read down by the Federal Court in In re Hindu Women 's Rights to Property Act, 1937 (1) and the word "personal property" construed by the Privy Council in Blackwood vs Queen (2) make in my opinion less change in the text of the impugned provision than the addition of the words I have set out above, which after all are words implicit in the power conferred on the State Legislature. I would, therefore, hold that the charging section would be invalid and beyond the legislative competence of the State of Uttar Pradesh only in so far as it seeks to levy a tax on cane entering a factory from within the same local area in which the factory is situate and that in all other cases the tax is properly levied; and that the impugned section could and ought to be so read down. The matter not having been considered from this aspect at earlier stages, we have necessarily no material before us for adjudicating upon whether tax levied or demanded from the appellant is due and if so to what extent. We have nothing before us to indicate as to how far the cane, the entry of which into the factory of the appellant is the subject of the impugned levy, has moved into the factory from outside the local unit in which the factory is situated or originated from within the same local area. I consider that without these matters being investigated it would not be possible to adjudicate upon the validity of the tax demanded from the appellants. There is one matter to which it is necessary to (1) Per Sir Maurice Gwyer, C. J. , 23, (2) 34 266 advert which I have reserved for later consideration, viz., the validity of the Explanation to section 3(1)of the Act. It would be apparent that the Explanation was necessitated by the terms of sub section (1) of section 3 which equated "factory premises" with "local areas", or rather rendering factory premises the sole local areas entry into which occasioned the tax. So far as the purchasing centres which are dealt with in the Explanation are concerned, the cane that moves into them from outside the "local area" where these centres are would clearly be covered by Entry 52, since the purpose of the movement into the centre is on the terms of the provision for effecting a sale therein. In other words, the same tests which I have discussed earlier in relation to entry into factory premises, would apply mutates mutandis to these purchasing centres and in so far as a tax is levied on the movement of the cane from outside the local area the levy would be legal and in order. I would read down the Explanation in the same manner, as I have read down the main charging provision so as to confine the levy to entry from outside 'that "local area" local area being understood in the sense already explained. I would accordingly allow the appeal, and remand it to the High Court for investigating the material facts which I have mentioned earlier with a direction to pass judgment in accordance with the law as above explained. BY COURT. In accordance with the opinion of the majority the appeal is allowed, the order passed by the High Court is set aside and a writ be issued directing that the respondents do forbear from levying and collecting cess from the appellants on account of arrears of cess for the crushing season 1954 55 and successive crushing seasons under the Uttar Pradesh Sugarcane Cess Act, 1956. The appellants will get their costs here and below. Appeal allowed.	Entry 52 of List II of the Seventh Schedule to the Consti tution empowered State Legislatures to make a law relating to "taxes on the entry of goods into a local area for consumption, use or sale therein". The U. P. Legislature passed the U. P. Sugarcane Cess Act, 1956, which authorised the State Government to impose a cess on the entry of cane into the premises of a factory for use, consumption or sale therein. The appellant contended that the premises of a factory was not a 'local area ' within the meaning of Entry 52 and the Act was beyond the competence of the legislature. 243 Held, (per Imam, Kapur, Das Gupta and Raghubar Dayal, jj.) that the impugned Act was beyond the competence of the legislature and was invalid. The premises of a factory was not a "local area" within the meaning of Entry 52. The proper meaning to be attached to the words "local area" in Entry 52 was an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like. In re: the Central Provinces & Beray Act No. XIV of 1938, , Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] 1 S.C.R. 829, State of Madras vs Gannon Dunkerley & Co., Ltd., ; and South Carolina vs United States, , referred to. Emperor vs Munnalal, I.L.R. 1942 All. 302, disapproved. Per Ayyangar, J. The Act was invalid only in so far as it sought to levy a tax on cane entering a factory from within the same local area in which the factory was situate and was valid in other cases. It was permissible to read the Act so as to confine the tax to the limitations subject to which it could be constitutionally levied and to strike down that portion which out stepped the limitations. In re Hindu Women 's Rights to Property Act, 1937, and Blackwood vs Queen, , applied.
DICTION: Civil Appeal No. 8670 of 1983. From the JudGment and Order dated 3. 9. 1982 of the Punjab and Haryana HiGh Court in ReGular First Appeal No. 1 105 of 198 1. WITH C.A. Nos. 8634 to 86 58/83 and 8660 62/83, 8665 to 8669/83 and 8671 72/ 83 Prem Prasad Juneja and R.S. Sodhi for the Appellants. H.M. Singh for G.K. Bansal for the Respondents. 648 The Judgment of the Court was delivered by K. RAMASWAMY, J. The common questions of law arose for decision in these appeals. Hence they are disposed of together. Notification under section 4 (1) of the Land Acquisition Act 1 of 1984 was published in the Punjab State Gazette on January 27, 1978 acquiring 89 acres 4 canals and 12 marlas of land situated in Dhuri village for public purpose, namely to set up new Mandi Township. The. appellants claimed at the rate of Rs. 30.000 per Bighabut Land Acquisition Officer after classifying the lands into six blocks A to F, awarded market value ranging between Rs. 30,000 to Rs. 6,000 acre. On reference under section 18 of the Act, the District Judge, Sangrur in his judgment dated May 13, 1981 disagreed with the classification and found that all the lands are possessed of the same quality. Relying on sale deeds, exhibit p 3 dated September4,1972, p 5 dated June 14,1976, p 2 dated February 23, 1977 and p 4 dated July 15, 1977, all small extents, he calculated at an average of Rs. 1300 per Biswa and awarded to the lands belonging to Jaswant Kaur Baldev Singh and Gurdev Singh at the rate of Rs. 1,000 per Biswael finding that their lands are abutting Abadi (village) and for the rest awarded at the rate of Rs. 800 per Biswa with statutory solatium at 15% and interest of 6% per annum on enhanced compensation. Dissatisfied therewith the State filed the appeals and against disallowed claims, the claimants in one batch filed appeals and in another batch filed cross objections. The learned Single Judge relied on exhibit p3 and p 5 filed by the claimants and exhibit R 4 and R 6 filed by the State as comparable instances and calculated the average which worked out at Rs. 750 per Biswa. He found that the lands are possessed of potential value for further building purposes. Therefore, he carved out belting at a depth of 100 ft. from the main road to those lands, deducted 1/3rd towards developmental charges and awarded the market value at the rate of Rs. 750 to the land situated abutting to the main road to the depth of 100 ft. and for the balance lands at the rate of Rs.500 per Biswa. The State appeals were allowed and of the claimants and cross objection were dismissed. The Division Bench confirmed the judgment of the learned Single Judge. The claimants filed these appeals by special leave. In the first batch no witness has been examined, but in the second batch witnesses were said to have been examined in proof of these documents but their evidence was not made part of the record. Equally of the sale deeds. It is seen that the documents in the second batch p top 1 include those filed in the first batch. exhibit p 5 is dated Sept. 4, 1972, in which 20 Biswas of land was sold for Ice Factory. It was situated in the town itself. The price fetched therein was Rs. 20,000 Therefore, it worked out at the rate of Rs. 1,000 per Biswa. exhibit p10 is dated August 25, 1975, 7 Biswas of land in Dhaula village was sold for Rs. 649 75,000 which works out at rate of Rs. 1071 per Biswa. exhibit p 7 is dated June 14,. 1976,3 Bighas 16 Biswas of land situated at Dhularoad side was sold for Rs. 4,500 which works out at the rate of Rs. 1285 per Biswa. Ex.p 8 dated June 15, 1977 is for 4 Biswas of land at Dhula road sold for Rs. 4,000 which works out at Rs. 1,000 per Biswa. exhibit p 4 is dated Feb. 23, 1977,3 Biswas of land in the heart of the town Dhuri was sold for Rs. 6,000 which works out to Rs. 2,000 per Biswa. exhibit p 6 is dated may 18,1977, one Bigha7 Biswas were sold for Rs. 1,000, which works out to Rs. 370 per Biswa. This land is away from the town and also from the acquired land. exhibit p 9 is dated July 12, 1977, 15 Biswas of land were sold for Rs. 24,000 working out at the rate of Rs. 1,600 per Biswa. Based thereon it was contended that exhibit p 9 fetches the highest market value and is nearer to the date of notification and would offer comparable price. The High Court ought to have fixed market value at that rate. The High Court committed illegality in relying on two sale deeds of the claimants and two mutation entries on behalf of the state in working out the average. Therefore, fixation of the market value is illegal. The mutations are not admissible as neither sale deeds were filed not any body connected with them are examined. The question, therefore, is whether these sale transactions would reflect the prevailing market value of the land of the total extent of 90 acres. It is seen that in the first batch no one was examined to prove the documents. In the second batch though witnesses were said to have been examined, the evidence is not on record. Neither the reference court nor the High Court discussed the evidence and no finding was given. So we do not have the advantage of any findings in that behalf. The state filed 5 mutation entries which were marked. The sale entries exhibit R 6 is of October 4,1977 and exhibit R 5 of November 13, 1977. The rates of lands in Saledeeds executed between March 7, 1977 to November 13, 1977, i.e. R 2 on 7.3.77, R 3 on 8.6.77, R 4 on 31.8.77 and R 5 on 30.11.77 work out between Rs. 83 to Rs. 450 per Biswa. It is settled law that to determine the market value of the land under section 23(1) of the Act the sales of the land under requisition, if any, or the sales in the neighbourhood lands that possessed of same or similar potentialities or fertility or other advantageous features would furnish basis to determine just and fair market value on the premise of hypothetical willing vendor and willing vendee. The willing vendor who would offer the land and willing vendee who would agree to purchase the land as a prudent man in normal market conditions as on the date of the notification or near about the date of the notification is the acid test. It is also settled law that the sale and purchase of lands at a throw away price at arm 's length or depressed sales or fecal of sales brought into existence in quick succession to inflate the market value would not offer any basis to determine just market value. In order to adjudge whether sales are bonafide sales between willing vendor and 650 willing vendee and whether the consideration mentioned in deed was, in fact and really passed on under transaction '. whether the lands covered by sale deeds and relied on, possessed of same or similar potentialities or fertilities or advantageous features would be brought on record only by examining the vendor or the vendee or if neither of them is available, the attesting witness who has personal knowledge of the bargain and passing of the consideration are mandatory. Vide Periyar & Pareekanni Rubbers Ltd. vs State of Kerala wherein this court surveyed the entire case Law in that respect. Since none has been examined in the first batch the sale transactions referred to either by the state or by the claimants cannot be relied upon. In the second batch since the evidence has not been referred to by the courts below nor discussed by them nor we have the advantage to go through the same, we cannot rely on the same to further enhance the market value. Therefore, we are left with no option. but to reject those sale deeds. Moreover, except exhibit p 9 all other sale deeds are of very small extents. This court consistently has taken the view in Collecior of Lakhimpur vs Bhuban Chandra Dutta AIR 1971 SC 2015 Mirza Naushery voan Khan & Anr. vs Collector (Land Acquisition). Hyderbad ; ; Rain Rattan & Ors. vs State of U. P. Smt. Kaushalya Devi Bogra & Ors.v. Land Acquisition officer, Aurangabad & Anr. ; ; Padma. Uppal vs State of Punjab & Ors. ; , Administrator General of West Bengal vs Collector. Varanasi ; and Special Tehsildar, Land Acquisition vs A. Mangala Glowri [1991]4 SCC 218 that sale deeds of small extents being retail price do not offer comparable basis to fix compensation when large block of land is acquired. To an intending bonafide purchaser if such block of 90 acre is offered for sale, would he agree to purchase at retail price or far less value? Under no circumstance he would agree to purchase at retail prices mentioned above. In view of the settled legal position the saledeeds, sought to be relied upon, do not give us any basis to determine the market value. Every endeavour would be made to fix fair and reasonable market value. If sale transactions relate to the lands under acquisition and if found to be genuine and bonafide transaction between willing vendor and vendee then it may be considered but reasonable margin must be given in fixing whole sale price. Therefore, all the documents except p 9 are rejected. The next contention is that the sale deed exhibit p 9 by which 15 Biswas were sold for Rs. 24,000 which works out at the rate of Rs. 1,600 per Biswa and whether this hiohest price should be given to the appellants. As stated earlier we have no evidence before us as to under what circumstances this document came to be executed and what is the distance between the lands and for what purpose the land was sold and what is the 651 comparable nature of the land, fertility and potentialities of the land, etc. The contention relying on state of Madras v.A.M.Ranjan & Anr. [1976] 3SCR35 that highest value should be fixed cannot be accepted in view of the consistent late. view of this court. In Collector of lakhimppur 's case (supra), this court accepted the principle of average, but however, rejected the small extent of the lands arid enhancement based on the average at Rs. 15,000 per Bigha was reduced to Rs. 10.000 per Bicha. In Smt. Kausalya Devi 's case (supra), this court noted that large extent of land in the developed Aurangabad town was acquired for Medical College, accepted the principle of average worked out by the reference court, varying between Rs. 2.25 to Rs. 5.00 per sq. yard and this court ultimately fixed the market value at the rate of Rs. 1.50 per sq. yard. In Administrator General of West Bengal 's case (supra) this court upheld rejection of the small plots of lands and accepted two sale deeds of large extent working out the average rate at Rs. 500 per Decimal and ultimately reference court fixed the market value at the rate of Rs. 200 per Decimal. It is, therefore, clear that the court in the first instance has to determine as to which of the sale deeds are relevant, proximate in point of time and offer comparable base to determine market value. Thereafter the average price has to be worked out. It would be seen that this court has taken consistent view of working out average and further deductions have been made in fixing just and fair market value when large chunk of the land was acquired. We respectfully agree and adhere to the principle and we find no compelling reason to divert the stream or arrest the consistence. The question then is whether the reduction of the market value by the learned Single Judge is warranted on facts and under law. In his judoment the learned Judge found that the acquired lands are situated between railway line on the one side and link road going from Dhuri to Sarona on the other side. On the third side it is surrounded by the in habited area of Dhuri town. A small portion in Khasra No. 2585 was abutting the Dhola road and the rest of the acquired land is just behind the inhabited area. While acquiring these lands the Govt. have excluded the built up area. He also found that there is tendency of extension of Abadi village towards acquired lands. Therefore, he found that the lands arepossessed of "Potential value for being housed for urban purpose in the near future and, therefore, had to be valued as such" Thus we have the evidence that the lands are possessed of potential value for being used for building purposes. In fact, the acquisition itself is for construction of Mandi Township. The principle of belting is perfectly legal and unexception 652 ble as the lands abutting the main road upto a specified depth, depending on actual material on record, would fetch higher market rate than the lands situated a interior area. However, on facts of this case the belting is not warranted for the reason that as seen on three sides there exist roads and abutting the village. As per the plan as found by the High Court there exists a road cutting across the acquired lands. Therefore, there is not only access on three sides but also to interior lands. Thus in our view belting and fixation of differential rates of value is not justified. The next question is what would be the reasonable and just market value the lands were likely to fetch. In view of the fact that there is no evidence available and since the High Court found that the lands are possessed of potential value the rate of Rs. 1,000 per Biswa as awarded by civil court to the lands abutting abadi and the lands upto a depth of 100 ft is upheld. In view of the preceding finding we hold that the fixation of uniform rate of Rs. 1,000 per Biswa is legal. It is seen that this acquired land of 90 acres is undoubtedly undeveloped area and necessarily requires development by laying the roads, parks, drainage, lighting and other civic amenities. In Brig. Sahib Singh Kalha & Ors. vs Amritsar Improvement Trust & Ors. and Administrator General of West, Bengal 's case (supra) this court deducted 53% of the undeveloped lands towards developmental charges while fixing market value at decimal rate etc. towards amenities. In Special Tehsildar Land Acquisition, Vishakapatnam 's case,(supra) this court made deduction at 1/3rd. The appellant placed reliance on Bhagwathula Swamnana & Ors. vs Special Tahsildar Land Acquisition. Visakhapatnam ; where this court did not deduct any land towards developmental charges. But in that case it was found that the lands acquired are situated in fully developed area. On those circumstances this court did not deduct any land towards developmental charges. It is seen that the consistent view of this court now is that deduction of at least 1/3rd is necessary towards developmental charges. Therefore, we uphold deduction of 1/3rd towards development charges from the market value and determine the market value at Rs. 670 per Biswa. The learned judge while deducting 1/3rd fixed market value at Rs. 759 of frontage lands and Rs. 500 to interior land. Rs. 750 is obvious mistake, but the state did not take any action to have itch corrected not filed appeals. Fixation of Rs. 750 per Biswa of lands from road upto a depth of 100 ft. became final. So we cannot interfere or correct it in claimants appeal. But for the rest of the lands we award Rs. 670 per Biswa. with solatium at 15% and interest at 6% on the enhanced market value from the date of taking possession till date of payment. 653 The appeals are accordingly allowed to the above extent. In the circum stances parties are directed to bear their own costs.	Notification under section 4 for acquisition of 89 Acres 4 Kanals and 12 Marlas of land in a village in Punjab, published on January 27, 1978. Appellants claimed compensation Rs. 30,000 per Bigha i.e. Rs. 1500 per Biswa, on the ground that 15 Biswas of land situated near the acquired land had been sold on July 12,1977, for Rs. 24,000 which works out to Rs. 1600 per Biswa. Land Acquisition Collector classified the acquired land In 6 blocks and awarded Market Value ranging between Rs. 30,000 to Rs, 6000 per acre. In reference under Section 18, the District Judge disagreed with classification. The learned Judge, relying on sale deeds dated September 4,1972, June 14, 1976, February 23, 1977 and July 15, 1977, all for small extents, awarded compensation @ Rs. 800 for the rest of land, besides solatium and interest. Appeals filed in the High Court by State of Punjab and by one batch of claimants. Another batch of claimants filed cross objections. The learned Single Judge allowed appeals filed by the State and dismissed appeals and cross objections of the claimants. Market Value was determined, on working out average price on the basis of sale deeds dated September 4,1972 and June 14, 1976 filed by claimants and mutation entries dated August 31, 1977 and October 4,1977 filed by the State. Belting was carved at depth of 100 Ft. from main road and deduction of 1/3rd was made towards development charges. Consequently market value determined @ Rs. 750 per Biswa for land abutting main road and @ Rs. 500 per Biswa for the rest of land. Judgment and order of the learned Single Judge was confirmed by Division Bench. Claimants, by special leave petition filed appeals for higher compensation. This court determined market value at Rs. 1000 per Biswa and allowing the appeals to that extent, HELD It is settled law that to determine market value of the land, the sales of land under requisition if any or the sales in the neighborhood lands, 646 that possessed of same or similar features or fertility or other advantageous features would furnish basis to fix just and fair market value. (649 E) The price for which the willing vender would offer the land and willing vendee would agree to purchase it, as a prudent man in normal market conditions, as on date of notification or near about the date, is acid test to fix market value. Sales and purchases of land at throw away price at arms length or depressed sales or facade of sales made in quick succession to inflate market value do not offer any basis to determine just Market Value. (649 F) In order to adjudge, whether sales are bonafide, whether consideration mentioned in the deed was infect and really passed, whether the lands covered by sale deeds and relied on possessed of same or similar potentialities or fertilities or advantageous features would be brought out on record only by examination of the vendor or the vendee or if neither of them is available, the attesting witness, who has personal knowledge of the bargain and passing of consideration. Hence it is mandatory. (650 A) Periyar & Pareekanni Rubbers Ltd. vs State of Kerala: Sale deeds of small extents being retail price do not offer comparable basis to fix compensation, when large block is acquired. If sale transactions relate to the lands under acquisition and if found to be genuine and bonafide transactions, then it may be considered but reasonable margin must be given in fixing wholesale price. (650 E) Collector of Lakhimpur vs Bhuban Chandra Dutta AIR 1971 SC 2015; Mirza Nausherwoan Khan & Another vs Collector (Land Acquisition) Hyderabad ; ; Ram Rattan & Others vs State of Uttar Pradesh ; Smt. Kaushalya Devi Bogra & Others vs Land Acquisition Officer, Aurangabad Others ; ; Administrator General of West Bengal vs Collector Varanasi ; and Special Tehsildar Land Acquisition vs A Mangal Gowri Court in the first instance has to determine as to which of the sale deeds are relevant, proximate in point of time and offer comparable base to 647 determine market value. The after average price has to be worked out and the contention that highest value should be fixed cannot he accepted. (651 D) State of Madras vs A.M. Ranjan & Another ; ; Collector of Lakhimpur vs Bhuban Chandra Dutta AIR 1971 SC 2015; Sint. Kaushalva Devi Bogra & Others vs Land Acquisition Officer, Aurangabad & Another ; and Administrator General of West Bangal vs Collector, Varanasi ; The Principle of belting is perfectly legal and unexceptionable, as the lands abutting the main road up to a specified depth depending on factual material on record, would fetch higher market value than lands situated in interior area. (652 A) If the acquired land is undeveloped, deduction of at least 1/ 3rd, is necessary towards development charges. (652 F) Brig. Sahib Singh Kalha & Others vs Amritsar Improvement Trust & Others ; Administrator General of West Bengal vs Collector Varanasi ; ; Special Tehsildar, Land Acquisition vs A. Mangal Gowri ; and Bhagwathula Swamnanna & Others vs Special Tehsildar Land Acquisition Visakhapatnam ;
Appeal No. 236 of 1955. Appeal from the judgment and order dated August 3, 1953, of the Punjab High Court in Civil Reference No. 7/1952. M. C. Setalvad, Attorney General for India, K. N. Rajagopal Sastri and D. Gupta, for the appellant. N. C. Chatterjee and section K. Sekhri, for the respondent. July 27. The Judgment of the Court was delivered by 76 section K. DAS J. This is an appeal on a certificate of fitness granted under the provisions of sub section 2 of section 66A of the Indian Income tax Act, 1922, by the High Court of Judicature for the State of Punjab then sitting at Simla. The certificate is dated December 28, 1953, and was granted on an application made by the Commissioner of Income tax, Punjab, appellant herein The relevant facts are shortly stated below. For the assesment year 1946 47, one Pandit Thakurdas Bhargava, an advocate of Hissar and respondent before us, was assessed to income tax on a total assessable income of Rs. 58,475/ in the account year 1945 46. This sum included the amount of Rs. 32,500/stated to have been received by the respondent in July, 1945 for defending the accused persons in a case known as the Farrukbnagar case. The assessee claimed that the said amount of Rs. 32,500/ was not a part of his professional income, because the amount was given to him in trust for charity. This claim of the assessee was not accepted by the Income tax Officer, nor by the Appellate Assistant Commissioner who heard the appeal from the order of the Income tax Officer. Both these officers held that the assessee had received the amount of Rs. 32,500/ as his professional income and the trust which the assessee later created by a deed of Trust dated August 6, 1945, did not change the nature or character of the receipt as professional income of the assessee; they further held that the persons who paid the money to the assessee did not create any trust nor impose any obligation in the nature of a trust binding on the assessee, and in fact and law the trust was created by the assessee himself out of his professional income ; therefore, the amount attracted tax as soon as it was received by the assessee as his professional income, and its future destination or application was irrelevant for taxing purposes. From the order of the Appellate Assistant Commissioner a further appeal was carried to the Income tax Appellate Tribunal, Delhi Branch. We shall presently state the facts which the Tribunal found, but its conclusion drawn from the facts found was expressed in the following words:"The income in this case did not at 77 any stage arise to the assessee. Keeping in mind the express stipulation made by the assessee when he accepted the brief there was a voluntary trust created, which had to be and was subsequently reduced into writing after the money was subscribed. The payments received from the accused and other persons were received on behalf of the trust and not by the assessee in his capacity as an individual. In this view, we delete the sum of Rs. 32,500/ from the assessment. " The appellant then moved the Tribunal for stating a case to the High Court on the question of law which arose out of the order of the Tribunal. The Tribunal was of the opinion that a question of law did arise out of its order, and this question it formulated in the following terms: " Whether the sum of Rs. 32,500/ received by the assessee in the circumstances set out in the trust deed later executed by him on August 6, 1945, was his professional income taxable in his hands, or was it money received by him on behalf of a trust and not in his capacity as an individual. " It appears that in stating a case the Tribunal framed an additional question as to whether the trust was created at or before the payment of Rs. 32,500/ , but expressed the view that this additional question was implicit in the principal question formulated by it. A case was accordingly stated to the High Court under section 66 of the Indian Income tax Act, and the High Court by its judgment dated August 3, 1953, answered the question in favour of the assessee, hold ing that " the sum of Rs. 32,500/ received by the assessee was not received by him as his professional income but was received on behalf of the trust and not in his capacity as an individual ". The appellant then moved the High Court and obtained the certificate of fitness referred to earlier in this judment. We shall presently state the facts found by the Tribunal in connection with the receipt of the sum of Rs. 32,500/ by the assessee, from which the Tribunal drew its inference. But the question as framed by the Tribunal and answered by the High Court, was 78 whether in the circumstances set out in the trust deed dated August 6, 1945, the amount of Rs. 32,500/received by the assessee was professional income in his hand. It is, therefore, appropriate to refer first to the recitals in the trust deed. The respondent stated in the trust deed that he had "decreased" his legal practice for the last few years and had reserved his professional income accruing after June 1944 for payment of taxes and charity. He then said: " accordingly, I have been acting on that. In the Farrukh Dagar, district Gurgaon case, Crown vs Chuttan Lal etc., the relatives and the accused expressed a strong desire to get the case conducted by me during its trial. At last on their persistence and promise that they would provide me with Rs. 40,000/ for charitable purposes and I would create a public charitable trust thereof I agreed to conduct the case. The case is now over. The accused and their relatives have given me Rs. 32,500/ for charity and creating a trust. The said amount has been deposited in the Bank. If they pay any other amount that will also be included in that. Accor dingly, I create this trust with the following conditions and with the said amount and any other amount which may be realized afterwards or included in the trust;". (then followed the name and objects of the trust, etc.). The Tribunal accepted as correct the statements of the respondent that he was at first unwilling to accept the brief in the Farrukhnagar case; he was then persuaded to accept it at the request of some members of the Bar and some influential local people on the understanding, as the respondent put it, that the accused persons of that case would provide Rs. 40,000/ for a charitable trust which the respondent would create. Eventually, the sum of Rs. 32,500/ was paid by or on behalf of the accused persons, and as the Tribunal has put it, a charitable trust was created by the respondent by the trust deed dated August 6, 1945, the recitals whereof we have q noted above. The question before us is what is the proper legal inference from the aforesaid facts found by the Tribunal. Both the Tribunal and the High Court have drawn the inference that a charitable trust was created 79 by the persons who paid the money to the assessee, and all that the assessee did under the deed of trust dated August 6, 1945, was to reduce the terms of the trust to writing. The High Court, therefore, applied the principle laid down by the Privy Council in Raja Bejoy Singh Dudhuria vs Commissioner of Income tax, Bengal (1) and observed that by the overriding obligation imposed on the assessee by the persons who paid the money, the sum of Rs. 32,500/ never became the income of the assessee; and the amount became trust property as soon as it was paid, there being no ques tion of the application of part of his income by the assessee. On behalf of the appellant it has been contended that the inference which the Tribunal and the High Court drew is not the proper legal inference which flows from the facts found, and according to the learned Attorney General who appeared for the appellant the proper legal inference is that the amount was received by the assessee as his professional income in respect of which he later created a trust by the deed of trust dated August 6, 1945. He has submitted that there was no trust nor any legal obligation imposed on the assessee by the persons who paid the money, at the time when the money was received, which prevented the amount from becoming the professional income of the assessee. He has also contended that even the existence of a trust will make no difference, unless it can be held that the money was diverted to that trust before it could become professional income in the hands of the assessee. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/ paid to the assessee was his professional income at the time when it was paid and no trust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property. If that is the true conclusion as we hold it to be, then the principle laid down (1) 80 by the Privy Council in Bejoy Singh Dudhuria 's case (1) has no application. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and no technical words are necessary. A trust may even be created by the use of words which are primarily words of condition, but such words will constitute a trust only " where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes. " The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/ did not use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945. The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received. The clear statement in the trust deed, a statement accepted as correct by the Tribunal, is that the assessee created a trust on certain conditions etc. It is not stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that " it was agreed that the accused would provide Rs. 40,000/ for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would not be used for any private and personal purposes. " Even in this affidavit there is no suggestion that the persons who paid the money created the (1) 81 trust or imposed any obligation on the assessee. It was the assessee 's own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case. Such a voluntary desire on the part of the assessee created no trust, nor did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that " if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere". In our opinion the view taken by the Appellate Assistant Commissioner was the correct view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the correct answer to the question referred to the High Court is that the amount of Rs. 32,500/ received by the assessee was professional income taxable in his hands. Learned Counsel for the respondent has referred us to a number of decisions where the principle laid down in Bejoy Singh Dudhuria 's Case (1) was applied, and has contended that where there is an allocation of a sum out of revenue as a result of an overriding title or obligation before it becomes income in the hands of the assessee, the allocation may be the result of a decree of a court, an arbitration award or even the provisions of a will or deed. In view of the conclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to consider them. Our conclusion is that there was no overriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/ was received by him. (1) 82 Accordingly, we allow this appeal and set aside the judgment and order of the High Court. The answer to the question is in favour of the appellant, namely, that the sum of Rs. 32,500/ received by the assessee was his professional income taxable in his hands. The appellant will be entitled to his costs throughout. Appeal allowed.	The assessee, an advocate, accepted a case on condition that the clients would provide him with Rs. 40,000 for charitable purposes and that he would create a public charitable trust with the money. The clients gave the assessee Rs. 32,500 and he created a trust therewith. The assessee claimed that the said amount of Rs. 32,500 was not his professional income as the amount had been given to him in trust for charity. Held, that the said amount was the professional income of the assessee and was liable to income tax. At the time when this money was paid to the assessee no trust or obligation in the nature of trust was created. The clients who paid the money did not create any trust nor imposed any legally enforceable obligation on the assessee. The money when it was received by the assessee was his professional income though he had expressed a desire earlier to create a charitable trust out of the money when received. The assessee 's own voluntary desire to create a trust out of the fees paid to him did not create a trust or a legally enforceable obligation. Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Bengal, , referred to.
1. The appellant Kewal Krishan and his elder brother (one of the respondents) Sudarshan Kumar acquired the properties which are the subject matter of these appeals (for short “the suit properties”) under 12th August 1976 and 19th October 1976. 2. The appellant Kewal Krishan executed a power of attorney in favour of Sudarshan Kumar on 28th March 1980. Acting on the basis of the said power of attorney, two sale deeds were executed by Sudarshan Kumar on 10th April 1981. The first sale deed was executed by him by which he purported to sell a part of the suit properties to his minor sons. The sale consideration was shown as Rs.5,500/-. The other sale deed was executed by Sudarshan Kumar in favour of his wife in respect of remaining part of the suit properties. The consideration shown in the sale deed was of Rs.6,875/-. The respondents are Sudarshan Kumar, his wife and his sons. 3. Two separate suits were instituted by the appellant on 10 th May 1983. One was against Sudarshan Kumar and his two sons and the other one was against Sudarshan Kumar and his wife. Both the suits, as originally filed, were for injunction restraining the defendants from interfering with the possession of the appellant and from alienating the share of the appellant in the suit properties. In the alternative, a prayer was made for passing a decree for possession. On 23 rd November, 1985, the plaint in both the suits was amended by incorporating the relief of declaration that the power of attorney and sale deeds were null and void. A prayer was also incorporated for a money decree for the share of the appellant in the compensation awarded in respect of a tube well on the suit properties. 4. Sudarshan Kumar contested the suit along with other respondents. It is the case of Sudarshan Kumar that he was employed in Muscat and was earning a large income. It is the further case of Sudarshan Kumar that at the relevant time, the appellant was unemployed. From time to time, he remitted amounts to the appellant from his own earnings. Sudarshan Kumar had negotiated for purchasing the suit properties. According to his case, the suit properties were to be purchased only in his name. His contention is that while getting the sale deeds executed on 12 th August 1976 and 19th October 1976, the appellant got his name incorporated as a purchaser along with Sudarshan Kumar. According to the case of Sudarshan Kumar, the appellant was a benamidar. In short, the contention of Sudarshan Kumar is that he is the sole owner of the suit properties. His further contention is that by writing a letter to him on 15th April 1980, the appellant accepted his sole ownership and that is how the appellant voluntarily executed the power of attorney dated 23 rd March 1980 which was duly registered under the Indian Registration Act, 1908 under which Sudarshan Kumar was appointed as his attorney in respect of the suit properties. Therefore, the contention of Sudarshan Kumar is that the sale deeds are legal and valid. Apart from these contentions on merits, it was contended by Sudarshan Kumar that the prayers for declaration incorporated subsequently by way of amendment in relation to the two sale deeds and the power of attorney were barred by limitation. It was contended that even the prayer made for grant of his share in the compensation in respect of tube well was barred. 5. The Trial Court dismissed the suits filed by the appellant. The Trial Court held that the suit lands were intended to be purchased only by Sudarshan Kumar and that is how the original sale deeds were in possession of Sudarshan Kumar. The Trial Court accepted the contention that he was the exclusive owner and the appellant was the benamidar. The Trial Court upheld the contention of Sudarshan Kumar regarding legality and validity of the power of attorney and both the sale deeds which were the subject matter of challenge. Trial Court held that as Sudarshan Kumar was the only owner of the suit properties, the appellant was disentitled to any relief. The Trial Court also held that the prayer for grant of a share in compensation in respect of the tube well was barred by provisions of Rule 2 of Order II of the Code of Civil Procedure, 1908. 6. Being aggrieved by the judgment of the Trial Court, the appellant preferred two appeals before the District Court. The appeals were partly allowed. The District Court held that Sudarshan Kumar did not step into witness box and except for the bald statement made by the attorney of Sudarshan Kumar in his evidence, nothing was placed on record to show that the entire sale consideration for acquiring suit properties was paid by him. The District Court held that as the case of Sudarshan Kumar was that the money was transmitted from a foreign country to the appellant, it was easily possible for Sudarshan Kumar to adduce documentary evidence to show that money was transferred to the appellant as alleged in his written statement. Therefore, the District Court accepted that both the appellant and Sudarshan Kumar were the joint owners of the suit properties. The District Court also held that the sons of Sudarshan Kumar and the wife of Sudarshan Kumar had a notice that the appellant had one half share in the suit properties as there was a recital to that effect in the sale deeds executed by Sudarshan Kumar. It was further held that Sudarshan Kumar, his sons and his wife failed to adduce any evidence to show that the price was paid as mentioned in the impugned sale deeds. The District Court observed that while executing the sale deed in favour of his wife, Sudarshan Kumar described his wife as the daughter of one Mehar Chand and that she has not been described as his wife. The District Court held that the sale deeds dated 10 th April 1981 were without consideration. Therefore, the District Court decreed the suit by granting joint possession by setting aside the sale deeds dated 10th April 1981. However, the prayer for compensation in respect of the tube well was rejected. 7. The respondents filed separate second appeals before the High Court which have been allowed by the impugned Judgment and order. The High Court upheld the finding of the District Court that Sudarshan Kumar failed to adduce evidence to prove that he remitted money from foreign country to the appellant. Therefore, the High Court held that the appellant and Sudarshan Kumar were the joint owners of the suit properties. The High Court held that the power of attorney was valid. The High Court further held that the suits for declaration of invalidity of the sale deeds were barred by limitation as the said prayers were belatedly incorporated on 23rd November 1985. The High Court held that the sale consideration mentioned in the sale deeds executed on 10th April 1981 of Rs.5,500/- and Rs.6,875/- respectively was not exorbitant and, therefore, the amounts were not out of reach of the sons of Sudarshan Kumar and wife of Sudarshan Kumar. As the High Court held the appellant to be the owner of half share in the suit properties and as the power of attorney was held to be valid, by the impugned Judgment and order, it directed Sudarshan Kumar to pay the share of the appellant in the consideration shown under the sale deeds dated 10th April 1981 with 12% interest from the date of execution of the sale deeds. The said Judgment and order has been impugned in these appeals. 8. Shri Neeraj Kumar Jain, the learned Senior Counsel appearing for the appellant submitted that even the High Court accepted that there was no evidence adduced to show that the purchasers under the sale deeds dated 10th April 1981 had paid consideration to Sudarshan Kumar. He submitted that finding of the High Court that the consideration amounts were not out of reach of the purchasers is without any basis as it was not the case of the Sudarshan Kumar that his wife and minor sons had any source of income at the relevant time. 9. The learned Senior Counsel further submitted that even in the unamended plaints, there were specific assertions made that the sale deeds were null and void as the same were without consideration. He pointed out that the unamended plaints contained a specific contention that the transactions of sale were sham transactions. It was specifically pleaded that the market value of the suit properties was more than Rs.30,000/- and there was no occasion to sell the suit properties at the price shown in the sale deeds. He pointed out that it was pleaded in the unamended plaints that the minor sons of Sudarshan Kumar and his wife had no source of earning. He submitted that as the sale deeds were without consideration, the same were void. He pointed out that the suit for injunction was based on the title pleaded by the appellant as a joint owner of the suit properties and therefore, the appellant continues to be the owner of his share in the suit properties as the sale deeds are void and sham. He urged that it was not necessary to amend the plaint and to seek a specific declaration regarding the invalidity of the power of attorney and sale deeds. He pointed out that the High Court has committed a manifest error while recording a finding on bar of limitation. He invited our attention to paragraph 28 of the impugned Judgment which proceeds on the footing that the appellant had challenged the legality and validity of sale deeds dated 12 th March 1976 and 19th October 1976. He urged that the specific challenge was two sale deeds dated 10 th April 1981. He submitted that the High Court has erroneously disturbed the decree passed by the District Court. 10. The learned Senior Counsel Shri Surjeet Singh representing the respondents invited our attention to the letter dated 5 th April 1980 (Exhibit D3) addressed by the appellant to Sudarshan Kumar. He pointed out that in the said letter, the appellant accepted that the suit lands were purchased out of the amounts remitted by Sudarshan Kumar and in fact, the appellant agreed to transfer the suit properties in the name of Sudarshan Kumar. He would, therefore, submit that the appellant has no right, title and interest in the suit properties. He submitted that in the suits filed in May 1983, the appellant did not pray for any declaration regarding the sale deeds and the power of attorney. He pointed out that only in November 1985, the plaint was amended to incorporate the prayers for declaration as regards the power of attorney dated 28th March 1980 and the sale deeds dated 10 th April 1981. He would, therefore, submit that the prayers for declaration were barred by limitation. The learned Senior Counsel submitted that without getting a declaration regarding the invalidity or nullity of sale deeds, the appellant cannot get any relief. He submitted that the appellant did not discharge initial burden on him by stepping in to witness box. He would, therefore, submit that no interference is called for with the impugned Judgment and order. 11. After the judgment in these appeals was reserved on 11 th November 2021, the respondents have filed written submissions on 16th November 2021 contending that the issue whether the purchasers under the sale deeds were the bona fide purchasers was redundant. He urged that the contention that the constituted attorney of Sudarshan Kumar was not a competent witness was not raised by the 12. We have given our careful consideration to the submissions. The case made out by the respondents in their written statement was that Sudarshan Kumar, who was employed abroad, remitted large amounts to the appellant, his younger brother, who was unemployed at that time. The case of the respondents was that Sudarshan Kumar paid the entire consideration for acquiring the suit properties under the sale deeds of 1976. The contention of the respondents is that instead of purchasing suit properties only in the name of Sudarshan Kumar, the appellant incorporated his name in the sale deeds along with Sudarshan Kumar. It is an admitted position that the said Sudarshan Kumar did not step into the witness box. Moreover, there is a finding recorded by the District Court that no evidence was adduced by Sudarshan Kumar to prove that certain amounts were transmitted by him from a foreign country to the appellant. This finding has not been disturbed by the High Court. The modified decree passed by the High Court by the impugned Judgment and order proceeds on the basis of the finding that the appellant and Sudarshan Kumar were the joint owners of the suit properties as Sudarshan Kumar failed to establish his claim that he was the sole owner of the suit properties. The respondents have not chosen to challenge the impugned Judgment and order and therefore, the finding that the appellant and Sudarshan Kumar were the joint owners of the suit properties has become final. Hence, reliance placed by the respondents on the letter at Exhibit D3 will not help them. 13. A copy of the unamended plaint in one of the two suits is placed on record along with the counter affidavit. In paragraph 3 of the unamended plaint, there is a specific pleading that both the sale deeds of 10th April 1981 were null and void as the same were without consideration. In the plaint, it is specifically pleaded that suit properties which were worth more than Rs.30,000/- were shown to have been sold at a throwaway price. The prayer for injunction was made in the unamended plaint on the basis of the title claimed by the appellant as a joint owner of the suit properties along with Sudarshan 14. Admittedly, there is no evidence adduced on record by Sudarshan Kumar that his minor sons had any source of income at the relevant time and that they paid him consideration as mentioned in the sale deed. Similarly, no evidence was adduced to show that Sudarshan Kumar’s wife had any source of income and that she paid consideration mentioned in the sale deed. An issue was specifically framed by the Trial Court on the validity of the sale deeds. There is a specific finding recorded by the District Court that there was no evidence adduced to show that Sudarshan Kumar’s wife and minor children paid consideration as shown in the sale deeds. In fact, before the District Court, it was pleaded that Sudarshan Kumar’s wife had brought some money from her parents. The District Court in paragraph 11 of the judgment held that no evidence was adduced to prove the said contention. Therefore, there is a categorical finding recorded in the same paragraph by the District Court that Sudarshan Kumar, by taking advantage of the power of attorney, transferred the suit lands to his own minor sons and his wife without any consideration. The High Court has not disturbed the finding recorded by the District Court regarding the failure of the respondents to adduce evidence regarding the payment of consideration under the sale deeds dated 10th April 1981. The High Court in paragraph 29 merely observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was not exorbitant and was not out of reach of Sudarshan Kumar’s sons and wife. Perhaps, the High Court has ignored that it was considering a case of sale deeds of the year 1981 and that the purchasers under one of two sale deeds were minor sons of Sudarshan Kumar and it was not even pleaded that they had any source of income. The same is the case with the sale deed executed by Sudarshan Kumar in favour of his wife. Thus, undisputed factual position is that the respondents failed to adduce any evidence to prove that the minor sons had any source of income and that they had paid the consideration payable under the sale deed. They did not adduce any evidence to show that Sudarshan Kumar’s wife was earning anything and that she had actually paid the consideration as mentioned in the sale deed. 15. Section 54 of the Transfer of Property Act, 1882 (for short “the “54. “Sale” defined.—“Sale” is a transfer of promised or part-paid and part-promised. case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property. 16. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings. Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16 th November 2021 have no relevance at all. 17. As no title was transferred under the said sale deeds, the appellant continues to have undivided half share in the suit properties. That is how the District Court passed the decree holding that the appellant is entitled to joint possession of the suit properties along with Sudarshan Kumar. Therefore, for the reasons recorded above, by setting aside the impugned Judgment and order of the High Court, the decree passed by the District Court deserves to be restored. 18. Accordingly, the appeals are allowed. The impugned Judgment of the High Court is set aside and common judgment and order dated 21st May, 1988 passed by the Additional District Judge, Ropar, Punjab in Civil Appeal bearing No.31/256/23.07.1986 and Civil Appeal bearing No.34/257 /23.07.1986 is hereby restored. 19. There will be no order as to costs.	The Supreme Court observed that the payment of price is an essential part of a sale.If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law, the bench comprising Justices Ajay Rastogi and Abhay S. Oka said.The court also observed that a document which... The Supreme Court observed that the payment of price is an essential part of a sale. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law, the bench comprising Justices Ajay Rastogi and Abhay S. Oka said. The court also observed that a document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings. In this case, one Kewal Krishan executed a power of attorney in favour of Sudarshan Kumar on 28th March 1980. Acting on the basis of the said power of attorney, two sale deeds were executed by Sudarshan Kumar on 10th April 1981. The first sale deed was executed by him by which he purported to sell a part of the suit properties to his minor sons. The sale consideration was shown as Rs.5,500/-. The other sale deed was executed by Sudarshan Kumar in favour of his wife in respect of remaining part of the suit properties. The consideration shown in the sale deed was of Rs.6,875/-. Kewal Krishan filed two separate suits. One was against Sudarshan Kumar and his two sons and the other one was against Sudarshan Kumar and his wife. Both the suits, as originally filed, were for injunction restraining the defendants from interfering with his possession and from alienating his share in the suit properties. In the alternative, a prayer was made for passing a decree for possession. The Trial Court dismissed the suits filed by Kewal Krishan. In appeal, the District Court partly decreed the suits. The High Court held that the suits for declaration of invalidity of the sale deeds were barred by limitation as the said prayers were belatedly incorporated on 23rd November 1985. In appeal, it was contended that there was no evidence adduced to show that the purchasers under the sale deeds dated 10th April 1981 had paid consideration to Sudarshan Kumar, and that the minor sons of Sudarshan Kumar and his wife had no source of earning Referring to Section 54 of the Transfer of Property Act, 1882, the bench observed: Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property. The court noted that no evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration, the court added. On the issue of limitation, the bench said: "It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings. Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all." Case name: Kewal Krishan vs Rajesh Kumar Coram: Justices Ajay Rastogi and Abhay S. Oka Counsel: Sr. Adv Neeraj Kumar Jain for appellant, Sr. Adv Surjeet Singh for respondent
1. On 07.03.2000 at about 1:00 p.m. Vikas Kumar Singh, aged about 22 years was going from his house towards Bhandar for performing physical exercise. It is the case of the prosecution that based on the recorded at Sadar Hospital, Garhwa at 2:00 p.m., when Vikas Kumar Singh reached in front of the house of Ramadhar Ram, all of a sudden six person who were sitting on the road surrounded him; namely Pappu Tiwari (appellant in Crl. A. No.1492/2021), Sanjay Ram, Uday Pal, Ajay Pal, Pintu Tiwari and Law Tiwari (appellant in Crl. A. No.1202- 1203/2014). Pappu Tiwari fired from his pistol at Vikas Kumar Singh as a result of which he got injured and fell down by the side of the road. The other accused are alleged to have been carrying knives and they pounced upon him and inflicted knife blows on his entire body. Hearing the commotion, Pankaj Kumar Singh rushed in the direction. Seeing the said informant and other villagers coming, the accused persons fled towards the path made over the Ahar. They are stated to have also threatened persons present against giving any evidence in the matter. Later on, as per the informant, he claims to have derived knowledge that they fled in a Maruti Van bearing registration No.DL-2C-5177, which belonged to Pintu Tiwari. On the basis of the fardbeyan, FIR Garhwa P.S. Case No.33 of 2000 was registered under Sections 302 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and Section 27 of the Arms Act, 1959 (hereinafter referred to as the ‘Arms Act’) against the six named accused persons. 2. Assistance Sub-Inspector (for short ‘A.S.I’) Rajnikant Jha prepared an inquest report but failed to identify the fire arm injury. The post-mortem was conducted by Dr. Mahesh Prasad Singh, Medical Officer, Sub-Divisional Hospital, Garhwa and the cause of death was opined due to shock and haemorrhage caused by vital and multiple injuries. Injuries one and two were identified as firm arm injuries. The Maruti van was subsequently recovered on 09.03.2000. All the accused were arrested albeit, Law @ Upendra Tiwari was arrested on 16.03.2000. On investigation being completed, the chargesheet was submitted on 02.06.2000 against all the six persons under Sections 302 and 34 of the IPC and Section 27 of the Arms Act and cognizance of the offence was taken on the same date. The case was committed to the court of Sessions Judge on 26.07.2000 where all six accused persons were charged under Section 302 read with Section 34 of the IPC and Pappu Tiwari was additionally charged under Section 27 of the Arms Act. 3. In the course of Sessions Trial No.159/2001, the prosecution examined 22 witnesses and the defence examined two witnesses. In terms of the judgment dated 27.05.2002, all the accused persons were convicted as charged and in terms of order dated 28.05.2002, they were sentenced to undergo imprisonment for life. Pappu Tiwari was additionally sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. 4. The challenge to the judgment of the trial court was laid by two separate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal Appeal No.242/2002 while the remaining four convicts filed Criminal Appeal No.398/2002. The High Court of Jharkhand vide a common judgment dated 07.05.2012 affirmed the judgment of conviction of the trial court against all the six convicts. However, in pursuance of an inquiry conducted by the learned Chief Judicial Magistrate on the aspect of juvenility, the High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years, no further order of detention could be passed in view of the provisions of Sections 15 & 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Insofar as Sanjay Ram and Uday Pal are concerned, both of them accepted the High Court judgment. That left three appellants, who took up the matter further to this Court. 5. Pappu Tiwari filed a Special Leave Petition (for short ‘SLP’) with an application seeking exemption from surrendering. That application was dismissed by this Court on 09.11.2012 granting four weeks time to Pappu Tiwari to surrender. On a prayer being made, a further extension of four weeks was granted to Pappu Tiwari on 18.02.2013 to surrender failing which the SLP would be dismissed without reference to the Court. Pappu Tiwari did not surrender and, thus, the SLP came to be dismissed in terms of the order dated 18.02.2013. 6. Law @ Upendra Tiwari and Ajay Pal chose to jointly prefer an SLP along with an application for condonation of delay. The appeals came up for consideration on 19.11.2013 before this Court when the appeal qua Ajay Pal (petitioner No.2) was dismissed while issuing notice qua the appeal filed by Law Tiwari. On 07.05.2014, leave was granted qua the said appeal which came to be registered as Criminal Appeal 7. Pappu Tiwari was finally apprehended on 25.06.2015. Thereafter, he filed an application seeking restoration of his SLP and condonation of delay in filing the restoration application but after issuing notice, the same was dismissed on 07.03.2017 on the ground of failure to explain the delay of 862 days appropriately. Pappu Tiwari filed a review petition along with an application seeking bail on 22.01.2021. The review petition was considered and allowed on 27.01.2021. The appeals were thereafter directed to be listed. 8. In the mean time, Law Tiwari was released on 28.09.2016 after having served out his sentence and, thus, on 01.09.2021 it was inquired whether he was still interested in prosecuting the appeal to which the answer was in the affirmative as Law Tiwari wanted to argue the aspect of his conviction. 9. As far as Pappu Tiwari is concerned, his bail application was dismissed on 04.10.2021 but with a direction for the appeal itself to be taken up for hearing. Leave was also granted in the said SLP on 10. The aforesaid is the background on which these two appeals were listed before us for hearing. Crl.A. Nos.1202-1203/2014 (Appeal by Law @ Upendra Tiwari): 11. Insofar as Law Tiwari is concerned, a query was posed to the learned counsel that on the appeal being jointly preferred by him (Law Tiwari) and Ajay Pal and appeal of Ajay Pal having been dismissed, the evidence being common, the role being common, i.e., five people collectively inflicting knife injuries on the deceased after he was shot, what could be the defence, which would be available to Law Tiwari. 12. Learned counsel fairly stated that his appeal is within a limited scope and this Court also admitted the appeal on his plea of alibi. 13. Learned counsel drew our attention to the judgment of the trial court as according to him there was hardly any discussion in the appellate court judgment on the particular aspect. The trial court referred to the depositions of the two defence witnesses, Rajendra Yadav (DW-1) and Samsuddin Ansari (DW-2). DW-1 deposed in his examination-in-chief that on 24.01.2000 he had x-rayed the right knee of Law @ Upendra Tiwari. He proved the cash memo (Ex. A) and stated that he had x-rayed the knee on the advise of Dr. M.P. Singh. DW-2 stated that he knew Law @ Upendra Tiwari and on 24.01.2000, he had come to Garhwa from Silliya Donger by bus. He saw Law Tiwari after falling from motorcycle who was reeling in pain. He saw another man holding him. A rickshaw was called and Law Tiwari was put on rickshaw and brought to Garhwa Hospital to Dr. M.P. Singh, who advised an x-ray. The x-ray was done in Janta Clinic and the doctor had opined that his leg had broken near the knee. The man who is stated to have helped Law Tiwari was identified as Kanchan Yadav. After handing over Law Tiwari to him, DW-2 went 14. Two witnesses were also examined as court witnesses on the prayer of the defence – Almuddin Khan (CW-1), who proved the certificate of Dr. M.P. Singh (Ex. A) and receipt of medicine (Ex. A/1) as well as Akshay Kumar Mahto (CW-2) who stated that he knew Law Tiwari, that Law Tiwari had come to Garhwa for marketing, and had gone to see the ailing son of his cousin, Mohan Prasad Mahto in hospital. He claimed to be a witness to the treatment and that Law @ Upendra Tiwari was on bed with his leg plastered though he did not talk to him. In view of the said testimony, the argument which was advanced before the trial court as recorded as also before us was that since on the date of the occurrence his leg was fractured, it was not possible for Law Tiwari to have taken part in the crime and he was falsely implicated in the case. The trial court noted that neither the x-ray plate nor the advise of Dr. M.P. Singh had been produced in court. The doctor had also not been produced by the defence. No papers of admission or treatment at the Garhwa Hospital have been produced in support of the case of admission or treatment of his fractured leg in hospital and the certificate did not support such a case. 15. On the other hand, the case of the prosecution was and is that inter alia as per the fardbeyan, a formal FIR was registered in PS case No.6/2000 under Section 364, 365 and 120B of the IPC. The date of occurrence was 26.01.2000 and the allegation was of kidnapping for purposes of murder in that case. Law Tiwari was named as an accused in that case too. The occurrence was of 26.01.2000 and the defence is that the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwari was convicted under Section 365 of the IPC vide judgment dated 28.02.2000. We may, however, note that as per learned counsel for the appellant in the appeal filed against that conviction, Law Tiwari was acquitted on 16. Learned counsel for the State also submitted that there are three eye witnesses, Pankaj Kumar Singh (PW-6), Subodh Kumar Singh (PW- 13) and Chandraman Singh (PW-18) and their testimonies have broadly been consistent, which assign the role to Law Tiwari. The endeavour to apprehend him on 07.03.2000 was not successful as he was found absconding by the IO on six different occasions when his premises were visited. He was only subsequently arrested and taken on remand on 04.04.2000. The contention of learned counsel for the State was that neither the advise of Dr. M.P. Singh nor the x-ray having been produced, and Dr. M.P. Singh not having been produced as a defence witness or summoned, there was not a piece of paper evidencing the admission and treatment of Law Tiwari in the hospital which could be produced in support of his plea of alibi. He also drew our attention to the fardbeyan to indicate that Law Tiwari and other accused had demanded a motorcycle of the deceased to go to Meral in connection with a case, which was declined. Learned counsel for the State also submitted that the conduct of Law Tiwari even during custody was not proper as he had extended a threat to the informant and the informant had suffered fire arm injury on 13.06.2001. Consequently, case No.107/2001 was registered at the Garhwa Police Station. In the end it was contended that there was no attempt made to distinguish the appellant’s role from that of Ajay Pal and the appeal of Ajay Pal being dismissed, the only aspect which had to be examined was whether the concurrent findings of the two courts below rejecting the plea of alibi was required to be interfered with by this Court when the burden lay heavy on the appellant as when such a plea is raised the accused must discharge that burden. We may refer to the judicial view in this behalf in Vijay Pal v. State (Government of NCT of Delhi)1 wherein this Court held that: “ 27. In our considered opinion, when the trial court as well as the High Court have disbelieved the plea of alibi which is a concurrent finding of fact, there is no warrant to dislodge the same. The evidence that has been adduced by the accused to prove the plea of alibi is sketchy and in fact foes not stand to reason. It is not a case where the accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the accused is not of such quality that the Court would entertain a reasonable doubt. The burden on the accused is rather heavy and he is required to establish the plea of alibi with certitude.” In Jitender Kumar v. State of Haryana2 this Court stated that: “71. …. The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives.” 17. We have given our thought to the limited scope of appeal of Law Tiwari and we do not find any merit whatsoever in the same. It has been rightly pointed out by the learned counsel for the State that the burden was on Law Tiwari to establish the plea of alibi (Vijay Pal3 and Jitender Kumar4), which he failed to discharge. It was not a case where opportunity was not granted to him. In fact, two witnesses were produced in defence by Law Tiwari and two court witnesses were also summoned. However, the relevant evidence was not led. 18. It has been rightly pointed out that the most material witness would have been Dr. M.P. Singh, who was not produced as a defence witness nor summoned. 19. We may note that there is some identity confusion in the judgment of the trial court as a reference has been made to one Dr. M.P. Singh (PW-1), who is not the same doctor. The advise stated to be given by Dr. M.P. Singh was also not proved nor was the x-ray plate produced. DW-2 stated that he took Law Tiwari to Garhwa Hospital but no papers of admission or treatment at the hospital were produced in support of the treatment of a fractured leg in the hospital. Thus, on all these aspects Law Tiwari failed to discharge the burden to establish the plea of alibi and, thus, the trial court and the High Court cannot be said to have fallen into any error in rejecting the plea of alibi. This was the only aspect to be examined by us. 20. We may note that there is discussion in the trial court judgment on the aspect of another case registered against Law Tiwari and his conviction in the said case. The incident was contemporaneous to his alleged fracture and, thus, the plea based on the fracture was found to be unsustainable as Law Tiwari was convicted in the said case. He has, however, filed the order of acquittal in appeal. This is the reason we have not delved on this aspect but in view of our finding aforesaid this aspect does not remain crucial. 21. The result of the aforesaid is that we find no merit in the criminal appeal of Law @ Upendra Tiwari. Crl.A. No.1492/2021 (Appeal by Pappu Tiwari): 22. Learned counsel for the appellant sought to raise multifarious pleas that the prosecution has to prove its case beyond reasonable doubt. This is not something which is really required to be stated and is the basic principle of criminal jurisprudence. Suffice to say that learned counsel sought to build on that principle by contending that if a reasonable doubt could be created in the story of the prosecution, the appellant must succeed. 23. In respect of the aforesaid, learned counsel sought to refer to the testimonies of the eye witnesses. Pankaj Kumar Singh, the informant is the brother of the deceased who was examined as PW-6. In the fardbeyan he had not taken the name of any witnesses though he referred to them as “many witnesses”. It was stated that there was contradiction in the testimonies of the eye witnesses. He further submitted that PW-13 was a chance witness and that his presence at the place was doubtful as he came to the area only ten days prior to the incident for appearing in the matriculation examination and could not have known anybody. 24. We may, however, note that on perusal of the evidence it cannot be said that there are any major discrepancies in the testimony of the eye witnesses as to throw doubt on the story of the prosecution. There are three eye witnesses. The testimony of the informant, PW-6, cannot be waived away merely because it is the testimony of a close relative. Similarly, PW-13 albeit a chance witness, explained his presence and stated that he could identify the accused, who were well-known in the area, even though in a negative sense. We may note, however, insofar as the third eye witness, PW-18, is concerned, the High Court has not relied upon his testimony on account of delay of more than two months in examination of this witness who claimed to be an eye witness and was the maternal uncle of the deceased. 25. Learned counsel vehemently sought to contend that the FIR was ante timed and that itself would throw a doubt on the story. The FIR was recorded on 07.03.2000 in the early afternoon but reached the court on the next date on 08.03.2000 even when the distance between the court and the police station was hardly a kilometre. 26. On the other hand learned counsel for the State pointed out that the incident occurred at 1300 hours on 07.03.2000, at 1343 hours the telephone call from the hospital reported that the injured had come to the hospital and the time of the recording of the fardbeyan is 1400 hours. The inquest report was prepared at 1410 hours and the FIR was registered at 1425 hours. The body was received for post-mortem at 1445 hours and simultaneously the IO reached the place of occurrence. The post-mortem commenced at 1550 hours. The IO returned home at midnight and had gone to the house of the accused several times. The FIR, thus, reached the court on 08.03.2000. These sequences of timings and dates were pointed out to show that there could be no scope of ante dating the FIR. 27. We may examine this aspect in the context of the judgment cited by learned counsel for the appellant in Sudarshan & Anr. v. State of Maharashtra5. The relevant paragraph pointed out by learned counsel for the appellant shows that Column 15 of the FIR in the said case pertained to date and time of dispatch to the Court which was left blank. The IO could not prove as to when and how the FIR was sent to the court. The necessity of doing so was emphasised in the judgment as as the primary purpose is to ensure that truthful version is recorded in the FIR and there is no manipulation or interpolation therein. That is the reason this statutory requirement is provided under Section 157 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’). There was grave suspicion qua the FIR. 28. On the touchstone of the principles laid down aforesaid it can hardly be said that the mandate of law under Section 157 Cr.P.C. has not been met. On the intimation of the incident, the fardbeyan was recorded expeditiously, inquest report prepared and the FIR was registered within 25 minutes of the same. The body was sent for post-mortem immediately and the FIR was sent to the court the next morning. We cannot say that there is any loophole which could have been utilised or that the FIR was ante timed and, thus, the objective of the requirement for sending the FIR to the Magistrate has been complied with. Thus, there is no merit in this 29. Now turning to the next plea on which a lot of emphasis was placed by learned counsel for the appellant, it was urged that there was a major discrepancy between the inquest report (Ex.3) and the post-mortem report (Ex.1). This aspect was actually sought to be linked to the plea of the FIR being ante timed. There are stated to be differences in the version which would indicate that the fardbeyan was lodged only after the post-mortem report. The factual basis for the same is stated to be that in the inquest report six injuries are mentioned with no mention of gunshot injury while the post-mortem report shows that there are 26 injuries including the gunshot injury. The pistol was not recovered from him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both the fardbeyan as well as the inquest report was not examined by the prosecution. On this aspect learned counsel relied upon the observations in Maula Bux & Ors. v. State of Rajasthan6. 30. On the other hand learned counsel for the State sought to submit that inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest (Suresh Roy v. State of Bihar7). He submitted that the inquest report is not really an evidence by itself and cannot be pitted against the evidence of the medical witness in court (Surjan & Ors. v. State of Rajasthan 8). Learned counsel drew our attention to the observations in Pedda Narayana & Ors v. State of Andhra Pradesh9 opining that the object of proceedings under Section 174 Cr.P.C. is merely to ascertain that whether the person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. The details, however, as to how the deceased was assaulted or who assaulted him would be foreign to the scope of proceedings under Section 174 of the Cr.P.C., nor are such details required to be mentioned in the inquest report (Yogesh Singh v. 31. Learned counsel next turned to the more recent judgment of this Court in Tehseen Poonawalla v. Union of India 11 opining that the purpose of holding an inquest is limited and the inquest report does not constitute substantive evidence. As compared to an inquest report, the doctor who conducts the post-mortem examination, examines the body from a medico-legal perspective. It is, thus, the post-mortem report that is expected to contain the details of injuries through a scientific examination. In that context he submitted that Maula Bux & Ors.12 case did not help the appellant as a police officer who prepared the inquest panchnama is not an expert in medical jurisprudence. 32. On examination of the aforesaid pleas, insofar as the factual context is concerned, there is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post-mortem report. However, this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report, which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances, what may be the apparent cause of his death. In the present case the death was unnatural. There were wounds. There is no doubt that it is a homicide case. The expert is the doctor who carries out the post-mortem and has been medico legal expert. The two fire arm injuries have been clearly identified with the wounds at the entry and at the exit being identified. We have already discussed the proximity of the time period between the intimation and the police proceeding with it right up to the stage when the post-mortem commenced. We do not find any substance in this plea. 33. The third aspect emphasised by learned counsel for the appellant was the alleged discrepancy between the medical evidence and ocular evidence. PW-1 found 26 injuries on carrying out the post-mortem on the deceased. Learned counsel pointed out that on being asked about the distance from which the fire arm was used, he did not express any opinion. Learned counsel also points out that the case of prosecution is that after the fire arm injury by Pappu Tiwari, the deceased fell down and the other accused persons assaulted him with knives. No explanation is forthcoming on the backside of the deceased. As per the story of the prosecution, the witness was going towards the gym at around 1:00 p.m. but the post-mortem report reveals that the stomach was empty and the rectum and the bladder full which would show that the person had not eased himself and had also not taken his breakfast. This should be a position in the morning hours and not in day time. 34. On the other hand, learned counsel for the State referred to the testimony of the eye witnesses as also of the medical officer PW-1. On the issues such as what fire arm was used, whether the injuries were caused by bullet or pellet and the distance from which the fire arm was used, it was submitted that where the weapon and ammunition is of uncertain make and quality, the normal pellet pattern based on standard weapon and ammunition cannot be applied with accuracy (Prahlad Singh & Ors. v. State of M.P.13). 35. On consideration of this plea, we find that really there is no discrepancy between the medical and ocular evidence but too much is sought to be made out by learned counsel for the appellant on the doctor not opining about the distance from which the fire arm injury was caused. Further, the eye witnesses are categorical that the other accused attacked the deceased with knives. In such a process of five persons attacking the deceased it cannot be said that the deceased would be lying in the same position and, thus, there is every possibility of injuries both at the back and front. In the nature of the incident and the testimony of the eye witnesses, a doubt must be cast on the story and not merely some aspect of the food consumption pointed out. We cannot really see any such infirmity which would cause us to reverse the concurrent findings of the courts below. 36. The remaining arguments of learned counsel for the appellant are based on plea of defective investigation, absence of independent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal. 37. The last aspect urged by learned counsel for the appellant was that the IO has referred to the antecedents of the appellant and other accused, which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act, 1872. The said provision stipulates that the previous bad character is not relevant except in reply, i.e., unless evidence has been given of a good character in which case it becomes relevant. However, what has happened in the present case is that the part of the testimony of the IO that the accused persons were dangerous was not supported by any evidence being led nor has it weighed with the courts below. PW-13 was able to identify the appellants because they used to pass through the road and are stated to have been known to be “boss of the area”. We are, thus, of the view that despite best endeavour learned counsel for the appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court. 38. In the conspectus of the discussion aforesaid, we are of the view that the story put forth by the prosecution has been established and has not been dented by the appellant accused so as to cast a doubt and entitle them to benefit of doubt. The result is that both the appeals are dismissed leaving the parties to bear their own costs.	"The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal.", the Supreme Court remarked in a judgment dismissing appeals filed by murder accused.Pappu Tiwari, Sanjay Ram, Uday Pal, Ajay Pal, Pintu Tiwari and Law Tiwari were convicted by the Trial Court under Section 302 of... "The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal.", the Supreme Court remarked in a judgment dismissing appeals filed by murder accused. Pappu Tiwari, Sanjay Ram, Uday Pal, Ajay Pal, Pintu Tiwari and Law Tiwari were convicted by the Trial Court under Section 302 of the Indian Penal Code. The High Court of Jharkhand vide a common judgment affirmed the judgment of conviction of the trial court against all the six convicts. In pursuance of an inquiry conducted by the learned Chief Judicial Magistrate on the aspect of juvenility, the High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years, no further order of detention could be passed in view of the provisions of Sections 15 & 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Sanjay Ram and Uday Pal accepted the High Court judgment. The other three convicts filed appeals. Law Tiwari, in appeal, raised the plea of alibi. The burden was on Law Tiwari to establish the plea of alibi which he failed to discharge, the court observed. Pappu Tiwari contended that if reasonable doubt could be created in the story of the prosecution, the appellant must succeed. According to him, there was contradiction in the testimonies of the eye witnesses. On perusal of the evidence it cannot be said that there are any major discrepancies in the testimony of the eye witnesses as to throw doubt on the story of the prosecution, the bench observed. Yet another contention was that the the FIR was ante-timed. "On the intimation of the incident, the fardbeyan was recorded expeditiously, inquest report prepared and the FIR was registered within 25 minutes of the same. The body was sent for post-mortem immediately and the FIR was sent to the court the next morning. We cannot say that there is any loophole which could have been utilised or that the FIR was ante timed and, thus, the objective of the requirement for sending the FIR to the Magistrate has been complied with. Thus, there is no merit in this plea", the court held. The accused contended that there was a major discrepancy between the inquest report and the post-mortem report. "There is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post-mortem report. However, this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report, which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances, what may be the apparent cause of his death. In the present case the death was unnatural. There were wounds. There is no doubt that it is a homicide case. The expert is the doctor who carries out the post-mortem and has been medico legal expert. The two fire arm injuries have been clearly identified with the wounds at the entry and at the exit being identified. We have already discussed the proximity of the time period between the intimation and the police proceeding with it right up to the stage when the post-mortem commenced. We do not find any substance in this plea.", the court observed. While dismissing his appeal, the bench observed thus: "The remaining arguments of learned counsel for the appellant are based on plea of defective investigation, absence of independent witnesses but then there is no reason why the eye witnesses story, which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to obtain acquittal."
ON: Criminal Appeal No. 392 of 1974 Appeal by Special Leave from the Judgment and order dated the 25th April, 1974 of the Andhra Pradesh High Court in Criminal Appeal No. 701 of 1972. P. Basi Reddy and G. Narasimhulu, for the appellant, A, section Mulla, T. V. section N. Chari and P. P. Rao, for the respondent. The Judgment of the Court was delivered by SARKARIA J. This appeal is directed against a judgment of the High Court of Andhra Pradesh, converting on appeal by the State the acquittal of the appellants into conviction. Appellant No. 1 (for short A 1) was an arrack contractor doing liquor business inter alia within the territorial jurisdiction of Police Station Indukurpet, District Nellore, while Appellant No. 2 (for short, A 2) was a Sub Inspector of Police in charge of this Police Station, The appellants and one other person were tried by the Firs Additional Sessions Judge Nellore on charges under ss.120 B, 366, 376, 302/34., 201, 218, 468/34, 324, Penal Code relating to the abduction, rape and murder etc. Of two sisters, named Kalarani and Chandrika Rani of Nellore. The Sessions Judge acquitted the three accused of all the charges. Against the acquittal of the appellants only the State preferred an appeal. The High Court partly allowed the appeal, set aside the acquittal on charges 7, 8, 9 and convicted A 2 and A I. under ss, 201, 201b34, Penal Code and sentenced each of them to five years rigorous imprisonment. A 2 and A 1 were further Convicted under section 218 and 218/109, Penal Code and sentenced to two years rigorous imprisonment, each. They were also convicted under 605 section 468 and 468/34, Penal Code and sentenced to two years rigorous imprisonment each. The sentences on all the counts were directed to run concurrently. Their acquittal on the remaining charges, including those of abduction, rape and murder, was upheld. The facts of the prosecution case, as they emerge from the record" arc as follows: Kalarani and Chandrika Rani deceased were two of the six daughters of PW1, a legal practitioner of Nellore. Kalarani was aged 21 and a graduate from the local Women 's College, Nellore. She used to be the President of the College Union and as such was well known. Chandrika Rani was, aged 17 and a B.A. student in that very college. on 6 6 1971 in the morning the deceased girls along with their parents and other sisters attended a marriage in the house of a family friend (P.W.2). In the afternoon they went away from the marriage house saying that they were going out to have coca cola. At about 4 p.m. they boarded a bus bound for Mypaud which is a sea shore resort at a distance of 11 miles from Nellore. At about 5.40 p.m. they were seen alighting from the bus as Mypaud and then proceeding towards Sagarvilla, a Travellers ' Bungalow situated near the seashore. They were last seen at about 6 30 p.m. On the seashore by P.Ws. 11, 12, 13 and 14. Shortly there after, P.W. 18, a rickshaw puller was attracted to the seashore by the outcry of a woman. When be proceeded in hat direction, Chandrika Rani came running to him for help. P.W. 18 saw 4 persons including A 1 and A 2 carrying away Kalarani who was groaning. On seeing P.W. 18, A 1 and A 2 turned on him. A 1 first slapped and then stabbed P.W. 18 on his right arm with a pen knife, while A 2 gave blows on his back. Out of fright, P.W. 18 took to his heels while Chandrika Rani was dragged away by the appellants. On 6 6 1971 Chamundeshwari Festival was being celebrated in Gangapatnam and neighbouring areas at about 9 p.m. It was a bright moonlight On learning that the dead body of a girl had been seen on the beach of Pallipalem which is a hamlet o Gangapatnam, many persons went there. P.W. 23, a fisherman of Pallipalem and P.W. 25. an employee of the Electricity Department were also among those persons. It was the body of a girl, aged about 21 or 22 years, of fair complexion and stout built. Blood was oozing from a reddish abrasion on the forehead. There was a gold ring with a red stone on the finger of the body. Next morning, P.W. 23 went to P.W. 26, the Sarpanch of Gangapatnam and informed the later about the corpse on the seashore. P.W. 23 and P.W. 26 then went to the village Karnam (P.W. 27) as they found the village Munsiff absent. The Kamam scribed a report to the dictation of P.W. 23. The Sarpanch signed it and sent it at about 7 30 a.m. through a bus driver (P.W. 29) to the Police Station, Indukurpet. The report was handed over in the Police Station at about 8 30 a.m. to the Head Constable (P.W. 34), as A 2. the Sub Inspector was away. The Head Constable (P.W. 34). read the report and returned it to P.W. 29 with the objection that the bearer should fetch a report drawn up on the printed form and signed by the village Munsiff. Within a few minutes 606 of the return of the report, between 8 30 and 8 45 A.M., A 2 returned to the Police Station. Just at this juncture P.W. 49, a Personal Assistant to P.W. 38, a cine actor of Madras, and A 1, arrived there in Car No. M.S.V. 1539, driven by a motor driver. The car had met an accident on the 4th June within the jurisdiction of this Police Station. The car was therefore at least theoretically in the custody of the Police. A 1 was a mutual friend of A 2 and of the owner of the car. P.W. 49 therefore, had brought A 1 to the Police Station to help the former in getting the car released. A 1 introduced P.W. 49 to A 2. A 1 then asked A 2 if he knew that the dead body of a girl was found floating on the sea shore. A 2 then asked the head Constable (PW 34) if any report regarding the dead body was received. The Head Constable replied that a report from the Sarpanch about the dead body seen on the sea shore at Pallipalem had been received but had been returned, as it was not from the village Munsiff. A 2 said some person might have drowned as it usually happened on the seashore. The Head Constable and A 1 told A 2 that the body found on the shore was said to have been wearing drawers and might be of a person of high class family. A 2 said that he himself would go and enquire about it. A 2 asked P.W.4 to take him in his car to the spot. Thereupon" A 1, A 2, P.W. 49, two constables and two others in addition to the driver, proceeded in the car. After going some distance, the two "others" got down. A 1 and A 2 had a talk with them. The car was then taken to Ramudupalem. There at about 11.30 A.M., A 1 and A 2 met the Sarpanch (P.W. 26) and asked him to follow them to Pallipalem. The car was then taken to Gangapatnam. There the Constables were dropped. They left a message for the Karnam of the village to reach Pallipalem. Thereafter, they proceeded to the sea shore of Pallipalem. The car was left at the canal before the sea. A 2, A 1, P.W. 49 and P.W. 26; then at about Noon, went to the beach where the dead body lay. P.W. 23 and P.W. 25 were guarding the deadbody. It was the body of a fair, stout girl aged about 20 years, who was wearing brassiers, blouse, striped drawers and a white petticoat. P.W. 23 handed over the ring M.O.9 to A 2 after removing the same from the body. On being directed by A 2, P.W. 23 washed ' the face of the corpse. There was a mark on the forehead from which blood was oozing out. There was a reddish abrasion on the thigh and blood marks on the drawer of the dead body. On seeing the blood marks on the drawer, A 2 said that she might be in menses. A 2 further remarked that the body appeared to be of a girl from a high class family who had been out of doors. A 2 did not hold any inquest there on the dead body. He did not prepare any record there. He directed the village vettis (menials) to bury the dead body forthwith while he himself proceeded along with his companions towards the village. In the distance they saw the Constables coming towards them. A 2 signalled them not to come near the dead body but to proceed to the Travellers ' Bungalow at Mypad, while A 2 and party went to Mahalaxamma Tample in village Pallipalem. There A 2 607 secured the signature of P.W. 25, P.W. 26, P.W. 28 and A 1 on a blank sheet of paper. A 2 and his companions then went to the car. The Karnam (P.W. 27) was there. A 2 reproached the Karnam for coming late and added that he had finished all the work for which he (Karnam) had been sent for. He further told the Karnam that he had got the body buried. The karnam asked as to why A 2 did not send the body for post mortem examination A 2 replied that the body was of a prostitute who had committed suicide and that he did not suspect any foul play and so he ordered burial The Karnam then enquired if any relation of the deceased had come. A 1 replied "yes", while A 2 pointed towards P.W. 49 and said that he was the person connected with the deceased. A 1, A 2, P.W. 26, P.W. 27 and P W. 49 then got into the car and proceeded. P.Ws. 26 and 27 were dropped near their houses. On the way P.W. 49 asked A 2 as to why he had represented him (P.W. 49) as a relation of the deceased. A 2 assured P.W. 49 that there was nothing to worry. According to the prosecution, this dead body found ashore near Pallipalem which is about 2 miles from Mypad was of Kala Rani deceased who was well known to A 2. Inspite of it in the inquest report (Ex P 11) which was not prepared on the spot but sometime later, A 2 wrote That the body was of a prostitute, named Koppolo Vijaya, daughter of Crhandravya, Baliya by caste of Ongole Town who had on 6.6.71, come to Mypad along with her prostitute friend Nirmala by Bus A.P.N. 1400 at 5.45 P.M. and thereafter both these girls committed suicide by entering sea at about 6.30 P.M. A 2 ended the report with an emphatic note: "It is conclusive that the deceased (Koppulu Vijaya) died due to drowning". Despite the presence of injuries noticed on the dead body A 2 recorded: "There are no injuries on the dead body". In order to support his version as; to the cause of death A 2, according to the prosecution falsely noted that the "stomach is bloated due to drinking of water". The prosecution case further is that A 2 fabricated some time after the burial of the deadbody, a false report (Ex. P 25) purporting to have been made to him on 7.6.1971 by one Nuthalapati Subba Rao who despite the best efforts of the investigators has remained untraced and is believed to be a fictitious person. As this report has an important bearing on the points for determination, we will reproduce it in extenso: "Statement of Nuthalapati Subbarao, son of Venkateswarlu, aged about 30 years" Vysya of Patha Guntur: Being an orphan for about 1 years, I have been doing brokerage in supplying extras in the cine field. Day before yesterday i.e. On Friday at Chirala near Lodges two girls Koppulu Vijaya d/o Sundrayya of Ongole and Paranjapi Nirmala d/o Raghavayya of Chilakaluripeta were met by me. I came to know that they live by prostitution. When I told them that I would join them in Cinema they believed me 608 and came with me. On Sunday i.e. On 6 6 1971, in the morning we came to Nellore and stayed in Venkateswara Lodge till 3.30 p.m. Their demand came for the girls. I booked two males for these two girls. Afterwards dispute arose between me and the girls in respect of my broekerage, sharing of the money got by such prostitution out of the money collected. They scolded me in an angry tone and went away crying and weeping and saying that I took them away from their places promising to join them in Cinema, cheated them and committed rowdyism without giving them money due to them. They had only wearing apparel with them. Vijaya is short, stout and fair. Nirmala is lean, tall and fair. They did not come back. I waited for a long time. 1 searched for them at the railway station, bus stand and lodges. When I was inquiring at Atmakur Bus Stand I came to know that the girls went by Mypaud bus at 4.30 p.m. I went to Mypaud and enquired. It was learnt that the two girls went towards north of Pattapulalem and entered the sea at 6 p.m. Having learnt that the body of Vijaya was washed ashore I went and saw the dead body. She had died and appears to have committed suicide. It was also learnt that the second girl also committed suicide but her dead body was not washed ashore. Other facts about them are not known. Sd/ N. Subbarao Taken down by me, read over to the person and admitted by him to be correct. On this 7th day of June 1971 at 11 30. Sd/ B. Manoharan S.I., E 3, dt. 7 6 1971. H.C. 1212 Issue F.I.R. u/s 174, Cr. P.C. and send copy to me for investigation. Sd/ B. Manoharan, S.I. E 3, Camp Mypaud dt. 7 6 1971. " The dead body of the other girl, Chandrika Rani was not washed ashore. But in the morning of 7 6 1971, P.W. 36, a fisherman saw the dead body of a girl agled 16 or 17 years floating in the sea at a distance of about 21 or 3 mils from Pallipalem, P.W. 36 saw a piercing wound on the left arm and black marks indicating throttling, on the neck of the deadbody. P.W. 36 removed a wrist watch, a ring and an ear ring from the deadbody and allowed it to drift away. These articles were later handed over by P.W. 36 to the investigating officer and were identified to be of Chandrika Rani. The disappearance of the deceased girls caused a sensation. The local newspapers took up the matter. Representations were made to the Home Minister to get the matter investigated by the C.I.D. The Superintendent of Police directed P.W. 59, a Probationer D.S.P., to investigate the matter. On 18 6 1971, at the request of P.W. 59, the Tehsildar (P.W. 40) proceeded to exhume the deadbody of Kalarani. The place was pointed out by P.W. 33. A 2 was also present there. On digging the bit only some clothes were found in it. But close to 609 it, was found a skeleton. No marks of violence were detected on the skeleton by the Medical officer, P.W. 45, who examined it at the spot. The skeleton was sent to P.W. 44, Professor of Forensic Medicine. Who opined that it was of a female aged between 18 to 25 years. Further investigation of the case was taken over by P.W. 60, the C.I.D. Inspector who, after completing it laid the charge sheet against A 1, A 2 and one other person in the court of the Magistrate. A 1 pleaded that he had been falsely implicated. He stated that he knew nothing about the deceased girls. He added that on 7 6 1971, he was in the Travellers ' Bungalow at Mypad and went away from that place in the afternoon. He admitted that he had accompanied, P.W. 49, to the Police Station on 7 6 1971 to assist the latter in getting the car release, and from the Police Station both of them (A 1 and P.W. 49) on being asked by A 2, went with the latter in the car to the spot. He further admitted that he had slab signed on a sheet of paper like others but he expressed ignorance if any inquest was held by A 2. The plea of A 2 was that he had duly made an inquiry as to the cause of the death and prepared the inquest report exhibit P l 1. He denied that there were injuries on the dead body. Pleading alibi for the 5th and 6th June 1971, he said that on these dates he was away on casual leave to attend the marriage of a cousin at Chiraja which at a distance of about 100 miles from Indukurpet. He said that he had proceeded to Chiraja in a car on the 5th morning., and after attending the marriage returned to Nellore on the 6th by 5 30 p.m. and then on the morning of the 7th June, resumed duty at Indukurpet Police Station. On receiving information about the corpse of a female washed ashore, he went to Mypad and enquired about a person named Nathalapati Subba Rao. The latter gave the information, exhibit P.25, which he (A 2) reduced into writing and then held the inquest in the presence of this Subba Rao and other Panchaitdars at the spot. He did not know if Vijaya and Nirmala mentioned in exhibit P. 25 and exhibit P. 11 were fictitious persons. He further admitted that he was unable to produce this Subba Rao in response to the memo dated 15 6 1971, issued by the D.S.P. (P.W. 59) during the stipulated time of 48 hours. The Additional Sessions Judge held that the dead bodies found floating near the sea shore were of Kala Rani and Chandrika Rani. He further found that PW 18, who claimed to be an eye witness of the occurrence, was not worthy of credit, and consequently, the charges of abduction, rape and murder had not been proved against the accused. Regarding the charge under section 201, Penal Code, the trial Judge held that the prosecution had failed to`prove that an offence had been committed in respect of the deceased. While holding that the identity of the deceased was wrongly mentioned in exhibit P. 25 and exhibit P. 11 as Vijaya and Nirmala, prostitutes he did not rule out the possibility of suicide. In the result? he acquitted the accused of all the charges. In appeal by the State, the learned Judge of the High Court, after an exhaustive survey of the evidence, upheld the acquittal of the 610 accused in respect of the charge of abduction, rap and murder, but reversed the findings of the trial Judge in regard to the charges under sections 201, 218 and 468, Penal Code against Al and A2. In order to bring home an offence under section 201, Penal Code the prosecution has to prove: (1) that an offence has been committed; (2) that the accused knew or had reason to believe the com mission of such offence (3) that with such knowledge or belief he (a) caused any evidence of the commission of that offence to disappear, or (b) gave any information respecting that offence which he then knew or believed to be false; (4) that he did so as aforesaid, with the intention of screening the offender from legal punishment (5) If the charge be of an aggravated form, as in the present case, it must be proved further that the offence in respect of which the accused did as in (3) and (4), was punish able with death, or with imprisonment for life or imprisonment extending to ten years. The High Court has found that all these ingredients of section 201, were established in the present case. Mr. Basi Reddy, learned Counsel for the appellant assails the finding of the High Court with particular reference to the first and the last ingredients enumerated above. Counsel contends that the conviction under section 201 cannot be sustained as there is no credible evidence on record to show that an offence had been committed. It is maintained that the prosecution has been unable to prove that the two girls met a homicidal death. In all probability, proceeds the argument, the deceased girls committed suicide by jumping into the sea and were drowned. For reasons that follow we are unable to accept these contetions. The concurrent finding of the courts below that the dead body washed ashore near Pallipalem was of Kala Rani deceased and that seer. floating in the sea, two miles away was of Chandrika Rani deceased, has not been disputed before us. It is also not controverted that these two girls died an unnatural death on the night between the 6th and 7th of June, 1971 sometime after 6.30 P.M. at Mypad. Only the cause of their death is in issue. In regard to such cause, there could be only three possibilities, the choice of any of which would lead to the exclusion of the other two. First, the girls committed suicide by drowning. Second, that their deaths were accidental. Third, that they were done to death by some person or persons. 611 After a careful consideration of these alternatives in the light of ' evidence on record, the learned Judges of the High Court firmly ruled out the first and the second possibilities, and concluded in favour of the third. In our opinion, the credible circumstantial evidence on record reinforced by the inferences available from the incriminating conduct o ' ' the appellants, particularly of A2 in deliberately preparing false records to suppress the identity and cause of the deaths of the deceased girls, fully justifies the conclusion reached by the learned judges. We, therefore, do not feel the necessity of embarking upon a reappraisal of the entire evidence. It would be sufficient to survey and consider the salient circumstances bearing on the alternatives posed above First, we take up the possibility of suicide. Mr. Reddy submits with reference to the statement of PW1, the father of the deceased girls. that on a previous occasion both these girls had without the permission of their parents, run away from home and were ultimately traced to the Rescue Home in Madras. that Kala Rani deceased had about 4 or 5 years before the occurrence taken an overdone of tranquilizers presumably to end her life that they did not feel happy in their parental house and once attempted to join the Ashram. This background, according to the learned Counsel, shows that the deceased had a predisposition to commit suicide. In the alternative, suggests Mr. Reddy, something might have happened at Mypad on the 6th June, 1971, which impelled them to commit suicide. Might be the girls got themselves into such a situation that they thought suicide was the only course left to them to get out of the same. We are not impressed by these arguments. It is wrong to assume that these girls were very unhappy in their parental house, or their relations with their parents were estranged. Kala Rani, particularly, was a mature graduate girl of 22 years. She used to be the leader of the College Union. On the day of occurrence, the deceased girls along with their parents and sisters had participated in the festivities of a marriage in the house of a family friend. They took their meals in the marriage house. From Nellore, these girls brought change of clothes for two or three days ' stay. Thereafter, they came happily to Mypad. They first went to the Travellers ' Bungalow and were then last seen together at about 6 30 p.m. On the sea shore. It is in evidence that the evening of the 6th June, was an occasion of Channdamma Festival. Procession of the deity accompanied by festivities was being taken out by the devotees of the neighbouring villages. These circumstances unmistakably show that the diseased girls had come to enjoy and stay at the sea side resort of Mypad for 2 or 3 days. They were not suffering from any mental depression or schizophrenia with suicidal tendencies . Another circumstance in the case of Kala Rani which is contraindicative of suicide, is that her dead body though seen within an hour or two of the occurrence on the beach, was in a semi nude condition. 612 The sari was not on her dead body, which she was wearing when last seen at about 6 3 P.M. It can be argued that the sari was washed off her body by the sea waves. But considering that her dead body was detected only within a couple of hours of the occurrence and the fact that it is customary for women living in or near the coastal towns to tie their series tightly, the possibility of the sari having been swept off by the sea waves was remote. The inference is that in all probability, she was not wearing this sari when her body was immersed in water. Ordinarily, no Indian woman would commit suicide by jumping into the sea by getting into such a near nude condition and thereby expose her body to the risk of post mortem indignity. Another important circumstance which militates against the suggestion of the death of Kala Rani from drowning is that when the body was first seen at 9 P.M., its stomach was not in a bloated condition, for was any froth seen coming out of the mouth of the corpse. the fact was vouched by PW 23, a fisherman, who was rightly found worthy of credence by the High Court. It may be added that contrary to what PW 23 has testified A 2 has in the inquest report said that the stomach was bloated with water and froth was coming out of the mouth. But as shall be presently discussed, these notes regarding the condition of the dead body, were invented by A2 to support his false report that the deceased had committed suicide and her death was from drowning. Medical jurisprudence tells us that in a case of death from drowning, the stomach is ordinarily found bloated with air and water which is instinctively swallowed by the drowning person during the struggle for life (see Taylor 's Medical Jurisprudence, 12th Edn. 374 375). The facts that the stomach was not filled with water and bloated and no froth was coming out of the mouth of the deceased, are important symptoms which to a long way to exclude the possibility of death being as a result of suicide by drowning. Then there were injuries and blood marks on the dead body. PWs 23, 25, 26 and 27, all testified with one voice that they had seen one injury, from which blood was oozing out on the forehead, another on the thigh and blood marks on the drawer (under garment) of the deceased. In examination in chief, even PW 49, who in cross examination tried to dilute his version in a possible attempt to favour A2, stated that he had seen a reddish strain (stain ?) on the forehead and blood marks on the drawer of the deceased. Out of these PWs, 23, 25 and 26 were present near the dead body when A2, accompanied by Al and P.W. 49, went there to hold the presence of an inquest. PW 23 was a fisherman of Pallipalem, PW 25 was also a resident of the same hamlet. He was an employee of the Electricity Department. PW 27 was the Karnam of Gangapatnam. PWs 23 and 25 were among those villagers who had seen the deadbody washed ashore at about 9 P.M. On 6 6 71. The High Court found that the version of these witnesses in regard to the injuries and blood marks on the deadbody was entirely reliable. No reason has been shown why we should take a different view of their evidence. 613 It is further in the evidence of PWs. 23, 25, 26 and 49 that when the blood marks on the drawer pointed out to A2, the latter ignored it saying that the girl had been out of doors and was in menstruation. Contrary to what he and the PWs. had observed at the spot, A2 wrote in the inquest report, P 11, Col. VII: "There are no injuries on the dead body". Having excluded the possibility of suicide, we may now consider,. whether the deaths of these girls were accidental. It is no body 's case that on the 6th June, 1971, any sea craft, vessel or boat met with an accident off or near about Mypad resulting in loss of human life. No suggestion of accidental death of any person, much less a women, off or. On the sea share near or far from Pallipalem was put to any of the prosecution witnesses. Nor such a plea has been put forward by the accused in their statements recorded under section 342, Cr. P.C Indeed, tie learned Counsel for the appellants has not pursued any such line of argument. We have, therefore, no hesitation in negating the possibility of accidental death. This process of elimination inevitably leads us to the conclusion that in all probability the death of these girls, at any rate of Kala Rani, was due to culpable homicide. Now we come to the last but the most telling circumstance which not only confirms this conclusion and puts it beyond doubt, but also. unerringly establishes, by inference, the other ingredients of the offence, including that the accused knew or had reason to believe that culpable homicide of Kala Rani had been committed. This circumstance is the conduct of A2, in intentionally preparing false records and its abetment by A1. From its very start the investigation conducted by A2 was dishonest and fraudulent. He intentionally indulged in suppressio veri and suggestio falsi at every step. He had been informed by the Head Constable (PW 34) at about 8 or 8 45 A.M. in the Police Station that a report from the Sarpanch had been received about the dead body of a girl bearing injuries, found washed ashore near Pallipalem. This in formation which was passed on to A 2 and on receiving which he proceeded from the Police Station for investigation, was the real I.R. It was the duty of A 2 to enter faithfully and truly the substance of this information in the Station Diary and to record further that he was proceeding for investigation on the basis thereof. Instead of doing so, he intentionally suppressed the factum and substance of this first information and the real purpose of his departure from the Police Station in the records prepared by him or by his subordinates in his immediate presence or under his supervision. Instead of retrieving the written report that had been first received at 8 A.M. in the Police Station and was, returned by the Head Constable to the Sarpanch, he fabricated the document exhibit P. 25, purporting to be the F.I.R. given to him at Mypad by one N. Subba Rao. The false story contained in this document has been substantially repeated in the inquest report, exhibit P. 25. 614 P.Ws. 23, 25, 27 and 49 discount the presence of any such person, named N. Subba Rao either at the inspection of the dead body in the sea shore by A 2 or at the 'Temple, where according to A 2, he prepared the inquest report. None of these PWs has sworn that a statement of any N. Subba Rao was recorded in their presence by A 2. No specific question was put by the defense to PW 49 in cross examination to establish that the report exhibit P 25 was scribed by A2 at Mypad at about 11.30, to the dictation of N. Subba Rao or any other person although the witness was generally questioned as to the number of persons carried in the car. P. W. 27, the Karnam, has definitely excluded the presence of any informant named Subba Rao. P.W. 27 testified that after the inquest, Al" A2, P.W. 26 and "a new person" implying PW 49, met him and thereafter all the five (including PW 27) got into the car and proceeded to the village. P.W. 27 did not vouch the presence of a sixth man in the car. Only PW 26 has stated that R2 had recorded the statements of witnesses including that of a per son named N. Subba Rao. PW 26 had reason to tell a lie on this point. PW 26 admitted that at the time of the inquest, he was an accused in a criminal case of Indukurpet Police Station. A2 was at the material time In charge of that Police Station and was presumably concerned with the investigation of that case against PW 26. PW 26 therefore appears to have deviated from truth in regard to the presence of N. Subba Rao, under the influence of the accused. In any case, the evidence of PW 26 on this point stands contradicted by the reliable testimony of PWs 23, 25, 27 and 49. In the inquest report, as also in exhibit P 25, the address of this mysterious person is recorded as "Nuthalapatti Subba Rao son of Venkateswarlu, aged about 37 years, Vysya of Patha Guntur." Despite efforts, the investigating officers, PWs 59 and 60, could not trace on the basis of this address, any person bearing the said particulars at Pata Guntur or anywhere else in the District. In response to the memo issued by the D.S.P. (PW 59) A 2 could neither produce this N. Subba Rao, nor give any indication about his existence, though A2 claimed to have known him. For these reasons, the High Court was right in holding that this Nathalapatti Subba Rao was a fictitious person of A2 's imagination. Similarly, during investigation all efforts made by PWs 59 and 60 to trace and find if Vijay and Nirmala prostitutes, represented in exhibit P 25 and exhibit P 11 as the deceased persons ever existed in flesh and blood, remained futile. In these premises, the High Court was right in concluding that Vijaya and Nirmala prostitutes were also the coinage of the brain of A2. It is necessary to say something more about exhibit P 25 because the entire story was spun around it by A 2. It did not see the light of the day till the 11th June. A 2 did not send it to the Police Station for registration before that date. It is in the evidence of P. W. 55, who at the material time was a Head Constable posted in this Police Station, that after his departure in the morning of the 7th, A 2 returned to the Police Station on the 10th evening and it was then that he handed over this document to the witness with the direction that the latter should enter that report in the relevant register, dating it as the 7th June, 1971. The Head Constable after slight hesitation 615 agreed and inserted this report in the blank space meant for the entries of the 7th June, and thereafter, as required by A2, handed over to the latter, a copy of that report. A 2 also made an entry (exhibit P 34) in the General Diary of the Police Station, dated 10.6.1971 on 11.6.1971 at 2 A.M. It reads: "Returned to P.S. after leaving it on 7.6.71 at 9.30 a.m. visited Mypadu en route to Gangapatnam at 11 00 hours at 11 30 a.m., recorded statement of N. Subba Rao, sent to Police Station for issuing First Information Report u. sec. 174 Cr. P.C. then visited Pallipalem at 12 30 p.m. investigated, held inquest over dead body of K. Vijaya. At 20 30 p.m., left village reached Mypadu at 21.30 hours, made enquiries in Cr. 48/71 and halted. On 9.6.71 visited Gangapatnam detailed duties for bandobust and visited Ravur, investigated into Cr. 47/71, visited Nellore at 12 30 hours" did bandobust for festival and halted for the night. On 9.6.71 visited Mypadu for petition enquiry and investigated into Cr. 48/71, 41,42 and 44/71 and hailed. On 10 6 71 visited Gangapatnam, supervised and did bandobust for car festival at 00. 30 hours, received First Information Reports in Cr. 49 to 51/71 at 00 45 hours, left the village with men and reached Police Station. " A mere glance at this report betrays its falsity. This shows how in his anxiety to suppress the truth he tried to reinforce and cover up one falsehood with another. In this connection, it may be noted that the D.S.P. persistently pressed A 2 to send the copies of the F.I.R. and the Inquest Report. A 2 was unable to supply any copy of the F.I.R. before the 12th of June, when the D.S.P. himself came to the Police Station and collected it. The D.S.P. (P.W. 59) testified that on the 11th June, 1971, he had questioned A 2 about the First Information Report and the inquest report. As a result he received a copy of the F.I.R. On the 12th but did not receive any copy of the inquest report. Consequently on 14.6.71, he telephoned to A2 to send the case diaries and inquest report without further delay. Despite these efforts, the D.S.P. did not receive whose records on that day. on 15.6.71, he issued a memo. to A 2 directing the latter to produce immediately the complaint of N. Subba Rao, the inquest report and the case diaries. It was only then that A2 produced the persistently requisitioned records. These inordinate delays in sending the records prepared by A2, confirm the testimony of PWs 23, 25 and 49 that no inquest on the dead body was held at the spot, nor was the inquest report or any other record prepared there and then, and that their signatures were obtained by A2 on a blank sheet of paper. Of course PW 26 stated that A2 had recorded statements of witnesses and had prepared the inquest report at the Temple. As already noticed, it is not prudent to accept this version of PW 26. He had a motive to favour A2. Moreover, his version stands inferentially falsified by the circumstances including the unusual delay in registering the report exhibit P 25 in the Police Station and in sending the copies of the records to the D.S.P. 616 Section 174, Cr.P.C peremptorily requires that the officer holding an inquest on a deadbody should do so at the spot. This mandate is conveyed by the word "there" occurring in sec. 174(1). Sub section (3) of the Section further requires the officer holding the inquest to forward the body with a view to its being examined, by the medical man appointed by the State Government in this behalf, if the state of the weather and the distance admit of its being so forwarded without risk of such purification on the road as would render such examination useless. The sub section gives a discretion to the Police officer not to send the body for post mortem examination by the medical officer only in. One case, namely, where there can be no doubt as to the cause of the death. This discretion however is to be exercised prudently and honestly. Could it be said in the circumstances of the case, that there was no doubt as to the death of Kala Rani being from drowning ? In this connection it is important to note that Kala Rani was not a total stranger to A 2. It is in evidence that A 2 used to go to Nellore for Bandobust and there he had sufficient opportunity to come across Kala Rani who was a prominent student leader. The testimony of P.W. 47 is to the effect that when on 17.7.1971, A2 came to him and requested the witness to dissuade the father of the deceased from getting the dead body exhumed, he (A2) admitted that Kala Rani deceased was well known to him The body was not in an unidentifiable condition. A 2 therefore could he under no mistake that it was the body of Kalarani deceased particularly when he inspected it after its face had been washed by PW. 23 under the orders of A 2. Despite such knowledge, he laid a false trail and prepared false record mentioning that the deadbody was of a prostitute named Vijaya. Medical jurists have warned that in the case of a deadbody found floating in water, the medical man from a mere observance of the external condition of the body should not jump to the conclusion that the death was from drowning. Only internal examination of the body can reveal symptoms which may indicate with certainty as to whether the death was from drowning or from. unlawful violence before the body was immersed in water. That is what Taylor the renowned medical jurist, has said on the point: "When a deadbody is thrown into the water. and has remained there sometimes water. fine particles of sand, mud. weeds etc. may pass through the windpipe into the large air tubes. In these circumstances, however, water rarely penetrates into the smaller bronchi and alveoli as it may by aspiration, and even the amount which passes through the glottis is small. If immersed after death the water is found only in the larger air tubes and is unaccompanied by mucous froth. Water with suspended matters can penetrate even to the distant air tubes in the very smallest quantity even when not actively inhaled by respiratory efforts during life The quality, or nature of the suspended matter may be of critical importance.***When decomposition is advanced the lungs 617 may be so putrefied as to preclude any opinion as to drowning but the demonstration of diatoms in distant parts of the body inaccessible except to circulatory blood, provides strong evidence of immersion in life if not of death from drowning." (emphasis supplied) A2 was a Police officer of standing and experience. He knew the deceased. He saw injuries on her deadbody. He must have known if he were honest that in the circumstances of the case autopsy of the deadbody by a medical officer was a must to ascertain the cause of her death. Instead of sending the deadbody for post mortem examination, he in indecent haste, purposely got it buried without holding, any inquest at the spot. He did not send for the relations of the deceased. Even a layman like the Karnam (PW 27) felt something strangely amiss in this conduct of A2. In response to the queries made by the Karnam, A2 made false excuses. He intentionally misrepresented (in concert with A1) that PW 49 was a relation of the deceased. He flouted all the salutary requirements of section conduct in distorting and suppressing material evidence and in preparing false records (exhibit P 11 and P 25) as to the identity of the deadbody, the cause of the death and the falsification of the data bearing on that cause, could not be explained on any reasonable hypothesis save that of his guilt. The circumstances established in this case unmistakably and irresistably point to the conclusion that within all human probability, accused No. 2 knew or had reasons to believe that Kala Rani had been done to death by some person or persons. All the elements of the charge under section 201 had thus been proved to the hilt against him. Before considering the case of Al, we may notice here the decision of this Court in Palvinder Kaur, vs State of Punjab(1). This decision was cited by the learned Counsel for the appellants in support of his argument that the circumstances: that the deceased died, that the appellant prepared false record regarding the cause of her death or caused post haste disposal of the dead body without any autopsy or its identification by the relations of the deceased, do not establish the cause of Kalarani 's death or the manner and the circumstances in which it came about. Counsel laid particular stress on the observation of this Court in that case that in cases depending on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions howsoever strong. The decision in Palvinder Kaur 's case (supra) is a precedent on its own facts. The observations of this Court to the effect, that "Jaspal died, that his body was found in a trunk and was discovered from a well and that the appellant took part in the disposal of the body do not establish the cause of his death or the manner and circumstances in which it came about" cannot be construed as an enunciation of a rule of law of general application. Whether the circumstantial evidence in a particular case is sufficient and safe enough to warrant a finding that an offence has been committed. is (1) 9 L925SupCI/75 618 a question which belongs to the realm of facts and not of law. So is the question whether the accused knew or had reasons to believe that such an offence has been committed. It is true that this question further depends on an assessment of the accused 's mind. Nevertheless, it is a question of fact "The state of a man 's mind", quoth Lord Bowen, "is as much a fact as the state of his digesion". In Palvinder Kaur 's case (supra) there was, in the first place, no material, direct or indirect, justifying a finding that the death of Jaspal was caused by the administration of potassium cyanide and if the defence version was believed his death would be the result of an accident. In that version was disbelieved then there was absolutely no proof of the cause of his death. In the method and the manner in which the deadbody of Jaspal was dealt with and disposed of by the accused did raise some suspicion but from these facts, the Court found it unsafe to draw a positive conclusion that he necessarily died an unnatural death. Nor could the possibility of the commission of suicide by Jaspal be totally ruled out. The position of A2 in the present case was very different. He was a Police officer and as such was expected to discharge the duties entrusted to him by law with fidelity and accuracy. He was required to ascertain the cause of the death and to investigate the circumstances and the manner in which it was brought about. His duty it was to make honest efforts to reach at the truth. But he flagrantly abused the trust reposed in him by law. He intentionally fabricated false clues, laid false trails, drew many a red herring across the net, smothered the truth, burked the inquest, falsified official records and short circuited the procedural safeguards. In short, he did everything against public justice which is penalised by s 201, Penal Code. The other circumstantial evidence apart, the series of these designed acts of omission and commission on the part of A2, were eloquent enough to indicate in no uncertain terms that A2 knew or had reasons to believe that Kalarani 's death was homicidal. It is not disputed that A1 was a friend of A 2. It was A l who had supported A 2 's idea that the latter should himself go to the spot to investigate as the deceased girl appeared to be from a high class family. Standing alone, this circumstance is not of a conclusive tendency. But in the context of his subsequent conduct it assumes significance. He wilfully conducted himself in such a manner that there could be no doubt that he was a guilty associate of A 2. When in the context of the burial of the deadbody ordered by A 2 without sending the body for post mortem, the Karnam (PW 27) asked whether any relation of the deceased had come, A 2 pointed towards PW 4 saying that he was related to the deceased. Simultaneously, A 1 said . "Yes". This concerted conduct of A 1 in fraudulently representing PW 49 to be a relation or the deceased, when he knew that PW 49 was not such a relation, clearly marks him out as an intentional abettor and a guilty partner in the commission of the offence under sec. 201, Penal Code. 619 There can be no doubt that on the basis of the facts found, the charges under sections 218, 468, Penal Code had been fully established against the appellant; A 2 being a public servant charged with the preparation of official record relating to the investigation of the cause of the death of Kalarani, framed that record in a manner which he knew to be, incorrect with intent to save or knowing to be likely that he will thereby save the true offender or offenders from legal punishment. obviously, he prepared this false and forged record with the fraudulent and dishonest intention of misleading his, superior officers and in during them to do or omit to do anything which they would not do or omit if they were not so deceived or induced. A l, as discussed already, facilitated and intentionally aided A 2, in the preparation of the false and forged record. For the foregoing reasons we uphold the convictions and sentences of the appellants, on all the counts, as recorded by the High Court, and dismiss the appeal. V.P.S. Appeal dismissed.	On a report given by the father, regarding the disappearance of his two daughters, investigation was taken up by the D.S.P. because of certain special circumstances. After completing the investigation, A 2, a sub inspector of police, A 1, his friend, and another were charged with offenses under sections 120B, 366, 376. 302/34, 201, 218, 468/34, and 324 I.P.C. for conspiracy, abduction, rape, murder, calling evidence of crime to disappear, fabricating reports, forgery and causing hurt. The trial court acquitted all the accused. On appeal by the State, the High Court convicted A.1 and A.2 for offences under sections 201, 218 and 468 I.P.C. Dismissing the appeal to this Court, ^ HELD: (1) In order to bring home an offence under section 201, I.P.C., the prosecution has to prove; (a) that an offence has been committed; (b) that the accused knew or had reason to believe that the offence has been committed; (c) that with such knowledge or belief he, (1) caused any evidence of the commission of that offence to disappear, or, (ii) gave any information`respecting that offence which he then knew or believed to be false; (d) that he did so with the intention of screening the offender from legal punishment; and (e ) if the charge be of an aggravated form, as in the present case, that the offence in respect of which the accused caused evidence to disappear was punishable with death or with imprisonment for life or with imprisonment extending to 10 years. [610A E] Whether the circumstantial evidence in a particular case is sufficient and safe enough to warrant a finding that an offence has been committed, is a question which belongs to the realm of facts and not of law. So is the question whether the accused knew or had reason to believe that such an offence has been committed. [617H 618B] F Palvinder Kaur vs State of Punjab , explained. (2) In the present case the two girls died an unnatural death. The corpse of one was found on a beach having been washed ashore and the Corpse of the other was seen floating in the sea. A fisherman who noticed the second body saw marks indicating throttling. He removed a wrist watch and ornament, from it and allowed the body to drift away. The wrist watch and ornaments were identified as belonging to the younger sister of the first victim. The 3 possibilities are, that they committed suicide by drowning, or that their deaths were accidental, or that they were done to death by some person or persons. The choice of any of these possibilities would lead to the exclusion of the other two. [610G H] 3(a) The elder sister was a graduate and a nature girl of 22 who used to be the leader of the College Union. On the day of the occurrence the deceased girls along with their parents had participated in certain festivities. They were cheerful and there was no evidence to show that they were suffering from any mental depression with suicidal tendencies. [611E H] 603 (b) The body on the sea shore was in a semi nude condition. It had on only blouse, brassiere, petticoat and drawers but no sari. From the fact that it is customary for women of the locality to tie their series, tightly the possibility of the sari having been swept off be waves was remote. This shows that she was not wearing her sari when her body was immersed in water, but no Indian woman would commit suicide by jumping into sea in such a near nude condition because. ii would expose her body to post mortem. indignity. [611 H 162 C] (c) When the body was first seen there were, an injury on the forehead from which blood was oozing, a reddish abrasion on the thigh and blood marks on the drawers. the stomach, however, was not in a bloated condition. These circumstances show that death was not due to drowning. [612 G; E F] (4) It was nobody s case that any boat met with an accident off or near the sea shore resulting in loss of human life. No suggestion of accidental death of any person or woman was put to and prosecution witness. Such a plea had not ever been put forward by the accused in their statements recorded under s, 342, Cr. P.C. Therefore, the possibility of accidental death must also be excluded. [613 B D] (5) This process of elimination of suicide and accidental death inevitably leads to the conclusion that the death of these two girls, or at any rate of the first victim, was due to culpable homicide. [613 D] (6) From the very start, the investigation conducted by A. 2 was dishonest and fraudulent. He intentionally indulged in suppessio veri and suggestio falsi. [613 E F] (a) The morning after the night when the dead body was seen on the beach, a report was handed at the Police Station but the Head Constable returned it saying that it should be drawn up in the printed form and signed by the village Munsuff. A little later, A 2, the sub inspector incharge of the police station, came there and the Head Constable told him about the report. At that time A.1 and P. W. 49, also came to the Police Station, and A.1 also referred to the finding of the dead body on the seashore. Thereafter, A.1` A 2 and P.W. 49 and others went to the seashore at about noon. A 2 did not hold any inquest on the dead body, but instead, directed the body to be buried. When the Karnam questioned A 2 why he did not send the body for post mortem examination, A 2 replied that the body was that of a prostitute though the body was in an identifiable condition and he new the victim personally. He also said that it was a case of suicide and that P.W, 49 was a relation of the victim. A.1, who heard this, also said that P.W. 49 was a relation of the victim. Thereafter, A 2 fabricated an Inquest Report in which he stated falsely that there were no injuries on the dead body and that the stomach was bloated due to drinking of water, suggesting that it was a case of death by drowning. He also fabricated a false report as if given to him by one who knew the victim and the other girl to be prostitutes. That report was handed over by A 2 at the Police Station only 5 days later and he asked the Head Constable to note the date as if given 3 days before. The Head Constable did so after some hesitation. Inspire of persistent requests by the D.S.P., A.2 sent the copies of the F.I.R. and Inquest Report prepared by him only after an inordinate delay. A 2 also made false entries in the General Diary of the Police Station to corroborate the false Inquest Report and the fictitious complaint. He even tried to dissuaded the father from getting the body, which was buried, exhumed. [605 G 607 C; 614 G 616 E] (b) It was A 2 s duty to enter faithfully and truly the substance of the information in the station diary and to record further that he was proceeding for investigation on the basis thereof when he received information from the Head Constable about the reports regarding the finding of a dead body on the seashore. Instead of retrieving the written report that had been first received at the police station and returned by the head constable, he fabricated another document purporting to be the first information. All the reliable witnesses for the prosecution have deposed that no such person as the one who gave the first information was present at the scene of occurrence. When the D.S.P. was investigating into the matter, A 2 was not able to produce or give any indication about that informant though he claimed to have known him. Efforts to trace the existence of the two prostitutes mentioned in that report were also futile leading to the inference that they were also fictitious persons. [613 F 614 F] 604 The credible circumstantial evidence on record re inforced by the inference available from the incriminating conduct of the appellants, particularly A 2, in deliberately preparing false records to suppress the identity and the cause of death of the deceased girls fully justifies the conclusion reached by the High Court. [611 B C] (c) Section 174, Cr. P.C. peremptorily requires that the officer should hold an inquest on a dead body at the spot. This mandate is conveyed by the word there occurring in section 174(1). Section 174(3) gives a discretion to the Police officer not to sent the body for post mortem examination only in one case, namely, where there can be no doubt as to the cause of the death. This discretion has to be exercised prudently and honestly. [616 A C] (d) A 2 is a police officer of standing and experience, who was expected; to discharge the duties entrusted to him by law with fidelity and accuracy. He was required to ascertain the cause of death and investigate the circumstances and the efforts in which it was brought about. His duty was to make honest efforts to reach at the truth. He knew the deceased and saw the injuries on her dead body and must have known that in the circumstances of the case autopsy of the dead body was necessary to ascertain the cause or her death. He flouted all the salutary requirements of section 174. P.C. and his conduct in distoring and suppressing material evidence and preparing false records as to the identity of the dead body the cause of death and the falsification of the data bearing on that cause, could not be explained on any reasonable hypothesis save that of his guilt. [617 B E; 618 D F] (7) As regards A 1, his concerted conduct, including that in supporting the fraudulent misrepresentation made by A 2 to the Karnam. regarding PW 49 being a relation of the deceased, shows that he was a guilty associate of A 2.
N: Criminal Appeal No. 154 of 1972. From the Judgment and Order dated 12 11 1971 of the Allahabad High Court in Criminal Revision No. 865 of 1970. Shiv Pujan Singh for the Appellant. D.P. Uniyal and M. V. Goswai for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY J. Jorma who was convicted by the learned Sessions Judge, Dehradun under Section 302 Indian Penal Code and 449 sentenced to suffer imprisonment for life, was directed by the High Court of Allahabad to be released on bail on furnishing bail to the satisfaction of the District Magistrate, Dehradun. The District Magistrate (Judicial) Dehradun ordered Jorma to execute a personal bond in a sum of Rs. 5,000/ and to furnish two sureties in a sum of Rs. 10,000/ each. Ram Lal the present appellant was one of the persons who executed a surety bond. Another, Abdul Jabbar, also executed a surety bond. By some oversight no personal bond was taken from Jorma nor was his signature taken on the reverse of the bonds executed by the two sureties as appeared to have been usually done. Jorma jumped bail and the sureties were unable to produce him when required to do so. The District Magistrate, Dehradun, therefore, forfeited the surety bonds and issued a warrant of attachment against the sureties under Section 514 of the Code of Criminal Procedure, 1898. The appellant preferred an appeal to the High Court of Allahabad against the order of forfeiture. Before the High Court it was submitted that the surety bond executed by the appellant could not be forfeite when no personal bond had been taken from the accused who had been released on bail. The High Court over ruled the submission of the appellant and confirmed the order of forfeiture. The appellant has filed this appeal on a certificate granted by the High Court under Article 134(1)(c) of the Constitution. Shri Shiv Pujan Singh, learned Counsel for the appellant submitted that the question of forfeiting the surety bond for the failure of the accused to appear would arise only if the accused himself had executed a personal bond for his appearance. He submitted that someone must be primarily bound before the surety could be bound and his bond forfeited. He invited our attention to Section 499 of the Code of Criminal Procedure, 1898, and form No. 42 of the forms in Schedule V. He relied on the decisions in Brahma Nand Misra vs Emperor, (1), and Sailash Chandra Chakraborty vs The State(2). A reference was also to Bakaru Singh vs State of U.P. (3) On the other hand the learned Counsel for the State urged that the bond to be executed by the surety was independent of the bond to be executed by the accused and there was no impediment in the way of the forfeiture of the surety bond even in the absence of a personal bond executed by the accused. He relied upon the decisions in Abdul Aziz & Anr. vs Emperor(4), and Mewa Ram & Anr. vs State (5). 450 Section 499(1) of the Code of Criminal Procedure Code 1898 was in the following terms: "Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such persons shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be". Now, this provision contemplated the execution of a bond by the accused, and by the sureties. The provision did not imply that a single bond was to be executed by the accused and the sureties, as it were, to be signed by the accused and counter signed by the sureties. Form No. 42 of Schedule V, Code of Criminal Procedure, 1898, was as follows: "XLII bond and bail bond on a preliminary Inquiry before a Magistrate. (See Sections 496 and 499) I, (name), of (place), being brought before the Magistrate of (as the case may be charged with the offence of, and required to give security for my attendance, in his Court and at the Court of Session, if required, do bind myself to attend at the Court of the said Magistrate on every day of the preliminary inquiry into the said charge, and, should the case be sent for trial by the Court of Session, to be, and appear, before the said Court when called upon to answer the charge against me; and, in case of my making default, herein, I bind myself to forfeit to Government the sum of rupees Dated this day of 19 (Signature) I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the said (name) that he shall attend at the Court of on every day of the preliminary inquiry into the offence charged against him, and, should the case be sent for trial by the Court of Session, that he shall be, and appear, before the said Court to answer the charge against him, and, in case of his 451 making default therein, I bind myself (or we bind ourselves) to forfeit to Government the sum of rupees Dated this day of 19 (Signature)" The undertaking to be given by the accused as may be seen from form No. 42 of Schedule V was to attend the Court on every day of hearing and to appear before the Court whenever called upon. The undertaking to be given by the surety was to secure the attendance of the accused on every day of hearing and his appearance before the Court whenever called upon. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon, even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced. It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds. There can be no question of an accused being released on bail without his executing a personal bond. But it does not follow therefrom that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court. The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. The Calcutta High Court in Sailash Chandra Chakraborty vs The State (supra) and single Judge of the Allahabad High Court in Brahma Nand Misra vs Emperor, (supra) proceeded on the assumption that the bond executed by the accused and the sureties was single and indivisible and if the accused did not join in the execution of the bond, the bonds executed by the sureties alone were invalid. We do not find any warrant for this assumption in Section 499 of the Criminal Procedure Code of 1898. We are afraid that there has been some confusion of thought by the importation of the ideas of 'debt ' and 'surety ' from the civil law. As pointed out in Abdul Aziz & Anr. vs Emperor(supra) under Section 499 Criminal Procedure Code, the surety did not guarantee the payment of any sum of money by the person accused 452 who was released on bail but guaranteed the attendance of that person and so the fact that the person released on bail himself did not sign the bond for his attendance did not make the bond executed by the surety an invalid one. In Mewa Ram & Anr. vs State (supra) the difference between a surety under the Code of Criminal Procedure and a surety under the Civil Law was pointed out and the view taken in Abdul Aziz & Anr. vs Emperor (supra) was reiterated. We agree with the view expressed in Abdul Aziz & Anr. vs Emperor, and Mewa Ram & Anr. vs State (supra). In Bakaru Singh vs State of U.P., (supra) the question presently under consideration did not arise. The question which was considered in that case was whether it was necessary that the personal bond of the accused should be executed on the other side of the bond executed by the surety on the same paper. It was held that it was not necessary. And, it was pointed out that the mere fact that form No. 42, Schedule V Criminal Procedure Code, printed the contents of the two bonds, one to be executed by the accused and the other by the surety together, did not mean that both the bonds should be on the same sheet of paper. To the extent that it goes the decision helps the State and not the appellant. For the reasons stated above, the appeal is dismissed. N.V.K. Appeal dismissed.	Dismissing the appeal, ^ HELD: Section 499(1) of the Cr. P.C., which contemplated the execution of a bond by the accused and by the sureties, did not imply that a single bond was to be executed by both the accused and the sureties, signed by the accused and counter signed by the sureties. An undertaking of the surety in Form 42, Schedule V to secure the attendance of the accused was quite independent of the undertaking given by the accused to appear before the court whenever called upon, even if both the undertakings of the surety and the accused happened to be executed in the same document for the sake of convenience. Each under taking being distinct can be separately enforced. [450 C, 451 B D] The fact that an accused would not be released on bail without his executing a personal bond does not mean that if a person is released by mistake without his executing a personal bond, the sureties are absolved from securing the attendance of the accused and his appearance before the court. The sureties ' responsibility arises from the exeeution of the surety bond and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused. The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. [451 E F] Abdul Aziz & Anr. vs Emperor, AIR 1946 All. 116; Mewa Ram & Anr. vs State, AIR 1953 All. 481; approved. Bakaru Singh vs State of U.P., ; ; distinguished. Brahma Nand Misra vs Emperor, AIR 1939 All. 682; Sailesh Chandra Chakraborty vs The State, AIR 1963 Cal. 309; over ruled.
Appeal No. 472 of 1962. Appeal from the judgment and decree dated December 23, 1960, of the Bombay High Court in First Appeal No. 464 of 1958. R.K. Garg, S.C. Agarwala, D.P. Singh and M.K. Ramamurthi, for the appellants. S.V. Gupte, Additional Solicitor General, V.D. Mahajan and R.N. Sachthey, for the respondent. October 23, 1963. The Judgment of the Court was delivered by WANCHOO J. This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court. The appellant was in the service of the Union of India. He was appointed on June 11, 1949 as an officiating Assistant Director Grade II in the office of the Textile, Commissioner, Bombay and was working as such till September 15, 1954. The appointment was temporary and his services were liable to be terminated on one month 's notice on either side. He was posted after the date of his appointment in the Textile Commissioner 's office at Ahmedabad and continued to work there 193 till February 1954. He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15, 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. He therefore brought a suit in the City Civil Court at Bombay, and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner 's office at Ahmedabad was against him. Because of this on December 29, 1953, the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him. The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954. While he was at Bombay he received the notice terminating his services. He claimed that he was a quasi permanent employee under the Central Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him. He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside. It was further contended that if r. 5 applied to him, it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory. The appellant therefore prayed that the order of August 13, 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service. There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give. The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r. 5 of the Rules I SCI/64 13 194 applied to him and that action was properly taken under ' that rule when terminating the appellant 's services by order dated August 13, 1954. It was also contended that r. 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated. It was admitted that the memo. dated December 29, 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary action should not be taken against him. It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive. But as the appellant 's work was not found satisfactory, he was transferred to Bombay in February 1954 to give him a chance of improvement. As his work and conduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5 of the Rules as he was a temporary employee. On these pleadings three main questions arose for decision before the trial court, namely, (i) whether the appellant was a quasi permanent employee and r. 5 of the Rules did not apply, to him (ii) whether r. 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory, and therefore hit by article 16 of the Constitution, and (iii) even if the appellant was a temporary government servant, whether he was entitled to the protection of article 311(2) of the Constitution in the circumstances of this case. The trial court held on all these points against the appellant and dismissed the stilt. The appellant then went in appeal to the High Court. The High Court agreed with the trial court and dismissed the appeal. The appellant then applied for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us. 195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him. If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of article 311(2) and as admittedly the provisions of article 311(2) were not complied with in the present case, his suit would have to be decreed and no further question would arise for decision. Rule 3 of the Rules, which falls for consideration in this connection, is as follows: "A Government servant shall be deemed to be in quasi permanent service: (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time. " The contention on behalf of the appellant is that as there is no conjunction "and" between the two sub clauses of r. 3, a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses. It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl. The appellant thus reads the word "or" between the two sub clauses. On the other hand, the respondent contends that looking at the scheme of the Rules the word "and" should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service. In this connection our attention was drawn to two cases of this Court in which this rule was mentioned. In Parshotam Lal Dhingra vs Union of India,(1) this Court, when referring to r. 3 at p. 858, used (1) [1958] S.C.R. 196 the conjunction "or" between the two sub clauses. Learned counsel for the appellant relies on this to show that we should read the word "or" between the two sub clauses. We are however of opinion that this Court was not specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration. The other case of this Court to which reference has been made is K.S. Srinivasan vs Union of India.(1) There while quoting r. 3 at p. 1307, this Court used the word "and" between the two subclauses. That is probably due to the fact that the brochure on "Central Civil Services (Temporary Services) Rules 1949" printed by the General Manager, Government of India Press, New Delhi, 1959, contains the word "and" between the two sub clauses in r. 3. That also in our opinion is not conclusive in favour of the respondent, because it is not disputed before us that in the Government gazette where the Rules were first published, neither the word "and" nor the word "or" appears between the two sub clauses of r. 3. This aspect of the matter was considered by the Bombay High Court in B.M. Pandit vs Union of India(2) where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word "and" nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the respondent before us. The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively. We may add that the Bombay High Court ' in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct. The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan (1) ; (2) A.I.R. 1962 Bom. 45. 197 who had come to India on account of the Partition. This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service. Rule 3 provided in what circumstances a government servant shall 'be deemed to be quasi permanent. Quasi permanent service is defined in r. 2(2) as meaning "temporary service commencing from the date on which a declaration issued under r. 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date. " R, de 3 therefore must be read with r. 2(b) which defines "quasi permanent service". Under r. 2(b), quasi permanent service begins from the date on which a declaration is issued under r. 3. It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r. 3, for that is the sine quo non for the commencement of quasi permanent service. Without such a declaration quasi permanent service cannot begin. If therefore the appellant 's contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service, if only the first sub clause has been fulfilled, viz., that he has been in continuous government service for more than three years, there will be complete irreconcilability between r. 2(b) and the first clause of r. 3. Therefore, reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service, namely, (i) that he has been in continuous government service for more than three years, and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect. It is however urged that the definitions in r. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r. 3 the two sub clauses must be read disjunctively. 198 We are of opinion that there is no force in this argument, and as a matter of fact the context of r. 3 itself requires that rule must be read in harmony with the definition of "quasi permanent service" in r. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r. 2(b) and the provision in r. 3. The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi permanent service. This will in our opinion also be clear from the scheme of the Rules following r. 3. Rule 4 provides that "a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect. " This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued. Rule 6 provides that "the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service. " Now under the definition of r. 2(b), quasi permanent service begins with a declaration issued under sub cl. (1)of r. 3. Therefore the protection of r. 6 can only be given to a quasi permanent employee after a declaration has been made. This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service. Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3, shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service. This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r. 3. Again r. 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave, allowances and disciplinary matters as a government servant in permanent service holding the specified post. Here again the benefit of r. 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made. Then r. 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances. This gratuity will be at the rate of half a month 's pay for each completed year of quasi permanent service, such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service. This again contemplates a declaration before the benefit of r. 9 can be claimed by a quasi permanent employee. Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post, the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension. Now under r. 2(b) quasi permanent service only commences after the declaration and therefore unless a declaration is made, the benefit of r. 10 cannot be taken by a quasi permanent employee. The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi permanent employee. Otherwise if the two sub clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl. (1) but will get none of the advantages mentioned above. We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2(b) defining "quasi permanent service" and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub cl. (ii)of r. 3. It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub cl. (ii) of r. 3 has ever been made in his case. He cannot therefore claim to be in quasi permanent service. It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service. If he could claim the benefit of r. 6, he would have been certainly entitled to the protection of article 311. As he is not entitled to the benefit of r. 6, he cannot claim the benefit of article 311 (9.2) on the ground that he must be deemed to be in quasi permanent service. The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954. The rule that applies to a temporary government servant is r. 5 which lays down that "(a) the service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. (b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant; Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the notice or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period." 201 In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month 's notice or on payment of one month 's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned. This rule is being attacked on the ground that it is hit by article 16, which provides that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". We have not been able to understand how this rule can possibly be hit by article 16, which provides for equality of opportunity. These Rules show that there are two classes of employees namely, (i) permanent employees, and(ii) temporary employees, the latter being divided into two sub clauses (a) quasi permanent, and (b) temporary. It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate. There can also be no doubt, if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees. Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees. It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service. We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in article 16. The attack therefore on r. 5 on the ground that it is hit by article 16 of the Constitution must fail. It is next urged that even if r. 5 is good, the order by which the appellant 's services were dispensed with was bad, because it was discriminatory. In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had. We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the appellant 's services were terminated because his work was found to be unsatisfactory. We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 (2) was not complied with later; but where termination of the service of a temporary 203 government servant takes place on the ground. that his conduct is not satisfactory there can in our opinion be no question of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory. We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner. We now come to the last question whether the appellant Was entitled to the protection of article 311(2) of the Constitution, even though he was a temporary government servant. It is well settled that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank: (see Parshotam Lal Dhingra vs Union of India("). But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions, the court has to apply the two tests mentioned in Parshotam Lal Dhingra 's case(1), namely (1) whether ( ) ; 204 the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is on these principles which have been laid down in Parshotam Lal Dhingra 's case() that we have to decide whether the appellant was entitled to the protection of article 311(2) in this case. Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants. It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case there is nothing further to be said and his services terminate when the post comes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and,/or conduct of a temporary servant (1) ; 205 may arise on complaint against him. In such cases two courses are open to government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned. The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted 206 on the public servant concerned. It then communicates a copy of the enquiry officer 'sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him. This procedure is required by article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank. The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh. Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry (which usually follows such a preliminaryenquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right. In short 207 a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in ParshotamLal Dhingra 's case(1) and in Shyamlal vs The Stateof Uttar Pradesh(2) that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant. In Shyamlal 's case(2) what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him; but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments, although the government desired to give him an opportunity to show cause why he should not be compul (1) (1958] 1 S.C.R. 828 (2) 208 sorily retired, and after considering his explanation he was compulsorily retired under the relevant service rule. It was held in that case that this did not amount to punishment within the meaning of article 311(2), even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired. As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 311(2). Whether such termination would amount to dismissal or removal within the meaning of article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service. Let us now turn to the facts of this case. On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India. By that memorandum he was informed about four matters and his explanation was called in that connection. The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice. The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made. Instances of these were also brought to his notice. The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken. The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director. He was required to submit his explanation by January 6, 1954 and also asked to state why disciplinary action should not be taken against him. The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him. Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him. It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him. But though this may appear to be so, what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it. It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant, though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive. In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant. This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further. It is however clear that no formal departmental enquiry as contemplated under article 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence. It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquiry followed that memorandum and the matter was dropped. That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad. The respondent 's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement. The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay. On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29, 1953; what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more, the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r. 5. We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29, 1953, but later decides not to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5, 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory. The circumstances in this case are in our opinion very similar to the facts in Shyamlal 's case("), the difference being that in that case he was compulsorily retired and in this case the appellant 's services have been terminated. In Shyamlal 's case(1) also at one stage, the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry. This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and conduct were found unsatisfactory. The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra 's case(2). We are therefore of opinion that on the facts of this case article 311(2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r. 5, for the termination of service here does not amount to infliction of the penalty of dismissal or removal. It remains now to consider certain cases on which reliance was placed on either side. Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab(3). In that case Madan Gopal was a temporary government servant. A charge sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him. He was further asked to state if he wanted to be heard in person and also to put forth any defence. It will be clear that charges were served upon Madan Gopal (1) ; (2) ; (3) [1963]1 3 S.C.R. 716. 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29, 1953 was headed as a memorandum. Further the charge sheet in Madan Gopal 's case(,) besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose. Further in Madan Gopal 's case(,) an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner. The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately. On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer. The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month 's pay in lieu of notice. Obviously in that case a departmental enquiry was held by the enquiry officer, a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report, though he did not use the word "dismiss" or "remove" in his order. In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra 's case(2) that the mere use of the word "termination" would not conclude the matter and as the facts showed as they did in Madan Gopal 's case() that the order was one of dismissal or removal and was passed as a punishment after inquiry, article 311(2) should have been complied with. The facts of that case in our opinion are very different from the facts in the present case. (1) [1963] 3 S.C.R. 716. (2) ; 213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29, 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer. Whatever might have been the intention behind the memorandum dated December 29, 1953, the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped. The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r. 5 and dispensed with his services. On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal. The next case is The State of Bihar vs Gopi Kishore Prasad(1). That was a case of a probationer and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms : "But, if instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of article 311(2) of the Constitution. " it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two (1) A.I.R. 1960 S.C. 689. 214 stand more or less on the same footing the protection of article 311(2) would be available. We are of opinion that this is reading much more in the proposition then was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 311(2) was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under article 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311. All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages. Gopi Kishore Prasad 's case(1) was considered by this Court in a later case in the State of Orissa (1)A.I.R, 215 vs Ram Narayan Das,(1) which was also a case of a probationer. In Ram Narayan Das 's case,(1) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him. This Court in Ram Narayan Das 's case(1) referred to the rules, which provided that " where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by article 31 1. Gopi Kishore Prasad 's case(1) was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad 's case(2) referred to "an enquiry into allegations of misconduct or inefficiency With a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed," which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasad 's case(2) Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under article 311(2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or (1) ; (2) A.I.R. 1960 S.C. 689. 216 removal. The same view has been taken in Jagadish Mitter vs Union of India(1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which article 311(2) applied. It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was not entitled to the protection of article 311(2) in the circumstances. The appeal therefore fails and is hereby dismissed. In the circumstances we pass no order as to costs. Appeal dismissed.	The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month 's notice on either side. He was appointed in June 1949. On August 1954 he was informed that his services would be terminated from September 1954. No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him. Before such termination the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him. Certain preliminary enquiries were held against him but he was not heard therein. No regular departmental enquiry however followed and the proceedings were dropped. Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified. He prayed in the suit for a declaration that the termination of his service was illegal. He also claimed arrears of salary. The trial Court dismissed the suit and he appealed to the High Court 191 without success. The present appeal was filed on a certificate granted by the High Court. The first contention raised by the appellant was that he was a quasi permanent employee and r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 did not apply to him. Secondly it was contended that r. 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16. It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 (2) of the Constitution. : (i) Sub cls. (1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service. The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl. (2) of r. 3. This being the position, since no declaration has been made in his case, the appellant cannot claim the benefits of r. 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service. Hence he cannot claim the protection of article 311(2) on the ground that he must be deemed to be in quasi permanent service. B.M. Pandit vs Union of India, A.I.R. 1962 Bom. 45, Purshottarn Lal Dhingra vs Union of India, ; and K.S. Srinivasan vs Union of India, ; , distinguished. (ii) R. 5 which provides for termination of the services of a temporary Government servant by giving him one month 's notice is not hit by article 16. The classification of Government servants into permanent, quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory. (iii) Where termination of service of a temporary Government servant takes place as it has taken place in the present ease, on the ground that his conduct is not satisfactory there cannot be any question of any discrimination. The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected. (iv) Temporary Government servants are also entitled to the protection of article 311(2) in the same manner as a permanent Government servants, if the Government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank. purshottam Lal Dhingra vs Union of India, ; Held, that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 311(2). Such a preliminary enquiry may even be held ex parte. It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311. Shyamlal vs State of U.P. ; and Purshottam Lal Dhingra vs Union of India, ; , explained. Held, that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him. Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action, it cannot be said that the Government can never thereafter proceed to take action under the terms of r. 5 even though it is satisfied otherwise that the appellant 's conduct and work are unsatisfactory. Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 S.C. 689. State of Orissa vs Ram Narayan Das, ; and, Jagdish Mitter vs Union of India, A.I.R. distinguished.
Civil Appeal No. 481 of 1973. From the Judgment and order dated the 9th February 1973 of the Mysore High Court at Bangalore in W.P. No. 1922 of 1970. H. B. Datar and K. N. Bhat, for the appellant. section section Javali and B. P. Singh, for the respondents Nos. 1, 3 13 The Judgment of the Court was delivered by GOSWAMI, J. This appeal by special leave is directed against the judgment of the Mysore High Court (now High Court of Karnataka) of February 9" 1973, rejecting the appellant 's writ petition under article 226 of the Constitution by which the orders of the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal had been challenged. 189 Briefly the facts are as follows : The appellant was granted a stage carriage permit under section 48 of the (briefly the Act) for the route Devenagere to Shimoga via Honnali by the Regional Transport Authority, Shimoga, by its order dated May 3/4, 1963. Some of the respondents preferred appeals against the said order to the State Transport Appellate Tribunal and obtained stay of the order The appeals were, however, dismissed on September 27, 1963. Again, some of the respondents preferred further appeals to the Mysore Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal. This time also the appeals met with the same fate and were dismissed on February 27, 1967. It appears, however, that c no order of stay was granted by the Mysore Revenue Appellate Tribunal. On April 25, 1967, the Secretary to the Regional Transport Authority, Shimoga, called upon the appellant to produce the relevant documents and the certificate of registration for making necessary entry in the permit. The appellant produced the same on April 26, 1967, and the permit was issued on the same day. Against the order of the issue of the permit, respondents 4 to 13 preferred appeals to the State Transport Appellate Tribunal on the ground that the Secretary to the Regional Transport Authority, Shimoga, had no jurisdiction to issue a permit under rule 119 of the Mysore Motor Vehicles Rules, 1963 (briefly the Rules) after a lapse of such a long time from the date of the grant of the permit. It was contended that the issue of the permit was made beyond the prescribed period of limitation under rule 119. It may be mentioned that at the time of the grant of the permit the Mysore Motor Vehicles Rules, 1945 (old Rules) were in force and rule 151 of the old Rules was replaced by rule 119 with effect from July 1, 1963. It was contended by the appellant before the appellate authorities that there was no period of limitation under rule 151 of the old Rules, which was applicable to his case, for the issue of a permit. The appeals of the respondents were allowed by the State Transport Appellate Tribunal by majority on January 29, 1969. The District Judge Member, however, dissented. An appeal filed by the appellant to the Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal was dismissed which led to the unsuccessful writ application in the High Court and hence this appeal. The point that arises for consideration is whether any appeal lay under section 64 of the Act to the State Transport Appellate Tribunal against the issue of a permit in pursuance of an earlier resolution of the Regional Transport Authority granting the permit. It is only necessary to read section 64(1) (a) which is material for the purpose of this appeal: 64(11 (a): "Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him may within the prescribed time and in the prescribed man 190 ner, appeal to the State Transport Appellate Tribunal constituted under sub section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final". We are not required to consider the other clauses of section 64(1) which are admittedly not relevant. Section 64 has to be read with rule 178 of the Rules which prescribes the procedure for appeal to the various authorities Appeal is a creature of the statute. There is no dispute that section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here. There is no appeal provided for under section 64 against an order issuing a permit in pursuance of the order granting the permit. Issuance of the permit is only a ministerial act necessarily following the grant of the permit. The appeals before the State Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal. There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit to the appellant. The High Court was, therefore, not right in dismissing the writ application of the appellant which ought to have been allowed. Although arguments were addressed by counsel with regard to old rule 151 and rule 119 of the Mysore Motor Vehicles Rules, 1963 we do not feel called upon to pronounce upon the legal effect of these rules in this appeal. In the result the appeal is allowed. The order of the High Court is set aside and necessarily the order of the State Transport Appellate. Tribunal of January 29, 1969 and the order of the Mysore Revenue Appellate Tribunal of May 8, 1970, also fall. The order granting the permit to the appellant stands restored There will be no order as to costs . V.P.S. Appeal allowed.	The appellant was granted a stage carriage permit by the Regional Transport Authority in May, 1963. Appeals against the grant to the State Transport Appellate Tribunal and further appeals to the Mysore Revenue Appellate Tribunal were dismissed. Thereafter, in April, 1967, the Secretary of the Regional Transport Authority after calling upon the appellant to produce the relevant documents, issued the permit. Appeals by the respondents of the State Transport Appellate Tribunal against the issue of the permit to the appellant were allowed on the ground of limitation. The appeal of the appellant to the Revenue Appellate Tribunal was dismissed. The appellant 's writ petition to the High Court was also dismissed. Allowing the appeal to this Court, ^ HELD: There was a clear error of jurisdiction on the part of the State Transport Appellate Tribunal and the Revenue Appellate Tribunal in interfering with the issue of permit to the appellant. The High Court was, therefore, not right in dismissing the writ application. [190D E] Appeal is a creature of the statute. Section 64 of the , is the only section creating rights of appeal against the grant of permit and other matters. But there is no appeal provided against an order issuing a permit in pursuance of an order granting the permit. Issuance of the permit is only a ministerial act necessarily following the grant of the permit. Hence, the appeal to the State Transport Appellate Tribunal and the further appeal are not competent under the section. [190B D]
il Appeal No. 329 of 1962. Appeal from the judgment and decree dated September 26. 1957 of the High Court in Appeal from Original Decree No. 253 of 1949. 656 Sarjoo Prasad and R.C. Prasad, for the appellants. A.V. Viswanatha Sastri and D. Goburdhun. for respondents nos. 1 to 4 and 6. The Judgment of the Court was delivered by Sarkar, J. This appeal arises out of a suit brought by the appellants in 1947 for a declaration that the defendants first party had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void. The suit was decreed by the trial Court but on appeal by the defendants first party to the High Court at Patna that decree was set aside. The High Court having granted a certificate of fitness, the appellants have brought the present appeal. The defendants first party have alone contested the appeal and will be referred to as the respondents. The High Court held that as the appellants were not in possession of the property at the date of the suit as found by the learned trial Judge and the respondents were, their suit must fail under the proviso to s.42 of the Specific Relief Act as the appellants had failed to ask for the further relief of recovery of possession from the respondents. In this view of the matter the High Court did not consider the merits of the case. The fact however was that at the date of the suit the property was under attachment by a magistrate under powers conferred by section 145 of the Code of Criminal Procedure and was not in the possession of any party. This fact was not noticed by the High Court but the reason why it escaped the High Court 's attention does not appear on the record. The only point argued in this appeal was whether in view of the attachment, the appellants could have in their suit asked for the relief for delivery of possession to them. If they could not, the suit would not be hit by the proviso to section 42. The parties seem not to dispute that in the case of an attachment under section 146 of the Code as it stood before its amendment in 1955, a suit for a simple declaration of title without a prayer for delivery of possession is competent. The respondents contend that the position in the case of an attachment under section 145 of the Code is different, and in such a case the magistrate holds possession for the party who is ultimately found by him to have been in possession when the first order under the section was made. It was said that a suit for declaration of title pending such an attachment is incompetent under the proviso to section 42 unless recovery of possession is also asked for. It appears that the attachment under section 145 in the present case is still continuing and no decision has yet been given in the proceeding 's resulting in the attachment. In our view, in a suit for declaration of title to property filed when it stands attached under section 145 of the Code, it is not necessary to ask for the further relief of delivery of possession. The fact 657 if it be so, that in the case of such an attachment, the magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant. On the question however whether the magistrate actually does so or not, it is unnecessary to express any opinion in the present case. The authoritie 's clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession: see Sunder Singh Mallah Singh Sanatan Dharm High School, Trust vs Managing Committee, Sunder Singh Mallah Singh Rajput High School.(1) Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit. It is pertinent to observe that in Nawab Humayun Begam vs Nawab Shah Mohammad Khan(2) it has been held that the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa lyer vs Sarvajana Sowkiabil Virdhi Nidhi Ltd.(3), it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment under section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession. In Dukkan Ram vs Ram Nanda Singh(1) a contrary view appears to have been taken. The reason given for this view is that the declaratory decree in favour of the plaintiff would not be binding on the magistrate and he was free inspite of it to find that possession at the relevant time was with the defendant and deliver possession to him. With great respect to the learned Judge deciding that case, the question is not whether a declaratory decree would be binding on the magistrate or not. The fact that it may not be binding would not affect the competence of the suit. The suit for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession, which, it is not disputed, is the case when the property is under attachment under section 145 of the Code. We think that Dukkan Ram 's(4) case had not been correctly decided. We may add that no other case taking that view was brought to our notice. (1) (1937) L.R. 65 I.A. 106. (2) A.I.R. 1943 P.C. 94. (3) I.L.R. (4) A.I.R. 1961 Pat. 658 For these reasons, we hold that the suit out of which this appeal has arisen was competent. We, therefore, allow the appeal but as the merits of the case had not been gone into by the High Court, the matter must go back to that Court for decision on the merits. The appellant will get the costs here and below. Appeal allowed and case remanded.	There was dispute about the property in suit between theappellants and the respondents. The property was attached by the Magistrate under section 145 of the Criminal Procedure Code. Subsequently the appellants filed a suit for declaration of their title to the property but made no prayer for the cansequential relief of possession. The suit was decreed by the trial court but the High Court set aside the decree on the ground that the suit was bad under section 42 of the Specific Relief Act for failure to sue for possession. Appeal to this Court was filed with certificate of fitness. HELD: In a suit for declaration of title to property, filed when it stands attached under section 145 of the Criminal Procedure Code, it is not necessary to ask for the further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession, is irrelevant. [656H 657B] Moreover the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only. In the present case the Magistrate was in possession and he was not a party to the suit. [657C D] Further it is not necessary to ask for possession when the property is in custodia legis. There is no doubt that property under attachment under section 145 of the Code is in custodia legis. [657E3 Sunder Singh Mallah Singh Sanatan Dharam High School, Trust vs Managing Committee, Sunder Singh M.allah Singh Rajput High School, (2937)L.R. 65 I.A. 10,6 and Nawab Humayun Begum vs Nawab Shah Mohammad Khan, A.I.R. 1943 P.C. 94, relied on. K. Sundarama Iyer vs Sarvajana Sowkiabil Virdhi Nidhi Ltd. I.L.R. , approved. Dukhan Ram vs Ram Nanda Singh, A.I.R. 1961 Pat. 425, disapproved.
3. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner praying for quashing of FIR bearing No. 26/2017 registered at Police Station Baba Haridas Nagar, Delhi for offences punishable under Sections 354/452/506/509/354B/34 of the 4. Notice. Mr. Panna Lal Sharma, learned APP accepts notice on behalf of the State. 5. All the petitioners are present before this Court and have been identified by their counsel Mr E.P. Pandey and Investigating Officer (IO) ASI Jitender Kumar from Police Station Baba Haridas Nagar, Delhi. 6. On a query made by this Court, respondent no.2, who is present in Court and has been identified by the IO, has categorically stated that she has entered into compromise out of her own free will and without any pressure, coercion or threat. It is also stated by respondent No.2 that the entire dispute has been amicably settled between the parties vide Memorandum of Understanding (MoU)/Settlement Deed dated 21.02.2022 entered into between them and that she has no objection if the FIR is quashed. 7. Both the parties have appeared before this Court. The complainant states that the parties herein are neighbours and a dispute had arisen over some misunderstanding, pursuant to which the present cross FIRs have been registered. The cases were registered in the year 2017 and charges have already been framed. Thus, there has been a delay by the parties in coming to the Court for compromise for quashing of the FIRs, thereby consuming much judicial time and time of the investigating agency. 8. The tendency to file cases under Sections 354/509 in disputes between neighbours to settle scores is on the rise and needs to be curbed. The complainants in both the cases are present and state that they do not want to pursue the matter as the matter has been amicably settled. The parties have been cautioned and counselled. However, considering that the parties have amicably settled the dispute out of their own free will, and without any coercion, it will be in the interest of justice that the FIRs are quashed subject to the accused persons depositing a sum of Rs. 10,000/- each in Lawyers’ Welfare Fund, Tis Hazari Courts, Delhi and the receipt thereof be filed before the Registry of this Court within a week. 9. Accordingly, FIR bearing No. 26/2017, registered at Police Station Baba Haridas Nagar, Delhi for offences punishable under Sections 354/452/506/509/354B/34 of the IPC and all consequential proceedings emanating therefrom are quashed.	The Delhi High Court has observed that the tendency of filing cases of outraging modesty of a woman under Section 354 and 509 of Indian Penal Code, in the disputes between neighbours to settle scores needs to be curbed. Justice Swarana Kanta Sharma made the observation while quashing an FIR registered under sec. 354, 452, 506, 509, 354B and 34 of Indian Penal Code. The complainant had stated that the parties were neighbours and a dispute had arisen over some misunderstanding, pursuant to which cross FIRs were registered. The cases were registered in the year 2017 and charges had already been framed. Thus, the Court noted that there was a delay by the parties in coming to the Court for compromise for quashing of the FIRs, thereby consuming much judicial time and time of the investigating agency. "The tendency to file cases under Sections 354/509 in disputes between neighbours to settle scores is on the rise and needs to be curbed," the Court said, after it was informed by the complainants that they did not want to pursue the matter as the same had been amicably settled. While cautioning and counselling the parties, the Court quashed the FIR subject to the accused persons depositing a sum of Rs. 10,000 each in Lawyers' Welfare Fund, Tis Hazari Courts. The plea was accordingly disposed of. Case Title: TARUN AND ORS v. STATE (NCT OF DELHI) AND ANR.
The instant revision petition has been preferred under Article 227 of the Constitution of India, for setting aside of order dated 09th March, 2022 (Annexure P-3), passed by Addl. Civil Judge (Sr. Divn.), Chandigarh, vide which, application filed under Order 7 Rule 11 of the Code of Civil Procedure (hereafter called as 'Code') for rejection of plaint in a summary suit, by the respondent-defendant, was allowed. It would be apposite to give a brief sequence of events leading to the filing of the instant revision petition by the petitioners, who are plaintiffs before the Court below. Parties hereinafter shall be referred to by their original positions before the Court below. Plaintiffs, who are practicing Advocates, filed a summary suit under Order XXXVII of Code for grant of a decree for recovery of Rs.49,66,510/- (i.e. Rs. 10,11,900/- towards plaintiff No.1 and Rs. 39,54,610/- towards plaintiff No.2) along with interest pendente lite @ 12% p.a., during the pendency of the suit and future interest @ 12% p.a. till its actual realization, along with costs and legal fee dues from the defendant for various cases contested on its behalf. It has been pleaded that notice in the aforementioned suit filed by the plaintiffs/petitioners was issued to the defendant/respondent on 26.09.2019. Summons were served upon the defendant on 23.10.2019, however, the defendant failed to put in appearance in the Court within the stipulated 10 days, as envisaged under Order XXXVII Rule 3(1) of Code. Thereafter, statutory summons for judgment under Order XXXVII Rule 3(4) of Code were served upon the defendant on 03.01.2020. Application for leave to defend was required to be filed by the defendants within 10 days as per the provisions of Order XXXVII Rule 3(5) of Code, however, they failed to file any application for leave to defend within the statutory period of 10 days. Instead, they filed an application under Order 7 Rule 11 of Code on 23.12.2021, seeking rejection of the plaint on the ground that the suit did not fall within the ambit of summary suit as contemplated under Order XXXVII Rule 1 (2) of Code. The said application was allowed vide impugned order dated 09.03.2022 and the plaint rejected. Hence, the instant revision petition. At the outset, a pointed query was put to the learned senior counsel for the petitioners qua the maintainability of the instant revision petition since a statutory remedy of appeal against the order of rejection of plaint is provided for and was available to him. On the query put, learned senior counsel submitted that the trial Court had on the face of it committed grave illegality while passing the impugned order. He submitted that statutory summons for judgment was served upon the defendant on 03.01.2020, as per Order XXXVII Rule 3(4) of Code and hence, the defendant/respondent was required to file an application for leave to defend within 10 days i.e. by 13th January, 2020, as provided for under Order XXXVII Rule 3(5) of Code. However, the defendant failed to file an application for leave to defend within the statutory period of 10 days and hence, on this ground alone, the suit was liable to be decreed forthwith as per the provisions of Order XXXVII Rule 3(6)(a) of Code. Therefore, the trial Court fell in error while failing to exercise its jurisdiction in not passing a decree immediately on the lapse of 10 days. Learned senior counsel for the petitioners further contended that application under Order 7 Rule 11 of Code was not maintainable in a suit filed under Order XXXVII of Code. He submitted that Order XXXVII of Code was a complete code in itself and thus, the procedure provided therein could not be deviated from and had to be strictly complied with. After putting in appearance, the defendant has to file an application for leave to defend and on doing so, only thereafter he could be permitted to raise all the defenses be available to him and permissible under law. It was thus argued by the learned senior counsel that an application under Order 7 Rule 11 of Code, was not maintainable in a summary suit and the trial Court had clearly gone beyond its jurisdiction by entertaining the application filed under Order 7 Rule 11 of Code by the defendant. Learned senor counsel for the petitioners vehemently argued that the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, was extensive and it could be exercised to check and correct any patent error or illegality committed by a subordinate Court. He thus submitted that in the aforementioned circumstances, since the trial Court had not complied with the mandatory procedure envisaged under Order XXXVII of Code and still further illegally adjudicated upon an application under Order 7 Rule 11 of Code, the instant revision petition under Article 227 of the Constitution of India, would be maintainable. In support of his submissions, learned counsel has placed reliance upon Surya Dev Rai Vs. Ram Chander Rai and others, (2003) 6 SCC 675, Calcutta and another, (1961) 2 SCR 241, Hirday Narain Vs. Income Tax Officer, Bareilly, 1970(2) SCC 355, Harbanslal Sahnia andanother Vs. Indian Oil Corpn. Ltd. and others and various other judgments of High Courts and the Per contra, learned counsel for the respondent/defendant while opposing the submissions made by the counsel opposite, prayed for dismissal of the instant petition on the ground of maintainability by urging that the supervisory jurisdiction under Article 227 of the Constitution of India, could not be invoked by the petitioner without first availing of his alternative remedy of appeal. He submitted that since the rejection of plaint is a deemed decree, the petitioner could not have approached this Court under Article 227 of the Constitution of India and could have challenged the impugned order only by way of an appeal. In support of his contentions, learned counsel placed upon Sayyed Ayaj Ali Vs. Prakash G. Goyal and Vithal Kamat and others : 2021(3) RCR (Civil) 768 and Ramal Adwani Vs. Vashulal M.Talreja and another (Bomby HC) : Writ Petition (Civil) No.13427 of 2018. I have heard learned counsel for the parties and have perused the relevant material on record. The foremost question, which requires to be dealt with by this Court, is whether the instant petition under Article 227 of the Constitution of India, is maintainable or not. Before proceeding further, it would be apposite to reproduce Section 2(2) of Code:- “(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal (b) any order of dismissal for default. Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;” By decree, it is implied that it is a formal expression of an adjudication by a Court of law, wherein, the rights of the parties are conclusively determined with regard to all or any of the matters in controversy in a suit. Further, the term ‘decree’ would include within its ambit an order of rejection of plaint under Order 7 Rule 11 of Code, as would be evident from the expression “shall be deemed to include the rejection of plaint” appearing in Section 2(2) of Code. A statutory remedy of appeal has been provided under Section 96 of Code against a decree, therefore, even an order of rejection of plaint under Order 7 Rule 11 of Code would be amenable to the remedy of appeal. In the circumstances, when there does exist a statutory remedy of appeal against the impugned order, this Court does not deem it appropriate to entertain the instant petition under Article 227 of the Constitution of India. It would be relevant to reproduce the observations of the Hon’ble Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors., (2019)9 SCC 538, which are as under:- “11. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the Venkatasubhiah Naidu v. S. Chellappan, (2000) 7 SCC 695], this Court held that “though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675], pointed out in Radhey Shyam Vs. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC 67] that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. 13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” The order dated 09.03.2022 amounts to a decree as contemplated under Section 2(2) of the Code and the aggrieved party has a remedy of appeal under Section 96 of the Code. That being the position, this Court would loathe to interfere in the matter in exercise of its jurisdiction under Article 227 of the Constitution of India. As a sequel to the above, no case for interference by this court is made out. The revision petition is thus dismissed. Whether speaking/reasoned: Yes/No	Punjab and Haryana High Court recently dismissed a revision petition for setting aside order of the Addl. Civil Judge (Sr. Divn.), Chandigarh, vide which, application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint in a summary suit was allowed. The bench comprising Justice Manjari Nehru Kaul held that in circumstances, when there already exists a... Punjab and Haryana High Court recently dismissed a revision petition for setting aside order of the Addl. Civil Judge (Sr. Divn.), Chandigarh, vide which, application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint in a summary suit was allowed. The bench comprising Justice Manjari Nehru Kaul held that in circumstances, when there already exists a statutory remedy of appeal against the impugned order, it is not appropriate to entertain the instant petition under Article 227 of the Constitution of India. The court was dealing with a matter where a summary suit for grant of a decree for recovery of a certain sum of money was instituted by the Plaintiffs. Thereafter, the defendants filed an application seeking rejection of the plaint on the ground that the suit did not fall within the ambit of summary suit. The said application was allowed and plaint was rejected hence, the instant revision petition was filed. The court considered rival submission of the parties and held that a statutory remedy of appeal is already provided under Section 96 of CPC against a decree and even an order of rejection of plaint is amenable to this remedy of appeal. The court further observed that a decree is a formal expression of adjudication by Court of law, wherein, the rights of the parties are conclusively determined with regard to all or any of the matters in controversy in a suit. Further, the court noted, 'decree' includes an order of rejection of plaint under Order 7 Rule 11 of CPC. By decree, it is implied that it is a formal expression of an adjudication by a Court of law, wherein, the rights of the parties are conclusively determined with regard to all or any of the matters in controversy in a suit. Further, the term 'decree' would include within its ambit an order of rejection of plaint under Order 7 Rule 11 of Code, as would be evident from the expression "shall be deemed to include the rejection of plaint" appearing in Section 2(2) of Code. Accordingly, the court concluded that the impugned order by the Addl. Civil Judge (Sr. Divn.), Chandigarh amounts to a decree as contemplated under Section 2(2) of the Code of Civil Procedure. Therefore, the plaintiff has a remedy of appeal under Section 96 of the Code. The revision petition was thus dismissed. Case Title: Nimrata Shergill and another Versus Shop Owners Welfare Association
The instant appeal has been filed by the Insurance Company (defendant in the claim petition) against the judgment and decree dated 23.10.2021 passed by the Additional District Judge No.4, Bikaner in Civil Original Suit No. 07/2020, whereby while allowing the suit filed by the dependents of the deceased Premaram @ Premratan under the Fatal Accident Act, compensation of Rs.5,94,160/- has been awarded for which employer, Pratibha Industries Limited Nagaur, its Supervisor, Managing Director and Insurance Company were made liable jointly and severely. Deceased Premaram @ Premratan was an employee in Pratibha Industries Ltd. He died on 18.6.2008, during the course of his employment, while he was doing work of removing soil from the pipeline in the ditch. The masala mixture machine fell upon him as a result of which he collapsed. At the time of his death, he was aged 25 years and earning Rs.250/- per day in lieu of labour work. At that time, defendant nos. 1 and 2 were Supervisor and Managing Director of the Pratibha Industries Ltd. The incident was reported to the police, upon which FIR No. 231/2008 under Section 302 and 287 IPC was registered. All the employees working under Pratibha Industries Ltd. were insured under the Wokmen’s Compensation Act, 1923 (now amended as The Employees’s Compensation Act, 1923 w.e.f. 18.1.2010) (herein- afterwards referred to as ‘the Act of 1923’). After trial, the learned trial court decreed the suit. Aggrieved with the same, this first appeal has been filed. Learned counsel for the appellants during arguments on admission submits that the insurance company issued policy in the category of workmen compensation for 30 employees drawing salary less than Rs.4,000/-. Since deceased was employee of Pratibha Industries Ltd., the dependents of deceased had remedy to file claim petition under the Employee’s Compensation Act, 1923. Insurance Company is liable only under the provisions of the Act of 1923. He also submits that wife of the deceased has re- married, so she is not entitled to get the compensation. He further submits that the Insurance Company was impleaded as party respondent only on 30.11.2010 at a belated stage. Learned counsel for the appellants also submits that the income of the deceased was more than Rs.4,000/- per month, whereas, the insurance was with regard to workers drawing salary less than Rs.4,000/- per month each. At the time of incident, no security measures were provided to the employees by the employer. Therefore, the conditions of the policy have also been violated. Learned counsel for the appellants further submits that the deceased was working for sub-contractor. Considered the arguments raised by the learned counsel for the appellants and perused the record. It is not in dispute that the deceased was an employee of Pratibha Industries Ltd. It is also not in dispute that Workmen Compensation Policy issued in favour of Pratibha Industries Ltd. by the appellant – Insurance Company was in force at the time of incident. It is not in dispute that the compensation was assessed on the monthly income of Rs. 2600/- of the deceased, which is below Rs.4,000/- per month. Regarding not filing claim under the Act of 1923, it is made clear that though claimants had remedy under the Act of 1923 also, however, there is no bar to file suit for compensation under the provisions of Fatal Accident Act, 1855. The provisions of Fatal Accident Act, 1855 applies against all wrong doers including the employer. The scope of the provisions of Fatal Accident Act, 1855 is wider than the scope of Act of 1923. Civil Courts are competent to entertain any civil dispute unless it is barred by any law. There is no bar under any provisions of law to claim compensation under the Fatal Accident Act by employee against his employer. Hence, the contention of the learned counsel for the appellant in this regard is prima facie not tenable. The other grounds raised by the learned counsel for the appellants are also not tenable. Contention with regard to re- marrying of the deceased’s wife is concerned, the same does not disentitle her from claiming compensation for death of her husband. The amount of compensation awarded by the learned trial court looking to the young age of the deceased and number of claimants cannot be said to be unreasonable. There is no merit in this appeal. Accordingly, this first appeal stands dismissed at admission stage.	The Rajasthan High Court has observed that remarrying of the deceased's wife does not disentitle her from claiming compensation for death of her husband under Employees' Compensation Act, 1923. The court added that the amount of compensation awarded by the trial court looking at the young age of the deceased and number of claimants cannot be said to be unreasonable. Justice Rameshwar Vyas, while dismissing the first appeal preferred by the Insurance Company observed, "Contention with regard to remarrying of the deceased's wife is concerned, the same does not disentitle her from claiming compensation for death of her husband. The amount of compensation awarded by the learned trial court looking to the young age of the deceased and number of claimants cannot be said to be unreasonable. There is no merit in this appeal." While dealing with the appellants' contention regarding not filing the claim under the Act of 1923, the court clarified that though claimants also had remedy under the Act of 1923 and there is no bar to file suit for compensation under the provisions of Fatal Accident Act, 1855. The court opined that the provisions of Fatal Accident Act, 1855 applies against all wrong doers including the employer. The court observed that the scope of the provisions of Fatal Accident Act, 1855 is wider than the scope of Act of 1923. The court added that Civil Courts are competent to entertain any civil dispute unless it is barred by any law. There is no bar under any provisions of law to claim compensation under the Fatal Accident Act by an employee against his employer, added the court. The court noted that it is not in dispute that the deceased was an employee of Pratibha Industries Ltd. and that the Workmen Compensation Policy issued in favour of Pratibha Industries Ltd. by the appellant – Insurance Company was in force at the time of incident. It is not in dispute that the compensation was assessed on the monthly income of Rs. 2600/- of the deceased, which is below Rs.4,000/- per month, added the court. Facts Essentially, the deceased Premaram @ Premratan was an employee in Pratibha Industries Ltd. He died on 18.6.2008, during the course of his employment, while he was doing work of removing soil from the pipeline in the ditch. The masala mixture machine fell upon him as a result of which he collapsed. At the time of his death, he was aged 25 years and earning Rs.250/- per day in lieu of labour work. At that time, defendant nos. 1 and 2 were Supervisor and Managing Director of the Pratibha Industries Ltd. The incident was reported to the police, upon which FIR under Section 302 and 287 IPC was registered. All the employees working under Pratibha Industries Ltd. were insured under the Wokmen's Compensation Act, 1923.. After trial, the learned trial court decreed the suit. Aggrieved with the same, this first appeal has been filed. Arguments The appellants' counsel submitted that the insurance company issued a policy in the category of workmen compensation for 30 employees drawing a salary less than Rs.4,000/-. He argued that since the deceased was an employee of Pratibha Industries Ltd, the dependents of the deceased had the remedy to file a claim petition under the Act of 1923. He also argued that Insurance Company is liable only under the provisions of the Act of 1923. He submitted that the wife of the deceased has remarried and is not entitled to get the compensation. He further submitted that the Insurance Company was impleaded as party respondent at a belated stage. He argued that the income of the deceased was more than Rs.4,000/- per month, whereas, the insurance was with regard to workers drawing a salary less than Rs.4,000/- per month each. He added that at the time of the incident, no security measures were provided to the employees by the employer. Therefore, he contended that the conditions of the policy have also been violated. Adv. Dhanpat Choudhary appeared for the appellants. Case Title: Bajaj Allianz General Insurance Company Limited & Anr. .v. Sharda
vil Appeal No. 262 (NC) of 1976. From the Judgment and Order dated 24.4.1975 of the Rajasthan High Court in D.B. Civil I.T.R. No. 45 of 1969. Mrs. Anjali Verma for JBD & Co. and D.N. Misra for the Appellant. O.P. Vaish, section Rajappa, Vinay Vaish, S.K. Aggarwal and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Rajasthan dated 24.4.1975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative, in favour of the Revenue and against the assessee. The question referred to the High Court was as under: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act. 1961?" The circumstances leading to the reference and the appeal was necessary to be stated. The Natural Science (India) Ltd. predecessor ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles at Jamsar. The lease was liable to be renewed after expiring of 20 years. The Natural Science (India) Ltd. by a deed of assignment dated December 11, 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd., a compa ny wherein the State Government owned 45 per cent share. The Bikaner Gypsums Ltd. (hereinafter referred to as the asses see) carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease. The asses see entered into an agreement with Sindri Fertilizers, a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5 per cent quality. Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic, convenient and beneficial manner and to treat the same by calcination and other proc esses. Clause 2 of Part II of the lease authorised the lessee to sink, dig, drive, quarry, make, erect, maintain and use in the said lands any borings, pits, shafts, in clines, drifts, tunnels, trenches, levels, water ways, airways and other works and to use, maintain, deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral. Clause 3 granted liberty to erect, construction, maintain and use on or under the land any engines, machinery, plant, dressing, floors, furnaces, brick kilns, like kilns, plaster kilns etc. Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways. Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking, heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers. Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices, gardens and yards. Clause 9 conferred power on the lessee to acquire, take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers, and if the lessee is unable to acquire such land from the tenants and occupiers, the Government undertook to acquire such surface land for the lessee at the lessee 's cost. Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning, working getting the said minerals and also for calcining, smelting, manufac turing, converting and making merchantable. 318 Part III of the lease contained restrictions and condi tions to the exercise of the liberties and powers and privi leges as contained in Part II of the lease. Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier. Clause 3 prescribed restriction on mining operation within 100 yards from any railway, reser voir, canal or other public works. It reads as under: "Clause 3: No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway, reservoir, canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ ing of the Minister, or some officer authorised by him in that behalf or otherwise then in accordance with such in structions, restrictions and conditions either general or special which may be attached to such permission. The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof. " The above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee. Clause 5 of Part VIII of the agreement stated as under: "Clause 5: If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any 'Jagir dar ' 'Pattedar ', 'Talukdar ', tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such "Jagir dar", 'Pattedar ', 'Talukdar ', tenant or other person claim ing to have any underground or mineral rights shall be paid by the Government." The assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it. The Railway author ities extended the railway area by laying down fresh track, providing for railway siding. The Railways further con structed quarters in the lease area without the permission of the assessee company. The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit. The assessee company, there upon, approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses see to carry out the mining operation under the land occu pied by the Railways (hereinafter referred to as the 'Rail way Area '). Since, on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available, which was required as raw material by the Sindri Fertilizers. All the four parties namely, Sindri Fertilizers, Government of Rajasthan, Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station, track and yards to another place or area offered by the assessee. Under the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties, Sindri Fertilizers, Govern ment of Rajasthan, Indian Railway and the assessee company shall equally bear the total expenses of Rs. 12 lakhs in curred by the Railways in shifting the railway station, yards and the quarters. Pursuant to the agreement, the assessee company paid a sum of Rs.3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions. In addition to that the assessee company further paid a sum of Rs.7,300 to the Railways as compensation for the surface rights of the leased land. On the shifting of the Railway track and Sta tion the assessee carried out mining in the erstwhile Rail way Area and it raised gypsum to the extent of 6,30,390 tons and supplied the same to Sindri Fertilizers. The assessee company claimed deduction of Rs.3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964 65. The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure. On appeal by the assessee, the Appellate Assistant Commissioner confirmed the order of the Income Tax Officer. On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, instead it was a revenue expenditure. On an application made by the Revenue the Income Tax Appellate Tribunal (hereinaf ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under section 256 of the Income Tax Act, 1961. The High Court held that since on payment of Rs.3 lakhs to the Rail way the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs. 3 lakhs was a capital expenditure and it could not be a revenue expendi ture. On these findings the High Court answered the question in the negative in favour of the Revenue against the asses see and it set aside the order of the Tribunal by the im pugned order. Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations, the assessee had right to win, the minerals which lay under the Railway Area as that land had also been demised. to the assessee. Since, the existence of railway station, building and yard obstructed the mining operations, the assessee paid the amount of Rs.3 lakhs for removal of the same with a view to carry on its business profitably. The assessee did not acquire any new asset, instead, it merely spent money in removing the ob struction to facilitate the mining in a profitable manner. On the other hand, learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease, the assessee had no right to the surface of the land occupied by the Railways. The assessee acquired that right by paying Rs.3 lakhs which resulted into an enduring benefit to it. It was a capital expenditure. Both the counsel referred to a number of decisions in support of their submissions. The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts. There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi tal from revenue expenditure. But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them, as each decision is rounded on its own facts and circumstances. Since, in the instant case the facts are clear, it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions. However, before we consider the facts and circumstances of the case, it is necessary to refer to some of the leading cases laying down guidelines for deter mining the question. In Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , 'this Court observed that in the great diversity of human affairs and the complicated nature of business opera tion, it is difficult to lay down a test which would apply to all situations. One has, therefore, to apply the criteria from the business 320 point of view in order to determine whether on fair appreci ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure. The Court laid down a simple test for determining the nature of the expenditure. It observed: the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene fit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into exist ence any such asset or advantage but for running the busi ness or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. " In K.T.M.T.M. Abdul Kayoom and Another vs Commissioner of Income Tax, , this Court after consider ing a number of English and Indian authorities held that each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. The Court observed that what is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases. In that case the assessee claimed deduction of Rs.6, 111 paid by it to the Government as lease money for the grant of exclusive rights, liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years. The Court held that the amount of Rs.6,111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish; the payment was not related to the chanks, instead it was an amount spent in acquiring an asset from which it may collect its stockin trade. It was, therefore, an expenditure of a capital nature. In Bombay Steam Navigation Co. Pvt. Ltd. vs Commissioner of Income Tax, Bombay, ; , the assessee pur chased. the 321 assets of another Company for purposes of carrying on pas senger and ferry services, it paid part of the consideration leaving the balance unpaid. Under the agreement of sale the assessee had to pay interest on the unpaid balance of money. The assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income. The court held that the claim for deduction of amount of interest as revenue expenditure was not admissible. The Court observed that while considering the question the Court. should con . sider the nature and ordinary course of business and the object for which the expenditure is in curred. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit earning process and not for acquisition of an asset or a right of a perma nent character, the possession of which is a condition for the carrying on of the business, the expenditure may be regarded as revenue expenditure. But, on the facts of the case, the Court held that the assessee 's claim was not admissible, as the expenditure was related to the acquisi tion of an asset or a right of a permanent character, the possession of which was a condition for carrying the busi ness. The High Court has relied upon the decision of this Court in R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , in rejecting the assessee 's contention. In Suganchand 's case the assessee was carrying on a mining business, he had paid a sum of Rs. 1,53,800 to acquire lease of certain areas of land bearing mica for a period of 20 years. Those areas had already been worked for 15 years by other lessees. The assessee had paid a sum of Rs.3,200 as fee for a licence for prospecting for emerald for a period of one year. In addition to the fee, the assessee had to pay royalty on the emerald excavated and sold. The assessee claimed the expenditure of Rs.3,200 paid by it as fee to the Government for prospecting licence as revenue expenditure. The assessee further claimed that the appropriate part of Rs. 1,53,800 paid by it as lease money was allow able as revenue expenditure. The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature. But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure. The Court held that since the payment of tender money was for acquisition of capital asset, the same could not be treated as a revenue expenditure. As regards the claim relating to the prospecting licence 322 fee of Rs.3,200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine, the payment was made to the Government with the object of initiating the business. The Court held that even though the amount of prospecting licence fee was for a period of one year, it did not make any difference as the fee was paid to obtain a licence to investigate, search and find the mineral with the object of conducting the business, extracting ore from the earth necessary for initiating the business. The facts involved in that case are totally dif ferent from the instant case. The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it, instead, the claim relates to the amount spent on the removal of a restriction which obstruct ed the carrying of the business of mining within a particu lar area in respect of which the assessee had already ac quired mining rights. The payment of Rs.3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir ing any right, instead the payment was made to remove ob struction to facilitate the business of mining. The princi ples laid down in Suganchand 's case do not apply to the instant case. In British Insulated and Helsby Cables Ltd. vs Atherton, , Lord Cave laid down a test which has almost universely been accepted. Lord Cave observed: ". when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circum stances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue out to capital." This dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co. Ltd. (supra); Abdul Kayoom (supra) and Seth Sugancha.nd (supra) and several other decisions of this Court. But, the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence, as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion. Therefore, the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum stances might very well lead to an opposite conclusion. In Gotan Lime Syndicate vs C. I. T., Rajasthan & Delhi, 18, the assessee which carried on the busi ness of manufacturing lime from limestone, was granted the right to excavate limestone in certain areas under a lease. Under the lease the assessee had to pay royalty of Rs.96,000 per annum. The assessee claimed the payment of Rs.96,000 to the Government as a revenue expenditure. This Court after considering its earlier decision in Abdul Kayoom 's case (supra) and also the decision of Lord Cave in British Insu lated (supra), held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted. The Court observed that the royalty payment including the dead rent had relation to the lime deposits. The 'Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all. No lump sum payment was ever settled, instead, only an annual royal ty and dead rent was paid. The Court held that the royalty was not a direct payment for securing an enduring benefit, instead it had relation to the raw materials to be obtained. In this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit. In M.A. Jabbar vs C.I.T. Andhra Pradesh, Hyderabad; , , the assessee was carrying on the business of supplying lime and sand, and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months. Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within, under or upon the land. The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money. The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena bling the assessee to remove the sand lying on the surface of the land which was stock in trade of the business, there fore, the expenditure was a revenue expenditure. Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure, has been consid ered by courts. In Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor 325 porated by a Charter granted to it in 1773. By passage of time many of its features had become archaic and unsuited to modern conditions and the company 's commercial performance was suffering a progressive decline. The Charter of the company placed restriction on the company 's borrowing powers and it placed restriction on voting rights of certain mem bers. The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa ny 's borrowing powers and restrictions on the issue and transfer of shares. The company 's petition was contested by dissenting share holders in court. The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share holders and in pursuance thereof a supplementary Charter was granted. In assessment proceedings, the company claimed deduction of payments made by it towards the cost of obtain ing the Charter, the amounts paid to the dissenting share holders and expensed in the action. The Special Commissioner held that the company was entitled to the deductions. On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading, and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day to day trading operation of the company, the expenditure was on income account. The House of Lords considered the test laid down by Lord Cave L.C. in British Insulated Company 's case and held that the payments made by the company, were for the purpose of removing of disability of the company trading operation which prejudiced its operation. This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity. From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved. The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment, and the bringing into existence of an advantage, payment for which may be a capital payment. Since, in the case before the Court, the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773, the expendi ture was on revenue account. In Empire Jute Company vs C.I. T, [1980] 124 ITR I, this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits, was in the nature of revenue expenditure. The Court observed that if the advantage consists merely in facilitat ing the assessee 's trading operations of enabling the man agement and conduct of the assessee 's business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched, the expenditure would be on revenue account even though the advantage may endure for an indefinite future. We agree with the view taken in the aforesaid two decisions. In our opinion where the assessee has an existing right to carry on a business, any expendi ture made by it during the course of business for the pur pose of removal of any restriction or obstruction or disa bility would be on revenue account, provided the expenditure does not acquire any capital asset. Payments made for remov al of restriction, obstruction or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset. In the instant case the assessee had been granted mining lease in respect of 4.27 square miles at Jamsar under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire money, licence fee and other charges for securing the right of mining in respect of the entire area of 4.27 square miles including the right to the miner als under the Railway Area. The High Court has held that on payment of Rs.3 lakhs, the assessee acquired capital asset of an enduring nature. The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee 's right to the minerals found under the Railway Area. The restriction operated as an obstacle to the assessee 's right to carry on business in a profitable man ner. The assesse paid a sum of Rs.3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose. There was, there fore, no acquisition of any capital asset. here is no dis pute that the assessee completed mining operations on the released land (Railway Area) within a period of 2 years, in the circumstances the High Court 's view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain able in law. As already observed, there may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset. The facts of each case have to be borne in mind in consider ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense. In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered. In the instant case existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee 's business of mining. The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs.3 lakhs towards the cost of shifting the Railway construction. The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan tage of an enduring nature. The Tribunal rightly allowed the expenditure on revenue account. The High Court in our opin ion failed to appreciate the true nature of the expenditure. We are, therefore, of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal. We, accordingly, allow the appeal, set aside the order of the High Court and re store the order of the Tribunal. The appellant is entitled to its costs. N.V.K. Appeal allowed.	The appellant assessee carried on the business of mining gypsum. The predecessor in interest of the assessee acquired a lease from the Maharaja of one of the erstwhile princely State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles in the State. The lease was liable to be renewed after the expiry of 20 years. By a deed of assignment dated December 11, 1948 the rights under the lease were assigned to the assessee company, in which the State Government owned 45% shares. The assessee entered into an agreement with a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5% quality. Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic convenient and beneficial manner and to treat the same by calcination and other processes. The lease agreement consisted of several parts and each part contained several clauses. Clause 3 of part Iii prescribed restrictions on mining operation within 100 yards from any railway, reser voir, canal or other public works. This clause had been incorporated in the lease to protect the railway track and railway station which was situated within the area demised to the lessee. The assessee exclusively carried on the mining of gypsum in the entire area demised to it. The Railway Authorities extended the railway area by laying down fresh track, pro viding for railway siding and further constructed quarters in the leased area without the permission of the assessee. The assessee company filed a civil suit for ejecting the railways from the encroached area but it failed in the suit. 314 As the assessee company on research and survey found that under the railway area a high quality of gypsum was available, which was required as raw material by the Public Sector Company, all the parties (Public Sector Company, the Railway Board and the assessee company) negotiated the matter, the Railway Board agreeing to shift the railway station, track and yards to an alternative area offered by the assessee, the parties equally bearing the cost of the shifting. Under the aforesaid agreement, the assessee company paid a sum of Rs.3 lakhs as its share towards the cost of shift ing of the Railway Station and other constructions, and claimed deduction of the said sum for the assessment year 1964 65. The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure. The order was confirmed on appeal by the Appellate Assistant Commissioner. On appeal by the assessee, the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, but a revenue expend iture. The Tribunal referred the question to the High Court under section 256 of the Income Tax Act, 1961, on an appli cation by the revenue, which held that since on payment of Rs.3 lakhs to the Railways the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs.3 lakhs was a capital expenditure and it could not be a revenue expenditure. In the appeal to this Court on the question whether the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act, 1961. Allowing the appeal, this Court, HELD: 1(a) Where the assessee has an existing right to carry on a business, any expenditure made by it during the course of business for the purpose of removal of any re striction or obstruction or disability would be on revenue account, provided the expenditure does not acquire any capital asset. [326A] (b) Payments made for removal of restriction, obstruc tion or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset. [326B] Gotan Lime Syndicate vs C.I.T., Rajasthan & Delhi, ; M.A. Jabbar vs C.I.T., Andhra Pradesh, Hyderabad, [1968] 315 2 SCR 413 and Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 18, referred. Empire Jute Company vs C. I. T., ; , affirmed. In the instant case, the assessee have been granted mining lease in respect of 4.27 square miles under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire area leased out to him. The payment of Rs.3 lakhs was not made by the assessee for the grant of permission to carry on mining operations within the railway area, instead the payment was made towards the cost of removing the construction which obstructed the mining opera tions. On the payment made to the Railway Authorities the assessee did not acquire any fresh right to any mineral nor he acquired any capital asset instead, the payment was made by it for shifting the Railway Station and track which operated as hindrance and obstruction to the business of mining in a profitable manner. [326C E] 2. There may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit would not amount to acquisition of asset. The facts of each case have to be borne in mind in considering the question having regard to the nature of business, its requirement and the nature of the advantage in commercial sense. [326F G] 3(a) The test for considering the expenditure for the purposes of bringing into existence an asset or an advantage for the enduring benefit of a trade is not always true and conclusive. [327B] 3(b) In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered. [326H] In the instant case, existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to the assessee 's business of mining. The Railway Authorities agreed to shift the Railway establish ment to facilitate the assessee to carry on his business in a profitable manner and for that purpose the assessee paid a sum of Rs.3 lakhs. The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advantage of an enduring nature. There was therefore. no acquisition of any capital asset. [326H; 327A] 316 British Insulated and Helsby. Cables Ltd. vs Atherton, , explained. Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , referred to. R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , distinguished. The Tribunal rightly allowed the expenditure on revenue account. The High Court failed to appreciate the true nature of the expenditure. It committed an error in interfering with the findings recorded by the Income Tax Appellate Tribunal. [327B C]
minal Appeal No. 187 of 1959. 129 Appeal by special leave from the judgment and order dated August 18, 1958, of the Punjab, High Court in Criminal Original No. 20 of 1958. Gopal Singh and P. D. Menon, for the appellants. R. section Gheba, for respondent No. 1. 1962. February 8. The Judgment of Das and Subba Rao, JJ, was delivered by Das, J., Dayal, J. delivered a separate judgment. S.K. DAS, J. This is an appeal by special leave from the judgment and order of the Punjab High Court dated August 18, 1958 by which the said Court found the two appellants guilty of contempt of court and. instead of committing them for such contempt, administered a warning to them and directed them to pay Rs. 50/ each as costs of the respondent Gurbachan Singh. The two appellants before us bear the same name. One of them was the Sub Divisional Officer, Sirsa, District Hisear and the other Naib Tehsildarcum Managing Officer, Sirsa, same district at the relevant time. In this judgment we shall call the Sub Divisional Officer as the first appellant and the Naib Tehsildar as the second appellant. The facts alleged against the appellants were these. One Budh Singh, a displaced person, was allotted some land in village Jagmalera, Tehsil Sirsa, District Hissar. The land allotted to Budh Singh was, it was stated by the appellants, forcibly occupied by the respondent Gurbachan Singh. The respondent was not a legitimate allottee and the appellants, who were concerned in their official capacity with the allotment and management of land for displaced persons, were naturally anxious to oust the respondent and deliver possession to Budh Singh of the land allotted to him. On May 9. 1958 appellant No. 1 made an order that Budh Singh and other allottees like him would be given possession ' of the land, allotted to them. The date fixed for such 130 delivery of possession was May 20, 1958. On May 16, 1958 Gurbachan Singh and a number of other persons who were similarly threatened with dispossession filed petitions to the High Court under article 226 of the Constitution challenging the legality of the action threatened against them. These petitions were put up before the learned Chief Justice on that very day, namely, May 16, 1958, when he issued an order staying delivery of possession till May 19, 1958, when the petitions were to come up for admission before a Division Bench, On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958. In the High Court the appellants did not dispute that the first order staying delivery of possession up to May 19, 1958 was communicated to them on May 19, 1958 on which date the notice from the High Court reached Sirsa. It appears that a notice of the second order extending the stay of delivery possession till May 23, 1958, was not officially communicated to the appellants till May 21, 1958. The allegation on behalf of the respondent was that on May 20, 1958, which was the relevant date, the two appellants were informed by certain interested persons, to whom we shall presently refer, that in extension of the stay order up to May 23, 1958, had been granted by the High Court ' In spite of this information, however, the second appellant, in consultation with and under instruction, of the first appellants formally dispossessed the respondent and handed over possession of the land to Budh Singh. In these circumstances the allegation on behalf of the respondent was that the two appellants bad committed contempt of court by disobeying the order of the, High Court staving delivery of possession till May 23. 1958. The respondent made an application, to the High (court, for taking suitable action against the two appellants. This application was made, oil May 27, 1958. On this application the High Court 131 issued notice and after hearing the parties, Falshaw, J. (as he then was) who dealt with the application came to the conclusion that the two appellants were aware of the order of the High Court extending the operation of the stay order and yet they disobeyed the said order by dispossessing the respondent and handing over possession to Budh Singh. He held them guilty of contempt of court, but at the same time expressed the opinion that the appellants honestly believed that they were not bound to hold their hands in the absence of an official communication of the 'High Court 's order extending the operation of the stay order. In this view of the matter, the learned Judge instead of committing the two appellants for contempt of court merely administered a warning to them and directed them to pay the costs of the respondent. On behalf of the, appellants several points have been urged in support of their contention that they were not guilty of contempt of court. Firstly, it has been contended that on the materials on the record, the High Court was wrong in proceeding on the footing that the two appellants were informed by the interested parties that an extension of the stay order up to May 23, 1958, had been granted in the case of the respondent. It has been argued before us that on May 20, 1958, the appellants did not know that the stay order had been extended till May 23, 1958, in the writ petition filed on behalf of the respondent Gurbachan Singh, though in another case of Didar Singh relating to allotted land in the same village, the appellants were informed by an advocate that the stay order had been extended till May 23, 1958. It has been contended before us that in the absence of positive evidence fixing the two appellants with knowledge of the extension of the stay order in the particular case of the respondent, the High Court was wrong in finding that the two appellants had willfully disobeyed the order of the High Court. 132 In order to appreciate this argument urged on behalf of the appellants it is necessary to state some more facts. In para. 17 of the application which the respondent made to the High Court for taking necessary action against the appellants for alleged contempt of court, it was stated that at 6 30 a.m. on May 20, 1958, two persons named Bir Singh and Avtar Singh went personally to the house of appellant No. 2 and told him that the stay order had been extended by the High Court and that they had been informed by the advocate on telephone. This allegation was supported by an affidavit made on behalf of the respondent. Appellant No. 2, however, denied this allegation in his counter affidavit. In paras. 18, 19 and 20 of his petition the respondent stated that at about 7 40 a.m. on May 20, 1958 a written application was filed before appellant No. 2 in which it was stated that the High Court had stayed delivery of possession till May 23, 1958; this application was drafted by an advo cate named Ganga Bishan, who acted on behalf of Didar Singh. The application was presented to appellant No. 2 in presence of two other persons named Mastan Singh and Teja Singh. Thereafter, an affidavit was also made on behalf of Didar Singh. This affidavit was presented to appellant No. 2 'at about 8.15 a.m. Thereafter, appellant No. 2 went in a 'jeep ' to appellant No. 1 in order to consult the latter. Appellant No. 2 saw appellant No. 1 in the latter 's court room. He came out within a few minutes, and told Ganga Bishan that the affidavit should be presented to appellant No. 1. Thereupon, another application was written on behalf of Didar Singh and this was presented to appellant No. 1 supported by the affidavit already made on behalf of Didar Singh. Appellant No. 1 did not, however, pass necessary orders on the application till about 10 a.m., when he made an endorsement to the effect that the Tehsildar, Sirsa, should take 133 necessary action, When the application was taken to the Tehsildar, he noted on it that the Naib Tehsildar, namely, appellant No. 2 had already left for the village to deliver possession. Thereupon Avtar Singh, Bir Singh, Didar Singh and Mastan Singh went to village Jagmalera where the lands lay and again met appellant No. 2. The application made to appellant No. 1 with his orders thereon was shown to appellant No. 2. It was alleged that appellant No.2 was also shown the wording of the stay order as received by_ the party through a special messenger. Appellant No. 2, however, replied that he had been ordered to dispossess the respondent and insisted on his proceeding with the dispossession. In his counter affidavit appellant No. 2 admitted that on May 20, 1958 an application was presented to him by Didar Singh at about 7 40 a.m. He further admitted that an affidavit in support of the application was also presented to him. Appellant No. 2 then made the following significant statements. "On receipt of these documents I told Shri Didar Singh that I could not act on the application and suspend the proceedings for dispossession unless I was shown the order of stay alleged to have been made by the High Court. " Appellant No. 2 explained his conduct by referring to the background of quarrel and enmity between the parties which had led to several criminal cases between them. Appellant No. 2 said in his counter affidavit that with this background of enmity he felt that though Didar Singh was an interested party, it would not be safe to accept the statements of facts contained in the application or affidavit made on behalf of Didar Singh at their face value. Appellant No. 2 also admitted that he consulted appellant No. 1, who also advised that it would not 134 be safe, to act on the statements made in the application or affidavit. Appellant No. 2 also admitted that Ganga Bishan Advocate, presented the applications to him. He also admitted that the application which was filed by Ganga Bishan to appellant No. 1 was received back with the orders of appellant No. 1 thereon at about 6 p.m. on May 20, 1958, while appellant No. 2 was returning from the village. Appellant No. 2 denied that he was shown the wording of the stay order of the High Court. He admitted, however, that he was asked not to proceed with delivery of possession on account of the High Court. Appellant No. 1. also made similar statements in his counter affidavit. He admitted that at about 9 a. m. on May 20, 1958 an application supported by affidavit was made to him on behalf of Didar Singh and be then endorsed the application to the Tehsildar for necessary action. Unfortunately, the applications which were made to appellants 1 and 2 have not been filed and we do not know the precise contents of the two applications. We have, however, affidavits made on behalf of Didar Singh, Teja Singh, Ganga Bisban and Avtar Singh. The learned Advocate for the parties have taken us through those affidavits. The argument presented on behalf of the appellants is that though they knew of the extension of the stay order in Didar Singh 's case by reason of the application and affidavit filed on his behalf before them, they did not know that a similar extension of the stay order had been granted by the High Court in the other cases as well. This argument has been pressed before us with some vehemence and we proceed now to consider it. It is worthy of note that such an argument which goes to the very root of the matter was not presented to the High Court. It is not disputed that ",disobedience of a judgment or order requiring a person to do any act other than the payment of money, or to 135 abstain from doing anything is a contempt of court punishable by attachment or committal" ; but disobedience, it is argued, if it is to be punishable as a contempt, must be willful ; in other words, the party against whom a proceeding by way of contempt is taken must know that order before, it can be said that he has disobeyed it. It is somewhat surprising that if the stand of the appellants was that they did not know of the order made by the High Court on May 19, 1958, in the respondent 's case, such a point was not urged in the High Court. Falshaw, J., (as he then was) said in his judgement that it was not in dispute before him that on the morning of May 20, 1958, both the appellants were informed that an extension of the stay order upto May, 23, 1958, had been granted by the High Court. This state ment of the learned Judge must have reference to the case of the respondent which he was considering. Apart, however, from the point that, such an argument on behalf of the two appellants was not presented in the High Court, it appears to us that on the affidavits made available to the Court, the only reasonable inference is that though the application and the affidavit were made on behalf of Didar Singh, both the appellants were informed that the High Court had granted an extension of the stay order in all 4 he cases. It is admitted on both sides that there were three cases in which delivery of possession had to be given of lands in village Jagmalera. It is also not seriously in dispute that on May 9, 1958, appellant No. 1 made an order directing that delivery of possession should be given to the allottees of their respective areas and persons in unauthorised occupation would be dispossessed. On May 16, 1958 three writ petitions were made which were placed before the Chief Justice who made an interim order of stay lasting for three days. On May 19, 1958 the writ petitions were placed before a Division Bench for admission and that Bench 136 extended the stay order till May 23, 1958. These are the admitted facts. It is also, admitted that the respondent Gurbachan Singh did not appear before the appellants on May 20, 1958, a fact which has been emphasised by the learned Advocate for the appellants. Lot us, however, see what the affidavits filed in the case show. Teja Singh said in his affidavit that Harbans Singh Gujral, who was the advocate acting on behalf of the petitioners in all the, cases, told him on the telephone on May 19, 1958 that the High Court had extended the stay order in all the cases upto May 23, 1958. Teja Singh accompanied Didar Singh, Ganga Bishan, Mastan Singh and others to the village on May 20, 1958, and he said that an application was made to appellant No. 2 in which it was stated that the stay order had been extended by the High Court. The affidavit of Ganga Bishan is very significant in this connection. He said that on May 20, 1958, he drafted the application which was later made to appellant No. 2. Ganga Bishan said that it was stated to appellant No. 2 that the stay order made by the High Court related to all the cases of village Jagmalera. He further said that appellant No. 2 was informed that stay of delivery of possession had been extended by the High Court upto May 23, 1958 ; appellant No. 2, however, wanted to be ,shown the order of the High Court ; thereupon an affidavit of Didar Singh to the effect that the stay order had been extended by the High Court upto May 23, 1958, was filed. Ganga Bishan also said that appellant No. 1 was also informed that the High Court had extended the stay order upto May 23, 1958. The affidavits made on behalf of Didar Singh and Avtar Singh were also to the same effect. In view of these affidavits we find it very difficult to hold that the. appellants knew of the stay 'order only in Didar Singh 's case but did not know of the stay order in the other oases. It is worthy of note here that 137 in the counter affidavits filed on behalf of the appellants the point was made on their behalf was that they considered it unsafe to rely on the applications and affidavits made, in view of the background of enmity between the parties. The two appellants did not say in their counter affidavits that they came to know of the stay order only in one case and not in the others such a point does not appear to have been specifically made on behalf of the appellants at any stage of the proceedings in the High Court. Therefore, we have come to the conclusion that the appellants knew of the order of the High Court in all the cases and it is not correct to say that the appellants knew of the order of the High Court only in one case and not in the others. We find it difficult to believe that Ganga Bishan would not tell the appellants that the High Court had extended the stay order in all the three cases of the village Ganga Bishan says in his affidavit that he did tell the appellants of the extension of the stay order in all the three cases and there was no counter affidavits on behalf of the appellants traversing the statements made by Ganga Bishan. We must, therefore, overrule the first point urged on behalf of the appellants. The second point which has been urged on behalf of the appellants is that in the absence of an official communication of the order, they were justified in not acting on what they came to know from interested parties and their advocate. The learned Advocate for the appellants has submitted that in a case of this nature, before willful disobedience of the order of the High Court could be imputed against the appellants, it was legally essential that the order should be officially communicated or served on the appellants and in the absence of such communication or service, the proceeding for contempt must fail. We are unable to accept this contention as correct. 138 The legal position has been very succinctly put by Oswald: "The judgment or order should be served on the party personally, except in the following cases: (1) prohibitive orders, the drawing up of which is not completed; (2) orders em bodying an undertaking to do an act by a named day; (3) orders to answer interrogatories or for discovery or inspection of documents: (4) where an order for substituted service has been made; (5) where the respondent has evaded service of the order. In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been 'granted, if it be proved that he had notice of the order aliunde, as by telegram. or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced. , or when the motion was made, although he left before the order was pronounced. " (Oswald 's Contempt of Court, 3rd Edn. 199 and 203). The order in the present case was a prohibitory order and if the appellants knew that the High Court had prohibited delivery of possession till May 23, 1958, it was undoubtedly the duty of the appellants to carry out that order. We do not think that the appellants can take up the plea that as the order had not been officially communicated to them, they were at liberty to ignore it. The appellants were officers whose duty it was to uphold the law and if they knew that a valid order had been made by the High Court staying delivery of possession, they disobeyed that order at their peril. There may be circumstances where officials 139 entrusted with the duty of carrying out a legal order may have valid reasons to doubt the authenticity of the order conveyed to them by interested parties and in those circumstances it may be said that there was no willful disobedience of the order made. We do not, however, think that the appellants in the present case had any real justification for doubting the authenticity of the order made by the High Court, even though the order had not been officially communicated to them. The appellants knew that an interim order of stay had been made by the High Court on May 16, 1958; that order was in force till May 19, 1958. Thereafter the appellants were informed not merely by interested parties but by an Advocate, who was an officer of the Court, that the High Court had extended the stay order upto May 23, 1958. A formal application supported by an affidavit was made to that effect. Despite the reason alleged by the appellants that there was a background of enmity between the parties, we do not think that the appellants have given any good reasons on which they were entitled to doubt the authenticity of the order communicated to them by Ganga Bishan, an Advocate acting on behalf of Didar Singh. It is worthy of note that the appellants did not deliver possession in Didar Singh 's case. They were content with delivering possession in the case of the respondent only. Taking into considerations all these, circumstances we are satisfied that there was in this case in the eye of the law, a willful disobedience of the order of the High Court staying delivery of possession, even though the appellants might have wrongly but honestly believed that it was not safe to act on the information given to them by Ganga Bishan. The learned Advocate for the appellants has referred us to a number of decisions, English and Indian, relating to mandatory orders, or 140 orders for the payment of money, or orders which require under the rules of the Court to be served in particular manner. In re: Holt (an Infant)(1); Ex parte Lingley (2); In re: Tuck March vs Loosemore (3); Dwijendra Krishan Datta vs Surendra, Nath Nag Choudhury (4): and Gordon vs Gordon (5). In those decisions it was held that it was necessary to have the order properly served before charging a person with disobedience of it. We do not think that those decisions are in point, because we are dealing with a prohibitory order and in the matter of a prohibitory order it is well settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde. The distinction between prohibitory orders and orders of an affirmative nature was adverted to in N. Baksi vs O. K. Ghosh (6) and a large number of decisions were referred to in support of the rule that in respect of a prohibitory order, service of the order was not essential for founding an action in contempt. We do not think that any useful purpose will be served by examining those decisions over again. We are content to adopt for the purposes of this case the rule as succinctly put by Oswald and quoted earlier in this judgment. Lastly our attention has been, drawn to the statements made by the respondent in para. 22 of his petition to the effect that though appellant No. 2 made a report about delivery of possession in respect of the land of the respondent, no actual dispossession could be made because cotton crop was standing on the land and a large number of persons had gathered there. The argument before us is that if, according to the respondent (1) (3) (5), (1946) 1 AU E.R. 246. (2) (4) A.I.R. 1927 Calcutta 548. (6) A.I.R. 1957 Patna 528, 141 himself, no actual dispossession took place then this is not a fit case in which action for contempt should be taken against the appellants. It has been submitted on behalf of the appellants that contempt proceedings are of an extraordinary nature and the Court should be reluctant to exercise its extraordinary power if the action complained of is of a slight or trifling nature and does not cause any substantial loss or prejudice to the complainant. It has been argued that if the respondent himself said that he had not been actually dispossessed, then there was no reason for proceeding against the appellants for contempt of court. Secondly, it is pointed out that the appellants offered an apology in case the High Court held that they should have taken action on the information given to them by Ganga Bishan. As to the second submission, it is enough to point out that in a matter relating to contempt of court, there cannotbe both justification and apology, (See M. Y.Shareef vs The Hon 'ble Judges of the High Courtof Nagpur (1). As to the first submission wemay draw attention to the statements of appellant No. 2 in para. 21 of his affidavit in which he said that so far as the respondent 's land was concerned, possession was delivered to Budh Singh. This statement of appellant No. 2 clearly shows that the two appellants took the very action which was prohibited by the High Court by its order dated May 19, 1958. We are, there fore, unable to accept the submission that there was no foundation for taking action against the appellants for contempt of court. This disposes of all the points urged on behalf of the appellants. As to the punishment imposed, the learned Judge took into consideration that the appellants wrongly but honestly might have believed that they were not bound to hold their hands in the absence of an official communication of the order (1) ; 142 of the High Court. That belief afforded no defence to the charge of contempt of court, but was a consideration relevant to the sentence. In our opinion, there are no grounds for interference with the order of the High Court. The appeal accordingly fails and is dismissed. RAGHUBAR DAYAL, J. I have bad the privilege of perusing the, Judgment of my learned brother section K. Das, J., but regret My inability to hold that the appellants committed contempt of Court. I need not repeat the facts set out in the majority judgment. No conviction for committing contempt of Court can be based on the finding of the High Court that the appellants delivered possession believing that they were not bound to hold their hands in the absence of the official communication of the High Court 's order. The finding means that they delivered possession not in defiance of the High Court 's order, but because they honestly thought that in the absence of the official communication of the order, they could not act on the supposition that the original stay order, which was to be effective up to May 19, 1958, continued to be effective. If in their honest opinion no stay order existed at the time, their conduct cannot be said to amount to willful disobedience of the High Court 's order extending the stay order up to May 23, 1958. No question of willful disobedience can arise when the very existence of the order is not believed. The question of obedience or disobedience arises only after the party knows of the order and if the party does not know the order, no such question can arise. The allegations in the petition by the first respondents filed in the High Court, did not make out that the appellants delivered possession, the 143 delivery of which had been stayed upto May 23, 1958, by the High Court by its order dated May 19, 1958. This is clear from the statements in paragraphs 21 and 22 of the petition. They are : " 21. However when actually he attempted to start the work of dispossession, he found that a large number of people were collected at the spot and apprehending that the police force already taken to the spot might not be sufficient to cope up with the situation if some trouble arose, he withdrew from the spot. 22.That although in the land possessed by the petitioner in Jag Malera, cotton crop was standing in some of the fields and no proceedings for dispossession of the petitioner could be taken by respondent No. 2 on account of the presence of a large number of persons at the spot, respondent No. 2, however, madesome report later on that the petitioner hadbeen actuary dispossessed of his lands and the same was given over to Budh Singh at the spot. In the other cases, however, he made a report that be could not deliver possession on account of the presence of a mob at the spot and that the police force with him being too small, was not sure to cope up with the situation. " These paragraphs can only mean that appellant No. 2 attempted to start the work of dispossession, but did not proceed further, and withdrew from the spot in view of an apprehension of breach of peace and that be made some report of a fictitious kind to the effect that the petitioner had been actually dispossessed of his land and possession had been given over to Budh Singh at the spot. It Was emphasized that actual possession could not have be on delivered on account of the standing cotton crop. It follows that even on the statements 144 of the first respondent in his petition for action against the appellants for contempt of Court, there was no assertion that they had disobeyed the stay order by delivering possession to Budh Singh. In the absence of such an assertion, no action could have been taken or ought to have been taken against the appellants. Contempt proceedings are criminal or quasi criminal proceedings. It is essential that the accusation made against the opposite party by the petitioner for taking action against him should be precise and should ,clearly make out that the opposite party had, by some specific act, committed contempt of Court. the conviction of the opposite party must rest on the facts alleged and proved by the petitioner. A conviction may also rest on the sole admission of the alleged condemner if that establishes his committing contempt of Court, but, in that case, his admission should be taken as a whole and not that its incriminating part be taken out of the context and made the basis for conviction. It is immaterial that appellant No. 2 stated in his reply that actual possession of the land in the unauthorised possession of the first respondent was delivered to Budh Singh and that at the time no cotton crop was standing and that the respondent was adopting a contradictory position. The High Court did not give any finding on this question. It simply said in its judgment, due to the misreading of the allegations in the petition. "In spite of this fact it is alleged that in the village the Naib Tehsildar formally dis possessed ' the present petitioner and handed over his land to one Budh Singh. " The respondent made no statement about the Naib Tehsildar formally dispossessing him and banding over the land to Budh Singh. 145 A clear cut finding on the disputed fact whether actual possession had been delivered or not is not to be given in summery proceedings for contempt of Court. If actual possession had been delivered to Budh Singh, there must have been some good reason for the respondent not to admit it in his petition and that can only be that in any future dispute where the question of possession of the respondent or of the Budh Singh be in question, the respondent be not confronted with his own admission in his petition and affidavit accompanying it. It may be mentioned that identical statements where made in paragaraphs 21 and 22 of the affidavit. There might be some other reason for the respondent not to admit the delivery of possession, but it is clear that the respondent did not come to Court with clean hands and, in the circumstances, proceedings for contempt of Court on his application was wrong exercise of discretion. However, the main fact remains that no allegation was made in the petition that the respondents had delivered possession. The appellants were not served, by the time the delivery of possession may be supposed to have taken place, with the order of the High Court extending the stay, order up to May 23, 1958. The telegram sent by the counsel of Gurbachan Singh from Chandigarh, reached the first appellant, the Sub Divisional Officer, at 1 30 p.m., on May 10, 1958, and any order of his on it did not reach appellant No. 2 till 6 p.m., by which time, according to him, possession had been delivered. The formal stay order from the High Court reached much later. It may not be necessary to serve prohibitive order on the party against whom it is granted, but that party must have notice of the order before it can be expected to obey it can be committed for contempt of Court for disobeying it. This is what 146 Oswald states at page 203 of his book on 'Contempt of Court ', III Edition. He says: "In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been server upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise,. " It would appear from the later part of the observation that it was sufficient that the party concerned gets notice of the prohibitive order by any means, specially by telegram or newspaper report. is however not what was held in the cases referred to by Oswald in support of his statement. Notice to the party concerned, of the prohibitive order, in those cases was communicated by the Court through its regular procedure or by a Solicitor of the Court. In In re Bryant (1) the parties concerned wet,(, informed by the solicitor of the judgment debtor that the debtor had filed a liquidation petition in the London Bankruptcy Court and that application would be made at the next sitting of the Court to restrain further proceedings under the execution. The auctioneer concerned received a telegram from Bryant 's solicitors referring to the parties to the case and stating that injunction staying sale and further proceedings Lad been granted that morning and that the order would be served as soon as possible. The auctioneer, how ever, proceeded with the sale. It was in these circumstances that the parties concerned were held to have disobeyed the order of the Court and to have committed its contempt. The solicitor was an officer of the Court. This case is no authority for the proposition that information conveyed to the party concerned (1) I.R. 147 by telegram from a person who is not an officer of the Court would amount to the requisite notice of the prohibitive order by the party concerned. In Ex parte Langley, Ex parte Smith, In re Bishop (1) the facts were as follows. Bishop filed a liquidation petition in the London Bankruptcy Court on August 6, 1879. The same day the Court passed an order restraining until the 8th of September, further proceedings in several actions which had been commenced against the debtor and, inter alia restraining the sheriff of Kent, his officers and servants, from taking any further proceedings in an action which had been brought against the debtor by Messrs. Wade and Thurston. The sheriff had fixed the sale of the attached furniture of the debtor on the 6th of August, having adjourned it from the 5th in order to afford an opportunity to the debtor to pay the debt. Smith was he sheriff 's officer who was in charge of the sale. His assistant, Emmerson and Langley, an auctioneer, were to carry out the sale. Emmerson had directions to start the sale at 11 'clock and not a moment later. Langley, however, postponed the same to 12 o 'clock, on his own responsibility, due to paucity of persons present. Langley received a telegram from one Matthews, the manager of the hotel in which the debtor was carrying on business as a licensed victualer, saying: "Smith gone to Canterbury. You had better stop Bale on your own account, as I know it is all right. " The auctioneer was also informed by the debtor 's son and another person between 11 and 12 o 'clock that the debtor would come down by the mid day train from London with the money to pay the execution debt. The sale was again put off to 1 o 'clock when it did start. After a few lots had been sold, Emmerson received a telegram purporting to be (1) L.R. (1979) 13.Ch. D. 110 148 from Learyod & Co., Solicitors, London, to the sheriff 's officer in possession stating: "Take notice, the London Court of Bankruptoy has made an order restraining you from selling or taking any further proceedings in the action against Bishop". The telegram was shown to Lanoley who thought it to be a ruse on the part of the debtor but was prepared to stop the sale temporarily till instructions from Smith. Emmerson sent a telegram to Smith saying: "Langley just received telegram to stop sale. Shall we proceed? People are waiting your reply. " Smith 's reply was: "If telegram to Langley does not state Defendant filed petition or money paid, sell at once" ' The sale thereafter proceeded. Langley and Smith were committed for contempt by Bacon C J. But on appeal they were acquitted. James, L. J., said at page 116: "With regard to the sheriff 's officer, he does not seem to have been a party to the alleged contempt at all, because I do not think the mere fact of the telegram is sufficient to bring home to him any Participation in the supposed contempt." He further said at page 117, in considering the case of the auctioneer. "It appears. to me that he might have taken some steps (though I do not know what steps I should have taken if I bad been in his position) to ascertain whether an order had really been made by the Court. Perhaps some auctioneers would have done so. But he has taken upon himself to swear positively (and he 149 has not been cross examined) that which Lord Eldon, in Kimpton vs Eve ; , field to be sufficient. He swears that he did not believe that there had been any proceedings whatever in the Bankruptcy Court it, or that any such order had been made. A person in I such a position, and a sheriff 's officer is placed in great difficulty upon receiving a telegram of this kind, knowing nothing at all of the person who may have gone to the post office and sent it, a telegram which might just as well have been sent by the debtor or by Matthews, or any one else on behalf of the debtor, in the name of Messrs. Learoyd. I am very far from saying that notice of an order cannot be given by telegram. But it is very difficult to commit for contempt where a man says that which the auctioneer does here, under circumstances which certainly give color to his assertion, and there is some amount of probability that he may, having regard to what had already taken place that ay, not have believed that any order had been made by the Court, and have had no suspicion whatever that he was disobeying any order of the Court when he continued the sale. " Thesinger, L. J., said at p. 119: I in no way dissent from the proposition laid down by him(Bacon, C.J.) in this case and also in In re Bryant (supra), that, under certain circumstances, a telegram may constitute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court. .But the question ineach case, and depending upon the particular circumstances of the case must be or was there or was there not such a notice given to the person who is charged with 150 contempt of Court that you can infer from the facts that he had notice in fact of the order which had been made? And, in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond reasonable doubt." He further stated at page 121: "But, on the other hand, he has positively sworn that, coupling what had happened before with the telegram, he bona fide believed that he was not bound to act upon the telegram which he had received, and that there had been no proceedings which would justify him in stopping the sale. He has not been cross examined, and nothing has been proved to show that his affidavit is not true. Under such circumstances the observations of Lord Eldon, in Kimpton vs Eve (supra) seem to me pertinent and material, and I may add that in a case like the present the benefit of any doubt ought to be given to the person charged with contempt. " The further remarks of James L. J., at page 122 point out the proper way of communicating a notice about injunction orders to the parties concerned by the solicitor of the party obtaining the order from the Court. He says: "I wish to add this, that when parties who .obtain an injunction wish to communicate it by telegram, there is a very obvious mode by which they can prevent difficulties like this. If the solicitor, instead of telegraphing to the sheriff 's officer, were to telegraph to some solicitor as his agent at the place, and tell him to go and give notice of the order, then the person affected would have the responsibility 151 of an officer of the Court for what he was doing. " This case well illustrates the difficulties of the parties against whom a prohibitive order is made when they are informed by a telegram about these orders having been made by the Court oven when the telegram was from a solicitor of the Court. The difficulties would be still greater if the telegram was one from a; person who is not a solicitor and therefore an officer of the Court. In The Seraglio(1) notice of the issue of warrant which was subsequently disobeyed was sent by telegram by the marshal to the customhouse officer at Plymouth who went on board the seraglio to inform those in charge of the ship. The master of the Seraglio, however by the owner 's order, left Plymouth with the custom house officer on board. The warrant was served on him subsequently. Sir James Hannon said at page 121. "It must be understood that a litigant cannot be disregard a notice sent to him by telegraph by an officer of the Court. " In none of the cases referred to, a party 1s said to have received information of the Court 's injunction order through any source having no connection with the court Passing the order. I would not like an extension if this, practice of holding a person guilty of contempt even though he is not served with the order, to cases in which his alleged knowledge of the order is dependent on the veracity of the witnesses examined by a party praying for action against the other. Conviction for contempt of Court must depend on unimpeachable evidence of the knowledge of the alleged contemner about the order said to have been disobeyed. In support of the note that it could be proved that the party proceeded against had notice of the (1) 152 order by newspaper report or otherwise, Oswald has referred to Daniell 's Chancery Practice, Vol '. 1, Edition 7, page 1368. That edition is not available, but in the 8th edition of that book, Vol. II, at page 1413, is noted the practice in urgent cases thus : "In such (urgent) cases, the practice is to serve the party enjoined personally with notice in writing that the injunction has been granted, and that the order will be drawn up and served as soon as it can be passed through the offices ; or else to procure a transcript of the minutes of the order signed by the Registrar, and to serve the same personally by delivering a copy of it, showing at the same time the original transcript so signed ; and either the notice or the copy of the minutes will be sufficient to render the defendant or other person enjoined guilty of a contempt, if he acts in opposition to the injunction. " I do not find any reference that knowledge of the party proceeded against through a newspaper report or otherwise, and not through Court, has been considered sufficient for contempt proceedings. Again, at page 1419, have been mentioned certain other means through which the party proceeded against could have been informed of the injunction order. They are practically those summarized in Oswald 's note. In the appeal before us, I am not satisfied that the appellants had been informed that the High Court had passed an order staying the delivery of possession in proceedings on the writ petition filed by respondent Gurbachan Singh. The communication made to the appellants about the stay order of the High Court is said to be through the applications and affidavit presented by Didar Singh to the appellants on May 20, 1958, and through a 153 chit said to have come from the advocate of the High Court regarding the injunction order. Didar Singh had put in another writ petition against his threatened dispossession by appellant No. 1 through appellant No. 2. There is said to have been ' a third writ petition by another person praying for similar relief. All these petitions were separately dealt with by the High Court. Separate stay orders were passed on them. These five affidavits, in view of their contents, are not sufficient to prove that the appellants had been informed through these documents that the High Court had extended the stay orders in all the three cases. viz., the cases on the writ applications of Gurbachan Singh, Didar Singh and another third person. No statement is made in any of the affidavits that the applications and affidavits presented to the appellants mentioned that the High Court had stayed the delivery of possession in all the three cases. It is not stated by Didar Singh and Mastan Singh what was written on the chit sent by the advocate of the High Court and whether that chit related to the order in the case of Didar Singh alone or referred to the orders in all the cases. As Didar Singh claimed a receipt for the presentation of the application and affidavit to appellant No. 2, the latter, after consulting the prosecuting inspector, went to appellant No. 1 for consultation and was advised to, return the application to Didar Singh if he insisted on getting a receipt. The application and the affidavit were therefore then returned to one Ganga Bishan. The chit alleged to have been sent by the High Court advocate has not been produced. The application presented to appellant No. 2 in the village and returned by him in the Sub Divisional Officer 's Court, though presumably in possession of Didar Singh, has not been filed. They would have indicated what their contents were. That 154 would have been the best evidence of what was conveyed to appellants Nos. 1 and 2. Ganga Bishan 's statement. that he had drafted the application addressed to appellant No. 2 to the effect that the stay order issued by the High Court in Jag Malera Namdhari cases had been extended, is not the best 'evidence of what the application (a fair copy presumably), actually contained, an application which is in the possession of Didar Singh. Of course, the application and affidavit presented to the Sub Divisional Officer, are in the possession of the State. No attempt was made by the respondent to summon them or to file certified copies of those documents in these proceedings in the absence of the best evidence, the documents, I am not prepared to hold that the application and affidavit filed by Didar Singh must have referred to all the cases. Normally, he had no business to refer to the stay orders in the other cases and to make prayer for the stay of delivery of possession in all the cases. He had to restrict his application and affidavit to his own case. Further, whatever was stated in the application and the affidavit,, in the nature of things, was not on the basis of personal knowledge of Didar Singh Didar Singh himself did not even have the telephonic communication with his counsel at Chandigarh. The telephonic communication was between Teja Singh and that counsel. Appellant No. 2 states and I see no reason to doubt that statement that in the background of the facts about the possession over the land he did not consider it advisable and safe to accept the statement of facts contained in the application or affidavit on its face value. Lastly, the presence of Ganga Bishan, Advocate, on the occasions of the presenting of the application and affidavit to appellants Nos. 1 and 2, is 155 stated in all the affidavits. But it is only in paragraph 5 of Didar Singh 's affidavit that it is stated that Babu Ganga Bishan, Advocate, presented the application and the affidavit to the Sub Divisional Officer. Ganga Bishan himself does not state so. It is not stated anywhere that Ganga Bishan had been engaged as counsel by Didar Singh. It would appear a bit unusual that 'in the presence of a duly appointed advocate, applications and affidavits be presented by Didar Singh personally and not through his counsel. On the basis of the statements and the affidavits, I am not prepared to hold that Galiga Bishan was the duly appointed counsel for Didar Singh. He may be accompanying Didar .Singh like other persons on account of his interest in the matter. Further, any request by him to the Sub Divisional Officer for passing the necessary orders on the application of Didar Singh, as stated by him in paragraph 3 of his affidavit, cannot lead to the conclusion that be professionally represented Didar Singh, as similar requests were made, according to his own affidavit, by the other persons also, who had accompanied Didar Singh to the Sub Divisional Officer 's Court. The Sub Divisional Officer, therefore, could not have treated his request to be a statement of fact about the High Court 's extending the stay order up to May 23, 1958. Ganga Bishan does not state that he told the Court that the High Court had extended the duration of the stay order or that he requested the Sub Divisional Officer, who is also the Sub Divisional Magistrate, to stay the delivery of possession in view of the application filed by Didar Singh. He simply states: "Several requests were made to the Sub Divisional Magistrate by us that necessary orders on the application presented to 156 him be made and the Managing Officer be called back." Even if Ganga Bishan bad stated that the High Court bad extended the order, his statement too, had no better value when he could not speak about that order on the basis of personal knowledge or on the basis of any communication to him by the Advocate of the High Court. He has not stated in his affidavit that he was present when the order was passed or that he had received any communication from the High Court Advocate. I am therefore of opinion that his merely accompanying Didar Singh and others did not invest any greater weight to the correctness of the statements made in the application and the affidavit. The public officers are not to blame if they do not take at face value what is contained in deliberately prepared applications and affidavits. I have already mentioned of the way in which the crucial basic fact to be mentioned in the petition for contempt proceedings against the appellants had not been mentioned and statements were made in a way which at first sight could lead to the impression that the delivery of possession had been made in defiance of the order of the High Court. I am therefore of opinion that it is not established the respondents did not rely on the statements in the application and the affidavit mala fide because they were bent upon delivering possession in defiance of the orders of the High Court. I find in this case that on May 16, orders of the High Court were obtained for serving the stay order upon the appellants through the petitioner respondent, but no such order was obtained for serving the order dated May 19. In view of the urgency of the matter, the respondent and others who bad obtained extension of the stay orders on 157 the 19th could have and should have obtained similar orders of the High Court for serving them. If that precaution had been taken %gain on May 19, 1958, probably what happened subsequently on the spot and thereafter, would not have taken place. I am therefore of opinion that the appellants committed no contempt of Court, and would allow their appeal. By COURT : In accordance with the opinion of the majority, the appeal fails and is dismissed. Appeal dismissed.	The appellants, one a Sub Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons. The first respondent forcibly occupied the land allotted to B. On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958. On May 16, 1958. the first respondent and others threatened with dispossession filed petitions in the High Court under article 226 of the constitution and obtained interim stay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Bench for admission. On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958. The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958. It was alleged that on May 20, 1938, the appellants, although informed of the second stay order by certain interested persons and the Advocate for one of the parties, formally dispossessed the respondent in disobedience of the Court 's order and handed over possession of the land to B. On the complaint of the respondent the High Court field that the .appellants were guilty of contempt of Court and, instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communication. The appellants appealed by special leave. Held, (per Das and Subba Rao, JJ.)that in a case of contempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted. It would be sufficient if it was proved that the party had notice of it aliunde. N.Baksi vs O. K. (Thosh, A. T. R. (19.)7) Patn. 528, referred to. 128 There may be circumstances where officials entrusted with the carrying out of a legal order might have valid reasons to doubt The authenticity of the order conveyed to them by interested parties. But in the present case there could hardly be any such reasons. The appellants had really no justification for doubting the authenticity of an order communicated to them by an Advocate. Held, further. that in a matter relating to contempt of court, there cannot be both justification and apology. shareef vs The Hon 'ble Judges of the High Court of Nagpur; , , referred to. Although the appellants might have honestly believed that they were not bound to bold their band in absence of an official communication, that would be no defence to the charge of contempt of court, but only a relevant consideration in awarding the sentence. Per Daval, J. Contempt proceedings are criminal or quasi criminal in nature and it is essential that before any action can be taken the accusation must be specified in character. In the instant case, the respondent did not state that he was formally dispossessed. This would 'be for some reason if actual posssssion had been delivered. He could not be said to have come to court with clean hands. Further, the finding of the High Court that the appellants delivered possession honestly believing that they were not bound not to do so in the absence or the official communication meant that there was no defiance of the High Court 's order. There could be no willful disobedience since there was no belief in the existence of the order. It may not be necessary that the party against whom a prohibitory order was made must be served with the order, but it should have notice of the order before it could be expected to obey. Such notice must be from sources connected with the court passing the order. The alleged knowledge of the party cannot be made, to depend on the veracity of the witnesses examined by the party praying for action. In re Bryant L.R (1987 6) In Ex Parte Langly, Exparte Smith. In re Bishop L. R. and The Seraglio. L. R. , discussed.
Appeal No. 729 of 1964. Appeal by special leave from the order dated February 1964 of the Rajasthan High Court in D.B. Civil Appeal No. 2 of 1963. O. P. Varma, for the appellants. Mohan Behari Lal, for the respondent. The Judgment of the Court was delivered by Gajendradkar, C.J. This appeal by special leave arises from an application made by the respondent Puniya in the Court of the Senior Civil Judge at Jhalawar under section 25 of the (No. 8 of 1890) (hereinafter called 'the Act '), for the custody of his daughter Mt. Chitra. To this application, the 103 respondent had impleaded the two appellants, Gulab Bai and her, husband Onkar Lal. The respondent is a Kumhar by caste, whereas the appellants are fat. The respondent 's case was that the minor Chitra who was about 11 years of age at the date of the application, had been living with the appellants for the last 4 or 5 years with his consent. Whilst the minor girl was living with the appellants, she used to come to spend some time with the respondent and his wife; but for some time past, the appellants did not allow Chitra to visit her parents. That is why the respondent thought it necessary to move the Court for an order under section 25 of the Act. The claim thus made by the respondent was disputed by the appellants. They alleged that the respondent and his wife had lost some children in their infancy, and so, they decided to leave the minor in the custody of the appellants, in the hope that their custody would save the child. Accordingly, the minor was entrusted to the appellants a few hours after her birth and in fact, she was given away by the respondent and his wife to the appellants to be looked after as if she was their adopted child. During all these years, the appellants have looked after the minor as their own child, have taken fond care of her, and have looked after her education. The appellants. and the respondent and his wife are neighbours, and the appellants denied the allegation made by the respondent that they ever obstructed the minor from visiting her parents. According to the appellants, recently an unfortunate incident had taken place between appellant No. 1 and the wife of the respondent and that was the real cause of the present application. They pleaded that as a result of the ugly incident that took place between the two ladies, the minor was frightened and appeared to be disinclined to visit her parents any longer. On these pleadings, the parties led evidence to support their respective contentions. The learned trial Judge held that the child had been entrusted to the appellants soon after she was born, and that she was looked after by the appellants as if she was their daughter. He felt satisfied that in case the child was removed from the homely atmosphere which she enjoyed in the house of the appellants, that would definitely be detrimental to her welfare and would also affect her health, because she had come to look upon the appellants as her parents. The learned trial Judge examined the child in order to ascertain her own wishes, because he thought that she had attained the age of discretion and could express her wishes intelligently. He was convinced that the child definitely preferred to stay with the appellants. Having come to the conclusion that it would be inconsistent with the interests of the child to allow the application made by the respondent, the learned Judge ordered that 104 appellant No. 2 should be appointed the guardian of the person of the minor under sections 7 and 8 of the Act. He directed that the said Guardian shall give an undertaking to the. Court not to remove the child from the territorial jurisdiction of the Court and not to marry her without the permission of the Court. A direction was also issued that the child shall not, of course, be married outside her caste without the consent of her parents even if she so desires. Against this order, the respondent preferred an appeal before the Rajasthan High Court. This appeal was heard by a learned single Judge of the said High Court who reversed the decision of the trial Judge. He came to the conclusion that it would be in the interests of the minor to deliver her to the custody of the respondent and his wife. He held that under section 6 (a) of the Hindu Minority and Guardianship Act, 1958, the respondent was entitled to be the guardian of his daughter in the absence of any allegation or proof that he was in any way unsuitable to be such a guardian. The learned single Judge also took into account the fact that the appellants and the respondent belonged to different castes. and he held that since the minor was then about 12 years of age, it was in her interest that she went back to be looked after by her own parents. ion this view, the learned single Judge set aside the order passed by the learned trial Judge by which appellant No. 2 was appointed the guardian of the minor and directed him to deliver the minor to the custody of the respondent. The order passed by the learned Judge further provided that if the appellants did not deliver the minor Chitra to her parents on the expiry of three months, the respondent shall apply for execution of the order and that it would be executed as a decree under section 25 (2) of the Act by issue of a warrant under section 100 of the Code of Criminal Procedure. Against this decision, the appellants preferred an appeal under clause 18 of the Rajasthan High Court Ordinance, 1949 (No. 15 of 1949) (hereafter called 'the Ordinance '). This appeal was dismissed by a Division Bench of the High Court on the ground that the appeal was incompetent having regard to the provisions of sections 47 and 48 of the Act. The appellants then moved the High Court for certificate to prefer an appeal to this Court, but the said application was dismissed. That is how the appellants applied for and obtained special leave from this Court, and it is with the said leave that this appeal has come before us. The short question of law which arises for our decision is whether the High Court was right in holding that the appeal under clause 18 (1) of the Ordinance was incompetent and that raises the question about the construction of sections 47 and 48 of the Act. 105 Before dealing with this point, two relevant facts ought to be mentioned. The Act was extended to Rajasthan by the Part B States (Laws) Act, 1951 (Act III of 1951) on the 23rd February; 1951; but before the Act was thus extended to Rajasthan, the Ordinance had already been promulgated. Clause 18(1) of the Ordinance provides, inter alia, that an appeal shall lie to the High Court from the judgment of one Judge of the High Court; it excepts from the purview of this provision certain other judgments with which we are not concerned. It is common ground that the judgment pronounced by the learned single Judge of the High Court on the appeal preferred by the respondent before the High Court, does not fall within the category of the exceptions provided by clause 1 8 ( 1 ) of the ordinance; so that if the question about the competence of the appeal preferred by the appellants before the Division Bench of the High Court had fallen to be considered solely by reference to clause 18(1), the answer to the point raised by the appellants before us would have to be given in their favour. The High Court has, however, held that the result of reading sections 47 and 48 together is to make the present appeal under clause 18(1) of the Ordinance incompetent. The question which arises before us is : is this view of the High Court right ? Section 47 of the Act provides that an appeal shall lie to the High Court from an order made by a Court under sections specified in clauses (a) to (j) thereof. Clause (c) of the said section refers to an appeal against. an order made under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian. It is thus clear that the order passed by the learned trial Judge in the present proceedings was an order under section 25 of the Act, and as such, is appealable under section 47; and when as a result of the rules framed by the Rajasthan High Court the present appeal was placed before a learned single Judge of the said High Court for hearing and was decided by him, his decision became appealable to a Division Bench of the said High Court under cl. 1 8 (1 ) of the Ordinance. Thus far, there is no difficulty or doubt. But the High Court has held that section 48 of the Act, in substance, amounts to a prohibition against an appeal to a Division Bench under cl. 18(1) of the Ordinance; and that makes it necessary to examine the provisions of section 48 carefully. Section 48 reads thus "Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, an order made under this Act I shall be final, and shall not be liable to be contested by suit or otherwise. " 106 It is clear that what is made final by section 48 is an order made under this Act; and the context shows that it is an order made by the trial Court under one or the other provision of the Act. This position is made perfectly clear if the first part of section 48 is examined. The finality prescribed for the order made under this Act is subject to the provisions of section 47 and section 622 of the earlier Code which corresponds to section 115 of the present Code. In other words, the saving clause unambiguously means that an order passed by the trial Court shall be final, except in cases where an appeal is taken against the said order under section 47 of the Act, or the propriety, validity, or legality of the said order is challenged by a revision application preferred under section II 5 of the Code. It is, therefore, essential to bear in mind that the scope and purpose of 'section 48 is to make the orders passed by the trial Court under the relevant provisions of the Act final, subject to the result of the appeals which may be preferred against them, or subject to the result of the revision applications which may be filed against them. In other words, an order passed on appeal under section 47 of the Act, or an order passed in revision under section II 5 of the Code, are, strictly speaking, outside the purview of the finality prescribed for the orders passed under the Act, plainly because they would be final by themselves without any such provision, subject, of course, to any appeal provided by law or by a constitutional pro vision, as for instance, article 136. The construction of section 48, therefore, is that it attaches finality to the orders passed by the trial Court subject to the provisions prescribed by section 47 of the Act, and section 115 of the Code. That is one aspect of the matter which is material. The other aspect of the matter which is equally material is that the provisions of section 47 are expressly saved by section 48, and that means that section 47 will work out in an ordinary way without any restriction imposed by, section 48. In considering the question as to whether a judgment pronounced by a single Judge in an appeal preferred before the High Court against one or the other of the orders which are made appealable by section 47 will be subject to an appeal under clause 1 8 (1) of the Ordinance, section 48 will have no restrictive impact. The competence of an appeal before the Division Bench will have to be judged by the provisions of cl. 18 itself. Section 48 saves the provisions of section 47, and as we have already indicated, considered by themselves the provisions of section 47 undoubtedly do not create any bar against the competence of an appeal under cl. 18(1) of the Ordinance where the appeal permitted by section 47 is heard by a learned single Judge of the High Court. Therefore, we are satisfied that the High Court was in error in coming to the conclusion that an appeal before a Division Bench of the said High Court under clause 18 (1) of the Ordinance was incompetent. 107 It is true that in upholding the respondent 's plea that the appeal preferred by the appellants under clause 18(1) of the Ordinance was incompetent, the High Court has no doubt purported to rely upon and apply its earlier decision in the case of Temple of Shri Bankteshwar Balai Through Rampal vs The Collector, Ajmer(1). The said decision, however, was concerned with the effect of the provisions prescribed by section 66(3) of the Ajmer Abolition of Intermediaries and Land Reforms Act (No. III of 1955) in relation to clause 18 of the Ordinance, and since we are not called upon to consider the correctness of the conclusion reached in that behalf, it is unnecessary for us to examine whether the High Court was right in holding that the provisions of the said section 66(3) created a bar against the competence of the appeal under cl. 18(1) of the Ordinance. All that we are concerned to deal with in the present appeal is the effect of section 48 of the Act, and in our opinion, the High Court was in error in holding that section 48 excluded the application of clause 1 8 (1) of the Ordinance to the decision of the learned single Judge in the present proceedings. In this connection, we may incidentally refer to the decision of this Court in Union of India vs Mohindra Supply Company(1). In that case, this Court has held that an appeal against the appellate order of the single Judge was barred under section 39(2) of the Indian , because the expression "second appeal" in section 39(2) means a further appeal from an order passed in appeal under section 39 (1) and not an appeal under section 100 of the Code, and as such, the said expression "second appeal" includes an appeal under the Letters Patent. In substance. the effect of the decision of this Court in the case of Mohindra Supply Co.(2) is that by enacting section 39(2) the has prohibited an appeal under the Letters Patent against an order passed under section 39 (1). This decision again turned upon the specific words used it section 39(1) & (2) of the and is not of any assistance in interpreting the provisions of section 48 of the Act with which. we are concerned in the present proceedings. The question a,, to whether an appeal permitted by the relevant clause of the Letters Patent of a High Court can be taken away by implication, had been considered in relation to the provisions of section 588 of the Codes of Civil Procedure of 1877 and 1882. The first part of the said section had provided for an appeal from the orders specified by clauses (1) to (29) thereof, and the latter part of the said section had laid down that the orders passed in appeals under this section shall be final. Before the enactment of (1) LL.R. (2) ; Sup CI/66 8 108 the present Code, High Courts in India had occasion to consider whether the provision as to the finality of the appellate orders prescribed by section 588 precluded an appeal under the relevant clauses of the Letters Patent of different High Courts. There was a conflict of decisions on this point. When the matter was raised before the Privy Council in Harrish Chunder Chowdhry vs Kali Sundari Debia(1), the Privy Council thus tersely expressed its conclusion: "It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the Full Court". Basing themselves on these observations, the High Courts of Calcutta, Madras, and Bombay had held that section 588 did not take away the right of appeal given by clause 15 of the Letters Patent, vide Toolsee Money Dassee & Others vs Sudevi Dassee & Others(2), Sabhapathi Chetti & Others vs Narayanasami Chetti(3), and The Secretary of State for India in Council vs Jehangir Maneckji Cursetji (4 ) respectively. On the other hand, the Allahabad High Court took a different view, vide Banno Bibi and others vs Mehdi Husain and Others(5), and Muhammad Naim ul Lah Khan vs Ihsan Ullah Khan(6). Ultimately, when the present Code was enacted, section 104 took the place of section 588 of the earlier Code. Section 104(1) provides that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders. It will be noticed that the saving clause which refers to the provisions of the Code, or to the provi sions of an law for the time being in force, gives effect to the view taken by the Calcutta, Madras and Bombay High Courts. In fact, later, the Allahabad High Court itself has accepted the same view in L. Ram Sarup vs Mt. Kaniz Ummehani (7 ). We have referred to these decisions to emphasise the fact that even where the relevant provision of section 5 8 8 of the earlier Code made certain appellate orders final, the consensus of judicial opinion was that the said provision did not preclude an appeal being filed under the relevant clause of the Letters Patent of the High Court. In the present case, as we have already indicated, section 48 in terms saves the provisions of section 47 of the Act as well as those of section 115 of the (1) 10 I.A. 4 at p. 17. (2) (3) (1902))5 Mad. (4) (5) (1889) 11 Alld. (6) (1892) 14 AIId. 226 (F.P.) (7) A.I.R. 1937 Alld. 109 Code, and that gives full scope to an appeal under clause 18 of the Ordinance which would be competent when we deal with the question about appeals under section 47 of the Act considered by itself. The result is, the appeal is allowed, the order passed by the Division Bench of the High Court dismissing the appeal preferred by the appellants under cl. 18(1) of the Ordinance on the ground that it is incompetent, is set aside, and the said appeal is remitted to the High Court for disposal in accordance with law. In view of the unusual circumstances of this case, we direct that parties should bear their own costs incurred so far.	The respondent 's application under section 25 of the Guardians and Wards Act for the custody of respondent 's daughter was rejected by the Civil Judge. When the decision was reversed in appeal by a single Judge of the Rajasthan High Court, the appellants preferred an appeal to the Division Bench under cl. 18 of the Rajasthan High Court Ordinance. This was dismissed on the ground that the appeal was incompetent having regard to sq. 47 and 48 of the Guardians and Wards Act. In appeal to this Court, HELD:The appeal before the Division Bench of the Rajasthan High Court under cl. 18(1) of the Ordinance was competent. [106 H] The competence of an appeal before the Division Bench will have to be judged by the provisions of cl. 18 of the Ordinance itself and section 48 of the Act has no restrictive impact. Section 48 saves the provisions of section 47 of the Act and section 115 of the Code of Civil Procedure; and considered by themselves the provisions of section 47 do not create any bar against the competence of an appeal under cl. 18(1) of the Ordinance where the appeal permitted by section 47 is heard by a single Judge. [106 G] Section 48 attaches finality to the order passed by the trial Court subject to the provisions prescribed by section 47 of the Act and section 115 of the Code of Civil Procedure. [106 E]
ivil Appeals Nos. 1266 & 1267 of 1969. From the Judgment and order dated the 29th July, 1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 61 of 1967 H. K. Puri and K. K. Mohan, for the appellant 264 D. Goburdhan, for respondent Nos. 1 and 2 (In both the appear) Respondent No. 21 (In C.A. No. 1266/69) and for respondent No. 60 (in C.A. No. 1267/69). A. K. Nag, for respondent Nos. 3 19 (In C.A. No. 1266/69) and for respondent Nos, 4, S, 7 9, 11 32, 35 42, 44 52, 54 58 (In C.A. No. 1267/69). The Judgment of the Court was delivered by ALAGIRISWAMI, J. By two notifications dated 22 6 65 and 28 8 65 the Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, applications in respect of 73 workers of the appellant for decision under section 33C(2) of the Industrial disputes Act for retrenchment compensation. The employer contended that it was a case of closure for reasons beyond its control and that therefore the workmen were entitled to compensation under the proviso to subsection (1) of section 25FFF of the Act and not to retrenchment compensation workers contended, however, that they were entitled to retrenchment compensation under s.25F. The Labour Court held that it was a case of retrenchment. Two writ petitions filed by the employer before the High Court of Patna failed and these appeals have been filed in pursuance of a certificate of fitness granted by the High Court. The argument on behalf of the appellant is that where there is a dispute before the Labour Court considering an application under section 33C(2) as to whether the workmen had been retrenched or the factory had been closed for reasons beyond the control of the employer, it was not a matter which the Labour Court was competent to decide and that it was a matter which only an Industrial Tribunal considering a reference under section 10 is competent to decide. In particular Item 10 of the Third Schedule to the Act is relied upon to show that the matter relating to retrenchment and closure is one which only an Industrial Tribunal is competent to decide. Reliance is placed upon a decision of this Court in U.P. Elect. Co. vs R. K. Shukla(1) where it was held that the power of the Labour Court is to complete the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen, that where retrenchment is conceded and the only matter in dispute is that by virtue of section 25FFF no liability to pay compensation has arisen the Labour Court will be competent to decide the question, that in such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability, and that where the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, the Labour Curt will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested. In the U.P. Electric Company case (supra) the facts were somewhat different. The Court in that case noticed at page 513 of the report that "The company had expressly raised a contention that they had not retrenched the workmen and that the workmen had 265 voluntarily abandoned the Company 's service by seeking employment with the Board even before the company closed its undertaking". This Court emphasised at page 5l7 of the report that If the liability arises from an award, settlement or under the provisions of Ch. V A or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33C(2) before the Labour Court". We, therefore, do not see how the decision in the U.P. Electric Company 's case (supra) can come to the aid of the appellant in this case. The said case is clearly distinguishable on the peculiar facts as noticed above. In Central Bank of India Ltd vs P. section Rajagopalan(1) this Court considered the scope of section 33C(2) elaborately and it would be necessary to quote at some length from that decision. In that case it was urged by the employer that section 33C(2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute between the parties and that the only point which the labour Court can determine is one in relation to computation of the benefit ill terms of money. This Court observed: "We are not impressed by this argument. In our opinion on a fair and reasonable construction of sub section (2) it is clear that if a workman 's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed the Labour Court must deal with that question and decide whether workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making necessary computation can arise. It seems to us that the opening clause of sub section (2) docs not admit of the construction for which the appellant contends unless we add some words in that clause. The clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be. entitled to receive such benefit. " The appellant 's constructional would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, if seems to us that is the appellant 's construction is accepted it would necessarily mean that 266 it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman 's application. The claim under section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub s.(2). As Maxwell in Interpretation of Statutes, p. 350, has observed 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution; we must accordingly hold that section 33C(2) takes within its purview case of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub s (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub section On the other hand, sub s.(3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour of Court under sub section Further on this Court observed: "It is thus clear that claims made under s.33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in s.33C(2) and to that extent, the scope of section 33C(2) is undoubtedly wider than that of section 33C(1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under section 33C(2). There is no doubt that the three categories of claims mentioned in section 33C (1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under section 33C(2) and that may illustrate its wider scope." This Court then went on to discuss some of the claims which would not fall under s.33C(2), which is not very relevant for the purposes of this case. The present case stand on an even stronger footing. Even the employer does not dispute that the workmen are entitled to compensation. It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim. The claim also falls under Chapter VA. 267 In the decision in South Arcot, Elect. Co. vs N. K. Khan(1) where a right had been claimed by the various workmen in their applications under section 33C(2), it was held that it was a right which accured to them under s.25FF of the Act and was an existing right at the time when these applications were made, that the Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision, and that the mere denial of that by the company could not take away its jurisdiction. We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub section (1) of section 25FFF was attracted on closure of the establishment. The question even according to the employer falls under section 25FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied. We do not consider that the reference to item No. 10 of the Third Schedule to the Act can decide the matter one way or the other. The item reads as follows: "10. Retrenchment of workmen and closure of establishment It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal. Logically if the contentions is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction. This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was to closure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of their services and ask for compensation. The only dispute is about the compensation whether it is to be paid under s.25F or 25FFF. Item 10 of Third Schedule will not cover such a case. We therefore uphold the decision of the High Court and dismiss these appeals with costs. V.M.K. Appeals dismissed.	The Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, application in respect of 73 workers of the appellant for decision under sec. 33C(2) of the for retrenchment compensation. The contention of the appellant was that it was a case of closer for reasons beyond its control and that, therefore, the workmen were entitled to compensation under the proviso to sub section (1) of sec. 25FFF of the Act and not to retrenchment compensation. The workers contended that they were entitled to retrenchment compensation under sec. 25F. The Labour Court held that it was a case of retrenchment. The writ petitions filed by the employer in the High Court has failed and these appeals have been preferred to this Court on the basis of the certificate of fitness granted by the High Court. Dismissing the appeals, ^ HELD : (i) It was competent to the Labour Court to decade whether the case before it was a case of retrenchment compensation or the proviso to sub sec. (1) of section 25FFF was attracted on closure of the establishment. Even the employer does not dispute that the workmen are entitled to compensation. It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim. The claim also falls under Chapter VA of the Act. [266H; 267B C] Central Bank of India Ltd. vs P. section Rajagopalan ; relied on. U.P. Electric Company vs R. K. Shukla [1970] 1 S.C.R. 507 and South Arcot Elect. Co. vs N. K. Khan [1969] 2 S.C.R. 902, referred to. (ii) Item No. 10 of the Third Schedule to the Act does not say that all questions arising out of retrenchment of workmen and closure of establishment have to be decided by Industrial Tribunal. This entry refers to cases where the right to retrench workers or to lose an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenchment workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on basis that the so called closure was no closure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of the services and ask for compensation. The only dispute is about the compensation whether it is to be paid under section 25F or 25FFF. Item 10 of Third schedule will not cover such a case. [267D G]
Appeal No. 91 of 1976. From the Judgment and Order dated 15.4. 1975 of the Punjab and Haryana High Court in I.T. Reference No. 14 of 1972. Bishamber Lal and Ms. Geetanjali Madan for the Appellant. Gauri Shanker, Manoj Arora, section Rajappa and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the Punjab and Haryana High Court dated 15.4.1975 answering the Income Tax Reference made to it by the Income Tax Appellate Tribunal. Briefly, the facts giving rise to this appeal are that the appellant Saraswati Industrial Syndicate is a limited company carrying on business of manufacturing and sale of sugar and machinery for sugar mills and other industries. Another company, namely, the Indian Sugar and General Engi neering Corporation (hereinafter referred to as 'the Indian Sugar Company ') was also manufacturing machinery parts for sugar mills. On 28th September 1962 under the orders of the High Court the Indian Sugar Company was amalgamated with the appellant company. After the amalgamation, the Indian Sugar Company lost its identity, as it did not carry on any busi ness. Prior to the amalgamation, the Indian Sugar Company had been allowed expenditure to the extent of Rs.58,735 on accrual basis in its earlier assessment. The company had shown the aforesaid amount as a trading liability and the said trading liability was taken over by the appellant company. After amalgamation, the appellant company claimed exemption on the amount of Rs.58,735 from income tax for the assessment year 1965 66 on the ground that the amalgamated 335 company was not liable to pay tax under Section 41(1) of the Income Tax Act 1961 (hereinafter referred to as 'the Act ') as the expenditure had been allowed to the erstwhile Indian Sugar Company which was a different entity from the amalga mated company. The Income Tax Officer disallowed the appel lant 's claim for exemption. The assessee filed appeal before the Appellate Assistant Commissioner who confirmed the order of the Income Tax Officer. The assessee, thereafter, pre ferred appeal before the Income Tax Appellate Tribunal. The Tribunal allowed the appeal on the construction of Section 41(1) of the Act. The Tribunal held that after the amalgama tion of the Indian Sugar Company with the assessee company the identity of the amalgamating company was lost and it was no longer in existence, therefore, the assessee company was a different entity not liable to tax on the aforesaid amount of Rs.58,735. On the Department 's application the Tribunal referred the following question to the High Court: "Whether on the facts and circumstances of the case the Tribunal was justified in law in holding that the amount of Rs.58,735 was not chargeable to tax under sub section (1) of Section 41 of the Income Tax Act 1961 for the assessment year 1965 66?" The High Court answered the question in favour of the Reve nue holding that the exemption from tax liability claimed by the appellant assessee was chargeable to tax under Section 41(1) of the Act. The High Court held that on the amalgama tion of the two companies, neither of them ceased to exist instead both the amalgamating companies continued their entities in a blended form. It further held that the amalga mated company was a successor in interest of amalgamating company and since the assets of both the companies were merged and blended to constitute a new company the liabili ties attaching thereto must, therefore be, on the amalgamat ed company. On these findings the High Court held that the amalgamated company, namely, the assessee was liable to pay tax on Rs.58,735 which came into its hands from the assets of the Indian Sugar Company. The assessee made application before the High Court under Section 261 of the Act read with Section 109 of the Code of Civil Procedure for certificate to appeal to this Court but the High Court dismissed the same. The appellant, thereupon, approached this Court by means of special leave petition under Article 136 of the Constitution. This Court granted leave. Hence this appeal. Section 41(1) of the Act reads as under: 336 1(1). Whether an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee, and subsequently during any previous year the assessee has obtained. whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by him or the ' value of benefit accruing to him, shall be deemed to be profits and gains of business or profession and accord ingly chargeable to income tax as the income of that previ ous year, whether the business or profession in respect of which the allowance or deduction has been made is in exist ence in that year or not ." Section 41(1) has been enacted for charging tax on profits made by an assessee, but it applies to the assessee to whom the trading liability may have been allowed in the previous year. If the assessee to whom the trading liability may have been allowed as a business expenditure in the previous year ceases to be in existence or if the assessee is changed on account of the death of the earlier assessees the income received in the year subsequent to the previous year or the accounting year cannot be treated as income received by the assessee. In order to attract the provisions of Section 41(1) for enforcing the tax liability, the identity of the assessee in the previous year and the subsequent year must be the same. If there is any change in the identity of the assessee there would be no tax liability under the provi sions of Section 41. In Commissioner of Income Tax, Madhya Pradesh vs Hukumchand Mohanlal, this Court held that the Act did not contain any provision making a succes sor in a business or the legal representative of an assessee to whom the allowance may have been already granted liable to tax under Section 41(1) in respect of the amount remitted on receipt by the successor or by the legal representative. ln that case the wife of the assessee on the death of her husband succeeded to the business carried on by him. Another firm which had recovered certain amounts towards the sales tax from the assessee 's husband succeeded in an appeal against its sales tax assessment and thereupon the firm refunded that amount to the assessee which was received during the relevant accounting period. The question arose whether the amount so received by the assessee could be assessed in her hands as a deemed profit under Section 41(1) of the Act. This Court held that Section 41 did not apply because the assessee sought to be taxed was not the assessee as contemplated by Section 41(1) as the husband of the asses 337 see had died, therefore the Revenue could not take advantage of the provisions of Section 41(1) of the Act. The question is whether on the amalgamation of the Indian Sugar Company with the appellant company, the Indian Sugar Company continued to have its entity and was alive for the purposes of Section 41(1) of the Act. The amalgamation of the two companies was effected under the order of the High Court in proceedings under Section 391 read with Sec tion 394 of the . The Saraswati Industrial Syndicate, the transferee company was a subsidiary of the Indian Sugar Company, namely, the transferor company. Under the scheme of amalgamation the Indian Sugar Company stood dissolved on 29th October, 1962 and it ceased to be in existence thereafter. Though the scheme provided that the transferee company the Saraswati Industrial Syndicate Ltd. undertook to meet any liability of the Indian Sugar Company which that company incurred or it could incur, any liabili ty, before the dissolution or not thereafter. Generally, where only one company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or 'amalgamation ' has no precise legal mean ing. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending company become substantially the share holders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly 'amalgamation ' does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsbury 's Laws of Eng land, 4th Edition Vol. 7 Para 1539. Two companies may join to form a new company, but there may be absorption or blend ing of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity. In M/s. General Radio and Appliances Co. Ltd. & Ors. M.A. Khader (dead) by Lrs., [1986] 2 S.C.C. 656, the effect of amalgamation of 338 two companies was considered. M/s. General Radio and Appli ances Co. Ltd. was tenant of a premises under an agreement providing that the tenant shall not sub let the premises or any portion thereof to anyone without the consent of the landlord. M/s. General Radio and Appliances Co. Ltd. was amalgamated with M/s. National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under Sections 391 and 394 of . Under the amalgamation scheme, the transferee company, namely, M/s. National Ekco Radio and Engineering Company had acquired all the interest, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company. Pursuant to the amalgamation scheme the transferee company continued to occupy the prem ises which had been let out to the transferor company. The landlord initiated proceedings for the eviction on the ground of unauthorised sub letting of the premises by the transferor company. The transferee company set up a defence that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including lease hold and tenancy rights held by the transferor company blended with the transferee company, therefore the transfer ee company was legal tenant and there was no question of any sub letting. The Rent Controller and the High Court both decreed the landlord 's suit. This Court in appeal held that under the order of amalgamation made on the basis of the High Court 's order, the transferor company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company ac quired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case the Tribunal rightly held that the appellant company was a separate entity and a different assessee, therefore, the allowance made to Indian Sugar Company, which was a different asses see, could not be held to be the income of the amalgamated company for purposes of Section 41(1) of the Act. The High Court was in error in holding that even after amalgamation of two companies, the transferor company did not become non existent instead it continued its entity in a blended form with the appellant company. The High Court 's view that on amalgamation 'there is no complete destruction of corpo rate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that when two compa nies 339 amalgamate and merge into one the transferor company loses its entity as it ceases to have its business. However, their respective rights of liabilities are determined under scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amal gamation is made effective. In view of the above discussion, we agree with the Tribunal 's view that the amalgamating company ceased to exist in the eye of law, therefore the appellant was not liable to pay tax on the amount of Rs.58,735. The appeal is accordingly allowed and we set aside the order of the High Court and answer the question in favour of the assessee against the Revenue. There will be no order as to costs. V.P.R Appeal allowed.	Under the scheme of amalgamation and order of the High Court under Sections 391 and 394 of the on 28.9.1962 one Indian Sugar Company was amalgamated with the appellant assessee company. The transferor company had been allowed expenditure to the extent of Rs.58,734. The appellant transferee company claimed exemption on the amount of Rs.58,735 from income tax for the assessment year of 1965 66 on the ground that the amalgamated transferee compa ny was not liable to pay tax under Section 41(1) of the Income tax Act, as the expenditure had been allowed to the erstwhile transferor company. The claim was disallowed by the Income Tax Officer. The transferee appellant company 's appeal was also rejected by the Appellate Assistant Commis sioner. The appellant company preferred appeal before the Income Tax Tribunal which was allowed on the ground that after amalgamation, the transferor company 's identity was lost and it was no longer in existence and the transferee company was a different entity. When the question was referred to the High Court, it answered the reference in favour of the Revenue, holding that on amalgamation of the two companies, neither of them ceased to exist, instead both the companies continued their entities in a blended form and the amalgamated company was a successor in interest of the amalgamating company. 333 The Appellant Company 's application under Section 291 of the Income Tax Act read with Section 109, Code of Civil Procedure was dismissed by the High Court. Hence the present appeal. Allowing the appeal of the assessee Appellant company, this Court, HELD: 1. Section 41(1) has been enacted for charging tax on profits made by an assessee, but it applies to the asses see to whom the trading liability may have been allowed in the previous year. If the assessee to whom the trading liability may have been allowed as a business expenditure in the previous year ceases to be in existence or if the asses see is changed on account of the death of the earlier asses sees the income received in the year subsequent to the previous year or the accounting year cannot be treated as income received by the assessee. [146C E] 2. In order to attract the provisions of Section 41(1) for enforcing the tax liability, the identity of the asses see in the previous year and the subsequent year must be the same. If there is any change in the identity of the assessee there would be no tax liability under the provisions of Section 41. [146E] 3. Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into the other or blended with another, the amalga mating company loses its entity. [147G] 4. After the amalgamation of two companies the transfer or company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. [148E] 5. The true effect and character of the amalgamation largely depends on the terms of.the scheme of merger. But there can be no doubt that when two companies amalgamate and merge into one, the transferor company loses its entity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amal gamation is made effective. [148H; 149A B] 334 Commissioner of Income Tax, Madhya Pradesh vs Hukumchand Mohanlal, and M/s. General Radio and Appliances Co. Ltd. & Ors. vs M.A. Khader (dead) by L.rs., [1986] 2 S.C.C. 656; followed. Halsbury 's Laws of England, 4th Edition Vol. 7 Para 1539; referred to.
Appeal No. 1527 of 1974. Appeal by Special Leave from the Judgment & Order dated the 14th December, 1973 of the Delhi High Court in Civil Writ No. 1678 of 1967. F. section Nariman, Addl. Gen. of India, D. N. Mukherjee and R. N. Sahthey, for the Appellants. N. A. Palkhiala, Ravinder Narain, J. B. Dadachanji, O. C. Mathur, K. J. John and K. R. Jhaveri, for the Respondent. 419 The Judgment of the, Court was delivered by Goswami, J. This appeal is by special leave from the judgment of the Delhi High Court in a writ application there under article, 226 of the Constitution. The respondent manufactures various other items hot rolled finished steel products in rectangular cross section of thickness varying between 1.7 mm and 6.55 mm and width varying between 16.2 mm and 311.2 mm and rolled in coils which it supplies to the, Indian Tube Company Limited at Jamshedpur for making tubes and also to others. This article is subjected to Central Excise Duty under the (hereinafter called the Act). The dispute between the respondent and the appellants is that while the former describes the said manufactured product as strip the appellants classify it as skelp. This difference in classifying the product differently results in fiscal misfortune to the respondent since skelp is subjected to a higher Central Excise Duty than strip. It may be stated that during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of,duty From February 19, 1964, the respondent claimed that the aforesaid product be classified as strip since there. had been a levy of higher duty for skelp. The Assistant Collector, Central Excise, Jamshedpur, who is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp. That led to the successful writ application of the respondent in the High Court resulting in this appeal. In the forefront of his argument the learned Additional Solicitor General for the appellants relying upon two decisions of this Court, namely, The Collector of Customs, Madras vs K. Ganga Setty(1) and V. V. Iyer of Bombay vs Jasjit Singh, Collector of Customs and Another,(2) submitted that "it is primarily for the taxing authorities to determine the heads or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt i.e., if the construction was preverse then it was a case in which the Court was competent to interfere. In other worlds, if there were two constructions which an entry could reasonably bear, and, one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt '. On the other hand with equal emphasis Mr. Palkhivala for the respondent submitted that an assessment without the application of an identifiable test is nothing but perverse and arbitrary. He submits that in the present case there was no identifiable test before the taxing authorities by which the (1) ; (2) 420 product of the, respondent could be held to be skelp and not strip subjecting the respondent to a heavier duty. According to the learned counsel there is no difference. between sklep and strip, the two items being interchangeable. It may be, noted for our purpose that under section 3 of the Act Central excise Duties are leviable on all excisable goods which are produced or manufactured in India at the rates set out in the First Schedule. Item No. 26AA in that Schedule relates to iron and steel products and mentions in sub item (iii) therein flats, skelp and strips showing the rate of duty in the third column. Under rule 8 of the Central Excise Rules, 1944, made under section 37 of the Act, the Central Government may from time to time by notification in the official gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from whole or any part of the duty leviable on such goods. In exercise of the power under this rule the Central Government has made such exemptions in the rates of duty as have made it higher on skelp than on strip. Before we proceed further we may notice how the various Excise authorities dealt with the matter at different.stages. The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964. According to him "skelp is the name used in reference to a plate of wrought iron or steel used for making pipe or tubing by rolling the skelp into shape and lap welding or brevetting ,edges together and strip is a term used to describe a flat rolled product of smaller cross section than sheet or bar." He accordingly adopted the definition given in Marymen 's Dictionary of Metallurgy. The order of the Collector of Central Excise in appeal made on October 24/29, 1964, shows that the authority noted the definition of strip as follows : "Hot or cold rolled finished steel product in rectangular cross section of thickness below 5 mm and of width below 800 mm and supplied, in straight length". This definition is substantially in. conformity with the one given by the Indian Standards Institution (ISI). The appellate authority held that "since the products have not satisfied the above specifications, they have been correctly, classified as 'skelp ' by. the Assistant Collec tor. Then comes the order in revision of the Central Government of August 18, 1967. Inter alia it was held that "the product does have bevel edge, .; peculiar to skelp and not found in strips. Under the circumstances, there is no doubt whatever that the product in question is correctly classified as skelp". From the above three orders it is clear that the authorities were not at all certain about a uniform definition of 'skelp ' distinguishing it from 'strip. Extensive arguments were advanced at the bar with regard to the definitions of there two words. We may, therefore, look 421 at the various definitions to which our attention has been drawn. Since the appellants largely upon the definitions given by the Indian Standards Institution, "an expert body", we will first note these definitions. The ISI 's definitions of strip and skelp as given in IS 1956 1962 (amended upto July 1968) are as follows Upto 1965 the ISI gave, no description of strip. It had defined skelp in 1962 as follows: Skelp. "Hot rolled narrow strip with rolled (square, slightly round or beveled) edge. Strip . A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edge. (a) Narrow strip strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form. (b) Wide Strip Strip of width 600 mm above and supplied in coil form only. " Upto 1965 the ISI gave no description of strip. It had defined skelp in 1962 as follows "Hot rolled. strip with square or slightly beveled edges, used for making welded tubes". In 1968 the ISI 's definition of skelp stands as follows "Hot rolled narrow strip with rolled (square, slightly round or beveled edge. ,, Strip was defined by the ISI for the first time in 1965 as follows: "Coiled Strip A hot or cold rolled flat product, rolled in rectangular cross section and supplied in coil form. Strip A hot or cold rolled flat product, rolled in rectangular cross section thickness below 5 mm and of width below 600mm and supplied in straight lengths". The ISI 's definition of strip given in 1968 is as follows "A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edges. (a) Narrow strip Strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form. (b) Wide strip Strip of width 600 mm and above and supplied in coil form only". Annexure 'J ' submitted by the respondent along 'with its rejoinder affidavit in the High Court at page 101 of the record, gives various 422 definitions of skelp taken. from various dictionaries and treatises such as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C. Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C. Metallurgical Dictionary, page 192, year 1953; Backert A.O.L. A.B.C. of Iron & Steel, page 1912, year 1925 5th edition; Chamber 's Technical Dictionary, year 1967. Similarly definition of strip is also given from these Dictionaries and books. It is also pointed out that there is no category of skelp mentioned in Brussels Nomenclature. British Standards 2094, Part 4; 1954, defines skelp as follows : "Hot rolled strip with square or slightly bevelled edges used for making welded tubes". Chamber 's Technical Dictionary Revised Edition (Reprinted 1954) defines skelp as follows "Skelp (P. 775) Mild steel strip from which tubes are made by drawing through a bell at welding temperature, to produce lap welded or butt welded tubes". We may not add to the list but are satisfied that there are a large number of definitions out of which one can be picked up to satisfy the definition of skelp according to some authority and another definition to fit in with the concept of strip according to another authority Since the duties on strip and skelp are not the same, it is absolutely necessary to define the word skelp so that there can be no doubt or confusion in the mind of either of the taxing authority or of the tax payer with regard to the tax liability qua skelp as opposed to strip. Since, however. there is no statutory definition of this controversial item different tests have naturally been resorted to by the different authorities and the same variation is discernible even in the affidavits of the appellants submitted before the High Court. The short question, therefore, that arises for consideration is whether in the above background the High Court was right in interfering with the orders under article 226 of the Constitution. It is not for the High Court nor for this Court to come to a conclusion on facts as to whether the product can truly come under the description of skelp. That undoubtedly would require some evidence be taken at the level of the taxing authority provided, however, there is an identifiable, uniform and determinate test by which skelp can be properly distinguished from strip. In the mass of documents filed before us and the extensive arguments addressed at the bar with regard to the definitions 'culled from various dictionaries, handbooks and authorities, we are not at all surprised that the three authorities came to the same conclusion by depending upon their own chosen tests. A particular type, of strip may according to certain definitions. be skelp and according to others not Skelp. however, cannot be permitted in a fiscal legislation which by all standards should adopt a clear definition of an excisable item which is incapable of giving rise to a confounding contro 423 versy as in this case unless the, matter is beyond doubt in view of the popular meaning, or meaning ascribed to the term in commercial parlance. In absence of any clear criterion to determine what is skelp. and not strip, no useful purpose would be served by even remanding, the matter to the Excise authorities for a decision after taking necessary evidence. It is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip of skelp it may be possible for the authorities. to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test. This is, however, not possible in this ' case in view of the fact that there is no identifiable standard. The best way is to define the product for the purpose of excise duty in approximate terms demarcating clearly the distinction between. the two terms. The absence of any identifiable standard would, therefore, naturally give rise, to the scope for arbitrary assessment at the hands of different authorities. Whether this has happened in this case, as. ' complained by the respondent citing the instance of the Hindustan Steel Company, Rourkela, it is not necessary for us to pursue in this,, appeal. We are, therefore, unable to hold that the High Court has. gone wrong in granting the reliefs prayed for. The appellants strenuously emphasized upon the test relied upon in the Revisional order as to skelp having bevelled edges which, according to them, is peculiar to skelp and not to strip. But this does not bear scrutiny as on the counter affidavit of the Union of India in the High Court at page 57 of this record it shows that "as regards tested Hot rolled Strips the edges are never looked into, they can be bevelled, square or have Mill edge" (emphasis added). This is an admission of the appellants that strips may also have bevelled edges. The two decisions relied upon by the appellants do not come to their aid in this case since there is no identifiable standard or test to determine clearly which product can be skelp and not strip. In Ganga Setty 's case (supra) the controversy arose with regard to whether "feed oats" fell within item 42 (fodder) or within item 32 (grain) of parti cular circular. Dealing with the matter this Court observed as follows: ". any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feeds. The decision of the Customs authorities, therefore, this Court held could not be characterized as Perverse or mala fide calling for interference. Similarly following Ganga Setty 's case (supra) in Jasjit Singh 's case (supra) the conclusion and findings of the Customs authorities were accepted a reasonable. In both the above cases there were definite tests by which the particular article could be held to fall under one item and not under the other and the construction of the authorities 424 with regard to the scope of the particular entries was, therefore, held to be reasonable and not calling for interference by the court. The ,question that arises in the instant case is of a completely different nature as pointed out above there being no identifiable test reasonably capable ,of distinguishing skelp from strip. In the result the appeal fails and is dismissed with costs. P.H.P. Appeal dismissed.	The respondent manufactures hot rolled finished steel products in rectangular cross section, of thickness varying between 16.2 mm and 311.2 mm in coils (hereinafter a referred to as the Product) product as Strip whereas the appellant classifies it as a skelp. to higher excise duty than Strip. The Assistant Collector the product as Skelp. On appeal to the Collector of and rolled The respondent describes the Sklip is subject Central Excise treated Central Excise, he confirmed it and in revision the Central Government also approved. The respondent filed a Writ Petition in the High Court. The High Court accepted the contention of the respondent. On appeal by Special Leave the appellant contended before this Court : (i) That it is primarily for the Taxing Authorities to determine the head or nature under which any particular commodity fell. (ii) The Court can interfere with the decision only if it is perverse. if there were two constructions possible and if the Taxing Authority accepts one of them the Court cannot interfere. The respondent submitted '. (i) Assessment without application of an identifiable test is perverse and arbitrary. (ii) In the present case. there was no iden tifiable test before the Taxing Authorities. There is no difference between Skelp and Strip. Dismissing the appeal, Held : There are large number of definitions out of which one can be picked up to satisfy the definition of Skelp according to some. authority and another definition to fit in with the concept of strip according to another authority. Since there is no statutory definition for Skelp and Strip, different tests have been resorted to by the different authorities. The question arises whether the High Court was right in interfering with the orders under article 226 of the: Constitution. It is not for this Court to come to the conclusion on facts. The absence of any identifiable standard naturally gives rise to the scope for arbitrary assessment at the hands of different authorities. It is not possible to hold that: the High Court has gone wrong in granting the reliefs prayed for. [422D F; 423C]
Civil Appeal No. 2281 of 1969 Appeal by Special Leave from the Judgment and Order dated 6th December, 1965 of the Allahabad High Court in Special Appeal No. 978/62. Shiv Pujan Singh and M. V. Goswami for the Appellant. B. P. Maheshwari and Suresh Sethi for the Respondent. The Judgment of the Court was delivered by KAILASAM, J. This appeal is by the State of U.P. by special leave granted by this Court against the judgment and order of the High Court at Allahabad in Special Appeal No. 978 of 1962. Two companies, the Raza Sugar Co. Ltd. and the Buland Sugar Co. Ltd., were incorporated under the Rampur State Companies Act, 1932. Messrs. Govan Brothers (Rampur) Ltd. were the common managing agents of the two companies. On 10th May, 1933 the Raza Ltd. and on 11th December, 1934, the Buland Ltd. entered into agreements with the erstwhile State of Rampur. The agreements provided that the Rampur State should grant to the companies leases of the agricultural land with adequate irrigation facilities suitable for cultivation of sugar cane. The companies were required to pay fair and equitable land revenue which was to be agreed upon by the com 421 panies and the Rampur State. On 5th May, 1935, a partnership deed was a executed by the Raza Ltd. and the Buland Ltd. constituting a partnership firm of the two companies in equal shares known as the Agricultural Company, Rampur. In the year 1939 the Rampur State leased 2,000 acres of land and in the year 1946 another 2,000 acres of land to the Agricultural Company, Rampur. In 1949 the State of Rampur acceded to the Union of India and was merged with the State of Uttar Pradesh with effect from Ist December, 1949. The Rampur State had agreed to exempt the Raza Ltd. and the Buland Ltd. from all taxes for a period of 15 years from the date of commencement of their business. The U.P. Agricultural Income Tax Act was applied to the areas which formed part of the erstwhile State of Rampur on Ist July, 1950. The Assessing Authority issued notices under section 16(4) of the U.P. Agricultural Income Tax Act to the Raza Ltd. and the Buland Ltd. for furnishing returns of their agricultural incomes for the years 1357 F to 1361 F. It may be noted that the notice was not issued to the Agricultural Company, Rampur. The Raza Ltd. and the Buland Ltd. submitted their returns. The Assessing Authority assessed the two companies to agricultural income tax for the years concerned. The companies preferred an appeal against the assessment to the Commissioner, Rohikhand Division, and also filed writ petition No. 2385 of 1959 in the High Court of Allahabad challenging the assessment orders. On 17th April, 1961 the writ petition was allowed and the order of assessment was quashed with a direction that fresh assessments may be made. The Commissioner also directed the Assessing Authority to make fresh assessments in the light of the observations made by the High Court in its judgment dated 17th April, 1961, allowing the writ petition No. 2385 of 1959. When the Assessing Authority started fresh hearing in pursuance of the order of the High Court an objection was raised with regard to the assessability of the two companies on the ground that no notice had been sent to the Agricultural Company, Rampur. The Assessing Authority negatived the plea and assessed the Raza Ltd. and the Buland Ltd. for the years 1357 F to 1361 F and also for the years 1362 F to 1363 F. Against the order of the Assessing Authority the two companies which in the meantime became amalgamated as the Raza Buland Sugar Co. Ltd., Rampur, filed a writ petition No. 1982 of 1962 in the High Court of Judicature at Allahabad and prayed for the quashing of the assessment order dated 29th June, 1962, made by the Assessing Authority against the Raza Ltd. and the Buland Ltd. for the assessment years 1357 F to 1363 F. 422 The writ petition was heard by a single Judge of the High Court who by his order dated 4th October, 1962 allowed the writ petition on the ground that the Assessing Authority committed an error of law in assessing the two partners of the Agricultural Company, Rampur, and not assessing the firm as such. Aggrieved by the order the State filed Special Appeal No. 978 of 1962 before the Division Bench of the High Court at Allahabad. The Division Bench of the High Court by its order dated 6th December, 1965, dismissed the Special Appeal. An application for leave to appeal to the Supreme Court was dismissed by the High Court. The appellants then preferred Special Leave Petition No. 1724 of 1969 to this Court and on the leave being granted this appeal is now before us. The main contention that has been raised before us by the appellants is that there being no express prohibition under the U.P. Agricultural Income Tax Act an assessment can be validly and legally made on the individual partners, in the present case the two companies, without proceeding against the firm. It was pleaded that the tax could be assessed either on the partnership firm or on the partners invididually and that the view of the High Court that the tax can only be recovered from the firm is erroneous. The facts of the case disclose that on receipt of a notice by the Assessing Authority under section 16(4) of the U.P. Agricultural Income Tax Act, the two companies Raza Ltd. and the Buland Ltd. submitted their returns relating to the income of the two companies. In the return it was stated that the income was half of the income received from the partnership firm, the Agricultural Company, Rampur. The assessment was made on the basis of the returns. The assessment was questioned before the Commissioner and in the writ petition before the High Court of Allahabad on the ground that the lands were neither assessed to land revenue in the United Provinces nor were they subject to local rate or cess assessed and collected by an officer of the Provincial Government. This contention was accepted by the High Court which directed the Assessing Authority to determine the question whether the lands were assessed to land revenue, in the United Provinces or they were subject to local rate or cess assessed and collected by an officer as required under section 2(a) of the U.P. Agricultural Income Tax Act, 1948. After remand the Assessing Authority found that the lands from which the income accrued satisfied the requirements of the section. For the first time before the Assessing Authority the point was raised that as no notice was issued to the partnership firm, the partners i.e. two companies cannot be proceeded with for assessment of the tax. When this plea was rejected by the 423 Assessing Authority the matter was taken up before the High Court, first before a single Judge and then before the Division Bench, which accepted the contention of the two companies and held that in the absence of notice to the partnership firm proceedings cannot be taken against the two companies for assessment of the tax. The relevant provisions under the United Provinces Agricultural Income Tax Act, 1948, may be noticed. Section 2(5) defines "Assessee" as meaning a person by whom agricultural income tax is payable. "Company" is defined under section 2(8) as meaning a company as defined in the Indian Income tax Act, 1922. The Indian Income tax Act, 1922, section 2(5A) defines a company as follows: "(5A) "company" means (i) any Indian company, or (ii) any association, whether incorporated or not and whether Indian or non Indian, which is or was assessable or was assessed as a company for the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board of Revenue to be a company for the purposes of this Act;" "Firm" is defined in section 2(9) as having the same meaning assigned to it in the . Section 4 of the , states that "Persons who have entered into partnership with one another are called individually 'partners ' and collectively a firm and the name under which their business is carried on is called the 'firm name '". "Person" is defied in section 2(11) as meaning an individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another, either as owner, trustee, receiver, manager, administrator or executor or in any capacity recognized by law, and includes an undivided Hindu family, firm or company but does not include a local authority. It may be noted that by the definition the word "person" means an individual and includes a firm or a company. The liability of the person whether he be an individual, partner or the company for the agricultural income tax is therefore beyond question. The only point that is raised in this case is as to when there is a registered firm of which the two companies were partners the assessment proceedings cannot be taken against the two partners, namely the two companies, without proceeding against the 424 firm. In support of this contention section 18 of the U.P. Agricultural Income Tax Act was strongly relied on. Section 18 confers the power to assess individual members of certain firms, associations and companies. Sub section (1) of section 18 enables the Assistant Collector with the previous approval of the Collector of the disrict concerned to pass order under the circumstances stated in the sub Sec. that the sum payable as agricultural income tax by the firm or association shall not be determined, and thereupon the share of each member in the agricultural income of the firm or association shall be included in his total agricultural income for the purpose of his assessment thereon. Section 18(2) states that under certain circumstances the Collector may, with the previous approval of the Commissioner of the area concerned, pass an order that the sum payable as agricultural income tax by the company shall not be determined and thereupon the proportionate share of each member in the agricultural income of the company, whether such agricultural income has been distributed to the members or not, shall be included in the total agricultural income of such member for the purpose of his assessment thereon. The submission of the learned counsel for the respondent which was accepted by the High Court was that if the Agricultural Income tax authorities wanted to proceed against the individual members of the firm they ought to have taken proceedings under section 18(1) and in the absence of such proceedings the partners, in this case the two companies, could not have been proceeded with. The argument thus presented though looks attractive does not stand scrutiny. There is nothing in the provisions of the Act prohibiting the Assessing Authority from proceeding against the individuals forming the partnership. Section 18 enables the authorities while proceeding with the assessment of a firm or a company not to determine the tax payable by the firm or the company but proceed to determine the agricultural income of each member of the fir. The provisions do not apply to a case where the returns are submitted by the partners, as in this case, and the assessment made on that basis. The section would undoubtedly be applicable if assessment proceeding against the firm is stopped and the share of the individual is to be determined under the provisions of section 18. Our attention was not drawn to any provision in the Act which would bar the income tax authorities from proceeding against the individual partners on the returns submitted by the partners as such. Under the Indian Income tax Act it has been held that where a firm has not made a return and has not offered its income for assessment, the Department may assess a partner directly in respect of his share of the firm 's income without resorting to the machinery provided under the Act and without making an assessment on the firm, (CIT vs Murlidhar Jhawar & Purna Ginning 425 & Pressing Factory(1). It has been further held that once the Department has exercised its option and assessed the partners individually it cannot thereafter assess the same income in the hands of the firm as an unregistered firm. It is not necessary for us to refer to the distinction that is maintained under the Income tax Act between a registered and unregistered firm for no such distinction is maintained under the U.P. Agricultural Income Tax Act. The only prohibition is against double taxation. In this case no assessment proceedings have been taken against the firm much less any tax imposed on it. The principle that is applicable in tax statutes is that the income is subject to tax in the hands of the same person only once. Thus, if an association or a firm is taxed in respect of its income the same income cannot be charged again in the hands of the members individually and vice versa. The trust income cannot be taxed in the hands of the settlor and also in the hands of the trustee or beneficiary or in the hands of both the trustee as well as the beneficiary. These principles are, of course, subject to any special provision enabling double taxation in the statute. In the circumstances, we are unable to share the view of the High Court that without proceeding against the firm the Assessing Authority was in error in proceeding against the two partners of the firm on the basis of the returns submitted by them. There is yet another objection to the upholding of the plea of the respondents. Apart from submitting the returns their only plea in the earlier writ petition before the High Court was that the lands did not satisfy the requirements of the provisions of the U.P. Agricultural Income Tax Act in that they were not assessed to land revenue in the United Provinces nor were they subject to local rate or cess. This plea was accepted but the High Court remanded it for the determination of the question whether the land was assessed to land revenue or was subject to local rate or cess. The plea that the assessment proceedings ought to have been taken against the firm was not taken. This plea cannot be allowed to be taken in proceedings after remand. The objection was taken only before the Assessing Authority after remand. It is true that in the proceedings before the Assessing Authority the assessment relating to two Fasli years 1362 and 1363 which did not form part of the proceedings before the High Court was also taken up. But here again the returns were submitted by the two companies on the basis of their respective income. In the circumstances, it cannot be said that the tax authorities were in error in assessing a tax on the returns submitted by the two companies. The plea, therefore, that the 426 assessment on the two companies, in the absence of proceedings against the firm of which the companies were partners, is not legal cannot be upheld. The second contention that was raised before us was that it has not been established that the lands were either assessed to land revenue in the United Provinces or were subject to local rate or cess assessed and collected by an officer of the Provincial Government. As the Single Judge of the High Court and the Division Bench of the High Court accepted the plea of the assessees that the assessment proceedings against them could not be sustained because of the failure of the authorities to take proceedings against the firm, they considered it unnecessary to go into this question. It is unfortunate that this aspect of the matter was not considered either by the Single Judge or by the Division Bench of the High Court. We do not think it desirable to remit the case to the High Court for the determination of this question as the matter has been long pending. This plea has been elaborately considered by the Assessing Authority which has pointed out that agreements with the Raza Sugar Co. Ltd. and the Buland Sugar Co. Ltd. show that it was stipulated that the Rampur State shall from time to time grant to the Company lease of agricultural land. It was further provided that such fair equitable land revenue as may be agreed between the Rampur State and the Company shall be payable in respect of such land and shall be subject to revision by agreement every 15 years. The lease also provided that fair and equitable water rates and cesses shall be payable in respect of the land. In section 4(7) of the U.P. Land Revenue Act it is mentioned that the word "Mal Guzari" will be applicable where it has been duly assessed or has been determined by means of an auction or by any other means. On a consideration of all the relevant facts the Assessing Authority came to the conclusion that the agreement in favour of the companies provided for payment of land revenue and the word "rent" used in the leases has to be considered in relation to the original agreements and as such it is seen that the agreement provided for payment of land revenue. The learned counsel appearing for the respondents was unable to challenge the correctness of the finding of the Assessing Authority. On a consideration of all the facts that were placed before the Assessing Authority, we do not see any reason for not accepting the conclusion arrived at by the Authority. This issue also we find against the assessee. In the result we hold that the High Court was in error in coming to the conclusion that the assessment proceedings against the respon 427 dent were unsustainable. We set aside the judgment and order of the High Court and restore the order of the Assessing Authority. N.V.K. Appeal allowed.	Two joint stock companies entered into agreements with a former Princely State for the grant of agricultural land on payment of fair and equitable land revenue. Later the two companies formed into a partnership firm. On the merger of the State with the Union of India, the Assessing Authority under the U.P. Agricultural Income tax Act issued notices to the two companies to submit their returns of agricultural income, which the companies did. In writ petitions filed by the companies challenging the assessment orders, the High Court accepted the contention that since the lands were neither assessed to land revenue nor were they assessed to any local rate or cess as required by section 2(a) of the Act, they were not assessable to agricultural income tax and remanded the cases to the Assessing Authority for determination of this question. Before the Assessing Authority, on remand the companies raised for the first time the contention that since no notice had been issued to the firm of which they were partners, the assessment was invalid. The Assessing Authority rejected this contention. He also held that the lands satisfied the requirements of s.2(a). In writ petitions filed by the two companies a single Judge of the High Court upheld the contention that the Assessing Authority committed an error of law in assessing the two partners without assessing the firm. This view was affirmed by a Division Bench on appeal. On further appeal to this Court it was contended that in the absence of a prohibition in the Act, the two companies could be validly assessed to tax without assessing the firm. Allowing the appeal, ^ HELD: 1. The Assessing Authority was not in error in assessing tax on the returns submitted by the two companies and therefore the argument that assessment of the companies, without assessing the firm, was not legal, is without substance. [425 H 426 A] 2. "Person" defined in the section means an individual and includes a firm or a company. [423 G] 3. There is nothing in the Act prohibiting the Assessing Authority from proceeding against individuals forming a partnership. Section 18 enables the authorities, while proceeding with assessment of a firm or a company, not to 420 determine the tax payable by the firm or the company but to proceed to determine the agricultural income of each member of the firm. The provisions do not apply to a case where the returns were submitted by the partners and the assessment made on that basis. The section would be applicable if assessment proceedings against a firm are stopped and the share of the individual is to be determined under the provisions of section 18. [424 F] 4. The well established position under the Income Tax Act (Central Act) with regard to assessment of firms is that where a firm has not made a return it is open to the department to assess a partner directly in respect of his share of the firm 's income without resorting to the machinery provided under the Act and without making an assessment on the firm, the only prohibition being against double taxation. [424 H] C.I.T. vs Murlidhar Jhawar & Purna Ginning & Pressing Factory, SC; referred to. Secondly, the plea that assessment proceedings ought to have been taken against the firm, was not taken by them in the first instance either before the Assessing Authority or before the High Court. This plea cannot be allowed to be taken at a later stage. The assessees submitted their returns on the basis of their respective incomes. [425 F 426 A] 6. The Assessing Authority has correctly come to the conclusion that the agreement between the parties provided for payment of land revenue. [426 F G]
Seeking to quash the proceedings in C.C.No.62 of 2016 on the file of the Special Court constituted u/s.43(1) of the Prevention of Money Laundering Act, 2002 [Principal Sessions Judge], Chennai, the present petition has been filed. 2. At the outset, it may be necessary to state that in a prosecution under the Prevention of Money Laundering Act, 2002 [hereinafter referred to as the ‘PMLA’], there will invariably be two sets of accused viz., one in the predicate offence and other in the prosecution launched by the Enforcement Directorate. Therefore, in order to avoid confusion, we are referring to the rank of the accused as set out in the impugned complaint in C.C.No.62 of 2016 that has been filed by the Enforcement Directorate. Criminal Original Petition No.19880 of 2022 3. The minimum facts that are required for deciding this quash petition 3.1. One G.Srinivasan [A1] and R.Manoharan [A2] entered into a criminal conspiracy to cheat M/s.Global Trade Finance Limited [hereinafter referred to as "GTFL"], a subsidiary of Global Trust Bank, pursuant to which, R.Manoharan [A2], in collusion with S.Arivarasu [A5], Manager of GTFL, applied for a loan with fake documents. S.Arivarasu [A5] sanctioned a loan of Rs.15 crores on 16.05.2008 to a shell company by name M/s.Bhagavthi Textile Mills [in short "BTM"] purportedly owned by R.Manoharan [A2], which was actually siphoned off by G.Srinivasan [A1]. 3.2. Out of the said sum of Rs.15 crores so siphoned off, G.Srinivasan [A1] used Rs.1.07 crores to purchase 166 acres of land in Pudukottai Village in the names of P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7] from K.Gunasekaran, R.Sivakumar, Chinnakkannu and G.Selvarani through various documents. The details of the sale deeds under which the lands were purchased with the money provided by G.Srinivasan [A1] to the Criminal Original Petition No.19880 of 2022 buyers viz., P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7] have been set out in paragraph No.6.3 of the impugned complaint. The said P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7] gave a Power of Attorney in September 2009 to one R.Ayyappan in respect of the lands that were purchased by them with the funds provided by G.Srinivasan [A1]. K.Gunaseelan [A8] had purchased lands measuring 166 acres from P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh [A7] through their power agent R.Ayyappan in February 2010. Thereafter, K.Gunaseelan [A8] sold those lands to S.Palanichamy [A9], C.Chellamuthu [A10], K.Kalimuthu [A11], V.Kuppusamy [A12], R.Natarajan [A13] and V.Nattuthurai [A14], as could be seen from the chart given in paragraph No.6.6 of the impugned complaint. 3.3. Reverting to the loan of Rs.15 crores that was obtained by BTM, as stated supra, it was found that G.Srinivasan [A1] and R.Manoharan [A2] had created fake documents in league with S.Arivarasu [A5], Manager of GTFL for obtaining loan. Criminal Original Petition No.19880 of 2022 3.4. While this being so, GTFL was merged with State Bank of India and during reconciliation of the accounts, it was found that R.Manoharan[A2] obtained the loan by producing fraudulent documents. 3.5. Therefore, on a complaint given by the State Bank of India, the CBI registered a case in Crime No.RC-9(E)/2010 on 07.10.2010 and after completing the investigation, filed a final report in C.C.No.6 of 2011 in the Special Court for CBI cases, Coimbatore, for the offences u/s.120-B r/w 420, 467 and 471 IPC and Section 13 of the Prevention of Corruption Act against G.Srinivasan [A1] and others, in which P.Rajendran [A6] herein is not an accused. Since the CBI case disclosed the commission of a "scheduled offence" under the PMLA, the Enforcement Directorate registered a case in ECIR No.06/CEZO/PMLA/2011 and after completing the investigation, filed a complaint in C.C.No.62 of 2016 in the Special Court for Prevention of Money Laundering Act cases (Principal Sessions Judge, Chennai) for the offence u/s.3 r/w 4 of the PMLA against 15 persons including S.Arivarasu [A5], P.Rajendran [A6] and K.Vignesh [A7]. Criminal Original Petition No.19880 of 2022 3.6. This Court, in Crl.O.P.Nos.2821 and 5638 of 2017, has, by a detailed order dated 21.03.2022, quashed the PMLA prosecution in C.C.No.62 of 2016 against K.Gunaseelan [A8], S.Palanichamy[A9], [A13], V.Nattuthurai [A14] and S.Kuppusamy [A15] on the short ground that these persons were innocent purchasers, in that, they had purchased the said property from P.Venkatachalapathy [A4], P.Rajendran [A6] and K.Vignesh 4. While so, P.Rajendran [A6] has filed the present quash petition to quash the prosecution against him in C.C.No.62 of 2016. 5. Heard Mr.Sharath Chandran, learned counsel for the petitioner and Mr.N.Ramesh, learned Special Public Prosecutor [ED] for the respondent. 6. The crux of the allegation against P.Rajendran [A6] is that, G.Srinivasan [A1] and R.Manoharan [A2] had committed the criminal Criminal Original Petition No.19880 of 2022 activity of cheating GTFL and had obtained a loan of Rs.15 crores from GTFL, out of which, G.Srinivasan [A1] had purchased a property by a sale deed dated 09.09.2009 in the name of P.Rajendran [A6], which, P.Rajendran [A6] had subsequently sold to the accused, against whom, this Court has quashed the prosecution, as stated above. 7. At this juncture, it may be relevant to extract the following paragraphs from the impugned complaint: "6.3. Inasmuch as Shri G.Srinivasan during the inquiry has acceded that out of above funds he had purchased immovable property admeasuing about 166 acres in Pudukottai Village from S/Shri K.Gunasekaran, R.Sivakumar, Chinnakkannu and Smt.G.Selvarani, in the names of S/Shri Vignesh, P.Venkatachalapathy and Shri P.Rajendran, who were all associated/known to him, for a declared amount of Rs.1.07 Crores, inquiries were made with the said name lenders. Accordingly, Shri P.Rajendran in his statement dated 15.02.2012 (Annexure-XIII) under Section 50(2) & (3) of the PMLA, given before the Assitant Director (PMLA), Directorate of Enforcement, Chennai, in response to the enquiry on the details of the 5 acres and 76 cents of land registered in his name, vide Document No.1559/2009 of SRO, Chathirapatti had inter-alia stated that his younger brother, Shri Venkatachalapathy and Shri G.Srinivasan of Udumalpet were close friends; that Shri G.Srinivasan was looking after the business of the firm, M/s.Sri Pamba Spinning Mills, which was managed by his father; that his younger brother, Shri Venkatachalapathy joined with the above said Shri G.Srinivasan during the year 2005 and was Criminal Original Petition No.19880 of 2022 looking after the business of the aforesaid M/s.Sri Pamba Spinning Mills; that later, in the year 2009, he came to understand that his younger brother, Shri Venkatachalapathy and Shri G.Srinivasan were in some problem; that his brother, Shri Venkatachalapathy, Shri G.Srinivasan and one Shri Selvakumar, who was working with his younger brother, were all arrested by the District Crime Branch, Coimbatore, during July 2009 and about a month later they were released on bail; that during September month the same year, Shri G.Srinivasan told him that for about 5.76 acres land in his name he had appointed one Shri.R.Sivakumar, who was working under him as its power holder and if the land was in the name of the said Sivakumar it would not be safe and hence he (Srinivasan) wished to write the same in his name; that he agreed for the same and gave his consent to get the above said 5.76 acres land transferred in his name as arranged by Shri G.Srinivasan; that the land under Survey No.103, having Patta No.395, totally constituted 17 acres and 28 cents and in that 1/3 portion, i.e., 5 acres and 76 cents was transferred in his name and registered as Document No.1559/2009 of SRO, Chatthirapatti with a specified consideration of Rs.3,64,000/- as arranged by Shri G.Srinivasan, but he neither received nor paid any money; that later, in the last week of September 2009, the said Shri G.Srinivasan told him to give power for the above said land of 5 acres and 76 cents land held in his name to one Shri.R.Ayyappan; that Shri G.Srinivasan prepared a Power Document and obtained his signature on it, which was registered in the SRO, Kaniyur as Document No.184/2009, that as was arranged by Shri G.Srinivasan, he gave power to the aforesaid Shri R.Ayyappan, S/o.Ramdas, a resident of No.57-B, Vinayaka Apartment, Padmavathi Nagar Main Road, Virugambakkam, Chennai - 92; that even for this he neither received nor gave any money either from / to the above said Shri G.Srinivasan or any other person, as the aforesaid land was not his and belonged only to Shri G.Srinivasan; that further, as requested by Shri G.Srinivasan he had been to Sub-Registrar's Office and signed as a witness in another document relating to power given by one Shri Vignesh to the aforesaid Shri Ayyappan for another land and that he did not have any connection or dealings with the above said Shri G.Srinivasan except the above. Criminal Original Petition No.19880 of 2022 12.8. S/Shri P.Rajendran and K.Vignesh the other associates of Shri G.Srinivasan connived with him in the scheme fraudulent transactions and knowingly facilitated the investments of Shri G.Srinivasan in the immovable properties by consciously lending their names and acting as his benamis thereby camouflaged the said funds from its actual source. Thus, S/Shri P.Rajendran and K.Vignesh had actively facilitated utilization of a part of the aforesaid proceeds of crime, as defined under Section 2(1)(u) of PMLA towards investments in the immovable properties aggregating to Rs.53,16,200/- Shri G.Srinivasan, besides acquiring inherent pecuniary benefits for themselves. 13.6. It is humbly submitted that Shri P.Rajendran who was charged of having committed the scheduled offences, furthermore having lent his name for the purchase of the immovable properties and having actively connived with Shri G.Srinivasan in camouflaging the aforesaid immovable properties in which a part of the said proceeds of crime aggregating to Rs.53,16,200/- had been invested by Shri G.Srinivasan was actually involved in the process or activity connected to "proceeds of crime" defined under Section 2(1)(u) of PMLA and has thereby committed the offence of Money Laundering as defined under Section 2(p) read with Section 3 of the PMLA, which is punishable under Section 4 of the PMLA." 8. Mr.Sharath Chandran, learned counsel for the petitioner, submitted that since P.Rajendran [A6] is not an accused in the CBI case in C.C.No.6 of 2011, his prosecution by the Enforcement Directorate in C.C.No.62 of 2016 is illegal in the light of the recent judgment of the Supreme Court in the case Criminal Original Petition No.19880 of 2022 of Vijay Madanlal Choudhary and others v. Union of India and others1. In support of this contention, he placed strong reliance on the following paragraphs in the said judgment: "253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression “derived or obtained” is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money- laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause “proceeds of crime”, as it obtains as of now." 467 (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a Criminal Original Petition No.19880 of 2022 scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him." 9. Mr.Sharath Chandran, learned counsel, contended that when the accused in the predicate offence is discharged, acquitted or the proceedings against him are quashed, the prosecution under the PMLA cannot be maintained, which means that if a person is not prosecuted in the predicate offence, his position being far better than the former, cannot be prosecuted under the PMLA. 10. At the first blush, this argument did appear convincing. However, the fallacy in the aforesaid submission was highlighted by Mr.N.Ramesh, learned Special Public Prosecutor [ED], who brought to our notice that paragraph Nos.253 and 467(d) of the judgment of the Supreme Court in Vijay Madanlal's case [supra] deal with only the cases of persons named as Criminal Original Petition No.19880 of 2022 accused in the predicate offence against whom the prosecution in the predicate offence is quashed or he is discharged/acquitted. This benefit cannot be extended to a person, who has not been arrayed as an accused in the predicate offence because the offence under the PMLA is a stand alone offence and is different and distinct from the predicate offence. 11. Learned Special Public Prosecutor submitted that for generating "proceeds of crime", a "scheduled offence" must have been committed, after the commission of the scheduled offence and generation of proceeds of crime, different persons can join the main accused either as abettors or conspirators for committing the offence of money laundering by helping him in laundering the proceeds of crime; such persons may not be involved in the original criminal activity that had resulted in the generation of "proceeds of crime", therefore, just because they were not prosecuted for the predicate offence, their prosecution for money laundering cannot be said to be illegal. There appears to be much force in the aforesaid submission, especially, in the light of paragraph 271 of the judgment in Vijay Madanlal's case [supra], which is Criminal Original Petition No.19880 of 2022 "271. As mentioned earlier, the rudimentary understanding of ‘money-laundering’ is that there are three generally accepted stages to money-laundering, they are: (a) Placement : which is to move the funds from direct association of the crime. (b) Layering : which is disguising the trail to foil pursuit. (c) Integration : which is making the money available to the criminal from what seem to be legitimate sources." 12. That apart, paragraph No.467(d) of the Vijay Madanlal's case [supra] only speaks about the discharge/ acquittal or quashment of proceedings of the accused in the predicate offence and the consequences that will follow for him in the PMLA prosecution. In that context, the Supreme Court has held that such an accused cannot be prosecuted under the PMLA if the case against him in the predicate offence has been quashed or he has been discharged/acquitted. To be noted, a case is only an authority for what it decides, as observed by Lord Halsbury in Quinn v. Leathem2, as follows: "... that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the Criminal Original Petition No.19880 of 2022 particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides." 13. In Rajendra Singh v. State of U.P. & others3, the Supreme Court has approvingly cited the above passage. 14. We cannot enlarge the scope of paragraph 467(d) of Vijay Madanlal's case [supra] and read into it things that have not been said, in the name of logical reasoning. Law is not always logic. 15. On facts, we find that Rajendran [A6] had voluntarily lent his name for the purchase of the property under the sale deed dated 09.09.2009 with the tainted money that was generated by G.Srinivasan [A1] and R.Manoharan [A2] by committing a scheduled offence. Under Section 24 of the PMLA, there is a statutory presumption which can be discharged only during trial. In the result, this Criminal Original Petition is devoid of merits and the same is accordingly dismissed. The trial Court shall proceed with the trial of Criminal Original Petition No.19880 of 2022 the case without in any manner influenced by what is stated above as the above observations are only for the limited purpose of disposing of this quash petition. Criminal Original Petition No.19880 of 2022 Criminal Original Petition No.19880 of 2022	The Madras High Court has made it clear that Supreme Court's decision in Vijay Madanlal Choudhary and others v. Union of India and others does not preclude the Enforcement Directorate from prosecuting a person for offence of money laundering under PMLA, merely because such person was not prosecuted for the predicate offence. The bench of Justices PN Prakash and Teeka Raman found force in the submission that while a person may not be involved in the original criminal activity that had resulted in the generation of "proceeds of crime", such person may later help the main accused in laundering the proceeds of crime. The Court was hearing a quashing petition moved by a man accused of voluntarily lending his name for purchase of property using tainted money. Though he was not prosecuted by the CBI in the corruption FIR, he was booked by the ED under Prevention of Money Laundering Act (PMLA). It was alleged that a group of men had entered into a criminal conspiracy to cheat M/s.Global Trade Finance Limited (GTFL) and received a loan of Rs. 15 crore from the company using fake documents with the help of its Manager. Using this siphoned off money, 166 acres of land was purchased in the name of different persons including the petitioner. This land was later sold to genuine buyers. The details of fraudulent transaction was noticed when GTFL was merged with SBI. On a complaint given by SBI, the CBI registered a case for offences u/s.120-B r/w 420, 467 and 471 IPC and Section 13 of the Prevention of Corruption Act. The petitioner was not an accused in these proceedings. Later, the Enforcement Directorate also registered a case for the offence u/s.3 r/w 4 of the PML Act in which the petitioner was named as an accused. Relying upon the recent decision of Supreme Court in Vijay Madanlal Choudhary and others v. Union of India and others, the petitioner contended that since he was not an accused in the proceedings by the CBI, his prosecution by the Enforcement Directorate was illegal. Quoting the Apex Court decision, the petitioners submitted that when a person was acquitted or discharged in the predicate offence, his prosecution under PMLA cannot be maintained. However, counsel for the Enforcement Directorate informed the court that the above observation was made when the person was named as an accused in predicate offense. This benefit was not applicable to a person who was not made an accused in the predicate offense. The counsel submitted that even after commission of the scheduled offence and generation of proceeds of crime, different persons can join the main accused either as abettors or conspirators for committing the offence of money laundering by helping him in laundering the proceeds of crime. Such persons may not be involved in the original criminal activity that had resulted in the generation of "proceeds of crime", and thus may not be convicted in the predicate offense. But at the same time their prosecution under the PMLA cannot be said to be illegal as the offence under PMLA is a standalone offence and is different and distinct from the predicate offense. The court thus noted that the observation in Vijay Madanlal Choudhary could not be applied in the present case as the petitioner was not an accused in the predicate offence. We cannot enlarge the scope of paragraph 467(d) of Vijay Madanlal's case [supra] and read into it things that have not been said, in the name of logical reasoning. Law is not always logic, the court observed. "On facts, we find that Rajendran [A6] had voluntarily lent his name for the purchase of the property under the sale deed dated 09.09.2009 with the tainted money that was generated by G.Srinivasan [A1] and R. Manoharan [A2] by committing a scheduled offence. Under Section 24 of the PMLA, there is a statutory presumption which can be discharged only during trial," Court added. It thus dismissed the petition holding that it was devoid of any merits. Case Title: P Rajendran v. The Assistant Director, Directorate of Enforcement Case No: Criminal Original Petition No.19880 of 2022 Counsel for the Petitioner: Mr.Sharath Chandran for Mr.S.Ramesh Counsel for the Respondent: Mr.N.Ramesh Special Public Prosecutor [ED]
Appeal No. 604 of 1966. Appeal by special leave from the judgment and order dated August 5, 1964 of the Madras High Court in Tax Case No. 131 of 1963 (Revision No. 87). G. Ramanujam and A. V. Rangam, for the appellant. K. Srinivasan and R. Gopalakrishnan, for the respondent. The Judgment of the Court was delivered by Shah, J. M/s. R. Nand Lal & Company hereinafter called 'the assessee are dealers in wool at Vaniyambadi in North Arcot District in ' the State of Madras. In proceedings for assessment of sales tax for the year 1959 60 the assessees were assessed to pay tax at the rate, of seven per cent. on a turnover of Rs. 2,08,343 05 from sales effected by them to certain registered dealers in the State of Punjab. The assessing authority declined to assess the turnover at one per cent. as prescribed by section 8(1) of the , because in his view the assessees had submitted declarations in Form 'C ' covering two or more transactions contrary to the first proviso to r. 10(1) of the Central Sales Tax (Madras) Rules, 1957. The Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal, Madras confirmed the order of the assessing authority. The High Court of Madras, in exercise of its revisional jurisdiction, set aside the order of the Sales Tax Appellate Tribunal, and declared that the ass s were liable to pay tax on the turnover in dispute at the lower rate. The State of Madras has appealed to this Court with special leave. Section 8 of the (as amended by Act '31 of 1958) insofar as it is material provided "(1) Every dealer, who in the course of inter State trade or commerce (a) (b) sells to a registered dealer other than the Government goods of the description referred to in sub section (3); shall be liable to pay tax under this Act, which shall be one per cent. of his turnover. (2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods 647 in the course of inter State trade or commerce not falling within sub section (1) (a). . . (b) in the case of goods other than declared goods, shall be calculated at the rate of seven per cent. or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher; (2A) (3) (4) The povisions of sub section 1) shall not apply to any sale in the course of inter State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner (a) a declaration duly filed and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or (b). . . (5) It is common ground that the turnover was in respect of goods of the class specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or for use by him in the process of manufacture of goods for sale. A registered dealer selling goods in the course of inter State trade or commerce of the description referred to in sub section (3) is viable under section 8 ( 1 ) of the , to pay tax only if the rate of one per cent. on his turnover. But to qualify himself for that rate of tax he has to furnish to the prescribed authority a declaration duly filled and signed by the registered dealer to whom the goods are sold. Such a declaration must contain the Prescribed particulars in the prescribed form obtained from the Prescribed authority. If the selling dealer fails to furnish the declaration in the prescribed form, he is liable to pay tax at the higher rate mentioned in sub section (2) (b) of section 8. The respondents did furnish declarations in Form 'C ' pres cribed under the Rules framed ' by the Central Government in exercise of the, powers vested by section 1 3 (1) (d) of the . But each such declaration covered more transactions of sale than one and the aggregate value of the transactions recorded in each declaration exceeded Rs. 5,0001 The sales tax authorities and the Tribunal were of the view that these declarations contravened the express direction of the rule made by 648 the Madras State in exercise of the powers under section 13 (4) (e) of the . The High Court held that r. 10(1) of the Central Sales Tax (Madras) Rules, 1957, applied only to a transaction of purchase by a dealer in the State of Madras, and not to the purchasing dealer in the State of Punjab; that the Madras State was incompetent to frame rules governing the conduct of the purchasing dealers in the Punjab that since the corresponding rules framed by the State of Punjab under section 13 (4) (e) of the did not include a provision requiring separate form to be used for each sale transaction, the purchasing dealers were not obliged to comply with r. 10(1) of the Madras Rules, and that since the Madras selling dealers could not compel the purchasing dealers to comply with the rules relating to furnishing of separate declaration forms ordained by the Madras Rules, the declarations were not defective. In any event, the High Court held, r. 10(1) of the Madras Rules was directory and not mandatory. The assumption made by the High Court that no rule was framed by the State of Punjab under section 13 (4) (e) of the requiring the purchasing dealers in the State of Punjab to issue a separate declaration form in respect of each individual transaction is erroneous. It is conceded before us that the Punjab Government had in purported, exercise of the powers under sub sections (3) & (4) of section 13 of the Central Sales Tax, 1956, made r. 7(2 A) with effect from February 17, 1958 that: "No single declaration in Form 'C ' prescribed under the Central. Sales Tax (Registration and Turnover) Rules ' 1957, shall cover more than one transaction of sale except when the total amount of sales does not exceed five thousand rupees." But, for reasons which we will presently set out, the judgment of the High Court must still be, affirmed. Sub section (4) of section 8 of the provides that in order to, qualify himself for the lower rate of tax it, respect of sales in the course of inter State trade or commerce, the dealer selling goods has to furnish to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold. The expressions "prescribed authority" and "prescribed manner" mean the authority and manner prescribed by rules under the Act. Section 13(1) of the , authorises the Central Government to make rules, providing, inter alia, the form in which and the particulars to be contained in any declaration of certificate to be given under the Act. By sub section (3) of section 13 the State Government is authorised to make rules not inconsistent with the provisions of the Act and the rules made under sub section (1) to 64 9 carry out the purposes of the Act, and by sub s (4) of section 13 the State Government is, in particular and without prejudice to the powers conferred by sub section (3), authorised to make rules for all or any of the purposes set out therein including "the authority from whom, the Conditions subject to which and the fees subject to payment of which any form of declaration prescribed under sub section (4) of section 8 may be obtained, the manner in which the form shall be kept in custody and records relating thereto maintained, the manner in which any such form may be used and any such declaration may be furnished." In exercise of the power conferred by section 131 (d) the Central Government has prescribed the form of declaration to be furnished by the purchasing dealer under section 8 (4). That is Form 'C '. The form is in three sections the "counterfoil", the "duplicate" and the "original". The "original" contains at the foot of the Form the following Note: "(To be furnished to the prescribed authority in accordance with the rules framed under section 13(4) (e) by the appropriate State Government.)" The Madras State Government presuming to act in exercise of authority under section 13(3) and section 13(4)(e) framed the Central Sales Tax (Madras) Rules, 1957, r. 10(1) of which reads as follows ': "A registered dealer, who wishes to purchase goods from another such dealer on payment of tax at the rate applicable under the Act to sales of goods by one registered dealer to another, for the purpose specified in the purchasing dealer 's certificate of registration, shall obtain from the assessing authority in the City of Madras and the registering authority at other places a blank declaration form prescribed under rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 for furnishing it to the selling dealer. Before furnishing the declaration to the selling dealer, the purchasing dealer,or any responsible person authorized by him in this behalf shall fill in all the required particulars in the form and shall also affix his usual signature in the space provided in the form for this purpose. Thereafter the counterfoil of the form shall be retained by the purchasing dealer and the other two portions marked "original" and "duplicate" shall be made over by him to the selling dealer Provided that no single declaration shall cover more than one transaction of sales except 650 (a) in cases where the total amount covered by one declaration is equal to or less than Rs. 5,000 or such other amount as the State Government may, by a general order, notify in the Fort. St. George Gazette, and (b) Ex facie, this rule imposes no obligation upon a dealer in the State of Madras wishing to sell goods : it applies to a dealer wishing to purchase goods from another dealer. The argument that cl. (1) of r. 10 is intended to apply to a registered dealer in the State of Punjab is negatived by the scheme of the and the Rules framed thereunder. By section 7 of the , every dealer liable to pay tax under the Act has to make an application for registration under the Act to such authority in the appropriate State as the Central Government may by general order specify. The authority to be specified is designated in the Central Sales Tax (Registration and Turn over) Rules, 1957, framed by the Central Government under section 13(1), the "notified authority" : vide r. 2(c). Rule 3 provides that an application for registration under section 7 shall be made by a dealer to the notified authority in Form 'A '. In exercise of the powers conferred by sub section (1) of section 7 of the , the Central Government issued a notification No. S.R.O. 643 dated February 22, 1957, specifying the persons mentioned in Col. (3) of the Schedule thereto as the authorities to whom the dealers of the description in Col. (2) shall make the application for registration. Item 1 of the Schedule requires a dealer having a single place of business in a State to make an application to the authority competent to register him under the general sales tax law of the State if he were liable to, be so registered : and item 2 provides that the dealer having more than one place of business in a State shall make an application to the authority competent to register him in respect of the principal place of business under the general sales tax law of the State if he were liable to be so registered. A registered dealer contemplated by r. 10 is therefore registered in the State where he has his place of business. The expression "assessing authority" is defined in the Central Sales Tax (Madras) Rules, 1957, as meaning any person authorized by the State Government to make any assessment under the Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959). The dealer has again to obtain the form of declaration from the assessing.authority in the State of Madras. These are clear indications that the rules framed by the Madras Government were intended to apply to dealers within the State of Madras. The High Court was, in our judgment, right in holding that under the scheme of the and the Rules framed under that Act by the State of Madras, the injunc 651 tion against the purchasing dealers in r. 10(1) did not apply to, dealers in the State of Punjab. It is unnecessary on that view to, express any opinion on the question whether the State Government could, in exercise of the powers under section 13 (4), impose upon dealers not within the State, obligations to comply with conditions relating to the contents of the 'C ' Form declarations. Since, r. 10 ( 1 ) requiring that a separate declaration form in respect of each individual transaction shall be furnished was intended only to apply to dealers in the State of Madras, and not to dealers outside the State, proviso to r. 10(1) which directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a purchasing dealer outside the State of Madras. Rule 10(2), provides : "A registered dealer who claims to have made a sale to another registered dealer shall, in respect of such claim attach to his return in Form the portion marked "original" of the declaration received by him from the purchasing dealer. The assessing authority may, in its discretion, also direct the selling dealer to produce for inspection the portion of the declaration marked "duplicate". " But this rule does not direct that a declaration covering more than one transaction of sale shall not be given. The rules framed by the Madras Government do not otherwise impose any binding obligation upon the selling dealer in the State of Madras to obtain a separate declaration form in respect of each sale transaction, nor do the rules visit him with a penalty on failure to comply with the requirement. We are constrained to observe that the rule making authori ties have failed to appreciate the scheme of section 13 of the . We are of the opinion that it was not within the competence of the State authorities under section 13(3) & (4) of the to provide that a single declaration covering more than one transaction shall not be made. Authority to prescribe such an injunction cannot have its source in section 13(3) or section 13 (4) (e) : it can only be in the authority conferred by cl. (d) of section 13(1) by the Central Government. The Central Government has, in exercise of the power under section 1 3 (1) (d), prescribed the form of declaration and the particulars to be contained in them declaration. A direction that there shall be a separate declaration in respect of each individual transaction may appropriately be made in exercise of the power conferred under section 13 (1) (d). The State Government is undoubtedly empowered to make rules under sub sections (3) and (4) of section 13 but the rules made by them 652 State Government must not be inconsistent with the provisions of ,the Act and the rules made under sub section (1) of section 13 to carry out the purposes of the Act. If the authority to make a rule prescribing that the declaration shall not contain more than one transaction can be made only under section 13 (1) (d), the State Government cannot exercise that authority. The situation which has arisen in this case could have been avoided, if instead of each State making its rules requiring that no single declaration shall ,cover more than one transaction, the Central Government in exercise of the power under section 13 (1) (d) of the Act had made the rules. The appeal fails and is dismissed with costs. G.C. Appeal dismissed.	The assessee firm was a 'dealer ' in Madras State. For the year 1959 60 the firm was taxed at 7% on certain sales effected to registered dealers in the Punjab on the ground that the declarations taken from dealers in Punjab in Form 'C ' were not in accordance with r. 10(1) of the Central Sales Tax (Madras) Rules, 1957. The latter rule required ,that there must be a separate declaration in respect of each transaction whereas the declarations in the present case were in respect of several transactions each. The appellant firm claimed that on the turnover in question it should have been assessed at one Per cent only, as laid down in section 8(1) of the Central Sales Tax Act, 1056. The claim was turned down by the Sales tax Authorities and the Tribunal, but the High Court held that r. 10(1) of the Central Sales Tax (Madras) Rules, 1957 applied only to transactions of purchase by a dealer in the State of Madras and not to the purchasing dealer in the State of Punjab, that the Madras State was incompetent to frame rules governing the conduct of the chasing dealers in the Punjab, and that in any event r. 10(1) was tory and not mandatory. The State appealed. HELD: (i) Ex facie r. 10(1) imposes no obligation upon a dealer in the State of Madras wishing to sell goods : It applies to a clear wishing to purchase goods from another dealer. The High Court was further right in holding that under the scheme of the Central Sales Tax Act and the Rules framed under that Act by the State of Madras the injunction against the purchasing dealers in r. 10(1) did not apply to dealers in the State of Punjab. [650B 651A] Accordingly the proviso to r. 10(1) which,directs that no single declaration shall cover more than one transaction of sale except in certain cases has no application to a. purchasing dealer outside the State of Madras. Nor does r. 10(2). impose any binding obligation upon the selling dealer in Madras to obtain a separate declaration form in respect of each sale transaction. [651C F] The appellants were therefore to be taxed at the rate of one per cent and not seven per cent on the turnover in question. (ii) A rule prescribing that a declaration by a purchasing dealer shall not contain more than one transaction can only be made by the Central Government under section 13(1)(d) and the State Governments do not have 646 power under section 13(3) and section 13(4)(e) to make any such rule. The situation which had arisen in this case could have been avoided if instead of each State making its rules requiring that no single declaration shall cover more than one transaction, the Central Government in exercise of the power under section 13(1)(d) of the Act had made the rule. [651G H; 652A B]
The petitioner is before this Court calling in question order dated 12-09-2019 passed on I.A.No.VII, by the II Additional Principal Judge Family Court, Bengaluru in M.C.No.1256 of 2012 c/w. M.C.No.824 of 2012. 2. Heard the petitioner who appeared in-person. The respondent though served by all modes, has neither appeared nor represented. 3. The facts that lead the petitioner to this Court, in the subject petition, as borne out from the pleadings, are The petitioner gets married to the respondent on 12.11.2010 and got their marriage registered under the Special Marriage Act, 1954 (‘the Act’ for short). On their relationship turning sore, the parties are before the Family Court. The petitioner-wife has filed M.C.No.824 of 2012, seeking restitution of conjugal rights and the respondent- husband has filed M.C.No.1256 of 2012, seeking annulment of marriage. The issue in the lis does not concern merits of those proceedings. In the pending proceeding, the petitioner initially filed an application seeking maintenance at the hands of the husband. The same comes to be allowed by the Court by grant of maintenance at Rs.10,000/- per month. Challenging the said order, with regard to the quantum of maintenance granted, the respondent - husband preferred a petition before this Court in Writ Petition No.32994 of 2016, which had by then came to be dismissed. After about three years of filing of the application and grant of maintenance, the petitioner comes up with another application in I.A.VII seeking enhancement of maintenance under Section 37 of the Act, on the ground that there has been changed circumstances and cost of living has also increased. The learned Judge declines to accept the application on the ground that the petitioner has not pleaded any changed circumstances, which has forced her to seek enhancement of maintenance or modification of the earlier order and has not produced any documentary evidence to show that she is in need of money in addition to the maintenance already granted to her. Merely because the husband earns well, it is not a right for the wife to claim more maintenance, is the reason rendered by the concerned Court to decline acceptance of the application. The rejection of the application is what drives the petitioner to this Court in the subject petition. 4. The petitioner appearing in-person would vehemently contend that the respondent-husband is an Anesthesiologist and a retired Squadron Leader and, therefore, his earning is above Rs.1.5 lakhs to Rs.2/- lakhs per month; that the maintenance that is awarded in the year 2012 was Rs.10,000/- per month and in view of rise in cost of living and the petitioner having no earnings of her own, as she is still at nascent stage of Law practice, she is seeking enhancement of maintenance. 5. With regard to service of notice upon the husband, this Court has passed several orders in an effort to get the respondent - husband served. When ordinarily he could not be served, paper publication was also taken out in terms of order dated 25-07-2022. Even then, the respondent did not appear and the service of notice on him is held sufficient on 24-08-2022. In view of his absence throughout, the petitioner in-person is heard. 6. I have given my anxious consideration to the submissions made by the petitioner and perused the material on record. 7. The marriage between the petitioner and the respondent is not in dispute, neither its subsistence as on date. Two years after marriage, the petitioner - wife institutes M.C.No.824 of 2012 seeking restitution of conjugal rights and in the same breath, the respondent - husband institutes M.C.No.1256 of 2012 seeking annulment of marriage. As observed hereinabove, the issue in the lis does not concern merits of matrimonial petitions pending before the concerned Court. 8. The petitioner files an application before the concerned Court seeking maintenance at an earlier point in time, which was allowed by granting at Rs.10,000/- per month in terms of the order of the concerned Court dated 26-03-2016. The maintenance was awarded from the date of application. The said order came to be challenged by the husband before this Court by filing Writ Petition No.32994 of 2016 qua quantum of maintenance, which comes to be dismissed. The said dismissal becomes final. After three years of the said dismissal, the wife again files an application in I.A.No.VII seeking enhancement of maintenance under Section 37(2) of the Act. Section 37 (2) of the Act, reads as follows: “37. Permanent alimony and maintenance.― (2) If the District Court 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, vary, modify or rescind any such order in such manner as it may seem to the court to be just.” (Emphasis supplied) The afore-quoted provision permits the wife to approach the Court seeking enhancement of maintenance on changed circumstances and if the Court is satisfied, it may vary, modify or rescind the earlier order of grant of maintenance. The concerned Court after noticing the pleadings of the petitioner records that there is no change in circumstance narrated by the petitioner to grant enhancement of maintenance. The reasons rendered read “12. On going through the IA, the petitioner has not pleaded about any changed circumstance which has forced her to seek enhancement/modification of maintenance. So also, the petitioner/wife has also not produced any documentary evidence to show that she is in need of maintenance in addition to the maintenance awarded to her earlier. Merely because now the respondent/husband is earning well, which is not entitling the petitioner/wife to seek maintenance from him. Hence, the decisions relied by the petitioner/wife are not applicable to the case on hand with due respect to it . Therefore, the petitioner/wife has failed to satisfy the court that the earlier order of maintenance has to be modified by enhancing the maintenance from Rs.10,000/- p.m. to Rs.25,000/- p.m. Accordingly, I answered point No.1 in the It is this order that is called in question in the subject petition. The petitioner seeks enhancement of maintenance to Rs.25,000/- from Rs.10,000/- per month, which was granted on 26.03.2016. Though the application was filed three years after the grant of maintenance of Rs.10,000/- p.m., today we are at the end of 2022 and beginning of 2023. It is therefore, the maintenance that is granted is close to six years ago. The changed circumstance need not be that the wife should narrate every circumstance of her living, manner of living or the explicit details for enhanced maintenance. It is permissible for the Court to grant enhancement of maintenance on changed circumstances. The changed circumstances in the case would be passage of time and cost of living inter alia. Therefore, the reason so rendered by the concerned Court that there is no circumstance narrated for grant of enhancement of maintenance, is unsustainable. Whether the wife would be entitled to maintenance in a similar manner, if she had lived in the house of her husband is what is to be noticed. The Apex Court in the case of REEMA SALKAN v. SUMER SINGH SALKAN1, has held “13. Be that as it may, the High Court took into account all the relevant aspects and justly rejected the plea of the respondent about inability to pay maintenance amount to the appellant on the finding that he was well educated and an able-bodied person. Therefore, it was not open to the respondent to extricate from his liability to maintain his wife. It would be apposite to advert to the relevant portion of the impugned judgment which reads thus: (Reema Salkan case [Reema Salkan v. Sumer Singh DLT 16] , SCC OnLine Del paras 80-84) “80. The respondent during the cross- examination has admitted that he too is BCom, MA (Eco) and MBA from Kentucky University, USA; the respondent is a Canadian citizen working with Sprint Canada and is earning Canadian $(CAD) 29,306.59 as net annual salary. However, he has claimed that he has resigned from Sprint Canada on 23-11-2010 and the same has been accepted on 27-11-2010 and the respondent since then is unemployed and has got no source of income to maintain himself and his family. 81. In the instant case, the petitioner has filed the case under Section 125 CrPC, 1973 for grant of maintenance as she does not know any skill and specialised work to earn her livelihood i.e. in Para 26 of maintenance petition against her husband. However, the respondent husband who is well educated and comes from extremely respectable family simply denies the same. The respondent husband in his written statement does not plead that he is not an able-bodied person nor he is able to prove sufficient earning or income of the petitioner. 82. It is an admitted fact emerging on record that both the parties got married as per Hindu rites and customs on 24-3-2002 and since then the petitioner was living with her parents from 10-8-2002 onwards, and the parents are under no legal obligation to maintain a married daughter whose husband is living in Canada and having Canadian citizenship. The plea of the respondent that he does not have any source of income and he could not maintain the wife is no answer as he is mature and an able-bodied person having good health and physique and he can earn enough on the basis of him being able-bodied to meet the expenses of his wife. In this context, the observation made in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] by this Court is relevant and reproduced as under : (SCC OnLine Del para 7) ‘7. … an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child.’ 83. The husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself under the personal law arising out of the marital status and is not under contractual obligation. The following observation of the Apex Court in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) AIR 2014 SC 2875] , is relevant : (SCC p. ‘2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.’ 84. The respondent's mere plea that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife in presence of good physique along with educational qualification.” 14. The view so taken by the High Court is unassailable. Indeed, the respondent has raised a plea to question the correctness of the said view, in the reply-affidavit filed in this appeal, but in our opinion, the finding recorded by the High Court is 15. The only question is: whether the quantum of maintenance amount determined by the High Court is just and proper. The discussion in respect of this question can be traced only to para 85 of the impugned judgment which reads thus : (Reema Salkan case [Reema Salkan v. Sumer Singh Salkan, maintenance is concerned, nothing consistent is emerging on record to show the specific amount which is being earned by the respondent after 2010, however, the husband is legally bound to maintain his wife as per the status of a respectable family to which he belongs. The husband being able- bodied along with high qualification BCom, MA (Eco) and MBA from Kentucky University, USA could earn at least minimum of Rs 18,332 as per the current minimum wage in Delhi. Therefore, the petitioner being wife is entitled to Rs 9000 per month from 9- 12-2010 onwards till further orders.” 16. The principle invoked by the High Court for determination of monthly maintenance amount payable to the appellant on the basis of notional minimum income of the respondent as per the current minimum wages in Delhi, in our opinion, is untenable. We are of the considered opinion that regard must be had to the living standard of the respondent and his family, his past conduct in successfully protracting the disposal of the maintenance petition filed in the year 2003, until 2015; coupled with the fact that a specious and unsubstantiated plea has been taken by him that he is unemployed from 2010, despite the fact that he is highly qualified and an able-bodied person; his monthly income while working in Canada in the year 2010 was over Rs 1,77,364; and that this Court in Reema Salkan v. Sumer Singh Salkan [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 312] has prima facie found that the cause of justice would be subserved if the appellant is granted an interim maintenance of Rs 20,000 per month commencing from 1-11-2014. At this distance of time, keeping in mind the spiraling inflation rate and high cost of living index today, to do complete justice between the parties, we are inclined to direct that the respondent shall pay a sum of Rs 20,000 per month to the appellant towards the maintenance amount with effect from January 2010 and at the rate of Rs 25,000 per month with effect from 1-6-2018 until further orders. We order accordingly. 17. We, therefore, direct the respondent to pay the enhanced maintenance amount, as determined in terms of this order, to the appellant within a period of eight weeks from today after duly adjusting the amount already deposited in Court/paid to the appellant till date. The appellant will be entitled to forthwith withdraw the maintenance amount deposited by the respondent in Court, if any. The impugned judgment of the High Court is accordingly modified in the aforementioned terms.” The Apex Court holds that Section 125 of the Cr.P.C. was conceived to ameliorate agony, anguish, financial suffering of a woman and, therefore, maintenance should be awarded on a rational basis. At this distance of time, keeping in mind the spiraling inflation rate and high cost of living, an order should be passed granting such 9. In the light of the judgment rendered by the Apex Court (supra), it cannot be said that the petitioner was not entitled for enhancement in maintenance. The earning of the husband was not in dispute, as the Court records that merely because the husband earns Rs.1.5 lakhs to Rs.2.00 lakhs a month, enhancement of maintenance cannot be granted. Therefore, the reason rendered by the concerned Court is on the face of it, is erroneous. In the light of the judgment of the Apex Court and the facts obtaining in the case at hand, I deem it appropriate to enhance the maintenance to the wife from Rs.10,000/- to Rs.20,000/- a month, from the date of filing of the application before the 10. It is noticed that two petitions – one for annulment of marriage filed by the husband and the other for conjugal rights filed by the wife, are pending consideration before the concerned Court for the last 10 years. There can be no justification for keeping the matter for 10 long years. Therefore, the concerned Court shall make every endeavour to conclude the proceedings as expeditiously as possible and at any rate within 3 months, is a direction that needs to be given in the case at hand. 11. For the aforesaid reasons, I pass the following: (i) The Writ petition is allowed. (ii) The order dated 12.09.2019 passed on I.A.VII by the II Additional Principal Judge, Family Court, Bengaluru, stands quashed (iii) The application I.A.VII filed by the petitioner seeking enhancement of maintenance is allowed. The petitioner is entitled to maintenance at Rs.20,000/- per month from the date of the application. Bengaluru shall conclude the proceedings in M.C.Nos.824 of 2012 and 1256 of 2012, within three months from the date of receipt of a copy of this order, if not earlier. (v) It is needless to observe that the parties to the lis shall co-operate for the conclusion of proceedings. (vi) The concerned Court would be free to pass appropriate orders, in the event the parties would further seek to drag on the proceedings. The Court is further free to regulate the procedure for such speedy disposal.	The Karnataka High Court has said that 'passage of time' and 'cost of living' are valid grounds to be considered as changed circumstances for enhancing maintenance amount granted to wife under Special Marriage Act. A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Vineetha Thomas and increased the maintenance amount of Rs 10,000 granted to her in the year 2016 to Rs 20,000. The bench said, "The changed circumstance need not be that the wife should narrate every circumstance of her living, manner of living or the explicit details for enhanced maintenance. It is permissible for the Court to grant enhancement of maintenance on changed circumstances. The changed circumstances in the case would be passage of time and cost of living inter alia." The court thus set aside the order of Family Court which rejected her application under Section 37 of the Special Marriage Act for enhancement of maintenance. The Family Court had said that merely because the husband earns well, it is not a right for the wife to claim more maintenance. The High Court observed that maintenance of Rs.10,000 p.m. was granted almost six years ago. Referring to the judgment of the Apex court in the case of Reema Salkan v. Sumer Singh Salkan, it said, "The Apex Court holds that Section 125 of the Cr.P.C. was conceived to ameliorate agony, anguish, financial suffering of a woman and, therefore, maintenance should be awarded on a rational basis...At this distance of time, keeping in mind the spiraling inflation rate and high cost of living, an order should be passed granting such maintenance." It then held "In the light of the judgment rendered by the Apex Court (supra), it cannot be said that the petitioner was not entitled for enhancement in maintenance. The earning of the husband was not in dispute, as the Court records that merely because the husband earns Rs.1.5 lakhs to Rs.2.00 lakhs a month, enhancement of maintenance cannot be granted. Therefore, the reason rendered by the concerned Court is on the face of it, is erroneous." Case Title: Vineetha Thomas v. SQD LDR Dr Praveen Kumar Borushetty Case No: WP 16949 of 2021 Date of Order: 06-12-2022 Appearance: Vineetha Thomas–party in person.
Writ Petition is filed praying for issuance of a Writ of Mandamus, to direct the respondent No.5 to re-issue the Passport of the petitioner in Application Reference No.21-2003341220 dated 28.09.2021. 2. Heard either side. 3. The writ petitioner is an Indian Citizen. He is presently carrying on business in Malaysia. It is alleged that the petitioner was involved in a few Criminal Cases in the year 2017 and 2018 when he was in India. It is true that while one case is pending in F.I.R Stage, the other two are in CC Stage. 4. The petitioner's Passport is valid up to 07.07.2023. He had lost his Passport and he has also given a complaint before the local Police at Malaysia. Thereafter, the petitioner approached the Indian Embassy at Malaysia for re-issuance of the Passport. The Indian Embassy declined to do so by citing the involvement of the petitioner in the aforesaid Criminal 5. It is well settled that the pendency of the Criminal Case at the FIR stage, is not a bar for issuance of the Passport. It is true that if it has culminated in filing of the final report, permission of the Court for issuance of Passport will have to be obtained, but this requirement is applicable only if the petitioner wants to leave India. It cannot apply when the petitioner wants to come back to India. The learned counsel for the petitioner submitted that in similar circumstances, a learned Judge of this Court, in the case of Rahul Ravindran Vs. Union of India and others, reported in 2021 (4) MLJ 289 = MANU/TN/4595/2021, had taken favourable view and disposed of the writ petition on certain directions. I am of the view that this writ petition can also be disposed of with similar directions. 6. Accordingly, this Writ Petition stands disposed of with the (a) The petitioner is directed to submit a representation to the Indian Embassy at Malaysia enclosing a certified/web-copy of this order made in this writ petition; (b) Immediately on receipt of such representation, the Passport of the petitioner shall be re-issued/renewed for a (c) On such re-issuance/renewal, the petitioner shall come over to India and take immediate steps to participate in the Criminal proceedings and work out his remedy and defend (d) The petitioner shall also file a memo before the concerned Court, where the Criminal case is pending and bring to the notice of the said Court, the orders passed in this writ (e) If in case the criminal case does not come to an end within the period for which the Passport has been re- issued/renewed, the petitioner shall get the necessary permission only from the concerned Court in line with the notification issued by the Government of India through the Ministry of External Affairs in G.S.R.298(E) dated 14.04.1976 7. However, there shall be no orders as to costs. Ministry of External affairs, Ministry of Overseas Indian Affairs, 3.The High Commission of India,	The Madras High Court has observed that the pendency of a criminal case that is at the FIR stage is not a bar for the issuance of a passport. However, in cases where the final report has been filed, permission of the concerned Court has to be obtained for issuance of a Passport, it further said. Justice GR Swaminathan further observed that such a requirement is applicable only when the concerned person wants to leave India and not when the person wants to come back to India. In the present case, the Petitioner, carrying on a business in Malaysia, lost his passport and he filed a complaint before the local police in Malaysia. He then approached the Indian Embassy in Malaysia for the re-issuance of his Passport. However, the Indian Embassy declined to do so citing involvement of petitioner in criminal cases. The petitioner was involved in a few criminal cases while he was in India in the years 2017 and 2018. While one case is pending in the FIR stage, the other two are in CC Stage. Observing that earlier under similar circumstances the court had taken a favorable view, Justice Swaminathan allowed the issuance of a passport to the petitioner. The petitioner was directed to make an application to the Indian Embassy in Malaysia enclosing a copy of the order. The embassy was directed to renew/re-issue the passport of the petitioner for a period of two years. The Court also directed the petitioner to come over to India and participate in the criminal proceedings. The petitioner was also directed to inform the concerned Court about the orders passed in the present case. It was further observed that if the criminal case does not come to an end within the period for which the Passport was renewed, the petitioner could approach the concerned Court where the criminal case was going on and get necessary permissions in this regard. Case Title: Mr. Shaik Abdulla v. The Union of India and others Case No: WP No 12515 of 2022 Counsel for Petitioner: Mr.M.Sricharan Rangarajan For Mr.Mohamed Ashick Counsel for Respondent: Mr.K.Subbu Ranga Bharathi Central Government Standing Counsel (for R1,R2,R3 and R5), Mr.C.Jayaprakash Government Advocate (for R-6)
been clearly mentioned that they shall be deemed to have been made ap plicable from 1st April, 1974. The Board had set up 280 their case in the reply to the writ petition on the basis of these Regulations and it was the duty of the Division Bench of the High Court to have looked into the reply filed by the Board and to decide the effect of such statutory regulations in the present case. [291D E] (5) The High Court committed a serious error in ignoring clause IX of the First Settlement dated 22.2.1972 as well as the Regulations made by the Board in 1978. [291H] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2917 of 1985. WITH Civil Appeal Nos. 2900 2901, 2903 2916 of 1985 and 2918 21 of 1985. From the Judgment and Order dated 21.5.1984 (Judgment pronounced on 2.7. 1984) of the Rajasthan High Court in D.B. Civil Special Appeal No. 172 of 1984. Dr. L.M. Singhvi, Sushil Kumar Jain, Shahid Rizvi, Dr. D.K. Singh, Pradeep Agarwal, Pratibha Jain and Sudhanshu Atreya for the Appellants. Rajinder Singhvi, M.R. Singhvi and Surya Kant for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. All these civil appeals by special leave are directed against the Judgments of the Rajasthan High Court dated May 11, 1984, May 21, 1984 and the reasons whereof pronounced on 2.7. Controversy raised in all these cases is whether the respondents are entitled to pay scale No. 2 or pay scale No. 3. The Government of India vide its Resolution dated 20th May, 1966 constituted a General Wage Board for electricity undertakings for evolving wage structure, specialisation of nomenclature and job description. The recommendations of the said Wage Board were accepted by the Government of India in July, 1970. The Prantiya Vidyut Mandal Mazdoor Federation (in short the Federation) recognised trade union of the employees of the Rajasthan State Electricity Board presented their demands before the Labour Department of the 281 Government of Rajasthan for implementation of the recommen dations of the Wage Board. While the said industrial dispute between the management of the Board and its employees was pending before the Conciliation Officer, a settlement was arrived at on February 22. By this agreement the parties agreed that the existing scale of pay of various categories of posts would be revised w.e.f. 1st April, 1969. The schedule of the said agreement set out various catego ries of posts under different pay scales. At St. No. 21 Meter Reader/Meter Checker was mentioned under scale No. 3 i.e. Rs. 126 8 150 10 250. In pursuance to the above settle ment the Board issued a notification dated 22nd March, 1972 revising the pay scales of its employees w.e.f. 1st April, 1969. Subsequent to this agreement the Board entered into another agreement with the Federation on December 2, 1972 (hereinafter referred to as the Second Settlement). In the second settlement. it was mentioned that this was done in view of some anomalies and difficulties which had cropped up in the course of implementation of previous agreements dated January 26, 1970; April 27, 1971; and July 28, 1972. It was also mentioned in the said settlement that it was considered desirable to remove the anomalies and clarify certain points by mutual negotiations. The settlement was made effective w.e.f. 1st April, 1968. In the second settlement it was agreed to have two categories for Meter Readers i.e. Meter Reader I/Meter Checker I and Meter Reader II/Meter Checker II. The relevant Clause in this regard reads as under: "II. Under pay scale No. 3 technical read 21" Meter Reader I/Meter Checker I and under pay scale No. 2 technical, insert "7 Meter Reader /I/Meter Checker II" and insert the following Note below pay scale No. 2: "Meter Reader II/Meter Checker II appointed/fixed, pro moted/adjusted on or before 31.3. 1968 will be fixed in pay scale No. 3 instead of pay scale No.2. The Board in accordance with the second settlement issued another Notification dated 6.12. 1972 whereby the previous Notification dated March 22, 1972 was amended. Some of the employees, namely, Jagdish Prasad, Brij Mohan, Madho Singh, Prakash Chander, section Samuel, Brij Lal and Chander Bhan filed writ petitions in the High Court of Judicature for Rajasthan at Jodhpur and challenged the Notification dated 6th December, 1972. It may be noted that all these employees were appointees before 6.12. Learned Single Judge of the High Court by Judgment dated 21st March, 1979 allowed the write 282 petitions and quashed the Notification dated 6th December, 1972 mainly on the ground that the second settlement could not have been made as no conciliation proceedings were pending before such settlement and that the date 1.4.1968 mentioned in the notification for making the settlement effective was arbitrary and without basis. The Board filed on appeal before the Division Bench which by their judgment dated 19th December, 1979 dismissed the same and upheld the judgment of the Learned Single Judge. The Board implemented the judgment of the High Court in respect of Jagdish Prasad & Ors. and issued orders to provide scale No. 3 to all Meter Readers appointed upto 6.12. After 6th December, 1972 some more persons were appoint ed on the post of Meter Reader/Meter Checker Grade II i.e. in the pay scale of Rs.80 5 110 6 152 7 194 between the period 1972 1979. Some of the employees again filed writ petitions in the High Court. The High Court vide its judg ment dated 29th March, 1982 allowed the writ petitions on the ground that the second settlement had already been quashed by the earlier judgment given in Brij Lal vs Rajas than State Electricity Board, [1979] WEN UC 221. The High Court inter alia held and observed as under: "Once the second settlement dated December 6, 1972, no longer exists in view of non compliance with Section 19(2) of the aforesaid Act and in view of the decision of this Court in Brijlal 's case (supra), the only settlement which can be said to be in existence is the first settlement dated February 22, 1972. The aforesaid settlement only provides one grade (scale No. 3 item No. 21) for Meter Reader/ Check er, and, therefore, the petitioner is entitled to be fixed in that grade. Merely because the post of Meter Reader II/Checker II was advertised with pay scale No. 2 and the petitioner applied and was selected, it cannot be said that the petitioner is estopped now from challenging his fixation in the aforesaid pay scale. There can be no estoppel against statute. The petitioner was not knowing and could not know that it is the first settlement dated February 22, 1972 which was in force and the settlement dated December 6, 1972 was invalid, and, therefore, no case of estoppel is made out against the petitioner. Once this Court had quashed the second settlement dated December 6, 1972 and held that the first settlement 283 dated 22,2, 1972 Was in force, it Was necessary for the Board to have fixed the Meter Reader/Meter Checker in scale No. 3 item No. 21 of Schedule 'A ' to the first settlement. The Board in spite of demand made to it by the petitioner in this behalf refused to do it". A bunch of 35 identical writ petitions directing the Board to fix the petitioners in the pay scale No. 3 (Rs. 126 250) as revised from time to time were allowed by learned Single Judge of the High Court by a common order dated November 15, 1983. The Board filed special appeals before the Division Bench. The Division Bench dismissed the special appeals by orders dated 11.5.1984, 21.5.1984 and observed that the reasons will be recorded later on. The Division Bench thereafter pronounced the reasons by order dated 2.7. The Board has now filed these appeals restricted to such employees who were appointed as Meter Readers/Checkers grade II after 1.4.1974. It may also be mentioned at this stage that under Clause IX of the first settlement dated 22nd February, 1972 it was mentioned as under: "(IX) This agreement shall remain in force upto 31st March, 1974 and the Federation agrees not to raise any demand in respect of any of the matters covered by this agreement during the period of the operation of the agreement". It may also be mentioned that in exercise of the powers conferred by Section 79, sub sec. (c) and (k) of the Elec tricity (Supply) Act, 1948, the Board after obtaining con currence of the Government of Rajasthan and directives issued under Sec. 70(A) of the said Act and taking into consideration the suggestions made by the representatives of the employees, made regulations which are called Rajasthan State Electricity Board Employees (emoluments) Regulations, 1978. These regulations were made applicable retrospectively from 1st April, 1974. Under these regulations post of Meter Reader II/Meter Checker I1 was mentioned in scale No. 2 as revised in the pay sclae of Rs.260 8 324 10 464. Dr. L.M. Singhvi, St. Advocate appearing on behalf of the Board contended that irrespective of the earlier judg ment given by the High Court in Brij Lal vs R.S.E.B. (supra) quashing the second notification dated 6.12.1972 the present appeals having been filed against the Meter Readers appoint ed on or after 1.4.1974, they are not entitled to scale 284 No. 3 as the first settlement dated 22.2. 1972 was to remain in force upto 31st March, 1974. It was also argued that in the appointment orders of the respondent employees appointed after 1.4.1974, it was clearly mentioned that they were appointed as Meter Reader/Meter Checker II in pay scale No. 2 i.e. Rs.80 194. Dr. Singhvi further argued that the Board had also made regulations which had statutory force and were made applica ble retrospectively from 1st April, 1974. Under these regu lations also the post of Meter Reader II/Meter Checker II was mentioned in Scale No. 2. It was thus contended that considering the matter from any angle, the respondents were not entitled to scale No. 3 but were only entitled to scale No. 2 as revised from time to time. It was also pointed out by Dr. Singhvi that without prejudice to the above submis sions so far as respondents Laxman Lal, Sita Ram and Madhay Lal are concerned, they were otherwise also not entitled to get any relief in as much as they were appointed Meter Readers II after the notification of the Regulations of 1978. The Regulations were notified vide notification No. RSEB. F. RRBS/D.41 dated 4th May, 1978 whereas Laxman Lal, Sita Ram and Madhay Lal were appointed respectively on 19th August, 1978.8th October, 1979 and 9th April, 1979. Learned counsel for the respondent employees on the other hand submitted that in the settlement dated February 22, 1972 no distinction was made of Meter Reader Gr. I or II and the post of Meter Reader/ Meter Checker was placed in pay scale No. 3. It was submitted that validity of second settlement and the notification dated December, 6, 1972 was challenged in Brij Lal 's case and a Division Bench of the High Court had quashed the aforesaid settlement and the said judgment was not challenged by the Board before this Hon 'ble Court and the same had become final. Thereafter an arbitra tion award was given in 1979 between the Board and the Federation under which two categories of Meter Readers/Meter Checkers were again made. According to this award Meter Reader/Meter Checker II was placed in the pay scale No. 2 of Rs.80 194 and Meter Reader/Meter Checker I was placed in the pay scale of No. 3 of Rs. 126 250. It was thus submitted that all the Meter Readers appointed upto 1979 were entitled to scale No. 3. It was further submitted that the first settlement dated February 22, 1972 and the notification issued thereafter on March 22, 1972 continued to operate and there was only one pay scale of Rs. 126 250 for all Meter Readers and there being no classification of Gr. I or II, the pay scale of Rs. 126 250 remained in force, till the arbitration award was given on June 15, 1979. It was submit ted that all the respondents having been 285 appointed prior to June 15, 1979, they were entitled to pay scale No. 3. As regards the stand taken by the Board that it had framed Regulations regarding the fixation of pay scales it was contended that no such plea was taken in reply to the writ petitions filed by the employees. It was pointed out that the contention with regard to the first settlement having come to an end on March 31, 1974 as well as the contention raised on the basis of regulations was rightly negatived by the Division Bench of the High Court in the following manner: "It was contended by the learned counsel for the appellants that the learned Single Judge did not take into considera tion the fact that first settlement came to an end on March 31, 1974 and was not in force after that date. He submitted that the Board had powers under Sec. 79(c) and (k) of the to frame Regulations regard ing the fixation of pay scales. Learned counsel for the appellants was asked to show from the writ petitions whether this point was taken in the writ petitions or not. Learned counsel for the appellants candidly admitted that it was not raised in the writ petitions filed by the petitioners. It was, then. put to the learned counsel whether this point was argued before the learned Single Judge. Mr. S.N. Deedwania submitted that in the absence of the affidavit of the coun sel who argued on behalf of the appellants before the learned Single Judge positive assertion to that effect cannot be made. In the memo of appeal this ground, of course, has been taken but not in the manner in which it has been stated hereinabove. As this point was not taken in the writ peti tions and it was not argued before the learned Single Judge, we do not consider it necessary to examine it. We shall examine the validity of the order under appeal on the basis of the grounds that were argued on behalf of the petitioners before the learned Single Judge". It was further contended that during the pendency of these appeals additional affidavit was filed on behalf of Laxman Lal respondent. It was pointed out in the additional affidavit that Sh. Udai Lal and Sh. Shyam Lal were appointed as Meter Readers vide order dated 6.9.1974. These persons filed writ petitions Nos. 1191/81 and 1181/81 respectively. The aforesaid writ petitions were allowed by the High Court vide judgment dated 28.3.1982. One Sh. Prem Shankar who was appointed as Meter Reader vide order dated 16.5. 1974 also filed a writ petition 286 No. 120/81 in the High Court and it was also allowed by order dated 28th March, 1982. The Board did not challenge the aforesaid orders and issued order on 23.8.1982 imple menting the judgment of the High Court. The above examples were given in order to show that these persons were also appointed after 1.4.1974 and in their cases also relief was granted by the High Court and the Board never challenged the aforesaid judgments given in favour of Udai Lal, Shyam Lal and Prem Shankar. It has also been submitted that the Board has also published a revised revenue manual on 1.9. 1986 in which vide para 124 duties of Meter Readers have been laid down. It is contended that in the manual no dif ferent duties have been prescribed for Meter Reader II and Meter Reader I and thus in the discharge of duties there is no difference. A supplementary affidavit has been filed by Shri R.C. Harit, Deputy Director, Rajasthan State Electricity Board. It has been submitted in the supplementary affidavit as under: "That is so happened that after the aforesaid judgment dated 19th December, 1979 in the matter of R.S.E.B. vs Jagdish Prasad Brij Lal D.B. Appeal No. 179 of 1979 some other Meter Readers on the basis of this judgment filed various other writ petitions. In these writ petitions the question above the applicability of Regulations or the question as to whether the Respondent can challenge his own appointment by which they were appointed to Meter Reader II post were not at all raised or decided by the High Court. The High Court decided the said writ petitions only on the basis of the earlier judgment in the matter of R.S.E.B. vs Jagdish Prasad (Brij Lal). The Appellant Board implemented the said order. The respondent is trying to raise the said question which was neither been decided by the High Court and has been raised for the first time in this supplementary affidavit. On account of lapse of time, the appellant is finding it difficult to give reply. The Deponent has tried his best to locate the records but in such a short period he could not get the file of the case which was decided about eight years back as it appears to have been mixed up in the old record. That the order passed in the matter of Shanti Lal was a Judgment inter parties and, therefore, simply because the Board did not challenge the said order, it does not mean that the respondent can also take advantage of the same and can raise the question of equal pay for equal work. In this the 287 Appellants further state that all the persons except re spondent Shri Lehar Singh and Gharsi Lal (Geharial) in civil appeal in the present case were appointed after 7th Septem ber, 1974 and 16th May,1974 i.e. the date on which three persons whose matters were decided alongwith Shanti Lal 's case were appointed" We have thoroughly examined the record and have consid ered the arguments advanced b.y Learned counsel for the parties. It may be noted that all the above appeals are in respect of such employees who were appointed after 1.4.1974. In the appointment orders of all the respondents it was specifically mentioned that they were appointed as Meter Reader Gr. II in the pay scale of Rs. 80 194 (subsequently revised to Rs. 260 464). In Clause (ix) of the First Settle ment dated 22nd February, 1972 it was clearly mentioned that this agreement shall remain in force upto 31st March, 1974. The stand taken by the Board all along was that this settle ment was subsequently amended by another agreement (Second Settlement) on December 2, 1972. In this second Settlement certain anomalies and difficulties had cropped up in the course of implementation of earlier settlements and hence some clarifications were made by mutual negotiations. The clarifications relevant for our purpose were that the First Settlement was made effective w.e.f. 1st April, 1968 instead of 1st April, 1969 and two categories were fixed for Meter Readers i.e. Meter Reader I/Meter Checker I and Meter Read er II/Meter Checker II. Necessary amendments were made in the Schedules annexed to the Settlement according to which under pay scale No. 3 at Item No. 21 Meter Reader I/ Meter Checker I and under pay scale No. 2 at Item No. 7 Meter Reader II/Meter Checker II were inserted. This Second Set tlement was subsequently notified by a Notification dated 6.12. According to the Board this Second Settlement was merely a clarification settlement and not a new settle ment in as much as it sought to make clear the ambiguity which had cropped up in the First Settlement in the matter of fixing the grades and pay scales of the Meter Readers/Meter Checkers. The Notification dated 6.12.1972 which related to the Second Settlement dated 2.12.1972 was challenged by some of the employees by filing writ petitions in the High Court and Learned Single Judge by Judgment dated 21st March, 1979 allowed the writ petitions and quashed the notification dated 6th December, 1972. It may be noted that the Second Settlement was quashed on the ground that the Second Settlement could not have been made as no concilia tion proceedings were pending before such settlement and the date 1.4.1968 mentioned in the Notification was arbitrary and without any 288 basis. An appeal filed by the Board against the aforesaid decision was dismissed by the Division Bench of the High Court on 19th December, 1979. This litigation was commenced by such employees who were appointed prior to 6.12.1972. Subsequently employees appointed between the period 1972 1979 filed writ petitions in the High Court. The stand taken by these employees was that the Notification dated 6.12. 1972 had already been quashed by the High Court and as such they were to be governed by the First Settlement dated February 22, 1972 in which there was only one category Of Meter Reader/Meter Checker to whom pay scale No. 3 had been given and as such they were also entitled to pay scale No. 3. The High Court allowed the writ petitions and granted pay scale No. 3 to all the 35 petitioners. the Board has now come before this Court against such employees who were appointed after 1.4.1974. The contention of the Board is that even if for arguments ' sake the earlier decision given by the High Court may be considered as final, that was in respect of employees who were appointed before 6th December, 1972. As regards the present employees it has been submitted that no benefit can be granted in their case as the First Settlement itself was to remain in force upto 31st March, 1974 and in any case in the appointment orders of the re spondents it was clearly mentioned that they were appointed as Meter Reader/Meter Checker Gr. II in the pay scale No. 2. It has also been urged before us that the Board had made Rajasthan State Electricity Employees (emoluments) Regula tions 1978 published on 4.5. 1978 but the same were deemed to have been made applicable from 1st April, 1974. Under these regulations post of Meter Reader II/Meter Checker II in pay scale No. 2 and Meter Reader I/Meter Checker I have been placed in pay scale No. 3. Learned counsel for the employees respondents contended that though according to Clause IX of the First Settlement dated 22.2. 1972, it was mentioned that the same will remain in force till 31st March, 1974 yet the same would remain in operation until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement as provided under Sub section (2) of Section 19 of the (hereinafter referred to as the Act). It has been submitted that no such notice was given by the Board and the Second Settlement dated 2.12. 1972 and Notification dated 6.12. 1972 had already been quashed by the High Court in Brij Lal 's case (supra) and the same having become final, the first settle ment Would govern the parties. Reliance in support of the above contention is placed on The Life Insurance Corporation of India vs D.J. 289 Bahadur and Ors., [1980] Lab. I.C. Vol. 2 1218. Our attention was drawn to para 33 of the above case which reads as under: "The core question that first fails for consideration is as to whether the settlements of 1974 are still in force. There are three stages or phases with different legal effects in the life of an award or settlement. There is a specific period contractually or statutorily fixed as the period of operation. Thereafter, the award or settlement does not become honest but continues to be binding. This is the second chapter of legal efficacy but qualitatively different as we will presently show. Then comes the last phase. If notice of intention to terminate is given under Section 19(2) or 19(6) then the third stage opens where the award or the settlement does survive and is in force between the parties as a contract which has superseded the earlier contract and subsists until a new award or negotiated set tlement takes its place. Like Nature, Law abhors a vacuum and even on the notice of termination under Sections 19(2) or (6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiates settlements or seek a reference and award. Until such a new contract or award replaces the previous one, the former settlement or award will regulate the relations between the parties. Such is the understanding of industrial law at least for 30 years as precedents of the High Courts and of this court bear testi mony. To hold to the contrary is to invite industrial chaos by an interpretation of the ID Act whose primary purpose is to obviate such a situation and to provide for industrial peace. To distil from the provisions of Sec. 19 a conclusion diametrically opposite of the objective, intendment and effect of the Section is an interpretative, stultification of the statutory ethos and purpose. Industrial law frowns upon a lawless void and under general law the contract of service created by an award or settlement lives so long as a new lawful contract is brought into being. To argue other wise i, to frustrate the rule of law. If law is a means to an end order is society can it commit functional harakiri by leaving a conflict situation to lawless void"? In our view the above Sections 19(2) and 19(6) of the Act cannot give any benefit to the respondents in the fact of the present case. It is not 290 in dispute that the period of the First Settlement was agreed upto 31st March, 1974. The question which calls for our consideration is not the applicability of the First Settlement, but the real question to be considered is wheth er the Board could have appointed or not the respondents on the post of Meter Reader/Meter Checker Gr. II in pay scale No. 2 after 1.4. The respondents/employees in the present case want to take advantage of the First Settlement simply on the ground that it did not make any mention of Meter Reader/Meter Checker Gr. I or II and it simply made mention of Meter Reader/Meter Checker to whom pay scale No. 3 was given. The above ambiguity was clarified by an agree ment between the Board and the Union representing the em ployees as early as on 2.12. 1972 itself to the effect that Meter Reader/Meter Checker can be placed in two different grades. After this there was no restriction on the Board to make appointment of the Meter Reader/Meter Checker in Grade II after 1.4. That apart there was clear mention in the appointment orders of the respondents that they were appointed as Meter Reader/Meter Checker Gr. II in pay scale No. 2. Learned counsel for the respondents/employees were unable to place any law, Rule or Regulation of the Board to show that the Board had no power to make such appointments of the Meter Reader/Meter Checker in Gr. The Board had already taken the stand the first settlement was clarified by the second settlement and as such even if the High Court had quashed the second settlement, it was at least a suffi cient notice within the meaning of Section 19(2) of the Act that the Board had terminated the first settlement after 31.3. The Regulations deemed to have come into force from 1.4.1974 also clearly provided for pay scale No. 2 for Meter Reader/Meter Checker Gr. The Division Bench of the High Court refused to consider the above argument placed on behalf of the Board on the ground that learned counsel for the appellants was asked to show from the writ petitions whether this point was taken in the writ petitions or not and the learned counsel candidly admitted that it was not raised in the writ petitions filed by the petitioners. The High Court further observed in this regard that as this point was not taken in the writ peti tions and it was not argued before the Learned Single Judge, they did not consider it necessary to examine it. We have already extracted in extenso the observations of the High Court in this regard in the earlier part of the Judgment. There is a complete fallacy, in the above order in as much as the Board was not the petitioner before the High Court and there was no question of taking any such ground in the writ petitions. In one of the above appeals No. 2901 of 1985 Rajasthan State Electricity 291 Board & Ors. vs Sharad Chander Nagar reply to the writ petition filed by the Board has been placed on record as Annexure 'C '. In the said reply in Para (8) it has been stated as under: "That the contents of Para No. 8 of the writ petition are wrong and denied. The petitioner was not appointed at the time of settlement date 22.2.1972. The Wage Board set tlement dated 22.2.1972, which was in force upto 31.3. 1974, and thereafter the Rajasthan State Electricity Board Employ ees (Emoluments) Regulation 1978 was (sic) come into force with effect from 1.4.1974 and wages of all the employees were revised in pursuance of the Rajasthan State Electricity Board (Emoluments) Regulation 1978. The copy of the Board (Emoluments) Regulation 1978 is submitted herewith as Annex ure "B". Apart from the above circumstances of the case the Board in its reply to the writ petition also took the stand that the post of the Meter Reader Gr. I is a promotion post while the post of Meter Reader Gr. II is filled by direct recruit ment. The Rajasthan State Electricity Board (Emoluments) Regulation 1978 made in exercise of the powers conferred by Sec. 79 Sub sections (c) & (k) of the have Statutory force and it has been clearly mentioned that they 'shall be deemed to have been made applicable from 1st April, 1974. The Board had set up their case in the reply to the writ petition on the basis of these Regulations and it was the duty of the Division Bench of the High Court to have looked into the reply filed by the Board and to decide the effect of such statutory regulations in the present case. The Board under Clause (C) of Regulation 79 was fully empowered to provide for the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service or under the residuary clause (k) for any other matter arising out of the Board 's function under this Act for which it is necessary or expedient to make regulations. We have gone through the regulations which have been brought into force from 1st April, 1974 and in Schedule II group 'B ' at Item No. 7 Meter Reader II/Meter Checker II has been fixed in the revised pay scale of Rs.260 464 (original scale Rs.80 194) and in group 'C ' at Item No. 21 Meter Reader I/Meter Checker I in scale No. 3 revised pay scale Rs.370 570 (original scale Rs. 126 250). The High Court committed a serious error in ignoring Clause IX of the First Settlement dated 22.2.1972 as well as the Regulations made by the Board in 1978. 292 So far as the cases of Udai Lal, Shyam Lal and Prem Shankar are concerned even if the Board did not challenge the order of the High Court dated 28.3.1982 in their cases, it cannot act as res judicata or as estoppel against the Board in challenging the present order of the High Court before this Court. There is no question of applying the principle of equal pay for equal work in the facts and circumstances of this case and to allow Meter Readers II/Meter Checker Gr. II, the pay scale of Meter Reader/Meter Checker Gr. I. Apart from that, these controversies have been raised by the respondents for the first time by filing affidavits before this Court at the fag end of arguments, and these questions being mixed questions of fact and law, cannot be permitted to be raised now. In the result, we allow all these appeals, set aside the Judgment of the High Court, and dismiss all the writ peti tions. In the facts and circumstances of the case we direct the parties to bear their own costs. R.S.S. Appeals al lowed.	A settlement was arrived at on 22.2.1972 between the Rajasthan State Electricity Board and the Union representing its employees. In pursuance of this settlement, notification dated 22.3.1972 was issued revising the pay scales of var ious categories of posts, effective from 1st April, 1969. As per the settlement, Meter Reader/Meter Checker was mentioned under scale No. 3. On December 2, 1972 a Second Settlement was entered into between the parties with a view to removing certain ambigui ties in the earlier settlement. In this second Settlement, notified on 6.12.1972, it was agreed to have two categories of Meter Readers, that is, Meter Reader I/Meter Checker I and Meter Reader II/Meter Checker II. This settlement was made effective w.e.f. 1.4.1968. Some employees appointed before 6.12.1972 challenged the notification dated 6.12.1972. The learned Single Judge of the High Court allowed the writ petitions and quashed the notification mainly on the ground that the Second Settlement could not have been made as no conciliation proceedings were pending before the second settlement. The Division Bench dismissed the appeal filed by the Board. Accordingly, the Board implemented the Judgment of the High Court and issued orders to provide scale No. 3 to all the Meter Readers appointed upto 6.12.1972. Brijlal vs Rajasthan State Electricity Board, [1979] WLN (UC) 221, referred to. During this period, the State Electricity Board in exercise of the powers conferred by section 79, sub section (c) and (k) of the made regulations which are cared Rajasthan State 278 Electricity Board Employees (Emoluments) Regulations, 1978. These Regulations were made applicable retrospectively from 1st April, 1974. Under these regulations, post of Meter Reader II/Meter Checker II was mentioned in scale No. 2. In 1979, an arbitration award was given between the Board and the union under which two categories of Meter Readers/Meter Checkers were again made. Subsequently, 35 employees appointed between the period 197279 filed the present writ petitions in the High Court. The stand taken by these employees was that the Notification dated 6.12.1972 had already been quashed by the High Court and as such they were to be governed by the First Settlement dated February 22, 1972 in which there was only one category of Meter Reader/Meter Checker to whom pay scale No. 3 had been given and as such they were also entitled to pay scale No. 3. The High Court allowed the writ petitions and granted pay scale No. 3 to all the petitioners. The Division Bench dismissed the special appeal of the Board. The Board has now come before this Court against such employees who were appointed after 1.4.1974. The contentions of the Board before this Court were that (i) even if for arguments ' sake the earlier decision given by the High Court may be considered as final, that was in respect of the employees who were appointed before 6th December, 1972; (ii) as regards the present employees no benefit could be granted in their case as the First Settle ment itself was to remain in force upto 31st March, 1974; (iii) in any case in the appointment orders of the respond ents it was clearly mentioned that they were appointed as Meter Reader/Meter Checkers Gr. II in the pay scale No. 2; and (iv) under the Rajasthan State Electricity Employees (Emoluments) Regulations 1978, which were made applicable from 1st April, 1974 Meter Reader II/Meter Checker II have been placed in pay scale No. 2 and Meter Reader I/Meter Checker I have been placed in pay scale No. 3. On behalf of the employees respondents it was connected that (i) though according to Clause IX of the First Settle ment dated 22.2.1972 the settlement was to remain in force till 31st March, 1974 yet the same would remain in operation until the expiry of two months from the date on which a notice in writing of an intention to terminate the settle ment was given by one of the parties to the other party or parties to the settlement as provided under sub section (2) of Section 19 of the ; (ii) that an arbitration award was given in 1979 279 between the Board and the employees federation under which two categories of Meter Readers/Meter Checkers were again made and hence all the Meter Readers appointed upto 1979 before the arbitration award were entitled to scale No. 3, and (iii) the contention with regard to the first settlement having come to an end on March 31, 1974 as well as the contention raised on the basis of Regulations were rightly negatived by the Division Bench of the High Court as these points were not taken in the writ petitions and were not argued before the learned Single Judge. Allowing the appeals, this Court, HELD: (1) The respondents/employees in the present case want to take advantage of the First Settlement simply on the ground that it did not make any mention of Meter Reader/Meter Checker Gr. I or II and it simply made mention of Meter Reader/Meter Checker to whom pay scale No. 3 was given. The above ambiguity was clarified by an agreement between the Board and the Union representing the employees as early as on 2.12.1972 itself to the effect that Meter Reader/Meter Checker could be placed in two different grades. After this there was no restriction on the Board to make appointment of the Meter Reader/ Meter Checker in Grade II after 1.4.1974. [290B C] (2) There was clear mention in the appointment orders of the respondents that they were appointed as Meter Readers/Meter Checkers Gr. II in pay scales No. 2. Learned Counsel for the respondents/employees were unable to show that the Board had no power to make such appointments of the Meter Reader/Meter Checker in Gr. [290D] (3) The Board had already taken the stand that the first settlement was clarified by the second settlement and as such even if the High Court had quashed the second settle ment, it was at least a sufficient notice within the meaning of section 19(2) of the that the Board had terminated the first settlement after 31.3.1974. [290E] The Life Insurance Corporation of India vs D.J. Bahadur (4) The Rajasthan State Electricity Board (Emoluments) Regulation, 1978 made in exercise of the powers conferred by Sec. 79 Subsections (c) and (k) of the
Civil Appeal No. 1455 of 1969 Appeal by Special Leave from the Judgment and Order dated 7 12 1967 of the Punjab and Haryana High Court in F.A.O. No. 10 of 1963. Hardev Singh and R. section Sodhi for the Appellants. R. A. Gupta for Respondent No. 1. V. C. Mahajan, Naunit Lal and Kailash Vasdev for Respondent No. 2. The Judgment of the Court was delivered by KAILASAM J. This appeal is by special leave granted by this Court to Bishan Devi widow of late Bhagwan Das and her four children against the judgment and order dated 7th December, 1967 of the High Court of Punjab & Haryana dismissing the Claimants ' F.A.O. No. 10 of 1962 against the award of Punjab Motor Accidents Claims Tribunal, Chandigarh, dismissing their claim. The appellants filed a petition on 4th September, 1961 before the Chairman, Motor Accidents Claims Tribunal, Punjab, Chandigarh alleging that the husband of the first appellant died by having been run over by a lorry at midnight between the 8th and 9th July, 1961, at about a distance of 60 feet from the road. It was alleged that the truck was coming from Jullundur and it took a sudden turn and ran over the first appellant 's husband, Shri Bhagwan Das, and that it was being driven in a rash and negligent manner. The appellants 2 to 5 were the minor children of the first appellant, all of them being below 11 years 303 of age on the date of the filing of the petition. It was alleged that the monthly income of the deceased was Rs. 109/ per month and a claim was made for Rs. 50,000 as compensation. The respondents to the petition were (1) Sirbaksh Singh and (2) The Motor Owners ' Mutual Insurance Co. Ltd., Belgaum the insurer. The written plea was filed by the second respondent, the insurer, on 10th October, 1961. Some of the pleas are noteworthy and it is necessary to set them out in some detail. In para 4 the insurer pleaded that the "truck was stolen by somebody while it was standing. A report to the police was made to this effect. Whoever made this accident, if any, drove the truck without the consent of the owner, and, therefore, the respondents are not liable". In its reply parawise in paragraph 1 it reiterated "This truck did not meet with any accident nor was any intimation sent to the replying respondent". In paragraph 2 it was again reiterated "No accident took place as alleged. Somebody stole away the truck without the knowledge of the owner or driver. The respondents are not liable to pay any compensation. The person liable is the person who was driving the truck at the relevant time and not the owner. " In paragraph 11 it was pleaded "that the replying respondent is, in any case, absolved from any possible liability in connection with the alleged accident under the provisions of Sections 95 and 96(2) of the ". In paragraph 12 it was stated that the "offending vehicle was being driven at the relevant time by a driver who had no driving licence and was not even an authorised driver of respondent No. 1, as he had stolen the truck and the owner is therefore not liable". Again in paragraph 13 the insurer pleaded that the "truck at the time of the accident was being unauthorisedly used and driven without the permission or authority of the owner. As the truck was being used without the authority of the owner, therefore, the owner is not vicariously liable for the tort. The replying respondent is, therefore, also not liable." The first respondent, the owner of the vehicle filed his written statement on 16th November, 1961. In his statement he stated while dealing with the merits in paragraph 1 that "this truck did not meet with any accident nor was any intimation sent to the replying respondent". In paragraph 2 he stated that "No such accident occurred as alleged in which the husband of the applicant may have been killed due to the negligence of the driver of respondent No. 1. Allegation of negligence on the part of the driver is denied as incorrect. " On these pleadings parties went to trial. The claimants examined 5 witnesses AWs 1 to AWs 5. AW. 1 is Bachan Singh. He was sleeping on the night of occurrence on the roof of the Trade Union Office. The witness and others heard hue and cry at night when the offending truck 304 ran over the deceased. Bachan Singh and others came down and extricated the deceased and two other persons from underneath the truck. The deceased died at the spot and two other injured were removed to the Civil Hospital, Jullundur. AW. 2 is Darshan Singh. He stated that he was sleeping in his truck on the night of the accident. He on hearing the alarm got up and saw the two constables where the accident had taken place. Bhagwan Das was extricated from underneath the truck with two other injured persons. Bhagwan Das died at the spot. According to the witness the accident took place at 2 A.M. and the deceased was carried in the same offending truck to the hospital. AW. 3 is not a material witness as he does not speak of the incident but only saw the dead body and identified it. AW. 4 is Shiv Charan Das. He and another constable were on patrol duty on the night of the occurrence. At 1 a.m. the truck came from Jullundur side at a fast speed and turned towards the adda of the Union. Three persons including the deceased were sleeping on the kacha on cot which were run over. The deceased was injured seriously. He along with others were removed to the Civil Hospital, Jullundur, in the same truck. The witness lodged the F.I.R. with the A.S.I. who came at the spot from Kartarpur. In cross examination the witness stated "So far as I remember Anoop Singh had no driving licence." AW. 5 was on patrol duty along with AW. 4 and at about 1 a.m. he saw the truck coming from Jullundur side with registration No. PNJ 6430 at a fast speed. The truck turned to its left and overran the three cots on which three persons were sleeping and struck against the door of union office. The sleepers on the cots were injured and Bhagwan Das had died subsequently. According to the witness one Anoop Singh was driving the truck. In cross examination he stated "I do not know if Anoop Singh possessed the driving licence". On the side of the respondents three witnesses RWs. 1 to 3 were examined. 1 is the owner of the vehicle. He stated that on the night of the occurrence they drove the truck from Jullundur to Jallowal, his village, and parked it at 11.30 p.m. on the roadside. They left the truck and slept in their houses. They were informed by one Ishar Singh that the truck was missing. They left in search of the truck at about 1 a.m. at Bhogpur. At Bhogpur they learnt at 1.30 a.m. that the said truck was involved in an accident. He did not know who removed the truck. Though he went to report the loss of the truck to the police, as he learnt that the truck was caught in an accident he did not go to the police station and lodge the report about the theft of the vehicle. He denied that Anoop Singh was driving the truck and caused the accident. 2 is Anoop Singh. He stated that he did not know driving 305 and had not driven the truck in question nor did he cause any accident. The evidence of RW. 3 is not material. On the pleadings and the evidence referred to the Motor Accidents Claims Tribunal came to the conclusion that the claimants had failed to establish the identity of the driver and that the claimants were not even aware of the name of the driver who had driven the offending truck. Thus the applicants had failed in proving their case. In view of this finding the Claims Tribunal observed that it had no other alternative but to decide the issue against the applicants. Because of this finding it felt it was not necessary to discuss the other issues. The appeal by the claimants was rejected by the High Court. The High Court agreed with the finding of the Claims Tribunal and observed that "There is no doubt that the evidence on record is not enough to show that Anup Singh or any other person directly or tacitly authorised by Sirbaksh was driving the truck at the time of accident. Anup Singh as is evident from the material on the record did not possess the driving licence. It is difficult to believe that Sirbaksh Singh could have allowed him to drive his truck without a driving licence. " Holding that the truck was stolen by some irresponsible person who did not know driving and caused the accident by his reckless driving the High Court found that the owner of the truck cannot be held to be responsible. It is distressing to note that neither the Claims Tribunal nor the High Court considered the relevant evidence in the case. The claim was rejected by the Tribunal on the ground that the identity of the driver had not been established and by the High Court on the ground that "It is evident that Anoop Singh did not possess a driving licence and that the truck was stolen by some irresponsible person who did not know driving and that the owner cannot be held to be responsible". We cannot help observing that the plea put forward by the insurer is on the face of it frivolous and totally unacceptable. According to the insurer by his written statement which was filed on 10th October, 1961 a month before the written statement of the owner was filed, it was pleaded that somebody stole away the truck without the knowledge of the owner or the driver. It was further contended that the vehicle was being driven at the relevant time by a person who had no driving licence and was not even an authorised driver of respondent No. 1 as he had stolen the truck. The plea of the owner in his written statement which was filed on 16th November, 1961 more than a month thereafter is that "This truck did not meet with any accident nor was any intimation sent to the replying respondent". It may be noted that in this written statement which was filed after a fairly long interval there is no allegation by the owner that the truck was stolen. We do not know 306 on what basis the insurer about a month before the written statement was filed by the owner alleged that the truck was stolen without the knowledge of the owner or the driver. While the owner did not complain about any theft of the vehicle the insurer professes further knowledge that the vehicle was driven by somebody who had no driving licence without the authorisation of the owner. The F.I.R. was lodged at the police station at 4 30 a.m. at Kartarpur which is 12 miles from the scene of occurrence. The occurrence took place at about 2 a.m. In the F.I.R. which was lodged without any delay, Shivcharan Das Constable, who is examined as AW. 4 stated that he was on patrol duty along with Joginder Nath and when they reached the pucca road near Truck Stop Union Bhogpur the truck No. 6430/PNJ which was being driven by Anoop Singh driver at a very fast speed and carelessly, came and turned to the left below the road towards Truck Union. The truck overran the three cots and collided against the doors of the room of Truck Union Office and stopped. All the three cots were smashed and the three persons sleeping over them were seriously injured. He further stated that Anoop Singh ran away leaving the truck. The injured along with the deceased were taken to the Civil Hospital Bhogpur for treatment. As the doctor was not present the two injured were taken to Jullundur in the same truck. The F.I.R. was immediately registered. This witness in his evidence corroborated what he stated in the F.I.R. The evidence of A.W.4 was also corroborated by the testimony of AW. 5, Joginder Nath, who was on patrol duty along with AW. 4. He stated that at about 1 a.m. a truck came from Jullundur side with registration No. PNJ 6430 with fast speed. It turned to its left and overran the three cots in which three persons were sleeping and struck against the door of the Union 's office. The Motor Accidents Claims Tribunal rejected the evidence of AWs. 4 and 5 on the ground that as the time of accident is said to be 1 a.m. it is not possible for the witnesses to have recognised the driver. The evidence of AW. 4 was rejected as he failed to identify Anoop Singh. 5 stated that he knew Anoop Singh and that it was he who was driving the truck and that Anoop Singh ran away after causing the accident. Neither AW. 4 nor AW. 5 was asked that they would not have been in a position to see the driver as they were about 30 to 40 yards away when the accident took place. According to AW. 4 the deceased and the other injured were removed to the Bhogpur hospital and from there to the Jullundur hospital in the same truck. We fail to understand the basis on which the Claims Tribunal came to the conclusion that the identity of the driver was not established. Equally, unacceptable is the conclusion of the High Court that "as suggested by the counsel for the respondents the truck was stolen by some irres 307 ponsible person who did not know the driving and by his reckless act caused the accident. " There has been practically no discussion of the evidence of AWs. 4 and 5. There is no reference to the prompt F.I.R. lodged by AW. 4 who was on patrol duty wherein the material particulars about the incident and the driver have been furnished. The suggestion made by the counsel for the respondents that the truck was stolen, as pointed earlier, was not pleaded by the owner of the vehicle even though he filed his written statement on 16th November, 1961, about a month after the date of the occurrence. All that the owner stated was that the truck did not meet with any accident. When he was examined he stated that he parked the truck at 11 30 p.m. on the roadside but when he returned he found the truck missing. He left in search of the truck at 1 a.m. and learnt at 1 30 a.m. that the truck was involved in an accident. Though he went to report the loss of the truck as he learnt that it was involved in an accident he did not go to the police station and lodge a report regarding theft. This statement is directly contrary to what he stated in the written statement that the truck did not meet with any accident. The insurer who filed his written statement a month before the owner filed the written statement stated that the truck was stolen by somebody and that a report to the police was made to this effect. No such report was ever made to the police and this statement is clearly false. Later in the course of the statement the insurer stated that the truck did not meet with any accident. He further went to the extent of stating that somebody stole away the truck without the knowledge of the owner of the driver, and that if at all it is only the person who was driving the truck who is liable and not the owner. It is significant to note that no one was examined to substantiate the facts alleged in the written statement of the insurer. The insurer was not satisfied with the above mentioned false, frivolous and irresponsible allegations. He proceeded to state that the driver who was driving the vehicle did not have a driving licence and was not the authorised driver of the owner as he had stolen the truck. Apart from not examining himself the insurer did not make any attempt to substantiate his plea that the driver who was driving the vehicle did not have the driving licence. We are constrained to state that the plea taken by both the owner and the insurer is palpably false and made without any sense of responsibility with a view to somehow escape the liability. It is most unbecoming of an insurance company to have acted in this callous and irresponsible manner. There is no finding by the Claims Tribunal that the truck was driven by an unauthorized person. The High Court found that the truck ought to have been stolen and driven by some irresponsible person who did not know the driving. The High Court has stated "Anoop Singh as is 308 evident from the material on record did not possess the driving licence". The evidence that Anoop Singh was driving the vehicle was given by AWs. 4 and 5, the policemen on patrol duty. According to AW. 4 the truck was driven by Anoop Singh. In fact in his F.I.R. he stated that it was Anoop Singh who was driving the truck. In cross examination the witness stated that the case against Anoop Singh is still pending in the court and as far as he could remember he had no driving licence. 5 when questioned stated: "I do not know if Anoop Singh possessed the driving licence". According to the owner Anoop Singh was not the driver and it was wrong to say that Anoop Singh was driving the truck and caused the accident. Anoop Singh when examined as RW.2 stated that he did not know driving and had not driven the truck in question nor did he cause any accident. As we have pointed out earlier the evidence of the owner of the truck is totally unreliable. The evidence of RW. 2 is self serving and is made with a view to escape the prosecution that was launched against him. The only material about Anoop Singh not having a driving licence is the statement of AW. 4 in cross examination that he did not remember whether Anoop Singh had a licence and that of AW. 5 that he did not know whether Anoop Singh possessed the driving licence. It is surprising that the High Court observed "It is evident from the material on record that Anoop Singh did not possess the driving licence." Under Sec. 96(2) (b) (ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed. The evidence of AWs. 4 and 5 who have been examined clearly establishes that Anoop Singh was driving the vehicle. The two stray suggestions and the reply given by the two witnesses is not sufficient to establish that Anoop Singh was not licensed to drive a truck. It is the duty of the insurer to have substantiated his plea. We have no hesitation in rejecting the insurer 's plea as false especially as the owner who filed the written statement a month later did not support the former 's plea. The deceased at the time of his death was working as Patwari and was drawing Rs. 109/ p.m. as his salary. The wife of the deceased Bishan Devi as AW. 6 has deposed that the deceased was drawing a salary of Rs. 109/50 per month out of which he used to handover Rs. 100/ to her for household expenses. The deceased had many more years to go and his contribution to the household which consisted of his wife and four children would have increased. In the circumstances we feel that a compensation of Rs. 20,000/ and costs of 309 Rs. 2,500/ in all the courts is payable by the two respondents to her and the four children. The wife and the four children will take the amount equally. The amount of Rs. 20,000/ will bear interest at 6% per annum from the date of the claim i.e. from 4th September, 1961. There will be a joint decree against both the respondents. The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal. The victim in this case Bhagwan Das was run over by a Motor vehicle on the night between 8th and 9th July, 1961 leaving behind him his wife Bishan Devi and four minor children. For Eighteen long years they have been before courts asking for some compensation for the death of their bread winner due to rash and negligent driving of a motor vehicle. One is tempted to remark that they would have been better of but for their hope of getting some relief in courts. They not only had to spend their time in courts but to borrow to fight for their rights. It is common knowledge that such helpless and desperate condition is exploited by unscrupulous persons who manage to get away with the bulk of the compensation money if and when the claimants succeed in getting it. The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving. The burden thus placed is very heavy and difficult to discharge by the claimant. The records of police investigation are not made available to the Tribunal. The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist in coming to a proper conclusion. The insurance company in quite a few cases, as in the present one, takes an unreasonable stand and raises all sorts of untenable pleas just to thwart relief to the dependants. In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law. Due to the inordinate delay in disposal of claim petitions before the motor Claims Tribunal the badly needed relief to the claimants is not available for several years. Further time is taken in appeals. All along the dependants will have to carry on without any relief. It has been time and again pointed out by courts that insistence of proof of rash and negligent driving causes considerable hardship on the claimants. We may point out that repeated suggestions have been made by this Court and several High Courts expressing the desirability of bringing a social insurance which would provide for direct payment to the dependants of the victim. This Court in Minu B. Mehta and Anr. vs Balkrishna Ramchandra Nayan and Anr. has referred to the deci 310 sion of the Kerala High Court in Kasavan Nair vs State Insurance Officer where the High Court expressed itself thus: "Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers. " The Madras High Court in M/s. Ruby Insurance Co. Ltd. vs V. Govindaraj and Ors. has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250/ to Rs. 300/ a month. In a recent decision in the State of Haryana vs Darshan Devi & Ors. this Court observed: "Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no fault liability and on the spot settlement of claims should become national policy. " Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today. It is for the legislature to make provisions for immediate and adequate relief to the dependants in motor accident cases. The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents. When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained. The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled. The insurance companies are now nationalised and the necessity for awarding lump sum payment to secure the interest of the dependants is no longer there. Regular monthly payment could be made through one of the nationalised banks nearest to the place of residence of the dependants. Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured. Ordinarily in arriving at the lump sum payable, the Court takes the figure at about 12 years payment. Thus in the case of monthly compensation of Rs. 250/ payable, the lump 311 sum arrived at would be between 30,000/ and 35,000/ . Regular monthly payment of Rs. 250/ can be made from the interest of the lump sum alone and the payment will be restricted only for the period of dependency of the several dependants. In most cases it is seen that a lump sum payment is not to the advantage of the dependants as large part of it is frittered away during litigation and by payment to persons assisting in the litigation. It may also be provided that if the dependants are not satisfied with the minimum compensation payable they will be at liberty to pursue their remedies before the Motor Accident Claims Tribunal. N.V.K. Appeal allowed.	The appellants in their claim petition, before the Motor Accidents Claims Tribunal, claimed Rs. 50,000/ as compensation alleging that the husband of the first appellant was run over by a truck which was driven in a rash and negligent manner. Appellants 2 to 5 were the minor children of the first appellant. The claim was contested by the owner of the truck, Respondent No. 1 and the insurer, Respondent No. 2. A written plea was filed by the second respondent contending that the truck had been stolen by somebody while it was standing, that a report to the police had been made to this effect and that the truck was driven without the consent of the owner and consequently the respondents were not liable. It was further pleaded that the replying respondent was absolved from any possible liability in connection with the alleged accident under the provisions of Ss. 95 and 96 (2) of the . The first respondent in his written statement filed about a month after that of the second respondent, contended that the truck did not meet with any accident nor was any intimation sent to the replying respondent. The Motor Accident Claims Tribunal, came to the conclusion from the pleadings and evidence that the claimants had failed to establish the identity of the driver and the claimants not even being aware of the name of the driver who had driven the offending truck, had failed to prove their case and rejected the claim. The appeal of the claimants to the High Court was rejected, the High Court agreeing with the finding of the Claims Tribunal and further holding that the truck was stolen by some irresponsible person who did not know driving and by reckless driving caused the accident and therefore the owner of the truck cannot be held responsible. Allowing the appeal, ^ HELD: 1. According to the insurer by his written statement which was filed a month before the written statement of the owner it was pleaded that somebody stole the truck without the knowledge of the owner or the driver. The plea of the owner in his written statement filed more than a month there after, was that the truck did not meet with any accident. While the owner did not complain about any theft of the vehicle, the insurer professed further knowledge that the vehicle was driven by somebody who had no driving licence 301 and without the authorisation of the owner. Apart from not examining himself the insurer did not make any attempt to substantiate his plea that the driver who was driving the vehicle did not have the driving licence. The plea taken by both the owner and insurer is palpably false and made without any sense of responsibility with a view to somehow escape liability. It is most unbecoming of an insurance company to have acted in this callous and irresponsible manner. [305 F H, 306B, 307G] 2. There is no finding by the Claims Tribunal that the truck was driven by an unauthorised person. The High Court found that the truck ought to have been stolen and driven by some irresponsible person who did not know driving. According to AW 4 the truck was driven by RW 2. In fact in the F.I.R., AW 4 stated that it was RW 2 who was diving the truck. In cross examination he stated that the case against RW 2 is still pending in the court and as far as he could remember he had no driving licence. The evidence of the owner of the truck is totally unreliable. The evidence of RW 2 is self serving and is made with a view to escape the prosecution that was launched against him. It is therefore surprising that the High Court observed that it is evident from the material on record that RW 2 did not possess the driving licence. [307H 308D] 3. Under section 96(2)(b)(ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed. The evidence of AWs. 4 and 5 clearly establishes that R.W. 2 was driving the vehicle. [308E F] 4. The Motor Accident Claims Tribunal rejected the evidence of AWs. 4 and 5 on the ground that as the time of accident is said to be 1 a.m. it is not possible for the witnesses to have recognised R.W. 2 (driver). The evidence of AW 4 was rejected as he failed to identify RW 2. AW 5 stated that he knew RW 2 and that it was he who was driving the truck and that he ran away after causing the accident. The basis on which the Claims Tribunal came to the conclusion that the identity of the driver was not established is not acceptable. Equally unacceptable is the conclusion of the High Court that as suggested by the counsel for the respondents the truck was stolen by some irresponsible person who did not know driving and by his reckless act caused the accident. There has been no discussion of the evidence of AWs 4 and 5. [306F G, H 307A] 5. The deceased at the time of his death was working as a Patwari and was drawing Rs. 109/ per month as his salary, out of which he used to handover Rs. 100/ to Appellant No. 1 for household expenses. The deceased had many more years to go and his contribution to the household which consisted of his wife and four children would have increased. Rs. 20,000/ as compensation and Rs. 2,500/ as costs awarded. [308H 309A] 6. The instant case brings into focus the difficulties experienced by dependants in obtaining relief before the Motor Accidents Claims Tribunal. The law as it exists, requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving. The burden thus placed is very heavy and difficult to discharge by the claimant. The records of police investigation are not made available to the Tribunal. The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist it in coming to a proper conclusion. The insurance company in quite a 302 few cases, takes an unreasonable stand raises all sorts of untenable pleas just to thwart relief to thee dependants. In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law. It is for the legislature to make provisions for immediate and adequate relief to the dependants in motor accident cases. [309B, E F, 310E] 7. The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents. When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained. The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled. The insurance companies being nationalised the necessity for awarding lump sum payment to secure the interest of the dependants is no longer there. Regular monthly payments could be made through one of the nationalised banks nearest to the place of residence of the dependants. Payment of monthly instalments and avoidance of lump sum payment would reduce substantially the burden on the insurer and consequently of the insured. [310E G] Minu B. Mehta & Anr. vs Balkrishna Ramchandra Nayan & Anr., 1977. Accidents Claims Journal 118; State of Haryana vs Darshan Devi & Ors., 1979 Accidents Claims Tribunal 205; referred to.
Appeal No. 26 of 1966. Appeal from the judgment and order dated October 28, 1964 of the Punjab High Court in I. T. Reference No. 28 of 1962. section K. Mitra, Gopal Singh, section P. Nayyar and R. N. Sachthey,. for the appellant. Veda Vyasa and B. N. Kirpal, for the respondent. The Judgment of the Court was delivered by Sikri, J. At the instance of the Commissioner of Income Tax,, the Appellate Tribunal, Delhi Bench "C", referred the following question "Whether the cost of land is entitled to depreciation under the schedule to the Income tax Act alongwith the cost of the building standing thereon.?" 182 This question arose out of the following facts : The respon dent, M/s Alps Theatre, hereinafter referred to as the assessee, carries on business as exhibitor of films. The Income Tax Officer initiated proceedings under section 34(1)(b) of the Indian Income Tax Act, 1922, on the ground that in the original assessment depreciation was allowed on the entire cost of Rs. 85,091/ , shown as cost ,of the building which included Rs. 12,000/ as cost of land. The Income Tax Officer, by his order dated February 22, 1959, recomputed the depreciation, excluding cost of land. The assessee ap pealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner upheld the order of the Income Tax Officer. The assessee then appealed to the Appellate Tribunal which accepted the appeal. In accepting the appeal it observed as follows : "You cannot conceive of a building without the land beneath it. It is not possible to conceive of a building without a bottom. What Section (10) (2) (vi) of the Act says is that depreciation will be allowed on the building. The word "building" itself connotes the land upon which something has been constructed. It was, therefore, wrong on the part of the authorities below to exclude the value of the land upon which some construction was made. The true meaning of the word 'building ' means the land upon which some construction has been made. The two must necessarily go together. " The High Court answered the question referred to it against the Department. Mahajan, J., observed that in Section 10(2)(vi) of the Income Tax Act, a building is placed at par with machinery and furniture and is treated as a unit, and, therefore, for the purposes of depreciation a building cannot be split up into building material and land. He further observed that if the Legislature wanted to exclude land from the building for purposes of depreciation it could have said so. He then added : "Moreover, depreciation is allowed on the capital. The capital here is a unit building. If later on it is sold and it fetches more than its written down value the surplus is liable to tax [see in this connection Section 10(2) (vii) proviso.]" He felt that "the crux of the matter is that the building is treated as a unit for purposes of depreciation or repair, and there is no warrant in the Act which would permit us to split the unit for the purposes of section IO." He further felt that at any rate two equally plausible interpretations are possible and the one in favour of the assessee should be adopted. 183 Dua, J., in a concurring judgment, felt that the question was not free from difficulty, but he answered the question in favour of the assessee on the ground that much could be said for both points of view and the view in support of the assessee 's submission had found favour with the Tribunal which had not been shown to be clearly erroneous. The answer to the question depends upon the true interpreta tion of section 10(2)(vi), and in particular whether the word "building" occurring in it includes land. Section 10 deals with the profits and gains derived from any business, profession or vocation. Section 10(2) provides that such profits or gains shall be computed after making certain allowances. The object of giving these allowances is to determine the assessable income. The first three allowances consist of allowance for rent paid for the business premises, allowance for capital repairs and allowance for interest in respect of capital borrowed. Sub clauses (iv), (v), (vi), (vi a) and (vii) of section 10(2) deal with allowances in respect of buildings, machinery, plant or furniture. The word "building" must have the same meaning in all these clauses. Sub clause (iv) runs as under : "in respect of insurance against risk of damage or destruction of buildings, machinery, plant, furniture,stocks or stores, used for the purpose of the business,profession or vocation, the amount of any premium paid. " "Building" here clearly, it seems to us, does not include the site because there cannot be any question of destruction of the site. Clause (v) reads : " in respect of current repairs to such buildings, machinery, plant or furniture, the amount paid on account thereof. " This again cannot include the site. Then we come to sub cl. (vi), the relevant portion of which reads as under : "in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent . as may in any case or class of cases be prescribed. " It would be noticed that the word used is "depreciation" and "depreciation" means : a decrease in value of property through wear, deterioration, or obsolescence the allowance made for this in book keeping, accounting, etc." (Webster 's New World Dictionary '). In that sense land cannot depreciate. The other words to notice are "such buildings". We have noticed that in sub cls. (iv) and 184 (v), "building" clearly means structures and does not include site. That this is the proper meaning is also borne out by r. 8 of the Indian Income Tax Rules, 1922. Rule 8 has a schedule, and as far as buildings are concerned, it reads as under : Class of asset Rate per Remarks centage 1.Buildings (1) First class substantial buildings of materials. 2.5 Double these numbers (2)Scond class building will be taken for factory of less substantial con 5 buildings excluding struction. offices,godowns,officer 's (3)Third class building 7.5 and employees quarters. of construction infeior to that of second class building,but not inclu ding purely temporory erection. (4) Purely temporary No rate is prescribed: erection such as wooden renewals will be allowed structure. as revenue expenditure. The rate of depreciation is fixed on the nature of the structure. If it is a first class substantial building, the rate is less. In other words, first class building would depreciate at a much less rate than a second class building. It would be noticed that for purely temporary erections, such as wooden structures, no rate of depreciation is prescribed and instead renewals are allowed as revenue ex penditure. But if the contention of the respondent is right, some rate for depreciation should have been prescribed for land under the temporary structures. Further it would be difficult to appreciate why the land under a third class building should depreciate three times quicker than land under a first class building. One other consideration is important. The whole object of section 10 is lo arrive at the assessable income of a business after allowing necessary expenditure and deductions. Depreciation is allowable as a deduction both according to accountancy principles and according to the Indian Income Tax Act. Why '? Because otherwise one would not have a true picture of the real income of the business. But land does not depreciate, and if depreciation was allowed it would give a wrong picture of the true income. The High Court relied on Corporation of the City of Victoria and Bishop of Vancouver Island(), but in our view this case is distinguishable and gives no assistance in determining the meaning of the 'word 'buildings ' in the context of section 10(2)(vi). In this case the Privy Council had to construe section 197(1) of the Municipal Act, British Columbia, which exempted from municipal rates and taxes (1) [1912] 1 2 A.C. 384. 185 "every building set apart and in use for the public worship of God." The Privy Council held that the above exemption applied to the land upon which a building of the description mentioned above was erected as well as to the fabric. The Privy Council was not concerned with the question of depreciation but with the question of exemption from Municipal rates. In the result the appeal succeeds, the judgment of the High Court set aside and the question referred is answered in the negative and against the assessee. In the circumstances there will be Y.P Appeal allowed.	The Revenue authorities did not allow depreciation on the cost of land alongwith the cost of building standing thereon. The Appellate Tribunal accepted the assessee 's appeal and the High Court answered the question in favour of the assessee. In appeal to this Court by the Revenue: HELD: The appeal must be allowed. Building under section 10(2), does not include the site because there cannot be any question of destruction of the site. [183 E] The word used in section 10(2)(vi) is "depreciation" and "depreciation" means "a decrease in value of property through wear, deter oration, or obsolescence, and allowance made for this in book keeping, accountings etc." In that sense land cannot depreciate. [183 H] By r. 8 of the Indian Income tax Rules the rate of depreciation is fixed on the nature of the structure. It would be difficult to appreciate why the depreciation of land would be dependant on the class of structures. [184 D E] The whole object of section 10 is to arrive at the assessable income of a building after allowing necessary expenditure and deductions. If depreciation on land was allowed it would give a wrong picture of the true income. [184 F G] Corporation of the City of Victoria and Bishop of Vancover , distinguished.
A. No. 190 and 191 of 1969, and 63 and 64 of 1972. Appeals by certificate/special leave from the Judgment and Order dated September 9, 1968 of the Gujarat High Court in Criminal Appeals Nos. 486 and 555 of 1966. Urmila Kapoor, B. D. Sharma for section P. Nayar and Kamlesh Bansal, for the appellant (In all the appeals). M.V. Goswami, for the respondent (In Cr. Nos. 190 of 1969 and 63 of 1972). H.K. Thakur and section K. Dholakia, for the respondent (In Cr. 191 of 1969 and 64 of 1972). The Judgment of the Court was delivered by Grover, J. This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court. Two appeals, i.e. Cr. No. 190 & 191 of 1969 had been brought by certificate. The certificates being defective for want of reasons they could not be entertained on that short ground. However, two petitions for special leave were filed and the same were granted. Those appeals (Cr. 63 & 64 of 1972) will be dealt with in this judgment. The facts may be stated. Manshankar Prabhasbankar Dwivedi was at the material time a Senior Lecturer at the D.K.V. 315 Arts & Science College, Jamnagar which is a Government college. Vallabhdas Gordhandas Thakkar was a legal practitioner conducting cases before the Income tax and Sales tax Departments. He was also a resident of Jamnagar. It was alleged that in April 1964 the Physics practical examination for the first year B.Sc. was to be held by the Gujarat University. One of the centres was Surendranagar. Dwivedi had been appointed as an Examiner for Physics practical. He, is alleged to have accepted gratification of Rs. 500/ other than legal remuneration for showing favour to a candidate Jayendra Jayantilal Shah by giving him more marks than he deserved in the Physics practical examination. It is stated that he had obtained that amount through Thakkar. Dwivedi was charged with commission of offences under section 161, Indian Penal Code and section 5 (2) read with section 5 (1 ) (d) of the Prevention of Corruption Act, 1947, hereinafter called the 'Act. Thakkar was charged under section 165 A, Indian Penal Code, and section 5(2) of the Act read with section 114 of the Indian Penal Code. The Special Judge who, tried both these persons found them guilty of the offence with which they were charged. He imposed a sentence of 2 years ' rigorous imprisonment and a fine of Rs. 1,000/ , (in default further rigorous imprisonment for six months) Oil each of these persons. Both the convicted persons filed appeals to the High Court '. The High Court found that the prosecution case had been proved against both Dwivedi and Thakkar on the merits but on the view which the High Court expressed about the ambit and scope of the sections under which the charges were laid they were acquitted, The present appeals have been filed by the State against both these persons who are respondents before us. It is unnecessary to give the entire prosecution story. We may only refer to what is the last and final stage of that story. According, to the prearranged plan it was alleged that Pranlal Mohanlal who was the complainant and who was the brother in law of the student, Jayendra, went to the college, where the examination was to take place, along with a panch witness Shivaji. Thakkar was in the porch of the college and he demanded the money for being given to Dwivedi Pranlal, however, insisted that the money would be paid after he had talked the matter over with Dwivedi,and the work was done. Thakkar replied that Dwivedi was busy and would be available after some time. So they all left. Thakkar, followed them. When Pranlal and Shivlal reached the Trolly Station Thakkar came there and asked them to go with him to a place called 'Vikram Lodge ' which they did. There Thakkar again demanded money but Pranlal gave the same reply which he had given before. At about 11 A.M. these three persons came back to the college and Went to the first floor where 3 L128SupCI/72 316 the examination hall was situate and stood outside the hall. There Thakkar brought Dwivedi and Dwivedi said "why are, you delaying. You are a fool you will spoil the life of the student. Pay the amount to Thakkar". Then Pranlal paid Rs. 500/ lo Thakkar in the presence of Dwivedi. Thakkar counted the money and put it in his pocket. Dwivedi went back to his room. Thereafter the signal was given and the raiding party arrived and made the recoveries. Necessary panchnamas were prepared. The High Court agreed with the Special Judge that the prosecution case against the present respondents in respect of the demand and acceptance of bribe of Rs. 500/ for the purpose of giving more marks to Jayendra had been proved. It was, however, argued before the High Court that as regards section 161, Indian Penal Code,, it was necessary that the person committing that offence must be a public servant. Although Dwivedi was a Senior Lecturer in a Government College the bribe was sought 'to be obtained not in connection with any official act or in connection with the exercise of his official functions as a public servant but in connection with his work as an Examiner of the Gujarat University. An Examiner of the University did not fall within the definition of a "public servant" as given in section 21 of the Indian Penal Code. It was maintained on behalf of Dwivedi that although he had abused his position as an Examiner but he had not done so as a government servant in which capacity alone he could be a public servant. The Special Judge had, however taken the view that even an Examiner was a public servant. As regards the offence under the Act the Special Judge had held that it was not necessary that the misconduct should be committed in the discharge of the public servant 's duties. Once it was proved that the payment had been obtained by corrupt or illegal means it was not necessary that the accused should abuse his position as a public servant or that he should have obtained the money while acting as a public servant. The High Court did not accept the reasoning or the conclusion of the Special Judge on these points. Section 21 of the Indian Penal Code as it stood at the mate rial time and before the amendments which were made later contained several clauses. The ninth clause was in the following terms: "Ninth. Every officer whose duty it is, as such officer to take, receive,, keep or expend any property on behalf of the, Government or to make any survey, assessment or contract on behalf of the Government or to execute any revenue process or to investigate, or to re port on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any 317 document relating to the pecuniary interests of the Government or to prevent the, infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty". The first question which has to be resolved is whether respondent Dwivedi was a public servant within the meaning of the Ninth clause of section 21, Indian Penal Code, keeping in view the capacity in which and the nature of the duties which he was Performing as an Examiner of University which, it has been found, had no connection with his being a Government servant. It is well known that Universities appoint Examiners having the requisite academic qualifications who may or may not be government servants. , For instance, a person having the requisite academic qualifications who is working in a private institution can and usually is appointed an Examiner by the University. The question that immediately arises is whether an Examiner of a University as such can be regarded as a public servant within the meaning of ninth clause of section 21, Indian Penal Code. It will be useful to look at the scheme of section 21. There could be no difficulty about the second, third and 4th clauses which deal with the commissioned offers in the Armed Forces, judges and officers of the Courts of Justice whose duties are as such officers to do various matters mentioned in those clauses. The Fifth clause brings within the definition every juryman, assessor or member of,;: a panchayat assisting a Court of Justice or public servant. Under the sixth clause every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority would also fall within the words "public servant". Seventh and eighth clauses deal with persons who perform mainly policing duties. The tenth clause covers officers whose duty it is to take receive, keep or expend any property to make any survey or assessment or to levy any rate, or tax etc. The eleventh clause relates to persons who hold any office by virtue of which they are empowered to prepare, publish etc. an electoral roll or to conduct an election. The twelfth clause covers every officer in the service or pay of local authority or corporation engaged in any trade or industry established by the Central, Provincial or State Government or a Government company. In the illustration given it is stated that a Municipal Commissioner is a public servant. According to Explanation persons falling, under any. of the description given in the twelfth clause are public servants whether appointed by the Government or not. Section 21. was amended.in 1964. The ninth clause was retained substantially ,:is it existed previously except that the following words were 318 dropped "and every officer in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty". The twelfth clause was recast and the new provision was in these terms : "Twelfth. Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 601 of the ." Thus sub clause, (a) of the 12th clause, after the amendment corresponds substantially to the last part of the old ninth clause with this change that the expression "every officer" has now been substituted by the words "every person" and after the words "performance of any public duty" it has been added "by the Government. " The argument which has been addressed mainly on behalf (if the State and which Was pressed before the High Court is that the ninth clause, as it stood, when the offences are alleged to have been committed would cover the case of Dwivedi as he, was an officer in the service or pay of the Government or was remunerated by fee or commission for the performance of a public duty. Acting as an Examiner, it has been suggested, is the performance of a public duty. If Dwivedi was remunerated by fee or commission by the University for the performance of that public duty he would be covered by the last part of the ninth clause as it stood at the relevant time. It is admitted on behalf of the State that after the amendment made in 1964 under the twelfth clause it is only a person in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty by the Government who would fall within the definition of "public servant" within sub clause (a) of the, Twelfth clause. But it is argued that the position was different under the ' Ninth clause as the words "fly the Government" did not follow the words "performance of any public duty" although at every other appropriate Place the word "Government" was to be found in the Ninth clause. The omission of these words show that the clause was wider when it came to the case of an officer who was remunerated by fee or commission for the performance of any public duty and it was not necessary that the remuneration by any of fee or commission should be paid by the Government as is now necessary under subclause (a) of the ' Twelfth clause after the amendment. 319 The High Court gave the, following reasons for holding that tile last part of the Ninth clause, as it stood before the amendment, would not cover the case of Dwivedi: (i) The context of the whole of the Ninth clause indicated that the connection with the Government was necessary either in respect of the payment of remuneration or in respect of the performance of public duty. (ii)The person to be an officer must hold some office. The holding of office implied charge of a duty attached to that office. The person who was remunerated by fee or commission must be an officer. Therefore the use of the word "officer" read in the, context of the words immediately preceding the last part would indicate that the remuneration contemplated was remuneration by the Government. (iii)The amendment made in 1964 and in particular the addition of the words "by the Government" in subclause (a) of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration. (iv)It is well settled that in a statutory provision imposing criminal liability if there is any doubt as to the meaning of a certain expression or words its benefit should be given to the subject. It has not been shown to us by the learned counsel for the appellant that the reasoning of the High Court on the above point suffers from any infirmity. Apart from the other reasons given by the High Court reason No. (ii) seems to have a lot of force. It is supported by the decision in Ram Krishna Dalmia vs Delhi Administration(1). There, a Chartered Accountant had been appointed as an Investigator by the Central Government under the to investigate into certain matters and he was to get remuneration for the work entrusted to him. It was held that he did not become an officer as he did not hold any office. The could not, therefore, become a public servant within the latter part of Ninth Clause of section 21 of the Indian Penal Code. It is noteworthy that the work of an Investigator was of a nature which could well be regarded as public duty and the remuneration which was to be paid to him was by the Government. Yet it was hold that he could not be regarded as holding an office. On that view it is not possible to put the case of a University Examiner in (1) ; 320 a different category. A University Examiner cannot be consi dered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause. It is clear from the provisions of the Gujarat University Act 1949 that there is no such condition that only that person can be appointed as Examiner who is the holder of an office. Section 20(xxii) provides for appointment of Examiners by the Syndicate. Section 30 empowers the Syndicate to make Ordinances to provide for all or any of the following matters (iii)"conditions governing the appointment and duties of examiners. " No such Ordinance has been brought to our notice which restricts the appointment of the examiners to persons in the service of the Government or holders of any particular office. Suppose for instance there is a private individual who is not in the regular employment or service of either the Government or any public body or authority. He has the requisite academic qualifications and he is appointed an examiner in a particular subject in which he has attained high academic distinction. He cannot be said to be holding any office when he is appointed for the purpose of examining certain answer books even though that may fall within the performance of a public duty. There is another difficulty in regarding an examiner as a holder of an office. Before the amendment made, in section 21 by Act 40 of 1964 a person who is appointed an examiner and who receives remuneration by fee would fall within the term "public servant" if he is holder of an office. But persons in the regular service of the University would not be covered by the Ninth Clause. If at all, it would be the Twelfth Clause which would be relevant in their case. It is, however, a moot point whether the University is a local authority within the meaning of the first part of the Twelfth Clause before the amendment of section 21. The expression "local authority" has a definite meaning. It has always been used in a statute with reference to such bodies as are connected with local self Government e.g., Municipalities, Municipal Corporations, Zila Parishads etc. As a matter of fact s.3 (31 ) of the defines "local authority" to mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund. It could never be intended that only such officers of the University should be public servants who are remunerated by fee or commission and not those who are in the regular service of the University. We concur with the High Court that a University Examiner cannot be held to he an officer. Once that conclusion is reached, he cannot be covered by the Ninth Clause of section 21 of the Penal Code. 321 The next point which calls for decision is whether appellant Dwivedi was guilty of an offence under s.5 (1) (d) of the, Corruption Act. That provision, as it stood at the material time, was as follows : "section 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (d)if he, by corrupt or illegal means or by otherwise, abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. " By the Central Act 40 of 1964 the words "in the discharge of hi,, duty" were omitted. This Court has, however, taken the view in Dhaneshwar Narain Saxena vs Delhi Administration(1), overruling an earlier decision that in order to constitute an offence under clause (d) of s.5(1) of the Corruption Act it is not necessary that the public servant while misconducting himself should have done so in the discharge of his duty. Section 2 of this Act provides that for its purposes "public servant" means a public servant as defined in s.21 of the Indian Penal Code. Dwivedi while. committing the offence under section 5 (1) (d) had two positions . (1) he was a lecturer in a Government College and (2) he was ' an examiner appointed by the Gujarat University for doing examination work on remuneration paid by the University. As a lecturer in Government College he certainly fell within the definition of "Public servant" but the act of corruption attributed to him was in his capacity as, an examiner. A question at once. arises is whether s.5(1)(d) will apply to case of a Government servant who commits an act punishable under the said provision even though when the act is committed by him he is holding a different position which is not that of a Government servant and in which capacity alone he could fall within the definition of a "public servant. " The High Court proceeded on the basis that for the purpose of the opening, Part of s.5 (1 ) of the Corruption Act Dwivedi must be held to be a public servant. It was held that his case did not fall within the clause (d) as he, did not abuse his Position as a public servant although the means employed, were corrupt and illegal. The argument on behalf of the State is that even if Dwivedi was not punishable under s.161 of the Indian Penal Code with reference to the work in respect of which he accepted an illegal certification he would nevertheless be liable under s.5(1)(d) of the Corruption Act because the liability of a public servant has been made absolute and it is wholly immaterial in what capacity he has committed the offence under sub clause (d) of s.5(1) of the (1) ; 322 Corruption Act. He need not have obtained for himself any valuable thing, or pecuniary advantage, as a public servant. Once he is a Government servant and thus falls within the definition of a public servant and if he uses corrupt or illegal means for obtaining a valuable thing, or pecuniary advantage he commits an offence as contemplated by s.5(1)(d). It need not further be proved that he abused his position as a public servant. We may refer to the previous decisions of this, Court relating to the interpretation of s.5(1)(d) of the Corruption Act. In Dhaneshwar Narain Saxena vs Delhi Administration(1) Saxena, who was an Upper Division Clerk, was approached by one Ram Narain, a fireman serving in the Delhi Fire Brigade, for assistance in obtaining a license for a double barreled shot gun which was, in fact obtained. Saxena was paid certain amount and promise was made to pay him more. Ram Narain had made a false declaration with regard to his salary in the application for the license. His allegation was that he had done so on the advice of Saxena. As Ram Narain 's license had been cancelled it was alleged thathe again approached Saxena who demanded some amounts for helping him in the matter of restoration of the license. Ultimately a trap was laid and Saxena was caught while the money was being handed over to him. The main argument in this case centered on the question whether Saxena had committed any misconduct in the discharge of his duty. Overruling the earlier decision of this Court in the State of Ajmer vs Shivji Lal(2) it was held that it was not necessary to constitute the offence under clause (d) of section 5 (1) that the public servant must do some thing in connection with his own duty and there by obtain any valuable thing or pecuniary advantage. It observed that "it was equally wrong to say that if a public servant were to take money from a third person by corrupt or illegal means or otherwise abusing his official Position in order to corrupt some other public servant without there being any question of his misconducting, himself in the discharge of his own duty he has not committed an offence under section 5 (1) (d). It is also erroneous to hold that the essence of an offence under section 5 (2 ) read with section 5 (1) (d) is that the public servant should do some thing in the discharge of his own duty and thereby obtain valuable thing or pecuniary advantage." No such question was argued or decided in that case whether for the commission of an offence under section 5 (1 ) (d) abuse of position as a public servant was of the essence or the essential ingredient of the offence. It is noteworthy that the High Court had, on. the evidence produced by the prosecution, come to the conclusion that Saxena taking advantage of his own position as an employee in the Chief Commissioner 's Office and Ram Narain 's ignorance and anxiety to get the license, had induced him to part with the money on (1) ; (2) [1959] Suppl. 2 S.C.R. 739. 323 the promise that he would get the license restored. It appears, therefore, that it was in that background that the decision of this Court was given. The case of M. Narayanan Nambiar vs State of Kerala() was clearly one in which there had been abuse by a Government servant of his. position as a public servant. The court referred to the preamble which indicates that the Corruption Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption by public servants. The addition of the word "corruption" showed that the legislation was intended to combat other evils in addition to bribery. The argument on behalf of the accused in that case proceeded on the basis that clause (d) would take in only the case of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner prescribed (herein and did not cover the case of wrongful loss caused to the government by abuse of his power. While analysing s.5 (1) (d) it was said "Let us look at the clause "by otherwise abusing the position of a public servant", for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word "otherwise" has wide connotation and if no limitation is placed on it, the words "corrupt", "illegal" and "otherwise" mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part." The court entertained no doubt that every benefit obtained by the public servant for himself or for any other person by abusing his position as a public servant fell within the mischief of the said clause. Although in the above decision the question whether the words "abusing his position as a public servant" qualify the word "Otherwise" or also the words "corrupt or illegal means" in section 5 (1) (d) (1) [1963] Suppl. 2 S.C.R. 724. 324 was not discussed directly, the observations made seem to indicate that the word "Otherwise" refers to means other than corrupt or illegal by which a public servant may abuse his position. There are two ways of looking at the clause on is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he will be guilty of the offence. The other way of reading this clause is by confining the words "by otherwise" to the means employed. Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act. But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word " otherwise". The analysis of clause (d) made in Narayanan Nambiar 's(1) case by Sabha Rao J. (as he then was) seems to lend support to the view, taken by the High Court that the abuse of position as a public servant is essential. The reasoning of the High Court proceeds on these lines. The second part of cl. (d) relating to the obtaining of the valuable thing etc. relates to the object of the public servant, namely, the obtaining of a bribe. The first part concerns the manner of achieving that object. "The manner is the use of means and use of position. As to the use of means the clause expressly mentions corrupt or illegal but the legislature does not want to limit itself to these means only and so goes on to use the word "otherwise. " If the meaning to be given to the word "otherwise" is, as earlier stated, the words "by corrupt or illegal means" or "by otherwise" form a single clause and do not form two clauses. If that is so the abuse of position as a public servant that is referred to is the abuse by corrupt or illegal means or by otherwise. " The High Court also relied on the analysis of section 5 (1) (d) contained in Ram Krishna & Another v The State of Delhi (2) , where it was pointed out that the offence created thereby is of four kinds. Bribery as defined in s.161 of the Indian Penal Code, if it is habitual, falls within clause (a). Bribery of the kind specified in section 1 65, if it is habitual, is comprised in clause (b) Clause (c) contemplates criminal breach of trust by a public servant. For that section 405 of the Indian Penal Code has to be looked at. An argument was advanced in that case that clause (d) seems to create an independent offence distinct from simple bribery. This is what the court observed: "In one sense, this is no doubt true but it does not follow that there is no overlapping of offences. We have primarily to look at the language employed and give effect to it. One class of cases might arise where corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage . (1) [1963] Supp, 2 S.C.R. 724. (2) ; 325 The word "obtains" on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receivers One may accept money, that if offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, lie obtains a pecuniary advantage by abusing his position as a public servant." Thus in clauses (a), (b) and (c) the abuse of position as a public servant is clearly implied. Clause (e) also carries the same implication. It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section. According to the, High Court such a construction would also keep, the offence within the limitation and the object of the Act. The abuse of the position would be the necessary ingredient of the offence; the abuse being either by corrupt or illegal means or by other means of the nature mentioned in Narayanan Nambiar 's(1) case. Counsel for the State has. not been able to satisfy us that the various reasons given by the High Court as also the observations made in the previous judgments of this Court are not sufficient to sustain the construction or interpretation of section 5 (1) (d) which commended itself to the High Court. As Dwivedi was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant. It was never the case of the prosecution that he had been guilty of any abuse of his position as a lecturer of the Government College. If Dwivedi was not guilty, Thakkar could not be held to be guilty of the offences with which he was charged. We would accordingly uphold the decision of the High Court and dismiss both the appeals. G.C. Appeals dismissed.	D, a Lecturer in a Government College, was appointed as examiner of a physics practical examination held by the Gujarat University. He allegedly took Rs. 500 from a candidate at the examination for showing him favour . He was charged with offences under section 161 Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act 1947. The Sessions Judge held him to be a 'public servant ' within the meaning of cl. 9 of section 21 as it stood before its amendment by Act 40 of 1964, and held him guilty under section 161 of the I.P.C. He was also held guilty under the 1947 Act. In, appeal the High Court held (1) that in is capacity as examiner of Gujarat University lie was not a public servant and therefore not guilty under, section 161 I.P.C.; (ii) that though a public servant in his capacity as lecturer in a Government College he had not abused his position as such public servant and ' therefore was not guilty under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act. The State appealed to this Court. HELD : (i) As rightly held by the High Court a public servant within the meaning of cl. 9 of section 21 as it stood at the relevant time must be an officer of the Government and the fee or commission must be payable by the Government. A University Examiner cannot be considered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause even though examining answer books may fall within the performance of a public duty. A private individual who has no employment may be appointed an examiner because of his high academic qualifications. He cannot be said to be holding any office. An examiner who is in the regular service of a University also cannot be said to be a public servant since a University is not a local authority within the meaning of clause 12(b). Since the appellant was not a public servant under section 21 I.P.C. he was rightly acquitted of the offence under section 161 I.P.C. [319 F 320 H] Ram Krishna Dalmia vs Delhi Administration, [1963] 1 S.C.R. 253, applied. (ii)It was never the case of the prosecution that D had been guilty of any abuse of his position as a lecturer of the Government College. As he was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant. He was therefore rightly acquitted by the High Court of the offence, under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act 1947. [325 E] 314 There are two ways of looking at clause 5(1)(d). One is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he is guilty of the offence. The other way of reading this clause is by confining the words "by otherwise" to the means employed. Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act. But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word "otherwise". The analysis of clause (d) made in Narayanan Nambiar 's case seems to lend support to the view taken by the High Court that the abuse of position as a public servant is essential. [324 A D] In clauses (a), (b) and (c) of section 5(1) the abuse of position as a public servant is clearly implied. Clause (e) also carries the same implication. It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section. [325 C] M.Narayanan Nambiar vs State of Nerala, [1963] Suppl. 2 S.C.R. 724 and Rain Krishna & Another vs The State of Delhi, ; , applied. Dhaneshwar Narain Sexana vs Delhi Administration,[1962] 3 S.C.R. 259, distinguished. State of Ajmer vs Shivji Lal, [1959] Suppl. S.C.R. 739, referred to.
il Appeals Nos. 83 85 of .1965. Appeals by special leave from the judgment and decree dated February 9, 1962 of the Andhra Pradesh: High Court in Tr. Appeal No. 558 of 1957 and A. section Nos. 89 and 157 of 1957 respectively. P. Ram Reddy, A. V. V. Nair, B. Parthasarathy, and 0. C. Mathur, for the appellant (in all the appeals). C. R. Pattabhiraman and R. Ganapathy Iyer, for the respon dents (in C.As. Nos. 83 and 84 of 1965) and respondents Nos. 15 (in C.A. No. 85 of 1965). The Judgment of the Court was delivered by Bachawat, J. One Venkatacharyulu was the Karta of a joint family consisting of himself and his four sons. The appellant was his concubine since 1945 until his death on February 22, 1949. By two registered deeds purporting to be sale deeds dated April 15, 1946, (Exbts. A 1 and A 2), he transferred to the appellant certain properties belonging to the joint family. In 1947 after the execution of exhibit A 1 and A 2 there was a disruption of the joint family and a severance of the joint status between Venkatacharyulu and his sons. In 1954 his widow and sons instituted O.S. No. 12 of 1954 against the appellant for recovery of possession of the properties alleging that the documents dated April 15, 1946, were executed without consideration or for immoral purposes, and were void. The appellant instituted against his widow and sons O.S. No. 63 of 1954, asking for general partition of the joint family properties and for allotment to her of the properties conveyed by the two deeds. She also instituted O.S. No. 62 of 1954 against one of his sons and another person asking for damages and mesne profits for wrongful trespass on the properties. The trial court dis missed O.S. No. 12 of 1954 and O.S. No. 62 of 1954 and decreed O.S. No. 63 of 1954. From these decrees appeals were preferred in the High Court of Andhra Pradesh. The High Court confirmed the decree in O.S. No. 62/54, allowed the two other appeals, dismissed O.S. No. 63/54 and decreed O.S. No. 12/54, the decree for possession in respect of the properties covered by exhibit A 1 being conditional on payment by the respondents of the value of improvements made by the appellant to the properties. From the decrees passed by the High Court, the present appeals have been filed by special leave. The High Court found that the transfers under exhibit A 1 and exhibit A 2 were not supported by any consideration by way of cash or delivery of jewels. This finding is not challenged before us. The High Court held that the transfers were made by Venkatacharyulu in favour of the appellant in view of past illicit cohabitation 45 with her, such past cohabitation was the motive and not the consideration for the transfers and the two deeds though ostensibly sale deeds, were in reality gift deeds. It held that Venkatacharyulu had no power to make a gift of the joint family properties, the two deeds were invalid and the subsequent severance of joint status in 1947 could not validate them. In this Court, it is common case that future illicit cohabitation was not the object or the consideration for the transfers under exhibit A 1 and exhibit A 2. The appellant contends that Venkatacharyulu agreed to make the transfers in consideration of past cohabitation, having regard to section 2(d) of the , her past service was a valuable consideration and Venkatacharyulu was competent to alienate for value his undivided interest in the coparcenary properties. The respondents contend that the transfers were by way of gifts and not in consideration of the past cohabitation, and Venkatacbaryulu was not competent to make a gift of the coparcenary properties. In the alternative, the respondents contend that assuming that the transfers were made in consideration of past cohabitation, they were hit by Sec. 6(h) of the . Our findings are as follows: Venkatacharyulu and the appellant were parties to an illicit intercourse. The two agreed to cohabit. Pursuant to the agreement each rendered services to the other. Her services were given in exchange for his promise under which she obtained similar services. In lieu of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under section 2(d) of the as a subsisting consideration for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfers under exhibit A 1 and A 2. The transfers were without consideration and were by way of gifts. The gifts were not hit by sec. 6(h) of the , by reason of the fact that they were motivated by a desire to compensate the concubine for her past services. In Balo vs Parbati(1) the Court held that the assignment of mortgagee 's rights to a woman in consideration of past cohabitation was not hit by sec. 6(h) of the and, was valid. Properly speaking, the past cohabitation was the motive and not the consideration for the assignment. The assignment was without consideration by way of gift and as such was not bit by section 6(h). (1) I.L.R. [1940] All. 370. 46 In Istak Kamu Musalman vs Ranchhod Zipru Bhate(1) the court rightly held that past cohabitation was the motive for the gift under Exhibit 186, and the gift was valid but in holding that the promises to make the gifts under other exhibits were made in consideration of past illicit cohabitation and consequently those gifts were invalid, the Court seems to have too readily assumed that past cohabitation was the consideration for the subsequent promises. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts,, under Exs. Al 'and A 2 were not hit ' by section 6(h) of the . But the properties gifted under exhibit A 1 and A 2 were coparcenary properties. Under the Madras school of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid. The invalid gifts were not validated by the disruption of the joint family in 1947. After the disruption of the joint family, Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exs. A 1 and A 2 were and are invalid. We find no ground for interfering with the decrees passed by the High Court. In the result, the appeals are dismissed. There will be one set of costs and one hearing fee. Y. P. Appeals dismissed. (1) I.L.R. , 217.	V the karta of a joint Hindu family, transferred in 1946 certain properties, of the joint family to the appellant, who was his concubines since 1945. The joint family disrupted in 1947, and after V 's death, the respondents his widow and sons, filed a suit against the appellant for recovery of possession of the properties alleging that the documents were executed without consideration or for immoral purposes. and were void. The appellant instituted suits for partition of the joint family properties and for allotment to her the properties conveyed by the deeds. The trial court dismissed the respondents ' suit and decreed the appellant 's suit, which the High Court reversed. In appeal to this Court, the appellant contended that V. agreed to make the transfers in consideration of past cohabitation, having regard to section 2(d) of the her past service was a valuable consideration and V was competent to alienate for value his undivided interest in the coparcenary properties. The respondents contended that the transfers were by way of gifts and not in consideration of the past cohabitation, and V was not competent to make a gift of the coparcenary properties and even assuming that the transfers were made in consideration of past cohabitation, they were hit by section 6 (h) of the . HELD: Under the Madras School of Mitakshara law by which V was governed. he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. [46C] V and the appellant were parties to an illicit intercourse. The two agreed to cohabit. Pursuant to the agreement each rendered services to the other. Her services were given in exchange for his promise under which she obtained) similar services. In view of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise. her past services could not be treated under section 2(d) of the as a subsisting consideration for the properties to her. The past cohabitation was the motive and not the consideration for the transfers which were without consideration and were by way of gifts. The gifts were not hit by section 6(h) of the Transfer of property Act, by reason of the fact that they were motivated by a desire to compensate the concubine for her past services. [45E G] The invalid gifts were not validated by the disruption of the joint family in 1947. After the disruption of the joint family, V was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. [46D] Balo vs Parbati, I.L.R. [1940] All. 370 and Istalk Kamu Musalman vs Ranchhod Zipru Bhate, I.L.R. , 217 referred to. 44
1. The instant petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the „Arbitration Act‟) raises some important questions of law inter alia pertaining to the interpretation of Section 21 of the Arbitration Act. By way of the instant petition, the Petitioner seeks indulgence of this Court to set aside the impugned arbitral award dated 16th March 2015 passed by the learned sole arbitrator, Mr. Divya Darshan Sharma in the case titled as „CL Educate Ltd. vs. Monika Oli‘. 2. The facts necessary for the disposal of the present petition are that an Employment Agreement was entered into between the Petitioner and M/s Comprehensive Education and IT Training Institute (hereinafter referred to as „CEITI‟), a Dubai based entity which was authorized to run Career Launcher test-prep courses in the United Arab Emirates (hereinafter referred to as „UAE’). M/s CL Educate Ltd. (hereinafter referred to as the „Respondent’), is a company registered under the Companies Act, 1956. By way of the Employment Agreement, the Petitioner was appointed as the Principal Consultant for its Dubai office and she was entrusted with the responsibility for enrollment and collection of fees from students for the test-prep courses in Dubai. She was also required to bear the costs in relation to rent, marketing and sales, course material, salary for faculty, among other things. 3. For the 1st year, as per Clause 2 of the Employment Agreement, the Petitioner was entitled to 75% of the net collections arising out of IITJEE, AIEEE, CBSE XII Program, IIT Foundation IX and X, and 85% of the net collections for all other programs. It was also agreed by the parties that the collections made by the Petitioner would be deposited in Career Launcher‟s account and on a monthly basis, the Petitioner‟s share would be transferred to her account. From the next year onwards, it was agreed between the parties that the percentage of net collections falling to the share of the Petitioner would be mutually discussed. It was further stipulated that from the 2nd year, all collections would accrue to the Petitioner as her top-line and only remit either 25%/15% (depending on the product) to Career Launcher. 4. On 6th November 2013, the Petitioner received a legal notice on behalf of the Respondent seeking payment of various amounts, including AED 6,25,775/- on account of alleged short deposit of fee collected by the Petitioner and AED 13,92,000/- on account of fee allegedly collected by the Petitioner against the installment due on 31st January 2013 which was not deposited in the account of the Respondent. On 16th November 2013, the Petitioner responded to the above legal notice dated 6th November 2013, denying the claims of the Respondent and alleging that the Respondent has issued the legal notice in order to set up a false case against the Petitioner as she had on previous occasion raised requests with the Respondent to settle the accounts between the parties. 5. The Respondent invoked Clause 10 which contained the arbitration clause and provided that any dispute arising between the parties would be referred to a sole arbitrator appointed by the Managing Director of Career Launcher India Ltd., having its jurisdiction/place at New Delhi. A sole arbitrator was appointed and the Petitioner was proceeded ex parte. The arbitral tribunal passed the impugned arbitral award by which the claims raised by the Respondent were allowed against the Petitioner. 6. Aggrieved with the passing of the impugned arbitral award, the Petitioner has approached this Court under Section 34 of the Arbitration (on behalf of the petitioner) 7. Mr. Jayant Mehta, learned senior counsel appearing on behalf of petitioner, in support of the instant petition has strenuously argued that the impugned arbitral award is wholly illegal as the Petitioner has never received the mandatory notice under Section 21 of the Arbitration Act by which the arbitration proceedings are to be commenced. It is further submitted that the Petitioner has never received any communication whatsoever inter alia stating the name or the information qua the appointment of the Arbitrator, to adjudicate the dispute which has arisen between the parties. 8. Mr. Mehta, learned senior counsel appearing on behalf of petitioner submitted that though the Arbitrator has given his consent vide notice dated 10th March 2014 and directed the parties to appear before him on 2nd May 2014, but the Petitioner has never received any communication indicating the consent from the Arbitrator. It is further submitted that the Petitioner also never received any communication directing her to appear on 2nd May 2014. It is also argued that the Petitioner did not receive any communication whatsoever from the arbitrator notifying the first hearing of the arbitration. It is vehemently submitted that the Petitioner has for the very first time received an email on 5th June 2014 from the arbitrator stating that the proceeding could not take place on 2nd May 2014, and the next date of hearing was shifted to 9th July 2014. 9. Learned senior counsel appearing on behalf of petitioner submitted that the claim petition filed by the Respondent before the Arbitrator on 9 th July 2014 was also never served upon the Petitioner which is a serious error that goes to the root of the matter. It is also submitted that though the Respondent was directed by the Arbitrator on 23rd September 2014 to re-send a copy of the notice dated 10th March 2014 to the Petitioner and to place on record a copy of the dispatch proof as well as the delivery report, but no such courier was ever received by the Petitioner to this effect. It is further submitted that the Petitioner gained knowledge of the impugned Award on 23rd May 2022 when the Petitioner received a notice dated 19th May 2022 from a Dubai Court. 10. Learned senior counsel appearing on behalf of petitioner further submitted that in the execution proceedings in UAE, the Respondent herein has taken a stand that the impugned arbitral award was sent by the learned Arbitrator to the Petitioner through courier on 18th March 2015 and a courier receipt has also been provided as a proof of delivery. However, it is submitted by the learned senior counsel that this does not evidence receipt by the Petitioner of the impugned arbitral award. It is further submitted that the Petitioner has filed an appeal against the notice dated 19th May 2022 issued by a Dubai Court which is pending before the Appellate Court in Dubai. It is further submitted that in the reply filed by the Respondent herein to that appeal, the Respondent has miserably failed to place on record any evidence to establish that the notice dated 10th March 2014 issued by the Arbitrator giving his consent to act as the Arbitrator was ever dispatched or delivered to the Petitioner by any mode. 11. Learned senior counsel appearing on behalf of petitioner further vehemently argued that the Arbitrator ought to have addressed a communication subsequent to his appointment, notifying the first date of hearing, and thereafter communicating every order passed. It is submitted that vague and isolated emails sent to the Petitioner by the Arbitrator cannot constitute proper notice. It is accordingly, submitted that grave prejudice has been caused to the Petitioner in being impeded to meet her defence before the Arbitral Tribunal. It is also argued that the Petitioner has received only two correspondences, first, legal notice dated 6th November 2013 issued by the Respondent to the Petitioner and second, email dated 5th June 2014 sent by the Arbitrator to the Petitioner. Learned senior counsel has categorically denied the receipt of the following correspondences which has been mentioned in the impugned arbitral 1. Letter dated January 2014 pertaining to appointment of the 2. Arbitration commencement Notice dated 10th March 2014 issued by the Arbitrator to the Petitioner and the Respondent. 3. Pleadings or Statement of Claim filed by the Respondent herein. 4. Order dated 1st November 2014 passed by the Arbitrator vide which the Petitioner herein was proceeded ex parte. 12. Another main ground taken by Mr. Mehta, learned senior counsel appearing on behalf of petitioner, is that the Employment Agreement was executed between the Petitioner and CEITI, which is a separate and distinct legal entity, based in Dubai; and not between the Petitioner and the Respondent herein. It is submitted that as the arbitration proceedings were alleged to have been initiated by the Respondent relying on the said Employment Agreement and accordingly, the invocation of the arbitration proceedings is bad in law as there is no privity of contract between the Petitioner and the Respondent. It is also submitted that such an infirmity goes to the root of the matter rendering the impugned arbitral award as null and void. 13. Learned senior counsel appearing on behalf of petitioner has also pleaded that a bare perusal of the impugned arbitral award would show that it has been passed by treating the Indian Law as the substantive law of the contract whereas, the substantive law of the contract was the UAE Federal Labour Law. It is further submitted that the parties had agreed for the substantive law of the contract to be the UAE Federal Labour Law and according to which, employment and labour disputes are not capable of resolution by arbitration, i.e., they are non-arbitrable disputes. It is accordingly submitted that the impugned arbitral award is completely perverse and in conflict with the public policy of India and hence, is liable to be set aside under Section 34(2)(b)(ii) of the Arbitration Act. 14. Learned senior counsel appearing on behalf of petitioner submitted that the Arbitrator has erred in interpreting the provisions of the Employment Agreement as he has awarded the entire claim amount demanded by the Respondent herein. It is submitted that as per the provisions of the Employment Agreement, from the 2nd year onwards, all collections would have accrued to the Petitioner as her top-line which means that the Petitioner would retain the collections and would only remit either 25%/15% (depending on the product) to Career Launcher and hence, the approach taken by the Arbitrator does not stand to reason in view of the specific provisions of the Employment Agreement. It is further submitted that the Arbitrator has returned an erroneous finding that the Employment Agreement stood automatically renewed in view of the specific conditions in the Employment Agreement inasmuch as the conditions requisite for the automatic renewal were never satisfied. It is submitted that for automatic renewal, two conditions should have been satisfied, which in the present facts and circumstances have not been satisfied, first, the Petitioner should continue the employment after expiry of the Employment Agreement and second, neither party has given a notice declining renewal at least 30 days prior to the expiry date. It is also argued that the Arbitrator has awarded an exorbitant interest of 18% per annum, without there being any provision in the contract for award of interest, let alone such a high quantum of interest. This is contrary to the basic notions of justice and thus, the Arbitral Award is liable to be set aside under Section 34(2)(b)(ii) of the Arbitration Act. 15. He has relied upon the following judicial pronouncements to substantiate the submissions made in support of the instant petition: a) Alupro Building Systems Pvt. Ltd. vs. Ozone Overseas Pvt. Ltd., b) Sachin Gupta vs. K.S. Metal Forge Pvt. Ltd., (2013) 10 SCC 540. c) Suvidha Infracon Pvt. Ltd vs. Intec Capital Ltd., (2018) SCC d) Union of India vs. Tecco Trichy Engineers & Contractors, (2005) e) Benarsi Krishna Committee vs. Karmyogi Shelters Pvt. Ltd., f) State of Maharashtra vs. Ark Builders, (2011) 4 SCC 616. (on behalf of the respondent) 16. Per Contra, Mr. Dhruv Mehta, learned senior counsel appearing on behalf of respondent has taken a preliminary objection to the maintainability of the present petition and has submitted that the instant petition is clearly barred by limitation, as it has been filed after the expiry of eight years from the date of receipt of the award by the Petitioner. It is further submitted that the Petitioner has taken a frivolous plea that the impugned award dated 16th March 2015 came to the knowledge of the Petitioner only on 23rd May 2022 inasmuch as the impugned award was delivered to the Petitioner on 23rd March 2015 by the Arbitrator which is also evident from the additional documents filed by the Petitioner itself. 17. Learned senior counsel appearing on behalf of respondent submitted that provisions of the Limitation Act, 1963 are not applicable for the purpose of Section 34 of the Arbitration Act as the Arbitration Act is a complete code in itself. Learned senior counsel has further relied on Section 34(3) of the Arbitration Act to contend that the arbitral award can be challenged within a period of three months of the receipt of the Award, which can be extended only for a further period of 30 days on showing sufficient cause. It is also submitted that as per various authoritative judicial pronouncements by the Hon‟ble Supreme Court, the time-line provided under Section 34(3) of the Arbitration Act is mandatory and inflexible and hence, this Court does not have any power to condone any delay exceeding 30 days. 18. Learned senior counsel appearing on behalf of respondent has relied on para 8.16 of the Petition as well as page nos. 136 and 137 of the additional documents filed by the Petitioner to contend that the Petitioner had full knowledge of the arbitral award and had also received a copy of the impugned arbitral award on 23rd March 2015 as the tracking report of the parcel No. DHL-1491930425 (a parcel containing arbitral award sent by the Arbitrator to the Petitioner by Express India) clearly shows that the impugned arbitral award was delivered to Mr. Shrey Baxi, who is a partner/employee of the Petitioner herein. It is submitted that the parcel was accepted by Mr. Shrey Baxi on behalf of the Petitioner as he has a full-time association with the entity namely the Knowledge Planet UAE (an entity run by the Petitioner). Learned senior counsel has placed reliance on Section 3 of the Arbitration Act to contend that any written communication if delivered at the place of business is deemed to have been received on the day it is so delivered. It is accordingly, submitted that the contention of the Petitioner that the knowledge of the impugned arbitral award came to the notice of the Petitioner on 23rd May 2022 is totally false and contrary to the record as Section 34(3) of the Act is not dependent on the knowledge but on the receipt of the award sent by the 19. It is further submitted that the Petitioner in her reply to the legal notice issued by the Respondent‟s Advocate has signed as Chief Mentor of the Knowledge Planet and the address of the Petitioner is undisputed and has not been denied in any of the pleadings or otherwise. It is accordingly submitted that the award has been delivered at the undisputed address of the Petitioner in Dubai and hence, the requirements of Section 31(5) of the Arbitration Act has been complied with. Learned senior counsel has submitted that the impugned arbitral award is not a result of some overnight proceeding but has been passed after giving several opportunities to the Petitioner to appear and answer the claims of the Respondent which is evident inter alia from the following correspondences: a) Issuance of legal notice dated 6th November 2013 by the Respondent to the Petitioner to initiate legal proceeding by stating to refer the dispute for Arbitration. b) Reply to the above legal notice by the petitioner on 16 th November c) Email dated 5th June 2014 from the Arbitrator to both the parties clearly mentioned the pendency of Arbitral proceeding. d) Arbitrator in para 2,3, and 4 of the Award stated that he gave consent vide notice dated 10th March 2014 and accordingly, parties were directed to appear before the Tribunal on 2nd May 2014. e) Arbitrator in para 5, 6, and 7 of the Award mentioned that on 23rd September 2014 Respondent herein was directed to re-send the copy of the notice dated 10th March 2014 along with the order dated 23rd September 2014 to the Petitioner and the courier receipt of same was filed on 1st November 2014. 20. Learned senior counsel appearing on behalf of respondent has further submitted that the notice under Section 21 of the Arbitration Act was duly issued by the Respondent to the Petitioner by way of a legal notice dated 6th November 2013, which clearly indicated the intention of the Respondent to initiate the arbitral proceedings in case of continuous breach of the Employment Agreement . It is submitted that the Petitioner has even replied to this legal notice. It is further submitted that the notice appointing the Arbitrator was also sent to the Petitioner in January 2014, stating that as disputes have arisen between the parties on account of alleged violation of the terms and conditions of the Employment Agreement by the Petitioner, the Respondent was appointing a sole Arbitrator to adjudicate the disputes. It is also submitted that the statement of claim filed by the Respondent herein was also sent to the Petitioner and the receipt of the same is also filed in the additional documents filed by the Petitioner. 21. Learned senior counsel appearing on behalf of respondent also submitted that the curial law applicable to the Employment Agreement was Indian law and thus all the requirements of the delivery of service as required under the Indian laws stands satisfied as the communications made to the Petitioner were duly received by the Petitioner. It is further submitted that the ground taken by the Petitioner that there existed no arbitration agreement between the Petitioner and the Respondent is misconceived and in the nature of an argument of last resort. It is submitted that at no point of time, either at the time of exchange of emails or otherwise, the Petitioner has denied the existence of the arbitration agreement or even otherwise, a simple perusal of the Employment Agreement clearly shows that there exists a valid arbitration agreement between the Petitioner and the Respondent. 22. Learned senior counsel appearing on behalf of respondent has taken a vehement plea that the right of the Petitioner to raise the issue of non-compliance of Section 21 stands waived in accordance with Section 4 of the Arbitration Act as she has failed to participate in the arbitral proceedings despite being aware of the continuation of the arbitral proceedings. Even otherwise, it is submitted that the Section 21 of the Arbitration Act is a derogable provision which is apparent from the fact that it starts with the words “Unless otherwise agreed by the parties…‖ 23. It is further argued that the Employment Agreement clearly provided for the resolution of the disputes arising between the parties as per Indian law, as the seat of the arbitration proceedings was envisaged to be at New Delhi. It is accordingly, submitted that the disputed adjudicated between the parties were clearly arbitrable. It is also submitted that it is no longer res integra that the Courts under Section 34 of the Arbitration Act would not sit in Appeal over the findings recorded by the Arbitrator thereby, reviewing the interpretation of the contract as well as the factual findings arrived by the Arbitrator. It is submitted that the Writ of execution has already been granted by the First Court of Dubai and the petitioner has filed an Appeal in the Court of Appeal in Dubai challenging the execution proceedings and hence, the sole purpose of filing the present petition is to halt and create obstructions in the execution proceedings presently going on in Dubai Courts, for the execution of the impugned arbitral award. 24. He has relied on the following judicial pronouncements to substantiate his argument that the present petition is liable to be a) Mahindra and Mahindra Financial Service Limited v. Maheshbhai Tinabhai Rathod and Others, (2022) 4 SCC 162. b) P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445. c) Manohar Lal & Co. v. Axis Bank Ltd. 2018 SCC Online Cal d) Rlj Ferro Alloys Pvt. Ltd. & Ors v. M/s. Reliance Capital Limited, e) Shri Lachoo Mal vs Shri Radhey Shyam (1971) 1 SCC 619. f) Prasun Roy vs Calcutta MDA (1987) 4 SCC 217. (Rebuttal on behalf of petitioner) 25. In the rejoinder, the learned senior counsel for the petitioner submitted that the legal notice dated 6th November 2013 can in no case amount to a notice under Section 21 of the Arbitration Act. It is submitted that under Section 21, an arbitration proceeding commences ―on the date on which a request for that dispute to be referred to arbitration is received by the Respondent" but the notice dated 6th November 2013 neither contains any request to refer disputes to arbitration nor proposes any Arbitrator to be appointed, and merely mentions that such reference would occur in the future if the Respondent‟s demands are not met. It is further submitted that this notice itself has been described by the Respondent as a „legal demand notice‟ which cannot satisfy the essentials of Section 21 of the Arbitration Act. 26. Learned senior counsel also submitted that the tracking report clearly shows that the impugned arbitral award was not delivered to Monika Oli but to one Mr. Shrey Baxi. It is categorically denied by the learned senior counsel that Mr. Baxi is a partner/employee of Monika Oli and that he accepted the impugned award on behalf of the Petitioner. It is further submitted that Knowledge Planet LLC is a company registered in Dubai in which the Petitioner is a minority shareholder and Mr. Baxi is an employee and hence, he could not have accepted any service on behalf of the Petitioner. 27. Learned senior counsel has also taken a vehement plea that issuance of notice under Section 21 of the Arbitration Act is mandatory and its non-issuance renders the entire arbitral proceedings as non-est and void ab initio. It is further submitted that Section 4 of the Arbitration Act cannot be invoked to waive the requirement of Section 21 of the Arbitration Act as the compliance with the latter is a matter of mandatory statutory requirement. Even otherwise, it is submitted that Section 4 of the Act applies only in those cases where the party „proceeds with arbitration without stating his objection‟. In the instant case, it is submitted that the Petitioner was proceeded ex-parte and as such, there arises no question of the Petitioner having proceeded with the arbitration. In other words, a party cannot be said to be one who “proceeds with” an arbitration if, as in the present case, the party has not participated inter alia due to lack of proper notice of the proceedings. 28. It is further argued that delivery of signed arbitral award is not governed by Section 3 of the Arbitration Act but is governed by Section 31(5) of the Arbitration Act and hence, the arbitral award must have been delivered to the individual who was a party to the arbitration proceedings or the responsible officer of an entity which is a party handling the arbitral dispute. It is accordingly, submitted that delivery of arbitral award being not a mere formality, was not satisfied in the present facts and circumstances of the case. 29. Heard learned senior counsel appearing for the parties at length and also perused the record of the instant petition. This Court has carefully perused the impugned arbitral award, and has given thoughtful consideration to the submissions advanced on behalf of the parties. 30. The primary question which requires consideration is: I. Whether the present petition under Section 34 of the Arbitration Act is barred by limitation? (i) Whether the delivery of the impugned arbitral award to one Mr. Shrey Baxi can be taken as receipt of the award to the Petitioner in view of the provisions of the (ii) Whether the various correspondences between the Petitioner, Respondent and the Arbitrator constitute as a valid notice under Section 21 of the Arbitration Act? 31. It is necessary to reproduce Section 34(3) of the Arbitration Act, which reads as under:- “34. Application for setting aside arbitral award.—(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3). (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.‖ 32. In the present case, it is not disputed that the impugned arbitral award was passed on 16th March 2015. But the Petitioner has vehemently disputed the receipt of the arbitral award on 23rd March 2015 which is alleged to have been sent by the learned Arbitrator. The Arbitration Act in Para 4(v) of the Statement of Objects and Reasons states one of the most important objectives which is the need “to minimize the supervisory role of courts in the arbitral process”. Section 5 of the Arbitration Act is in the nature of injunction to the Courts and clearly defines the scope of judicial intervention in an Arbitration proceeding. Section 5 of the Arbitration Act is reproduced below: ―5. Extent of judicial intervention.—Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.‖ 33. The Hon‟ble Supreme Court in Mahindra & Mahindra Financial Services Ltd. vs. Maheshbhai Tinabhai Rathod & Ors., (2022) 4 SCC 162, has given the following interpretation to Section 34(3) of the ―9. The scope available for condonation of delay being self-contained in the proviso to Section 34(3) and Section 5 of the Limitation Act not being applicable has been taken note by this Court in its earlier decisions, which we may note. In Union of India v. Popular Construction Co. [Union of India v. Popular Construction Co., (2001) 8 SCC 470] it has been held as hereunder : (SCC pp. 474-76, paras 12, 14 ―12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are ―but not thereafter‖ used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase ―but not thereafter‖ wholly otiose. No principle of interpretation would justify such a result. 14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need ―to minimise the supervisory role of courts in the arbitral process‖ [ Para 4(v) of the Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996.] . This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: ‗5. Extent of judicial intervention.— Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.‘ 16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award ―in accordance with‖ sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application ―in accordance with‖ that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that ‗36. Enforcement.—Where the time for making an application to set aside the arbitral award under Section 34 has expired … the award shall be enforced under the Civil Procedure Code, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.‘ This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to ―proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow‖ (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation 9.1. Further, in State of H.P. v. Himachal Techno Engineers [State of H.P. v. Himachal Techno Engineers, (2010) 12 SCC 210 : (2010) 4 SCC (Civ) 605] it was noted and held as hereunder : (SCC pp. 211-12, paras 2 & 5) ―2. A petition under Section 34 of the Arbitration and Conciliation Act, 1996 (―the Act‖ for short) was filed by the appellant on 11-3-2008, challenging the arbitral award. The petition was accompanied by an application under sub-section (3) of Section 34 of the Act, for condonation of delay of 28 days in filing the petition. The respondent resisted the application contending that the petition under Section 34 was filed beyond the period of 3 months plus 30 days and therefore, was liable to be rejected. 5. Having regard to the proviso to Section 34(3) of the Act, the provisions of Section 5 of the Limitation Act, 1963 will not apply in regard to petitions under Section 34 of the Act. While Section 5 of the Limitation Act does not place any outer limit in regard to the period of delay that could be condoned, the proviso to sub-section (3) of Section 34 of the Act places a limit on the period of condonable delay by using the words ‗may entertain the application within a further period of thirty days, but not thereafter‘. Therefore, if a petition is filed beyond the prescribed period of three months, the court has the discretion to condone the delay only to an extent of thirty days, provided sufficient cause is shown. Where a petition is filed beyond three months plus thirty days, even if sufficient cause is made out, the delay cannot be condoned.‖ 9.2. The same view was taken by this Court in P. Radha Bai v. P. Ashok Kumar [P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 : (2018) 5 SCC (Civ) 773] wherein this Court held as follows : (SCC pp. 457-58, para 33) ―33.2. The proviso to Section 34(3) enables a court to entertain an application to challenge an award after the three months' period is expired, but only within an additional period of thirty dates, ―but not thereafter‖. The use of the phrase ―but not thereafter‖ shows that the 120 days' period is the outer boundary for challenging an award. If Section 17 were to be applied, the outer boundary for challenging an award could go beyond 120 days. The phrase ―but not thereafter‖ would be rendered redundant and otiose. This Court has consistently taken this view that the words ―but not thereafter‖ in the proviso of Section 34(3) of the Arbitration Act are of a mandatory nature, and couched in negative terms, which leaves no room for doubt. [State of H.P. v. Himachal Techno Engineers [State of H.P. v. Himachal Techno Board v. Subash Projects & Mktg. Ltd. [Assam Urban Water Supply & Sewerage Board v. Subash Projects & and Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel [Anilkumar Jinabhai Patel v. Pravinchandra 9.3. The observations of this Court in different decisions relating to non-applicability of Section 5 of the Limitation Act in condoning the delay and extending the limitation prescribed under Section 34(3) of the 1996 Act was taken note of by a Bench of three Hon'ble Judges of this Court with approval, in Chintels (India) Ltd. v. Bhayana Builders (P) Ltd. [Chintels (India) Ltd. v. Bhayana Builders (P) Ltd., 34. Therefore, one thing is clear that this Court does not have the power to condone any delay which exceeds the statutory time limit prescribed under Section 34(3) of the Arbitration Act. As a necessary corollary, next important question that arises for consideration is that whether the delivery of the arbitral award to one Mr. Shrey Baxi constitutes as a delivery to the Petitioner, so as to bring in the bar envisaged under Section 34(3) of the Arbitration Act? 35. At this stage, it is pertinent to refer to Sections 2(h) and 31(5) of the Arbitration Act. These Sections read as under: ―2. Definitions.—(1) In this Part, unless the context (h) ―party‖ means a party to an arbitration agreement. 31. Form and contents of arbitral award.—(1) An arbitral award shall made in writing and shall be signed by the members of the arbitral tribunal. (5) After the arbitral award is made, a signed copy shall be delivered to each party.‖ 36. In Union of India vs. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, the question which arose before the Hon‟ble Supreme Court was that whether delivery of the impugned arbitral award to the General Manager of Railways will constitute as valid delivery in terms of Section 31(5) of the Arbitration Act, when the party before the Arbitrator was the Chief Engineer? The Hon‟ble Supreme Court while answering the question in the negative laid down the following proposition of law: “6. Form and contents of the arbitral award are provided by Section 31 of the Act. The arbitral award drawn up in the manner prescribed by Section 31 of the Act has to be signed and dated. According to sub-section (5), ―after the arbitral award is made, a signed copy shall be delivered to each party‖. The term “party” is defined by clause (h) of Section 2 of the Act as meaning “a party to an arbitration agreement”. The definition is to be read as given unless the context otherwise requires. Under sub-section (3) of Section 34 the limitation of 3 months commences from the date on which ―the party making that application‖ had received the arbitral award. We have to see what is the meaning to be assigned to the term ―party‖ and ―party making the application‖ for setting aside the award in the context of the State or a department of the Government, more so a large organisation like the Railways. 7. It is well known that the Ministry of Railways has a very large area of operation covering several divisions, having different divisional heads and various departments within the division, having their own departmental heads. The General Manager of the Railways is at the very apex of the division with the responsibility of taking strategic decisions, laying down policies of the organisation, giving administrative instructions and issuing guidelines in the organisation. He is from elite managerial cadre which runs the entire organisation of his division with different departments, having different departmental heads. The day- to-day management and operations of different departments rests with different departmental heads. The departmental head is directly connected and concerned with the departmental functioning and is alone expected to know the progress of the matter pending before the Arbitral Tribunal concerning his department. He is the person who knows exactly where the shoe pinches, whether the arbitral award is adverse to the department's interest. The departmental head would naturally be in a position to know whether the arbitrator has committed a mistake in understanding the department's line of submissions and the grounds available to challenge the award. He is aware of the factual aspect of the case and also the factual and legal aspects of the questions involved in the arbitration proceedings. It is also a known fact and the Court can take judicial notice of it that there are several arbitration proceedings pending consideration concerning affairs of the Railways before arbitration. The General Manager, with executive workload of the entire division cannot be expected to know all the niceties of the case pending before the Arbitral Tribunal or for that matter the arbitral award itself and to take a decision as to whether the arbitral award deserves challenge, without proper assistance of the departmental head. The General Manager, being the head of the division, at best is only expected to take final decision whether the arbitral award is to be challenged or not on the basis of the advice and the material placed before him by the person concerned with arbitration proceedings. Taking a final decision would be possible only if the subject-matter of challenge, namely, the arbitral award is known to the departmental head, who is directly concerned with the subject-matter as well as arbitral proceedings. In large organisations like the Railways, ―party‖ as referred to in Section 2(h) read with Section 34(3) of the Act has to be construed to be a person directly connected with and involved in the proceedings and who is in control of the proceedings before the arbitrator. 8. The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be ―received‖ by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings. 9. In the context of a huge organisation like the Railways, the copy of the award has to be received by the person who has knowledge of the proceedings and who would be the best person to understand and appreciate the arbitral award and also to take a decision in the matter of moving an application under sub-section (1) or (5) of Section 33 or under sub-section (1) of Section 34.‖ 37. Though, the aforesaid decision of the Hon‟ble Supreme Court dealt with the meaning of ‗party‘ in the context of a larger organization, but the general principles laid down cannot be ignored and are of a vital importance in the facts and circumstances of the present case. Ltd., (2012) 9 SCC 496, the Hon'ble Supreme Court was confronted with a question as to whether delivery of an arbitral award on agent or advocate of a party would constitute as a proper delivery in terms of Sections 31(5) and 34(3)? The Hon‟ble Supreme Court while answering the question in the negative laid down the following proposition of law: ―15. Having taken note of the submissions advanced on behalf of the respective parties and having particular regard to the expression ―party‖ as defined in Section 2(1)(h) of the 1996 Act read with the provisions of Sections 31(5) and 34(3) of the 1996 Act, we are not inclined to interfere with the decision [Karmyogi Shelters (P) Ltd. v. Benarsi Krishna Committee, AIR 2010 Del 156] of the Division Bench of the Delhi High Court impugned in these proceedings. The expression ―party‖ has been amply dealt with in Tecco Trichy Engineers case [(2005) 4 SCC 239] and also in ARK Builders (P) Ltd. case [(2011) 4 SCC 616 : (2011) 2 SCC (Civ) 413] , referred to hereinabove. It is one thing for an advocate to act and plead on behalf of a party in a proceeding and it is another for an advocate to act as the party himself. The expression ―party‖, as defined in Section 2(1)(h) of the 1996 Act, clearly indicates a person who is a party to an arbitration agreement. The said definition is not qualified in any way so as to include the agent of the party to such agreement. Any reference, therefore, made in Section 31(5) and Section 34(2) of the 1996 Act can only mean the party himself and not his or her agent, or advocate empowered to act on the basis of a vakalatnama. In such circumstances, proper compliance with Section 31(5) would mean delivery of a signed copy of the arbitral award on the party himself and not on his advocate, which gives the party concerned the right to proceed under Section 34(3) of the aforesaid Act. 16. The view taken in Pushpa Devi Bhagat case [(2006) 5 SCC 566] is in relation to the authority given to an advocate to act on behalf of a party to a proceeding in the proceedings itself, which cannot stand satisfied where a provision such as Section 31(5) of the 1996 Act is concerned. The said provision clearly indicates that a signed copy of the award has to be delivered to the party. Accordingly, when a copy of the signed award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act. The other decision cited by Mr Ranjit Kumar in Nilkantha Sidramappa Ningashetti case [AIR 1962 SC 666 : (1962) 2 SCR 551] was rendered under the provisions of the Arbitration Act, 1940, which did not have a provision similar to the provisions of Section 31(5) of the 1996 Act. The said decision would, therefore, not be applicable to the facts of this case also.‖ 39. Therefore, the proposition laid down in Tecco Trichy Engineers & Contractors (supra) in the context of large bodies was even extended to „agents‘ or „advocates‘ of parties. 40. In State of Maharashtra v. ARK Builders (P) Ltd., (2011) 4 SCC 616, the Hon‟ble Supreme Court was dealing with the question as to whether the period of limitation for making an application under Section 34 is to be reckoned from the date on which a copy of the award is received by the objector by any means and from any source, or it would start running from the date a signed copy of the award is delivered to him by the arbitrator? The Hon'ble Supreme Court laid down the following principles of law: ―13. Section 34 of the Act then provides for filing an application for setting aside an arbitral award, and sub- section (3) of that section lays down the period of limitation for making the application in the following terms: ―34.Application for setting aside arbitral award.—(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. The expression ―party making that application had received the arbitral award‖ (emphasis supplied) cannot be read in isolation and it must be understood in light of what is said earlier in Section 31(5) that requires a signed copy of the award to be delivered to each party. Reading the two provisions together it is quite clear that the limitation prescribed under Section 34(3) would commence only from the date a signed copy of the award is delivered to the party making the application for setting it aside. 14. We are supported in our view by the decision of this Court in Union of India v. Tecco Trichy Engineers & Contractors [(2005) 4 SCC 239] ; in SCC para 8 of the decision it was held and observed as follows: (SCC p. 243) ―8. The delivery of an arbitral award under sub- section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be ‗received‘ by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.‖ 15. The highlighted portion of the judgment extracted above, leaves no room for doubt that the period of limitation prescribed under Section 34(3) of the Act would start running only from the date a signed copy of the award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date on which the order/award was received by the party concerned in the manner prescribed by the law.‖ 41. Therefore, the principle of law which was laid down by this decision is that the signed arbitral award must have been delivered to the party to the arbitration, in the manner which is prescribed under the Arbitration Act. This Court has gone through the Employment Agreement dated 15th February 2010 and it is clear that the Employment Agreement was executed by Ms. Monika Oli individually and not in the capacity of her being a shareholder of Knowledge Planet LLC. This Court has also gone through the DHL Express Shipments which notes that the arbitral award has been delivered to one Mr. Shrey Baxi. The Respondent has vehemently pleaded that delivery to Mr. Baxi constitutes as delivery to the Petitioner as the Petitioner has admitted to be a minority shareholder in Knowledge Planet LLC and Mr. Baxi as an employee of Knowledge Planet LLC. The Petitioner on the other hand has taken a stand that Mr. Baxi has not accepted the delivery on behalf of the Petitioner and hence, does not constitute as a valid delivery envisaged under Section 34(3) read with Section 31(5) of the Arbitration Act. In the opinion of this Court, no valid delivery of arbitral award has been affected in the facts and circumstances of the case. The decision of the Calcutta High Court in Manohar Lal & Co. vs. Axis Bank Ltd., (2018) SCC OnLine Cal 15745, is not of any help to the Respondent as in that case the award was delivered to the wife of the Petitioner therein who received it on behalf of her husband, and was delivered at the appropriate address of the Petitioner therein. The principles qua delivery of arbitral award can be summarized as follows: a) The word ‘party’ in Section 34(3) means party to the arbitration proceedings and does not include an agent of the party as well. b) The delivery to be effective and in consonance with the legislative scheme of Arbitration Act must be made to a person who has direct knowledge of the arbitral proceedings and who would be the best person to understand and appreciate the arbitral award being connected with the dispute at hand. 42. Learned senior counsel for the Petitioner has taken a plea that Section 3 of the Arbitration Act is not applicable to the facts and circumstances of the present case. This Court is unable to agree with this submission advanced by the learned senior counsel. At the outset, it is necessary to reproduce Section 3:- ―3. Receipt of written communications.—(1) Unless otherwise agreed by the parties,— (a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, (b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it. (2) The communication is deemed to have been received on the day it is so delivered. (3) This section does not apply to written communications in respect of proceedings of any judicial authority. 43. The UNCITRAL Model Law on the International Commercial Arbitration: A Commentary on Article 31 clearly negates the submissions advanced by the learned senior counsel for the Petitioner in the following words: ―Paragraph 4 does not itself specify further formalities for the ‗delivery‘ of signed copies of the award. Moreover, it is silent as to which person or entity is burdened with the obligation of delivering it to the parties. Given the centrality of notification in the beginning and end of the arbitral process and the vast range of practices across jurisdictions, article 3(1)(a) of the Model Law provides sensible guidance, unless the parties have otherwise agreed, as follows: … any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee‘s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it. In fact, although not specifically spelt out as a ground for annulling the award, it certainly cannot be considered binding until such time as it is delivered to the parties through an official channel in accordance with the law of the lex arbitri or the parties‘ chosen institutional rules….. 44. The UNCITRAL Model Law on the International Commercial Arbitration: A Commentary on Article 3 gives the following meaning to a ‗Party‘s Place of Business‘: ―The most appropriate definition of a party‘s ‗place of business‘, for the strict purposes of article 3, is not necessarily the legal seat of a party, or its principal place of business, or head office.55 Given that the objective of article 3 is effective receipt of a written communication – and in this light it allows even for personal delivery – the place of business may be different from the seat of the party, if its actual place of business is elsewhere. In transnational arbitration, a company ordinarily seated in country A may have to incorporate again in country B, which is where the contract is to be performed. The new company premises in country B are merely a representative office, with its principal seat and place of key operations remaining in country A. For the purposes of arbitral proceedings, however, the party‘s place of business is the address in country B, as long as this remains an effective address during the arbitral proceedings. We have already seen that in CLOUT Case 1448 the claimant sought to identify the defendant‘s place of business through the Russian register of foreign companies. As a matter of caution, he was advised to look in the similar register of the defendant‘s country of origin (Turkey) because its accreditation in the Russian register had expired.56 In case of multiple places of business, the prevailing one is that which has featured the most in the parties‘ transactions (i.e. by reason of prior mail exchanges, effective letterheads, appearance in official website, past place of meetings, registered company address, etc.).57 In general, substance over form is the best determinant of a party‘s place of business.” 45. However, in the present case, the Respondent has failed to bring anything on record to substantiate that the delivery of the award was made to the Petitioner, apart from the delivery to Mr. Shrey Baxi. In the opinion of this Court, this cannot constitute as an effective delivery to the Petitioner more so, when in the arbitral dispute, the Petitioner was individually concerned and that the dispute did not pertain to her position at Knowledge Planet LLC. This Court is conscious that it has been close to 8 years since the award has been passed and a pedantic approach ought not to be taken, however, justice cannot be thwarted only because substantial time has elapsed when there is nothing on record to substantiate compliance with the mandatory provisions of Section 34(3) read with Section 31(5) of the Arbitration Act particularly, in view of the decision in Benarsi Krishna Committee (supra). This court is conscious of its duty to ensure compliance with the principles of natural justice and when an award has been passed without complying with the mandatory principles of natural justice, this Court being the custodian of rights and liberties of parties has to take its guard to correct the infirmities which have already been carried out. Nothing has been brought in record to portray that Mr. Baxi had accepted the arbitral award on behalf of the Petitioner. Therefore, delivery to the employee of an entity in which the Petitioner is a shareholder but the arbitration dispute did not pertain to that entity, would not constitute as a proper delivery in terms of the 46. Next question which requires adjudication is that: II. Whether notice under Section 21 of the Arbitration Act was given to the Petitioner? If not, can the entire arbitral proceedings be set aside on this account? 47. The Petitioner has submitted that no effective notice under Section 21 of the Arbitration Act has been served upon her. Before dealing with this question, it is necessary to reproduce Section 21 of the Arbitration "21. Commencement of arbitral proceedings.—Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.‖ 48. The question as to whether compliance with Section 21 is mandatory or directory is no longer res integra. Recently, a Division Bench of this Court has categorically held that compliance with Section 21 is mandatory in nature and not a matter of choice. The relevant portion of the judgment rendered in Shriram Transport Finance Co. Ltd. vs. Shri Narendra Singh, (2022) SCC OnLine Del 3412, is reproduced “25. A perusal of the Arbitral record as filed by the Appellant Company shows that a letter dated 20.09.2018 was addressed by the Appellant Company to the Respondent stating that in the event, the payment due is not made within 7 days, the disputes ―stand referred to Arbitration‖ and further that the Appellant Company shall initiate Arbitral proceedings. The relevant portion of the said letter is ―7. Hence kindly take Note that you addresses are advised to pay and clear entire outstanding dues amounting to Rs. 470248/- as on date 12/09/2018 and also with accrued interest/Penal all other charges till the date of repayment/realization and charges, within 7 days on the receipt of this notice, failing which company will refer the matter for arbitration. 8. If you have failed to comply with the requisitions contained in notices, the disputes, differences and claims shall be deemed to have arisen under the said Agreement and the said disputes, differences and claim shall stand referred to the Arbitration. 9. If you are failed to pay the outstanding amount as per out [sic : our] loan agreement ARTICAL [sic : Article] No. 15. We have a right to initiate arbitration processing. So we will initiate the arbitration [Emphasis is ours] 26. From a plain reading of this letter, two things are (i) The letter dated 20.09.2018 merely states that the Appellant Company has a right to initiate Arbitration proceedings so they will initiate such proceedings; (ii) This letter does not name any person as an Arbitrator, nor the fact that the person is being appointed as an Arbitrator in terms of the procedure set forth in the Loan Agreement. 27. A week later, a letter dated 27.09.2018, was sent by the Appellant Company to the Arbitrator appointing him as the ―Sole Arbitrator to adjudicate the disputes and differences between Shriram Transport Finance Co. Ltd. and Mr Narender Singh (Hirer) and pass the award.‖ This letter was neither marked to the Respondent nor is there any averment by the Appellant Company that the letter dated 27.09.2018 was in fact sent to the Respondent. 28. From a perusal of the Arbitral Award, it is also apparent that the letter dated 27.09.2018 was sent by the Appellant Company to the Arbitrator, by hand, through one Mr Tekchand Sharma, Attorney for the Appellant Company. 29. In order to deal with the objection of the Appellant Company, the notice under Section 21 of the Act was sent, we would need to refer to the said provision. Section 21 of the Act, which sets forth the date of commencement of Arbitral proceedings, reads as follows: ―21. Commencement of Arbitral proceedings. - unless otherwise agreed by the parties, the Arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to Arbitration is received by the respondent.‖ 30. A plain reading of this Section shows that Arbitral proceedings commence on the date on which the request for the dispute to be referred to Arbitration is received by the concerned Respondent. Therefore, the commencement of Arbitral proceedings is incumbent on the ―receipt of such request or notice‖. If no notice is received by the concerned Respondent, there is no commencement of Arbitral proceedings at all. Emphasis here is also made to the fact that the notice should not only be ―sent‖ but also that the notice should be ―received‖ for such request for commencement. 31. Section 21 will have to be read with Section 34 of the Act. Section 34 (2) (iii) provides that an award may be set aside, in the event, where the party appointing the Arbitrator has not given proper notice of the appointment of an Arbitrator or the Arbitral proceedings. 32. The judgment in Alupro Building case (supra) has aptly explained the relevance of a notice under Section 21 of the Act. It was held that the Act does not contemplate unilateral appointment of an Arbitrator by one of the parties, there has to be a consensus for such appointment and as such, the notice under Section 21 of the Act serves an important purpose of facilitating such a consensus on the appointment of an Arbitrator. It was further held in Alupro Building case (supra) that the parties may opt to waive the requirement of notice under Section 21 of the Act. However, in the absence of such a waiver, this provision must be given full effect to. 33. We are in agreement with the principles as expressed in the decision of Alupro Building case (supra), which are enunciated below: (i) The party to the Arbitration Agreement against whom a claim is made should know what the claims are. The notice under Section 21 of the Act provides an opportunity to such party to point out if some of the claims are time barred or barred by law or untenable in fact or if there are counter-claims. (ii) Where the parties have agreed on a procedure for appointment, whether or not such procedure has been followed, will not be known to the other party unless such a notice is received. (iii) It is necessary for the party making an appointment to let the other party know in advance the name of the person who it proposes to appoint as an Arbitrator. This will ensure that the suitability of the person is known to the opposite party including whether or not the person is qualified or disqualified to act as an Arbitrator for the various reasons set forth in the Act. Thus, the notice facilitates the parties in arriving at a consensus for appointing an Arbitrator. (iv) Unless such notice of commencement of Arbitral proceedings is issued, a party seeking reference of disputes to Arbitration upon failure of the other party to adhere to such request will be unable to proceed under Section 11(6) of the Act. Further, the party sending the notice of commencement may be able to proceed under the provisions of Sub-section 5 of Section 11 of the Act for the appointment of an Arbitrator if such notice does not evoke any response.‖ 49. In the present case, the Respondent has relied on legal notice dated 6th November 2013 to contend that the same is equivalent to a notice under Section 21 of the Arbitration Act. It is imperative to reproduce the contents of the above-mentioned legal notice:- Under the instruction & authority and on behalf of my client company M/S CL Educate Ltd having its Regd Office at R- 90, Greater Kailash –1, New Delhi – 110048 through its Managing Director – Mr. Gautam Puri, I hereby serve you with the following Legal Demand –cum- Cease/desist 1.That my client company is a duly incorporated company under the Companies Act, 1956 in the name and style as CL Educate Ltd (formerly known as Career Launcher (I) Ltd) having its Regd Office at R-90, Greater Kailash –1, New Delhi (India) 110048 and corporate office at 15-A, 2.That you entered into an agreement dated 15.2.2010 with my client company, whereby you were appointed as Principal Consultant of my client company for its Dubai Centre for the purpose of running/operating the study centre/professional learning centre for conducting IIT-JEE & AIEEE programme for the aspiring students. 3.That as per the terms & conditions of the said agreement term of your appointment was from 15 February 2010 to 14 4.That as per the terms & conditions of the said agreement, it was one of your prime obligation amongst others, to collect fees from the students in the name of and on behalf of my client company and further to deposit the fee so collected in the bank account of my client company. 5.That you were also liable to enter all the details pertaining to enrolment of students, collection of fee, balance fee etc. in the ERP system of my client company provided on line. 6.That on reconciliation of the bank statement and ERP entries made by yourself, it has been come to the notice of my client company that you did not deposit in the bank account of my client company an amount of AED 625,775/- (Six Hundred Twenty Five Thousand Seven Hundred and Seventy Five only), despite the fact that this amount was collected by yourself from the students as per the records available in the ERP system, entries wherein were made by you only. 7.That you have even failed to deposit this amount in my client company‘s bank account despite repeated verbal as well as written reminders/communications made by my client company thereby demanding to pay this outstanding amount which was received by you as a trustee of my client company. 8.That further, you have also collected the installment of fee from the students due as on 31.1.2013 on behalf of my client company. As per the ERP records made by yourself in the ERP system of my client company an amount of AED 1,392,200/- was due on this account. Though you have fully collected this amount from the students but did not deposit in the bank account of my client company even after repeated reminders by my client company. Even my client company sent you a statement of accounts alognwith a list of students and amount due, duly audited by third party auditors, thereby demanding to pay the same but of no avail. 9.That as per the records held with my client company you made the last student enrolment entry in the ERP system on 15.12.2012 and no enrolments have been entered into the system thereafter. My client company has not only learnt but got concrete piece of evidence that you have been enrolling the students upto 31.1.2013 under the agreement and in the name of my client company and did not make the entries of students enrolled after 15.12.2012 in the system, rather enrolled these students in the name of Knowledge Planet LLC (a competitive company which is being managed and run by you for the purpose of starting a competitive business that to of my client company in gross violation of the terms and conditions of the agreement dated 15.2.2010) despite the fact that these students were enrolled and fee was collected by yourself in the name and on behalf of my client company. 10.That all these acts on your part amounts to criminal breach of trust as well as misappropriation of funds, which makes you liable for criminal action apart from recovery of money by my client company. 11. That further, as per the agreement you were liable to give a written confirmation with 30 days advance notice regarding non-continuation of the contract and in case of failure to issue such notice under clause 8 of the agreement, it was automatic renewal of agreement and hence my client company was under belief that you will be continuing with the agreement and as such they were deprived of the opportunity to find out a suitable replacement well within time and thus suffered huge business losses, which though can not be quantified in term of money but the same is determined as AED 50,000/- for the purpose of claim, which you are liable to pay to my client company. 12. Further more, it has also come to the notice of my client company alongwith relevant evidence that even after 31.1.2013 you have been mis-representing yourself as a service partner/provider of my client company with sole intent to mis-guide the parents/students and to lure them to take admission with your new named entity Knowledge Planet LLC under the guise that you are a service provider of my client company and thus caused huge losses to my client company, for which you are liable to pay damages to my client company. 13. Further as per the term of the agreement, you were under legal obligation not to start a direct competing business that to of my client company in the territory of United Arab Emirates for a period of 01 year from the date of termination of agreement, but whereas you immediately on alleged termination of agreement (through no communication was made as per the requirement under the agreement) joined with M/S Knowledge Planet LLC and started a competing business in gross violation of terms and conditions of the agreement. 14.Further, you have not only started a competing and similar business in association of the said Knowledge Planet LLC but also started using the data/information, manuals etc. pertaining to my client company which were in your possession and you did not hand over the same to my client company till date despite repeated reminders by my client company. You have been using this data/information, manuals with malafide intentions and thereby making wrongful gains for yourself and wrongful losses to my client company and thus made liable to yourself to pay damages to my client company. 15. That further more, my client enrolled an employee named Mr. Yogeshwar Singh Batyal and got him issued visa in its name since you were not having any licence to get the visa for employees in your name. This employee was required for the purpose of discharging your duties/obligations under the agreement and as such he was paid all his salary and other emoluments by you. But, with malafide intentions, you not only failed to clear all the dues on account of salary & allowances of said Mr. Yogeshwar Singh Batyal but also failed to complete the formalities for cancellation of his visa from the Dubai authorities and as such my client company was compelled to pay an amount of AED 18120/- (AED 2828 for cancellation of visa and AED 15292 for settlement of his wage account) on account of settlement of his dues as well getting his visa cancelled, which you are liable to pay to my client company. 16. That at the time of taking over the operations of study center of my client company, my client company‘s then Centre Manager, Mr. Akhilesh Jha, handed over to you his mobile Number 00971-50-4515576, which was used for the company‘s business purposes and it was also agreed that you shall be regularly paying all the dues pertaining to this mobile number, but you with malafide intention did not pay the bill of said mobile number amounting to AED 4300/- as a result not only this mobile number was blocked by the service provider but also the other mobile number 00971-50- 1487045 held by said Mr. Akhilesh Jha of my client company was also blocked by the service provider, due to which my client company was/is unable to avail banking facilities through phone banking. 17.In view of the above facts, you are hereby called upon to : a. Pay an amount of AED 625,775/- (Six Hundred Twenty Five Thousand Seven Hundred and Seventy Five only on account of short deposit of fee collected by you in the name of my client from b. Pay an amount of AED 1,392,200/- on account of fee collected by you against the installment due as on 31.1.2013 and did not deposit in the bank account of my client company. c. Pay an amount of AED 50,000/- on account of losses suffered by my client company due to non-communication by you regarding termination of agreement; d. Pay an amount of AED 1,000,000/- on account of damages for starting a same/similar business in violation of terms of the agreement and unauthorizedly using data/information, manuals etc. pertaining to my client company; e. Pay an amount of AED 18120/- on account of settlement of wage account and cancellation of visa of said Mr. Yogeshwar Singh Batyal by my client company; f. Pay an amount of AED 4300/- on account of payment of outstanding dues of bill in respect of mobile No 00971-50-4515576 held by Mr. Akhilesh Jha, an employee and erstwhile center manager of Dubai office of my client company; g. To render the account of profits made by you since 15.12.2012 by enrolling the students under the mis-representation made by you that you are a service provider of my client company; and h. Immediately stop using for your wrongful gains the data/information, manual etc. pertaining to my client company, return the data/information, manual etc. to my client company and also to give an undertaking not to use any data/information, manuals pertaining to my client company, in any manner, whatsoever. That in case you fail to comply with the above legal demands of my client company as stipulated in para 17 (a) to (h) hereinabove, within a period of 10 days from the date of receipt of this legal demand notice, I have definite instructions from my client company to proceed legally against you, as deemed fit, including but not limited to lodging criminal complaint before the appropriate authorities as well as to refer the dispute for arbitration as provided under the agreement and you shall be solely responsible for the cost and consequences. Further, you are also liable to pay cost of legal charges incurred by my client company for issuance of this legal notice amounting to Rs.20,000/-. A copy of this legal notice is being retained in my office for further necessary action. 50. This Court has carefully perused the legal notice and is unable to come to a conclusion that this ‗Legal Demand cum Cease/Desist Notice‘ can qualify as a notice invoking arbitration under Section 21 of the Act. This Court says so primarily for two reasons: a) This letter merely states that the Respondent has a right to initiate Arbitration proceedings in future, but does not intend to do so at b) This letter does not name any person as an Arbitrator, nor the fact that the person is being appointed as an Arbitrator in terms of the Employment Agreement has been mentioned. 51. Other things which have to be taken into consideration before coming to any conclusion is that whether the correspondences which have been exchanged between the parties either pre-arbitration or post- arbitration can be said to constitute sufficient notice to the Petitioner, thus ensuring compliance with the statutory dictum envisaged under 52. It is not disputed that a pre-arbitration legal notice dated 6th November 2013 (as discussed above) was received by the Petitioner which, as held above, does not constitute a notice under Section 21 of the Arbitration Act. Apart from this notice, the Petitioner has admitted the receipt of the email dated 5th June 2014 from the Arbitrator to the Petitioner which states that the arbitration proceedings were deferred in view of the Delhi Bar Elections. The Respondent has claimed that other communications were also made to the Petitioner which include first, a letter dated January 2014 pertaining to appointment of Arbitrator; secondly, a notice dated 10th March 2014, stating commencement of arbitration (which was directed to be resend along with order dated 23rd September 2014 to the respondent and the courier receipt of same is claimed to be filed on 1st November 2014). 53. This Court has carefully perused the documents on record, especially the notice dated 10th March 2014 by way of which the consent of the Arbitrator was recorded and which stated commencement of arbitration, but this Court is unable to find any documentary evidence on record to satisfy its conscience that this notice was ever served upon the Petitioner, by post or by email, as only speed post receipts evidencing delivery to the Respondent herein have been brought on record. Accordingly, this Court is satisfied that a proper notice under Section 21 of the Arbitration Act was not served upon the Petitioner and the dictum of Shriram Transport (supra) is fully applicable to the facts and circumstances of the present case. 54. Another question that arises for consideration is that: III. Whether the impugned arbitral award is liable to be set aside on the ground that the Arbitrator has wrongly applied the Indian law as the substantive/governing law of the 55. The Petitioner has contended that the substantive law of the contract was the UAE Federal Labour Law whereas, the Arbitrator has relied on Indian law as the substantive law of the contract, as the Arbitrator has relied on Indian laws and judicial pronouncements while arriving at his findings. It has also been argued that under the UAE Federal Labour Law, employment and/or labour disputes are not capable of resolution by arbitration. 56. The position pertaining to various laws governing an arbitration proceeding is no longer res integra and has been authoritatively dealt by judicial pronouncements and has also been dealt by various acclaimed authors around the globe. Before adverting to these decisions, it is necessary to refer to the relevant clauses in the Employment Agreement governing the parties. This Employment Contract and the Employment shall be governed by and construed in accordance with the United Arab Emirates Federal Labour Law for the Private Sector (being Federal Law No. 8 of 1980 as amended) only until Sharjah regulatory authority puts into place separate regulations concerning employment in Sharjah at which time such separate regulations will govern this Employment Contract and the Employment. Any dispute arising under this agreement will be referred for arbitration to a sole arbitrator appointed by the Managing Director of Career Launcher India Ltd. and having its jurisdiction/place at New Delhi, India.‖ 57. Enka Insaat Ve Sanayi AS vs. OOO Insurance Company Chubb, [2020] UKSC 38, is a watershed decision explaining the different laws governing a contract which also contains an arbitration clause. The Supreme Court of United Kingdom has beautifully explained the position of law in the following words: ―43. It is rare for the law governing an arbitration clause to be specifically identified (either in the arbitration clause itself or elsewhere in the contract). It is common, however, in a contract which has connections with more than one country (or territory with its own legal system) to find a clause specifying the law which is to govern the contract. A typical clause of this kind states: ―This Agreement shall be governed by and construed in accordance with the laws of [name of legal system].‖ Where the contract also contains an arbitration clause, it is natural to interpret such a governing law clause, in the absence of good reason to the contrary, as applying to the arbitration clause for the simple reason that the arbitration clause is part of the contract which the parties have agreed is to be governed by the specified system of law. 45. There is a considerable body of English case law which proceeds on the assumption that a choice of law for the contract will normally apply to an arbitration clause in the contract. The approach was summarised by Colman J in Sonatrach Petroleum Corpn (BVI) v Ferrell International Ltd [2002] 1 All ER (Comm) 627 at para 32: ―Where the substantive contract contains an express choice of law, but the agreement to arbitrate contains no separate express choice of law, the latter agreement will normally be governed by the body of law expressly chosen to govern the substantive contract.‖ 46. It has not generally been considered to make any difference in this regard that the arbitration clause provides for arbitration to take place in a different country from the country whose law has been chosen to govern the contract. Examples of decisions in which a choice of law clause in the contract has been treated as applying to the arbitration agreement despite the seat of arbitration being in a different jurisdiction include: Cia Maritima Zorroza SA v Sesostris 653; Union of India v McDonnell Douglas Corpn [1993] 2 Lloyd‘s Rep 48, 49-50; Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission [1994] 1 Lloyd‘s Rep 45, 57; Deutz AG v General Electric Co (Thomas J, 14 April 2000) at p 17; Peterson Farms Inc v C&M Farming Ltd [2004] EWHC 121 (Comm); [2004] 1 Lloyd‘s Rep 603, paras 43- 46; Leibinger v Stryker Trauma GmbH [2005] EWHC 690 (Comm), para 38; and Svenska Petroleum Exploration AB v Government of the Republic of Lithuania [2005] EWHC 2437 (Comm); [2006] 1 All ER (Comm) 731, paras 76-77. 58. Redfern and Hunter: Law and Practice of International Commercial Arbitration, 6th ed (2015) at para 3.12 states as ―Since the arbitration clause is only one of many clauses in a contract, it might seem reasonable to assume that the law chosen by the parties to govern the contract will also govern the arbitration clause. If the parties expressly choose a particular law to govern their agreement, why should some other law - which the parties have not chosen - be applied to only one of the clauses in the agreement, simply because it happens to be the arbitration clause?‖ 59. Merkin on Arbitration Law, Issue 84 (2020), para 7.12, ―… even if there is no express contractual statement to that effect, a choice of law clause for the entire agreement is likely to be construed as extending to the arbitration clause. There are numerous decisions to this effect … However, that presumption may be ousted in appropriate circumstances 60. Dicey, Morris & Collins on The Conflicts of Laws, 15th ed (2012) at para 16-017: states as under: ―If there is an express choice of law to govern the contract as a whole, the arbitration agreement may also be governed by that law.‖ 61. The UK Supreme Court in Enka (supra) has also dealt with the role of the law applicable to the seat of arbitration, i.e., the curial law in the arbitration proceedings in the following manner: ―67. On this appeal Chubb Russia disputed the initial premise that a choice of seat for an arbitration involves any choice of law at all, procedural or substantive. Counsel for Chubb Russia submitted that the application of the curial law of the seat is something that follows automatically from a choice of place of arbitration rather than being itself a matter of choice. They cited as an analogy a hypothetical case postulated by Redfern and Hunter: Law and Practice of International Commercial Arbitration, 6th ed (2015), para 3.63, of an English motorist who takes her car to France. Redfern and Hunter comment that: ―… it would be an odd use of language to say that this notional motorist had opted for ‗French traffic law‘; rather, she has chosen to go to France - and the applicability of French law then follows automatically. It is not a matter of choice.‖ 68. We agree that it would be inapt to describe the tourist in this example as having made a choice to be regulated by French traffic law. But as Mr Dicker QC for Enka submitted, it is difficult to conceive that a person‘s decision to visit France might be informed by a desire to be governed by French traffic law. By contrast, the nature and scope of the jurisdiction exercised by the courts of a country over an arbitration which has its seat there is a highly material consideration in choosing a seat for the arbitration. That is reinforced by the fact that the seat of an arbitration is a legal concept rather than a physical one. A choice of place as the seat does not dictate that hearings must be held, or that any award must actually be issued, in that place. As the Court of Appeal observed (at para 46), it is perfectly possible to conduct an arbitration with an English seat at any convenient location, anywhere in the world. Furthermore, under section 53 of the Arbitration Act 1996, unless otherwise agreed by the parties, where the seat of an arbitration is in England and Wales, any award in the proceedings shall be treated as made there, regardless of where it was signed, despatched or delivered to any of the parties (see also article 31(3) of the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985). The point of agreeing a seat is to agree that the law and courts of a particular country will exercise control over an arbitration which has its seat in that country to the extent provided for by that country‘s law. A choice of seat can in these circumstances aptly be regarded as a choice of the curial law. 69. As noted at the beginning of this judgment, however, the curial law which applies to the arbitration process is conceptually distinct from the law which governs the validity and scope of the arbitration agreement. Whether a choice of the curial law carries any implication that the parties intended the same system of law to govern the arbitration agreement - and, if so, the strength of any such implication - must depend on the content of the relevant curial law. 70. In Carpatsky Petroleum Corpn v PJSC Ukrnafta [2020] EWHC 769 (Comm); [2020] Bus LR 1284, the claimant applied to enforce in England and Wales an arbitration award made in Sweden. Enforcement was resisted on the ground (among others) that there was no valid arbitration agreement in the contract between the parties. This argument depended on the assumption that the validity of the arbitration agreement was governed by the law of Ukraine. The contract provided for the ―law of substance of Ukraine‖ to apply ―on examination of disputes‖. Butcher J held (at paras 67-71) that this was not a choice of Ukrainian law to govern the arbitration agreement and that, in the circumstances, the choice of Stockholm as the seat for any arbitration demonstrated an implied choice that the validity and interpretation of the arbitration agreement should be governed by Swedish law. His reasons were that: (1) it was reasonable to infer that the parties had deliberately chosen a neutral forum to resolve their disputes and hence “intended the law of that jurisdiction to determine issues as to the validity and ambit of that choice”; and (2) by choosing Sweden as the seat for the arbitration, the parties agreed to the application of the Swedish Arbitration Act, including section 48 which provides that, in the absence of agreement on a choice of law to govern an arbitration agreement with an international connection, the arbitration agreement shall be governed by the law of the country in which, by virtue of that agreement, the arbitration proceedings have taken place or will take place. It follows that, by providing for a Swedish seat, the parties were impliedly agreeing that Swedish law should govern the arbitration agreement.‖ 62. In international commercial arbitrations, it is a well-established rule that if the parties opt to have the arbitration's seat in a specific nation, that nation's rules governing arbitration proceedings will take effect and its courts will have supervisory jurisdiction over the arbitration. This Court is persuaded with the submissions advanced by the learned senior counsel for the Petitioner that the Arbitrator has grossly erred in applying Indian laws to govern and adjudicate upon the disputes arising between the parties even when there was a specific agreement to the effect that the Employment Agreement will be governed by the UAE Federal Labour Law. Accordingly, the impugned arbitral award is unsustainable on this ground as well. 63. Now, it is necessary to determine what constitutes a violation of the fundamental policy of Indian Law. 64. In Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49, the Hon‟ble Supreme Court clarified the meaning and scope of „Fundamental Policy of Indian Law‟ in the context of Section 34 of the Arbitration Act in the following manner: ― 28. In a recent judgment, ONGC Ltd. v. Western Geco International Ltd., 2014 (9) SCC 263, this Court added three other distinct and fundamental juristic principles which must be understood as a part and parcel of the fundamental policy of Indian law. The Court held- 35. What then would constitute the ―fundamental policy of Indian law is the question. The decision in ONGC [ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705] does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression ―fundamental policy of Indian law, we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a ―judicial approach in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of a judicial approach in judicial and quasi-judicial determination lies in the fact that so long as the court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge. 38. Equally important and indeed fundamental to the policy of Indian law is the principle that a court and so also a quasi judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated audi alteram partem rule one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law. 39. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but no less in statutory processes wherever the same are available. 40. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an Arbitral Tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest‖. 31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where: 1. a finding is based on no evidence, or 2. an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or 3. ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. 33. It must clearly be understood that when a court is applying the ― ―public policy‖ test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score1 . Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts......‖ 65. Therefore, what really flows from above is that first, the learned arbitrator must have taken a judicial approach; secondly, the principles of natural justice must have been adhered; thirdly, the decision must not be perverse. IV. Whether the impugned arbitral award is liable to be set aside under 34(2)(a)(ii) of the Arbitration Act on the ground that there was no privity of contract between the Petitioner and M/s CL EDUCATE Ltd., as the Employment Agreement was between the Petitioner and CEITI? 66. The Petitioner has taken the argument that there was no valid arbitration agreement between the parties. The Employment Agreement dated 15th February 2010 containing the arbitration clause was entered into between the Petitioner and CEITI, Dubai which is a separate and distinct legal entity from the Respondent and as such, there is no privity of contract and no arbitration agreement between the Petitioner and the Respondent herein. Thus, the Arbitral Award is liable to be set aside under Section 34(2)(a)(ii) of the Act. 67. This argument of the Petitioner raises the question as to whether the „Group of Companies‘ doctrine is attracted to the facts and circumstances of the present case to justify the arbitration proceedings between M/s CL Educate Ltd. and the Petitioner. This concept was created specifically by the French courts and International Chamber of Commerce (ICC) arbitration tribunals. Its goal is to make it possible, under specific circumstances, for non-signatory members of the same group of companies to be included in an arbitration agreement that was originally only signed by one or a small number of those companies. Pietro Ferrario, The Group of Companies Doctrine in International Commercial Arbitration: Is There any Reason for this Doctrine to Exist? (Journal of International Arbitration) while dealing with the ‗Doctrine of Group of Companies‘ in detail has expressed the following opinion. In particular, as will be explained in more detail below, for the application of the group of companies doctrine the following conditions are necessary: (a) the intention of all the parties involved to consider the whole group as the contracting party without giving importance to which company would conclude or perform the contract. Thus, arbitration tribunals will extend the arbitration agreement if they interpret the parties' will in the sense that the parties meant all units of the group to be party to the contract without attaching importance to the form of the contract; (b) the active participation of the non-signatories in the negotiation, performance or termination of the contract, showing the will of those companies to be party to the contract and, as a consequence, to the arbitration agreement even though they did not sign it. Arbitration tribunals and courts give great importance to this active role of the non-signatories and consider it fundamental in order to apply the group of companies doctrine. As will be shown below in conclusion, the existence of a group of companies is a factor taken into account by case law, but it is not the sole ground on which the extension of the arbitration agreement is based. 68. In Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc. & Ors., (2013) 1 SCC 641, the Hon‟ble Supreme Court while dealing with Section 45 of the Arbitration Act, held as follows: ―71. Though the scope of an arbitration agreement is limited to the parties who entered into it and those claiming under or through them, the courts under the English law have, in certain cases, also applied the ―group of companies doctrine‖. This doctrine has developed in the international context, whereby an arbitration agreement entered into by a company, being one within a group of companies, can bind its non signatory affiliates or sister or parent concerns, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non- signatory affiliates. This theory has been applied in a number of arbitrations so as to justify a tribunal taking jurisdiction over a party who is not a signatory to the contract containing the arbitration agreement. [Russell on 72. This evolves the principle that a non-signatory party could be subjected to arbitration provided these transactions were with group of companies and there was a clear intention of the parties to bind both, the signatory as well as the nonsignatory parties. In other words, ―intention of the parties‖ is a very significant feature which must be established before the scope of arbitration can be said to include the signatory as well as the non-signatory parties. 73. A non-signatory or third party could be subjected to arbitration without their prior consent, but this would only be in exceptional cases. The court will examine these exceptions from the touchstone of direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject-matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of the mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute. Besides all this, the court would have to examine whether a composite reference of such parties would serve the ends of justice. Once this exercise is completed and the court answers the same in the affirmative, the reference of even non-signatory parties would fall within the exception afore-discussed.‖ 69. In Cheran Properties Ltd. v. Kasturi & Sons Ltd. & Ors., (2018) 16 SCC 413, a three judge bench of the Hon‟ble Supreme Court interpreted the Doctrine of Group of Companies in the context of the enforcement of a domestic arbitration award in the following words: ―23. As the law has evolved, it has recognised that modern business transactions are often effectuated through multiple layers and agreements. There may be transactions within a group of companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non-signatory entities within the same group. In holding a non-signatory bound by an arbitration agreement, the court approaches the matter by attributing to the transactions a meaning consistent with the business sense which was intended to be ascribed to them. Therefore, factors such as the relationship of a non-signatory to a party which is a signatory to the agreement, the commonality of subject matter and the composite nature of the transaction weigh in the balance. The group of companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non- signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements, an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory.‖ 70. In MTNL v. Canara Bank & Ors., (2020) 12 SCC 767, the Hon‟ble Supreme Court held as follows: ―10.3. A non-signatory can be bound by an arbitration agreement on the basis of the ―group of companies‖ doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non signatory parties. Courts and tribunals have invoked this doctrine to join a non-signatory member of the group, if they are satisfied that the non-signatory company was by reference to the common intention of the parties, a necessary party to the contract. ―10.5. The group of companies doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non-signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non-signatory affiliates in the group. The doctrine provides that a non-signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract, the non-signatory will also be bound and benefitted by the relevant contracts. [ Interim award in ICC Case No. 4131 of 1982, IX YB Comm Arb 131 (1984); Award in ICC Case No. 5103 of 1988, 115 JDI (Clunet) 1206 (1988). See also Gary B. Born : International Commercial Arbitration, Vol. I, 2009, pp. 10.6. The circumstances in which the ―group of companies‖ doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject-matter; the composite nature of the transaction between the parties. A ―composite transaction‖ refers to a transaction which is interlinked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute. 10.7. The group of companies doctrine has also been invoked in cases where there is a tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality. In such a situation, signatory and non-signatories have been bound together under the arbitration agreement. This will apply in particular when the funds of one company are used to financially support or restructure other members of the group. [ ICC Case No. 4131 of 1982, ICC Case No. 5103 of 71. Gary B. Born in his treatise on International Commercial Arbitration indicates that: “The principal legal basis for holding that a non signatory is bound (and benefited) by an arbitration agreement … include both purely consensual theories (e.g., agency, assumption, assignment) and non-consensual theories (e.g. estoppel, alter ego). ―Authorities from virtually all jurisdictions hold that a party who has not assented to a contract containing an arbitration clause may nonetheless be bound by the clause if that party is an ‗alter ego‘ of an entity that did execute, or was otherwise a party to, the agreement. This is a significant, but exceptional, departure from the fundamental principle … that each company in a group of companies (a relatively modern concept) is a separate legal entity possessed of separate rights and liabilities. the group of companies doctrine is akin to principles of agency or implied consent, whereby the corporate affiliations among distinct legal entities provide the foundation for concluding that they were intended to be parties to an agreement, notwithstanding their formal status as non-signatories.‖ 72. This Court has perused the Employment Agreement which has been entered into between the Petitioner and the Respondent. This Agreement itself was executed on the letter-head of Career Launcher (M/s CL EDUCATE Ltd. was previously known as Career Launcher. In addition to this, it has been clearly mentioned in the Employment Agreement itself that CEITI is authorized to run the Career Launcher test- prep courses in UAE. The legal notice dated 6th November 2013 itself has been sent on behalf of M/s CL Educate Ltd. to which the Petitioner had responded. 73. However, this Court is conscious of the dictum of the Hon‟ble Supreme Court in Cox and Kings Limited vs. SAP India Pvt. Ltd., (2022) 8 SCC 1, wherein a three judge bench of the Hon'ble Supreme Court had doubted the application of this Doctrine as well as the decision in Chloro Controls (supra) and hence, referred the matter to a larger bench for further consideration. It was held as follows: "36. The interpretation of Chloro Controls was further expanded in the three-Judge Bench decision of this Court in Cheran Properties Ltd. v. Kasturi & Sons Ltd. In that case, this Court interpreted Section 35 of the Arbitration Act to enforce an award against a non-signatory, even though it did not participate in the proceedings. 37. This Court in Reckitt Benckiser (India) (P) Ltd. v. Reynders Label Printing (India) (P) Ltd. [Reckitt Benckiser (India) (P) Ltd. v. Reynders Label Printing (India) wherein the two-Judge Bench of this Court refused to apply the ―Group of Companies‖ doctrine as the applicant failed to prove the commonality of intention of the respondents to be bound by the arbitration agreement : (SCC pp. 64 & 74, ―4. Keeping in mind the exposition in Chloro Controls [Chloro Controls India (P) Ltd. v. Severn Trent SCC (Civ) 689] … In other words, whether the indisputable circumstances go to show that the mutual intention of the parties was to bind both the signatory as well as the non-signatory parties, namely, Respondent 1 and Respondent 2, respectively, qua the existence of an arbitration agreement between the applicant and the said respondents. 12. … Thus, Respondent 2 was neither the signatory to the arbitration agreement nor did have any causal connection with the process of negotiations preceding the agreement or the execution thereof, whatsoever. If the main plank of the applicant, that Mr Frederik Reynders was acting for and on behalf of Respondent 2 and had the authority of Respondent 2, collapses, then it must necessarily follow that Respondent 2 was not a party to the stated agreement nor had it given assent to the arbitration agreement and, in absence thereof, even if Respondent 2 happens to be a constituent of the group of companies of which Respondent 1 is also a constituent, that will be of no avail. For, the burden is on the applicant to establish that Respondent 2 had an intention to consent to the arbitration agreement and be party thereto, maybe for the limited purpose of enforcing the indemnity Clause 9 in the agreement, which refers to Respondent 1 and the supplier group against any claim of loss, damages and expenses, howsoever incurred or suffered by the applicant and arising out of or in connection with matters specified therein. That burden has not been discharged by the applicant at all. On this finding, it must necessarily follow that Respondent 2 cannot be subjected to the proposed arbitration proceedings. Considering the averments in the application under consideration, it is not necessary for us to enquire into the fact as to which other constituent of the group of companies, of which the respondents form a part, had participated in the negotiation process.‖ 38. In the Division Bench decision of this Court in MTNL v. Canara Bank [MTNL v. Canara Bank, (2020) 12 SCC 767] , it was observed that the group of companies doctrine can be utilised to bind a third party to an arbitration, if a tight corporate group structure constituting a single economic reality existed. The Court held as under : (SCC pp. 779-80, para 10) ―10.6. The circumstances in which the ―Group of Companies‖ doctrine could be invoked to bind the non- signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject- matter; the composite nature of the transaction between the parties. A ―composite transaction‖ refers to a transaction which is interlinked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute. 10.7. The group of companies doctrine has also been invoked in cases where there is a tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality. In such a situation, signatory and non-signatories have been bound together under the arbitration agreement. This will apply in particular when the funds of one company are used to financially support or restructure other members of the group. [ ICC Case No. 4131 of 1982 : (1984) 9 Yearbook of Commercial Arbitration 131; ICC Case No. 5103 of 1988 : (1991) 39. We may notice that these cases have been decided by this Court, without referring to the ambit of the phrase ―claiming through or under‖ as occurring under Section 8 of the Arbitration Act. 40. The ratio of the Chloro Controls case [Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] alludes to the subjective intention of parties to be bound by arbitration agreement when the parties have clearly not been signatory to the agreement. Reconciling the two is difficult and requires exposition by this Court. 41. It may be noted that the doctrine, as expounded, requires the joining of non-signatories as ―parties in their own right‖. This joinder is not premised on non-signatories ―claiming through or under‖. Such a joinder has the effect of obliterating the commercial reality, and the benefits of keeping subsidiary companies distinct. Concepts like single economic entity are economic concepts difficult to be enforced as principles of law. 42. The areas which were left open by this Court in Chloro Controls case [Chloro Controls India (P) Ltd. v. Severn SCC (Civ) 689] has created certain broad-based understanding of this doctrine which may not be suitable and would clearly go against distinct legal identities of companies and party autonomy itself. The aforesaid exposition in the above case clearly indicates an understanding of the doctrine which cannot be sustainable in a jurisdiction which respects party autonomy. There is a clear need for having a re-look at the doctrinal ingredients concerning the group of companies doctrine. 43. Internationally, the group of companies doctrine has been accepted in varying degrees. Swiss Courts usually do not recognise such a doctrine under their Switzerland de lege lata. [ Award in Geneva Chamber of Commerce Case of has observed as under: ―… Mr Hoffmann suggested beguilingly that it would be technical for us to distinguish between parent and subsidiary company in this context; economically, he said, they were one. But we are concerned not with economics but with law. The distinction between the two is, in law, fundamental and cannot here be bridged.‖ [Bank of Tokyo Ltd. v. Karoon, 1987 AC 45, p. 64 : (1986) 3 WLR 414 (CA)] 51. In view of the aforesaid discussion, we feel it appropriate to refer the aspect of interpretation of “claiming through or under” as occurring in amended Section 8 of the Arbitration Act qua the doctrine of group of companies to a larger Bench to provide clarity on this aspect. The law laid down in Chloro Controls case [Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] and the cases following it, appear to have been based, more on economics and convenience rather than law. This may not be a correct approach. The Bench doubts the correctness of the law laid down in Chloro Controls case [Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] and cases following it. 74. Accordingly, as a matter of utmost judicial propriety, as the larger bench of the Hon‟ble Supreme Court is seized of the issue at hand, this Court is not inclined to render any judicial finding on the issue of application of the Doctrine of Group of Companies in the facts and circumstances of the present case. It is also to be noted that findings on this issue do not tilt the conclusion which is reached in the present case on the findings already recorded on the other issues. 75. In view of the discussion aforesaid on facts and law, this Court is satisfied that there was no effective delivery of arbitral award to the Petitioner and the present case is fully covered by the decisions of the Hon‟ble Supreme Court in Tecco Trichy (supra), Benarsi Krishna (supra) and ARK Builders (supra). Accordingly, the present application is within the purview of limitation as envisaged under Section 34(3) of the Arbitration Act. This Court is also satisfied that no mandatory notice under Section 21 of the Arbitration Act was given to the Petitioner, in view of the dictum of the Division Bench of this Court in Shriram Transport (supra). This Court is also satisfied that the Arbitrator has applied wrong governing law while adjudicating the disputes between the parties. The entire dispute was to be adjudicated by the substantive law of the Contract which was the UAE Federal Labour Law in view of the dictum of the Supreme Court of United Kingdom in Enka Insaat (supra). The impugned arbitral award is contrary to settled norms of „Fundamental Policy of Indian Law‟ in view of the dictum of the Hon‟ble Supreme Court in Associate Builders (supra). 76. Accordingly, the impugned arbitral award dated 16th March 2015 passed by the learned sole arbitrator, Mr. Divya Darshan Sharma in the case titled as „CL Educate Ltd. vs. Monika Oli’ is quashed and set aside. The Petition stands allowed in the above terms. 77. Pending applications, if any, also stand disposed of. 78. The judgment be uploaded on the website forthwith.	The Delhi High Court has ruled that delivery of arbitral award, to be effective under the Arbitration and Conciliation Act, 1996 (A&C Act), must be made to a person who has direct knowledge of the arbitral proceedings. The bench of Justice Chandra Dhari Singh remarked that the word ‘party’ in Section 34(3) of the A&C Act means party to the arbitral proceedings and does... The Delhi High Court has ruled that delivery of arbitral award, to be effective under the Arbitration and Conciliation Act, 1996 (A&C Act), must be made to a person who has direct knowledge of the arbitral proceedings. The bench of Justice Chandra Dhari Singh remarked that the word ‘party’ in Section 34(3) of the A&C Act means party to the arbitral proceedings and does not include an agent of the party as well. The Court further held that, delivery of the arbitral award to the employee of an entity in which the award debtor is a shareholder but the arbitral dispute does not pertain to that entity, would not constitute as proper delivery in terms of the A&C Act. Section 34 (3) of the A&C Act provides that an application for setting aside an award must be made within three months from the date on which the party making the application had received the arbitral award. The petitioner, Monika Oli, and the respondent, M/s CL Educate Ltd., entered into an Employment Agreement. After certain disputes arose between the parties under the Agreement, the respondent invoked the arbitration clause and an ex-parte arbitral award was passed against the petitioner. Challenging the arbitral award, the petitioner filed a petition under Section 34 of the A&C Act before the Delhi High Court. The petitioner, Monika Oli, submitted before the High Court that the arbitral award was illegal as she never received the notice under Section 21 of the A&C Act. She argued that issuance of notice under Section 21 is mandatory and its non-issuance renders the entire arbitral proceedings as non-est and void ab initio. The petitioner added that she never received any communication from the Arbitrator indicating his appointment and consent to act as an Arbitrator, or any notice directing her to appear in the arbitral proceedings. The petitioner contended that she gained knowledge of the Arbitral Award in 2022 when she received a notice from a Dubai Court in the execution proceedings filed by the respondent. She argued that receipt of the arbitral award which was passed in 2015, by an employee of the Company in which the petitioner is a minority shareholder, cannot be construed as delivery to the petitioner. The respondent, M/s. CL Educate, argued that the petition was barred by limitation. It further argued that notice under Section 21 was duly issued to the petitioner by way of a legal notice. The Court noted that Section 31 (5) of the A&C Act requires that a signed copy of the arbitral award shall be delivered to each party. The term “party” is defined in Section 2 (h) as meaning “a party to an arbitration agreement”. It noted that as per the decision of the Apex Court in Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, the term “party” has to be read as defined in Section 2(h), unless the context otherwise requires. Further, the Court took note that delivery of arbitral award on an agent or advocate of a party would not constitute as proper delivery in terms of Sections 31(5) and 34(3), in view of the Supreme Court’s decision in Benarsi Krishna Committee & Ors. v. Karmyogi Shelters Pvt Ltd., (2012) 9 SCC 496. Also, the Court reckoned that the period of limitation will commence only from the date on which the order/award was received by the relevant party in the manner prescribed by the law. (State of Maharashtra v. ARK Builders (P) Ltd., (2011) 4 SCC 616) The High Court thus concluded that the word ‘party’ in Section 34(3) means party to the arbitral proceedings and does not include an agent of the party as well. The bench added: “The delivery to be effective and in consonance with the legislative scheme of Arbitration Act must be made to a person who has direct knowledge of the arbitral proceedings and who would be the best person to understand and appreciate the arbitral award being connected with the dispute at hand”. Observing that the petitioner was involved in the dispute in an individual capacity and not in relation to her position as a minority shareholder of her Company, the Court concluded that no valid delivery of arbitral award was affected in the present case. “Nothing has been brought in record to portray that Mr. Baxi had accepted the arbitral award on behalf of the Petitioner. Therefore, delivery to the employee of an entity in which the Petitioner is a shareholder but the arbitration dispute did not pertain to that entity, would not constitute as a proper delivery in terms of the Arbitration Act”, the Court said. The bench added: “This Court is conscious that it has been close to 8 years since the award has been passed and a pedantic approach ought not to be taken, however, justice cannot be thwarted only because substantial time has elapsed when there is nothing on record to substantiate compliance with the mandatory provisions of Section 34(3) read with Section 31(5) of the Arbitration Act particularly, in view of the decision in Benarsi Krishna Committee (supra).” The Court took note that the Division Bench of the Delhi High Court in Shriram Transport Finance Co. Ltd. v. Shri Narendra Singh, (2022) SCC OnLine Del 3412, has recently ruled that compliance with Section 21 of A&C Act is mandatory in nature and not a matter of choice. Further, if no notice under Section 21 is received by the concerned party, there can be no commencement of arbitral proceedings at all, the Division Bench had held. Referring to the ‘Legal Demand cum Cease/Desist Notice’ issued by the respondent, the High Court concluded that the said Notice/Letter merely stated that the respondent has a right to initiate arbitral proceedings in future; also, the said Notice did not name any person as an Arbitrator. Thus, the said Legal Notice cannot qualify as a notice invoking arbitration under Section 21 of the A&C Act, the Court said. “Accordingly, this Court is satisfied that a proper notice under Section 21 of the Arbitration Act was not served upon the Petitioner”, the Court said. The bench further conceded that the Arbitrator had grossly erred in applying Indian laws to adjudicate the disputes between the parties despite a specific agreement to the effect that the contract would be governed by the UAE Federal Labour Law, under which employment and labour disputes are non-arbitrable. Since there was no effective delivery of arbitral award to the petitioner, the Court concluded that the petition was within the limitation period envisaged under Section 34(3). Holding that the arbitral award was contrary to the settled norms of “Fundamental Policy of Indian Law”, the Court allowed the petition and set aside the award. Case Title: Monika Oli versus M/s CL Educate Ltd. Counsel for the Petitioner: Mr. Jayant Mehta, Senior Advocate with Mr. Karan Lahiri, Mr. Akshat Gupta, Mr. Pranav Jain, Ms. Sakshi Tikmany, Ms. Sayani Dey and Mr. Raghav Bhatia, Advocates Counsel for the Respondent: Mr. Dhruv Mehta, Senior Advocate with Mr. Rajat Arora, Ms. Mariya Shahab and Mr. Shyam Agarwal, Advocates
2. The appellant has approached this Court being aggrieved by the judgment and order dated 19 th September, 2019, passed by the Division Bench of the High Court of Judicature at Madras, in Writ Petition No.16228 of 2014, thereby denying the prayer made by the appellant for a direction to the respondents to vacate the property. 3. The facts, in brief, giving rise to the present The property in question, being the property con sisting of vacant land situated at Old No.320, New No.469, Anna Salai, Nandanam, Chennai 600035, admeasuring 6107 sq.ft. (hereinafter referred to as ‘the said premises”) was leased to the predecessor of the respondent No.1 Bharat Petroleum Corporation Ltd. (hereinafter referred to as “the BPCL”), viz., Burmah Shell Oil Storage and Dis tributing Company of India by the predecessor of the appel lant, initially for a period of 20 years in the year 1960. Thereafter, the lease was renewed for another 20 years and finally for another period of 11 years vide a registered lease deed dated 23rd April, 1999. The said lease period came to an end on 31st December, 2009. On the said premises, re spondent No.1BPCL put up a petrol bunk, which was being operated by the respondent No.2M/s Vijaya Auto Services, its licensor. Before the expiry of the lease period, i.e., 31 st De cember, 2009, the appellant had issued a notice on 14 th Au gust, 2008 to respondent No.1BPCL, thereby terminating the lease. Thereafter, on 20th May, 2009, the appellant is sued another notice to respondent No.1BPCL to vacate the said premises. By subsequent notices dated 16 th July, 2009 and 3rd October, 2009, the appellant reiterated its demand. Since respondent No.1BPCL neither vacated the said premises nor took steps to formalize a fresh lease agreement, the appellant approached the Madras High Court praying for a direction to the respondents to vacate the said premises. It appears that, in the meantime, there were some attempts to settle the matter, as the respondent No.1BPCL had shown interest in purchasing the property outright. However, the same did not fructify. The matter originally was placed before the single judge of the Madras High Court. On 25 th April, 2019, the single judge of the Madras High Court passed the following “With regard to maintainable of the writ petition, in so far as the relief prayed for in the writ petition, there is conflict of judgment passed by this Court reported in 2001(1) CTC l (W.A.No.2302 of 1999, dated 20.10.2000), 2001 (1) CTC 10 (W.P.No.20061 of 1998, dated (W.P.No.29312 of 2014), CDJ 2018 MHC 1772 (W.P.No.14883 of 2015, dated 22.01.2018) and an unreported judgment in W.P.No.7432 of 2009, dated 22.10.2009 on the one hand held that writ petition is not maintainable, and the judgment passed by this. Court re (W.P.No.B,l58 of 2001, dated (W.P.No.44758 of 2002, dated (W.A.No.1767 of 2003, dated Nos. 630 & 657 of 2011, dated 12.12.2013) and unreported judgments passed by this Court in W.A.Nos.1796 & 1893 of 2014 dated 29.8.2008, W.P.No.13521 of 2002 dated 4.1.2011, W.A. No. 44 of 2000 dated 21.7.2000 and W.A. No.779 of 2008 dated 23.10.2008 on the other hand, writ petition is maintainable. Therefore, Registry is directed to place this writ petition before the Hon'ble Chief Justice for assigning the writ petition be fore the appropriate Division Bench, so as to decide the maintainability of the wit petition.” Pursuant to the aforesaid order, as per the directions of the learned Chief Justice, the matter was placed before the Division Bench of the High Court. A preliminary objection was taken regarding the maintainability of the writ petition on the ground that the writ petition involved disputed questions of fact and as such, was not maintainable. It was, however, contended on behalf of the appellant that no disputed questions of law or fact arose for consideration and as such, in view of the law laid down by this Court, the writ petition was maintainable. The Division Bench by the impugned judgment and order dated 19th September, 2019, held that the relief claimed by the appellant for a direction to the respondents to vacate the said premises could not be granted in a petition under Article 226 of the Constitution of India and relegated the appellant to the alternate remedy available in The Division Bench in the impugned judgment referred to the judgment of this Court in the case of C. Albert Morris v. K. Chandrasekaran and others1, wherein this Court has held that once the lease has expired and the landlord has declined to renew the lease and where the owner calls upon the erstwhile tenant to surrender possession, he could no longer assert any right over the site. The Division Bench also referred to the judgment of this Court in the case of Hindustan Petroleum Corporation Ltd. and another v. Dolly Das 2, wherein a similar claim on behalf of the owner of the land was allowed by this Court in writ jurisdiction. However, the Division Bench found that the aforesaid judgments of this Court had not considered the aspect with regard to protection given to a tenant under the enactments similar to Chennai City Tenants Protection Act, 1921 (hereinafter referred to as “the Tenants Act”). The Division Bench has also referred to its earlier judgments in paragraphs 57 and 58 of the impugned judgment, which read thus: “57. In Bharat petroleum Corporation Ltd vs R.Ravikiran 2011 (5) CTC 437, a division bench of this court while disposing CRP (NPD), OSA and CMA) held that oil company was in legal possession of the subject land. While the actual physical possession was with the dealers. The court rejected the claim of the Oil Companies under section 2(4) (ii) (a) in view of the decision of the Honourable Supreme Court in S.R Radhakrishnan vs 58. In the aforesaid case it was held that actual physical possession was a sine qua non for claiming the benefit of section 9 of the Tamil Nadu City Tenants Protection Act, 1972. However, while concluding, the court observed that to come within the definition of section 2(4) (ii) (a) of the Act, the petroleum company should be in actual possession of the land and since they were not in actual possession, they were not entitled to protection under section 9 of the Act. Similar view has been taken in several other decisions.” The Division Bench observed thus: “59. This view of the Division Bench of this court is now subject matter of appeal in a batch of appeals and Special Leave Petitions/appeal before the Hon’ble Thereafter, the Division Bench referred to various pronouncements of this Court as well as the Madras High Court and observed that the conduct of the respondent No.1BPCL was not befitting as an organ of a State. Thereafter, the Division Bench observed thus: “72. The remedy that is sought to be obtained before us is a remedy which can only be granted by a civil court or by the commercial courts as the arrangement between the petitioner and the respondent arises out of a private contract entered between them upto 73. Under section 3 of the Madras City Tenants Protection Act, 1921, the 1st respondent has a right to receive compensation for the value for building which may have been erected by them or by their predecessor in interest and subject to the Agreement. This compensation is payable once eviction is ordered. 74. Likewise, under section 9, a tenant who is entitled to compensation under section 3 of the Act, against whom eviction proceeding has been instituted or proceedings under section 41 of the has a right to apply for an order of the court to direct the landlord to sell whole or part of land for his convenient enjoyment and the court shall thereafter fix the price of the minimum extent of the land to be sold. 75. Therefore, to ask the 1st respondent to vacate the property without giving the 1st respondent any remedy under the provisions of the Madras City Tenants Protection Act, 1921 would amount to by passing the law and depriving the 1st respondent of the legal remedy available to it as per the dictum of the Hon’ble Supreme Court in Bharat petroleum Corporation Ltd versus N.R.Vairamani 76. We are therefore of the view that in the present proceeding, the rights of the 1st respondent under Section 9 of the Act, cannot be ignored. Whether the 1st respondent to a tenant cannot be determined here. Since we are not conducting trial in a writ proceeding, we cannot suo moto exercise power under Section 9 of the Act.” The Division Bench thereafter again referred to the conduct of the respondent No.1BPCL in continuing to occupy the said premises without paying any rent thereof. The Division Bench goes on to observe that, “Though we are perturbed by the conduct of the 1 st respondent, we are unfortunate unable to come to the rescue of the petitioner in this writ petition in view of the above discussion.” (emphasis supplied). It could thus clearly be seen that, though the Division Bench found that the claim made in the writ petition was almost similar to the claim, which was allowed by it in the case of Bharat Petroleum Corporation Ltd. v. R. Ravikiran and others3, it denied the relief to the appellant only on the ground of protection granted under the Tenants Act and that the view taken by the Madras High Court in the case of R. Ravikiran (supra) was pending before this Court. We have to examine the correctness of the said 4. We have heard Shri V. Giri, learned Senior Counsel appearing on behalf of the appellant and Shri Kailash Vasdev, learned Senior Counsel appearing on behalf of the respondents. 5. Shri V. Giri, learned Senior Counsel appearing on behalf of the appellant submits that the issue is no more res integra. This Court, speaking through a bench of three judges, in the case of Bharat Petroleum Corporation Limited v. R. Chandramouleeswaran and others 4 has held that the tenants would not be entitled to benefit and rights under the Tenants Act unless they are in actual physical possession of the building constructed by them. He submits that, in the present case also, undisputedly, re spondent No.1BPCL has sublet/leased out the said premises to the respondent No.2 and as such, it is not in actual physical possession of the building constructed by it. He therefore submits that the judgment of this Court in the case of R. Chandramouleeswaran (supra) squarely applies to the facts of the present case. 6. Learned Senior Counsel further submits that in the present case, no disputed questions of law or facts arise for consideration. As such, the Madras High Court while exercising its jurisdiction under Article 226 of the Constitution of India ought to have allowed the writ petition. He further submits that respondent No.1BPCL is enjoying the property without paying a single farthing from the date of expiry of lease by efflux of time i.e. 31 st December, 2009 and as such, the conduct of the respondent No.1BPCL is unbecoming of a statutory corporation, which is a State within the meaning of Article 12 of the Constitution of India. He therefore submits that while allowing the appeal and directing the respondent No.1BPCL to handover vacant and peaceful possession of the said premises to the appellant, it will also be necessary that this Court directs the respondent No.1BPCL to pay market rent from 31st December, 2009 till the date of delivery of actual physical possession. 7. Shri Kailash Vasdev, learned Senior Counsel appearing on behalf of the BPCL, on the contrary, submits that the question as to whether the respondent No.1BPCL has sublet or leased out the said premises to the respondent No.2 is a disputed question of fact, which can only be adjudicated upon by the parties before the appropriate forum. He further submits that the view taken by this Court in the case of R. Chandramouleeswaran (supra) is not a correct view in law. He submits that the perusal of the agreements entered into between the BPCL with its dealers would show that the possession of the premises, with all the control, is with the BPCL. The dealer is only given a right to run the petrol pump. He therefore submits that the High Court has rightly relegated the appellant to the alternate remedy available in law. 8. Perusal of the impugned judgment rendered by the Division Bench would reveal that though an objection with regard to maintainability of the writ petition on the ground of alternate remedy was seriously raised by the re spondent No.1BPCL, the Division Bench was not impressed much with the said submission. As a matter of fact, the Division Bench not only referred to the judgment of this Court in the case of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others5 but also emboldened the following observations of this Court while reproducing paragraph 19 of the said judgment, which reads thus: “19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit.” 9. The Division Bench also referred to the judgment of this Court in the case of Dolly Das (supra), wherein this Court held that in similar facts, appellants therein were justified in approaching the writ Court under Article 226 of the Constitution of India and directed the HPCL to handover vacant possession and pay the monthly rent. 10. It is to be noted, as has been noted by the High Court, that the Division Bench of the same High Court in its decision in the case of R. Ravikiran (supra) had held that oil company was in legal possession of the subject land, while the actual physical possession was with the dealers. The Division Bench specifically rejected the claim made by the oil company under Section 2(4) (ii) (a) of the Tenants Act, in view of the judgment of this Court in case of S.R. Radhakrishnan and others v. Neelamegam6. 11. Having noted that to get the benefit under Section 9 of the Tamil Nadu City Tenants Protection Act, 1972, the petroleum company should be in actual possession of the land and since they were not in actual possession, they were not entitled to protection under Section 9 of the Tenants Act, the Division Bench in the impugned judgment stopped at granting relief in favour of the appellant only on the ground that the view of the Division Bench in R. Ravikiran (supra) was subject matter of appeal in a batch of Special Leave Petitions/Appeals pending before this 12. It could thus clearly be seen that the Division Bench itself did not find much favour with the arguments advanced on behalf of the respondent No.1BPCL with regard to nonexercise of jurisdiction under Article 226 of the Constitution of India on the ground of availability of alternate remedy and declined the relief only on the ground that the view taken by the other Division Bench in the case of R. Ravikiran (supra) and other matters, was pending consideration before this Court in a batch of appeals and 13. The said impediment is now no more in existence. The view taken by the Division Bench in the case of R. Ravikiran (supra) has been upheld by a Bench of three judges of this Court in the case of R. 14. It will be relevant to refer to the following observations of this Court in the case of R. “17. A Division Bench of this Court vide order dated 3122009 in Bharat Petro leum Corpn. Ltd. v. Nirmala [Bharat Petro leum Corpn. Ltd. v. Nirmala, (2020) 11 SCC 738] and other connected matters while interpreting subclause (b) to Sec tion 2(4)(ii) has held that the expression “actual physical possession of land and building” would mean and require the tenant to be in actual physical posses sion. The provisions would not be appli cable if the tenant is not in actual physi cal possession and has given the premises on lease or licence basis to a third party. The Court, however, did not give any finding on the question whether such benefit is available to the appellant under Section 2(4)(i) or Section 2(4)(ii)(a). We are reproducing the relevant portion of the order which reads as under: (SCC pp. 74042, paras 710 & 1314) ‘7. As regards subclause (b) of Sec tion 2(4), we do not agree with the con tention of Mr Nariman. On a plain reading of subclause (b) we notice that it uses the words “actual physical pos session”. Had the word “possession” alone been used in clause (b), as has been done in clause (a), the legal posi tion may have been different. However, the words “actual physical possession” are strong and emphatic. That means that the factual state of affairs has to be seen, not the legal or deemed state of affairs. There is no doubt that the appellant had handed over possession to his licensee/agent who was in ac tual physical possession of the suit premises. When a statute uses strong and emphatic words, we cannot twist or give a strained interpretation to the said words. The literal rule of interpre tation is the first rule of interpretation which means that if the meaning of a statute is plain and clear then it should not be given a twisted or strained meaning. We will be giving a strained and artificial interpretation to the words “actual physical possession” if we say that the appellant is deemed to be in actual physical possession. We cannot give such an interpretation to subclause (b) of Section 2(4) of the Act particularly since clause (a) only uses the word “possession” and not “actual physical possession”. Hence, we reject the contention of Mr R.F. Nariman, learned counsel appearing for the ap pellant and hold that the appellant was not in actual physical possession. 8. The Preamble of the Act makes it clear that the Act applies where super structure is constructed on the land, which is leased. Hence, the submission that clause (a) applies when there is no superstructure erected on the vacant land which was leased is not correct. In fact, the Act was meant to give some protection to leased land on which the tenant constructed some superstruc 9. As regards the submission of Mr Nariman that the appellant is entitled to the benefit of subclause (a) of Sec tions 2(4) of the Act, it appears that this aspect has not been considered by the High Court. In our opinion, the High Court should have considered whether the appellant is entitled to the benefit of Section 2(4)(i) and sub clause (a) of Section 2(4)(ii) of the Act. 10. We are not expressing any final opinion on the question whether the appellant is entitled to the benefit of Sections 2(4)(i) and 2(4)(ii)(a) of the Act as in our opinion it was incumbent upon the High Court to have recorded a finding on the said issue. Therefore, we set aside the impugned judgment and order [Bharat Petroleum Corpn. Ltd. v. M. Nirmala, CRP (NPD) No. 1815 of 2002, order dated 2582005 (Mad)] of the High Court and remand the mat ter back to the Division Bench of the High Court to record a finding on the question whether the appellant is enti tled to the benefit of Section 2(4)(i) and subclause (a) of Section 2(4)(ii) of the Act. Needless to mention, that the Divi sion Bench of the High Court shall de cide the said question in accordance with law and uninfluenced by any ob servation made by us in this order ex cept the finding that the appellant is not covered by subclause (b) of Sec tion 2(4) of the Act. We make it clear that we are not expressing any opinion of our own on the other issue. We hope and trust that the Division Bench of the High Court will dispose of the case expeditiously and preferably within a period of six months from the date a copy of this order is produced before it. 13. We are further of the opinion that where the lessee is in actual phys ical possession of the land over which he has made construction then he is entitled to an additional benefit given by Section 9(1)(a)(ii) of the Act. How ever, if the lessee who has made con struction on the land let out to him but was not subsequently in possession of the same, as is the case of the appel lants in the present cases, then he is not entitled to the benefit of Section 9(1)(a)(ii) though he may be entitled to the benefit of Section 9(1)(a)(i). These are the questions on which the Divi sion Bench of the High Court will record a finding. 14. Therefore, we set aside the im pugned judgments and orders of the High Court and remand the matter back to the Division Bench of the High Court to record a finding on the ques tion whether the appellant is covered by Section 2(4)(i) and subclause (a) of Section 2(4)(ii) of the Act and is entitled to the benefit of Section 9(1). Needless to mention, the Division Bench of the High Court shall decide the said ques tion in accordance with law and unin fluenced by any observation made by us in this order except our finding about clause (b) of Section 2(4). We make it clear that we are not express ing any opinion of our own on other is sues. We hope and trust that the Divi sion Bench of the High Court will dis pose of these cases expeditiously and preferably within a period of six months from the date a copy of this or der is produced before it.’ 18. Thus, while interpreting subclause (b) to Section 2(4)(ii), this Court has held that the expression “actual physi cal possession of land and building” would mean and require the tenant to be in actual possession and subclause (b) would not apply if the tenant has sublet the building or has given the premises on leave and licence basis. The aforesaid decision would operate as res judicata in the case of the appel lant and the landlords who were par ties to the decision. In other cases, it would operate as a binding precedent under Article 141 of the Constitution.” 15. It could thus be seen that this Court in the case of R. Chandramouleeswaran (supra) has held that this Court in the case of Bharat Petroleum Corporation Ltd. v. Nirmala and others7 and other connected matters, while interpreting the expression “actual physical posses sion of land and building” would mean and require the ten ant to be in actual physical possession and subclause (b) would not apply if the tenant has sublet the building or has given the premises on leave and licence basis. It further held that the aforesaid decision would operate as res judi cata in the case of the appellant and the landlords who were parties to the said decision. It further held that in other cases, it would operate as a binding precedent under Article 141 of the Constitution of India. Not only that, but this Court made the position amply clear in the concluding para graph 28, which reads thus: “28. Recording the aforesaid position, we dismiss the present appeals by the appel lant, that is, the three petroleum compa nies, and uphold the orders passed by the High Court that the appellant tenants would not be entitled to the benefit and rights under the Act unless they are in actual physical possession of the building constructed by them. In other words, in case the appellants have let out or sublet the building or given it to third parties, including dealers or li censees, they would not be entitled to protection and benefit under the Act.” 16. This Court has upheld the orders passed by the High Court that the appellant tenants would not be entitled to the benefit and rights under the Tenants Act unless they are in actual physical possession of the building constructed by them. The position is amply made clear by observing that in case the appellants have let out or sublet the building or given it to third parties, including dealers or licensees, they would not be entitled to protection and benefit under the Tenants Act. 17. Though Shri Kailash Vasdev, learned Senior Counsel, attempted to assail the correctness of the said judgment, such an exercise is not permissible in law. The said judgment of this Court in the case of R. Chandramouleeswaran (supra) is delivered by a Bench consisting of three judges and we are bound by the view taken therein. 18. We have perused the agreement between the re spondent No.1BPCL and the respondent No.2 herein. Shri Kailash Vasdev, learned Senior Counsel, fairly concedes that all the agreements between the respondent No.1BPCL and its dealers are identical. As such, when a Bench of three judges of this Court in the case of R. Chandramouleeswaran (supra), while considering a similar agreement between the appellantBPCL and the dealer, has held that since the appellant tenant was not in actual physical possession, it was not entitled to the protection under the Tenants Act, the said view is bound even in the facts of the present case. 19. In the result, we find that the view taken by the High Court, thereby relegating the appellant to the alternate remedy available in law, is not sustainable. 20. As observed by the High Court, the conduct of the respondent No.1BPCL in continuing with the occupation of the said premises without paying any rent from 31 st December, 2009 is unbecoming of a statutory corporation, which is a State within the meaning of Article 12 of the Constitution of India. We therefore find that while directing the respondents to vacate the said premises and handover peaceful and vacant possession to the appellant, it will also be necessary in the interests of justice to direct the respondent No.1BPCL to pay arrears of market rent from 31st December, 2009, till the date of delivery of possession at the market rate. 21. In the result, the appeal is allowed in the (i) The respondent No.1BPCL is directed to vacate and handover peaceful and vacant possession of the said premises to the appellant within a period of three months from today. (ii) The respondent No.1BPCL is directed to pay arrears of market rent to the appellant from 31 st December, 2009 till the date of handing over of possession. 22. We postpone the issue of determination of market rent for a period of three weeks from today. The appellant as well as the respondents shall file their written submissions with regard to the market rent with supporting documents within a period of two weeks from today. 23. The respondent No.1BPCL shall also pay costs, quantified at Rs.1,00,000/ (Rupees One lakh only) to the 24. The appeal is disposed of in the above terms. Pending applications, if any, shall stand disposed of.	The Supreme Court on Thursday (11th November) reiterated that the tenants ought to be in actual possession of the premises to avail the benefit of Section 9 of the Tamil Nadu City Tenants Protection Act, 1972, which deals with the application filed by the tenant before the Court to direct the landlord to sell the land. A bench comprising Justices L. Nageshwara Rao and B.R. Gavai allowed... The Supreme Court on Thursday (11th November) reiterated that the tenants ought to be in actual possession of the premises to avail the benefit of Section 9 of the Tamil Nadu City Tenants Protection Act, 1972, which deals with the application filed by the tenant before the Court to direct the landlord to sell the land. A bench comprising Justices L. Nageshwara Rao and B.R. Gavai allowed a civil appeal filed by National Company (appellant) against Bharat Petroleum Corporation Limited ("BPCL") for not vacating the premises leased out to them even after the term of the lease agreement had expired. In the factual context of the case, the Court further thought it fit to impose a cost of INR 1,00,000 (One Lakh) on BPCL, payable to the appellant. The predecessor of BPCL viz., Burmah Shell Oil Storage and Distributing Company had entered into a lease agreement with the predecessor of the appellant for a vacant land back in the year 1960. The initial term of the lease was 30 years, which was renewed for another 20 years and subsequently for a period of 11 years, which came to an end on 31st December, 2009. A petrol pump was set up on the vacant land by BPCL and was sub-let to a dealer (M/s Vijaya Auto Services). Before the stipulated term of the lease came to an end, a notice of termination of lease was sent out to BPCL, thereafter in three subsequent notices the intention was reiterated by the appellant. Neither did BPCL vacate the premises, nor took measures to enter into a fresh agreement. Against such gross inaction, the appellants approached the Ld. Single Judge of the Madras High Court in a Writ Petition. While the matter was pending before the High Court, BPCL showed interest in buying out the premises, but the same did not materialise. Citing conflicting judgments of the Madras High Court with respect to maintainability of writ petition, the matter was referred by the Single Judge to the Division Bench. Though perturbed by the conduct of BPCL, the Division Bench could not grant the remedy sought while exercising jurisdiction in a Writ Petition. Therefore, the appellants approached the Apex Court seeking appropriate relief. Contentions raised by appellant The appellants submitted that in Bharat Petroleum Corporation Limited v. R. Chandramouleeswaran And Ors. (2020) 11 SCC 718, the Apex Court had held that tenants would not be entitled to the benefit of the Tenants Act unless they are in actual physical possession of the concerned building. Placing the judgment in the context of the present case, the appellants argued that BPCL having sub-let the concerned premises was no longer in actual possession. It was further averred that considering there were no disputed questions of law and facts, the Division Bench ought to have allowed the reliefs sought in the Writ Petition. It was pointed out by the appellants that the property was being consistently utilised by BPCL free of cost even when the term of the lease had expired. Therefore, a plea was raised to direct BPCL to pay rent from the day the lease ended till the delivery of actual possession. The appellants reckoned that - "...the conduct of the respondent No.1 BPCL is unbecoming of a statutory corporation, which is a State within the meaning of Article 12 of the Constitution of India." Contentions raised by BPCL BPCL contended that the sub-letting of the premises was a disputed question of fact. The possession of the premises with all the controls always rested with BPCL and the same was argued to be evident from the sub-letting agreement. BPCL also went a step ahead to question the correctness of the judgment of the Supreme Court in R. Chandramouleeswaran in this regard. Findings of the Supreme Court Observing that in its judgment, the Division Bench had made reference to ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. And Ors. (2004) 3 SCC 553, which held that a party disputing facts in a writ jurisdiction would not bind the court to relegate the parties to a suit, the Apex Court inferred that the Division Bench was not inclined to entertain the plea of BPCL challenging maintainability of writ on account of alternate remedy. Another judgement of the Supreme Court viz., Hindustan Petroleum Corporation Ltd. And Anr v. Dolly Das (2006) 1 SCC 228 wherein in similar fact situation, HPCL was directed to hand over vacant possession and pay rent in a writ jurisdiction, was also relied upon by the Division Bench. The Supreme Court further noted that the benefit under Section 9 of the Tamil Nadu City Tenant Protection Act, 1972 could only be extended to the tenants who had actual possession. The said issue was considered by the Division Bench in the light of its judgment in Bharat Petroleum Corporation Ltd. v. R. Ravikiran 2011 (5) CTC 437, which had held that the oil company was in legal possession whereas the dealer was in actual position and therefore denied benefit under the Tenant Act. The Supreme Court took note of the fact that even after such elaborate discussions, the Division Bench did not grant relief to the appellants only on the ground that the decision in R. Ravikiran was challenged and the batch appeals were pending before the Supreme Court. The Court observed that "the said impediment is now no more in existence" since the view of the Division Bench in R. Ravikiran had been endorsed by the Apex Court in R. Chandramouleeswaran as under: "18. Thus, while interpreting subclause (b) to Section 2(4)(ii), this Court has held that the expression "actual physical possession of land and building" would mean and require the tenant to be in actual possession and subclause (b) would not apply if the tenant has sublet the building or has given the premises on leave and licence basis. The aforesaid decision would operate as res judicata in the case of the appellant and the landlords who were parties to the decision. In other cases, it would operate as a binding precedent under Article 141 of the Constitution." To clarify the position regarding actual and legal possession, the Apex Court referred to the concluding paragraph of R. Chandramouleeswaran: "28. Recording the aforesaid position, we dismiss the present appeals by the appellant, that is, the three petroleum companies, and uphold the orders passed by the High Court that the appellant tenants would not be entitled to the benefit and rights under the Act unless they are in actual physical possession of the building constructed by them. In other words, in case the appellants have let out or sublet the building or given it to third parties, including dealers or licensees, they would not be entitled to protection and benefit under the Act." [emphasis supplied]" The Court perused the agreement between the dealer and BPCL and observed that they were similar to the agreement in R. Chandramouleeswaran. The Court further stated that R. Chandramouleeswaran being a judgment passed by a three-judge bench was binding on them. It was noticed by the Court that, BPCL had utilised the premise beyond the term of the lease without paying a penny to the appellant and therefore, apart from directing BPCL to vacate and handover peaceful and vacant possession within a period of three months from the date of judgment, it also directed BPCL to pay arrears of market rent from 31st December, 2009 (the last date of the lease) till the date of handing over of possession. However, the Court postponed the issue of determination of the market rent by three weeks from the date of judgement, providing time to the parties to file written submissions. "...the conduct of the respondent No.1BPCL in continuing with the occupation of the said premises without paying any rent from 31st December, 2009 is unbecoming of a statutory corporation, which is a State within the meaning of Article 12 of the Constitution of India", the Court observed, while imposing cost of Rs one lakh on BPCL. [Case Title: National Company, Represented by its Managing Partner v. The Territory Manager, Bharat Petroleum Corporation Ltd. And Ors. Civil Appeal No. 6726 of 2021]
Civil Appeal No. 2008 of 1969. From the Judgment and Order dated 7 4 1965 of the Rajasthan High Court in D. B. Civil Regular Appeal No. 67/53. section M. Jain for the Appellant. B. D. Sharma, Ramesh Chandra and B. P. Maheshwari for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The State of Rajasthan, defendant in Civil Suit No. 9 of 1963 in the Court of the Senior Civil Judge, Udaipur, is the appellant in this appeal filed pursuant to a certificate granted under Article 133(1) (a) of the Constitution of India (as it stood prior to the 30th amendment). The plaintiff respondent took a building work on contract from the erstwhile Government of the State of Udaipur. He completed the work on 6th June, 1950. Despite demands and notices issued by the plaintiff a considerable amount due to him remained unpaid. He, therefore, filed the suit out of which the appeal arises to recover a sum of Rs. 3,19,458/11/ together with interest at the rate of 12%. The suit was contested by the State of Rajasthan. An interim decree for a sum of Rs. 66,517/ was passed on 7th November, 1955. After full trial a decree for Rs. 1,67,619/ (including the sum of Rs. 66,517/ for which a preliminary decree had already been passed) was passed on 11 6 1958/30 6 1958. The decree also awarded interest at the rate of 4 1/2% on the amount decreed from the date of suit till the date of realisation. The plaintiff and the defendant preferred appeals to the High Court of Rajasthan. The High Court reduced the decreetal amount by a sum of Rs. 9,991/ . The High Court, however, held that the plaintiff was entitled to interest from 1st January, 1951, and not merely from the date of suit. The High Court also enhanced the rate of interest pendente lite from 4 1/2 to 6%. The High Court having varied the decree of the Trial Court, the State of Rajasthan 8 sought and obtained a certificate under Article 133(1)(a) of the Constitution and has filed this appeal. The controversy in the High Court related primarily to (i) conveyance and lift charges; (ii) alleged double benefit in regard to bond stones, lintels and sills; (iii) use of Jodhpur slabs and their high cost; (iv) charge for C. P. Teak wood at the same rates as for Burma Teak. In regard to conveyance and lift charges the High Court pointed out that no question was raised in the Memorandum of grounds of appeal and there was, therefore, no justification for permitting the learned Counsel for the State to assail the finding of the Trial Court relating to those charges. We do not see any reason either why the learned Counsel should be permitted to agitate this question in this appeal. Regarding double charge for bond stone, lintels and sills, the complaint of the appellant was that while separate payment was being made for them, they had also been included in the measurements of the walls in which they happened to be fixed. From the office circular issued by the Chief Engineer of the Public Works Department of the United State of Rajasthan on 12th July, 1948, it appears that it was the practice uptill then to allow payment for bond stones, lintels and sills separately without deducting their cubic contents from the general wall masonry. This had always been the practice and this was never objected to by the Accountant General. In view of the practice obtaining till then it could not be said that the contractor had wrongfully claimed double payment for bond stones, lintels and sills. The use of Jodhpur slabs was not questioned in the written statement. All that was said was that the rate was high but at the trial there was no evidence worth the name, as observed by the High Court to show that the charge was excessive. Again there was no objection to the use of C.P.Teak wood instead of Burma teak wood as the latter was not available. According to the letter of the Superintending Engineer dated 6th February, 1950, where Burma teak wood was not available and C. P. Teak wood was used, the rates specified for Burma teak wood should be taken for C.P. Teak wood. It could not, therefore, be said that the contractor had charged more than what he should for C.P. Teak wood. The last question which was argued before us by Shri Jain, learned Counsel for the State of Rajasthan was that no interest should have been awarded for the period before the filing of the suit and that the rate of interest should not have been enhanced by the High Court for the period subsequent to the filing of the suit. It was 9 submitted that the Interest Act, 1839, was not applicable as no sum A certain was payable and there was no demand for payment of interest. It was argued that what was demanded by the plaintiff was damages and not interest. It was also contended that the Trial Court having, in exercise of its discretion, awarded interest at the rate of 4 1/2 % pendente lite, the High Court ought not to have interfered with the discretion of the Trial Court. Reliance was placed upon the decision in Mahabir Prasad Rungta vs Durga Datt(1) and Union of India vs A. L. Rallia Ram(2). We are unable to agree with the submission of the learned Counsel for the appellant. Under the Interest Act, 1839, "upon all debts or sums certain payable at a certain time or otherwise, the Court before which such debts or sums may be recovered may, if it shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then D from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment: provided that interest shall be payable in all cases in which it is now payable by law". The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of a sum which was ascertainable on a calculation made in accordance with the terms of the agreement. It was clearly a "sum certain" within the meaning of the Interest Act. In any case it would be a debt, i.e., "a sum of money which is now payable or will become payable in the future by reason of a present obligation". The further question for consideration is whether the plaintiff had made a demand of payment, "so as such demand shall give notice that interest will be claimed from the date of such demand until the term of payment". The plaintiff issued two notices to the defendant demanding payment. The first was on 21st December, 1950, and the second was on 5th April, 1953. There is no dispute that in the second notice of demand of payment of definite claim for interest had been made. In the first notice it was said "by with holding payment of his bills absolutely, the Government has put my client to enormous loss by way of interest also . I intimate to you (1)[1961] 3 S.C.R. 639. (2)[1964] 3 S.C.R. 164. 2 196SCI/79 10 through this notice that the said Shri Ramsingh claims a sum of Rs. 2,50,519/ from the Rajasthan State as under: 1. Unpaid bills for work done: Rs. 1,37,177/ 2. lnterest on the above. 11,511/ 3. . . . 4. . . 5. . . . 6. . . Total: Rs. 2,50,519/ The learned counsel submitted that what was claimed by the plaintiff in this notice was damages and not interest and that too for the past, without any indication that future interest was also being claimed. It is true that the plaintiff mentioned "loss by way of interest", suggesting that what he was claiming was compensation for the damage suffered by him. We are, however, not prepared to construe the notice so literally or technically. The mention of loss was only explanatory. The plaintiff was, without any manner of doubt claiming interest as such. Nor are we impressed with the argument that there was no claim for future interest. In our opinion a claim for past interest would necessarily imply a claim for future interest, vide Kuppuswami Pillai vs Madras Electric Tramway Co. Ltd.(1) and Sita Ram & Ors. vs Mrs. section Sullivan(2). In Mahabir Prasad Rungta vs Durga Datt(3) interest was disallow ed on the ground that the notice which was given did not specify the sum which was demanded and therefore, the Interest Act did not apply. On the question whether interest could be awarded on grounds of equity it was held that what was claimed by Durga Datt was interest as damages and that it could not, therefore, be awarded. The suit itself was one for damages for breach of contract. We do not think that this case is of any assistance to the appellant. In Union of India vs A. L. Rallia Ram, (supra) the Arbitrator had awarded interest by way of compensation since the party had to borrow a large amount of money from its banker to meet its obligation under the contract. The Supreme Court pointed out that interest could not be awarded by way of damages. The Supreme Court also noticed that an Arbitrator was not a Court within the meaning of the Interest Act. No question arose before the Supreme Court whether interest could not be awarded under the Interest Act merely because the notice demanding payment (1) I.L.R. (2) (3) ; 11 mentioned that the plaintiff had suffered loss of interest also. In our view the condition prescribed by the Interest Act that such demand shall give notice to the debtor that interest shall be claimed is fulfilled if interest is claimed, notwithstanding the fact that the notice of demand explains that loss by way of loss of interest has been suffered. Ta take any other view would be to be over technical in the construction of pleadings, including notices preceeding the action. We must notice here an argument advanced by the learned counsel for the appellant that the contract prohibited the award of interest. He relied upon the following sentence occurring in paragraph 16 of the Contract dated 11th May, 1947: "Neither the earnest money deposit nor the with held amount shall bear any interest". This sentence far from supporting the case of the appellant appears to support the case of the plaintiff. The reference to "the with held amounts" is to the amounts represening five per cent of the running bills which are required to be with held at the time of payment of the running bills. The provision that the contractor is not entitled to interest on these with held amounts appears to imply that interest is claimable on other amounts due to the contractor. While awarding interest pendente lite the Trial Court adopted the rate of 4 ' % but the Trial Court gave no reasons for so doing. The High Court considered the matter in some detail and having regard to the various continuous defaults committed by the defendant and its Officers, the High Court enhanced the rate of interest to 6%. The High Court was justified in doing sol and we see no reason to interfere with the discretion exercised by the High Court. In the result the appeal is dismissed with costs. N.V.K. Appeal dismissed.	The Interest Act, 1839 (32 of 1839) empowers the Court to allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument at la rate not exceeding the current rate of interest from the time when such amounts were payable and if the amount is payable otherwise, then from the time when the demand of payment shall have been made in writing. As the amounts due in respect of a building works contract remained unpaid despite demands and notices, the respondent (plaintiff) filed a suit for its recovery together with interest. Decreeing the suit, the trial court award ed interest at 4 1/2 per cent. But in appeal, the High Court enhanced the rate of interest pendente life from 4 1/2 per cent to 6 per cent. In the further appeal to this Court it was contended that the Interest Act 1839, was not applicable as no sum certain was payable and there was no demand for payment of interest. Dismissing the appeal, ^ HELD: 1. The claim was for a "sum certain" within the meaning of the Act. [9F] The claim was ascertainable on a calculation made in terms of the agreement and was therefore a sum certain within the meaning of the Act. It is "a sum of money which is now playable or will become payable in the future by reason of a present obligation" and in any case it was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate obligation. [9E F] 2. The respondent issued two notices. In the second notice a definite claim of interest had been made by them. The term "loss by way of interest" mentioned in the first notice suggested that what was being claimed was compensation for the damages suffered by them. The notice should not be construed literally or technically. The mention of loss was only explanatory. Without any manner of doubt the respondents were claiming interest as such. [9G 10D] 3. Nor again can it be said that there was no claim for future interest. A claim for past interest would necessarily imply a claim for future interest. [10E] 7 Kuppusami Pillai vs Madras Electric Tramway Co. Ltd., ILR ; Sita Ram & Ors. vs Mrs. section Sullivan, [1901] 2 Punjab Law Reporter 464; referred to. Mahabir Prashad Rungta vs Durga Datt, ; and Union of India vs A. L. Rallia Ram, ; ; distinguished. Having regard to the various continuous defaults committed by the appellant and its officers the High court was justified in enhancing the rate of interest to 6 per cent.
ivil Appeal No. 2231 of 1988. From the Judgment and Order dated 19.8.1987 of the Madras High Court in Appeal No. 86 of 1982. R. Venkataramani for the Appellants. section Balakrishnan and M.K.D. Namboodiri for the Respondents. The Judgment of the Court was delivered by SHARMA, J. This appeal by special leave is directed against the decree passed by the High Court in favour of the plaintiff respondents in a suit for partition. The property in suit belonged to Smt. Rathinammal, who after executing a registered will died in 1942. Accord ing to the terms of the will, her two sons Natesan. defend ant No. 1, and Subramanian. plaintiffs ' witness No. 2 (PW 2), were to remain in possession of the properties without any power of alienation and had to pay the taxes and conduct regularly certain religious festivals; and thereafter their sons were to manage the properties on similar terms. The will further provides that after their attaining majority the great grand sons, i.e., 510 the son 's sons ' sons of the testatrix will get the proper ties as absolute owners. Subramanian, the younger son of the testatrix, who has been in 'the present suit examined as the second witness on behalf of the plaintiffs, has one son Arunachalam, de fendant No. 15. The three plaintiffs, Ramesh, Ganesh and Sivalingam are the sons of the defendant No. 15. The defend ant No. 1 got four sons and ten sons ' sons. The main dispute in the suit is about the share which the plaintiffs are entitled to, under the terms of the will. They claim that they being the only grand sons of Subramanian have half share in the properties, the remaining half going to the grand sons of the defendant No. 1, namely, defendants No. 5 to 14. On behalf of the defendants it is pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares. The defendants also contended that the suit was fit to be dismissed as the defendant No. 1 and the defendant No. 15 had finally parti tioned the properties in 1975, and no question of a further partition arises. The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity. The trial court rejected the plea based on the rule against perpetuity. Having regard to the interest of the defendant No. 1, his brother Subramanian and Arunachalam, defendant No. 15, the court held that the alleged partition of 1975 was illegal and not binding on the plaintiffs. So far the shares of the plaintiffs and the defendants No. 5 to 14 are concerned, agreeing with the defence case, the court held that the parties would take the properties as per capita. However, the suit was dismissed on the ground that the plaintiffs were still minor. On appeal by the plaintiffs, the High Court confirmed the finding of the trial court that the 1975 partition was illegal. On the question of the shares of the parties, the High Court agreed with the plaintiffs and held that the division would take place as per stirpes. Taking into ac count the fact that during the pendency of the appeal two of the plaintiffs had attained majority, the High Court passed a decree in their favour for one sixth share each. So far the third plaintiff is concerned, the High Court declared his right without passing a decree for partition. The de fendants are challenging the decision of the High Court by the present civil appeal. The learned counsel for the appellants has contended that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and the conclusion of the 511 High Court on this aspect is illegal. The English version of the operative portion of the will has been quoted in para graph 7 of the judgment of the trial court and is not chal lenged by either party before us. After mentioning the rights and the duties of her sons the testatrix has stated the position of her grand sons and great grand sons thus: "They (that is, sons ' sons) have also to pay the taxes and out of their income conduct the aforesaid festivals regular ly. Then their male issues after attaining majority, have to take possession of the said properties in equal shares and enjoy them with all powers of alienation. " It has been stated by the learned counsel for the parties before us that the words "the said properties in equal shares" are the English version of the words SAMABHAGAMAGA ADAINTHU. The learned counsel for the appellants translated this portion of the will as stating that, "they (that is, the sons ' sons) shall pay the taxes due to the Government and will carry on the charitable/religious activities without fail and their male issues would on attaining majority get the properties in equal portion (SAMABHAGAMAGA ADAINTHU) and will possess, own and enjoy it absolutely. " The crucial expression is SAMABHAGAMAGA ADAINTHU which according to the learned counsel for the parties means in equal portions. The question is as to whether in view of this provision in the will, the entire properties left by the testatrix are to be divided equally amongst all her great grand sons; or, the three plaintiffs shall amongst themselves take half, the remaining half going to their cousins. The High Court has interpreted the crucial part of the will, mentioned in the preceding paragraph, as directing the plaintiffs on the one hand and the defendants 5 to 14 on the other respectively to "share equally out of each branch". It has been assumed that the properties finally descended on the two branches in equal shares, and conse quently parties belonging to the two branches inherited the properties as stirpes. The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venkatakrishna Rao & Ors. vs Shrimati Boddu Satyavathi & Ors., ; ; were more or less similar, which this Court construed in the manner as suggested by the plaintiffs in the case before us. We are not in agreement with the. approach of the High Court. 512 8. It is well settled that a court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the posi tion of the testator. his family relationship 'and the probability that he used the words in a particular sense also must be taken into account. They lend a valuable aid in arriving at the correct construction of the will. Since these considerations are changing from person to person. it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases, the disputed will approximates closely. Recourse to prece dents, therefore, should be confined for the purpose of general principle of construction only. which, by now, are well settled. There is still another reason as to why the construction put on certain expressions in a will should not be applied to a similar expression in the will under ques tion for, a will has to be considered and construed as a whole, and not piecemeal. It follows that a fair and reason able construction of the same expression may vary from will to will. For these reasons it has been again and again held that in the matter of construction of a will. authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur (see Ramachandra Shenoy and Another vs Mrs. Hilda Brite and Others, ; at p. 736. The risk in not appreciating this wholesome rule is demonstrated by the case before us. Assuming that the will in the case of Boddu Venka takrishna Rao & Ors. vs Shrimati Boddu Satyavathi & Ors., ; ; was somewhat similar to that in the present case. the High Court. following the construction given on the will in the reported case, has held in the judgment under appeal that the great grand sons of the testatrix shall be taking the properties as per stripes. While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case. There. the testatrix who was a childless widow. had bequeathed under the will life es tates to two children who were defendants 4 and 5 in the case and whom she had brought up from their infancy. and subject to the same, the property was to go to their chil dren after their death. The conclusion of the High Court on the construction of the will. with which this Court agreed. was expressed thus. "the bequest in favour of defendants 4 and 5 was that of a life estate with a vested remainder in favour of their children and that the children should take the vested re mainder per stripes and not per capita". 513 In the case before us no life estate was created in favour of anybody. otherwise there would not arise any question of the plaintiffs ' getting any share in the proper ty even on their attaining majority during the lifetime of their father and uncle. The High Court has also. under the impugned judgment, observed that a Hindu is not ordinarily expected to create a joint tenancy but, failed to appreciate that there is only presumption. to this effect, which can not override the provisions 'of the will, if the language is unambiguous and clear. In the present case there is no manner of doubt, and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate in the properties. It is the agreed case of the parties that as soon as plaintiffs and defendants No. 5 to 14 become major they are entitled to get the property abso lutely without waiting for the death of their respective fathers or grand fathers. We should, therefore. interpret the will without being influenced by the meaning given to the will in the reported case. The devolution of the property under the will takes place on the plaintiffs and defendants No. 5 to 14 for the first time "under equal shares". Since this is the first occasion for the shares in the property to be defined the expression "equal shares" must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix. In other words. they take the properties as per capita. Admittedly the third plaintiff has also attained majority during the pendency of the present appeal and has, therefore. become entitled to a share in the properties now. The suit. is accordingly decreed in favour of all the plain tiffs, their share being one thirteenth each. The plea that the disposition under the will was hit by the rule against perpetuity was rejected by the trial court in paragraph 7 of judgment on the ground that the sons of the testatrix, namely, the first defendant and the plain tiff 's witness No. 2 as also their respective sons the defendants No. 2 to 4 are alive. The point was not pressed in the High Court. The view of the trial court appears to be correct, and does. not require reconsideration at this stage. In the result, the appeal is allowed in part as indicated above. The suit is accordingly decreed in favour of all the three plaintiff. The share of the three plain tiffs and the ten defendants, that is, defendants No. 5 to 14, shall be onethirteenth each in the suit properties. There shall be no order as to costs. N.V.K. Appeal party allowed.	The property in the suit belonged to the great grand mother of the plaintiffs and defendant Nos. 5 to 14 who executed a registered will. According to the terms of the will, her two sons, defendant No. 1 and plaintiffs ' witness No. 2 were to remain in possession of the properties without any power of alienation, to pay the taxes and conduct regu larly certain religions festivals, and their male issues on attaining majority were to get the property in equal por tions and enjoy it absolutely. The main dispute in the suit was about the share which the plaintiffs are entitled to under the terms of the afore said will. The plaintiffs claimed that they being the only grand sons of the younger son of the testatrix were entitled to half share in the properties, the remaining half going to the grand sons of defendant No. 1 namely, defendant Nos. 5 to 14. The suit was contested on behalf of the defendants, who pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares, and that the suit was fit to be dismissed as defendant No. 1 defendent No. 15 had finally partitioned the properties in 1975, and no question of further partition arises. The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity. The trial Court rejected the plea based on the rule against perpetuity but having regard to the interest of defendant No. 1, his brother, and defendant No. 15, it held that the alleged partition of 1975 was illegal and not binding on the plaintiffs and that so far as the shares of the plaintiffs and defendant Nos. 5 to 14 are concerned held that the parties would take the properties as per capita. The suit was however dismissed on the ground that the plain tiffs were still minor. In the appeal to the High Court by the plaintiffs, the High Court confirmed the findings of the trial court that the 1975 partition was illegal, but held that the division would take place as per stirpes, and taking into account the fact that during the pendency of the appeal, two of the plaintiffs had attained majority, the High Court passed a decree in theft favour for one sixth share each. So far as the third plaintiff was concerned, it declared his right without passing a decree for partition. The appellants defendants challenged the decision of the High Court in 508 this Court by special leave, contending that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and that the conclusion of the High Court on this aspects was illegal, and that reliance by the High Court, on Boddu Venkatakrishna Rao & Ors. vs Shrimati Boddu Satyavathi & Ors., ; was inapplicable to the facts of this case. Allowing the appeal in part, and decreeing the suit in favour of all the plaintiffs, that the share of the three plaintiffs and defendant Nos. 5 to 14 shah be one thirteen each in the suit properties this Court, HELD: 1. A Court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances the position of the testator, his family relationship and the probability that he used the words in a particular sense also must be taken into account. They lend a valuable aid in arriving at the correct construction of the will. Since these considerations are changing from person to person it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases. the disputed will approx imates closely. Recourse to precedents, therefore, should be confined for the purpose of general principles of construc tion only. 2.There is still another reason as to why the construc tion put on certain expressions in a will should not be applied to a similar expression in the will under question for, a will has to be considered and construed as a whole, and not piecemeal. It follows that a fair and reasonable construction of the same expression may vary from will to will. Therefore, in the matter of construction of a will, authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. In the instant case, the High Court has interpreted the crucial part of the will containing the expression 'SAMABHA GAMAGA ADAINTHU ' as directing the plaintiffs on the one hand and the defendants5 to 14 on the other to "share equally out of each branch". The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venka takrishna Rao & Ors. vs Shrbnati Boddu Satvavathi & Ors., ; ; were more or less similar. It has also been assumed that the properties finally descended on the two branches in equal shares and consequently parties be longing to the two branches inherited the properties as per stripes. While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case. The conclusion of the High Court on the construction of the will was therefore not correct. In the instant case, there is no manner of doubt, and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate 509 in the properties. It is the agreed case of the parties that as soon as plaintiffs and defendants No. 5 to 14 become major they are entitled to get the property absolutely without waiting for the death of their respective fathers or grandfather. The will has therefore to be interpreted with out being influenced by the meaning given to the will in the reported case. The devolution of the property under the will takes place on the plaintiffs and defendants No. 5 to 14 for the first time 'under equal shares '. Since this is the first occasion for the shares in the property to be defined, the expression 'equal shares ' must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix. In other words they take the properties as per capita. The third plaintiff has also attained majority during the pendency of the present appeal and has therefore become entitled to a share in the properties. The suit is decreed in favour of all the plaintiffs their share being one thirteenth each. Ramachandra Shenoy and Another vs Mrs.Hilda brite and Others; , , relied on. Boddu Venkatakrishna Rao & Ors. vs Shrimati Boddu Sat vavathi & Ors. ; , , distinguished. The plea that disposition under the will was hit by the rule against perpetuity was rightly rejected by the trial court on the ground that the sons of the testatrix as also their respective sons were alive.
Heard the learned counsel for the petitioner. This petition is filed by the petitioner for transfer of Complaint No. 3105 of 2021 titled as “Vishal Mahajan vs. Dinesh Mahajan” filed under Sections 420 and 506 of the Indian Penal Code pending in the Court of Chief Judicial Magistrate, Jammu to Tis In Ground ‘D’ of the Transfer Petition, an apprehension of threat of life merely on receiving notice on the above-mentioned complaint, has been shown. No complaint has been lodged by the petitioner to the authorities concerned or before any Court. of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground. The learned counsel appearing on behalf of the petitioner prays for exemption from personal appearance by relying on a judgment titled “Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad” reported in 2020 12 SCC 695, inter-alia contending that exemption from personal appearance may be granted. Considering the facts of the said case (Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad supra), in which the exemption was refused by the Court and as prayed for by the petitioner, this Court while considering the facts and circumstances of the said case, granted exemption from personal appearance. The order passed by this Court in Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad (supra) does not apply in the instant transfer petition merely on the basis of apprehension. In view of the afore-said, this Court does not find any ground to transfer the Complaint No. 3105 of 2021 pending in the Court of Chief Judicial Magistrate, Jammu to Tis Hazari Courts, Delhi. The transfer petition is, accordingly, dismissed. Pending application(s), if any, stand disposed of.	The Supreme Court observed that mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground.In this case, the petition sought transfer of Complaint filed under Sections 420 and 506 of the Indian Penal Code pending in the Court of Chief Judicial Magistrate, Jammu to Tis Hazari Courts, Delhi.One of the... The Supreme Court observed that mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground. In this case, the petition sought transfer of Complaint filed under Sections 420 and 506 of the Indian Penal Code pending in the Court of Chief Judicial Magistrate, Jammu to Tis Hazari Courts, Delhi. One of the grounds raised in the petition was that there is an apprehension of threat of life. "No complaint has been lodged by the petitioner to the authorities concerned or before any Court. Mere apprehension of threat of life is not a sufficient ground to transfer a case, without lodging a complaint or substantiating the said ground. ", the court noted. The petitioner also relied on the decision in "Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad" 2020 12 SCC 695, to seek exemption from personal appearance. "Considering the facts of the said case (Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad supra), in which the exemption was refused by the Court and as prayed for by the petitioner, this Court while considering the facts and circumstances of the said case, granted exemption from personal appearance.
N: Criminal Appeal No. 108 of 1971. Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968. D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant. D. P. Unival and o. P. Rana for the Respondent. The Judgment of the Court was delivered by BEG, J. The four appellants Daryao Singh, aged 46 years. Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut. The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants. Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person. 589 The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged. As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas. Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) . It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him. Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence. It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute. Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment. They had been released on parole after five years ' imprisonment On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party. When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary. These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. give occupants of the buggi, and, after that, Smt. Jahani, who soon joined them, were injured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis. A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi. The following injuries are shown to have been sustained by the victims of the attack: 1. MUKHTARA: "1. Vertical abrasion, 1 1/2 in. x 1/2 in. On the head, 4 in. above the middle of the left eye brow 2. Transverse abrasion, 1 3/4 in.x3/4 in. On the head, 5 in. above the right eye brow. Round swelling" 2 in.x2 in. On the right side of the head, 1/2 in. above the ear, there was a depressed fracture 2 in.x2 in. underneath on the bone. Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in. behind the middle of the right car. Brain matter was coming out of the wound. 590 5. Transverse incised wound 1 1/4in.x 1/2 in. x bone deep on the A head 3 in. behind the upper part of the right car. The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute. Round blue mark 2 in.x2 in. On the right shoulder portion. There was swelling all over the head. There was no reference of injuries Nos. 1 and 6 in the inquest report . RAGHUBIRA 1. Transverse abrasion 1/4 in.x1/2. On the left ankle inner side. Vertical punctured wound in.x1/3 in.x1/4 in. On the back side, of the elbow, margins, clean cut. smooth and wall defined and angles were acute. Transverse lacerated wound on the head, 1 1/2 in. x 2 in. bone deep on the right side 3 in above the car. Round wound on the head 4 1/2 in. above the middle of the right eye brow with margins clean cut". ASA 1. Punctured wound 1/2 in.x1/4 in.x1/4 in. On the left side of the chest with abrasions on the margins, 64 in. below the axile. Abrasion 1/2 in.x1/4 in. On the left shoulder. Abrasion 1/2 in.x1/4 in. oblique, on the right side of the chest extending towards right shoulder from epigastrium. Abrasion 1/4 in.x1/8 in. On the inner side of the left hand I in. above the wrist. Abrasion 1/4in.x1/6 in. On the right arm back side 3 in. above the elbow. Contusion 3/4 in.x1/2 in. On the right side 3 in. below the edge of the iliac crest. Incised wound 1/2 in.x1/10 in. x skin deep 1/2 in. below the left eye. " 4. SMT. JAHANI: 1. Lacerated wound 1 1/3 in. x 1/2 in. bone deep from front to backward 3 1/2 in. above the left ear. Contusion 4 1/4 in.x1 in. On the left scapular region. 2 1/2 in. below the shoulder. Contusion 1 1/2 in.x1/4 in. parallel to the earth extending from the upper and inner end of injury No. 2. These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh). I had prepared the injury report exhibit Ka 16 at the time of examination. It bears my signature and is correct." 591 5. ASGHAR: 1. Contusion 2 in.x1/4 in.x1/4 in. going from front to back 31 in. above the nose. Punctured wound 1 in.x ' in.x 4 in. On the left hand, outer side 2 in. below the elbow. BIJAI SINGH: 1. Contused wound 1/2 in.x1/2 in. x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in. x1/2 in. in the inner part of the nail. Contusion 2 1/4 in.x3/4 in. extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in. x1/4 . On the palmer side. Abrasion 1/2 in.x1/4 in. On the back and anterior side of right hand, 3 1/2 in. above the wrist. " Injuries were found on the side of the accused on 3 appellants only. They were as follows: (1) OM PAL: 1. Lacerated wound 1/2 in.x4/10 in.x2/10 in. on the inner side of left forearm 3 1/2 in. above the left wrist. Lacerated wound 2/10 in.x2/10 in.x6/10 in. On the inner side of left forearm. Abrasion 3/10 in. X21 10 in. On the upper r side of left forearm, 3 1/2 in. above the left wrist. " 2. DARYAO: "1. Abrasion in.x3/10 in on the left shoulder in front side. Wound with scab 4/10 in.x2/10 in. On the left are outer side, 6 in. below left shoulder". BIRBAL: 1. Lacerated wound 2 in.x3/10 in. bone deep on the front , side of head. Abrased contusion 1 in.x2/10 in. On the left side of head, 3 in. above the left ear. Contusion 1/2 in.x4/10 in. On the right side of head, 2 in. above the right ear. Abrasion 1/4 in.x1/4 in. On the index finger of the right hand upper side on the middle phalux. Abrasion 1/4 in.x1/4 in. On the upper side at the root of the middle finger of right hand. Abrasion 1/2 in.x1/10 in. On the inner side of the lower portion of left fore arm, 3 in. above the wrist. Abrasion 3/10 in.x1/10 in. On the inner side of left wrist. 592 8. Lacerated wound 3/10 in.x1/10 in.x3/10 in. an the A right at a distance of 31 in. from side of thigh, anterior iliac spine". It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate 's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago. The defense case seemed quite absurd. It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution. Their defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence. The accused had even filed a First Information Report on these lines. They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason. The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence. If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there. The prosecution evidence suffered from some quite obvious infirmities. Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them. Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured. This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted. It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims. However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation. It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony. That may explain how each consistently stated that all the accused persons were attacking 593 his or her party although he or she could not specify which accused attacked which victim. From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected. Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons. It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked. It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number. Even if these five victims were sitting in the buggi they were not all empty handed. Some of them had lathis which they plied in self defence. The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi. Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six. Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six. It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis. these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five. The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives. Three of the accused persons as already indicated, had received injuries. On their own version, these injuries were sustained in the same occurrence. If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt? The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants. The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared. This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted. 594 It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually. guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings. If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to be total number of participants. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five. We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court. We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt. Justice has not only to be done, but, as have been often said, must manifestly appear to be done. Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre planning. Some Of the assailants had sharp edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable 595 doubt which makes such principle applicable. (See: Yehwant & Anr. vs State of Maharashtra;(1) and Sukh Ram vs State of U.P.)(2). The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case. We have to examine the elect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated. In Yeshwant 's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under. This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye witness." Distinguishing Krishna Govind Patil vs State of Maharashtra (3) this Court said in Yeshwant 's case (supra) (at p. 302): "We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal. Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & vs State of Punjab (4) Bharwad Mepa Dana & Anr. vs State of Bombay;(5) Kartar Singh vs State of Punjab;(6) Mohan Singh vs State of Punjab;(7) Ram Bilas Singh & Ors. vs State of Bihar(8) In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil 's case (supra) was also quoted. In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons. A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303. (2) [1974) 2 S.C.R. p. 518. (3) ; (4) ; (5) ; (6) ; (7) [1962] Suppl (3) S.C.R. 848. (8) 596 The identity of some of the participants. It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly. The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years. This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows: "29. Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing. (2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school. " This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry. Such action, if considered expedient, could only be to send the appellant to an approved school. We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses. He was bound, with the background of hostility between two sides and 597 the events mentioned above, to have been misled by the bad example of his elders. No previous participation in such a case and no previous conviction was shewn against him. We, therefore, think that appropriate action under Section 29 of the Children 's Act could have been taken in his case if the question had been raised in time. We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly. All that we can do now, in the circumstances of Om Pal 's case, is to recommend the remission of the remaining period of om Pal 's sentence to the authorities concerned. Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal.	The 4 appellants were tried along with 14 others for the offence of rioting in the course of which 2 murders were committed at 6 30 a.m on 7 1967. The prosecution revealed a long standing enmity between the tyo groups; one to which the appellants belonged and the other to which the deceased belonged. The defence case was that people belonging to the group of the deceased killed the deceased and that thereafter they attacked the 3 injured appellants. At the trial however, the defence witnesses stated that the 3 witnesses who were injured(l a(tempted to save the deceased and were therefore injured. The prosecution evidence suffered from some quite obvious infirmitied. Each of the 4 injured eye witnesses while naming each of the IX accused persons as participants in the occurrence and specifying their weapons without any contradiction had failed to assign any particular part of any of them. Each injured eye witness said that all 18 accused persons were assaulting the injured. I his was hardly consistent with the medical evidence. The Trial Court acquitted 11 accused giving them the benefit of doubt and convicted 7 including the 4 appellants under section 302 read with section 149. The High Court gave the benefit of doubt to all the accused except the 4 appellants. The High Court came to the conclusion that the 4 appellants had taken part in The attack in view of the admission of the 4 accused about their participating in the occurrence corroborated by the injuries on the bodies of 3 of them. On appeal by Special leave it was contended by the appellants that since 14 out of 18 accused persons were actually acquitted the Court must presume that total number of assailants was less than 5 and that they. therefore cannot be convicted under section t 49 ^ HELD: 1. It is true that the acquittal of an accused person does raise in the eye of law, a presumption that he is innocent even if he was actually guilty. but it is only the acquitted accused person and not the convicted accused person who can as a rule get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings 1 only five known persons are alleged to have participated in an attack; and the counts find that 2 of them were falsely implicated it would be quite natural and logical to infer or presume that the participants were less than 5 in number. On the other. hand if the court holds that the assailant were actually 5 in number but there could be a doubt as to the identity of 2 of the alleged assailants and therefore acquits 2 of them the others will not get the benefit of douht. so long as there is a firm finding based on good evidence and sound reasoning that the participants were 5 or more in number. Such a ease is one of doubt only as to identity of some participants and not as to total number of participants. [594A C] 2. It is true that there are some unfirmities in the prosecution evidence However the impression of rustic witnesses sought to he conveyed through their statements cannot be interpreted as though they were made in carefully drawn up documents calling for a literal interpretation. [592 H] 588 3. The number and location of injuries on both sides also indicate an attack by a group of persons which must have surrounded the party of the deceased persons travelling in the Buggi. Even is 2 persons are engaged in stopping the Buggi and there are 2 on each side of the Buggi then the number would be 6. Again, even if one person Is assumed to be the assailant of each of the victims in a simultaneous attack upon them the number of such assailants alone would come to at least 6. The deceased had injuries with sharp edged weapons and lathis. It is therefore clear that each one was attacked by more than one person. These facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than 5. [593 C E] 4. Even if the number of assailants could have been less than 5 (which can the facts stated was really not possible) we think that the fact that the attacking party was clearly shown to have waited for the Buggi to reach near the field of Daryao in the early hours shows pre planning. Some of the assailants had sharp edged weapons. They were obviously lying in wait for the Buggi to arrive. A more convincing evidence of a pre concert was not necessary. Therefor if necessary. we would not have hesitated to apply section 31 of I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict the required number of persons but it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable. [594 F H 595 A] Yeshwant & Anr. vs State of Maharashtra [1973] 1 S.C.R. 291 It 302 303 at and Sukh Ram vs State of U.P. ; distinguished. 5.The age of appellant Om Pal at the time of trial was IS years. Section 29 of the U.P. Children Act 1951 was applicable to the case. This question was not raised either before the Trial Court or before the High Court. Although Om Pal accused was said to be armed with a lathi no specific part was assigned to him by the prosecution witnesses He must have been misled by the bad example of his elders. No previous participation in such a case and no previous conviction was shown against him. The appropriate ac(ion under section 29 of the Children Act could have been taken in his case is the question had been raised in time. The Court recommended the remission of the remaining period of Om Pal to the authorities concerned. [548D H. 599A C]
1. The petitioner is before this Court seeking for the i) Issue a writ, order or direction in the nature of certiorari in quashing the impugned order passed by the City Civil Judge, Bengaluru dated 08.08.2018 on I.A.No.7 in O.S. No.4739/2014 vide Annexure-A. ii) Grant such other relief/s as this Hon'ble Court deems fit under the circumstances of the case, in the interest of justice and equity. 2. The suit in O.S.No.4739/2014 has been filed by the petitioner herein seeking for partition of the various joint family properties described in the schedule thereto claiming that as a female member of the joint family, she had an interest in the said properties by virtue of the amendment to Section 6 of the Hindu Succession 3. While the suit was pending, I.A.No.7 had been filed by the 4th defendant the brother of the plaintiff before the trial Court seeking for addition of two properties in the schedule of the plaint as item Nos.9 and 10. Assertion of the 4th defendant in the application was that 3.1. Item No.9 property measuring 1 acre situate in Sy. No.17/2 of Pallerayanahalli Village, Amruthur Hobli, Kunigal Taluk, Tumkur District had been given as dowry at the time of marriage of the 1st plaintiff - petitioner. Defendant No.1 had, at the time of marriage of the 1st plaintiff, executed nominal sale deed in favour of Channaiah - the father-in-law of the 1st plaintiff and as such, the said property was also amenable for partition since the said item has been given as dowry at the time of the marriage of the 1st plaintiff - petitioner. 3.2. Item No.10, had been purchased by defendant No.1 out of his own funds. He had executed a power of attorney in favour of 1st plaintiff and her husband at the time of her marriage and later on, a sale deed came to be executed by the 1st defendant in favour of the 1st plaintiff and her husband on 15.05.2006. On these grounds, it was contended that this is also a family property and would be amenable for partition. 4. The said application came to be objected to by the Plaintiffs contending that the property had been purchased by the father-in-law of the 1st plaintiff - Chennaiah out of his own funds from third parties much before the marriage of the 1st plaintiff and that the same is not a joint family property. If at all the 1st defendant had any right in the property, the 1st defendant ought to have filed a declaratory suit to establish ownership. In respect of item No.10 property, it was contended that this property had also been purchased from the 3rd party at the market value and therefore, could not be amenable for partition. 5. The Trial Court, after hearing the arguments of the counsels, allowed the application though by way of cryptic order. 6. Sri.A.Nagarajappa, learned counsel for the petitioner would submit that there are no reasons which had been given by the Trial Court for allowing the application for amendment and therefore, such order is required to be set-aside. He reiterates the submissions made in the objection to the application for amendment and again, submits that item No.9 has been purchased by the 1st plaintiff's father-in-law and item No.10 has been purchased by the husband of the 1st plaintiff out of their own funds and therefore, they are not amenable for partition. 7. Sri.Prithvi Raj B.N., learned counsel for respondent No.4, who was defendant No.4 in the Trial Court, reiterates that the properties covered item Nos.9 and 10, which was sought to be introduced by way of amendment, were given as dowry and therefore, in a suit for partition, the said properties would also be amenable for partition. He supports the order of the learned Trial Court and states that the said order need not be interfered with. 8. Sri.K.Venkateshaiah, learned counsel for respondent No.5, who was plaintiff No.2 in the Trial Court, adopts the arguments of Sri.A.Nagarajappa, learned counsel for the petitioner. 9. None appears for respondent Nos.1 to 3. 10. Heard Sri.A.Nagarajappa, learned counsel for the petitioner and Sri.Prithvi Raj B.N, learned counsel for respondent No.4 and Sri.K.Venkateshaiah, learned counsel for respondent No.5. 11. The above petition gives rise to certain interesting questions, which read as under; 11.1. Whether in a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, who is claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would be included in a suit for 11.2. Whether the impugned order suffers from any legal infirmity requiring this Court to 12. Answer to Point No.1: Whether in a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, who is claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would be included in a suit for partition? 13. The contention of defendant No.4 - applicant before the Trial Court is that item Nos.9 and 10 properties, which were sought to be added to the plaint by way of an amendment were given as dowry to the family of the 1st plaintiff during the time of her marriage. At the request of in-laws of the 1st plaintiff, a nominal sale deed was executed in favour of the father-in-law of the 1st plaintiff. As regards item Nos.10 a nominal sale deed was executed in favour of the husband of the 1st plaintiff. 14. The suit, admittedly, has been filed for partition claiming a right in the joint family properties by virtue of the amendment to Section 6 of the Hindu Succession Act. The said amendment being a salutary one having been brought in to provide equal rights to a woman in the joint family properties. 15. In the present case, interestingly the claim of the 4th defendant is that certain joint family properties had been given to the 1st plaintiff and her family members as dowry during her marriage. That is to say that a portion of the joint family property was made available for plaintiff No.1 as either dowry/gift or share in the property at the time of marriage. This court at present is not concerned with the offences of Dowry if any, there being no complaint in regard thereto. 16. Such being the case, I am of the considered opinion that a beneficiary of Section 6 of the Hindu Succession Act cannot claim a benefit by way of partition as regard to joint family properties without reference to the properties already received by her at the time of marriage as dowry/gift or otherwise. The said properties at an undisputed point of time forming part of the joint family property and the plaintiff having received it, the same would also have to be made part of the partition suit in order for the partition to be equitable hence, those properties would also be amenable to partition. Hence, the contention of Sri.A.Nagarajappa, learned counsel for the petitioner that these properties were independently purchased (Item no. 9 from Defendant no. 9 and Item No. 10 from third parties) and would not be amenable for partition is an issue that would have to be decided after trial and cannot be adjudicated upon at this stage. The assertions clearly and categorically made is that the 1st defendant had executed nominal sale deeds in respect of item Nos.9 and 10 properties. 17. It is for the parties to establish during the course of trial as to whether the properties belonged to the joint family or not. If the properties belong to the joint family, then the same would be amenable for partition. If the plaintiffs were able to establish that the properties had been independently purchased out of their own funds and the said properties are not joint family properties, then the same would not be amenable for partition. 18. This aspect would have to be ascertained by the Trial Court only after trial. Hence, I answer Point No.1 by holding that in a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would have to be included in a suit for partition. 19. Answer to Point No.2: Whether the impugned order suffers from any legal infirmity requiring this Court to interfere with the said order? 20. As observed above the order of the Trial Court could have been better worded and could have provided better reasoning, however in view of the discussion above the ultimate order which is passed by the trial court is proper and correct requiring no interference at the hands of this Court. 21. In view of the above, this writ petition stands dismissed. 22. In view of dismissal of the writ petition, all pending interlocutory applications stand dismissed and interim orders stand discharged.	The Karnataka High Court has held that the properties which had been given as dowry or otherwise at the time of marriage of the daughter, would be amenable for partition and the same will have to be included in a suit for partition, instituted by the daughter. A single judge bench of Justice Suraj Govindaraj said,"In a suit for partition, the properties which had been given as dowry... The Karnataka High Court has held that the properties which had been given as dowry or otherwise at the time of marriage of the daughter, would be amenable for partition and the same will have to be included in a suit for partition, instituted by the daughter. A single judge bench of Justice Suraj Govindaraj said, "In a suit for partition, the properties which had been given as dowry or otherwise at the time of marriage of the daughter plaintiff, claiming a right of partition under Section 6 of the Hindu Succession Act, would be amenable for partition and the same would have to be included in a suit for partition." Petitioner Hemalatha had approached the court challenging and order dated August 8, 2018, passed by the City Civil Judge Bengaluru, allowing the application filed by the brother of the petitioner seeking to include two properties in the partition suit filed by the petitioner, claiming that they were given in dowry at the time of her marriage. Advocate A. Nagarajappa, for the petitioner submitted that there are no reasons which had been given by the Trial Court for allowing the application for amendment and therefore, such order is required to be set-aside. Further, it was said that the item No.9 property was purchased by the petitioner's father-in-law and item No.10 was purchased by her husband out of their own funds and therefore, they are not amenable for Partition. On the contrary, Advocate Prithvi Raj B.N appearing for the respondent brother contended that the properties covered item Nos.9 and 10, which were sought to be introduced by way of amendment, were given as dowry and therefore, in a suit for partition, the said properties would also be amenable for partition. Court findings: The court on going through the record was of the opinion that a beneficiary under Section 6 of the Hindu Succession Act cannot claim a benefit by way of partition as regard to joint family properties without reference to the properties already received by her at the time of marriage as dowry/gift or otherwise. It observed, "The said properties at an undisputed point of time forming part of the joint family property and the plaintiff having received it, the same would also have to be made part of the partition suit in order for the partition to be equitable hence, those properties would also be amenable to partition." The court also observed that whether the properties in question were independently purchased and would not be amenable for partition is an issue that would have to be decided by the trial court and it cannot adjudicate on it. The bench observed, "It is for the parties to establish during the course of trial as to whether the properties belonged to the joint family or not. If the properties belong to the joint family, then the same would be amenable for partition. If the plaintiffs were able to establish that the properties had been independently purchased out of their own funds and the said properties are not joint family properties, then the same would not be amenable for partition. This aspect would have to be ascertained by the Trial Court only after trial." Case Title: Hemalatha v. Venkatesh Case No: Writ Petition No.39982 Of 2018 Date Of Order: 16th Day Of February, 2022 Appearance: Advocate A. Nagarajappa For Petitioner; Advocate Manjula P.V For R.1 To R.3; Advocate Prithvi Raj B.N, For R.4; Advocate K.Venkateshaiah, For R.5
Appeal No. 462 of 1957. Appeal by special leave from the judgment and decree dated April 18,1952, of the former Nagpur High Court in First Appeal No. 88 of 1942. C.B. Agarwala and K. P. Gupta, for the appellant No. 1. Har Dayal Hardy and N. N. Keswani, for respondent No. 1. 1961. March 16. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment and decree of the High of Judicature at Nagpur confirming the judgment of the 2nd Additional District Judge, Jabalpur in Civil Suit No. 9 A of 1942, filed by respondents 2 to 7 herein claiming to be the reversioners of the estate of one Raja Ajitsingh. Ajit Singh was the Raja of Saliya Estate consisting of 73 villages and other property situate in Jabalpur and Saugor Districts. Ajit Singh died on January 2, 1910, leaving behind him two widows named Rani Khuman Kuar and Rani Anant Kuar and an illegitimate son named Ramraghuraj Singh. Rani Anant Kuar died in or about 1914 and Rani Khuman Kuar passed away on February 1, 1922. After the death of Raja Ajit Singh, the Estate was taken over by the Court of Wards on behalf of the widows in the year 1913 and remained in its possession till March 27, 1923. After the death of Rani Khuman Kuar, the local Government issued a notification recognizing Ramraghuraj Singh as the successor to the Estate; but, for one reason or other, the 349 Court of Wards continued to manage the Estate on his behalf from September 23, 1923. Ramraghuraj Singh died on April 23, 1932, and on his death the, first respondent, the son of Ramraghuraj Singh, was, declared as the ward of the Court of Wards which continued to manage the Estate on his behalf Respondents 2 to 6, claiming to be the reversioners to the Estate of Raja Ajit Singh, filed a suit on June 15, 1935, for recovery of possession of the Estate. Appellants 1 and 2 are alleged to be the assignees pendente lite of the interest of the alleged reversioners. The plaintiffs averred that RamraLhurai Singh was the son of one Jhutti by her husband one Sukhai and that as Raja Ajit Singh had no issue, he and the Ranies treated the boy as their son, that the Lodhi community to which Raja Ajit Singh belonged was not a sudra caste and that, therefore, even if Ramraghuraj Singh was the illegitimate son of Raja Ajit Singh, he was not entitled to a share, and that in any view half of the share of the widows in the Estate would devolve, on their death, on the reversioners to the exclusion of the illegitimate son. They further pleaded that the possession of the Court of Wards of the entire Estate from January 2, 1910 to February 1, 1922, was adverse to the illegitimate son and, therefore, he lost his title, if any, to the said Estate. The case of the first respondent was that Raja Ajit Singh belonged to the sudra caste, that Ramraghuraj Singh was the son of the said Raja by a continuously and exclusively kept concubine named Raj Dulari, that the widows never questioned the right of Ramraghuraj Singh to a share in the property of Raja Ajit Singh, that therefore there was no scope for the plea of adverse possession, and that, after the death of the widows, the succession to the Estate of Raja Ajit Singh in respect of one half share opened out and the illegitimate son, he being the nearest heir, succeeded to that share also. The trial court as well as the High Court concurrently gave the following findings: (1) Raja Ajit Singh belonged to the sudra caste; (2) Raja Raghuraj Singh was the son of Raja Ajit Singh by a continuously and 350 exclusively kept concubine by name Raj Dulari, who had passed into the coneubinage of Raja Ajit Singh after the death of her husband; (3) as the illegitimate son of Raja Ajit Singh, Ramraghuraj Singh succeeded to a moiety of the Estate of his putative father and the two widows of Raja Ajit Singh succeeded to the other moiety of his Estate; (4) as there was no daughter or daughter 's son, after the death of the widows, Ramraghuraj Singh, being the sole surviving heir of his putative father, inherited a moiety of the Estate which was held by the widows during their lifetime; (5) Ramraghuraj Singh was all along in joint possession of the Estate with the widows, and, although the Court of Wards had assumed superintendence on behalf of the Ranies, he was not out of possession during their lifetime and as such his title could not be extinguished by adverse possession; (6) the plaintiffs ' suit was barred under section 26 of the Central Provinces Court of Wards Act; and (7) the plaintiffs ' claim was barred by limitation. While the trial court held that it had not been established that the plaintiffs were the reversioners of Raja Ajit Singh, the High Court held that it had been proved. In the result the trial court dismissed the suit and, on appeal, the High Court confirmed it. The 2nd appellant died and his legal representatives were not brought on record and the appeal so far as the 2nd appellant is concerned has abated. The 1st appellant alone proceeded with the appeal. It is the usual practice of this Court to accept the concurrent findings of the courts below. There are no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice. We, therefore, accept the concurrent findings, namely, that Raja Ajit Singh was a member of the sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a continuously and exclusively kept concubine named Raj Dulari, who passed into his concubinage after the death of her husband. The main question that arises in this appeal is whether an illegitimate son of a sudra vis a vis his selfacquired property, after having succeeded to a half 351 share of his putative father 's estate, will be entitled to succeed to the other half share got by the widow, after the succession opened out to his putative father on the death of the said widow. The answer to the question depends upon the content of the right of an illegitimate son to succeed to the self acquired property of his putative father. The source of his right is found in the relevant Hindu Law texts. Mitakshara in explanation of the texts of Manu and Yajnavalkya says in Chapter 1, section 12, in the following three verses thus: "1. The author next delivers a special rule concerning the partition of a Sudra 's goods. 'Even a son begotten by a Sudra on a female slave may take a share by the father 's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share: and one, who has no brothers, may inherit the whole property, in default of daughter 's sons '. 2.The son, begotten by a Sudra on a female slave, obtains a share by the father 's choice, or at his pleasure. But, after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share: that is, let them give him half as much as is the amount of one brother 's allotment. However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. But, if there be such the son of the female slave participates for half a share only. 3.From the mention of a Sudra in this place it follows that the son begotten by a man of a regenerate tribe on a female slave, does not obtain a share even by the father 's choice, nor the whole estate after his demise. But, if he be docile, he receives a simple maintenance. " No mention of a widow is found in the above verses, but in Dattaka Chandrika, the author says in V. 30,31 thus: "If any, even in the series of heirs down to the 352 daughter 's son, exist, the son by a female slave does not take the whole estate, but on the contrary shares equally with such heir." The leading decision on the rights of an illegitimate son is that of the Judicial Committee in Raja Jogendra Bhupati Hurri Chundun Mahapatra vs Nityanund Mansingh (1). There, one Raja died leaving behind him a legitimate son and an illegitimate son. On the death of the legitimate son, who had succeeded to the Raja, it was held that the illegitimate son succeeded to him by survivorship. Sir Richard Couch cited two verses from Mitakshara Chapter 1, section 12. We have already extracted the said verses. Commenting upon these verses, the learned Judge observed at P. 132 thus: "Now it is observable that the first verse shews that during the lifetime of the father the law leaves the son to take a share by his father 's choice, and it cannot be said that at his birth he acquires any right to share in the estate in the same way as a legitimate son would do. But the language there is very distinct, that "if the father be dead the bre thren should make him partaker of the moiety of a share". So in the second verse the words are that the brothers are to allow him to participate for half a share, and later on there is the same expression: "The son of the female slave participates for half a share only". " On that interpretation, he accepted the view of the Bombay High Court and held that an illegitimate son and a legitimate son, being members of an undivided Hindu family governed by Mitakshara, the illegitimate son becomes entitled to the whole of the immoveable property of the family if the legitimate son dies without any male issue. The Judicial Committee again considered the right of an illegitimate son in Kamulammal vs Visvanathaswami Naicker (2). There it was held that in a competition between a widow and an illegitimate son to the property of his putative father, the illegitimate son takes half of the (1) (1890) L.R. 17 I.A. 128. (2) (1922) L.R. 50 I.A. 32. 353 property and the widow the other half. Sir Lawrence Jenkins observed at p. 37 thus: "Here the contest is between the illegitimate son and the widow, and though the widow is not named in the text it is well settled that as a preferential heir to the daughter 's son she is included among those who share with the illegitimate son, and it would serve no useful purpose to speculate why she was not mentioned in the text. " The status of the illegitimate son was subject of further scrutiny by the Privy Council in Vellaiyappa Chetty vs Natarajan (1). There the question arose in the context of an illegitimate son 's right to maintenance from a joint family property after the death of his father who left no separate property. The Judicial Committee held that he was entitled as a member of the family to maintenance out of the joint family property in the hands of the collaterals with whom the father was joint. In dealing with the question of status of an illegitimate son, Sir Dinshah Mulla, speaking for the Court, after considering the relevant Hindu Law texts and decisions, arrived at the following conclusion at p. 15: "On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son;. . . It is not necessary to multiply decisions. The law pertaining to the right of inheritance of an illegitimate son to his putative father 's; self acquired property may be stated, thus: An illegitimate son has the status of a son under the Hindu Law and he is a member of the family. But his rights are limited compared to those of a son born in wedlock. He has no right by birth and, therefore, he cannot demand partition during his father 's lifetime. During the lifetime of his father, the law allows the illegitimate son to take (1) Mad. 1. 45 354 only such share as his father may give him. But on his father 's death, he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. Even if there is no legitimate son, the illegitimate son would be entitled to a moiety only of his father 's estate when there is a widow, daughter or daughter 's son of the last male holder. In the absence of any one of the three heirs, he succeeds to the entire estate of his father. From the premises it follows that an illegitimate son, except to the extent circumscribed by the. Hindu Law texts, has the status of a son and is heir to the self acquired property of his putative father. If that be his undoubted right under the Hindu Law, on what principle can he be deprived of his right of succession to the other moiety of his father 's property after the death of the widow? Under the Hindu Law, the death of the widow opens inheritance to the reversioners and the nearest heir at the time to the last full owner becomes entitled to possession. When the succession opens, in a competition between an illegitimate son and other reversioners, the illegitimate son is certainly a nearer heir to the last male holder than the other reversioners. If he was the nearest heir only yielding half a share to the widow at the time of the death of his putative father, how does he cease to be one by the intervention of the widow 's estate? As on the death of the widow the estate reverts back to the last male holder, the succession shall be traced to him, and, if so traced, the illegitimate son has a preferential claim over all other reversioners. In Mayne 's Hindu Law, 11th edn., this position has been controverted in the following manner at p. 637: "The illegitimate Bon, though he inherits on the death of his putative father, along with or in default of male issue, widow or daughter, cannot come in as a reversionary heir on the death of the widow or daughter, as he is undoubtedly neither a sagotra nor a bhinnagotra sapinda of the last, male holder within the text of Manu. " We regret our inability to accept this proposition. 355 for, if accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father 's entire self acquired property in the absence of a son, widow, daughter or daughter 's son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow 's death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent. The opinion expressed in Mayne 's Hindu Law is sought to be supported by the author by reference to a decision of the Madras High Court in Karuppayee Ammal vs Ramaswami (1). But a reference to that judgment shows that no such proposition has been laid down therein. There the facts were that on the death of a sudra, the last male owner of an estate, his widow succeeded to a moiety thereof and his illegitimate son to the other moiety; the widow then died leaving behind her a son of the daughter of the last male owner and the illegi timate son above mentioned. The Madras High Court held that the daughter 's son was entitled to the moiety that had vested in the widow and the illegitimate son was not entitled to any portion thereof. The reason for that conclusion is found at p. 868 and it is: "The principle underlying the doctrine of reverter referred to is that the last male holder 's estate is inherited by females who have no free right of alienation and who hold a peculiar kind of estate called "woman 's estate" and on whose death the then heir of the last male holder succeeds to the last male holder 's estate. From its very nature, the doctrine could not apply legitimately to a case where the last male holder 's estate vested on his death not in a female heir but in a male heir also. In such a case, the doctrine as such would not strictly apply, nor has it been, so far as we are aware, applied to such a case." (1) Mad. 356 The reason of the decision is therefore clear and that is when a daughter 's son succeeds to an estate, there is no further scope for the application of the doctrine of reverter. The learned Judges expressly left open the present question when they said, "We are not now concerned with the question as to what would become of the property if the last of the daughters died without leaving a daughter son, in such circumstances". This decision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applies the illegitimate son is excluded from succession. On the other hand, the Nagpur High Court in Bhagwantrao vs Punjaram (1) rightly came to the conclusion that where on a partition between a legitimate and an illegitimate son, the widow was allotted a share, on her death the illegitimate son was entitled to a share in the property. We, therefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein, succeeded to the other half share of the estate of his putative father Raja Ajit Singh. It is. next contended that the widows acquired an absolute interest in the estate of Raja. Ajit Singh by adverse possession and, therefore, the property would devolve; not on Raja Ajit Singh 's heirs but on the heirs of the widows. On the question of adverse possession also, both the courts below have held against the appellant. But learned counsel argued that in the circumstances of this case the said find ing was a mixed question of fact and law. It was said that the courts below missed the point that the Court of Wards, representing the widows, held the Estate adversely to Ramraghuraj Singh in respect of his half share and, therefore, the fact that during its management the widows did not deny the title of Ramraghuraj Singh or the fact that they admitted his title could not affect the question of adverse possession. Assuming that learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the (1) I.L.R. 357 widows ' limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to hereversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate i.e., in regard to their half share they held it as widow 's estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention. In the result, the appeal fails and is dismissed. The respondent will not get any costs as the Advocate for the respondent is absent in 'the Court when the judgment is being delivered. Appeal dismissed.	A Sudra Hindu died leaving two widows and an illegitimate son by a continuously and exclusively kept concubine. The son succeeded to a moiety of the estate and the widows succeeded to the other moiety. The widows died without leaving any daughter or daughter 's son. The reversioners filed a suit for recovery of possession of the estate. The illegitimate son contended that on the death of his father he was entitled to succeed to half the estate the other going to the widows and that on the death of the widows he was entitled to the half share held by them. Held, that the illegitimate son succeeded to half the estate upon the death of the father and succeeded to the other half on the death of the widows. An illegitimate son has the status of a son under the Hindu Law; but he has no rights by birth and cannot claim partition during his father 's lifetime. On the father 's death he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. If there is no legitimate son, he would be entitled only to a half share when there is a widow, daughter ox daughter 's son of the last male holder. In the absence of any one of these three heirs, he succeeds to the entire state. If the widow succeeds to half the estate, upon her death succession again opens to half the estate of the last male 348 holder held by her and the illegitimate son, who has the status of a son, has a preferential claim over all other reversioners. Raja jogendra Bhupati Hurri Chundun Mahapatra vs Nityarnund Mansingh, (1890) L.R. 17 I.A. 128, Kamulammal vs Visvanathaswami Naicker, (1922) L.R. 50 I.A. 32 and Vallaiyappa Chetty vs Natarajan, Mad. 1, referred to. Karuppayee Ammal vs Ramaswami, Mad. 856, distinguished. Bhagwantrao vs Punjaram, I.L.R. , approved.
No. 46 of 1972. S, K. Bagga, for the, petitioner. Prodyot Kumar Chakravarty and G. section Chatterjee, for the respondent. The Judgment of the Court was delivered by Khanna, J. This is a petition through jail under article 32 of the Constitution for issuing a writ of habeas cot pus by Kanu Biswas, who has been ordered by the District Magistrate 24Parganas to be detained under section 3 of the (Act 26 of 1971) "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. " The order of detention was made by the District Magistrate on November 13, 1971. The petitioner was arrested in pursuance of the detention order on November 14, 1971 and was served the same day with the order as well as the grounds of detention together with vernacular translation thereof. On November 18,1971 the District Magistrate sent report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars. The State Government considered the matter and approved the detention order on November 24, 1971. Necessary report was also sent on that day by the State Government to the Central Government. On December 13, 1971 the State Government placed the case of the petitioner before the Advisory Board. In the meanwhile, on December 12, 1971 the State Government received a representation of the petitioner. The representation was considered by the State Government and was rejected on January 11, 1972. The representation was thereafter forwarded to the Advisory Board. The Board, after considering the, material placed before it, including the petitioner 's representation, and after hearing the petitioner in person, sent its report to the State Government on January 14, 1972. Opinion was expressed, by the Board that there was sufficient cause for the detention of the petitioner. On February 2, 1972 the State Government confirmed the order for the detention of the petitioner. Communication about the confirmation of the order was thereafter sent to the petitioner. Affidavit of Shri B. Mukhopadhya, District Magistrate of 24 Parganas, who passed the impugned order, has been filed in opposition to the Petition. Mr. Bagga has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Chakravarti. 548 It has been argued on behalf of the petitioner that the particular acts on account of which the order for the detention of the petitioner has been made were not germane to the maintenance of public order and, as such, the order for his detention could not be validly made for preventing him from acting in a manner prejudicial to the maintenance of public order. In this respect we find that according to the grounds of detention, the order for the petitioner s detention was made on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below; taken separately or collectively "That on 26 9 71 at about 18.30 hours while Baidyanath Bandopadhya of Champapukur, P.S. Basirhat, District 24 Parganas along with his wife were travelling ill a 3rd class compartment of Up Basirhat local train from Barasat, You along with your associates attacked him and his wife with open knives between Champapukur R/s and Basirhat R/S and robbed them of Wrist Watch, Gold Ornaments, Cash valued at Rs. 725// by putting them in fear of death. By your such activities you created terror and panic among the travelling passengers and public order was disturbed thereby. On 4 11 71. at about 21.40 hours, you and your associates armed with bombs, daggers, knives and iron rods etc. attacked police on the platform at Beliagliata railway station with a view to take their lives and to intimidate the public you charged two bombs which exploded with terrible sound endangering the on duty police. Your such action was so violent that it created panic and confusion among the passengers there then. YOU have thus action in a manner prejudicial to the maintenance of public order. " It would appear from the above that the petitioner and his associates attacked a husband and wife with open knives in the, third class compartment of a running train and robbed them of valuable property, including wrist watch, gold ornaments and cash by putting them in fear of death. The grounds of detention further show that the above act of the petitioner and his associates created terror and panic among the travelling passengers and thereby disturbed public order. The second incident which took place at 9.40 p.m. on November 4, 1971 related to the attack by the petitioner and his associates on a police party on the platform of Belighata railway station with a view to kill them. The petitioner and his associates are stated to have been then armed with bombs. daggers, knives and iron rods and they exploded two bombs 549 with terrible sound. It is further stated that the above act of the petitioner and his associates created panic and confusion among the passengers and thus disturbed public order. Each one of the above two incidents of September 26, 1971 and November 4, 1971, in our opinion, affected public order and not merely law and order. The distinction between the concept of public order and that of law and order has been adverted to by this Court in a number of cases. In the case of Dr. Ram Manohar Lohia vs State of Bihar(1), Hidayatullah J. (as he then was) said that any contravention of law always affected order, but before it could be said to affect public order, it must affect the community at large. He considered three concepts, law and order, public order and the security of the State, and observed that to appreciate the scope and extent of each one of them, one should imagine the concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security order, just asan act might affect public order but not the security of the State. In the subsequent case of Arun Ghosh vs State of West Bengal 2 the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance, of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether thedisturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of ' the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An Act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its poten tiality it may be very different." (1)[1966] 1 S.C.R. 709. (2) 550 The question where a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance ,of the public order, according to the dictum laid down in the above case is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above ,,case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order ,or does it affect merely an individual leaving the tranquility of the society undisturbed ? The principle enunciated above has been followed by this Court in the case of Nagendra Nath Mondal V. State of West Bengal(1) and Nandlal Roy Ca, Nonda Dulal Roy @ Pagla vs State of West Bengal (WP No. 15 of 1972, decided on March II, 1972.) In the light of what has been observed above, we have no doubt that each one of the incidents of September 26, 1971 and November 4, 1971 was prejudicial to the maintenance of public order. When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train, the act of the miscreants affects not only the passengers who are deprived ,of their valuables but also the other passengers who watch tile whole thing in fear as helpless spectators. There is bound to be consequent terror and panic amongst the travelling public. Like wise, attack directed against a police party on the platform of railway station by exploring bombs is bound to create panic an. confusion among the passengers at the railway station. The act ' in question in the very nature of things would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquility. Reference has been made on behalf of the petitioner to the ,case of Sudhir Kumar Saha vs Commissioner of Police, Calcutta & A nr. The petitioner in that case along with others committed various acts on three occasions. On the first occasion lie attached the people of a locality with a knife and by hurling bottles at them. ' On the other two.occasions he attacked the people of another locality by hurling bombs at them. It was held that the incidents were not interlinked and could not have prejudiced tile maintenance of public order. As against the above solitary decision, Mr. Chakravarti on behalf of the respondent State has referred to the principle laid down in the case of Arun Ghosh vs State of West Bengal (supra) as well as in the case of Nagendra Nath Mondal V. State of West ,Bengal (supra). Apart from those two cases, we find that in the (2) ; (1) [1972] I S.C.R. 498. 551 case of Tapan Ku mat ' Mukherjee and Ors. vs State of West Bengal(1) the allegation against the detenu was that he along with other associates committed robbery in respect of a fat, and a watch at the point of dagger in a running train, and this created disturbance of public order. Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This contention was repelled and it was observed that the innocent passengers would be terror stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on a shop. The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed. The above round was held by this Court to be germane to the disturbance of public order. In case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station, area and the adjoining locality. It was held that the activity of the petitioner created not merely a question of the maintenance of law and order but created a disturbance which would be comprehended by the, expression " order publique". The detention order was consequently upheld. In section K. Kedar vs State of West Bengal (WP No. 35 of 1972 decided on May 2, 1972) the allegation against the detenu was that he and his associates while removing railway material charged bombs and ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self defence. The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld. The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Ors. vs State of West Bengal (supra). The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order. The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order. The petition consequently fails and is dismissed. V.P.S. Petition dismissed.	The petitioner and his associates attacked a husband and wife with open knives in the third class compartment of a running train and robbed them of valuable property by putting them in fear of death on one occasion, and on another occasion, attacked a police party on the platform of a railway station with bombs. dagger$, knives and iron rods and exploded bombs with a view to kill the police party. The petitioner was detained by an order under section 3 of the with a view to preventing him from acting in any manner Prejudicial to the maintenance of public order, and the 'grounds of detention were that the two incidents created terror and panic among passengers and disturbed public order. The, petitioner challenged the order of detention in this Court. Dismissing the petition. HELD : Both the incidents referred to in the order affected public order and not merely law and order. [550 E F] The question whether a man only committed a breach of law and order or has act ad in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. The test to be adopted in determining whether an act affects law and order or public order is : Does it lead to disturbance of the current of life of the community so as to amount to a ,disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? When two passengers are robbed at the point of knives while travelling in a third class compartment of a running train the act affects riot only the passengers who are deprived of their valuables but also the other passengers who are watching in fear as helpless spectators. Likewise, the attack against the police party on the platform of a railway station by exploding bombs is bound to create panic and confusion among the passengers at the railway station. Consequently, there is bound to be terror and panic amongst the travelling public. Therefore, the acts in question, in the very nature of things, would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquillity. [550 A F] Tapan Kumar Mukherjee and ors. vs State of West Bengal, A.I.R. 1972 S.C. 840. followed. Dr. Ram Manohar Lohia vs State of Bihar, [1966] 1 S.C.R. 709, .Arun Ghosh vs State of West Bengal, [1970] 3 S.C.R. 288, Nagendra Nath Mondal vs State of West Bengal, ; , Nandlal Roy @ Nonda Dulal Roy @ Pagla vs State of West Bengal, W.P. No. 15 of 1972, decided on March 11, 1972. Sudhir Kumar Saha vs Commissioner of Police Calcutta and Anr., ; and section K. Kader vs State of West Bengal, W.P. 35 of 1967 decided on May 2, 1972, referred to. 547
dated 30.08.2021 passed by 2nd Jt. Civil Judge Senior Division, Nanded below Exh.118 in Special Civil Suit No.27 of 2020 allowing application filed by respondent nos.1 and 2 - original plaintiffs for amendment of the plaint under Order-VI, Rule-17 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC’). 2. Plaintiff nos.1 and 2 are real brothers of defendant no.1. It is the case of plaintiffs that while obtaining lease in respect of the suit property by their father, defendant no.1 (plaintiffs’ brother) was minor and out of pure love and affection, their father added his name in the lease agreement. After their father passed away, series of litigation took place between defendant no.1 and defendant nos.5 to 11 over the suit property. Initially defendant nos.5 to 11 decided to sell the suit property. Plaintiffs alleged that defendants ought to have purchased the suit property jointly in the name of two plaintiffs and defendant no.1 as the original lease deed was obtained through funds of their father. However the sale-deeds in respect of the suit land were admittedly executed in favour of defendant no.1 alone on 16.09.2017 (by defendant nos.5 to 11) and 09.11.2017 (by defendant no.12). This has led to filing of Special Civil Suit No.27 of 2020 by two plaintiffs against their brother (defendant no.1), his children (defendant nos.2 to 4) as well as defendant nos.5 to 11. In the unamended plaint, plaintiffs prayed for 1/3rd share each in the suit property as well as recovery thereof. They also sought declaration that the sale-deeds dated 16.09.2017 and 09.11.2017 are illegal and not binding on them. They also sought injunction against defendant nos.5 to 12 from alienating suit properties. They also sought damages of Rs.Five Crores against defendant nos.5 to 12. 3. Before the trial of the suit would commence, plaintiffs filed application for amendment of the plaint on 23.02.2021. By way of amendment, plaintiffs sought to completely overhaul the prayers in the suit by deleting most of the original prayers and substituted the same by the following prayers. “1. Suit of the plaintiff may kindly be decreed in favour of plaintiff no.1 and 2 and against the defendant no.1 to 11 for declaration that the plaintiffs are entitle for rights of pre-emption in suit property and also entitle a decree for pre-emption against the defendant calling upon defendant no.5 to 11 to execute a registered sale deed in favour of the plaintiffs on payment of consideration amount in suit property bearing CTS No.15929 Mun. No.2-10-84 (new) admeasuring South – North 22.83 mtr. And East – West 40.54 mtr., total admeasuring 925.83 sq.mtr. To the east – Govardhan Ghat Road, To the west – Back side wall of house of Shri. Narayan Patil. To the south – Land belonging to Shri. Rajesh Chandak and Pushpa Chandak, To the North – Back side wall of house of 4. In short, the nature of the original suit seeking share in the suit property and cancellation of sale-deeds was sought to be changed to that of a decree of pre-emption for execution of sale-deed in favour of plaintiffs. 5. The application was opposed by defendant no.5 (petitioner herein) by filing reply contending that the proposed amendment changes the entire nature of the suit. It appears that the rest of the defendants did not oppose the application for amendment. By order dated 30.08.2021, the trial Court proceeded to allow the amendment on payment of costs of Rs.500/-. 6. Mr. Gangakhedkar, the learned Counsel for petitioner would submit that the amendment allowed by the trial Court completely changes the nature of the suit. He would submit that the amendments are so drastic that the original nature of the suit is not at all retained and completely new lease is sought to be introduced. He would rely upon the judgment of the Apex Court in Asian Hotels (North) Limited vs. Alok Kumar Lodha and Others, (2022) 8 SCC 7. Per contra, Mr. Deshmukh, the learned Senior Counsel for respondent nos.1 and 2 (original plaintiffs) would oppose the petition and support the order passed by the trial Court. He would submit that the petition is filed after inordinate delay as the order granting amendment was passed on 30.08.2021, the amendment was carried out and the present petition is filed on 29.06.2022. He would submit that petitioner alone (defendant no.5) is aggrieved by the order granting the amendment and the main contesting respondent (defendant no.1) has chosen not to challenge order allowing amendment. Mr. Deshmukh would further submit that the real objective of plaintiffs in filing the suit is to claim their right, title and interest in the suit property which is sought to be claimed by defendant no.1 alone and since the original prayers were erroneous, the same are sought to be replaced by way of amended plaint. He would submit that the basic nature of suit being claimed share in the suit property remaining the same. Mere change in the nature of reliefs sought would not amount to change the nature of suit. Referring to ground clause-II of the petition wherein petitioner has relied upon provisions of Order-II, Rule-2 of the CPC., Mr. Deshmukh would rely upon the judgment of the Supreme Court in Life Insurance Corporation of India vs. Sanjeev Builders Private Ltd & Anr, 2022 LiveLaw (SC) 729. He would pray for dismissal of the petition. 8. After hearing the learned counsel for the parties, it is clear that the main claim of plaintiffs is against their brother - defendant no.1. Their grouse essentially is that name of defendant no.1 was added as lease holder in the lease agreement by their father only out of love and affection and the entire funds for creating of such leasehold rights were that of their father. On this basis plaintiffs are claiming 1/3rd share each in the suit property. They contended that instead of getting sale-deeds in respect of the suit properties executed in joint names of plaintiffs and defendant no.1, the same was illegally executed in the name of defendant no.1 alone. On the basis of these pleadings, plaintiffs are claiming 1/3rd share each in the suit properties. Therefore in the suit plaintiffs challenged the sale- deeds on the basis of which the title in respect of the suit properties was acquired by defendant no.1 alone. The sale-deeds were executed in favour of defendant no.1 by defendant nos.5 to 12. However while setting up a challenge to those sale-deeds, plaintiffs possibly did not realize that in the event of their suit being decreed and the sale-deeds being declared null and void, the title in respect of the suit properties would revert to defendant nos.5 to 12. Thus, even after succeeding in the suit, plaintiffs would not have been able to claim any right in the suit properties. Possibly realizing this error in drafting the plaint, the application for amendment appears to have been filed. 9. Now coming to the amendments that were sought to be introduced, there can be no iota of doubt that the same completely overhauls the plaint and possibly changes the nature of the suit. In fact, it must be observed that the amendments are so drastic that it has become difficult to compare the amended plaint with unamended one. Be that as it may, what is required to be seen is whether after effecting such drastic amendments, whether the basic nature of the suit would change. As observed earlier, the real objective behind filing the suit was to claim share in the suit properties against defendant no.1. Though originally relief of injunction was also sought against defendant nos.5 to 11 also, it is incomprehensible as to how defendant nos.5 to 11 once again alienate the property having already alienated the same in favour of defendant no.1. That prayer appears to have been deleted in the amended plaint. 10. In their quest to claim the share in the suit property now plaintiffs have added the prayer to seek right of pre-emption against defendant nos.5 to 11 and a direction against them to execute sale-deed in respect of the suit property. Thus the entire nature of the suit is now sought to be altered. In the original suit, no case was made out about any right of pre-emption existing in favour of the plaintiffs against defendant nos.5 to 11. Now an altogether new case is sought to be introduced. For the sake of convenience, it would be appropriate to compare the prayers as original sought in the plaint with that of the amended prayers as under: Prayers in the original plaint Prayers in the amended plaint 1. Suit of the plaintiffs may kindly be 1. Suit of the plaintiff may kindly be decreed in favour of plaintiff No.1 & 2 decreed in favour of plaintiff no.1 and 2 and against the defendant no.1 to 12 and against the defendant no.1 to 11 for declaration that, the plaintiff Nos.1 for declaration that the plaintiffs are & 2 are having 2/3rd share (1/3rd entitle for rights of pre-emption in suit share each) in the suit land bearing CTS property and also entitle a decree for No.15929, Mun. No. 2-10-84 (New), pre-emption against the defendant admeasuring in length south-north calling upon defendant no.5 to 11 to 38.55 meter (appx.) and in width east – execute a registered sale deed in favour west 35.88 meter (appx.) total adm. of the plaintiffs on payment of 1383.17 sq. meter (appx.) situated near consideration amount in suit property Tiranga Chowk, Vazirabad, Nanded, bearing CTS No.15929 Mun. No.2-10- which is bounded by To the East- 84 (new) admeasuring South – North Govardhan Ghat road, To the West – 22.83 mtr. And East – West 40.54 mtr., Back side wall of house of Shri. total admeasuring 925.83 sq. mtr. To Narayan Patil, To the South – Land the east – Govardhan Ghat Road, To the belonging to Shri. Lal Ahmad, To the west – Back side wall of house of Shri. North – Back side wall of house of Shri. Narayan Patil. To the south – Land Gangusing. belonging to Shri. Rajesh Chandak and Pushpa Chandak, To the North – Back 2 That, suit of the plaintiffs may kindly be 2. That, suit of the plaintiffs may kindly be decreed in favour of plaintiff No.1 and decreed in favour of plaintiff no.1 and 2 2 and against the defendant no.5 to 12 and against the defendant no.5 to 11 & defendant nos.5 to 12 for recovery of for recovery of possession of plaintiff possession of plaintiff no.1 & 2, 2/3rd nos.1 & 2 share in the suit property as share in the suit property as mentioned mentioned in para no.A of claim clause. in para No.A of claim clause. 3. That, suit of the plaintiffs may kindly be 3. That, suit of the plaintiffs may kindly be decreed in favour of plaintiff No.1 and decreed in favour of plaintiff No.1 and 2 2 and against the defendant no.1 to 12 and against the defendant No.5 to 11 for declaration that the registered sale- for damages for the recovery of amount deed No.5199/2017 dt.16.09.2017 of Rs.5,00,000/- lump sum from executed by defendant No.5 to 11 in 10.11.2017 till the date of filing of the favour of defendant no.1 to 4 is illegal, suit and for further inquiry of future null and void and not binding on damages of suit property under Order plaintiff no.1 & 2. 12 Rule 20 of CPC from the date of suit till its realization. 4. That, suit of the plaintiffs may kindly be 4. That, any other relief for which decreed in favour of plaintiff No.1 and plaintiffs are entitled may kindly be 2 and against the defendant No.5 to 12 awarded in favour of plaintiff no.1 & 2 for declaration that, the registered sale- and against the defendant no.1 to 11. deed No.6073/2017 dt.09.11.2017 11. Comparing the prayers in the original suit with the amended suit, there would leave no matter of doubt that the entire nature of the suit has been changed because of the amendment. 12. It is trite that any amendment which changes the nature of suit is required to be declined. The principles relating to amendment of pleadings have been summed up in the recent judgment of the Supreme Court in Life Insurance Corporation of “(i) Order II, Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine 13. Thus, the Supreme Court has held that whether amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case earlier set up in the plaint, the amendment must be disallowed. In the present case there was complete absence of pleadings with regard to alleged right of pre-emption in favour of plaintiffs and therefore it cannot be stated by any stretch of imagination that the amended prayer is premised on the pleadings which already existed in the plaint. 14. The trial Court ought to have rejected the application since the amendment completely changes the nature of the suit. Mr. Gangakhedkar has relied upon in another recent judgment of the Apex Court in Asian Hotels (supra) in which it is held in para nos.34 “34. By way of an amendment of the plaint the plaintiffs now want to challenge the mortgages / charges on the entire premises created by the appellant. As such, the original plaintiffs are not at all concerned with the mortgages created by the appellant which is required for the continuous development of the hotel. By the purported amendment, the original plaintiffs have now prayed to declare that all the mortgages / charges created on the premises as void abinitio. Even such a prayer can be said to be too vague. How the original plaintiffs can now can be permitted to challenge various mortgages / charges created from time to time. 35. At this stage, it is required to be noted that even under the License Agreement (clause 13) the Licensor shall have the right to create charges / mortgages as and by way of first charge on its land, premises and the buildings (including shops) constructed and to be constructed, in favour of financial institutions and banks as security for their terms loan advanced / to be advanced to the licensor for the completion of its hotel project. Therefore, in fact original plaintiffs being the licensee are aware that there shall be charges / mortgages on the entire premises and the buildings including the shops. In that view of the matter, now after a number of years, plaintiffs cannot be permitted to challenge the mortgages / charges created on the entire premises including shops. 36. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and / or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges / mortgages void ab-initio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action.” 15. Perusal of the impugned order passed by the trial Court would indicate that it has completely lost sight of the fact that the amendment would change the nature of the suit entirely. In fact, though specific objection was raised by defendant no.5 about change of nature of suit, the trial Court has not recorded any finding on that aspect. However the trial Court did observe that “Given thoughtful consideration to the contentions in the plaint it notices that, it is crystal clear that plaintiffs are coming with a new case in respect of their right to pre-emption.” 16. Despite arriving at a finding that plaintiffs were introducing an altogether new case by amending the plaint, the trial Court has still proceeded to allow the application for amendment on the ground that since the amendment is also in respect of the same property, the plaintiffs are at liberty to seek a prayer as to how they are entitled to the suit property. This reasoning in my view is completely erroenous. 17. In the result, I find that the order passed by the trial Court is indefensible and the same is liable to be set aside. 18. Accordingly, the writ petition is allowed. The order dated 30.08.2021 passed by 2nd Jt. Civil Judge Senior Division, Nanded below Exh.118 in Special Civil Suit No.27 of 2020 is set aside and application for amendment filed by respondent nos.1 and 2 (original plaintiffs) stands dismissed. Rule is made absolute accordingly.	The Bombay High Court recently reiterated that an amendment that completely changes the nature of the suit cannot be permitted. Justice Sandeep V. Marne of the Aurangabad bench set aside a trial court order which allowed amendment to prayers in a property dispute despite observing that the plaintiffs were bringing a new case through the amendment. "Despite arriving at a finding that plaintiffs were introducing an altogether new case by amending the plaint, the trial Court has still proceeded to allow the application for amendment on the ground that since the amendment is also in respect of the same property, the plaintiffs are at liberty to seek a prayer as to how they are entitled to the suit property. This reasoning in my view is completely erroenous", the court stated in its judgment. The court observed that the amendment changed the nature of the suit completely and there were no pleadings in the suit to substantiate the new prayers. The original plaintiffs in the suit are real brothers. It is their case that while obtaining the lease in respect of the suit property, their father added their minor brother's name in the lease agreement out of pure love and affection. After their father passed away, series of litigation took place and the suit property was sold to the third brother alone. Therefore, the plaintiffs filed a suit seeking one third share each of the suit property. They also sought declaration that the original sale deed was illegal. Before the commencement of the trial, they sought amendment of their plaint under Order-VI, Rule-17 of the CPC to change the prayers in the suit. They sought decree of pre-emption for execution of sale-deed in favour of plaintiffs. The trial court allowed the amendment. The petitioner in the present petition is a defendant in the suit. He approached the court high court in a writ petition challenging the trial court's order. Advocate S. S. Gangakhedkar for the petitioner submitted that the amendment completely changes the nature of the suit and the original nature of the suit is not retained. Senior Counsel Rajendra Deshmukh for the original plaintiffs submitted that the real objective of the plaintiffs in filing the suit is to claim the right, title, and interest in the suit property. The original prayers were erroneous; hence they have replaced them. The basic nature of claiming share in the suit property remains the same and mere change in the relief sought would not amount to changing the nature of the suit. The court noted that if the sale-deeds are declared null and void, the title in respect of the suit properties would revert to original defendant nos. 5 to 12. Even after succeeding in the suit, plaintiffs would not have been able to claim any right in the suit properties. The plaintiffs possibly sought to amend the prayers for this reason, the court observed. The court compared the prayers in the original suit as well and the amended suit and said that the amendment is so drastic that it is difficult to compare the amended plaint with the original one. The court relied on Supreme Court judgement in Life Insurance Corporation of India v. Sanjeev Builders Private Ltd & Anr and noted that there was a complete absence of pleadings in the suit regarding plaintiffs' right of pre-emption. "…therefore it cannot be stated by any stretch of imagination that the amended prayer is premised on the pleadings which already existed in the plaint", the court stated. The court said that the trial court should have rejected the amendment application as it completely overhauls the plaint. Though specific objection was raised by the petitioner before the trial court, it did not record any finding on that aspect. However, it did observe that the plaintiffs are coming with a new case in respect to the right to pre-emption. Despite this finding, the trial court allowed the amendment stating that since the amendment is in respect of the same property, the plaintiffs can seek the prayer as to how they are entitled to the suit property. The court said that this reason is erroneous and the trial court completely lost sight of the fact that the amendment would change the nature of the suit entirely. Case no. – Writ Petition No. 6971 of 2022 Case title – Damodhardas Govindprasad Sangi v. Fatehsinh s/o. Kalyanji Thakkar and Ors.
Appeal No. 1420 of 1966. 129 Appeal by special leave from the judgment and order dated October 21, 1965 of the Mysore High Court in Writ Petition No. 2173 of 1964. section T. Desai, B. R. L. Iyenger and B. R. G. K. Achar, for the appellant. R. B. Datar, Anil Kumar Sablok and B. P. Singh, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave is against the Judg ment and Order of the High Court of Mysore quashing the memorandum dated July 4, 1963 whereby the State Government terminated the service of the respondent. The only question arising in this appeal is one of interpretation of the Government Order No. GAD 46 SRR, dated September 22, 1961. The respondent entered government service as an officiating computor in the Government Press on March 11, 1958 and con tinued in that post until September 1, 1958. He was thereafter appointed from time to time in officiating capacity in different posts though in the same department until December 3, 1959 when he was appointed as a proof examiner. He continued in that post until February 28, 1961. According to the appellants there was break in his service on March 1, 1961 as his service was terminated on February 28, 1961 and he was once again appointed on March 2, 1961 as a second division clerk (industrial.). He continued in that post until July 4, 1963 when the impugned order terminating his service was passed. The first of March 1961 on which it was said there was break in his service was a holiday. There is no dispute that the respondent was throughout work ing in officiating capacity and was a "local candidate" like several other such employees appointed by direct recruitment by Government instead of regular recruitment by the Public Service Commission of the State as required by the rules of Recruitment. Rule 8(27A) of the Mysore, Civil Service Rules, 1958 defines a "local candidate" as meaning a temporary Government servant not appointed regularly in accordance with the Rules of Recruitment to that service. Rule I(A) of the Mysore Government Servants ' (Seniority) Rules, 1957 provides that those rules do not apply to a person appointed as a local candidate so long as he is treated as such. It further provides that where his appointment is treated as regularised from any date, his seniority in the service shall be determined in accordance with these rules as if he had been appointed regularly in accordance with the Rules of 130 Recruitment to the post held by him on that day. Since the appointment of local candidates as in the case of the respondent was not made by or through the Public Service Commission as required by the Rules, the State Government with a view to regularise such appointments passed the said order dated September 22, 1961. The material portion of the said order runs as follows 2. (i) All appointments to Class III Direct Recruitment Posts made by the local appointing authorities, both in the old Mysore area (including Bellary District) and in the other integrating areas up to 31st December 1959 (inclusive) may be regularised subject to the condition that the candidates were within the prescribed age limits and had the requisite qualifications at the time of their initial appointments; (ii) The services of local candidates shall be regularised with effect from the date of their appointment, from which their service is continuous provided they were in service on 1st January 1960 and continue to be in service at the time their services are regularised. (iii) The local service will count for purposes of leave, pension and increments. . but not for purposes of seniority; only the service from the date of regularisation of their appointments in the particular department will count for seniority; (iv) Breaks in service will not be condoned even if such breaks are only for short periods. In the Writ Petition filed by the respondent against the im pugned order dated July 4, 1963 terminating his service the respondent raised two points : (1) that though he was a local candidate appointed from time to time to the aforesaid posts he was entitled to have his service regularised under the said order and (ii) that as he was entitled to be so regularised he was also entitled to the protection of Article 311(2) of the Constitution. Consequently, his service could not be terminated in the manner it was done by the impugned order. The contention of the State Government on the other hand was that the order of regularisation did not apply to the respondent as his service was not continuous as required by the said order and therefore there was no question of Article 311 being applicable to his case and the State Government was entitled therefore to terminate his service by the said order of July 4, 1963. 131 The High Court on an interpretation of the Order dated September 22, 1961 repelled the Government 's contentions and held that the respondent was entitled to have his service regularised with effect from the date his service was continuous prior to December 31, 1959 and that being so, the order terminating his service on the erroneous basis that he was a temporary government servant not entitled to the benefit of the aforesaid regularisation order was violative of Article 311. This interpretation meant that the appointment and service of the respondent were not only to be regularised but as a result of such regularisation the respondent had to be treated as a permanent servant being entitled to the protection of Article 311(2). The High Court arrived at this result on the interpretation it gave to the portion of the said Order which we have set out above. The High Court observed that sub clause (2) of clause 2 of the said Order provided for the fixation of the date with effect from which the appointment was deemed to have been made permanent and that the second part of that sub clause laid down the conditions which if satisfied entitled the respondent for regularisation. According to the High Court the necessary conditions for such regularisa tion were : (a) that the local candidate should be in service on January 1, 1960 and (b) that he should continue to be in service at the time his service was to be regularised. The High Court further observed that what sub clause (2) required was "not continuity of service but that the services be continued at the time of the regularisation" and that the intention of the Government was not to lay down the condition of continuous service between December 31, 1959 and the date of the said Government order. It then observed "When the Government order by a fiction of the law provided for regularisation of services with effect from a date anterior to 31 12 1959, the local candidates who satisfy the qualifications and conditions prescribed by sub paras (i) and (ii) are deemed to have been permanently appointed with effect from a date anterior to 31 12 1959. Where the local candidate possesses the qualifications prescribed in sub para (i) of para 2, if his initial appointment was made before 31 12 1959, he is entitled to have his appointment regularised provided he was in service on 1st January 1960 and is continued in service at the time of the G.O., notwithstanding any break in service between 31 12 1959 and 22 9 1961. " The High Court also held that sub clause (iv) on which reliance was placed by the Government had reference to break in service before December 31, 1959 and not during the period subsequent to that date. Thus, according to the High Court if a local candidate 132 was initially appointed prior to December 31, 1959 and was in service on January 1, 1960 and also on September 22, 1961 he was entitled to the benefit of the regularisation order. So long as he was in service on the two termini his service would have to be regularised irrespective of whether his service during the interval was continuous or not. The High Court also equated regularisation with permanence of service and therefore held that once a local candidate 's service was regularised he had to be treated as a permanent servant. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may men tion that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent Would still require confirmation. It seams that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence. We are however not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government bad come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repurcussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 1961, assuming there was such a break, the government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Court 's judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order. Coming now to the Order, sub clause (i) of clause 2 provides that all appointments to Class III posts by direct recruitment made up to December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises ,on the construction of sub clause (ii). That sub clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time their services are regularised. It is clear from the express words used in this sub clause that 133 continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service, till the date of the order, i.e., September 22, 1961. This construction finds support from sub clause (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous ? The same consideration would also apply in the case of pension. It had therefore to be provided as has been done in sub clause (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub clauses 2 and 3. The High Court was therefore in error when it said that sub clause (iv) did not relate to considerations under sub clause (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub clause (ii) to mean that the only thing it required was, that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates,. viz., January 1, 1960 and September 22, 1961 and that the service during the interval need not be continuous. If that construction were to be upheld it would result in injustice, for local candidates. not recruited regularly and not in continuous service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, 1961, would get seniority over candidates. regularly appointed after December 31, 1959 and whose service Is continuous. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore the proper interpretation would be that in order that the regularisation order may apply to a particular case the local, candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, 1960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against others who were recruited properly under the Rules of Recruitment. Under subclause (iii) however if the service is continuous from January 1, 1960 to September 22, 1961, such service is to be taken into account for purposes of leave, pension and increments but not for purposes of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides. 134 results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise. For the reasons aforesaid the construction placed by the High Court cannot be sustained. Though the construction which we are inclined to adopt is in support of the stand taken by the State Government, in view of the assurance given by counsel on behalf of the Government that this construction should not affect the regularisation of the respondent 's service and its having been considered by the High Court as permanent, it is not necessary to interfere with the order passed by the High Court. The appeal consequently is dismissed. There will however be no order as to costs. G.C. Appeal dismissed.	The respondent joined Class III service of the Mysore Government in 1958 as a local candidate. According to the Mysore Civil Service Rules, 1958 a local candidate meant a temporary Government servant not appointed regularly in accordance with the rules of recruitment to that service. On September 22, 1961 the Mysore Government passed art order whereby under sub cl. (i) of cl. 2 local candidates appointed before Dec. 31, 1959, were entitled to have their appointments regularised subject to certain conditions. According to sub cl. (ii) of cl. 2 of the Order the services of local candidates were to be regularised with effect from the date of their appointment ', from which their service was continuous provided they were in service on 1st January 1960 and continued to be in service at the time their services were regularised. Sub clause (iii) said that local service would count for purposes of leave, pension and increments but not for purposes of seniority, and that only the service from the date of regularisation of the appointment in the particular department would count for seniority. Sub clause (iv) laid down that breaks in service would not be condoned even if such breaks were only for short periods. There was a break of one day in the respondent 's service on March 1, 1961. The Mysore Government terminated his service on July 4, 1963. The respondent filed a writ petition before the High Court claiming that he was entitled to have his appointment regularised under the aforesaid Government Order. The High Court held that the requirements of the Order were that a local candidate was entitled to its benefit if he joined service before Dec. 31, 1959, and was in service on two dates, namely 1st January 1960 and 22nd September 1961. On this view the High Court allowed the respondent 's petition whereupon the State appealed to this Court. HELD : The High Court was wrong in its construction of sub cl. (ii) of cl. 2 of the Order. On a harmonious construction of sub cl. (ii) with the other subclauses of cl. 2 its proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, 1960 and continue to be in service without any break till the date of the order. Since the service of the respondent was not continuous during this period he was not entitled to regularisation of his appointment under the Order. (133 G]
Criminal Appeal No. 195 of 1984. From the Judgment and Order dated 30.11. 1982 of the Punjab & Haryana High Court in Crl. Appeal No. 425 D.B./1982. O.P. Soni, Ms. Kamlesh Datta and S.K. Sabharwal for the Appellant. 664 U.R. Lalit and Uma Datta for the Respondents. Mahabir Singh for the State of Haryana. The Judgment of the Court was delivered by FATHIMA BEEVI, J. The respondents Puran and Tara Chand along with Ved, Balwan, Dhapan, Jagdish and Lal Chand were tried before the Additional Sessions Judge, Sonepat, for the murder of one Partap Singh and causing injuries to others. The learned Judge by judgment dated 18.5. 1972 convicted these respondents for offences under section 302, I.P.C., and sections 323,325 read with 149, I.P.C. They were sen tenced to undergo imprisonment for life and ordered to pay a sum of Rs.500 each under section 302, I.P.C., R.I. for one year under section 148, I.P.C., R.I. for one year under section 325 and R.I. for six months under section 323, I.P.C. The other accused were convicted for the minor of fences and released on probation under sections 360/36.1, Cr. P.C. The respondents appealed against the conviction and sentence. The High Court by the impugned judgment dated 30.11. 1982 disposed of the appeal thus: "Admittedly there was no prior enmity between the parties. The quarrel arose out of a very insignificant matter like the burning of dry sugarcane leaves on the common boundary of the fields of the two parties. The ensuing altercation would probably have been forgotten had Partap Singh deceased not died. Even when there is an altercation arising out of a minor incident there is some tendency on the part of the prosecution witness to exaggerate matters. The three eye witnesses have of course fully supported the prosecution case but the investigating officer recorded statement of one Paras Ram at the time of making the inquest report which gives a somewhat different version. The learned trial judge has himself found that the object of the unlawful assembly was not to commit the murder of the deceased. It is precise ly for this reason that five accused persons have been released on probation and only two accused, i.e., Puran and Tara Chand appellants, have been convicted under section 302, I.P.C. We do not propose to go into the details of the controversy and in the peculiar circumstances of this case convert the conviction of Puran and Tara Chand appellants into one under section 304. Part1, 1. P.C., on the basis that in view of the statement made by 665 Paras Ram at the time when the investigating officer made the inquest report a somewhat different version was given. This Paras Ram was not produced as a witness by the prosecu tion. Since there was no prior enmity between the parties, we order that sentence already undergone by Puran and Tara Chand appellants will meet the ends of justice. They are, however, ordered to pay a fine of Rs. 12,000 each. In de fault of payment of this fine, the defaulter is ordered to undergo rigorous imprisonment for five years. The sentences of imprisonment imposed upon Puran and Tara Chand appellants on other counts are also reduced to that already undergone by them. The total fine, if realised, shall be paid to the next heirs of Partap Singh deceased as compensation." (emphasis supplied) The High Court has, by this Cryptic order, acquitted re spondents of the major charge under section 302, I.P.C., and recorded their conviction under section 304 Part I reducing the sentence of life imprisonment to a term of imprisonment already undergone while enhancing the sentence of fine. The State has not preferred any appeal against the order of acquittal or reduction of sentence. The respondents. it appears, have accepted the judgment. Sham Sunder, the de facto complainant, however, being aggrieved approached this Court under Article 136 of the Constitution. This Court has granted special leave to appeal. The High Court, exercising power under section 386, Cr. P.C., in an appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding after the nature or the extent or the nature and extent of the sentence but not so as to enhance the same. The powers of the High Court in dealing with the evidence are as wide as that of the trial Court. As the final court of facts, the High Court has also duty to examine the evi dence and arrive at its own conclusion on the entire materi al on record as to the guilt or otherwise of the appellants before it. It is true that the High Court is entitled to reappraise the evidence in the case. It is also true that under Article 136. the Supreme Court does not ordinarily reappraise the evidence for itself for determining whether or not the High Court has come to a correct conclusion on facts but where the High Court has completely missed 666 the real point requiring determination and has also on erroneous grounds discredited the evidence and has further failed to consider the fact that on account of long standing enmity between the parties, there is a tendency to involve innocent persons and to exaggerate and lead pre judged evidence in regard to the occurrence, the Supreme Court would be justified in going into the evidence for the pur pose of satisfying itself that the grave injustice has not resulted in the case. We have extracted the material portion of the judgment of the High Court to indicate that the line of approach adopted by the High Court is wholly wrong. There is no discussion of the evidence much less any reasoning. The respondents herein along with five others had been found guilty by the trial court accepting the testimony of the two eye witnesses and other material evidence on record. A brief resume of the facts is necessary. Lal Chand and Tara Chand are brothers. Ved Singh, Puran, Balwan and Ishwar are the sons of Tara Chand and Dhapan is his wife. Jagdish is the son of Lal Chand. Partap and Bhim Singh are brothers. Sham Sunder is the son of Bhim Singh. Roshan is the son of Partap. Tara Chand owns sugarcane field adjoining the wheat field of Partap. On 10.3. 1981 in the morning, Ved Singh burned sugarcane patties causing damage to the wheat crop. The protest raised by Roshan was not heeded. Bhim Singh arrived at the scene and altercation 'ensued. Partap later raised protest before Tara Chand. His grievance was not redressed. At about 6.00 P.M. Partap raised the protest before Puran who also turned down the same. Shortly thereaf ter Puran and the other members of his family including his wife, brother and their children all numbering about eight reached in front of the house of Partap. They were armed and attacked Partap. The allegation is that the respondents Tara Chand and Puran had attacked Partap with jailies, first they gave jailies blows from the prong side in the chest and when Partap fell down, they gave jailies blows like lathi on his head, back and shoulder. Partap died on his way to the hospital. It is further alleged that in the course of the incident Lal Chand and Jagdish caused injuries to Roshan; Ishwar caused injuries to Dhapan wife of Partap; Puran, Ved, Balwan caused injuries to Sham Sunder. It has come out in evidence that Ved, Dhapan, Lal Chand, Puran and Ishwar also received injuries in the course of the incident. Sham Sunder and Roshan are the two eye witnesses, be sides Smt. Dhapan the wife of deceased Partap. There had been no independent witness. Sham Sunder and Roshan said that they had caused 667 injuries to the members of the opposite party in self de fence. They do not however state in what circumstances they had to use force. The evidence does not disclose the genesis of the occurrence; how it developed and culminated in fatal injuries to Partap. There had been no enmity between the two groups. The immediate provocation for the quarrel is the damage to the wheat crops. It is admitted that Partap raised his protest right from the morning till the arrival of Puran who was employee of the Medical College, Rohtak. The prose cution has, it appears, given a twist when they say that at 6.00 P.M. Partap met Puran who turned down his request and went home and after 15 minutes all the members of his family including the womenfolk reached the house of Partap and started the assault. It is significant to note that the women and even the minor children of both families were present and received injuries recording their presence at the place. It would therefore appear that it was a continu ous transaction and when Partap persistently raises the protest and started abusing Puran, other members of his household had come out. The quarrel had taken a serious turn and in the course of further development fatal injuries had been caused to Partap. The plea of the respondents was that they did not cause any injury, that there was a Panchayat where a large crowd assembled and there had been brick batting and altercation. The plea of private defence was not specifically set up. However, if there are material in evidence to indicate that the incident could not have hap pened in the manner spoken to by the eye witnesses and in all probability the respondents had used the force exercis ing the right of private defence, then accused are entitled to the benefit thereof. Whether the respondents have in such circumstances exceeded their right and are justified in causing death, has necessarily to be considered. In the absence of a full discussion of the evidence by the High Court, we have been constrained to consider the materials on record. We have seen that there is the evidence of only the interested witnesses who have the tendency to exaggerate and involve even innocent persons. We have seen that most of the accused have sustained injuries and in explaining the same, the prosecution witnesses have not come forward with a truthful account. We are led to draw the inference that in the melee and ensued on account of the aggressive attitude of Partap, the respondents and other members of the family participated and used the force against Partap and his associates in all probabilities in the exercise of right of private defence. However, the circumstances did not warrant the causing of death and the respondents must be deemed to have exceeded their right. The nature of the injuries indi 668 cate that injuries sufficient in the ordinary course of nature to cause death had been inflicted intentionally. In such circumstances. , the act of the respondents squarely falls under section 304 Part I, EP.C. While we agree with the conclusion arrived at by the High Court, we record that the High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is erro neous. It is on the basis of the statement given in the course of investigation by a person who was not examined in the case that the High Court has drawn its conclusion. We, however, maintain the conviction under section 304 Part I, I.P.C. The High Court has reduced the sentence to the term of imprisonment already undergone while enhancing the fine. It is pointed out that the respondents have undergone only imprisonment for a short period of less than six months and, in a grave crime like this, the sentence awarded is rather inadequate. No particular reason has been given by the High Court for awarding such sentence. The court in fixing the punishment for any particular crime should take into consid eration the nature of the offence, the circumstances in which it was committed and the degree of deliberation shown by the offender. The measure of punishment should be propor tionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of opinion that to meet the ends of justice, the sentence has to be enhanced. In the result, we maintain the conviction of the re spondents but enhance the sentence to one of rigorous im prisonment for a period of five years. The respondents should surrender to the bail to undergo the unexpired por tion of the sentence. The fine, if paid, shall be refunded to the respondents 1 and 2. The appeal is disposed of as above. G.N. Appeal disposed Of.	Respondent 1 is the son of Respondent No. 2. Including Respondent No. 1 Respondent No. 2 had 4 sons. Respondent No. 2 owned a sugarcane field adjoining the wheat field of one P. One of the sons of Respondent 2 had burnt sugarcane patties causing damage to the wheat crop of P, against which P protested before the respondents. The protest was turned down. Shortly thereafter the respondent and the family members reached the house of P. They were all armed. Re spondents attacked P and he fell down. On the way to hospi tal P died. Most of the accused as well as the family mem bers of P sustained injuries. On a complaint, F.I.R. was registered. After investigation, Prosecution filed a case before the Additional Sessions Judge. Two eye witnesses were produced by the prosecution. They were relatives of the deceased and there was no independent witness. The Additional District Judge convicted the respondent for offences under sections 302 IPC and 323, 325 read with 149 IPC. Both were sentenced to imprisonment for life and a fine Rs.500 each under section 302 IPC. They were also sentenced to rigorous imprisonment ranging from six months to one year for the other offences. The other accused were convicted for minor offences and released on probation. The respondent appealed against the conviction and sentence. The High Court acquitted the respondents of the major charge under section 302 IPC and recorded the conviction under section 304 Part I reducing the sentence of life imprison ment to the term already undergone, and enhanced the sen tence of fine. No appeal was preferred by the State. Howev er, the complaint filed an appeal by special leave. 663 Disposing the appeal, this Court, HELD 1. There is the evidence of only the interested witnesses who have the tendency to exaggerate and involve even innocent persons. Most of the accused have sustained injuries and in explaining the same, the prosecution wit nesses have not come forward with a truthful account. In the melee that ensued on account of the aggressive attitude of the respondents and other members of the family who partici pated and used force against P and his associates. in all probabilities in the exercise of right of private defence. However, the circumstances did not warrant the causing of death and the respondents must be deemed to have exceeded their right. The nature of the injuries indicate that they were sufficient in the ordinary course of nature to cause death and had been inflicted intentionally. In such circum stances, the act of the respondents squarely fails under section 304 Part I, IPC. The High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is erroneous. It is on the basis of the statement given in the course of investigation by a person who was not examined in the case that the High Court has drawn its conclusion. However. the conviction under section 304 Part I, IPC is maintained. The High CoUrt has reduced the sentence to the term of imprisonment already undergone, and enhanced the fine. The respondents have undergone imprisonment only for a short period of less than six months and, in a grave crime like this, the sentence awarded is rather inadequate. No particu lar reason has been given by the High Court for awarding such sentence. The Court in fixing the punishment for any particular crime should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. The sentence is enhanced to one of rigorous imprisonment for a period of five years.
Present petition is filed by the Union of India and others seeking following reliefs; “(i) To strike down the Section 110(1)(j) of the Karnataka Municipal Corporation Act, 1976 in so far as non exepting the land used or intending to be used for residential or commercial purposes by the Union of India from taxes. (ii) To quash the demand notice dated 04.06.2010 in No. EDS/ Kum.Vi/P.R. 173/ R.13232/ 09-10 /A7 issued by the Assistant Corporation, Mangalore, i.e., the respondent No.3 vide Annexure-C and notice dated issued by the Revenue Officer, Mangalore Municipal Corporation, Mangalore i.e., the respondent No.4 vide Annexure-F. (iii) Direct the respondent Nos.2 to 4 to refund a sum of Rs.4,11,317/- received vide DD No.280420 dated 28.03.2007, a sum of Rs.15,679/- received vide DD No.288751 dated 31.10.2007 and a sum of Rs.15,679/- received vide DD No.172171 dated 02.04.2008 from the petitioner No.3 towards property tax in respect of the residential quarters owned by it to the petitioner No.3 along with interest from the date of receipt till the date of repayment”. 2. Sri. H.Shanthi Bhushan, learned Additional Solicitor General appearing for the petitioners fairly submits that he would not press the relief No.(i). Hence, the same is does not survive for consideration. Therefore, the present petition is taken up for consideration of relief Nos. (ii) and (iii). 3. It is the case of the petitioners that it owns buildings in Mangalore City which has been used for residential quarters for its employees and the said building is situated within the jurisdiction of respondent No.2-Corporation. That respondent No.3 had demanded property tax in respect of the building used for residential purposes by the petitioner No.3. That the petitioner No.3 in advertently with bonafide intention made the payment in an aggregate sum of Rs.4,42,675/- to the respondent No.2-Corporation in compliance with the demand notices issued during the year 1994-95 to 31.03.2008 as per the following “(a) A sum of Rs.4,11,317/- vide DD No.280420 dated 28.03.2007, (b) A sum of Rs.15,679/- vide DD No.288751 dated 31.10.2007 and (c) A sum of Rs.15,679/- vide DD No.172171 dated 02.04.2008”. 4. It is the further contention of the petitioners that it was subsequently noticed that demand made by the respondent No.-2 corporation with regard to payment of property tax was illegal and contrary to the provisions of Article 285 (1) of the Constitution of India. Therefore, a representation dated 25.02.2010 as per Annexure-A was made to the respondent No.2 seeking exemption of the building from the payment of property tax and also sought for refund of the amount already paid by it. Since, no action was taken, the petitioner No.3 made another representation on 25.05.2010 as per Annexure-B reiterating its earlier requisition. However, on 04.06.2010, respondent No.3 relying upon the provision of Section 110(1)(j) of the Karnataka Municipal Corporation Act, 1976 (hereafter referred to as the KMC Act) rejected the claim of the petitioner No.3 and demanded for payment of property tax for the year 2009-10 as per Annexure-C. In response thereof, petitioner No.3 after obtaining opinion from its Law Department made yet another representation on 28.09.2010 as per Annexure-D seeking exemption from payment of property tax as provided under Article 285 (1) of the Constitution of India. The respondent No.4 without considering the representations given earlier, issued another demand notice dated 16.07.2011 demanding payment of arrears of property tax in respect of the building belonging to the petitioners on the premise of the provisions of the Section 110(j) of the KMC Act, 1976. Being aggrieved by the aforesaid demand, petitioners are before this Court. 5. This Court considering the fact and situation of the matter had directed the learned Additional Solicitor General appearing for the petitioners and learned counsel appearing for the respondent Nos.2 to 4 to furnish the details with regard to the date of construction of building in question. Learned counsel for the respondent No.3 has submitted copy of the building licence concerning the property in the nature of demand register extract. It is seen that the building licence has been issued by the respondent No.2 on 26.04.1991 and building has been completed and occupancy certificate has been issued on 10.06.1994. The aforesaid information was required in view of the Article 285 of the Constitution of India which provides as under; "285. Exemption of property of the Union from state taxation.- (1) The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State. (2) Nothing in clause (1) shall , until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable or treated as liable, so long as that tax continues to be levied in that State". 6. Thus, it is clear from reading of the clause (1) of Article 285 of the Constitution extracted hereinabove that if a building belonging to Union of India was in existence prior to coming into effect of the Constitution and said building unless Parliament may by law otherwise be exempt from levy of tax by the State or any other authorities. Clause (2) of the Article 285 of the Constitution on the other hand makes it clear that if a building was in existence prior to commencement of the Constitution and till Parliament by law otherwise provides the same shall not levy tax thereon. In the instant case as noted above, the building in question has come into existence in the year 1994 subsequent to commencement of Constitution. 7. Learned ASG also relies upon the judgment of this Court in the case of Union of India and others vs. City Municipal Council, Rani Bennur and another reported in AIR 2000 Karnataka 104, wherein dealing with identical situation, this Court at paragraph 7 as held as under; “7. Provisions of Article 289 exempt the property of the State and that of Article 285, provide exemption to property of the Union are complementary to each other with a view not to levy the tax by State Legislature on the property of the Union and also by the Parliament on the property of the State. Article 285 refers to the property of the Union. If the property belongs to the Union, then, irrespective of its use, no tax could be levied by the State Legislature or by Municipal Authorities. The concept of use is not provided under Article 285. The denial of exemption under the proviso to Section 94 of the Act on the ground that the property is used or intended to be used for residential or commercial purpose cannot be considered to be inconsonance with the spirit of Article 285 of the Constitution of India. Any property belonging to the Union of India irrespective of its use could not be subjected to tax and therefore the proviso of Section 94 of the Karnataka Municipalities Act to that extent is ultra vires of Article 285 of the Constitution of 8. Learned counsel for the respondent Nos. 2 to 4 does not dispute the aforesaid legal position. In that view of the matter, petition deserves to be allowed quashing the demand notices as per Annexures-C and F. As regards the prayer for refund of Rs.4,42,675/- is concerned which was apparently paid by the petitioners under bonafied intention, learned counsel for the respondents submits that the petitioners though not liable for property tax, are liable to pay service tax for the amenities provided and that the amount so paid would be adjusted/set off against the said claim. Learned ASG has no objection for the same. The respondent –authorities shall intimate about the service tax which the petitioners are liable to pay and the amount already paid by the petitioners as noted above shall be adjusted against the said demand. With the aforesaid observations, the petition is disposed of.	The Karnataka High Court recently quashed the demand notices issued to the Union of India by the Mangalore Municipal Corporation towards payment of property tax in respect of the building used for staff quarters. A single judge bench of Justice M G S Kamal by its order dated November 8, 2022, quashed the notices issued by the corporation dated 04-06-2010 and 16-07-2011. However, since the amount was already paid to the corporation by the department, it directed the corporation to adjust the same towards payment of service tax for the amenities provided. The Union government owns buildings in Mangalore City which are used for residential quarters for its employees. The corporation demanded property tax in respect of the building. The department inadvertently made the payment in an aggregate sum of Rs.4,42,675 to the corporation in compliance with the demand notices issued during the year 1994-95 to 31.03.2008. Assistant Solicitor General H Shanthi Bhushan for the petitioners contended that demand made by the respondent No.-2 corporation with regard to payment of property tax was illegal and contrary to the provisions of Article 285 (1) of the Constitution of India. Accordingly, representations were made to the corporation. In response the corporation relying upon the provision of Section 110(1)(j) of the Karnataka Municipal Corporation Act, 1976, rejected the claim of the petitioner No.3 (Deputy Director General Mines and Coastal Surveys Division) and demanded payment of the property tax. Following which it approached the court. Findings: The bench noted that in regards to the residential quarters the building licence has been issued on 26.04.1991 and building has been completed and occupancy certificate has been issued on 10.06.1994. Referring to Article 285 of the Constitution the bench said “It is clear from reading of the clause (1) of Article 285 of the Constitution, that if a building belonging to Union of India was in existence prior to coming into effect of the Constitution and said building unless Parliament may by law otherwise be exempt from levy of tax by the State or any other authorities.” Relying on the coordinate bench judgement in the case of Union of India and others vs. City Municipal Council, Rani Bennur and another reported in AIR 2000 Karnataka 104, wherein it held “Provisions of Article 289 exempt the property of the State and that of Article 285, provide exemption to property of the Union are complementary to each other with a view not to levy the tax by State Legislature on the property of the Union and also by the Parliament on the property of the State. Article 285 refers to the property of the Union. If the property belongs to the Union, then, irrespective of its use, no tax could be levied by the State Legislature or by Municipal Authorities. The concept of use is not provided under Article 285.” Following which it quashed the demand notices. Case Title: Union of India & others And State of Karnataka & others Case No: WRIT PETITION No.33252 OF 2012 Date of Order: 08-11-2022 Appearance: H. Shanthi Bhushan, ASST. Solicitor General of India for petitioners. AGA M.C.Nagashree for R1. Advocate Hareesh Bhandary T for R2 to R4.
2. These appeals by way of special leave petitions are directed against the judgment and order dated 07.11.2019 passed by Delhi High Court dismissing Crl.L.P. Nos.315 to 322 of 2019 filed by the appellant against the order of Metropolitan Magistrate-04 (N.I. Act)/South East, Saket Courts, New Delhi (for short “learned Magistrate”) dated 25.01.2019 dismissing Criminal Complaints Digitally signed by 621742/16, 12742/17 and 12744/17 for non-appearance of the complainant (the appellant herein). 3. The short question that arises for our consideration in these appeals is whether in the facts of the case, the learned Magistrate was justified in dismissing the criminal complaints for non-appearance of the complainant even though the statement of the complainant had been recorded and, vide order of the learned Magistrate dated 26.10.2017, the complainant’s evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973 (for short “the Code”) filed by the complainant. 4. To appropriately address the aforesaid issue, it would be apposite to give a brief sketch of the facts giving rise to these 5. The appellant in all filed eight complaints against the respondents under Section 138 of the Negotiable Instruments Act, 1881. Three complaints were filed in the year 2011, three in the year 2013 and remaining two in the year 2017. Out of the aforesaid eight complaints, in Complaint Case Nos.621742/16, 621743/16 and 621744/16 the complainant was subjected to cross-examination. On 26.10.2017, the learned counsel for the accused made a statement before the learned Magistrate that the cross-examination of CW-1 (the complainant), as made in the above three cases, shall be adopted in the remaining complaints. On basis of the above statement, the complainant’s evidence was closed and the cases were directed to be listed for recording of defence evidence. At that stage, an application was filed by the complainant under Section 311 of the Code for summoning certain witnesses. While the matter was pending at that stage, according to the appellant, appellant’s counsel misled the appellant into a belief that appellant’s presence is not required as a settlement was being negotiated. It is the case of the appellant that in these circumstances, the appellant did not appear and ultimately the complaints were dismissed for non-appearance vide order dated 25.01.2019. 6. The order dismissing the complaints for non-prosecution was subjected to challenge before the Delhi High Court through eight separate petitions which came to be dismissed by a common order dated 07.11.2019 impugned in these appeals. 7. We have heard Shri Maninder Singh, learned Senior Advocate appearing for the appellant; and Mr. Samrat Nigam, learned Advocate for the respondents. 8. The learned counsel for the appellant submitted that the learned Magistrate while dismissing the complaints for non- prosecution lost sight of the proviso to sub-section (1) of Section 256 of the Code. It is submitted that the said proviso enables the Magistrate to dispense with the attendance of the complainant and proceed with the case where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary. It is submitted that as the statement of the complainant had been recorded and the complainant was also subjected to cross-examination, there existed admissible evidence on record in support of the complaint case. In these circumstances, even if the complainant was absent, the learned Magistrate could have proceeded to decide the case on merits. Thus, the order of the learned Magistrate stands vitiated for having failed to notice that there existed evidence on record enabling the matter to proceed even in absence of the complainant under the proviso to sub- section (1) of Section 256 of the Code. It is urged that the High Court also failed to notice the aforesaid aspect; consequently, the order(s) of the High Court as well as of the learned Magistrate are liable to be set-aside and the matter be restored to the stage at which the learned Magistrate had dismissed the complaint. In support of his submissions, the learned counsel for the appellant placed reliance on the decisions of this Court in Associated Cement Co. Ltd. v. Keshvanand1; S. Anand v. Vasumathi Chandrasekar2; and, S. Rama Krishna v. S. Rami 9. Per contra, the learned counsel for the respondent(s) submitted that sub-section (1) of Section 256 of the Code mandates the Magistrate to acquit the accused if, on the day appointed for the appearance of the accused or any day subsequent thereto, to which the hearing may be adjourned, the complainant does not appear. It is submitted that since it is not in dispute that the complainant had filed an application under section 311 of the Code and the complainant remained absent from the proceedings, the learned Magistrate was justified in dismissing the complaint(s) for non-appearance of the complainant. It has also been urged that if there is any technical defect in dismissing the complaint(s) for non-appearance of the complainant, the same be treated as an order of acquittal as per provisions of sub-section (1) of Section 256 of the Code. 10. Having noticed the rival submissions, before we proceed further, it would be useful to notice the provisions of Section 256 of the Code, which are reproduced below: “256. Non-appearance or death of complainant.—(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” A plain reading of the proviso to sub-section (1) of Section 256 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where complainant’s/prosecution’s evidence has been recorded and to decide the case on merits, complainant’s presence is not 11. In the case of S. Anand (supra), addressing a situation where the complainant was absent but had already examined his witnesses, this Court observed as follows: “12. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined. 13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.” After observing as above, in paragraph 15, it was held thus: “15. … when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the Court was required to pass a judgment on merit of the matter.” 12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under: “16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.” After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed. 13. In the instant case, we notice that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant’s cross-examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1’s cross-examination in the above three complaint cases was adopted. There appears no specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere non- appearance of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside. 14. For the reasons above, the order(s) of the High Court as well as of the learned Magistrate are set-aside. The proceedings shall stand restored to their original number(s) on the file of the learned Magistrate and the prosecution shall now proceed from the stage where it was when the order of acquittal/dismissal of the complaint(s) was passed. 15. The appeals are allowed in the aforesaid terms.	Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant, the Supreme Court observed in a judgment today. In this case, the complainant filed eight complaints against the accused under Section 138 of the Negotiable Instruments Act. The statement of the complainant had been recorded and the complainant’s evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973. However, Magistrate later dismissed the criminal complaints for non-appearance of the complainant. The Delhi High Court upheld this order of the Magistrate. Before the Apex Court, it was contended that as the statement of the complainant had been recorded and the complainant was also subjected to cross-examination, there existed admissible evidence on record in support of the complaint case. In these circumstances, even if the complainant was absent, the Magistrate could have proceeded to decide the case on merits, it was contended. Referring to the decisions in Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687, the bench of Justices Sudhanshu Dhulia and Manoj Misra said: it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed. The bench noted that the trial court as well as the High Court did not take into consideration that the complainant’s cross-examination had been over in Complaint Cases and no cross-examination was sought in other cases. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant, the bench observed while allowing the appeal. Case details BLS Infrastructure Limited vs Rajwant Singh \| (SC) 153 \| CrA 657-664 OF 2023 \| 1 March 2023 \| Justices Sudhanshu Dhulia and Manoj Misra For Petitioner(s) Mr. Maninder Singh, Sr. Adv. Mr. Neeraj Gupta, Adv. Mr. Deepak Goel, AOR Ms. Urvashi Sharma, Adv. For Respondent(s) Mr. Maibam Nabaghanashyam Singh, AOR Mr. Amit Punj, Adv. Headnotes Code of Criminal Procedure, 1973 ; Section 256 - Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant - Referred to Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687. (Para 12)
N: Criminal Appeal No. 117 of 1978. (Appeal from the Judgment and order dt. 5 12 77 of the Punjab & Haryana High Court in Criminal Misc. Petition No. 3892 M of 1976). R. section Narula, M. section Marwah and D. section Narula for the appellant. section K. Mehta, K. R. Nagaraja and P. N. Puri for the respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Jagir Singh, the appellant in this appeal by special leave, was married to Kirpal Kaur in 1951. Husband and wife became estranged in 1954, since when they have been living separately. Ranbir Singh, the issue of the marriage, was born in 1954. Jagir Singh married again and it is said that he has a son and a daughter by the second wife. On 25th May, 1971, Kirpal Kaur and Ranbir singh filed an application for maintenance under Section 488 of the Criminal Procedure Code, 1898. One of the defences raised by the appellant to that application was that Ranbir Singh was a major and, therefore, not entitled to claim maintenance under Section 488. The Magistrate held that Ranbir Singh was a student who was unable to maintain himself and, therefore, the question whether he was a major or a minor was immaterial. On 19th May, 1973, he made an order awarding maintenance at the rate of Rs. 200/ per month to Kirpal Kaur and Rs. 75/ per month to Ranbir Singh, Jagir Singh filed a revision petition before the Sessions Judge. By consent of the parties, the Sessions Judge made a reference to the High Court recommending that the award of maintenance in favour of the wife should be reduced to Rs. 150/ per month and that the award of Rs. 75/ per month to the son should be confirmed. The reference was accepted by the High Court. The Criminal Procedure Code 1898 was repealed and the Criminal Procedure Code 1974 was enacted in its place. The new Code came into force on 1st April, 1974. On 3rd May, 1974, the appellant made an application before the Magistrate, purporting to be under Section 127 of the new Code, for cancellation of the order of maintenance in favour of the son on the ground that the son had attained majority 285 and did not suffer from any infirmity or abnormality which prevented A him from maintaining himself. It was claimed on behalf of the appellant that under the new Code it was not permissible to award maintenance or enforce an order to maintenance in favour of a child who had attained majority and who was not unable to maintain itself by reason of any physical or mental abnormality or injury. On 3rd June, 1974, the son filed a counter admitting that he had attained majority but claiming that he was still a student, unable to maintain himself. The son claimed that the order in his favour had been validly passed under the old Code and continued to remain in force notwithstanding the enactment of the new Code. On 9th May, 1975, the learned Magistrate allowed the application of the father under Section 127 of the Criminal Procedure Code 1974 and cancelled the order for maintenance made earlier in favour of the son. Ranbir Singh, the son, filed a Revision Application before the Sessions Judge. It was dismissed on 12th March, 1976. The learned Sessions Judge held that the order made under Section 488 of the old Code could survive under Section 484(2) of the new Code if there was a corresponding provision under the new Code which enabled the award of maintenance to a major child. Since there was no such corresponding provision the order under Section 477 in favour of Ranbir Singh ceased to be in force. Ranbir Singh then filed a Revision Application before the High Court of Punjab and Haryana which was allowed on 5th December, 1977. The High Court held that notwithstanding the change in the law which disentitled a major child from claiming maintenance, Section 125 of the new Code did correspond to Section 488 of the old Code. Therefore, the order for maintenance in favour of Ranbir Singh was saved by Section 484(2) of the Code of 1974. 1974 Jagir Singh has preferred this appeal after obtaining special leave from this Court under Article 136 of the Constitution. Shri R. section Narula, learned Counsel for the appellant contended that the Revision Application to the High Court was incompetent as it was barred by the provisions of Section 397(3) of the Code of Criminal Procedure 1974. He argued that the right of the respondent to invoke the revisional jurisdiction of a superior Court became exhausted when he invoked the revisional jurisdiction of the Sessions Judge. Shri Narula further contended that under Section 125 of the Criminal Procedure Code 1974, a major son who did not suffer from any physical or mental abnormality or injury which prevented him from maintaining himself was not entitled to get an order for maintenance in his favour and that an order made in favour of such a son under Section 488 Criminal Procedure Code of 1898 was not saved either by Section 484(2) of the Code of Criminal Procedure 1974 or Sections 6 and 24 286 of the General Clauses Act. Shri section K. Mehta, learned Counsel for the respondent submitted that the revision application before the High Court could be treated and maintained as one directed against the order of the Sessions Judge rejecting the Revision Application made to him. In any case he argued that the Revision Application could be treated as one under Article 227 of the Constitution. He contended that the order of the Magistrate under Section 488 of the Criminal Procedure Code 1898 continued to be in force and that it could not be cancelled merely because Section 125 did not provide for the award of maintenance to a major son who did not suffer from any abnormality or injury. The first question for consideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 397(3) of the Criminal Procedure Code 1974. Section 397 which corresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with concurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction The District Magistrate who also had revisional jurisdiction under Section 435 of the Code of Criminal Procedure 1898 is now divested of such jurisdiction. In addition, there are, in the 1974 Code two important change Both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice. The first change is that introduced by Section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The second is that introduced by Section 397(3) which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge, and further application by the same person shall be entertained by the other of them. We are concerned with this provision in this appeal. The object of Section 397(3) is clear. It is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation. We may also mention here that even under Section 435 of the previous Code of Criminal Procedure, while the Sessions Judge and the District Magistrate had concurrent jurisdiction, like present Section 397(3) previous Section 435(4) provides that if an application under the Section had been made either to the Sessions 287 Judge or District Magistrate no further application shall be entertained by the other of them. In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead or an one directed against the order of the Magistrate We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a "well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox vs Bishop of Chester(1) "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court 's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge 's order. If the` revision application to the High Court could not be maintained under the provisions of the Criminal Procedure Code, could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent ? In the first place the High Court did not purport to exercise its power of superintendence under Article 227. The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power. In the second place the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of Superintendence was not meant to circumvent statutory law. In the third place it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed. By the 42nd Amendment Act clause (5) was added in Article 227 of the Constitution and it says "Nothing in this article shall (1) (1824) 2 B & 635. 288 be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision". Clause (5) of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub Section (2) of Section 224 of the Government of India Act, 1935 which it was held conferred powers of administrative superintendence only and not the power of Judicial Superintendence. In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act and it was therefore, argued by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment. We have serious doubts. Article 227, before the 42nd Amendment, gave no right to any party. An application invoking the High Court 's power of Superintendence did not create any vested right in the suitor. There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment. It was just a question whether the High Court possessed the power of Superintendence on the date of the High Court 's order. There is no dispute that it did not. We do not wish to pursue the matter further as in our view there was no case to warrant interference under Article 227 of the Constitution. In view of the foregoing discussion, the revision application to the High Court must be held to be incompetent. In that view it is unnecessary to go into the question whether the original order under Section 488, Criminal Procedure Code, 1898 in favour of the respondent could be cancelled under Section 127 of the Criminal Procedure Code 1974, But the lower Courts went into the question at some length and detailed submissions were made before us. We will express our opinion briefly. Section 484(1) of the 1974 Code repeals the Code of Criminal Procedure 1898. Section 484(2) (a) provides for the continuance and disposal of pending cases in accordance with the provisions of the old Code. Section 484(2)(b) provides that 'all notifications published,, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments made under the old Code and which are in force immediately before the commencement ' of the new Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of the new Code. In the present case the order of the Magistrate under Section 488 of the old Code awarding maintenance to the respondent was made on 19th May, 1973. The new Code came into force on 1st April, 1974. Therefore, the order was in force immediately before the commencement of the new Code. 289 It must, therefore, be deemed to have been made under the corresponding provision of the new Code. The question,, therefore, is whether there is any provision of the new Code corresponding to the provision of the old Code under which maintenance was awarded to the respondent. As we said, the respondent was awarded maintenance under Section 488 of the Criminal Procedure Code 1898. Under Section 488 Criminal Procedure Code 1898 a person having sufficient means and neglecting or refusing to maintain his wife or his legitimate or illegitimate child unable to maintain itself could be ordered to make a monthly allowance for the maintenance of his wife or such child. The word child used in Section 488 led to some controversy whether a person could be ordered to pay maintenance to a child who had attained majority but who was unable to maintain itself. In Nanak Chand vs Chandra Kishore Agarwal & Ors. (1) the Supreme Court held that the word 'child ' in Section 488 did not mean a minor son or daughter and that the real limitation was contained in the expression 'unable to maintain itself. Irrespective of whether a son or daughter was a major or minor, a father was bound to maintain the son or daughter if such son or daughter was unable to maintain himself or herself. Section 125 of the 1974 Code makes a slight departure. Under this provision child who has attained majority is not entitled to be awarded maintenance unless such child is unable to maintain itself by reason of any physical or mental abnormality or injury. According to Shri R. section Narula in view of the change it cannot be said that the new Code contains ally provision corresponding to the provision in the old Code which authorised the award of maintenance to a child who had attained majority and who was unable to maintain itself even if such child did not suffer from any physical or mental abnormality or injury. Therefore, according to Shri Narula, Section 484(2) (b) does not save all order awarding maintenance in favour of a child who has attained majority and who does not suffer from any physical or mental abnormality or injury. It is difficult to agree with the submission of Shri Narula. To accept the submission would be to give the expression "corresponding provision" the meaning "identical provision". Whenever an Act is repealed and re enacted there are bound to be changes and modifications. To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a corresponding provision would be to practically mullify the effect of a "Repeal and Savings" provision like Section 484(2) (b) of the new Code. In the Shorter oxford English Dictionary Third Edition Vol. I, the word 'correspond ' is said to mean ' (1) to answer to something else in the way H (1) A.l. R 290 of fitness; to agree with; be conformable to; be congruous or in harmony with. (2) To answer to in character or function; to be similar to '. In Butterworths 'Words and Phrases Legally defined ' Second Edition Vol. 1, it is said " 'to correspond ', does not usually, or properly, mean 'to be identical with ', but 'to harmonise with ', or 'to be suitable to ' " and reference is made to Sackville West vs Holmesdale (Viscount) (1). We are, therefore, of the view that Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding the fact that under the new Code a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father. We also note that there are no words in Section 484(2) (b) limiting its application to orders made and sentences passed which are not inconsistent with the provisions of the new Code. There are no such limiting words as may be found as for example in Section 24 of the General Clauses Act which limits its application to an order, rule, etc. "so far as it is not inconsistent with the provisions re enacted". This does not mean that statutory instruments made under the old Code and which are inconsistent with the provisions of the new Code continue to be effective. All that Section 484(2) (b) says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code. Their validity will have to be tested like any other statutory instruments made under the provisions of the new Code and they will have to answer the test whether they are consistent with the provisions of the new Code. But, in the case of Judicial orders made and sentences passed such orders and sentences which have attained finality and which have created rights in parties do not have to answer the test of being consistent with the provisions of the new Code. We, therefore, hold that the order for maintenance made in favour of the respondent must be deemed to be an order made under Section 125 of the new Code and that it does not automatically cease to be effective on the coming into force of the new Code. The High Court arrived at this conclusion and thought that it was sufficient to hold in favour of the respondent and to allow the Revision Application. We do not think that the High Court was right in stopping there. The High Court should have further considered the question whether the order for maintenance which was deemed to be an order under Section 125 of the new Code could not be cancelled under the provisions of Section 127 of the new Code. Once the, order under Section 488 is deemed to be an order under Section 125 of the new Code, it must be so deemed for all purposes including the application of Section 127 of the new Code. Section 127 provides for consequential orders upon proof of a change in the circumstance of any person (1) (1878) L.R. 4 l. 543. 291 receiving, under Section 125, a monthly allowance, or ordered under the A same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be. The admitted attainment of majority of the respondent and the change of the law were surely circumstances which entitled the appellant to have the order in favour of the respondent cancelled. We accordingly allow the appeal and set aside the judgment of the High Court. B M.R. Appeal allowed.	Ranbir Singh is Jagir Singh 's son from his separated first wife. Ill 1971 he and his mother applied for maintenance under section 488 of Cr.P.C., 1898. Although Ranbir Singh was a major, maintenance was awarded to him on the ground that he was a student unable to maintain himself. In April 1974, the new Cr. P.C. came into force, and under section 127 jagir Singh applied for cancellation of the maintenance order, on the ground that the major son WAS not prevented from maintaining himself through any infirmity or abnormality, and is not entitled to maintenance under the new code. The respondent contended that the maintenance order had been validly passed under the old Code, and continued to remain in force notwithstanding the enactment of the new Code but the Magistrate cancelled the maintenance order, Ranbir Singh 's Revision Application was dismissed by the Sessions Court, on the ground that the order made under section 488 of the Cr.P.C., 1898 would not survive under section 484(2) of the Cr. P.C. 1974 due to the absence of a corresponding provision under the new Code, enabling his maintenance. He then applied to the High Court for a Revision. The High Court allowed the Revision holding that 9. 125 of the Cr. P.C., 1974 did correspond with section 488 of the Cr. P.C. 1898. The appellant contended that Ranbir Singh 's Revision application to the High Court was barred by section 397(3), Cr.P.C., 1974, and was incompetent, and that his right to invoke revisional jurisdiction of a superior court became exhausted when he moved the Sessions Court in Revision. He further contended that the maintenance order was not saved either by section 484(2), Cr. P.G 1974 or section 6 and 24 of the General Clauses Act. The respondent submitted that his Revision application before the High Court could be treated and maintained, as, one directed against the Sessions Judge 's order rejecting his Revision application, or It could be treated as one under article 227 of the Constitution. Allowing the appeal, the Court. ^ HELD: (1) The power under Act. 227 is discretionary. The power of judicial superintendence under it could only be exercised sparingly to keep subordinate courts and Tribunals within the bounds of their authority, and not to collect mere errors. Where the statute banned the exercise of revisional 283 powers by the High Court, it would require very exceptional circumstances to A warrant interference under article 227, since the power of superintendence was not meant to circumvent statutory law. By the 42nd. Amendment Act, clause (5) was added in article 227, which is a verbatim reproduction of section 224(2) of the Government of India Act, 1935, conferring powers of administrative superintendence only, and not the power of judicial superintendence. [287F H, 288A] (2) In the Cr. Of 1974 the District Magistrate is divested of his revisional jurisdiction over inferior criminal courts. In addition, there are two important changes apparently designed to avoid delay and to secure prompt justice. The first change is introduced by section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The second change is introduced by section 397 (3) under which any person aggrieved by an order of an inferior criminal court, is given the option to approach either the Sessions Judge or the High Court, and once he exercises the option, he is precluded from invoking the revisional jurisdiction of the other authority. The object is, to prevent a multiple exercise of revisional powers and to secure early finality to orders. [286C F] For vs Bishop of Chestor, ; ; Maxwell (11th Edn. page 109); applied. (3) Whenever an Act is repealed and re enacted, there are bound to be changes and modifications. To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a "corresponding provision", would be to practically nullify the effect of a "Repeal and Savings" provision like section 484 (2) (b) of the new Code. "To correspond" does not usually, or properly, mean to be identical with but to harmonise with, or to be suitable to. There are no words in section 484 (2) (b) limiting its application to orders made, and sentences passed, which are not inconsistent with the provisions of the new Code. All that section 484(2)(b) says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code. Their validity will have to be tested like any other statutory instrument made under the provisions of the new Code. There validity will have to be tested like any other statutory made under the provisions of the with the provisions of the new Code. and they will have to answer the test whether they are inconsistent with the provisions of the new Code. But in ease of judicial orders made, and sentences passed, such orders and sentences which have attained finality and which have created rights in parties, do not have to answer the test of being consistent with the provisions of the new Code. [289F H, 290B E] Butterworth 's (Words and Phrases legally defined)(2nd Edn Vol. I), Shorter oxford English Dictionary (3rd Edn. I); Sackville West vs Holmsdale (Viscount), [1870] LR. ; applied. (4) Section 125 of the new Code corresponds to section 488 of the Cr.P.C., 1898 notwithstanding the fact that under the Cr.P.C. Of 1974, a child who has attained majority, and who does not suffer from any infirmity, is not entitled to be maintained b`y the father. Once an order under section , is deemed to be an order under section 125 of the Cr. P.C. 1974, it must be to deemed for all purposes, including the application of section 127 of the new Code. [290B, G] 20 817 SCI/78 284 Nanak Chand vs Chandra Kishore Aggarwal & Ors., ; ; referred to.
Civil Appeal No. 535 of 1964. Appeal by special leave from the judgment and order dated July 25, 1961 of the Allahabad High Court in Sales Tax Reference No. 460 of 1954. A. V. Viswanatha Sastri and K. K. Jain for appellant. C. B. Agarwala and 0. P. Rana, for respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad passed 608 in a reference made to it under section II of the U.P. Sales Tax Act, 1948 (U.P. Act XV of 1948) hereinafter referred to as the Act. In this reference the following question was referred by the Judge (Revision), Sales Tax at the instance of the appellant,Modi Sugar Mills Ltd., hereinafter called the assessee: "Whether a dealer who has been assessed to tax on the turnover of the previous year according to his election can change his option and elect the assessment year by filing quarterly returns without the previous sanction of Sales Tax Commissioner The High Court answered the question in the negative. The answer to this question depends upon the interpretation of section 7(1) of the Act, and rr. 39, 40 and 41 of the U.P. Sales Tax Rules, and form IV prescribed under these rules. These provisions are as under: "section 7 (1). Subject to the provisions of section 18, every dealer whose turnover in the previous year is Rs. 12,000 or more in a year shall submit such return or returns of his turnover of the previous year within sixty days of the commencement of the assessment year in such form and verified in such manner as may be prescribed : Provided that the Provincial Government may prescribe that any dealer or class of dealers may submit, in lieu of the return or returns specified in this section, a return or returns of his turnover of the assessment year at such intervals, in such form and verified in such manner as may be prescribed, and thereupon all the provisions of this Act shall apply as if such return or returns had been duly submitted under this Section. Provided further that the assessing authority may in his discretion extend the date of the submission of the return by any person or class of persons. Rule 39 : Election of Assesment year. (1) Any dealer may elect to submit returns of his turnover of the assessment year in lieu of the returns of the turnover of the previous year, and shall signify such election in the return filed by him in Form IV. 609 Provided that a dealer who did not carry on business during the whole of the previous year shall elect to submit his returns of the assessment year. (2) A dealer who has once signified his election under sub rule (1) shall not again exercise his option so as to vary the basis of assessment Provided that the Sales Tax Commissioner may, for reasons to be recorded in writing and on such conditions as he deems fit permit a dealer to exercise a fresh option. Rule 40. Submission of returns Every dealer who elects to submit return of his previous year shall, within sixty days of the commencement of the assessment year, submit to the Sales Tax Officer a return in Form IV showing his turnover for the previous year Provided that no dealer whose turnover in the previous year was less than Rs. 15,000 shall be required to furnish such returns. Rule 41. Returns of assessment year. (1) Every dealer whose estimated turnover during the assessment year is not less than Rs. 15,000 and who elects to submit returns of such year shall before the last day of July, October, January and April submit to the Sales Tax Officer, a return of his gross turnover for the quarters ending June 30, September 30, December 31 and March 31, respectively, in Form IV Provided that every dealer or firm, to whom the pro visions of sub section (3) of Section 18 are applicable shall submit such returns within seven days of the expiry of each month during the year in which the business is commenced. " Before we deal with the interpretation of the section and the rules it is necessary to give a few relevant facts. It appears that for the assessment year 1948 49, 1949 50 and 1950 51, the assessee was assessed on the basis of returns filled for the turnover of the previous year relev ant to each of these assessment years. For the assessment year 1951 52, however, the assessee purporting to make an election under r. 39 of the rules filed returns of his turnover of the assessment year instead of the returns of the turn 610 over of the previous year. The Judge (Revision) held that without sanction of the Sales Tax Commissioner the assessee was not entitled to do so. Mr. Sastri, the learned counsel for the assessee, submits that the above rules should be interpreted as follows : Under sub rule (1) of r. 39 the election is to Me returns of the turnover of the assessment year instead of returns of the turnover of the previous year and not vice versa. Sub rule (2) also deals with the same election, i.e., the election to file returns of the turnover of the assessment year instead of the turnover of the previous year. Rule 40 does not displace the above reading of r. 39 because it covers the case of every dealer who wishes to submit a return of the turnover of the previous year. There is no other rule which deals with such a dealer, and he says that the word 'elects ' may perhaps have reference to the election mentioned in form IV which we will presently consider. At any rate, he says that sub r. (2) of r. 39 has nothing to do with the election mentioned in r. 40. He then submits that r. 41 is concerned with the dealer who has elected under r. 39(1) to submit returns of the turnover of the assessment year and this rule provides various matters in this connection. The learned counsel for the State, Mr. C. B. aggarwala, on the other hand, contends that section 7 of the Act, read with the rules, gives a dealer an option to file returns in respect of the turnover of the previous year or returns of the turnover of the assessment year, and he says that this option is and can only be exercised in the first year when a dealer becomes taxable under the Act, and it is this option or election that is covered by sub rule (2) of r. 39. He relies strongly on form IV in which the following lines occur "I have elected to submit return of my turnover of the previous year ending/month or months of the assessment year". In the alternative he contends that even if r. 3 9 (2) does not cover the filing of the returns of the previous year, according to general principles the assessee having exercised an option to be assessed in respect of the turnover of the previous year cannot now change the basis of assessment. In our opinion the Judge (Revision) was in error in holding that the assessee was not entitled to make an election under r. 39 (1) without the sanction of the Sales Tax Commissioner, and the answer to the question referred to the High Court should be in favour of the assessee. Rule 39(2) specifically mentions an elec 611 tion under sub r. (1) and there is only one kind of election under r. 39(1) and that is for a dealer to elect to submit returns of his, turnover for the assessment year in lieu of the returns of the turnover of the previous year. In other words, under r. 39(1) the, dealer makes a choice that he will be assessed in respect of the turnover not of the previous year, which is normally the rule under section 7, but in respect of the return of the turnover of the assessment year. It seems to us that r. 39(2) covers only the case where: election has been made by a dealer to be assessed in respect of the turnover of the assessment year. It is true that r. 40 also uses the word 'elects ' but this may have reference to the lines in form IV which we have already reproduced above. But assuming that when a dealer submits a return in respect of the previous year under r. 40 and he is treated to have elected within r. 40, yet there is no provision like r. 39(2) which debars him from exercising the option under r. 39(1). In our opinion an express provision like r. 39(2) was necessary to prevent a dealer from exercising the option given to him under r. 39(1). We do not express any opinion whether such a rule could validly be made under section 7 (1). We are not impressed by the argument of Mr. Aggarwal that general principles debar the assessee from exercising the option under r. 39 (1). It is a statutory right given to the assessee and the general principles, if applicable, cannot displace the statutory right. We may mention that the reasoning in the judgment under appeal has been doubted in an unreported judgment of the Allahabad High Court in M/s Mahesh Company Kahoo Kothi Kanpur vs The Commissioner of Sales Tax, Uttar Pradesh(1). In the result we accept the appeal, and answer the question.referred to the High Court in the affirmative. The appellant will have his costs here and in the High Court.	For the assessment years 1948 49, 1949 50 and 1950 51, the appellant was assessed on the basis of returns filed for the turnover of each relevant previous year. For the assessment year 1951 52, the appellant, purporting to make an election under r. 39(1) of the U.P. Sales Tax Rules, filed returns of his turnover of the assessment year instead of the previous year. The Judge (Revision) Sales Tax held that without the sanction of the Sales Tax Commissioner under r. 39(2), the appellant was not entitled to do so, and the High Court also, on a reference, held against the appellant. In appeal to this Court, HELD : The answer of the High Court should have been in favour of the appellant. [610 HI Under r. 39(1), the dealer makes a choice that he will be assessed in respect of the turnover not of the previous year, which is the normal position under section 7, but in respect of the turnover of the assessment year. Rule 39(2), requiring the sanction of the Sales Tax Commissioner covers only the, case where such election has been made under r. 39(1), that is, where the election has been made by a dealer to be assessed in respect of the turnover of the assessment year, and the dealer wishes to exercise a fresh option. Even assuming that, when a dealer submits a return in respect of the previous year under r. 40 be is treated to have elected within that rule, yet, there is no provision like r. 39 (2) which debars him from exercising the option under r. 39(1). In the absence of an express provision like r. 39(2), general principles cannot debar an assessee from exercising a statutory right given to him. [611 A E]
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.10.2019 passed by the High Court of Kerala at Ernakulam in OP (CAT) No.171 of 2019, by which the High Court has allowed the said original petition (OP) and set aside the order passed by the learned Central Administrative Tribunal, Ernakulam Bench and has declared that respondent Nos.1 & 2 herein – original petitioners are entitled to grade pay of Rs.6600/ on their third financial upgradation as per the Modified Assured Career Progression (MACP) Scheme and they be paid the pension accordingly with effect from April, 2015, the Director, Directorate of Enforcement, New Delhi and another – original respondents before the High Court, have preferred the present appeal. 2. That the private respondent Nos.1 & 2 herein were appointed as Assistant Enforcement Officer (AEO) in the year 1976 and 1977, respectively. That in the year 2009, the Government of India – Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training) notified the MACP Scheme for the Central Government Civilian Employees. The Scheme further provided as per clause 8.1 (which is relevant so far as the present matter is concerned) ‘consequently upon the implementation of Sixth CPC’s recommendations, grade pay of Rs.5400 is now in two pay bands viz., PB2 and PB3. It further provided that the grade pay of Rs.5400 in PB2 and Rs.5400 in PB3 shall be treated as separate grade pays for the purpose of grant of upgradations under MACP Scheme’. However, it so happened that while granting third financial upgradation vide order dated 17.11.2009, the private respondents herein and others were granted the grade pay of Rs.6600 for PB3 under MACP Scheme, though as per clause 8.1 PB3 carried the grade pay of Rs.5400. However, on the objection being raised by the Audit Department their grade pays (GP) of Rs.6600 in PB3 was modified/corrected as GP of Rs.5400 as per clause 8.1. Therefore, respondent Nos.1 and 2 herein approached the Central Administrative Tribunal, Ernakulam Bench and prayed to continue the GP of Rs.6600 as per the earlier order dated 17.11.2009 and not to make any recovery. A decision of the Madras High Court was pressed into service by which a similar order of withdrawing the GP of Rs.6600 and to grant GP Of Rs.5400 for PB3 was set aside. On relying upon the clause 8.1 of the MACP Scheme by which the implementation of Sixth CPC’s recommendations, grade pay of Rs.5400 was in two pay bands i.e., PB2 and PB3 and for grant of upgradation under MACP Scheme they shall be treated as separate grade pays, the learned Tribunal dismissed the original application (OA). 3. Feeling aggrieved and dissatisfied with the judgment and order passed by the Central Administrative Tribunal dismissing the said OA, respondent Nos.1 & 2 herein preferred the original petition before the High Court. By the impugned judgment and order and ignoring clause 8.1 of the MACP Scheme the High Court has allowed the said petition by observing that the next promotion post of Assistant Director which is in the PB3 would be that of Deputy Director which carries a grade pay of Rs.6600, when the third financial upgradation is due to an employee, it has to be of the next promotional post in the hierarchy as per the Recruitment Rules. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the department has preferred the present appeal. 4. Ms. Madhavi Divan, learned ASG appearing on behalf of the appellants has vehemently submitted that the impugned judgment and order passed by the High Court is just contrary to the decision of the Delhi High Court in the case of National Council of Educational Research & Training as well as to the decision of this Court in the case of Union of India and others Vs. M.V. Mohanan Nair (2020) 5 SCC 4.1 It is submitted that on interpretation of very MACP Scheme, it is observed and held by this Court that the employees are entitled to the grade pay as provided under the MACP Scheme which has been framed on the recommendations of the pay commission. It is submitted that on interpreting MACP Scheme, it is specifically observed and held by this Court that MACP Scheme envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 and has nothing to do with the next promotional post. 4.2 It is submitted that in the present case the High Court has allowed the grade pay of Rs.6600. However, as per clause 8.1, PB2 and PB3 carried grade pay of Rs.5400 and it specifically provided that the grade pay of Rs.5400 in PB2 and grade pay of Rs.5400 in PB3 shall be treated as separate grade pays for the purpose of grant of upgradation under MACP Scheme. It is submitted that therefore respondent Nos.1 & 2 – original petitioners as per the MACP Scheme shall be entitled to the grade pay of Rs.5400 i.e., next grade pay for PB3. It is submitted that as such by the impugned judgment and order and directing to grant grade pay of Rs.6600 the High Court has modified the MACP Scheme and has granted the benefit of three steps upward. 4.3 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeal. 5. The present appeal is vehemently opposed by Shri Mathai Paikaday, learned Senior Advocate appearing on behalf of the private respondent Nos.1 & 2 herein. 5.1 It is vehemently submitted by learned Senior Advocate appearing on behalf of the private respondent Nos.1 & 2 that the employee shall be entitled to the next higher pay and the submissions made on behalf of the appellants that both PB2 and PB3 shall carry grade pay of Rs.5400 is accepted in that case the purpose of highergrade pay shall be frustrated. It is submitted that when the next higher grade pay would be Rs.6600, the High Court has rightly directed to grant grade pay of Rs.6600. 5.2 It is submitted that it is true that the High Court has wrongly used the word next promotion post. It is submitted that the question is not of next promotional post but the question is of next higher grade pay. 5.3 In the alternative it is prayed by the learned Senior Advocate appearing on behalf of respondent Nos.1 & 2 and relying upon the decision of this Court in the case of State of that if this Court is inclined to accept the submissions made on behalf of the appellants and set aside the judgment and order passed by the High Court holding that respondent No.1 & 2 shall be entitled to grade pay of Rs.5400, in that case no recovery be ordered as respondent Nos.1 & 2 have already retired and the difference would be of Rs.1200 approximately per month so far as the pension is concerned. 6. We have heard learned counsel appearing on behalf of the respective parties. 7. At the outset it is required to be noted that the issue involved in the present appeal is as such squarely covered by the decision of this Court in the case of M.V. Mohanan Nair (supra). By detailed judgment and order this Court has interpreted the very MACP Scheme and it is observed and held that under the MACP Scheme employees are entitled to the immediate next higher grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. It is specifically observed and held by this Court in the aforesaid decision that MACP has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in the CCS (Revised Pay) Rules, 2008. As per clause 8.1 of the MACP Scheme ‘consequently upon the implementation of Sixth CPC’s recommendations, grade pay of PB2 and PB3 would be Rs.5400. It specifically provides that the grade pay of Rs.5400 in PB2 and Rs.5400 in PB3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme’. Therefore, respondent Nos.1 &2 as PB2 shall be entitled to the next grade pay of Rs.5400 as per clause 8.1 and as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. The High Court has allowed the grade pay of Rs.6600 by considering the next promotion post of Assistant Director i.e., Deputy Director which carries a grade pay of Rs.6600. However, the aforesaid interpretation would be contrary to the MACP Scheme. On considering the relevant clauses of the MACP Scheme, it appears that the MACP Scheme envisages placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Thus, the High Court has committed a grave error in allowing the grade pay of Rs.6600 the grade pay which was available to the next promotional post as Deputy Director. Respondent Nos.1 & 2 as per PB2 were entitled to the grade pay of Rs.5400 as PB 3 as per clause 8.1. 8. By the impugned judgment and order and while granting grade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the High Court has modified the MACP Scheme which has been framed by the Government on the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme. As observed and held by this Court in the case of M.V. Mohanan Nair (supra) the ACP which is now superseded by MACP Scheme is a matter of Government policy and interfering with the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme would have serious impact on the public exchequer. It is further observed that the recommendations of the pay commission for the MACP Scheme have been accepted by the Government and implemented. It is further observed that therefore the High Court has no jurisdiction to interfere with the Government policies in the form of MACP Scheme which was after accepting the Sixth Central Pay Commission. In view of the above and for the reasons stated above and the binding decision of this Court in the case of M.V. Mohanan Nair (supra) with which we also agree, the impugned judgment and order passed by the High Court granting grade pay of Rs.6600 to respondent Nos.1& 2 is unsustainable and deserves to be quashed and set aside. However, we observe that the view which we are taking is on the premise that neither the MACP Scheme nor Clause 8.1 is under challenge and as per the law laid down by this Court in M.V. Mohanan Nair (supra), an employee is entitled to the higher grade pay as provided under MACP Scheme, more particularly, as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Therefore, so long as Clause 8.1 and the grade pay mentioned as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 stands, the employee shall be entitled to the grade pay accordingly. Therefore, if any of the employees is aggrieved by Clause 8.1 and if in his opinion, there is any anomaly the same has to be challenged by the aggrieved employee, which can be considered in accordance with law and on its own merits. However, as the same is not under challenge, we have to go by the MACP Scheme as it is. 9. In view of the above and for the reasons stated above the impugned judgment and order passed by the High Court is hereby quashed and set aside and the judgment and order that of the Central Administrative Tribunal is hereby restored. It is observed and held that on implementation of MACP Scheme respondent No.1 and 2 herein shall be entitled to the grade pay of Rs.5400 and not of Rs.6600 as claimed by them. Their pensions be refixed accordingly. However, it is observed that as respondent Nos.1 & 2 are the retired employees and till date they have received the pension considering the grade pay of Rs.6600 and being retired persons it will be very difficult for them to refund the difference in the pay pension, in the peculiar facts and circumstances of the case we direct that there shall be no recovery of the difference in the pension between the grade pay of Rs.5400 and grade pay of Rs.6600 for the period prior to December, 2021. However, on refixation of the pension as per the present judgment and order, fixing their grade pay of Rs.5400 they shall be paid the pension accordingly from January, 2022 onwards. The present appeal is allowed accordingly, however, with the above observations and directions. No costs.	The Supreme Court has observed that Modified Assured Career Progression (MACP) Scheme has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands.The bench of Justices MR Shah and Sanjiv Khanna was considering a civil appeal assailing Kerala High Court's order... The Supreme Court has observed that Modified Assured Career Progression (MACP) Scheme has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands. The bench of Justices MR Shah and Sanjiv Khanna was considering a civil appeal assailing Kerala High Court's order dated October 23, 2019 ("impugned judgment"). In the impugned judgment, the High Court while setting aside Central Administrative Tribunal's order declared that the respondents are entitled to grade pay of Rs 6600 on their third financial upgradation as per the MACP Scheme and thereby be paid the pension accordingly with effect from April, 2015. While allowing the appeal, the bench in The Director, Directorate of Enforcement & Anr. v. K. Sudheesh Kumar & Ors said, "By the impugned judgment and order and while granting grade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the High Court has modified the MACP Scheme which has been framed by the Government on the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme. As observed and held by this Court in the case of M.V. Mohanan Nair (supra) the ACP which is now superseded by MACP Scheme is a matter of Government policy and interfering with the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme would have serious impact on the public exchequer. It is further observed that the recommendations of the pay commission for the MACP Scheme have been accepted by the Government and implemented. It is further observed that therefore the High Court has no jurisdiction to interfere with the Government policies in the form of MACP Scheme which was after accepting the Sixth Central Pay Commission. In view of the above and for the reasons stated above and the binding decision of this Court in the case of M.V. Mohanan Nair (supra) with which we also agree, the impugned judgment and order passed by the High Court granting grade pay of Rs.6600 to respondent Nos.1& 2 is unsustainable and deserves to be quashed and set aside." Factual Background The Government of India – Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training) notified the MACP Scheme for the Central Government Civilian Employees. The Scheme provided for clause 8.1 as per which, consequently upon the implementation of Sixth CPC's recommendations, grade pay of Rs.5400 was supposed to be paid in two pay bands viz., PB2 and PB3. It further provided for treating grade pay of Rs.5400 in PB2 and Rs.5400 in PB3 as separate grade pay for the purpose of grant of upgradation under MACP Scheme. While granting third financial upgradation vide order dated November 17, 2009 the respondents who were appointed as Assistant Enforcement Officer in 1976 and 1977 were granted the grade pay of Rs.6600 for PB3 under MACP Scheme, though as per clause 8.1 PB3 carried the grade pay of Rs.5400. However, on the objection being raised by the Audit Department their grade pay (GP) of Rs.6600 in PB3 was modified/corrected as GP of Rs.5400 as per clause 8.1. Therefore, respondent(s) approached the Central Administrative Tribunal, Ernakulam Bench praying to continue the GP of Rs.6600 as per the earlier order and not to make any recovery. The Tribunal, relying upon clause 8.1 of the MACP Scheme, dismissed the original application (OA). Aggrieved, the respondents approached the High Court. The High Court on October 23, 2019 while ignoring clause 8.1 of the MACP Scheme allowed the petition by observing that the next promotion post of Assistant Director which was in the PB3 would be that of Deputy Director which carried a grade pay of Rs.6600, when the third financial upgradation was due to an employee, it had to be of the next promotional post in the hierarchy as per the Recruitment Rules. Aggrieved by the High Court's judgment, the Directorate of Enforcement ("Department") approached the Top Court. Submission Of Counsels Appearing for the Department, Additional Solicitor General Madhavi Divan submitted that the Top Court on the interpretation of MACP Scheme had observed that the employees are entitled to the grade pay as provided under the MACP Scheme which has been framed on the recommendations of the pay commission. She further contended that the High Court's decision was contrary to the Delhi High Court's judgment in National Council of Educational Research & Training & Anr. Vs. Anita Gupta & Anr. 2016 SCC OnLine Del 4720 and Top Court's decision in Union of India and others Vs. M.V. Mohanan Nair (2020) 5 SCC 421. It was also ASG's contention that by the impugned judgment and order and directing to grant grade pay of Rs.6600 the High Court modified the MACP Scheme and granted the benefit of three steps upward. She also contended that while interpreting MACP Scheme, the Top Court had observed that MACP Scheme envisaged merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 and had nothing to do with the next promotional post. Opposing ASG's submission, Senior Advocate Mathai Paikaday for the respondents submitted that the employee shall be entitled to the next higher pay and the High Court has rightly directed to grant grade pay of Rs.6600. Supreme Court's Analysis To adjudicate on the issue, the bench in the judgment authored by Justice MR Shah relied on the Top Court's judgment in Union of India and others v. M.V. Mohanan Nair (2020) 5 SCC 421 in which it was observed and held that under the MACP Scheme employees are entitled to the immediate next higher grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. "It is specifically observed and held by this Court in the aforesaid decision that MACP has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in the CCS (Revised Pay) Rules, 2008," bench further said while referring to MV Mohanan's decision. While setting aside the High Court's judgment, the bench said, "As per clause 8.1 of the MACP Scheme 'consequently upon the implementation of Sixth CPC's recommendations, grade pay of PB2 and PB3 would be Rs.5400. It specifically provides that the grade pay of Rs.5400 in PB2 and Rs.5400 in PB3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme'. Therefore, respondent Nos.1 &2 as PB2 shall be entitled to the next grade pay of Rs.5400 as per clause 8.1 and as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. The High Court has allowed the grade pay of Rs.6600 by considering the next promotion post of Assistant Director i.e., Deputy Director which carries a grade pay of Rs.6600. However, the aforesaid interpretation would be contrary to the MACP Scheme. On considering the relevant clauses of the MACP Scheme, it appears that the MACP Scheme envisages placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Thus, the High Court has committed a grave error in allowing the grade pay of Rs.6600 the grade pay which was available to the next promotional post as Deputy Director." Case Title: The Director, Directorate of Enforcement & Anr. v. K. Sudheesh Kumar & Ors.\| Civil Appeal No.442 OF 2022 Coram: Justices MR Shah and Sanjiv Khanna
P.I. Mr.Vikramsinh Kadam attached to Badlapur East P. Stn. present. Mr.S.V.Gavand, APP for the State in BA 2057/22. Mrs.A.A.Takalkar, APP for the State in BA 2058/22. 1. These two applications are filed by the same applicant Shri Sagar Vilas Tote who is charged for committing offences punishable under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999. Two distinct C.R.s came to be registered against him; C.R. I- 64/2018 was registered with Bazar Peth Police Station, whereas C.R. I- 11/2018 came to be registered with Badlapur East Police Station. He came to be arrested in both the C.R.s in the month of June 2018. On completion of investigation, charge-sheet bearing no. MPID No.01 of 2018 and MPID No.02 of 2018 was filed before the Additional Sessions 2. The prosecution alleged that as far as C.R. registered with Badlapur Police Station is concerned, the total investment with the assured interest has been worked out to be Rs.1,07,95,000/-. The learned counsel for the applicant makes a categorical statement that out of the amount received by him by way of investment from 15 investors, he has refunded an approximate amount of Rs.25,22,300/-. As far as the C.R. registered with Bazar Peth Police Station is concerned which involves 82 investors, the total amount as per the charge-sheet is worked out at Rs.4,73,23,260/-. The learned counsel for the applicant makes a categorical statement by referring to the statements of several victims which are part of the charge-sheet that he has cleared Rs.2,75,00,000/- in favour of some of the aggrieved investors the victims in the subject C.R. The investigation is complete and the charge-sheet is filed. 3. The learned counsel for the applicant seeks his release on two counts; firstly, on completion of investigation, further incarceration of the applicant is unnecessary and secondly, he seeks to derive benefit of Section 436-A of the Cr. P.C. which according to him, entitle him to be released on bail since on the date of his arrest, he has undergone imprisonment of four years and three months and the maximum penalty, which would be imposed upon him on he being convicted for the offences punishable under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, would be of seven years. The learned counsel for the applicant placed reliance on the latest decision of the Apex Court in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. 1 as well as the decision in case of Bhim Singh Vs. Union of India2 and the decision in case of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna3. The learned APP Mr. Gavand and Ms. Takalkar have filed their respective affidavits and the relief of being released by taking recourse to Section 436-A of the Cr. P.c. is opposed on the grounds that the offence involved is serious as the applicant has defrauded several investors and the amount runs into crores of rupees and since no property is available for attachment by the police, he do not deserve his release on bail though admittedly he has undergone imprisonment of more than four years and three months and the maximum period of imprisonment which could be imposed upon him by way of punishment is seven years. 4. Section 436-A of the Cr. P.C. prescribe the maximum period for 1 Miscellaneous Application No. 1849 of 2021 which an under-trial prisoner can be detained and it has been inserted by Act 25 of 2005 with effect from 23 June, 2006. The provision prescribe the maximum period for which under trial prisoner can be detained and it read thus:- “436A- Maximum period for which an under trial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.” 5. As early as in 1980, the right of under-trial prisoners was recognized by the Hon’ble Apex Court in a decision of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna (supra) and speedy trial was reckoned as an essential ingredient of ‘reasonable fair and just’ procedure guaranteed by Article 21 of the Constitution. Hon’ble Justice Shri P. N. Bhagwati (as he was then) underlined the constitutional mandate to provide speedy trial in the “"Not only those precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him." 6. In case of Bhim Singh Vs. Union of India (supra), once again the principle was reiterated with its emphasis on Section 436A of the Cr.P.C. where jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge were directed to hold one sitting in a week in each jail/prison for a limited time so that effect can be given to Section 436A of the Cr.P.C. Once again in the latest decision in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. (supra) while recognizing liberty to be one of the most essential requirements of the modern man, and quintessence of civilized existence, the highest Court of this country interpreted the said provision and reiterated its earlier decision in case of Bhim Singh Vs. Union of India (supra) while recognizing that the said provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The Hon’ble Apex Court observed thus:- “46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word ‘trial’ will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. 47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded. This court in Bhim Singh v. Union of India, (2015) 13 SCC 605, while dealing with the aforesaid provision, has directed that: “5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under Section 436-A. 6. We, accordingly, direct that jurisdictional Magistrate/ Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfill the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/ Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance.” Their Lordships of the Apex Court emphasis that the directions issued by the Court if not complied fully, are expected to be complied with in order to prevent the unnecessary incarceration of under-trials, and to uphold the inviolable principle of presumption of innocence until proven guilty. 7. In the light of the aforesaid pronouncement as above, which has enunciated the scope of Section 436A of the Cr.P.C., I do not think that the seriousness of the accusation would deny him the benefit flowing from the said section, when his case squarely falls within sub-section (1) of Section 436A, on having undergone more than half of the period of maximum imprisonment, which would be imposed upon him by way of penalty, assuming that he will be convicted for the offences with which he is charged. The applicant deserves his release on bail. Hence the (a) Applications are allowed. (b) Applicant - Sagar Vilas Tote shall be released on bail in connection with distinct C.R.s i.e. (i) C.R. I-64/2018 registered with Bazar Peth Police Station and (ii) C.R. I-11/2018 registered with Badlapur East Police Station on furnishing P.R. Bond to the extent of Rs.15,000/- each with one or two sureties in the like amount. (c) The applicant shall mark his attendance before the concerned police station on first Monday of every trimester. (d) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence. (e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, in case there is any change.	The Bombay High Court granted bail to a businessman accused of duping investors of crores of rupees under the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, observing that gravity of his offence cannot be a reason to deny him benefit of section 436-A of the CrPC. Under the section, an accused who has undergone one half of the maximum imprisonment he can be awarded for the alleged offence, would be eligible for release on bail, except for special reasons to be recorded in writing. The bench rejected the prosecution's contention that the accused was involved in a serious offence for duping investors of crores, the police hasn't found any property of his that can be attached, and therefore bail should be denied. Relying on SC's judgement in Satender Kumar Antil Vs. Central Bureau of Investigation & Anr, Justice Bharati Dangre observed, "In the light of the aforesaid pronouncement... I do not think that the seriousness of the accusation would deny him the benefit flowing from the said section, when his case squarely falls within sub-section (1) of Section 436A, on having undergone more than half of the period of maximum imprisonment…The applicant deserves his release on bail." In the case at hand the accused had undergone imprisonment of over four years and the maximum punishment that could be imposed on him was seven years. He was facing charges under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999. The crime was registered at Badlapur Police station in 2018. While the prosecution alleged that the total investment with the assured interest has been worked out to be Rs.1,07,95,000, accused Sagar Tote's Advocate Akshay Bafna stated that he had refunded Rs. 25,22,300. In the second FIR out of the total amount of over Rs. 4.73 crore assured to 82 investors, Rs. 2.75 crore was returned. Regarding the applicability of section 436-A of the CrPC, Bafna relied on the judgements of Satender Kumar Antil Vs. Central Bureau of Investigation, the decision in case of Bhim Singh Vs. Union of India and the decision in case of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna. Justice Dangre agreed with Bafna's contention and granted bail. Case Title: Sagar Vilas Tote vs. State of Maharashtra
Dated this the 31st day of January, 2022 This Original Petition is filed under Article 227 of Constitution of India against an order passed by Family Court, Ernakulam (for short ‘the court below’) on 25.10.2021 in M.P.No.629/2021 in M.C.No.198/2021. The order assailed “Taken up today. For objection. Heard. Respodent is directed to pay Rs.6000/- as interim maintenance to the child till disposal of MC. Wife claim will be decided in the MC” 2. It is found from the impunged order that it was passed when M.P.No.629/2021 was posted for objection of the respondent. A direction is found issued to the respondent in the impugned order to pay Rs.6,000/- as interim maintenance allowance to the child till disposal of the MC but at the sametime the wife was denied any interim maintenance allowance without assigning any reasons. 3. What was the reason for declining to pass an order granting interim maintenance allowance to the wife was not revealed from the order extracted above. Therefore, the order is a non-speaking one. There is no hard and fact rule that all claims of the parties must be allowed. But, the party has a right to be informed of the reasons for denial of his/her calim or for prolonging it’s consideration to a future date. Since such a reason is not stated in the impugned order, it is liable to fail. In the above circumstances, without issuing notice to the 2nd respondent, this Court is constrained to allow the Original Petition in part and to pass an order setting aside the impugned order to the extent it directs adjudication of the wife’s claim for interim maintenance allowance in the M.C. The direction to pay Rs.6,000/- as interim maintenance allowance to the child is not interfered with. The court below shall consider M.P.No.629/2021 with reference to the claim of the wife for interim maintenance allowance and shall pass appropriate orders (either declining or allowing the claim) stating sufficient and satisfactory reasons for doing so. The consideration of the claim of the wife and passing of orders shall not go beyond three weeks from this	The Kerala High Court on Monday observed that a party to litigation is entitled to be informed of the reasons behind the denial of their claims. Thus, setting aside a non-speaking order passed by the Family Court, Justice Mary Joseph observed that although there is no rule that all reliefs sought for should be allowed but, a party is qualified to know why their relief was... The Kerala High Court on Monday observed that a party to litigation is entitled to be informed of the reasons behind the denial of their claims. Thus, setting aside a non-speaking order passed by the Family Court, Justice Mary Joseph observed that although there is no rule that all reliefs sought for should be allowed but, a party is qualified to know why their relief was denied. "There is no hard and fast rule that all claims of the parties must be allowed. But, the party has a right to be informed of the reasons for denial of his/her claim or for prolonging its consideration to a future date. Since such a reason is not stated in the impugned order, it is liable to fail." The impugned order directed the respondent-husband to pay Rs.6,000/- as interim maintenance allowance to the child till disposal of the plea. However, the wife was denied any interim maintenance allowance without assigning any reasons. Aggrieved by this, the petitioner (wife) approached the High Court through Advocates S. Sunil Kumar and B.S. Suraj Krishna. The respondents were represented by Advocate Aravind V. Mathew. The Court noted that the reason for declining to grant interim maintenance allowance to the wife was not revealed from the impugned order and that for this reason, it was a non-speaking order. Accordingly, the Judge deemed it fit to allow the plea in part, without even serving notice to the 2nd respondent (husband). Thereby, the impugned order was set aside to the extent that it directed adjudication of the wife's claim for interim maintenance allowance in the M.C. The direction to pay Rs.6,000/- as interim maintenance allowance to the child was not interfered with.
l Appeals Nos. 51 and 52/61 Appeals from the judgment and decree dated September 23, 1959, of the Allahabad High Court (Lucknow Bench) at Lucknow in C. M. Applications Nos. 15 (O.J.) and 16 (O.J.) of 1957 respectively. C. B. Agarwala and C. P. Lal, for the Appellants (in both the appeals). A. V. Viswanatha Sastri, and K. L. Arora, for Respondent No. 1 (in both the appeals). February 7. The Judgment of the Court was delivered by SARKAR, J. These two appeals have been heard together. The, appellants in each case are the State of Uttar Pradesh, for short called U. P. and some of its officers and the respondents in one appeal are Lakshmi Ice Factory and certain of its workers and in the other the Prakash Ice Factory and certain of its workers. These appeals involve a question of construction of certain provisions of the U. P. , hereafter referred to as the Act. By a Notification issued on February 10, 1956, the Government of U. P. referred certain disputes which had cropped up between each of the Ice Factories and its respective workmen, to an Industrial Tribunal for adjudication. The details of these disputes are not material for these appeals. The Tribunal heard the matters but failed to pronounce its award in open court. Instead, on November 8, 1956, the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. On December, 15, 1956, the award was published in the U. P. Gazette and it appeared from this publication that the award was dated November 8, 1956. On December 26, 1956, the Regional Conciliation Offi cer appointed under the Act " called upon the Ice 61 Factories to implement the award immediately. Thereupon the Tee Factories moved the High Court at Allahabad on January 3, 1957 under article 226 of the Constitution for writs quashing the award and prohibiting the Government and the workmen from taking steps to implement it. They contended that the award sought to be enforced was a nullity as it had not been pronounced in open court as required by certain rules to which reference will presently be made. By a judgment passed on September 23, 1959, the High Court allowed the petitions of the Ice Factories and issued writs quashing the Notification publishing the award. The appeals are against this judgment of the High Court. Section 3 of the Act gives the Government power in certain circumstances to make provisions by general, or special order (1) for appointing Industrial courts, (2) for referring any industrial dispute for adjudication in the manner provided in the order and (3) for matters incidental or supplementary to the other provisions of the order. Under this power the Government had issued an Order dated July 14, 1954 and this Order is hereafter called the "Statutory Order. " It was under powers conferred by the Act read with the Statutory Order that the Government had issued the Notification of February 10, 1956. In exercise of powers conferred by el. 8 of the Statutory Order the Government had set up the Tribunal. Clause 9 of the Statutory Order provides for the procedure to be followed by the Tribunal. Sub clause (7) of this clause is in these terms: "The decision of the Tribunal shall be in writing and shall be pronounced in open court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it. " Clause 11 of the Statutory Order gives power to Government to refer any industrial dispute to the Tribunal. Sub clause (9) of el. 9 of the Statutory Order 62 gives power to the Tribunal to make Standing Orders relating to its practice and procedure. Under this sub clause the Tribunal framed certain Standing Orders. Standing Order No. 36 provided. "Judgment shall be pronounced in open court either immediately after the close of the arguments or on a subsequent date of which previous notice shall be given to the parties. It shall then be signed and dated by the Tribunal. " Acting presumably under Standing Order No. 36, the Tribunal in the present case bad fixed a date on which it would pronounce its judgment in open court. This date does not appear on the record but on September 25, 1956, the Tribunal informed the parties that the date for pronouncing the award had been changed to October 9, 1956. On that date, however, the award was not pronounced in open court, nor was any intimation of any other date for its pronouncement given to the parties. The lee Factories first came to know of the making of the award from the letter of the Registrar of the Tribunal dated November 8, 1956 earlier referred to. The award had in fact never been pronounced in open court. The first question is whether the provisions in sub el. (7) of el. 9 are imperative. The High Court held that they were and thereupon quashed the Notification publishing the award. The appellants contend that the High Court was in error and that the provisions are only directory and that the failure of the Tribunal to pronounce the award in open Court did not result in the award becoming void. The Ice Factories contend for the contract view. Mr. Aggarwala for the appellants referred us to the rule of construction stated in Maxwell on Interpretation of Statutes, 10th ed. at p. 381, which is as follows : ",Where the prescriptions of a statute relate to the performance of a public duty and 63 where the invalidation of acts done in neglect of them, would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words as 'directory only". Ho said that sub el. (7) of cl. 9 of the Statutory Order imposed a public duty on the Tribunal and as none of the contesting parties to the proceedings before the Tribunal had any control over it, the provision in the Statutory Order as to how the Tribunal is to discharge its duty must be regarded as merely directory and therefore a disregard of that provision by the Tribunal would not render the thing done by it a nullity. It seems to us that the rule read from Maxwell is not applicable to this case. It applies only when to hold the prescriptions in a statute as to the performance of a public duty to be imperative would work injustice and hardship without serving the object of the statute. None of these conditions are present ill the statute now before us. The rule may be illustrated by reference to the case of Montreal Street Railway Co. vs Normandin(1) which is cited in Maxwell 's book. That was a case in which certain Statutory provisions as to how the jury list was to be revised had not been followed and the question arose whether the verdict of a jury empannelled out of a list revised in disregard of the provision was a nullity. It was hold that the verdict was not a nullity as the provision regarding the revision of the jury list was merely directory. It was further held that the object of the provision was to distribute the burden of jury equally between all liable to it, to secure effective jurors likely to attend and lastly to prevent packing of the jury. It was said that "It does far less harm to allow cases tried by a jury formed as this one was (1) ; 64 with the opportunities there would be object to any unqualified man called into the box, to stand good, than to hold the proceedings null and void. So to hold would not, of course, prevent, the courts granting new trials in cases where there was reason think that a fair trial had not been had": P. 176). The case in hand is wholly different. The proceedings that were had before the Tribunal would not become null and void if we hold el. 9(7) of the Statutory Order to be imperative,. A view that the provision was imperative would cause no serious hardship to any one. The Government can always require the Tribunal to pronounce, its decision in open court extending, if necessary for the purpose. he time fixed for giving its decision. Either party of the proceeding can also ask the Government to call upon the Tribunal to pronounce its award in open court. There is no doubt that the Government will go call upon the Tribunal when the defect s brought to its 'notice for the Government itself referred the matter to the Tribunal for if decision. As soon as the Tribunal pronounces it,; award in open court, the proceedings will become fully effective. It is also an accepted rule of construction that enactments regulating the procedure in courts are usually imperative : Maxwell on Interpretation of statues 10th ed. p. 379. It further appears to us that the object of the legislature would be defeated by reading cl. 9(7) of the Statutory Order as containing a provision which is merely director vs We now proceed to ascertain that object from the, other provisions in the Statutory Order, the Act and connected legislation. Section 6 of the IT. P. Act provides as follows : (1) When an authority to which an industrial dispute has been referred for 65 adjudication has completed it,% enquiry, it shall, within such time as may be ,specified, submit its award to the State Government. (2) The State Government may. enforce for such period as it may specify all or any of the decisions in the award. It was under this section that the Tribunal submitted it,% award to the Government and the Government issued the Notification in the Gazette dated December 15, 1956 earlier mentioned and directed that the award be enforced for a period of one year from the date of the publication. Since the award has to be submitted to the Government by the Tribunal under section 6 of the Act, the award has to be in writing, for a verbal award cannot obviously be submitted to the Government. It would therefore appear that the provision in sub cle. (7) of el. 9 of the Statutory Order that the decision of the Tribunal shall be in writing is imperative, This would be an indication that the other provisions in the same sub clause connected with it were intended to be equally imperative. Then we find that el. 18 of the Statutory Order is in these terms : "The Tribunal or the adjudicator shall hear the dispute and give its or his decision within 180 days (excluding holidays but Dot annual vacations observed by courts subordinate to the High Court) from the date of reference made to it or him by the State Government and shall thereafter as soon as possible, supply a copy of the same to the parties to the dispute. . . Provided that the State Government may extend the said period from time to time. " It seems to us that the provision in this clause in clearly mandatory. The Tribunal has no power to make an award after the time mentioned in it; if it had, the proviso to el. 18 would be wholly unnecessary. The result therefore is that it is 66 obligatory on the Tribunal to give its decision within 180 days from the date of the reference. A decision given, that is an award made, beyond this period would be a nullity. Now when cl. 18 talks of giving a decision, it can only mean giving it in the manner indicated in sub cl, (7) of cl. 9 of the Statutory Order, that is, by pronouncing it in open court, for that is the only manner of giving a decision which that order contemplates. It would follow that the terms of cl. 9(7) were imperative, for otherwise no one would know whether the terms of el. 18 of the Statutory Order had been complied with, that is to say, no one would know whether the award was void or not. The provisions of cl. IS may thus be rendered nugatory by holding el. 9(7) to be only directory. It would follow that unless the provision as to the pronouncement of the award in open court was mandatory, the intention of the framers of the Statutory Order would be defeated. Sub clause (2) of cl. 24 of the Statutory Order also leads to the same conclusion. That sub clause is in these terms : "Clerical or arithmetical mistakes in decisions or awards, or errors arising therein from any accidental slip or omis sion may, within one month of giving the decision or award be corrected by the Tribunal or the adjudicator, either of its or his own motion or on the application of any of the parties. " Under this rule therefore clerical or arithmetical errors or slips may be corrected within one month of the giving of the decision and the parties have the right to apply for such corrections within that time. The Tribunal has no right to correct an error beyond that time. Nor has a party a right to move the Tribunal for making any such corrections after the time has expired. In order that the intention of cl. 24 (2) may be, given effect to, it is necessary that the date of the 67 giving of the decision should be known. It cannot promptly be known to the parties unless the award is pronounced in open court. If any other Manner of the giving of the decision was permissible as would be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under cl. 24 to move the Tribunal for correction of errors. It is for this reason that cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of cls. 18 and 24 (2) have been complied with in any case. The third thing which to our mind indicates that pronouncement in open court is essential is cl. 31 of the Statutory Order. That clause is in these terms : "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings. " The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under a. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in section 7 includes a Tribunal set up under a State law which law does not provide for an appeal : see a. 2(o)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to 68 the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to the Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under a. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be a nullity. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held the el. 9(7) of the Statutory Order to be imperative. it would not matter whatever view is taken of the Standing Order for the latter cannot affect the former. 69 Mr. Aggarwala then argued that cl. 9(7) of the Statutory Order and Standing Order No. 36 were ultra vires as being in conflict with the Act under which they had been framed. His contention was this : Under section 6 of the Act all that the Tribunal has to do is to submit its award to the Government after the conclusion of the enquiry before it. The section does not require the Tribunal to pronounce its decision in open court. The provisions in the Statutory Order and the Standing Order both of which were made under powers contained in the Act, were therefore in conflict with section 6 and of no effect. Hence he contended that the question whether the provisions of cl. 9(7) of the Statutory Order or of the Standing Order No. 36 were imperative did not really arise. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither section 6 nor any other provision in the Act provides how the award is to be made. Under section 3(g) however the Government has power by general or special. order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made tinder section 3. 'rho provision as to the pronouncement of the decision in open court in (19(7) of the Statutory Order clearly is within the power,; contemplated in section 3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit the award to the Government so that it may be enforced. It has nothing to do with the manner in which the 'Tribunal is to make 70 its award. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6. The result is that these appeals fail and are dismissed with costs. Appeals dismissed.	The Government of Uttar Pradesh under section 3 of the U.P. , and the Statutory orders framed thereunder referred certain. disputes between the respondent Ice Factories and the respective workmen to an Industrial Tribunal. The Tribunal heard the matters but failed to pronounce its award in open court, as required under the clause 9 (7) of the Statutory Orders. Instead the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. The award was published in the U.P. Gazette and the Regional Conciliation officer called upon the Ice Factories to implement the award immediately. The Ice Factories moved the High Court at Allahabad alleging that the award was a nullity as it had not been pronounced in open court as required under the clause 9 (7) of the Statutory Orders and asking for writs to quash it. High Court issued the writs quashing the Notification publishing the award. The questions are whether the provisions of sub cl. (7) of cl. 9 of the Statutory Orders are imperative or merely directory and whether that sub clause is ultra vires as being in conflict with the Act under which it had been framed. Held, that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and a judgment not so pronounced would therefore be a nullity. The provision in sub cl.(7) of cl. 9 of the Statutory Order is imperative and not directory. Held, further, that the provisions as to the pronouncement of the decision in open court contained in cl. 9 (7) of the Statutory Order was clearly within the powers contemplated in section 3 (g) of the Act and section 6 of the Act does not prohibit the making of such provisions. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6 of the Act. Montreal Street Railway Co. vs Normandin, ; , referred to.
Criminal Appeal No. 214 of 1979. From the Judgment and Order dated 22.11.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 701 of 1975. A.N. Mulla, O.P. Sharma and R.C. Gubrele for the Appellants. Ms. Amita Gupta and R.S. Suri for the Respondents. The Judgment of the Court was delivered by FATHIMA BEEVI, J. Balbir Singh and Inderjit Singh, the appellants, are brothers. Onkar Singh, brother of Brijinder Singh, the father of the appellants, died of multiple in juries on 8.7.1974. The appellants along with Mehar Singh, were tried on the charge of murder under Section 302, I.P.C. read with Section 34, I.P.C. The Sessions Judge acquitted the accused of the charge. The High Court, in appeal pre ferred by the State, convicted these appellants and sen tenced them to undergo imprisonment for life under Section 302, I.P.C. The appeal being one under Section 2 of the , the appellants ' learned counsel persuaded us to go through the entire evidence maintaining that the High Court has erred in interfering with the order of acquittal. Ac cording to the learned counsel, the view taken by the trial court is reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence. It was contended that the High Court has not effectively dislodged the various reasons given by the trial Court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record is clearly wrong. In order to appreciate these arguments, it is necessary to set out briefly the facts of the case and summarize the relevant evidence. The deceased, Onkar Singh, at the time of his death was employed in government service and was resid ing in Chandigarh. His brother, Darbara Singh, and his son Iswardial Singh, as well as these appellants were residing in the village. Onkar Singh came to the village on 6th July, 1974. On 8th July, 242 1974, at about 10.30 A.M., Darbara Singh, along with his wife, Surjit Kant, and son Ishwardial Singh had gone to the mango grove across the choe to collect mangoes for being given to Onkar Singh. While they were returning home along the pathway, Onkar Singh was seen coming in the opposite direction. These two appellants along with their companion emerged on the scene and attacked Onkar Singh Balbir Singh had a datar and Inderjit Singh had a sua and Mehar Singh had a lathi. After inflicting injuries with the weapons the appellants escaped. The deceased, Onkar Singh, was removed to the house of Darbara Singh for being rushed to the hospi tal but within a short time, he breathed his last. The first information was lodged at the police station around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted. The post mortem examination on the dead body revealed that Onkar Singh had sustained besides lacerated injuries three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries. The motive alleged was that there had been some grouse on account of the transfer of agricultural land that belonged to the family, among the children of the three brothers. The land stood in the name of the deceased 's son under cultivation of Darbara Singh at the material time. The land was originally gifted to the appellants in 1964 but was reconveyed to the deceased. The learned Sessions Judge found that the motive had been proved. The two eye witnesses to the occurrence were Darbara Singh and his son Ishwardial Singh. They narrated the incident. Their evidence was discarded by the trial court for the reasons that there was a thick growth of reeds on either side of the pathway which was running zigzag and it was not, therefore, possible for the witnesses even if they were present in the vicinity to observe the assault and identify the assailants. Another reason was that the medical evidence was in distinct conflict with the oral testimony and the nature of injuries were such that the same could not be attributed to the use of the weapons mentioned by the witnesses. Yet another reason was that there had been no trace of blood either on the pathway or on the clothes worn by the deceased. The time of death of the deceased as dis closed by the medical evidence did not agree with the ver sion of the witnesses. There had been inordinate delay in lodging the F.I.R. The first information report did not inspire confidence. The witnesses had no consistent case regarding the role played by Mehar Singh and the evidence was interested and unconvincing. The learned Judge, there fore, rejected the 243 same and recorded the order of acquittal. The High Court had cautioned itself on the limited scope of interference while analysing and appreciating the evi dence and arriving at its own conclusion. The High Court has given very cogent reasons to establish that the whole ap proach by the trial court was wrong and reasons for reject ing the evidence did not stand scrutiny. Having heard the counsel on both sides, we agree with the High Court that the prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that these appellants had intentionally caused the death of Onkar Singh. The occurrence took place in broad day light at a place close to the residence of the witnesses. The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued. The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed. The version given in the F.I.R, is substantially the same as the one spoken to by the witnesses before the court. There had not been any accept able suggestion why Darbara Singh should foist a case against the appellants. It is most unlikely that these witnesses would allow the real culprits to escape and their near relations to be implicated on the happening of such a tragedy in the family. Both the father and the son have given consistent account of the role played by each of the appellants. There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action. The evidence is also clear that there had not been thick growth of reeds to cause complete obliteration of the scene. It could not, therefore, be assumed that the place of occurrence was out of bounds and that the witnesses have weaved a story of their own. As rightly pointed out by the High Court, the medical evidence is not inconsistent. The witnesses are clear that the appel lants used the datar on the wrong side and that accounts for the lacerated injuries. Incised wounds may be produced by using the sua on that part of the body. We do not find any material to infer that the death could not have happened at the time spoken to by the witnesses. Since there had been internal hemorrhage and the injured person was immediately lifted from the place of occurrence the absence of blood at the scene is not strange. The fact that the acquittal of Mehar Singh had not been interfered with by the High Court cannot advance the case of the appellants. The High Court 244 has given him the benefit of doubt on the materials that emerged in the evidence. That is no reason to discard the evidence of the witnesses so far as these appellants are concerned when such evidence does not suffer from any seri ous infirmity. We find that the High Court had given weighty reasons in accepting the evidence and finding that the view taken by the trial court was clearly wrong. We reject the contentions of the appellants. There is no reason to interfere with the judgment of the High Court. The appeal is accordingly V.P.R. Appeal dis missed.	The appellants along with another were tried of the charge of murder under Section 302, I.P.C., read with Sec tion 34, I.P.C. The prosecution case was that the appellants as well as the deceased 's brother and his son were residing in a vil lage. The deceased came to the village on 6.7.1974. On 8.7.1974 at about 10.30 a.m., the deceased 's brother along with his wife and his son had gone to the mango grove across the choe to collect mangoes to give to the deceased. While they were returning home along the pathway, the deceased was seen coming in the opposite direction. The two appellants along with another accused, emerged on the scene and at tacked the deceased. Appellant No.1 had a datar and Appel lant No. 2 had a sua and their companion had a lathi. After inflicting injuries with the weapons the appellants escaped. The deceased was removed to the house of one Darbara Singh for being rushed to the hospital, but within a short time, he breathed his last. The first information was lodged at the police station, around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted. The post mortem examination of the dead body revealed that the deceased had sustained lacerated injuries and three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries. The motive alleged was that there had been some grouse on account of the transfer of agricultural land that be longed to the family, among the 240 children of the three brothers. The Sessions Judge acquitted the accused of the charge. The High Court, in appeal preferred by the State convicted the appellants and sentenced them to undergo imprisonment for life, against which, this appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdic tion) Act, 1970 was filed. The appellants contended that the view taken by the trial court was reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence; that the High Court did not dislodge the various reasons given by the trial court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record was wrong. Dismissing the appeal, this Court, HELD: 1. The prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that the appellants had intentionally caused the death of the de ceased. The occurrence took place in broad day light at a place close to the residence of the witnesses. The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued. The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed. The version given in the F.I.R. is substantially the same as the one spoken to by the witnesses before the Court. [243 C D] 2. The eye witnesses have given consistent account of the role played by each of the appellants. There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action, and the medical evidence is not Inconsistent. [243 E F] 3. The fact that the acquittal of the companion of the appellants had not been interfered with by the High Court cannot advance the case of the appellants. The High Court has given him the benefit of doubt on the materials that emerged in the evidence. That is no reason to discard the evidence of the witnesses so far as the appellants are concerned when such 241 evidence does not suffer from any serious infirmity; [243 H; 244 A]
2. Mr.Monal Chaglani, learned advocate has challenged the impugned judgment and award on the ground that the learned Tribunal has not considered the oral as well as documentary evidence on record and has not considered the income aspect in accordance with the judgments of the Hon’ble Apex Court where the income tax returns were produced before the Court. According to Mr.Chaglani, the learned Tribunal has erred in considering the aggregate income of the deceased for the last three years and has not even considered the mother of the deceased as dependent while both the parents were dependent on the deceased son. He further submitted that the Tribunal has totally discarded the evidence and has erred in not considering the parents as dependent and only granted a lump-sum amount of Rs.50,000=00, which could have been granted even under Section 140 of the Motor Vehicles Act. In support of the submission to consider the parents as dependent, Mr.Chaglani has relied upon the following judgments : (1) Chandra and others vs. Mukesh Kumar Yadav and others, (2021) 6 ALT 116; (2) Indrawati and others vs. Ranbir Singh and others, 2021 ACJ 2156; (3) Sukhdev Prasad vs. Sunil Kumar and others, (4) N.Jayashree and others vs. Cholamandalam MS General Insurance Co. Ltd. and others, AIR 2021 (5) Jagruthi Shishir Banugariya and others vs. Rajvi Kanthan Ahir and others, 2016 ACJ 905; (6) National Insurance Company Ltd. and others vs. Birender and others, AIR 2020 SC 434. 3. Countering the argument, Mr.Daxesh Mehta, learned advocate appearing for the Insurance Company submitted that the learned Tribunal has given reasons for not considering the parents as dependent and further it has been submitted by Mr.Mehta, relying upon the judgment of the Division Bench of this Court in the case of Bhavnaben Shaileshbhai Rank vs. Mahmadmkhan Mahmadjallaudinkhan Pathan (First Appeal No.3508 of 2021, decided on 6th December 2021), that if at all the income of the deceased has to be considered, then the aggregate income for the last three years is required to be assessed since there is no evidence to support the ITRs filed by the deceased. 4. The learned Tribunal, while considering the report, found that the applicant no.1 Sonalben alias Charmiben Hirenbhai Jivani, i.e. widow of the deceased, had made a declaration to affidavit Exh.23 to delete her name and she had consented to give her share of compensation to the applicants nos.2 and 3 respectively since stating that she remarried after the death of her husband in an unfortunate incident. The applicant no.2 being the mother of the deceased examined herself at Exh.20 and she admitted that her daughter-in-law, i.e. applicant no.1, has remarried. In that circumstances, the learned Tribunal observed that there were only two applicants, i.e. mother and father of the deceased, on record and the learned Tribunal went on to consider the issue, whether or not the parents were entitled to the compensation, while determining the same on the basis of the available evidence. The learned Tribunal thus observed that the mother of the deceased, after the marriage of the deceased with the applicant no.1, moved to Rajkot and the father of the deceased owned a shop at Bagsara. Thus, the learned Tribunal observed that prior to the accident, the sustenance of the parents was on the income of the shop which, as per the learned Tribunal, continued. Thus, the learned Tribunal did not find the applicants nos.2 and 3 as the dependent on the income of the deceased. Hence, the learned Tribunal did not deem fit to grant any compensation under the head of dependency loss. 5. The claimant no.2 had filed her examination-in-chief at Exh.20. She was cross-examined, and during the course of her cross-examination, she admitted the fact that after the marriage, her son and daughter-in-law started staying in Rajkot, while she volunteered that she too was staying at Rajkot along with her son. The said evidence has been read by the Tribunal. She further stated that her husband was having a photocopy shop at Bagsara and she was also having occupation along with her husband. The shop was being run prior to the accident and it continued. The income from the shop was used for their livelihood. She also affirmed that her husband continued with the shop. 6. In the case of Chanda and anothers (supra), while appreciating the facts of the case that the unfortunate parents had lost their son aged about 32 years and the claim compensation was filed under Section 166 of the Motor Vehicles Act and where an issue was raised about the parents not being the dependent as they were found to be living separately, the Hon’ble Apex Court, while deciding the case and referring the judgment of Magma General Insurance Company Limited and others vs. Nanu Ram @ Chuhru Ram and others, reported in (2018) 18 SCC 130, observed that the finding of the Tribunal that the parents cannot be treated as dependent would run contrary to the judgment of the Apex Court in the case of Sarla Varma and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121. 7. In the case of Indrawati and others (supra), the Delhi High Court, while appreciating the fact that the deceased- son had died at the age of 23 years and was survived by parents, who had claimed compensation, a question was raised for the consideration as to whether the mother would be entitled to compensation for the death of her son. The Hon’ble Delhi High Court, while observing the case of Mahendrakumar Ramrao Gaikwad vs. Gulabbai Ramrao Gaikwad, reported in 2001 Cri.L.J. 2111 from the Bombay High Court, referred to the ancient scriptures of ‘manu’ to acknowledge the recognition of the rights of aged parents to be maintained by their children even if the children are unable to maintain themselves. The case was also considered to appreciate the parental consortium and even the case of Sarla Varma (supra) was referred to observe that the Supreme Court had laid down the three years’ principle for computation of compensation in respect of death of parents as well as spouse while applying the multiplier method by further observing that the application of those principles have not been made subject to any condition meaning thereby that no further evidence is required to prove the dependencies in the case. Thus, the Delhi High Court, while considering the settled law laid down by the Supreme Court in the above referred judgments, held that the parents of deceased child are considered as dependent for consideration of 8. In Sukhdev Prasad (supra), the Delhi High Court, while considering the dependency of the parents on the death of 25 years’ old son and referring the ratio laid down in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in AIR 2017 SC (supra), Indrawati and others (supra), held that the parents of the deceased are always considered as dependent upon their children and are entitled to compensation according to the principles laid down by the Hon’ble Apex Court in the case of Pranay Sethi (supra). 9. In N.Jayashree and others (supra), the mother-in-law of a deceased son-in-law was also considered as 10. In Birender and others (supra), in context of dependency of the major son, it has been observed that the legal representatives of the deceased would be entitled to receive compensation under the conventional heads. It was observed in paragraphs 12, 13, 14 and 15 as “12. We have heard Mr. Amit Kumar Singh, learned counsel for the insurance company (appellant) and Ms. Abha R. Sharma, learned counsel for the respondent Nos. 1 and 2. The principal issues which arise for our consideration are as follows : (i) Whether the major sons of the deceased who are married and gainfully employed or earning, can claim compensation under the Motor Vehicles Act, 1988 (for short, ‘the Act’) ? (ii) Whether such legal representatives are entitled only for compensation under the conventional heads ? (iii) Whether the amount receivable by the legal representatives of the deceased under the 2006 Rules is required to be deducted as a whole or only portion thereof? 13. Reverting to the first issue - that needs to be answered on the basis of the scheme of the Act. Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of sub-section (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus: “Section 166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub- section (1) of section 165 may be made- (a) by the person who has sustained the injury; (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (4) The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act.” 14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression “legal representative” of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression “legal representative” has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus: “9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. 10. …..The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same. 11. According to Section 2(11) CPC, “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275] the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression “legal representative”. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.” In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between “right to apply for compensation” and “entitlement to compensation”. The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning. 15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only…..” 11. Observing the principles as laid down in the above referred judgments and following the case of Pranay Sethi (supra), this Court concludes that both the parents are dependents of the deceased son and are entitled to apply for compensation. Thus, the observations made by the learned Tribunal become erroneous. Both the parents are entitled for the compensation amount under the head of dependency loss. 12. Learned advocate Mr.Dakshesh Mehta has insisted upon to consider the average income of last three years preceding the death of the deceased son. However, countering the same, learned advocate Mr.Chaglani has relied upon the judgments in the cases of Pranay Sethi (supra); Sangita Arya and others vs. Oriental Insurance Company Limited and others, reported in AIR 2020 SC 2877; Sheela Devi and others vs. Sumit Kumar and others (First Appeal No.1080 of 2021, decided on 18.04.2022, by Hon’ble High Court of Allahabad); and The New India Assurance Company Limited vs. Salmabibi Jainulabedin Doi (First Appeal No.96 of 2022, decided on 03.03.2022, by a Coordinate Bench of this Hon’ble Court). 13. In the case of Bhavnaben Shaileshbhai Rank (supra), relied upon by Mr.Mehta, the observations made by the Division Bench of this Court is to the effect that the safe and proper course is to take into consideration the average income of the last three years preceding the death, which would indicate the average income of the deceased as the earning for the last three years prior to his death. While that observations were made in context of the circumstances noted by the Division Bench placing reliance on the judgment of the Hon’ble Apex Court in the case of ICICI Lombard General Insurance Company Limited vs. Ajay Kumar Mohanty and another, reported in (2018) 3 SCC 686, wherein it was indicated that it would be apt, appropriate and safe to take the average income, inasmuch as in a given case there may be situation where due to unforeseen circumstances, the income for the last year could either be less or abysmally on the lower side. Thus, in that circumstances, the Division Bench had considered it safe to consider the average income of the last three years preceding the death of the deceased. However, a reference is required to be made of the case of Pranay Sethi (supra) to clarify that while assessing the fact that whether the deceased was self-employed or had a fixed salary without the provision for annual increment etc., it was observed that the Court would take the actual income at the time of the death and the departure is permissible only in rare and exceptional cases involving special circumstances. 14. The very ratio has been adopted in Pranay Sethi’s case (supra) while considering the aspect of addition towards the future prospective income of the deceased. In Sangita Arya and others (supra), the Hon’ble Apex Court considered the ITRs filed prior to the death of the deceased which reflects the income of the deceased and following the case of Sangita Arya and others (supra), the Hon’ble High Court of Allahabad, in the case of Sheela Devi and others (supra), and this Hon’ble High Court in the case of Salmabibi Jainulabedin Doi (supra), has deprecated the method of assessing the income on the basis of the aggregate income of last three years and both the Hon’ble High Court of Allahabad and this Hon’ble Court has thus considered to assess the income based on the latest income tax returns to consider the computation of income and also such income tax returns are considered to be the base for awarding the future prospective income. 15. Here in this case, the date of accident is 12.10.2006, whereas as per Exh.32, the ITR return for the Assessment Year 2006-07 (i.e. for the period from 01.04.2005 to 30.03.2006) was filed on 10.10.2006, i.e. two days prior to the accident, which shows the income of the previous year. The income so reflected in Exh.32 is prior to the death of the deceased, i.e. the income of the earlier year was assessed. Hence, Exh.32 is the latest and the last prior to the death of the deceased. Hence, Exh.32 is required to be considered to assess the income as well as the future prospective income. As per Exh.32, the yearly income assessed is Rs.1,05,800=00. Thus, deducting the income tax of Rs.592=00, the aggregate amount of Rs.1,05,000=00 per annum would be considered as the actual income of the deceased and 40% rise in future prospective income would be considered taking into consideration the age of the deceased at the time of the accident as 27 years. Hence, Rs.42,000=00 is added to the same. Thus, the dependency income would come to Rs.1,47,000=00 with a multiplier of 17, that is, the total amount that comes under the head of dependency income to the parents would be Rs.24,99,000=00. Taking into consideration total number of dependents, 1/3rd amount is required to be deducted as personal expenses of the deceased. Hence, deducting Rs.8,33,000=00 towards the personal expenses of the deceased, the dependency loss would come to Rs.16,66,000=00. 16. The chart showing the compensation payable to the claimants/appellants is as under : Income of the Rs. 1,05,000=00 Multiplier of 17 Rs.24,99,000=00 (deceased was (Rs.1,47,000 x 17) 1/3rd deduction Rs.16,66,000=00 towards personal (24,99,000-8,33,000) Funeral and other Rs. 15,000=00 Rs. 1,10,000 17. Both the parents would be entitled to consortium money in accordance with the judgment in the case of Magma General Insurance Company Limited and others (supra). Hence, the total amount under the head of consortium would be Rs.80,000=00, Rs.15,000=00 under the head of loss to estate and Rs.15,000=00 towards the funeral and other misc. expenses following Pranay Sethi’s 18. Thus, in toto, the claimants are entitled to receive Rs.17,76,000=00 as compensation. The Insurance Company is directed to deposit the said amount within a period of ten weeks from the date of receipt of writ of this order. It is further directed that from the date of application to the date of the award of the learned Tribunal dated 30th June 2018, the said amount shall be deposited with 9% interest per annum, and from 1 st July 2018 till the date of this order, the said amount shall be deposited with 7.5% interest per annum. 19. The First Appeal is allowed in part to the aforesaid	The Gujarat High Court has held that an income tax return (ITR) filed prior to the death of the assessee is the basis for computation of loss of future income, including future prospects. The single bench of Justice Gita Gopi has observed that both the parents are dependents of the deceased son and are entitled to apply for compensation. Both the parents are entitled to... The Gujarat High Court has held that an income tax return (ITR) filed prior to the death of the assessee is the basis for computation of loss of future income, including future prospects. The single bench of Justice Gita Gopi has observed that both the parents are dependents of the deceased son and are entitled to apply for compensation. Both the parents are entitled to the compensation amount under the head of dependency loss. The appellant has challenged the judgement and award passed by the Motor Accident Claims Tribunal. The appellant contended that the Tribunal has not considered the oral as well as documentary evidence on record and has not considered the income aspect in accordance with the judgments of the Apex Court where the income tax returns were produced before the Court. The appellant contended that the tribunal had erred in considering the aggregate income of the deceased for the last three years and had not even considered the mother of the deceased as dependent while both the parents were dependent on the deceased son. The Tribunal has totally discarded the evidence and has erred in not considering the parents as dependent and only granted a lump-sum amount which could have been granted even under Section 140 of the Motor Vehicles Act. The insurance company submitted that the Tribunal has given reasons for not considering the parents as dependent. If at all the income of the deceased has to be considered, then the aggregate income for the last three years is required to be assessed since there is no evidence to support the ITRs filed by the deceased. The date of the accident is 12.10.2006. was filed on 10.10.2006, i.e., two days prior to the accident, which shows the income of the previous year. The income was prior to the death of the deceased, i.e., the income of the earlier year was assessed. Hence, the ITR was the latest and the last prior to the death of the deceased. The court noted that the ITR was required to be considered to assess the income as well as the future prospective income. As per the ITR, the yearly income is assessed. Taking into consideration the total number of dependents, 1/3rd of the amount is required to be deducted as personal expenses of the deceased. The court held that the claimants are entitled to receive compensation. The insurance company is directed to deposit the amount within a period of ten weeks. The court directed that from the date of application to the date of the award of the Tribunal, the amount shall be deposited with 9% interest per annum, and from 1st July 2018 till the date of the order, the amount shall be deposited with 7.5% interest per annum. Case Title: Sonalben Alias Charmiben Hirenbhai Jivani Versus Naranbhai Chananbhai Babariya Counsel For Appellant: Advocate Monal S Chaglani Counsel For Respondent: Advocate Dakshesh Mehta
Appeal No. 484 of 1961. Appeal by special leave from the judgment and decree dated March 28, 1958 of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil First Appeal No. 64 of 1951. Sarjoo Prasad and Harbans Singh, for the appellants. B. P. Sinha and Naunit Lal, for the respondents. May 8, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J. This appeal by special leave arises out of a redemption suit filed by the respondent Dev Karan against the appellant Murarilal. The mortgage sought to be redeemed was executed on the 19th March, 1919 for a sum of Rs. 6,500. The mortgaged property consisted of a shop which was delivered over in the possession of the mortgagee after the execution of the mortgage deed. The mortgage deed had provided that the amount due under the mortgage should be repaid to the mortgagee within 15 years, whereupon the property would be redeemed. It had also stipulated that if the payment was not made within 15 years, the mortgagee would become the owner of the property. The mortgagor was Mangal 241 Ram who died and the respondent claims to be the heir and legal representative of the said deceased mortgagor. In the plaint filed by the respondent, it was averred that the transaction was, in substance, a mortgage and the mortgagor 's right to redeem was alive even though the stipulated period of 15 years for the repayment of the loan had passed. On these allegations, the respondent claimed a decree for redemption of the suit mortgage on payment of Rs. 6,500. It appears that the original mortgagee Gangadhar had also died before the institution of the suit, and so, the appellant Murarilal was impleaded as the defendant on the basis that he was the only heir and legal representative of the deceased mortgagee Gangadhar. The claim for redemption thus made by the respondent was resisted by the appellant on several grounds. It was alleged that after the expiry of the stipulated period of 15 years, the property had become the absolute property of the mortgagee and it was urged that the original transaction was, in substance, and in reality, not a mortgage but a sale. Several other pleas were also raised by the appellant in resisting the respondent 's claim, but it is unnecessary to refer to them. The learned trial Judge framed appropriate issues which arose on the pleading of the parties. In substance, he field that the claim for redemption made long after the 15 years ' period had expired could not be sustained. Findings were made on other issues also and they were against the respondent. In the result, the respondent 's suit was dismissed. The respondent then took the matter in appeal before the Rajasthan High Court. He urged that the view taken by the trial Court that the stipulation as to the mortgagor 's liability to re pay the loan within 15 years did not bar his present suit for redemption, because the said stipulation amounted to a clog on the equity of redemption and as such, could not affect the mortgagor 's right to redeem, and he added that the transaction, in substance, was a mortgage and not a sale, and so, his right to redeem was alive and could be effectively enforced by the present suit. The High Court has upheld his first contention that the relevant 51 S.C. 16. 242 provision as to the period within which the mortgage amount had to be repaid amounted to a clog on the equity of redemption and could not be pleaded as a bar to the present suit. But on the question about the character of the origi nal transaction itself, the High Court appears to have been inclined to take the view that the relevant clause on which the plea about the bar was raised did not really support the said plea, because it was by no means clear that even after the expiration of 15 years, the mortgagee was intended to be the absolute owner of the property. On these findings, the decree passed by the trial Court dismissing the respondent 's suit has been reversed and the suit has been remanded to the trial Court to be disposed of in accordance with law. It is against this order that the appellant has come to this Court by special leave. Pending the appeal before this Court, both the appellant and the respondent have died, and their respective heirs have been brought on the record. The first question which calls for our decision is whether the relevant clause on which the appellant relies makes the mortgagee the owner of the property at the end of the sti pulated period of 15 years. The mortgage provides, inter alia, that after the house which was the mortgage property was delivered over to the mortgagee, it was open to him either to live in it, or to let it out to tenants. The mortgagee was further given liberty to spend up to Rs. 35 for repairing the house and if more expenses were intended to be incurred, the &aid expenditure would be incurred through the mortgagor. On the expenditure thus incurred the mortgagor was liable to pay interest at the rate of As. 0 6 0 per cent per month. Then the document proceeded to add that the mortgagor would get the property redeemed on payment of the mortgage amount as well as the cost of Patta which may have been incurred by the mortgagee and the repairing expenses within a period of 15 years. Then, occurs the relevant clause: "After the expiry of the stipulated period of 15 years, this shop would be deemed as an absolute transfer "Mala Kalam" for this very amount. Till the mortgage money is paid, I shall have no concern with the shop. " The High Court appears to have taken the view that the words "Mala Kalam" which occur at 243 the end of the relevant clause do not necessarily import the notion that the mortgage property would be the absolute property of the mortgagee. According to the High Court, the said words literally mean "where there is no scope for having any say". If that is the meaning of the relevant words, it seems difficult to accept the view that the document did not intend to make the mortgagee the owner of the property at the end of 15 years if the debt due was not paid within that period. When the document says that there would be no scope for the mortgagor to say anything, it necessarily means, in the context, that the mortgagor would, in that case, have lost his title to the property, and that means the mortgagee would become the absolute owner of the property. Therefore, we feel no difficulty in holding that if the terms of the document were to prevail, the appel lant 's contention that the present suit for redemption is barred, must succeed. It is common ground that the amount due under the mortgage deed was not paid by the mortgagor or his heir within the stipulated period and that would extinguish the title of the mortgagor and make the mortgagee to be the owner of the property. But the question is whether such a stipulation can be allowed to be pleaded as a bar to the respondent 's claim for redemption. Just as it is common ground that if the terms of the document were to prevail, the suit would be barred, it is also common ground that if the doctrine that the clog on the equity of redemption cannot be enforced is to prevail in the present proceedings, the respondent 's action for redemption must succeed. The fact that a stipulation of the kind with which we are concerned in the present case amounts to a clog on the equity of redemption, is not and cannot be disputed. Therefore, the main question which arises in the present appeal is: does the equitable doctrine ensuring the mortgagor 's equity of redemption in spite of a clog created on such equity by stipulations in the mortgage deed apply to the present case? This question arises in this form, because the Transfer of Property Act did not apply to Alwar at the time when the mortgage was executed nor at the time when the 15 years ' stipulated period expired. 244 Mr. Sarjoo Prasad for the appellant contends that the High Court was in error in applying the equitable principle, because the said principle cannot be invoked in cases where the Transfer of Property Act does not apply. In support of this argument, he has very strongly relied on an early decision of the Privy Council pronounced in 1870, in the case of Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken(1). In that case, the Privy Council was dealing with a Bye bil wuffa, or mortgage and conditional sale usufructuary executed in 1806 under which the mortgagees were put in possession. The deed contained a condition that if the mortgagor failed to redeem within five years, the conditional sale was to be absolute. The mortgagor failed to redeem within the stipulated period, and the mortgagee, without foreclosing the mortgage, sold the mortgaged pro perty. Thereafter, the mortgagor 's representative sued to redeem the mortgage under section 8 of the Madras Regulation XXXIV of 1802. The Privy Council held that the interest of the mortgagee after the expiry of the stipulated period had become absolute. In dealing with this question, Lord Chelmsford who delivered the opinion of the Board observed that the form of security with which the Board was concerned had long been common in India, and he added that the sti pulations in such contracts were recognised and enforced according to their letter by the ancient Hindu law as well as under Mohammedan law; and in support of this statement, reference was made to certain passages from Colebrooke 's Digest on Hindu Law and Baillie 's introduction to his book on Mohammedan Law of Sale. If the ancient law of the country, observed Lord Chelmsford, has been modified by any later rule, having the force of law, that rule must be founded either on positive legislation, or on established practice; and since neither any specific statutory provision had been cited before the Board, nor established practice in that behalf had been proved, the Privy Council upheld the mortgagee 's plea that he became the absolute owner of the property at the expiration of the stipulated period. While pronouncing this decision, Lord Chelmsford, however, took the precaution of adding that while the Board was allowing (1) [1890] 13 Moore 's I.A. 560 245 the appeal, "it must not be supposed that their Lordships design to disturb any rule of property established by judicial decisions so as to form part of the Law of the Forum wherever such may prevail, or to affect any title founded thereon. " As we will presently point out, the appeal of Pattabhiramier was pending before the Privy Council for as many as 10 years. Meanwhile, Indian High Courts were enforcing the equitable principle that stipulations contained in mortgage deeds which amounted to clog on the equity of redemption could not be enforced. In other words, the jurisdiction which courts of equity exercised in England by refusing to enforce clogs on the equity of redemption, was being exercised by High Courts in India. However, before we refer to those decisions, it would be convenient to cite another decision of the Privy Council pronounced in Thumbusawmy Moodelly vs Hossain Rowthen & Ors(1). In that case, the Privy Council held that the con tract of mortgage by conditional sale is a form of security known throughout India, and by the ancient law of India, it must be taken to prevail in every part of India, where it has not been modified by actual legislation or established practice, and so, must be enforced according to its letter. In this case, Sir James W. Colvile who delivered the opinion of the Board, referred to the earlier decision of the Privy Council in Pattabhiramiers case(1), noticed the trend of judicial pronouncements made by the High Courts in India while Pattabhiramier 's case was pending before the Privy Council, and strongly reiterated the view that the said decisions of the High Courts were radically unsound. He referred to the fact that unfortunately, Pattabhiramier 's case " slept for nine years, and that in the interval the Sudar Court, and afterwards the High Court which succeeded it, continued the course of decision which the former had given in 1858". Then he mentioned the relevant decisions of the Madras and the Bombay High Courts and expressed the opinion that in trying to enforce principles of equity in dealing with stipulations contained in mortgage documents, the High Courts were really assuming the functions of Legislature. So, it is clear that the Privy Council emphatically (1) I.L.R. (2) [1870] 13 M.I.A. 246 declared in 1875 that unless there is a legislative enactment or established practice to the contrary, terms in the contract of mortgage by conditional sale must be taken to prevail in every part of India and must be strictly enforced according to their letter. Mr. Sarjoo Prasad naturally relies on these decisions and contends that so far as the State of Alwar is concerned, there is no legislative enactment to the contrary, nor is there any established practice on which the equitable doctrine could be pleaded by the respondent in support of his case that though 15 years have elapsed, his right to redeem still survives. There are two other decisions of the Privy Council to which we may refer at this stage. In Kader Moideen V. Nepean(1), the Privy Council was dealing with a case from Burma, and it observed that the Burmese Courts are directed, in the absence of any statutory law applicable to accounts against a mortgagee in possession, to follow the guidance of justice, equity, and good conscience. Acting on this principle, the Privy Council accepted Mr. Haldane 's contention that there was no rule of abstract justice in taking the accounts of a mortgagee in possession, and that the Indian rule, which was embodied in section 76 of the Transfer of Property Act, should, though the Act had not been extended to Burma, be followed there in preference to the English practice. It would thus be seen that the equitable principle underlying the provisions of section 76 was extended to the case on the specific ground that the Burmese Courts had been directed by the relevant statutory provision to follow the guidance of justice, equity and good conscience in the absence of any statutory law applicable to accounts against a mortgagee in possession. This decision, therefore, is in line with the two earlier decisions of the Privy Council. Similarly, in Mehrban Khan vs Makhna(2), where the Privy Council was dealing with the provisions in a mortgage deed conferring on the mortgagee upon redemption an interest in the mortgaged property, it was held that the said provisions amounted to a clog or fetter on the equity of redemption and as such, were void not only against the mortgagor, but also against the purchaser of his interest, (1) 25 I.A. 241 (2) 57 I.A. 168 247 since they were inconsistent with the very nature and essence of a mortgage. In this case, again, section 28 of Regulation No. VII which was applicable to the North West Frontier Province, had expressly provided that in cases not otherwise specially provided for, the Judges shall decide according, to justice, equity and good conscience; and so, recourse to the equitable doctrine was permissible because there was the statutory mandate requiring the Judges to apply the said doctrine where there was no specific legislative provision in relation to the matter with which they were dealing. Though the position of the Privy Council decisions is thus clear and consistent, the trend of the decisions of the High Courts in India continued to conform to the same pattern which was set up by the decision of the Madras High Court in the case of Venkata Reddi vs Parvati Ammal(1) and adopted by the Bombay High Court in Ramji bin Tukaram vs Chinto Sakharam (2). The question was elaborately argued on several occasions before the said High Courts and the two earlier decisions of the Privy Council in the case of Pattabhiramier(3) as well as in the case of Thumbuswamy Moodelly(4) were cited and yet, the High Courts have con sistently adhered to the view that in dealing with mortgage transactions which contain unfair, unjust or oppressive stipulations unreasonably restricting the mortgagor 's right to redeem, the Court would be justified in refusing to enforce such stipulations and recognising the paramount character of the equity of redemption. In Bapuji Apaji vs Sonavaraji Marvati(5), Westropp, C.J., has elaborately considered the relevant aspects of this question. He referred to the two Privy Council 's decisions and observed that the doctrine of Ramji vs Chinto(2) had been uniformly followed in the Bombay Presidency in a multitude of cases, and he saw no reason to depart from that decision. In expressing his firm adherence to the pattern of the law prescribed by the decision of the Bombay High Court in Ramji vs Chinto, the learned Chief Justice elaborately considered all the precedents on the point, trend of authorities bearing on the question, the opinion of scholars, and held that he was inclined (1)1 Mad. H.C. Rep. 460 (2) 1 Bom. H.C.Rep. 199 [1864] (3) [1870] 13 M.I.A. 560 (4) I.L.R. (5) I.L.R. 248 to take the law to be that which was settled in Ramji vs Chinto(1) and gave effect to it. So far as the Bombay High Court is concerned, the practice consistently had been to follow the decision of Westropp, C.J. till the Transfer of Property Act was extended to Bombay. In Madras, we find that same position. In Ramasami Sastrigal vs Samivappanayakan(2), the majority view of the Full Bench was that in the Madras Presidency, where con tracts of mortgage by way of conditional sale have been entered into subsequent to the year 1858, redemption after the expiry of the term limited by the contract must be allowed. The, point with which we are dealing in the present appeal was elaborately argued before the Madras High Court; the opinion expressed emphatically by the Privy Council was cited, but Turner, C.J., with whose opinion Muttusami Ayyar, J., agreed made a very significant observation after elaborately examining the merits of the questions "For these reasons," said the learned C.J., "we conceive that we shall not be wanting in due respect for the distinguished tribunal by whose decisions we are bound, if we follow the course they have pronounced there were strong reasons for adopting and apply the rules introduced, however erroneously, by judicial decisions in these provinces. " That view has prevailed in the Madras High Court ever since. These decisions show that the High Courts in India conformed to the view that whether or not there is a statutory provision directing the Judges to give effect to the principles of justice, equity and good conscience, it is their duty to enforce that principle where they are dealing with stipulations introduced in mortgage transactions which ' appear to them to be unreasonable, oppresive or unjust. It is true that according to the strict letter of the ancient Hindu Law, a stipulation that the mortgagor shall pay the amount advanced to him by the mortgage within a specified period, was intended to be enforced. The ancient Hindu law texts use the word "Adhi" to denote pledge of a movable or mortgage of immovable property. IV 124 divides Adhi into two sorts, viz., one that is to be redeemed within (1) 1 Bom. H.C. Rep. 199 Mad. 179 at P. 190 249 a certain time fixed (by agreement at the time of contracting the debt) or to be retained till the debt is paid off. In regard to the first category of mortgages, if the money is not paid at the time fixed, the thing pledged or mortgaged would belong to the creditor (vide Yaj. 58 and as explained by Mitakshara) (1). It also appears that if the mortgage is not redeemed even when the debt has grown to double of the principal by non payment of the interest agreed upon, the mortgagor lost his title over the mortgaged property; so that it must be conceded that under the strict letter of the Hindu law texts, if a mortgage deed contains a stipulation for the repayment of the mortgage amount within a specified period, at the expiration of the said period the mortgagor may lose his title over the mortgaged property. The principle underlying this provision appears to be that Hindu law as enunciated by the ancient texts, attached considerable importance to a person keeping his promise. Though that is so, we ought also to add that according to Sir R. B. Ghose, ordinarily, time was not of the essence of the contract of mortgage in Hindu law(1), and in support of this opinion the learned author quotes with approval Colebrooke 's opinion. Basing himself on this position of the Hindu law, Mr. Sarjoo Prasad contends that we ought to assume that Hindu Law which was applicable to Alwar recognised the importance of compelling the mortgagor to perform his promise that he would repay the debt within a specified time and if he tailed to do so, he would lose his title over the mortgaged property. He urged that the dispute between the parties in the present appeal should be decided in the light of this position of the Hindu law as well as the principles enunciated by the Privy Council in the cases of Pattabhiramier(3) and Thumbusawmy Moodelly (4). In dealing with this argument, it would be relevant to observe that traditionally, courts in India have been con sistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which un reasonably restrain or restrict the mortgagor 's right to (1) Dr. Kane 's History of Dharmasastra Vol. ,128 (1) Ghose on 'The Law of Mortgage in India ' Tagore Law Lectures 1875 6, 5th Ed. I. p. 56. (3) [1870] 13 M.I.A. 560 (4) I.L.R. 250 redeem. We may, in this connection, refer to some of the statutes which were in force in India. The old Bengal Regulation III of 1793 by section 21 directed the Judges of the District and City Courts in cases where no specific rule existed to act according to justice, equity and good con science. Similar provision occurs in section 17 of the Madras Regulation II of 1802. The Bengal Civil Courts Act, 1887, and the Madras Civil Courts Act, 1873, contain similar pro visions in sections 37 and 16 respectively. Likewise, in regard to Courts in the Mufassal of Bombay, Bombay Regulation IV of 1827 by section 26 provides that the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant, and in the absence of specific law and usage, equity `and good conscience. In fact, in Namdeo Lokman Lodhi vs Narmadabai(1), this Court has emphatically observed that it is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions. These observations, in substance, represent the same traditional judicial approach in dealing with oppressive, unjust and unreasonable restric tions imposed by the mortgagees on needy mortgagors when mortgage documents are executed. There is one other circumstance to which we ought to refer. We do not know what the true position of the Hindu law was in the State of Alwar at the relevant time. In fact, we do not know what the provisions of the Contract Act were in the State of Alwar. Even so, we think it would be reasonable to assume that civil courts established in the State of Alwar were like civil courts all over the country, required to administer justice and equity where there was no specific statutory provision to deal with the question raised before them. Whether or not the Hindu law which prevailed in Alwar was similar to that prescribed by ancient Hindu Sanskrit texts, is a point on which no material is produced (1) ; 251 before us. It may well be that just as in Bombay and Madras, notwithstanding the ancient provisions of Hindu Law which seem to entitle the mortgagee to insist upon the performance of a stipulation as to time within which the mortgage debt has to be paid, the High Courts had con sistently refused to enforce such stipulations, the Courts in the State of Alwar also may have adopted the same approach. In the absence of any material on the record on the point, we are reluctant to accept Mr. Sarjoo Prasad 's argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute. In this connection, it is material to refer to the recent decisions pronounced by the Rajasthan High Court in which this position has been upheld either because it was conceded, or because the High Court took the view that the principles of equity were enforceable in dealing with mortgage transactions in Rajasthan. In Amba Lal vs Amba Lal(1), the Rajasthan High Court held that section 60 and its proviso contained a general principle of law applicable to mortgages in this country, which should be applicable even in those places where the Transfer of Property Act may not be in force as such, but where its principles may be in force. The property in question which was the subject matter of the mortgage was situated in the State of Udaipur. Similarly, in the case of Seleh Raj vs Chandan Mal(2) , the Rajasthan High Court held that the principle underlying section 60 may well be regarded to be a salutary one and in accordance with the principles of equity, justice ,and good conscience. Accordingly it took the view that though the Transfer of Property Act may not be in force in the territory in question, it would not be unreasonable to decide a case in accordance with the principles underlying the said section. The property with which the Court was concerned in this case was situated in the State of Jodhpur. The same principle has been applied in Himachal Pradesh (vide Nainu vs Kishan Singh)("). (1) I.L.R. r957 Raj. (2) I.L.R. (3) A.I.R. T957 H.P. 46. 252 Thus, it is clear that the equitable principle of justice, equity and good conscience has been consistently applied by Civil Courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent that it was recognised even in Alwar that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagor 's equity of redemption, courts were empowered to ignore that stipulation and enforce the mortgagor 's right to redeem, subject, of course, to the general law of limitation prescribed in that behalf. We are, therefore, satisfied that no case has been made out by the appellant to justify our interference with the conclusion of the Rajasthan High Court that the relevant stipulation on which the appellant relies ought to be enforced even though it creates a clog on the equity of redemption. In the result, the appeal fails and is dismissed with costs.	The respondent sought to redeem a mortgage executed in the State of Alwar in 1919. By a stipulation in the mortgage deed the mortgagor agreed that if the debt was not paid within 15 years the mortgagee would become the owner of the property. The respondent 's case was that the transaction was a mortgage and that he could redeem the mortgage even though the stipulated period was over. The appellant resisted the suit on the ground that the transaction amounted to a sale and not a mortgage. The trial Judge dismissed the suit holding that the claim for redemption was not maintainable after the expiry of the stipulated period. The Rajasthan High Court on appeal reversed the decision of the trial Judge holding that the stipulation was a clog on the equity of redemption and remanded the suit. The stipulation in question I was as follows, "After the expiry of the stipulated period of 15 years this shop would be deemed as an absolute transfer 'Mala Kalam ' for this amount. Till the mortgage money is paid, I shall have no concern with the shop. " Held:If the stipulation were to prevail, the use of the words 'mala kalam ', which meant that there would be no scope for the mortgagor to say anything, would indicate that the mortgagee became the absolute owner of the property. But the stipulation, which was undoubtedly a clog on the equity of redemption, must fail and the suit for redemption must succeed. 240 The equitable principle of justice, equity and good conscience, long and consistently applied by Civil Courts in lndia, could be applied in the State of Alwar even though the Transfer of Property Act had no application there at the time when the mortgage document was executed or its period expired. The strict provisions of the texts of Hindu Law in this regard would be of no avail. Namdeo Lokman Lodhi vs Narmadabai, ; , applied. Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken, (1870) 13 M.I.A. 560 and Thumbusaway Moodelly vs Hossain Rowthen,I.L.R. I Mad. 1, considered. , Venkata Reddy vs Parvati Ammal, I Mad. H.C. Rep. 460, Ramji bin Tukaram vs Chinto Sakharam, I Bom. H.C. Rep. 199 (1864), Bapuji Apaji vs Senavaraji Marvadi, I.L.R. 11 Bom. 231, Ramasami Sastrigal V. Samiyappanayakan, I.L.R. 4 Mad. 179, Amba Lal vs Amba Lal, I.L.R. , Seleh Raj vs Chandan Mal, I.L.R. and Nainu vs Kishan Singh, A.I.R. 1957 H.P. 46, referred to.
minal Appeal No. 834 of 1965. Appeal by special leave from the judgment and order dated October 19, 24, 1964 of the Bombay High Court in Criminal Appeal No. 1330 of 1964. A. section R. Chari, R. Nagaratnam, Vineet Kumar and Shyamala Pappu, for the appellant. Debabrata Mukherjee, H. R. Khanna and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Sikri, J. This is an appeal by special leave against the judgment and order of the High Court of Judicature at Bombay dismissing the appeal of the appellant against the conviction recorded by the Special Judge for Greater Bombay. The appellant was convicted by the Special Judge under section 5(2), read with section 5 1 (1 ) (a) X (d) and section 5 (3 ), of the Prevention of Corruption Act, 1947 (11 of 1947) hereinafter referred to as the Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,25,000/ , in default of payment of fine to suffer further rigorous imprisonment for one year. The Special Judge further directed that the amount of fine be recovered from the properties seized. The following charge was framed against the appellant: " That you, while functioning as (a) Income tax Officer, from about 1st April 1947 to November 1954 at Jalgaon Dhulia, Godhra and Mahansa (b) as Inspector of Income tax from November 1954 to January 1958 at Surat and Broach, (c) as Incometax Officer from January 1958 to the end of November 1961 at Bhavnagar, Dhulia, Amraoti and Ratnagiri, habitually accepted or obtained and habitually agreed to accept or attempted to obtain gratification other than legal remuneration and obtained for yourself pecuniary advantage by corrupt and illegal means or by otherwise abusing your position as a public servant, with the result that, during the said period you came in possession of assets of the value of about Rs. 2,01,080/ which were disproportionate to your known sources of income for which you could not satisfactorily account and you thereby committed the offence of criminal misconduct punishable under subs. (2) read with section (1) (a), (d) & (3) of section 5 of Act IT of 1947, the Prevention of Corruption Act, 1947, and within the cognizance of this Court. " 238 The case of the prosecution before the Special Judge was that the appellant was habitually corrupt, and wherever he was posted he used to develop personal contacts with the assessees, whose cases were pending before him and in his talk with them he tried to impress upon them that they were likely to be heavily taxed; he used to create a favourable psychological background and taking advantage of the same tried to screw out money from them; if the assessee did not accept his proposal or proved to be smarter, he used to harass him by various methods. The prosecution sought to establish the charge against him under section 5(1)(a) of the Act by leading evidence of five instances: (i) He obtained from the witness Gopaldas an amount of Rs. 3,000/ as a loan and subsequently converted it as his personal gratification for finalising income tax cases of his firm. (ii) He demanded an illegal gratification ( Rs. 10,000/ from the witness Gopaldas to show him were pending before him. (iii) He attempted to obtain bribe from P.W. 7 Motilal Bansgopal, whose income tax proceedings were pending before him. (iv) He atempted to obtain bribe from the assessee P.W. 9, Somchand Khimji, whose income tax proceedings were pending before him. (v) He also made a demand of bribe of Rs. 400/ to Rs. 500/ from P.W. 93 Gulabdas Kisondas Bhatia of Dharanyaon. Before the Special Judge the prosecution also relied on the presumption arising under section 5(3) of the Act as the accused was found to be in possession of assets worth about Rs. 2,01,080 which were disproportionate to his known sources of income. The learned Special Judge, in a very detailed and lengthy judgment, held that it was not proved that the appellant had obtained Rs. 3000/ from Gopaldas representing that he wanted the amount as a hand loan for taking delivery of the car. He further held that it was not proved that the appellant demanded bribe of Rs. 10,000/ from him as a motive for doing him favour in the disposal of his wealth tax cases. Regarding P.W. 7. Motilat Bansgopal. the Special Judge held that the accused had entertained a corrupt motive in asking the assessee P.W. 7to see him at his residence, and this circumstance could be considered against him in considering the charge for the offence of 239 habitually being corrupt. Regarding Somchand, P.W. 9, the Special Judge held that the appellant had made an implied demand of bribe and had a guilty conscience. Regarding Gulabdas, he held that the allegation regarding demand of bribe from P.W. 93, Gulabdas, had not been proved. He summarised. the findings thus "Thus out of specific instances the prosecution has established only two and it has been proved that the accused had made an implied demand of bribe from P.W. 9, Somchand and he had also asked P.W. 7, Motilal to come to his residence in connection with the delay in filing the return. The second instance though does not establish any demand of bribe as such, it does prove the proclivity of the mind of the accused and a corrupt tendency and would support the prosecution version." He further held that "the two instances proved will not themselves be sufficient to prove habit of bribe taking and the question is whether considering all the matters before the court it can be held that the accused is guilty of criminal misconduct and if yes, of what category." He further held that the appellant could be convicted on the strength of presumption arising under section 5 (3). The High Court repelled the contention of the appellant that no presumption arose under section 5 (3) of the Act because no specific instances had been held to be proved and, at any rate, they did not amount to an offence. The High Court distinguished the cases of R. section Pandit vs State of Bihar,(1) and Surajpal Singh vs The State of Uttar Pradesh(2). The High Court further observed that the trial Judge had accepted the evidence regarding two instances while it was prepared to accept the instance involving Gopaldas also. The High Court generally agreed with the finding regarding disproportionate assets and disbelieved the explanation offered by the appellant. Before we deal with the merits of the case, we shall taker up two preliminary points raised by the learned counsel for the appellant, Mr. Chari. He urged that as sanction had not been given for prosecuting the appellant the whole trial was bad. He said that the search of the appellant 's house took place on November 4, 1961, and on June 27, 1962, he was dismissed ' from service by the Commissioner of Income tax. On July 30, 1962, charge sheet was filed in the court of Special Judge. On (1) [1963] Suppl. 2 S.C.R. 652. (2) ; 240 "September 21, 1962, the appellant submitted an appeal to the President of India and the President was pleased to, convert the order of dismissal into one of the removal. The learned counsel contends that I pending the appeal the appellant should have been deemed to be in service and, therefore deemed to be in service on July 30, 1962. A similar point was raised before the Special Judge and he repelled the contention in the following terms . "For requiring a sanction to be taken before taking cognizance of an offence against a person, he must be in actual employment of the State. A mere right of appeal will not invest him with that status. Moreover, a person may have right of appeal, but he may not exercise the same and may not file the appeal. It is purely within his discretion and the act of taking cognizance which is the course of law would not be made dependent upon such arbitrary and discretionary alternatives held by a person. " The Special Judge also referred to rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the explanation thereto in which it is stated : "In this rule the expression 'member of a Central Civil Service ' includes a person who has ceased to be a member of the service. " This explanation was also relied on before us. Regarding the explanation the learned Special Judge came to the conclusion that the explanation was restricted to that particular rule for giving the dismissed servant a right to prefer an appeal. We agree with the conclusion of the learned Special Judge. Section 6 of the Act reads as follows : "Previous sanction necessary for prosecution. (1) No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code (Act 45 of 1860), or under sub section (2) of section 5 this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save, by or with the sanction of the Central Government, of the Central Government. 241 (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from the office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public ser vant from his office at the time when the offence was alleged to have been committed. " It seems to us that the person must be employed in connection with the affairs of the Union in sub cl. (a) and with the affairs of the State in sub cl. (b) The case of the appellant would be covered in sub cl. (a) because he had been employed in connection with the affairs of the Union. But the sub section contemplates that the person must be employed in connection with the affairs of the Union and not that he was employed with the affairs of the Union. The policy underlying section 6, and similar sections, is that there should not be unnecessary harassment of public servants. But if a person ceases to be a public servant the question of harassment does not arise. The fact that an appeal is pending does not make him A public servant. The appellant ceased to be a public servant when the order of dismissal was passed. There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under section 6 of the Act. The other preliminary point which the learned counsel raised was that the charge was defective. We have already set out the charge. It is true that there are no instances given in the charge. But as the charge is of habitually accepting the. bribe it is no,, necessary that the various instances should have been mentioned. It was expressly so held by this Court in Biswabhusan Naik vs The State of Orissa(1). This Court overruled a similar point in the following words: "But no particulars need be set out in the charge in such a case because the offence under section 5(1) (a) does not consist of individual acts of bribe as in section 161 of the Indian Penal Code but is of a general character. Individual instances may be useful to prove (1) [1955]1 S.C.R.92. 2 807 Sup CI/71 242 the general averment in particular cases but it is by no means necessary because of the presumption which section 5(3) requires the Court to draw. " This Court accordingly held in that case that there was no illegality in the charge. We accordingly hold that the charge in this case was not illegal. We may now deal with the merits of the case. This is an appeal by special leave, and as there are concurrent findings of fact we do not ordinarily go into questions of fact. But we allowed Mr. Chari to take us through the relevant evidence, both oral and documentary, in order to show whether the concurrent findings were vitiated in any respect. He has not been able to point out any circumstances which may lead us to differ from the concur rent findings. It is true that as far as the case of Gopaldas is concerned the High Court differed from the Special Judge and held that the allegations were proved. The learned counsel has taken us in detail through the material relevant to this witness and we are inclined to agree with the conclusion arrived at by the High Court. But apart from that the concurrent findings regarding P.W. 7, Motilal, and P.W. 9, Somchand, and the presumption arising under section 5(3) are sufficient to sustain the conviction recorded against the appellant. The learned counsel urged before us that if the prosecution fails to establish any of the offences mentioned in section 5 (1) (a) to 5 (1) (d), the question of assets being found disproportionate to the known sources of the accused becomes irrelevant. A number of cases were referred to us but we are unable to agree with this proposition because we are bound by the ruling to the ,contrary given by this Court. In Biswabhusan Naik vs State of Orissa(1), after referring to section 5(1)(a) and section 5(3), Bose, J., speaking for the Court, observed : "Therefore, all that the prosecution has to do is to show that the accused, or some person on his behalf, is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Once that is established then the Court has to presume, unless the contrary is proved, that the accused is guilty of the new offence created by section 5, namely criminal misconduct in the discharge of his official duty." (1) [19551] 1 S.C.R. 92. 243 Then the Court proceeded to deal with the facts thus "Now the accused was found in possession of Rs. 3,148/ . He accounted for Rs. 430/ of that sum by showing that it was paid to him at the, time as a trap. He has been acquitted of that offence, so all he had to account for was the balance Rs. 2,698/ . This is a large sum for a touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is a question of fact with which we are not concerned in this Court. Therefore, all that remains to be seen is whether this was disproportionate to his known sources of income. " Then the Court referred to the findings regarding his total emoluments drawn and the small piece of land owned by him, and observed "Once the facts set out above were found to exist and the explanation of the accused rejected as unsatisfactory, section 5(3) was at once attracted and the Court was bound to presume (the word used in the section is 'shall ' and not 'may ') that the accused was guilty under section 5(2), especially as this part of the section goes on to say 'and his conviction 'therefor shall not be invalid by reason only that it is based solely on such presumption." These facts alone are enough to sustain the conviction and we need not consider the other matters. " The conviction, therefore, of Biswabhushan Naik, in that case, solely proceeded on the presumption as in the earlier part of the judgment it was observed that he was separately charged and separately prosecuted under section 161 of the Indian Penal Code for three specific offences of bribe taking but was acquitted on all the counts and his conviction was only under section 5 (2) alone. Similarly in C.S.D. Swamy vs The State, Swamy 's conviction was sustained only on the presumption. The appellant, Swamy, in that case was put up on trial on charges under sections 5(1) (a) and 5 (1) (d) of the Act. Payments of particular sums by way of bribe were not proved against him. But the High Court, holding that the appellant 's bare statements from the dock un supported by any other acceptable evidence could not satisfactorily account for the large deposits standing to his credit in (1) ; 244 his bank accounts raised the presumption under section 5 (3) of the ,Act and held him guilty of criminal misconduct in the discharge of his official duty under section 5 (1) (d) of the Act. It was contended before this Court that the charge relating to specific instances of bribery having failed the contrary presumption under section 5(3) of the Act should have been established. This Court repelled the argument in the following words : "The finding of the High Court and the court below is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of section 5 (1 ) (a) of the Act, but the failure to bring the charge home to the accused under section 5 (1 ) (a) does not necessarily lead to the legal effect contended for. As soon as the requirements of sub section (3) of section 5 have been fulfilled, the Court will not only be justified in making, but is called upon to make the presumption that the accused person is guilty of criminal misconduct within the meaning of section 5 (1) (d). If there is evidence forthcoming to satisfy the requirements of the earlier part of sub section (3) of section 5, conviction for criminal misconduct can be had on the basis of the presumption which is a legal pre sumption to be drawn from the proof of ' facts in the earlier part of the sub section (3) aforesaid. That is what has been found by the courts below against the accused person. Hence, the failure of the charge under cl. (a) of sub section (1) of section 5 does not necesarily mean the failure of the charge tinder section 5(1)(d). " It will be noticed that while Bose, J., in Biswabhushan Naik vs State of Orissa(1), held that once the presumption applies the accused was guilty of the new offence created by section 5, namely. criminal misconduct in the discharge of his official duties, without specifying any of the sub clauses,Sinha, J,, as he then was. held that the offence under ' section 5 (1) (d) 'was made out. It is not necessary to decide in this case which is the correct way of putting the matter because, whichever reasoning is adopted the case of the appellant fails. The case of Surajpal Singh vs State of Uttar Pradesh(2) does not assist the appellant. It is true that, as laid down by this Court, section 5(3) does not create a new offence. But this does not mean that if the prosecution fails to prove the specific (1) ; (2) [1961] 2 S.C.R.971. 245 charges the presumption under section 5(3) cannot be applied. in Surajpal 's case what, happened was that the only charge against Surajpal was of 'criminal misconduct under section 5(1)(c) of the Act. But since he was acquitted of the charge it was held that he could not be convicted. of criminal misconduct referred to in cls. (a), (b) or (d) of section 5(1) of the Act for which he had not been charged. R. section Pandit vs State of Bihar(1) also does not assist 'the appellant. It is true that it was held in that case section 5(3) does not create a separate offence but lays down only a rule of evidence and marks a departure from the well established principle of criminal jurisprudence that onus is always on the prosecution to bring home the guilt to the accused. But it does not follow from this that if the prosecution has failed to prove specific instances it cannot rely on the presumption. The learned counsel contended that if this is the law, the prosecution need not allege any specific instance at all and could come to Court only alleging that the accused had assets disproportionate to his known sources of income. This point does not arise in this case and is not likely to arise again because the Act has since been amended and the act of possessing pecuniary resources or property disproportionate to known sources of income, for which the public servant cannot satisfactorily account, has been made into a separate offence. Therefore we need not consider this example given by the learned counsel. Accordingly we hold that the, appellant in this case had pecuniary resources and property disproportionate to his known sources of income, and that both the High Court and the learned Special Judge rightly held that the presumption arose under section 5 (3). We may mention that the learned counsel tried to show that the assets were not too disproportionate but nothing has been shown which would entitle us to set 'aside the concurrent findings on this aspect of the case. The learned counsel then said that a fine of Rs. 1,25,000/ has been levied and the appellant has already undergone sen tence of about four months. He said that the appellant is now on bail and it would be hard on him if we send him back to jail. He further said that the investigation began somewhere in 1961, the trial began in 1963, and the expenses of the,trail and the printing of the records has cost the appellant a great deal, (1) [1963] Supp. 2 S.C.R. 652. 246 and further that the State has kept Rs. 1,25,000/ out of the seized amount for recovery of the fine. The learned council for the respondent drew our attention to section 5(2) which provides that any public, servant who commits criminal miscounduct in the discharge of his duty shall be punishable with imprisonment which shall not be less than one year but which may extend to seven Years and shall also be liable to fine, provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year. It seems to us that in view of the facts mentioned by the learned counsel for the appellant it will meet the ends of justice if the sentence is reduced to one already undergone, maintaining the sentence of fine. In the result the appeal is allowed to the extent that sentence of three year 's rigorous imprisonment is altered to imprisonment already undergone. His bail bonds shall stand cancelled. V.P.S. Sentence modified.	The appellant, who was an income tax Officer, was, dismissed from service and against the order of dismissal he filed an appeal to the President of India. Meanwhile, he was charged under the Prevention of Corruption Act, 1947, with the offence of habitually accepting bribes. Five instances were offered by the prosecution in evidence against him to prove the charge. The trial court accepted the evidence regarding two instances, and convicted the appellant under section 5(2) read with sections 5(1)(d) and 5(3) of the Act drawing the presumption under section 5.(3) (before its amendment in 1964) against him on the ground that he was in possession of assets disproportionate to his known sources of income. He was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1,25,000/ , to be recovered from the properties siezed from him. The High Court accepted the evidence regarding one more instance and confirmed the conviction and sentence. In appeal to this Court, HELD : (1) The trial is not bad for lack of santcion under section 6 of the Act. The appellant ceased to be a public servant when the order of dismissal was passed. The fact that an appeal was pending would not make him a public servant. Sanction is necessary only when the person is employed in connection with the affairs of the Union and not when he was employed. [241 D F] (2)Since the charge was one of habitually accepting bribes it was not necessary that specific instances of taking bribe should be given in the charge. [241 G] Biswabhusan Naik vs State of Orissa, ; , followed. (3) The appellant had property disproportionate to his known sources of income and the presumption under section 5(3) of the Act was rightly drawn against him. Failure to establish any of the offences in section 5(1) (a) to (d) is irrelevant for sustaining a conviction based on the presumption. Biswabhusan Naik vs State of Orissa, ; and C. S.D. Swamy vs State, ; , followed. Surajmal Singh vs State of Uttar Pradesh, [1961] 2 S.C.R. 971 and R. section Pandit vs State of Bihar, [1963] Supp. 2 S.C.R., 652, referred to and explained. [245 C] (4) In view of the fact that the appellant had undergone the sentence for about four months and a large fine was imposed on him, the ends of justice would be met if the sentence is reduced to one already undergone while maintaining the sentence of fine. [246 B C] 237
Criminal Appeal No. 393 of 1979. From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and Crl. Revision Case No. 833 of 1977. U.R. Lalit and K.R. Choudhary for the Appellants. K.V. Venkataraman for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. Parusuraman @ Velladurai, Karuppaiah, Nagasundaram and four others (hereinafter referred to as A1 to A7) were tried for the murder of one Jawahar. Three charges were framed against them. A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder. The second charge related to rioting wherein A1, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 I.P.C. respectively. The third charge under Section 302 read with Section 149, I.P.C. was against Al to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with aruval (bill hook) and A6 armed with vel stick (spear stick), attacked Jawahar at about 8.30 A.M. on January 2.8, 1977 and caused him multiple injuries as a result of which he died on the same day. All the ac cused persons were acquitted by the learned Trial Judge. On appeal the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect. of A1to A3. Believing the prosecution evidence, the High Court came to the conclusion that the commission of offence by A1 to A3 was proved. They were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigor ous imprisonment for five years. This appeal by A1 to A3 via special leave petition is against the judgment of the High Court. While granting special leave to appeal this Court by its order dated August 10, 1979 allowed bail to the appel lants. We have heard learned counsel for the parties. We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt. We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the 3 offence committed by the appellants come within the mischief of Section 325 read with 34, I.P.C. Thirteen external in juries were found on the dead body of Jawahar. Out of those 11 were on lower legs and arms. The High Court while consid ering the nature of offence observed as under: "These accused and their associates who be set themselves on Jawahar could never have intend ed to cause the death of Jawahar for, if such was their intention, they could have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely causing simple and grievous injuries to him. Even with reference to the aspect whether the accused persons could have, intended to cause such injuries as would be sufficient, in the ordinary course of nature, to cause death, we are not able to give a finding in favour of the prosecution. Even according to Jawahar 's statement (Exhibit P 6) all that first accused had remarked was that the attack on him was in retaliation for the injuries Jawahar had caused on the first accused a few weeks earlier. " Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. We, therefore, set aside the conviction and sentence of the appellants under Section 304 Part I, I.P.C. read with Sec tion 34, I.P.C. and instead convict them under Section 325, I.P.C. read with Section 34, I.P.C. We impose the sentence of imprisonment already undergone by the appellants. We also impose the sentence of Rs. 7,000 each as fine on the appel lants. The appellants shall deposit Rs. 7,000 each before the Trial Court within four months from today. In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years. The amount of Rs. 21,000 rea lised as fine from the appellants be paid to the father/mother of deceased Jawahar. In the event of none of them surviving the amount shall be paid to Indra sister of deceased Jawahar. The appeal is disposed of in the above terms. V.P.R Appeal disposed of.	Three charges were framed against the appellants A1 to A7. A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder Al, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 IP.C., respectively and the third charge under section 302 read with Section 149, I.P.C. was against A1 to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with/ aruval (bill hook) and A6 armed with vel stick (spear stick), attacked the deceased at about 830 A.M. on January 28, 1977 and caused him multiple injuries, as a result of which he died on the same day. All the accused persons were acquitted by the learned Trial Judge, against which when appeal was filed, the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect of A1 to A3 and were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years, against that, this appeal was filed by the appellants A1 to A3 via Special Leave Petition. Disposing the appeal, by modifying the sentence, this Court, HELD: 1. Thirteen external injuries were found on the dead body of the deceased. Out of these 11 were on lower legs and arms. The intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. Keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence committed by the appellants comes within the mischief of Section 325 read with 34, I.P.C. and convicted them under Section 325, I.P.C. read with Section 34, I.P.C. imposing the sentence of imprisonment already undergone by them, and the sentence of Rs. 7,000 each as fine, to be deposited before the Trial Court, within four months, which be paid to the father/mother of deceased. 2 In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years. [3A, 3D F]
Civil Appeal No. 1331 of 1966. Appeal by special leave from the order dated January 20, 1966 of the Bombay High Court in Special Civil Application No. 54 of 1966. D. V. Patel and L N. Shroff for the appellant. G. P. Pai, Bhajan Ram Rakhiani and R. K. Khanna, for respondent No. 1. The Judgment of the Court was delivered by Mitter, J. The question involved in this appeal by special leave from an order of the Bombay High Court rejecting summarily a petition under Art.227 of the Constitution for the issue of a writ of certiorari or other appropriate writ for examining the legality of the award made by the Industrial Tribunal, Maharashtra on July 27, 1965 and published in the Maharashtra Gazette on August 19, 1905 and for quashing the same appears to be one of first impression so far as this Court is concerned. The appellant before e this Court is an institution which came into existence as far back as 1834. It originated in the desire of certain Hindu and Parsee gentlemen of the City of Bombay to put a stop to the practice of killing of stray dogs by the stray dogs by the sepoys of the East India Company. the deed of October 18, 1834 shows that certain Hindus , Parsees and Mahajuns had resolved to start a Panjrapole with suitable.buildings by raising subscription and also by promising to pay certain fees on stated mercantile commodities to the Panjrapole to be established for the keeping of stray cattle and other animals and for protecting their lives. This was followed by a deed of declaration of trust executed on 2nd November, 1850. This shows that the institution mentioned in the earlier document had 204 been established and the management of its funds had been placed in the hands of certain Banians. under the superintendence of Sir Jamshedjee Jeejeebhoy and that out of the surplus funds collected Rs. 75,057/ had been invested in the purchase of Government Promissory notes. The trustees were to stand possessed of the said notes and interest and dividends thereof upon trust for the use and benefit of the said institution. On 2nd November, 1850 a deed of assignment and declaration of trust in favour of panjrapole was executed by Sir Jamshedjee Jeejeebhoy to Khimchand Motichand. This document shows that a part of the surplus funds had been invested in the purchase of several pieces or parce Is ,of lands, houses etc. and the new trustees were to stand possessed of the same upon trust for the use and benefit ,of the said institution. Another trust deed was executed ,on 5th September, 1851 by Khimchand Motichand, Sir Jamshedjee Jeejeebhoy and others. This document shows that the institution was then possessed of considerable wealth comprising of Government promissory notes, houses, lands and other immovable estate in the Islands of Bombay, besides cash balances. The funds of the institution appear to have been augmented further under a deed of 10th June, 1871. According to this document certain charitably disposed persons, Hindus and Parsees, had raised a fund for releasing animals in Surat meant for slaughter on the occasion of Bakrild and Id E Kurbani. The trustees of the said fund being desirous of transferring the sums in their hands with all accumulations of interest, income etc. and also the trust thereof to the trustees of the Bombay Panjrapole had requested the trustees of the said Panjrapole to become the trustees of Surat Bakri Id fund to which the latter had a in Surat meant for slaughter on the occasion of Bakrild and Id E Kurbani. The trustees of the said fund being desirous of transferring the sums in their hands with all accumulations of interest, income etc. and also the trust thereof to the trustees of the Bombay Panjrapole had requested the trustees of the said Panjrapole to become the trustees of Surat Bakri Id fund to which the latter had agreed. This document shows further that the trustees of the Bombay Panjrapole had agreed to use the said funds towards the purchasing, releasing and redeeming from slaughter some of the cows, sheep and other animals intended or likely to be sacrificed at Surat on the Bakrid or Id Kurbani occasions and for conveyance of the animals so purchased to be kept there according to the custom and rules of that institution. In 1915 the Government 205 declared the institution as an infirmary under the Preven tion of Cruelty to Animals Act (IX of 1890). it would appear that the Bombay Panjrapole expanded its activities considerably over the years and had besides its original seat at Bombay, branches at three other places viz., at Raita, Bhiwandi and Chembur Cattle, birds and other animals were kept and maintained at all these places. A very large number of persons was pursuing manifold acti vities at the said places. Latterly the workers of the institution were not satisfied with their wage scales and other service conditions. On the basis of the report submitted by the Conciliation Officer under sub s.(4) of s.12 of the Industrial Disputes Act the Government of Maharashtra referred the dispute for adjudication to the Tribunal constituted under a Government notification. An order of reference was made on 25th June, 1963 and the heads of disputes were, the wages, privilege, sick and casual leave, bonus, gratuity and reinstatement of certain workmen. In the written statement filed by Panjrapole it was stated inter alia (a) The main aims and objects of the institution were purely charitable. Whatever income the institution had was not all to be distributed either to the donors or the trustees. It was wholly and solely for the maintenance and treatment of animals of the Bombay Panjrapole. To aehieve the above objects the means to be adopted were (i) maintenance of a shelter house for aged and unserviceable animals; (ii) the feeding and treatment of all animals entrusted to the institution either by the owners anxious to pension their old animals or rescued by philanthropic persons from the hands of butchers and the protection of animals remanded by magistrates; (iii) the breeding of bulls under ideal and sanitary conditions; (iv) the maintenance of a dairy farm with special attention to proper feeding, accommodation and water supply, the proceeds to go to the benefit of other animals of the Panjrapole; and 20 6 (v) bringing up of calves of the young cows under healthy conditions. (b) The Managing Committee of trustees of the institution was advised that in fulfilment of their primary and only object of maintaining sick and infirm cattle and dogs etc. it was necessary that they should have healthy food and nutrition. Since milk from outside would not fulfil that condition it was decided to upgrade the infirm cattle and rear them into good animals so as to get good and pure milk for the inmates of the Panjrapole. Thus the milk that was produced and remained surplus after feeding the old cows, motherless calves and dogs and other such animals was sold to members of public instead of being thrown off. The income derived therefrom was again utilised only after maintenance of the Panjrapole animals. The sale proceeds of the milk was never utilised nor meant for the benefit or the profit of the donors of of trustees nor was it produced and sold for the purpose or satisfying human needs or desires or with any object of rendering material service to the community. The cows which yielded milk were kept by the Panjrapole till the end of their lives. The milk derived from them could only be considered as natural and incidental product in the maintenance of cows. It was submitted on the basis of the above that essentially object with which the institution received animals was not for doing service to their owners or others but to the animals themselves. The Tribunal examined meticulously the activities of the institution over a number of years. The workers served various interrogatories on the trustees to elicit from the various facts relating to the income by way of rent from building etc. the income from milk and milk products, the income from sale of other commodities, the number and categories of animals in the Panjrapole, the number of animals, if any, purchased, the number of dry and wet cows owned by the Panjrapole and the number of stud bulls either purchased by or bred at the Panjrapole for the last ten years. The society answered all the particulars. The chart below prepared by the respondent shows the total cattle strength of the Panjirapole in all its four branches comprising of productive animals (whether milch cows milch buffaloes, 207 stud bulls and working bullocks), the number of unpro ductive animals, including cows, buffaloes, buffalo calves, heifers and calves and bullocks. The chart was compiled from the documents disclosed by the appellant and contains the figures for the years 1958 to 1962 Total strength in the following years. 1958 1959 1960 1961 1962 Total strength Bombay 149 117 150 201 214 Raita 833 595 508 604 538 Bhiwandi 501 653 503 408 426 Chambur 191 233 272 275 281 Total 1,674 1,598 1,533 1,4881,459 Sick, old and infirm Bombay. Raita 32 19 10 16 31 Bhiwandi 424 364 132 150 171 Chambur. Total 466 25 % 383 20% 142 10% 166 10% 202 15% Young animals Bombay Raita 181 44 120 50 36 Bhiwandi 6 47 5 99 59 Chambur 56 87 79 93 100 Total 243 178 204 242 185 Other cattle not sick Bombay 149 117 150 201 214 Raita 620 532 488 538 471 Bhiwandi 71 242 366 159 196 Chambur 135 146 193 182 181 Total. 975 1,037 1,197 1,080 1,602 The following chart was pared by the respondents showing the values of the milk supplied to the animals as 208 also the amounts fetched by sale of the surplus milk for the same years. Chart. Year Own consump Sale Total Percentage tion. Rs. Rs. Rs. of sale approxima tely 1 2 3 4 5 1958 2,681 1,49,854 1,314 3,995 1,53,849 2. 6% 1959 5,256 6,716 5,475 17,447 1,69,465 1,86,912 9. 5% 1960 1,755 6,570 2,686 11,011 2,13,117 24,1185% 1961 2,046 3,286 3,504 8,836 2,23,095 2,31,9314 4% 1962 1,954 4,555 3,650 10,159 2,30,043 2,40,2024% The facts found by the Tribunal may be summarised as follows (1) At the end of the year 1962 there were altogether, 445 cows, 48 bulls, bullocks and oxen, other cattle (cows and bullocks) 508, calves 495, dogs 160, goats and sheep 32, horses 12, hares 18, cocks, hens and ducks ' 18 and parrots 8 : the total number was 1754. (2) The total income for the year was Rs. 6,64,043 including the amount of Rs. 1,73,583 received by way of donation. The income proper was thus Rs. 4,90,459. , 20 9 (3) Some lands of the institution were under its personal cultivation. The sale proceeds of the yield thereof was Rs. 6,492. The rent fetched by the immovable property was Rs. 2,20.549. The milk vielded by the cows was regularly collected and sold, the sale proceeds for the year being Rs. 4,30,034. A large number of workmen was employed to attend to the cows and to feed them, to. milk the cows and to carry and sell the milk to the public. (4) The number of cows yielding milk at the end of the year was 242. At that time there were 75 pregnant cows. There were 57 other cows, 101 grown up calves (female) and 91 other small calves (female) all described as "reserved". In the opinion of the Tribunal all these calves would in course of time grow into cows. (5) The institution maintained some stud bulls. Besides there were bullocks which were used for plying the carts or for cultivation of the lands of the institution. (6) There were 36 heads of cattle described as arrivals from Bombay. There were another 87 cows described as "danger"; the rest of the cattle (cows and bullocks) were 57 lame and blind, 177 weak, 51 infirm, quite infirm 80 and sick 108, the total of this category being 473; including the "danger" cows the total was 560. These animals depended entirely on the charity of the institution. The Tribunal found the activities of the institution in connection with its movable property and collection and sale of milk to be an industry while the maintenance of danger cows, blind, lame, infirm and sick, the dogs and other animals did not constitute an industry. As already noted, the application under article 227 by the Panjrapole to the Bombay High Court was dismissed summarily and therefore we do not have the benefit of a judgment of the High Court. As the records stand we must proceed one the facts found by the Tribunal and such light as is thrown thereon by arguments of counsel. Before looking into the relevant authorities on the subject, we may note the points canvassed in support of or against the appeal by learned counsel on either side. Referring to the trust deeds it was argued on behalf of the appellant that the essential purpose of the institution was 210 to keep and foster animals which were either rejected by their owners as old and infirm or of no use to them as suckling calves, dry cows etc. It is not necessary to take into account the other animals which were maintained by the institution. Leaving out of account the number of dogs kept, the number of other animals was insignificant. It was argued that although the sale of milk produced a fair amount of income, certain portion of it was necessary for the maintenance of the sick and infirm animals and the sale of the balance of the milk ought to be regarded as incidental to the keeping of cows thrown on the hands of the institution and ought not to lead to an inference that the institution was pursuing an industry. With regard to the immovable properties, it was said that they had been purchased out of surplus funds in the hands of the insti tution over 50 years back and on a conspirator of the acti vities of the institution it should be held that it was merely doing charity to animals and it was not producing food or giving service to humans to constitute its activity as an industry within the meaning of s.2(1) of the Industrial Disputes Act. Learned counsel for the respondent drew our attention to certain facts which according to, him went to show that so far as the activity of keeping cattle, specially cows and she buffaloes was concerned, there could be little doubt that it was pursued as an industry. He handed over two charts containing analysis of the cattle population as culled from the documents placed before the Tribunal by the institution itself. The total strength of cattle in all the four branches of the institution in the year 1958 was 1674, 1598 in the year 1959, 1533 in the year 1960 and 1488 in 1961 and 1459 in 1962. The sick, old and infirm cattle for the year 1958 was 456 or roughly 25 per cent of the total strength. Young animals numbered 243 and other cattle which were not at all sick was 975 in number. The percentage of sick, old and infirm cattle in the year 1959 was roughly 20 % in. the year 1960 and 1961, 10 per cent and in the year 1962 15%. The rest of the cattle according to counsel were neither old nor infirm but were either producing milk or being put to use immediately or capable of yielding milk or work in the future. Another chart handed over by him went to show that the total value of milk produced in the year 1958 was Rs. 1,53,849 and 211 leaving out of account of Rs. 3,995 being the value of milk supplied to the sick cattle, the institution derived an in come of Rs. 1,49,854/ from the sale of milk. The corres ponding figures for 1959 were total sales Rs. 1,86,912, value of milk consumed Rs. 17,447, income from milk, Rs. 1,69,465. The figures for 1960 were Rs. 2,24, 118, Rs. 11,011 and Rs. 2,13,117/ ; those for 1961 were Rs. 2,31,931, Rs. 8,836 and Rs. 2,23,095/ . The figures for the last year 1962 were Rs. 2,40,202, Rs. 10,159 and Rs. 2,30,043. Thus according to the above figures, the percentage of milk given to the animals out of the total production was 2 6 in 1958, 9 5 in 1959, 5 in 1960 and 4 in the years 1961 and 1962. Learned counsel drew our attention to the figures of expenses of tending the sick and infirm cattle either by employment of hospital workers or medical expenses and compared the same with the total expenses of the institution and the number of men employed. The value of medical relief to animals either by way of salary to workers, dearness allowance paid to them, medical expenses and feeding of milk to the animals for the Bombay Panjrapole in the year 1961 was Rs. 11,762, 'for Raita Rs. 5,551, for Chembur Rs. 5,028 and for Bhiwandi Rs. 28,805. The expenses of feeding and maintenance of sick animals for the said branches were Rs. 1,825, 13,596, 7,554 and 81,464. But it is pertinent to note that medical expenses accounted for very small sums, namely, Rs. 1,267 for Bombay, Rs. 559 for Raita, Rs ' 1,696 for Chembur and Rs. 552 for Bhiwandi. The figures of medical expenses for the year 1962 were equally negligible. The number of people employed for giving medical relief at the Bombay Panjrapole in the year 1961 was only 7, namely, a doctor, a dresser, 4 coolies and other workers and a sundry worker. Their total salary came to Rs. 6,000 besides dearness allowance of Rs. 2,448. Similarly at Raita there were a doctor, two coolies, two dressers and sundry workers and expenditure was only Rs. 552 out of the total expenditure on all these items Rs. 4,992. It was argued oil the basis of these figures that if the object of the Panjrapole was only to maintain and treat the old, diseased or infirm or rejected cattle on its hands acquired from different sources, the number of men employed would be very small and the milk required for the sick and infirm cattle could be had from only a few milch 212 cows and she buffaloes. It was urged that the fact that a large number of milch cattle were to be found every year among the cattle population yielding milk regularly of the value of over Rs. 2,00,000 for the last 3 or 4 years went to show that the institution was pursuing an activity mole or less like that of, a dairy farm. It was maintaining a number of stud bulls and had actually purchased one, the obvious object behind it being improving the cattle wealth of the institution by the production of good and healthy cattle, the females of which would come to yield milk in future. It was said that the value of milk sold could not be as high as disclosed by the figures unless the institution was getting a number of milch cattle every year to replace those which were going dry for the time being. This could only be possible if the institution was in a position to keep up its number of milch cattle from the young ones either given to the Panjrapole or those which were bred at the Panjrapole. The only difference between the Panjrapole and a well organised dairy farm was that the Panjrapole was not buying milch cattle of good quality nor destroying or getting rid of any which were found to become useless. As the objects of the institution did not permit it to get rid of any cattle it undoubtedly had to maintain whatever cattle came to it but nevertheless the activities displayed by the facts were enough to show that it was being run on the lines of a business or an undertaking, though not of the normal type of a well organised dairy business. In our view the arguments of learned counsel for the respondent have considerable force. The main heads of the income of the institution were income from immovable properties, donation from charitably disposed members of the public and the sale of milk. No doubt the immovable property had been acquired many years back from the surplus funds in the hands of the trustees. These were old houses and buildings but the Panjrapole was maintaining them in tenantable condition by incurring considerable expenses every year over the repairs. The more significant factor was the steadily growing income from the sale of milk derived from milch cows and buffaloes, the number of which though not steady was always considerable. Regard must also be had to the written statement of the institution itself before the Tribunal showing 213 that the Managing Committee of the trustees had decided some time back to upgrade the infirm cattle and rear them into good animals so as to get good and pure milk for the inmates of Panjrapole. In fact however the upgrading was to such an extent that the milk yielded always was far in excess of the needs of the inmates of the Panjrapole. Although the sale proceeds of the milk was never utilised nor was ever meant for the benefit or profits of the donors or trustees, the very production of it in such large bulk wholly unrelated to the needs of the sick cattle showed that the institution was pursuing an activity with the central idea of obtaining a steady income therefrom. In our view, the facts justifiably lead to the conclusion that the institution deliberately diversified its objects from only tending to the sick, infirm or unwanted cattle by adopting the policy of keeping cattle not merely for their own sake but for the sake of improving the cattle population committed to its care with an eye to serve human beings by making large quantities of good milk available to them and thereby getting an income which would augment its resources. It pursued its policy just as any dairy owner, would by having a few good quality bulls to impregnate the cows and thereby ensuring a steady production of milk and also improve the quality of the progeny. We have then to consider whether on the above facts an inference ought properly to be drawn that the activities of the Panjrapole constituted an industry. It is not necessary to go through the plethora of cases decided by this Court to find out whether the Tribunal had come to a proper conclusion. Although there is no decision of this Court arising out of the affairs of a Panira Dole, there are several dealing with the question as to whether hospitals constituted industries. The contention of learned counsel for the appellant W. as that the main and chief object of the appellant institution being the keeping and fostering of ' animals incidental activities ought to be disregarded and the institution ought to be considered as a hospital. If the activities relating to the production of milk could be said to be incidental to the maintaining of sick, infirm and diseased or rejected cattle, the argument would, in our opinion, rest on solid foundation. 2 1 4 At the time when the application under article 227 of the Constantine was presented before the Bombay High Court, the decision of this Court in State of Bombay vs The Hospital Mazdoor Sabha (1) held the field and it can be assumed that it was on the strength of this decision that the Bombay High Court did not feel called upon to examine the merits of the case by issuing a rule. In the 'Hospital Mazdoor Sabha 's case (supra) the dispute arose out of the retrenchment of respondents 2 and 3 before this Court who ' had been engaged as ward servants in the J.J. Group of Hospitals, Bombay under State control and management without payment of compensation as required by section 25 F(b) of the Industrial Disputes Act. The decision of this Court shows that there was a group consisting of five hospitals under the administrative control of the Surgeon General of the appellant and its day to day affairs were conducted and controlled by a Superintendent who was a full time employee of the appellant. The residential staff including the Resident Medical Officers, Horsemen, Nurses etc. were all full time employees of the appellant and their salaries were drawn on the establishment pay bills of the appellant and paid entirely by the appellant. According to this Court : "This group serves as a clinical training ground for students of the Grant Medical College which is a Government Medical College run and managed by the appellant for imparting knowledge of medical, sciences leading to the Degrees of Bachelor of Medicine and Bachelor of Surgery of the Bombay University as well as various Post Graduate qualifications of the said University and the College of Physicians and Surgeons, Bombay; the group is thus run and. managaed by the appellant to provide medical relief and to promote the health of the people of Bombay. " On the question as to whether the activities of this group of hospitals would be covered by the definition of 'in dustry ' in s.2(j) of the Industrial Disputes Act, the Court ,observed (see at p. 878) "In considering the question as to whether the group of Hospitals run by the appellant undoubtedly (1) ; 21 5 for the purpose of giving medical relief to the citizens and for helping to impart medical education are an undertaking or not, it would be pertinent to enquire whether the activity of a like nature would be an undertaking if it is carried on by a private citizen or a group of private citizens. There is no doubt that if a hospital is run by private citizens for profit it would be an undertaking very much like the trade or business in their conventional sense. . Trust the character of the activity involved in running a hospital brings the institution of the hospital within s.2(j). Does it make any difference that the hospital is run by the Government in the interpretation of the word "undertaking" in s.2(j)? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the, question as to whether the activity in question attracts the provision of s.2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference. " As to the attributes which made the activity an under taking it was stated (see at p. 879) : "It is difficult to state these possible attributes denitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual or must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co operation between the employer and the employee necessary for its success and its object to render material service to the community can be regarded as some, of the features which are distinctive of activities,, 5 Ml 1245 Sup. Cl/71 216 to which s.2(j) applies. Judged by this test, there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals in question. " The recent decision of this Court in Safdar Jung Hospital, New Delhi vs K. section Sethi and Management of M/s T.B. Hospital, New Delhi vs The Workmen (1) is a pointer in the contrary direction. There was also another appeal relating to the Kurji Holy Family Hospital. The Court proceeded to consider the general proposition whether a hospital could be considered to fall within the concept of industry in the Industrial Disputes Act and whether all hospitals of whatever description could be covered by the concept or only some hospitals under special conditions. According to this Court in Safdar Jung Hospital case , '(see p.1412 paragraph 1.3) "an industry is to be found when the employers are carrying on any business, trade , under taking, manufacture or calling of employers. If they are not, there is no industry as such. " The Court referred to the decision of this Court in Gymkhana Club Union vs Management (2) and the conclusion therein that : "Primarily, therefore, industrial disputes occur when the operation undertaken rests upon co,operation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the co operation is to reduce material services. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions, trade, business or manufacture. " With regard to trade and business it was said : "Business too is a word of wide import. In one sense it includes all occupations and professions. But in the collocation of the terms and their defi (1) A. I.R. 1970 S.C. 1407. (2) [1968] 1 S.C.R. 742. 217 nitions these terms have a definite economic content of a particular type and all the authorities of this Court have been uniformly accepted as excluding professions and are only concerned with the production, distribution and consumption of wealth and the production and availability of material services. " With regard to the Hospital Mazdoor Sabha case (1) was remarked (see p. 1414) "The case proceeds on the assumption that there need not be an economic activity since employment of capital and profit motive were considered unessential. It is an erroneous assumption that an economic activity must be related to capital and profit making alone. An economic activity can exist Without the presence of both. Having rejected the true test applied in other cases before, the test applied was 'can such activity be carried on private individuals or group of individuals? ' Holding that a hospital could be run as a business proposition and for profit, it was held that a hospital run by Government without profit must bear the same character. With respect, we do not consider this to be the right test. This test was employed to distinguish between the administrative functions of Government and local authorities and their functions analogous to business but it cannot be used in this context. When it was emphasised in the same case that the activity must be analogous to business and trade and that it must be productive ,of goods or their distribution or for producing ,material services to the community at large or a part of it, there was no room for the other proposition that privately run hospitals may in certain circumstances be regarded as industries. " This Court held that the Hospital Mazdoor Sabha case(1) "took an extreme view of the matter which was not justi fied". With regard to the activities of the individual hospitals it was said the Safdar Jung hospital had not embarked on an economic activity which could be said to be analogous to trade or business. There was no (1) [1960] 2 section C. R. 866, 218 evidence that it was more than a place where persons could get treated. This was a part of the functions of Government and ,the hospital was run as a Department of Government and could not therefore be said to be an industry. Again, with regard to Tuberculosis hospital it was found not to be an independent institution but a part of the Tuberculosis Association of India. The hospital was wholly charitable and was a research institute. The dominant purpose of the hospital was research and training, but as research and training could not be given without beds in a hospital, the hospital was run. According to this Court, treatment is thus a part of research and training. In these circumstances the Tuberculosis hospital could not be described as an industry. With regard to the Kurji Holy Family Hospital again it was found to be entirely charitable. It carried on the work of training, research and treatment; its income was mostly from donations and distribution of surplus as profit is prohibited. It could not therefore be an industry as laid down in the Act. Reference may also be made to the case of Lalit Hari Ayurvedic College Pharmacy vs Its Workers ' Union (1). In this the appellate Tribunal found that the pharmacy run by the appellant sold medicines in the market and realised about Rs. one lakh per annum whereas in the hospital run by it about 30% of the medicines manufactured by it were consumed and about 70% were sold in the market. This judgment was delivered on the same date by the same Bench which decided the Hospital Mazdoor Sabha case (supra). On the facts found this Court held that there could be no doubt "that the activity of the appellant in running the pharmacy and the hospital was an undertaking under s.2(j) and was an industry". The only case of Panjrapole which appears to have come before the High Courts was that of the Madras Panjrapole vs Labour Court(2)which was the subject matter of an industrial dispute referred to in the year 1958 by the State Government for adjudication by the Labour Court, Madras. This was decided after the Hospital Mazdoor, Sabha case. The facts referred to by the High Court were that the Madras Panjrapole was a charitable society (1) A.I.R. 1960] S.C. 1261. (2) 219 registered under the Societies Registration Act occupying an area of about Ac. 12 00 of land within the city of Madras on which the munificence of several donors had enabled the construction of shelters for animals as well as sanctuary for birds. The objects of the society, as stated in the memorandum of association, are protection, care and treatment of old, infirm and injured cows, calves, bullocks etc. and affording freedom to such animals from being slaughtered unnecessarily and to guarantee old age relief to the old, infirm and unserviceable animals till they die of natural causes. To achieve these objects, the means envisaged to be adopted were : (a) maintenance of shelter house for aged and unserviceable animals ' (b) the feeding and treatment of all animals entrusted to the care of the society either by the owners anxious to pension their old animals or rescued by philanthropic persons from the hands of butchers and the protection of animals remanded by magistrates; (c) the breeding of bulls under ideal and sanitary conditions (d) the maintenance of a dairy farm with special attention being paid to proper feeding, accommodation and water supply, the proceeds of which will go to the benefit of the other animals of the Panjrapole; and (e) the bringing up of the calves of the young cows under healthy conditions. The Court observed (see p. 689): " It is a matter of common knowledge that a number of dry cows in the City of Madras are sold away to butchers by the poor milkmen who could not support them. Butchers themselves offer tempting prices for such cows, a temptation which the poverty of the milkmen could not but lead him to succumb. Dry cows were admitted into the Panjrapole to prevent them from going into the slaughter house. Maintenance of the dry cows called for stud bulls Stud bulls were presented to the society by the Government. In the course of time, the dry cows brought forth their progeny and began to yield milk. 220 The Panjrapole was, therefore, in a position to sell milk yielded by the cows which were received by it with a view to protect them from the slaughter house details of the sale amounts in respect of the milk produced shows that the institution had been receiving substantial sums every year by sale of milk." So for as the activities of the Madras Panjrapole and Bombay Panjrapole are concerned they are Practically identical except that in the present case the maintenance, of a dairy farm is not explicitly referred to anywhere but the facts as culled from the evidence makes the same only too obvious. There was however a certain difference in the case of the Madras Panjra pole inasmuch as the Madras High Court found that (see p. 691) "During certain years, it even went a step further. The Panjrapole purchased cows, maintained a dairy farm and supplemented their own production of milk with out side milk and sold them. These activities would certainly partake the character of a business, though the profit of such business might have gone to the humanitarian activities undertaken by the society. But the activities have long ago ceased. What the society is now having is the milk yielded by its own cows. Those cows are admittedly kept by the Panirapole till their lives. They are not sold. They are the property of the Panjrapole. The milk yielded by those cows could only be considered as an incidental product in the maintenance of the cows. The sale of cowdung cakes and menure and of the calves after the mother cows become dry are also incidental. It cannot be held that a trade or business is conducted by the institution. " According to the learned single Judige who heard the peti tion the activities of the Panjrapole had nothing to do with human needs. They were solely devoted to the needs of helpless animals; though incidentally such activities have a business tinge about them it cannot be said to be for human need or material welfare. The objects were mainly religious and humanitarian. Following the test laid down in the Hospital Mazdoor Sabha case the learned Judge was of opinion that there was no industrial dispute which could be referred by the State Government to the 221 Labour court for adjudication. The case went in appeal to a Letters Patent Bench : Workmen Employed in Madras Panjrapole vs Madras Panjrapole (1). The Bench took a somewhat different view from that of the learned single Judge. It demurred to the observations of the trial Judge that "there is no element of trade or business involved in the various activities of the society". According to the Bench : "These observations, however, do not extend to subsequent developments, the result of the growth of the institution, and its attempt to achieve self sufficiency. There were (1) purchase and sale of milk, a fairly wide upon scale, (2) the maintenance of a dairy farm during a period of the history of the institution, and (3) similarly, the maintenance of stud bulls, to enable dry cows to conceive and bear calves." The Bench felt compelled to allow the appeal to the extent of modifying the writ of certiorari and laying down that the actual decision would have to be arrived at after the record of adequate evidence by the Labour court in the light of the principles formulated, the available evidence being both inadequate and contradictory. For the guidance of the Labour court the Bench observed Even if the institution at the inception, and as basically defined, be purely humanitarian,. non industrial and not amenable to any of the tests. upon which the definition has been applied,, it cannot be gainsaid that, if the. institution had largely altered its complexion through the years, so as to have become a focus of economic production, the definition again night be applicable. " The Bench also examined the question whether the activity of the Panjrapole was in essence religious, or spiritual, as according to it a temple or a church could not be considered to be an industry. (1) [1962]2 L.L.J. 472. 222 The net result of the above seems to be that although the Bench was inclined to hold that the Madras Panjrapole at its inception was not an industry the complexion of its activities might have been altered by later developments so, as to render the institution as then organised an industry within the meaning of, the Act. Further according to the Bench individual units of the Organization (like the dis trict dairy farm) might constitute an industry though the society itself may not be one. The matter came up again before the Madras High Court (see , The Tribunal held in favour of the workmen and the learned Judge dismissed the application for the issue of a writ by the Panjrapole. The learned Judge referred to the reports of the institution in several years past from 1937 to 1957. He found that the object of the society had been amended in 1937 to enable it to receive young cows and charge fees from the owners. The idea of starting a dairy farm was for supporting the infirm cows, bullocks and horses and in pursuance of that idea stud bulls were acquired for improving the cattle breeding. , The income from the sale of milk rose phenomenally reaching the figure of Rs. 60,000 in the year 1957. The learned Judge found himself unable to hold that maintaining cows and stud bulls and selling milk were only Subsidiary in nature to the humane the society, namely, to provide Shelter for the de CrePit and useless and infirm animals. The learned Judge held that "if the Madras Panjrapole had confined itself to the objectives at its inception, namely, to give protection to the old, infirm and decrepit animals, it could well be con tended that it was only for the purpose of satisfying purely spiritual needs, as it is common knowledge that Hindus 'consider cow protection. as one of their religious duties. If the Madras Panjrapole had not extended its activities, following 'the, authorities cited above, would have had no hesitation in holding that it is not an industr) A reading of the annual reports show that a large number of high milk yielding cows and buffaloes were pur ,chased, by the society and due to the successful working of the dairy farm the Panjrapole was able to supply milk to various institutions . The reports show that considerable profits were made by the Panjrapole, the sale of milk fetching a sum of Rs. 60,000 in the year 1957". In the 223 result the petition was dismissed and the labour court was directed to determine the other issues. We have referred at some length to the Madras Panjle case to show the analogy of the activities of the radoras Panjrapole to the. Bombay Panjrapole. Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing mulch cows and stud bulls there is very little difference between the facts of the case before us from those in the Madras Panjrapole case. In the present case only one stud bull w s purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using ,stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk. For the last few years, from 1958 to 1962 the number of milch cows was always Considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundate by the bulls maintained for the purpose of keeping up a steady supply of milk. We have already referred to the fact that ' the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market. The expenses incurred in connection with the treatment of sick and infirm animals was also negligible compared to the total expenses of the institution. The number of men employed for such treatment was very small at all times. The mere fact therefore that the Panjra pole never purchased milch cows and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment. It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any Use. The value of the milk supplied for the last 3 or 4 years was well in excess of Rs. 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as possible. 224 In this view of the matter, it is hardly necessary to consider the other cases which were cited at the Bar, namely, Gymkhana Club Union case (1), Cricket Club vs Labour Union (2) and Harinagar Cane Farm vs State of Bihar (1). It was remarked in the Gymkhana Club case that the activity of the club is conducted with the aid of employees, who follow callings or avocations and that the activities of the club was not a calling or business of its members, of Managing Committee and there was no undertaking analogous to trade or business. In the Cricket Club 's case (2) the Court examined the different activities of the club and came to the conclusion that they did not lead to the inference that the club was carrying on an industry. On the facts of this case we hold that the activities of the Panjrapole as disclosed in this case constituted an industry within the meaning of section 2(j) of the Industrial Disputes Act and the appeal must therefore be dismissed with costs. S.C. Appeal dismissed. (1) [1968] 1 S.C.R. 742. (2) ; (3) ; 225.	The appellant Panjrapole was started in 1834 as a charitable institution for the care and protection of animals. it expanded its activities considerably over the years. The institution gradually diversified its objects from only tending to the sick, infirm and unwanted cattle by adopting a policy of keeping cattle not merely for their own sake but for the sake of improving the cattle population in order to get large quantities of milk for sale and there by get an income which would augment its sources. The institution was using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a sizable income from the sale of milk. The value of the milk sold was considerable compared to the value of milk supplied to the sick and infirm cattle of the institution. The expenses for treating the sick animals was also very little compared to the total expenses of the Institution. A large number of workers were employed at the institution. They raised an industrial dispute in relation to their wages and other service benefits. The dispute was referred for adjudication to the Industrial Tribunal. It was contended by the Appellant that the Institution was a charitable institution and therefore was not an 'industry ' within the meaning of section 2(j) of the Industrial Disputes Act. The Tribunal found that the activities of the institution in connection with its movable property and collection and sale of milk to be an "industry" while the maintenance of lame, infirm and sick cows, dogs and other animals was held not to constitute an "industry". A petition under article 227 was moved in the High Court for quashing the award of the Industrial Tribunal but the same was summarily rejected. Dismissing the appeal, HELD:On the facts and circumstances of the case, the Bombay Panjrapole is an "Industry" within the meaning of Sec. 2(j) of the Industrial Disputes Act. The activities of the Panjrapole, though charitable at the. beginning, was not exclusively so in later years, and the later activities show that it was carried on as a business concern. Even the value of the milk supplied for the last 3 or 4 years itself was well in excess ,of Rs. 2 lakhs per annum and this could only be possible if the cows ,and buffaloes had been kept and maintained not merely to keep them ,alive but with the idea of getting as much production out of them as possible and the Panjrapole was run like a dairy firm. [223H] State of Bombay vs The Hospital Mazdoor Sabha, ; , Safdar Jung Hospital, New Delhi vs K. section Sethi & Management of M/s T. B. Hospital, New Delhi vs The Workmen, A.I.R. 1970 'S.C. 1407. Gynmkhana Club Union vs Management, [1968]. 1 S.C.R. 742, Lalit Hari Ayurvedic College Pharmacy vs Its Workers Union, A.I. R. , Madras Panjrapole vs Labour Court, , Worknien Employed in Madras Panjapole vs Madras Panjropole , Cricket Club vs Labour Union, ' [1969] 1 S.C.R. 60, Harinagar Cone Firma vs State of Bihar, [1964] 2 S.C.R. 458, referred to.
LATE JURISDICTION: Civil Appeal No. 1479 of 1971. From the Judgment and Order dated 25 4 1969 of the Gujarat High Court in SCA No. 271/65. G.A. Shah, N.S. Pande and M.N. Shroff for the Appellant. P.R. Mridul, Vimal Dave and Miss Kailash Mehta for Respondent No. 1. I. N. Shroff and H. section Parihar for Respondent No. 2. The Judgment of the Court was delivered by SEN, J. This appeal on certificate from a judgment of the Gujarat High Court raises a question as to the validity or otherwise or a fresh notification issued by the Government of Gujarat under section 6 of the d Acquisition Act, 1894, consequent upon an earlier notification under section 6 of the Act being discovered to be invalid. The first respondent in this case owned certain land bearing Final Plot No. 38 forming part of Town Planning Scheme No. III (Ellis bridge) situate within the city of Ahmedabad. At the request of the second respondent Sri Ayodhya Nagar Co operative Housing Society Ltd., registered under the Bombay Co operative Societies Act, 1925, now deemed to be registered under the Gujarat Co operative Societies Act, 1961, formed with the object of enabling its members to construct houses, the State Government on August 3, 1960 issued a notification 286 under section 4 stating that the land was likely to be needed for a public purpose. This was followed by a notification of the State Government dated August 21, 1961 under section 6 of the Act stating that the land was to be acquired at the expense of Sri Ayodhya Nagar Cooperative Housing Society Ltd. for the public purpose specified in column 4 of the schedule annexed thereto. The public purpose specified in column 4 of the schedule was 'For construction of houses for Sri Ayodhya Nagar Co operative Housing Society Ltd., Ahmedabad. The entire expense of the acquisition was to be borne by the second respondent, i.e., the Co operative Housing Society. The first respondent moved the High Court under article 226 of the Constitution challenging the validity of the notification under section 6 on the ground that the acquisition of the land for a public purpose at the expense of the second respondent was legally invalid. On December 4, 1961 the High Court issued an ad interim injunction restraining the appellant from proceeding with the acquisition proceedings. While this writ petition was pending, the State Government by its notification dated May 27, 1963 cancelled the notification under section 6. on September 10, 1964 the State Government issued a fresh notification under section 6 stating that the land was to be acquired at the public expense, for the public purpose specified in column 4 of the schedule. The public purpose specified in column 4 in the schedule was 'For housing scheme undertaken by Sri Ayodhya Nagar Co operative Housing Society Ltd. The High Court following its earlier decision in Dosabhai Ratansha Keravala vs State of Gujarat & Ors. struck down the second notification under section 6 dated September 10, 1964. It held inter. alia that the first notification under section 6 issued on August 21, 1961 being an acquisition for a society at its cost, was valid and the Government could have proceeded to complete the acquisition under it but, under a false sense of apprehension as to its validity, the Government cancelled it on May 27, 1963. There was no justification for cancelling the first notification under section 6 and even if the Government wanted to cancel it out of a feeling of apprehension as to its validity, the Government need not have taken one year and ten months to do so. (2) After the issue of the first notification under section 6 on August 21, 1961, the notification dated August 3, 1960 under section 4 was exhausted and, therefore, could not be used to support the second notification issued under section 6 on September 11, 1964. (3) The cancellation of the first notification under section 6 by the notification dated May 27, 1963 did not have the effect of reviving the notification under section 4 so as to make it available for supporting the second notification under section 6. The second notifi 287 cation under section 6 not being supported by any notification under section 4 Was consequently invalid. (4) A notification under section 6 in order to be valid must follow within a reasonable time after the issue of a notification under section 4. The notification under section 4 was issued on August 3, 1960 and the second notification under s 6 on September 10, 1964 and there was thus an interval of about four years and one month between the two notifications. This interval of time, could not be regarded as reasonable. Even tested by the yardstick of reasonable time provided by the legislature in the second proviso introduced in section 6 by the Land Acquisition (Amendment and Validation) Act. 1967, namely three years, the period of about four years and one month between the two notifications under section 4 and section 6 would be clearly unreasonable. The second notification must, therefore, be held to be invalid on this ground also. We are clearly of the opinion that the High Court was in error m striking down the second notification under section 6 issued on September 10, 1964. In Valjibhai. Muljibhai Soneji. vs State of Bombay the Court held that the Government has no power to issue a notification for acquisition of land for a public purpose, where the compensation is to be entirely paid by a company. The first notification issued by the Government under section 6 for acquisition of the land for a public purpose, at the expense of the second respondent, the Co operative Society, was, therefore, invalid. The State Government was, there fore, justified in issuing the second notification under section 6 after removing the lacuna i.e., by providing for acquisition of the land for the said public purpose, at public expense. In an endeavour to support the judgment, counsel for the first respondent advanced a three fold contention. It was urged, firstly, that successive notifications cannot be issued under section 6 placing reliance on State of Madhya Pradesh & Ors. vs Vishnu Prasad Sharma & Ors. It was pointed out that the Land Acquisition (Amendment and Validation) Act, 1967 had a limited scope and it validated only successive notifications issued under section 6 in respect of different parcels of land but did not validate successive notifications in respect of the same land. Further, it was urged that the Act was not retrospective in operation and, therefore, the validity of the second notification dated September 10, 1964 had to be Adjudged with reference to the pre amendment law, i.e., according to the law as declared by this Court in Vishnu Prasad Sharma 's case. Secondly, it was urged, on the strength of the deci 288 sion in Dosabhai Ratansha Karevala 's case (supra) that a notification under section 4 is exhausted when it is followed by declaration under section 6 It was urged that the first notification under section 6 dated August 21, 1961 was valid and the High Court was, therefore, justified in holding that with its cancellation, the notification under section 4 lapsed. Thirdly, it was urged that there was unreasonable delay in issuing the second notification under section 6 and, this, by itself, was sufficient to invalidate it. In Vishnu Prasad Sharma 's case the Court held that sections 4, S A and 6 are integrally connected and present a complete scheme for acquisition and, therefore, it was not open to the Government to make successive declarations under section 6. Wanchoo J. (as he then was), speaking for himself and Mudholkar J., observed: "It seems to us clear that once a declaration under section 6 is made, the notification under section 4(1) must be exhausted, for it has served its purpose. There is nothing in sections 4, 5 A and 6 to suggest that section 4(1) is a kind of reservoir from which the government may from time to time draw out land . and make declarations with respect to, it successively. If that was the intention behind sections 4, S A and 6 we would have found some indication of it in the language used there in But as we read these three sections together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the government what particular land out of that locality it needs. This is followed by a declaration under section 6 specifying the particular land needed and that in our opinion completes the process and the notification under section 4(1) cannot be further used there after. At the stage of section 4 the land is not particularised but only the locality is mentioned; at the stage of section 6 the land in the locality is particularized and thereafter it seems to us that the notification under section 4(1) having served its purpose exhausts itself. " Sarkar J., in a separate but concurring judgment, observed: "My learned brother has said that sections 4, 5A and 6 of the Act have to be read together and. so read, the conclusion is clear that the Act contemplates only a single declaration under section 6 in respect of a notification under section 4. " 289 After rejecting the contention that the Government may have difficulty A in making the plan of its projects complete at a time, particularly where the project is large, and therefore, it is necessary that it should have power to make successive declarations under section 6, he observed: "I cannot imagine a Government, which has vast resources, not being able to make a complete plan of its project at a time. Indeed, I think when a plan is made, it is a complete plan. I should suppose that before the Government starts acquisition proceedings by the issue of a notification under section 4, it has made its plan for otherwise it cannot state in the notification, as it has to do, that the land is likely to be needed. Even if it had not then completed its plan, it would have enough time before the making of a declaration under section 6 to do so. I think, therefore, that the difficulty Of the Government, even if there is one, does not lead to the conclusion that the Act contemplates the making of a number of declarations under section 6. " In the present case, the question, however, does not arise as the first notification under section 6 dated August 21, 1961 being invalid, the Government was not precluded from making a second notification. Due to the invalidity of the notification under section 6, the notification under section 4 still held the field and on its strength another notification under section 6 could be issued. It is, therefore, not necessary to deal with the effect of the validating Act. The matter is squarely covered by the decision of the Court in Girdharilal Amratlal Shodan & Ors. vs State of Gujarat & Ors. The Court rejected the contention that by cancelling the first notification under section 6, as here, the Government must be taken to have withdrawn from the acquisition and consequently could not issue a second notification under section 6. there also the first notification under section 6 was invalid and of no effect, as the Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company? as held by this Court in Sham Behari & Ors. vs State of Madhya Pradesh & Ors. It will be noticed that in Girdharilal Amratlal Shodan 's case the facts were identical. On August 3, 1960 the Government of Gujarat issued a notification under section 4 in respect of certain land falling in Final Plot No. 460 of the Town Planning Scheme No. III of Elisbridge in the city of Ahmedabad, stating that the land was likely to be needed for a public purpose, viz., for construction of houses for Sri Krishna 290 kunja Government Servants ' Co operative Housing Society Ltd. On July 18, 1961 the State Government issued a notification under section 6 stating that the land was to be acquired for the aforesaid public purpose at the expense of Sri Krishnakunj Government Servants ' Co operative Housing Society Ltd. On September 22, 1961, the landholder filed a writ petition in the High Court for an order quashing the notification under section 6. During the pendency of the proceedings, the Government issued a notification dated April 28, 1964 cancelling the aforesaid notification dated July 18, 1961. On August 14, 1964 the Government issued a fresh notification under section 6 stating that the land notification under section 6 staling that the land was needed to be acquired at the public expense for a public purpose viz, for the housing scheme undertaken by Sri Krishnakunj Government Servants ' Co operative Housing Society Ltd. The contention was that by cancelling the first notification under section 6, the Government must be deemed to have withdrawn from the acquisition and cancelled the notification under section 4, and therefore, could not issue the second notification under section 6, without issuing a fresh notification under section 4. It was also urged that the power of the State Government to issue a notification under section 6 was exhausted, and the Government could not issue a fresh notification under section 6. The Court rejected both the contentions observing: "Having regard to the proviso to ' section 6, of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid . entirely by a company. The notification dated JULY 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari vs State of Madhya Pradesh. The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. " "The State Government realised that the notification was invalid, and without waiting for an order of Court. cancelled the notification on April 28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation, the Government issued a fresh notification under section 6 whereas in this case the notifi 291 cation under section 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under section 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification. " The first notification issued under section 6 on August 21, 1961 was obviously invalid and of no effect. By the issue of this notification, the Government had not effectively exercised its powers under section 6. In the circumstances, the Government could well issue a fresh notification under section 6 dated September 10, 1964. In State of Gujarat vs Musamiyan Imam Haider Bux Razvi & Anr. etc. this Court while reversing the decision of the Gujarat High Court in Dosabhai Ratansha Kerravala (supra) on which the High Court based its decision, has laid down two important principles: (1) In view of the decisions of this Court in Pandit Jhandu Lal & Ors. vs The State of Punjab & Ors., Ratilal Shankarbhai & Ors. vs State of Gujarat & Ors. and Ram Swarup vs The District Land Acquisition Officer, Aligarh & Ors. the acquisition of land for a co operative housing society is a public purpose. The Government is the best Judge to determine whether the purpose in question is a public purpose or not; and, it cannot be said that a housing scheme for a limited number of persons cannot be construed to be a public purpose inasmuch as the need of a section of the public may be a public purpose. (2) When a notification under section 6 is invalid, the government may treat it as ineffective and issue a fresh notification under section 6, and nothing in section 48 of the Act precludes the government from doing so, as held by this Court in Girdharilal Amratlal Shodan. The High Court had not the benefit of these decisions when it held that acquisition of land for a co operative housing society was not a public purpose and, therefore, the first notification dated August 21, 1961 issued under section 6 of the Act was valid. The substratum on which the decision of the High Court rests has, therefore, disappeared. This Court in Musamiyan 's case distinguished the decision in State of Madhya Pradesh & Ors. vs Vishnu Prasad Sharma & Ors. (supra) by quoting the passage referred to above. The decision in Vishnu Prasad Sharma 's case is not an authority for the proposition that where a notification under section 6 is found to be invalid it cannot be followed by a fresh notification under section 6. In fact, the decision of the High Court 292 runs counter to what it had observed in Dosabhai Ratansha Keravala 's case, after referring to the decisions of this Court in Vishnu Prasad Sharma 's case and Girdharilal Amratlal Shodan 's case: "If the first section 6 notification is invalid, that is, non est, section 4 notification cannot be regarded as exhausted, for its purpose is yet unfulfilled; its purpose could be fulfilled only by issue of a valid notification under section 6. " There remains the question whether the High Court was right in quashing the second notification under section 6 on the ground of unreasonable delay in its issuance. The respondent had not taken any such ground in the writ petition filed by him. The High Court was, therefore, not justified in observing that 'the appellant had not explained the delay by filing any affidavit '. We fail to appreciate that if there was no ground taken, there could be no occasion for filing of any such affidavit. Further, the delay, if any, was of the respondent 's own making. He had challenged the first notification under section 6, presumably on the ground that the acquisition being for a public purpose, could not be made at the expense of the second respondent. The challenge was justified and the State Government, therefore, withdrew the first notification under section 6 without waiting for an order of the High Court. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Thereafter, the Government issued a fresh notification under section 6 making a declaration for acquisition of the land for a public purpose at public expense. There is nothing in the Act which precludes the Government from issuing a fresh notification under section 6, if the earlier notification is found to be ineffective. The delay of one year and four months between the date of cancellation and the issue of the second notification cannot be regarded to be unreasonable, in the facts and circumstances of the case. In somewhat similar circumstances, this Court recently in Gujarat State Transport Corpn. vs Valji Mulji Soneji held the delay of about fifteen years in making the second notification under section 6 not to be unreasonable. We cannot, therefore, uphold the High Court 's decision that the second notification must be struck down on the ground of delay. In the result, the appeal succeeds and is allowed with costs, the judgment of the High Court is set aside, and the writ petition filed by the first respondent is dismissed. Respondent No. 1 shall bear the costs. N.K.A. Appeal allowed.	The first respondent owned certain Land forming part of a town planning scheme, situated within the city limits. At the request of the second respondent, a Corporative Housing Society, the State Government issued a Notification under section 4 of the Act on August 3, 1960 stating that the land was likely to be needed for a public purpose and it was followed by a further notification of the State Government under Section 6 of the Act dated August 21, 1961 that the land was to be acquired at the expense of the Cooperative Housing Society for the public purpose specified in column 4 of the Schedule to the notification. The entire expense of the acquisition was to be borne by the second respondent. The first respondent moved the High Court under Article 226 of the Constitution challenging the validity of the notification under section 6 of the Act. During the pendency of the Writ Petition, the appellant by a notification dated May 27, 1963 cancelled the earlier notification under section 6 and issued a fresh notification. The High Court struck down the second notification dated September 10, 1964 issued under section 6 of the Act. In the appeal to this Court, on the question of the validity of the 2nd notification dated September 10, 1964. ^ HELD: (i) The High Court was in error in striking down the second notification under section 6 of the Act issued on September 10, 1964. (ii) This Court in Valjibhai Muljibhai Soneji vs State of Bombay has held that the Government has no power to issue a notification for acquisition of land for a public purpose, where the compensation is to be entirely paid by a company. [287 C D] In the instant case the first notification issued by the Government for acquisition of land for a public purpose at the expense of the second respondent, the cooperative society was therefore, invalid and the Govt. was justified in issuing the second notification under section 6 after removing the lacuna by providing for acquisition of the land for public purpose, at public expense. [287 D E] (iii) The acquisition of land for cooperative housing society is a public purpose. The Govt. is the best judge to determine whether the purpose in question is a public purpose or not. It cannot be said that a Housing Scheme for a limited number of persons cannot be construed to be a public purpose. When a notification under section 6 of the Act is invalid, the Govt. may treat it as ineffective and issue a fresh notification under section 6 of the Act 2nd nothing in section 48 of the Act precludes the Government from doing so. [291 C E] 285 Girdharilal Amratlal Shodan & Ors. vs State of Gujarat Madhya Pradesh & Ors. ; , Pandit Jhandu Lal & Ors. vs The State of Punjab & Ors. ; Ratilal Shankarbhai & Ors. vs State of Gujarat & Ors. A.I.R. , Ram Swarup vs The District Land Acquisition Officer, Aligarh & Ors. , referred to. (iv) In the instant case, tho Respondent had not taken any ground in the Writ Petition with regard to the delay in the issuance of the second notification. The High Court was therefore, not justified in observing that "the appellant had not explained the delay by filing any affidavit. " If there was no ground taken, there could be no occasion for filing of any such affidavit. [292 B C] (v) There is nothing in the Act which precludes the Govt. from issuing a fresh notification under section 6 of the Act if the earlier notification is found to be ineffective. The delay of one year and four months between the date of cancellation and the issue of the second notification cannot be regarded to be unreasonable. [292 E F] Gujarat State Transport Corpn. vs Valji Mulji Soneji
1. The appellant has challenged his conviction and sentence recorded by the learned Special Judge under POCSO Act at Greater Mumbai on 20.11.2017 in POCSO Case No.94/2014. The appellant was convicted for commission of offence punishable under Section 354 of the Indian Penal Code read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). He was sentenced to suffer RI for five years and to pay fine of Rs.5,000/- and in default to undergo RI for six months. He was granted benefit of set off under Section 428 of Cr.P.C.. The judgment mentions that the appellant was in custody from 13.12.2013 till 21.7.2014 and then was re-arrested on 26.7.2017 and was in custody till the date of the order. 2. Heard Shri Sushan Mhatre, learned counsel for the appellant and Shri Yogesh Dabke, learned APP for the State. 3. The prosecution case is that on 11.12.2013 at about 1.00 p.m., the appellant approached the victim who was about five years of age on that date. He touched and pinched her private parts and thus committed offence punishable under Section 8 of POCSO Act and under Section 354 of IPC. The FIR was lodged at the midnight. The appellant was apprehended by the people from the locality, was brought to the police station then he was arrested. The investigation was carried out and the charge-sheet was filed. During trial, the prosecution examined four witnesses : PW-1 was the victim herself, PW-2 was the victim’s mother, PW-3 was the investigating officer and PW-4 was the Medical Officer. 4. PW-1 in her deposition has stated that she was studying in 4th standard. Her school timing was from 7.00 a.m. to 12.30 p.m. After returning from school she used to take lunch and thereafter used to go to Masjid for studying Arbi. She used to return home at around 4.30 p.m. Then she used to go out for playing with her friends and used to return home at 7.00 p.m. On the day of the incident she was playing outside her house with her friends. At that time, one uncle came near her and took her with him. He closed her eyes with his hands. He touched her private parts. He also pinched her private parts. She was having pain. She returned home and narrated the incident to her mother. Her mother took her to hospital. Then she was taken to the police station. The mother lodged her FIR. PW-1’s statement was also recorded under Section 164 of Cr.P.C. by the learned Magistrate. In the cross-examination, she deposed that her parents were keeping watch on her activities to protect her and that she was not kept alone by her mother. She did not know anything about the relations between her father and the appellant. She specifically denied the suggestion that she was deposing before the Court against the appellant at the instance of her mother. She also admitted that there was quarrel between the appellant and her father. However, she immediately clarified that the quarrel took place on account of the fact that the appellant had committed this offence. PW-1 then identified the appellant before the Court. 5. PW-2 is the mother of the victim. She had narrated the incident that on the date of the incident her daughter returned home crying. On enquiries she told her about the incident. PW-2 then saw her private part which was reddish in colour. In the evening she along with her daughter - the victim had gone to purchase vegetables, while they were returning they saw that the appellant was drinking alcohol. At that time the victim showed the appellant as the person who had committed that offence. PW-2’s husband then with the help of neighbours enquired with the appellant. The people in the vicinity gathered there and assaulted the appellant for committing that act. The police then came there and took the appellant with them. PW-2 also went to the police station and lodged her FIR, which was produced on record at Exhibit-13. The victim was sent for medical examination. In the cross-examination, hardly anything of consequence was elicited from her evidence. She denied the suggestion that on the date of incident the appellant had quarreled with her husband under the influence of liquor and as PW-2’s husband assaulted him, the appellant’s family members went to police station to lodge complaint against her husband and, therefore, immediately the present complaint was lodged to falsely implicate the appellant. There is hardly any material contradiction and omission between the FIR and her deposition. The FIR was recorded at 12.10 a.m. on 13.12.2013 i.e. on the same mid-night. 6. PW-3 API Santosh Rasam had conducted the investigation. He deposed that at about 11.30 p.m., the informant, her husband and the victim had come to the police station and had narrated the incident. The FIR was lodged. In the meantime, the staff of Vakola police station brought the appellant to the police station in their mobile van. The victim identified the appellant as the person who had committed that act. He was arrested. He clarified that in the third paragraph of the FIR, by mistake, the date was mentioned as 11.12.2013 instead of 12.12.2013. The victim was five years of age at the time of FIR and she was continuously crying and, therefore, he could not record her statement for seven to eight days. In the meantime, she was referred for medical examination at Cooper Hospital. The victim’s statement was recorded under Section 164 of Cr.P.C. He himself recorded the statement of the victim on 11.8.2017 and issued copy of the same to the defence. Again in the cross-examination, nothing much was elicited. He admitted that he did not record the statement of the victim’s friends who were playing with her. 7. PW-4 Dr. Ayyar had examined the victim on 12.12.2013. She was brought to Cooper Hospital by her mother. Her medical examination did not reveal anything except the history given by her mother . . This, in short, is the prosecution case. 8. The defence of the appellant recorded under Section 313 of Cr.P.C. is that he went to the victim’s father’s shop to purchase grocery. He paid money but there was some quarrel and he was falsely implicated because of the quarrel between him and the victim’s father. 9. Learned Judge believed the version of the victim and by relying on other evidence, convicted and sentenced the appellant as 10. Learned counsel for the appellant submitted that the FIR mentions that the incident had taken place on 11.12.2013 and the FIR was lodged on 13.12.2013. The delay has remained unexplained. He submitted that the appellant is falsely implicated because of the quarrel between him and the victim’s father. He submitted that the medical examination did not reveal any injury including redness on the private part of the victim. The prosecution case therefore is doubtful. 11. Learned APP, on the other hand, relied upon the depositions of the victim and her mother to contend that the prosecution has proved its case beyond reasonable doubt. 12. I have considered these submissions. The victim has described the incident in sufficient details. She was barely five years of age. The evidence shows that she was crying continuously. After gathering courage she, in fact, had identified the appellant in the Court. From her evidence it does not appear that she is a tutored witness. In fact she has denied the suggestion that she was deposing on being tutored by her mother. The victim appears to be 13. PW-2’s evidence corroborates PW-1’s version. The appellant was immediately shown by PW-1 in the evening when PW-1 and PW-2 were returning after purchasing vegetables from the market. There was no possibility of the victim identifying the appellant wrongly. PW-1 appears to be an innocent child. She has not identified any person randomly. Even during the course of trial, she identified the appellant in the Court though she was scared. 14. The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act. 15. In this case, the ocular evidence of the victim and her mother inspires confidence and there is no reason to doubt their versions. The other step of arresting the accused is also proved by the prosecution from the evidence of the investigating officer. The appellant was caught by the residents and was handed over to the 16. The defence of the appellant does not really help his cause. No circumstances are brought on record by the defence to show that there in fact was any quarrel between the appellant and the victim’s father. 17. Thus, considering all these aspects, no case for interference with the impugned judgment and order is made out. The appeal is, therefore, dismissed. It is clarified that if the appellant has already completed his substantive sentence and also the the sentence imposed on him in default of payment of fine, in that case, the appellant be released only if he has completed both the sentences and if he is not required in any other case. With these observations, the appeal is disposed of.	Merely touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory, the Bombay High Court has held. "The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence... Merely touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory, the Bombay High Court has held. "The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act." Justice Sarang Kotwal dismissed the appeal by the man convicted for the sexual assault of a minor girl in 2013. In November 2017, the special POCSO held him guilty for offences punishable under section 354 (assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC) and section 8 (sexual assault) of the POCSO Act. He was sentenced to five years of rigorous imprisonment. It was the prosecution's case that the man picked up the girl while she was playing with her friends outside the house and touched and pinched her private parts. A complaint was lodged after the mother approached the police. The victim's statement was recorded under section 164 of the CrPC. The accused submitted that the girl's father falsely implicated him after a quarrel and there was two-day delay in filing of the FIR. The case was also doubtful because no injury was revealed on the victim's body, he argued. However, the bench said that "the victim has described the incident in sufficient detail. The victim appears to be a truthful witness. There was no possibility of the victim identifying the appellant wrong." Moreover, sexual assault as described under section 7 of the POCSO Act was made out as sexual intent was proved even in absence of injuries as medical evidence. "In this case, the ocular evidence of the victim and her mother inspires confidence and there is no reason to doubt their versions. The defence of the appellant does not really help his cause. Thus, considering all these aspects, no case for interference with the impugned judgment and order is made out. The appeal is, therefore, dismissed." Case Title: Ramchandra Shrimant Bhandare Versus The State of Maharashtra
This petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioner/accused on bail in the event of his arrest in FOC No.51/2020-21 (Case No.05/2020-21) registered Gauribidanur now pending in PCR No.56/2020 on the file of Principal Civil Judge & JMFC., Gauribidarnur, for the offences punishable under Sections 2, 9, 50 read with 51 of the Wild Life 2. Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent/State. 3. This matter was heard and reserved on 10.01.2022. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and considering the factual aspects of the case, it is the case of the prosecution that the respondent – Deputy Range Forest Officer, Gauribidanur Range, detected the crime on 08.07.2020 at Hakki-Pikki Colony, Kurudi beat, Hosur Hobli, Gauribidanur Range. The respondent recovered three number monitor lizard and three number gray francolin, in the house of petitioner - Ramesh in the said colony. The respondent being a public servant under Section 59 of the Wild Life (Protection) Act, 1972 has filed a complaint under Section 55(b) read with Section 51 of the Wild Life (Protection) Act, 1972 and the said case is numbered as PCR No.56/2020-21. The Trial Court took the cognizance of the said offence and registered a case and issued summons to the accused vide order dated 15.07.2020 and fixed the date of appearance on 05.10.2020 of this petitioner. The accused was served with summons and appeared through his counsel and also sought for exemption by filing application under Section 205 of Cr.P.C., instead of Section 317 of Cr.P.C., which was allowed by the Trial Court, yet, the accused remained absent on 06.10.2021. Hence, NBW had been issued against the accused from time to time. Hence, the petitioner has approached this Court by filing the present 4. The main contention of the petitioner before this Court is that no prima facie case is made out against the petitioner and the very search conducted by the complainant is not in accordance with Section 50(8) of the Wild Life (Protection) Act, 1972. As per the complaint without a search warrant the complainant based on some information allegedly searched the house of petitioner and conducted seizure under Mahazar and the very seizure itself is doubtful. The learned Magistrate ought not to have issued notice to the petitioner and committed an error in taking cognizance. It is also contended that there is no any direct evidence and also the alleged lizard had kept in the vegetable crate outside the house and not inside the house and the very procedure adopted by the respondent by filing a private complaint based on the seizure done under a Mahazar and without any independent witness creates a doubt about the veracity of the seizure. The Sessions Judge ought to have admitted the petition filed under Section 438 of Cr.P.C., instead of rejecting the same. Hence, it requires an interference of this 5. Per contra, the learned High Court Government Pleader appearing for the State would submit that the very petition itself is not maintainable and the private complaint is filed under Section 200 of Cr.P.C., as envisaged under Section 55(b) of the Wild Life (Protection) Act, 1972 read with Section 51 of the Wild Life (Protection) Act, 1972. The respondent being a public servant under Section 59 of the Wild Life (Protection) Act, 1972 empowered to file a complaint and the complaint is also filed in terms of the special enactment. Learned High Court Government Pleader also would submit that the learned Magistrate having considered the contents of the complaint and looking into the material took the cognizance and issued the summons. The petitioner also appeared through his counsel by filing a necessary application, which was allowed by the Trial Court, but he failed to appear before the Trial Court afterwards. Hence, NBW was issued. Hence, he is not entitled for the relief of anticipatory bail. Once the accused/petitioner has appeared before the Trial Court through his Counsel and ought to have made an application for recalling the order before the Trial Court instead of invoked Section 438 of Cr.P.C. 6. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State, the points that would arise for the (i) Whether Section 438 Cr.P.C., can be invoked once the petitioner appeared through the Counsel and sought for exemption and the same was allowed? 7. Having heard the respective counsel and considering the material available on record, it is not in dispute that a private complaint is filed as envisaged under the special enactment. It is the case of the prosecution that the respondent has seized three number monitor lizard and three number gray francolin, in the house of the petitioner - Ramesh in the said colony. It is also not in dispute that after issuance of summons, which has been served on the petitioner herein, he had appeared through Counsel and an exemption was sought under Section 205 of Cr.P.C., instead of Section 317 of Cr.P.C., and the same was also allowed by the Trial Court, he remained absent thereafter and NBW was issued against him. It has to be noted that nowhere in the petition has stated that the counsel was engaged before the Trial Court and sought for an exemption and the appearance through counsel has been suppressed by the 8. The learned counsel appearing for the petitioner in support of his arguments, he contend that upon even though the petitioner had appeared through his Counsel, he can maintain the petition under Section 438 of Cr.P.C., and engaging the counsel and appearing through the Counsel will not take away the rights of approaching the Court by invoking Section 438 of 9. The learned counsel appearing for the petitioner in support of his arguments, he relied upon the judgment of the Apex Court in the case of Niranjan Singh and another v. Prabhakar Rajaram Kharote and others reported in AIR 1980 SC 785, wherein, the Apex Court discussed with regard to the custody where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within meaning of Section 439 of Cr.P.C., and no dispute with regard to the fact that once he appeared and surrendered before the Court, it amounts to a custody and he maintain a petition under Section 439 of Cr.P.C., and in the judgment also Apex Court interpreted the word 10. The learned counsel also relied upon the judgment of the Apex Court in the case of Directorate of Enforcement v. Deepak Mahajan and another reported in AIR 1994 SC 1775, wherein the words ‘arrest’, ‘custody’ and ‘powers’ under the Act discussed. The Apex Court has also observed that whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go wherever he pleases. When used in the legal sense in connection with criminal offences, an ‘arrest’ consists in the taking into custody of another person under detaining him to answer a criminal charge or of preventing the commission of a criminal offence. No doubt, the Apex Court in both the cases discussed with regard to the meaning of custody and the word ‘arrest’. But in the case on hand, the Court has to look into the aspect of whether the petitioner can seek an anticipatory bail once he appeared through counsel before the Trial Court and sought for an exemption. The Apex Court in Niranjan Singh’s case (supra), held that when the accused appeared and surrendered that he has been in custody and hence the judgment will not come to the aid of the petitioner. 11. This Court would like to refer to the judgment of this Court in the case of S.R. Nagaraj v. State of Karnataka reported in 2011 SCC OnLine Kar 3301, wherein, this Court has observed that when a private complaint has been lodged and after investigation charge-sheet has been filed, when the petitioner after service of summons has appeared before the Court through an Advocate and has filed an exemption application. The petitioner instead of seeking bail before the Trial Court has approached this Court under Section 438 of Cr.P.C., which is not maintainable. The issue involved in the matter before this Court is also similar to the facts of the case. In this case also, the petitioner appeared through counsel and sought for an exemption and the said exemption application was also allowed and permitted to appear him through counsel and once the Trial Court permitted the petitioner to appear through his Counsel and allowed the application, the petitioner cannot invoke Section 438 of Cr.P.C., and can invoke Section 439 of Cr.P.C., if he does not appear before the Court and whether he had appeared through Advocate or physically, is not the question and once availed the benefit before the Trial Court appearing through counsel and sought for an exemption and the same has been entertained, question of invoking Section 438 of Cr.P.C., again does not arise. 12. This Court also would like to refer to the order of this Court in the case of K. Somasekhar v. State of Karnataka reported in 2015 SCC OnLine Kar 8412, wherein also similar circumstances arises. This Court in paragraph No.3 referring to the judgment of this Court in the case of Venkatachalaiah and Others v. State of Karnataka, by Kadugodi Police, Bengaluru and others reported in ILR 2003 KAR 3985, and the order in Criminal Petition No.23/2013, held that once the accused appeared before the Trial Court and thereafter on account of his absence on any later date warrant is issued by the Court for deliberate absence is concerned, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available to such person. However, liberty is reserved to the petitioner to file necessary application before the Trial Court for recalling the issuance of NBW. 13. This Court also would like to refer to the Division Bench Judgment of this Court in Venkatachalaiah’s case (supra), wherein, discussed with regard to Sections 438(1) and 438(3) of Cr.P.C., and also held that even after filing of charge- sheet also, the accused can approach the respective Courts invoking Section 438 of Cr.P.C., but categorically held that in paragraph No.27 that in the normal course where warrant is issued in pursuance of filing charge-sheet or issuance of summons and non-appearance of the party, the remedy under Section 438(1) of Cr.P.C., is available. It is further observed that however, we would like to emphasis that where in a criminal proceeding a party has already appeared once or more than one date and thereafter does not appear in the Court, the Court in such circumstances issues non-bailable warrant and the said warrant issued is in view of the defaulting conduct on the part of the accused and in such cases a petitioner cannot invoke the jurisdiction of the Court under Section 438(1) of Cr.P.C. and he is bound to obey the court order or warrant by first appearing before the Court and than by satisfying the Court as to the sufficient cause for his absence, pray for bail under Section 439 14. But in the case on hand, it is not in dispute that the petitioner had appeared before the Trial Court through an advocate and also filed an application under Section 205 of Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the day. It is also not in dispute that the said application was allowed. Once an application seeking an exemption was allowed, the petitioner again cannot invoke Section 438 of Cr.P.C., and instead of filing an application for recalling the warrant issued by the Court for non-appearance has approached this Court and also the Trial Court. Apart from that, the appearance of the petitioner before the Trial Court has been suppressed before this Court and nowhere in the petition has stated that he had appeared through the Counsel and only on perusal of the order of the Trial Court, it is clear that he had appeared through the Counsel and exemption application was allowed but he did not appear before the Court. Hence, NBW was issued. When such being the factual aspects of the case, once he appeared through the Court, whether it is through Counsel or personally, he cannot seek again anticipatory bail. The very contention of the learned counsel for the petitioner is that the petitioner appeared before the Trial Court through an Advocate is not amount to custody or an arrest, cannot be accepted and he was permitted to appear through Counsel and once permitted to appear through counsel he cannot contend that he had not appeared physically. The petitioner legally permitted to appear and once he has been permitted to appear legally he cannot contend that he was not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C., is not maintainable. 15. The Apex Court also given interpretation with regard to the custody and for invoking Section 439 of Cr.P.C., and not for Section 438 of Cr.P.C., and also with regard to the meaning of arrest discussed in Directorate of Enforcement v. Deepak Mahajan and another ‘s case (supra), and not the question of arrest before this Court also. In the case on hand when the private complaint was filed, the learned Magistrate took the cognizance and issued the summons. In pursuance of the said summons he appeared through the Counsel before the Trial Court. Once he had appeared before the Trial Court he cannot seek for an anticipatory bail again invoking under Section 438 of Cr.P.C. This Court in S.R. Nagaraj and K. Somasekhar’s case (supra), and also considering the principles laid down in Venkatachalaiah’s case (supra), categorically held that once an advocate appeared through counsel, he cannot seek for an anticipatory bail again. When such being the interpretation of this Court and also the principle laid down in the judgments referred supra, the petitioner cannot maintain any petition invoking Section 438 of Cr.P.C. Hence, the petition is liable to be dismissed. 16. This Court does not want to consider the matter on merits, whether he is entitled for anticipatory bail or not since the very maintainability is questioned before this Court and this Court comes to the conclusion that the petition under Section 438 of Cr.P.C., is not maintainable and an option is given to the petitioner to approach before the Trial Court by filing necessary application for recalling of the warrant issued against him as held by this Court in K.Somasekhar’s case (supra), and seek appropriate relief. 17. In view of the discussions made above, I pass the (i) The bail petition is dismissed as not maintainable. (ii) The petitioner is given liberty to approach the Trial Court by filing necessary application for recalling the warrant issued against him.	The Karnataka High Court has said that once an accused has appeared before the court, either personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of the Criminal Procedure Code (CrPC). Justice H P Sandesh thus dismissed the anticipatory bail petition filed by one Ramesh and granted him liberty to approach the Trial Court by filing the... The Karnataka High Court has said that once an accused has appeared before the court, either personally or through his counsel, he cannot seek anticipatory bail by invoking section 438 of the Criminal Procedure Code (CrPC). Justice H P Sandesh thus dismissed the anticipatory bail petition filed by one Ramesh and granted him liberty to approach the Trial Court by filing the necessary application for recalling the warrant issued against him. Case Background: As per the prosecution case, Deputy Range Forest Officer, Gauribidanur Range, recovered three number monitor lizards and three number gray francolin, in the house of petitioner. He then filed a complaint under Section 55(b) read with Section 51 of the Wild Life (Protection) Act, 1972 before the concerned Magistrate court. The Trial court took cognizance of the said offence and registered a case and issued summons to the accused, who appeared through his counsel on 05.10.2020 and sought for exemption by filing an application under Section 205 of Cr.P.C. which was allowed by the Trial Court. However, the accused remained absent subsequently and hence, NBW was issued against him. He then approached the session court seeking anticipatory bail which came to be rejected. Following which he moved the High Court. Petitioners Submissions: Advocate Dhiraj A.K, appearing for the petitioner, submitted that no prima facie case was made out against the petitioner and the search conducted by the complainant was not in accordance with Section 50(8) of the Wild Life (Protection) Act, 1972. It was contended that the complainant based on some information allegedly searched the house of petitioner without a search warrant and conducted a seizure under Mahazar and the very seizure itself is doubtful. Prosecution opposed the plea: It was submitted that the petition itself is not maintainable since, once the accused/petitioner has appeared before the Trial Court through his Counsel, he ought to have made an application for recalling the order before the Trial Court instead of invoked Section 438 of Cr.PC. Court findings: The bench relied on the judgement of the Karnataka High Court in the case of S.R. Nagaraj v. State of Karnataka reported in 2011 SCC OnLine Kar 3301 and in the case K. Somasekhar v. State of Karnataka reported in 2015 SCC OnLine Kar 8412. It was held in these cases that once the accused appeared before the Trial Court and thereafter on account of his absence on any later date a warrant was issued by the Court for deliberate absence, the remedy of anticipatory bail under Section 438 Cr.P.C. is not available to such a person. Taking note of the fact that the petitioner had appeared before the Trial Court through an advocate and also filed an application under Section 205 of Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the day, the court said, "Once an application seeking an exemption was allowed, the petitioner again cannot invoke Section 438 of Cr.P.C., and instead of filing an application for recalling the warrant issued by the Court for non-appearance has approached this Court and also the Trial Court." The court also considered that the appearance of the petitioner before the Trial Court has been suppressed in the petition. The bench said "When such being the factual aspects of the case, once he appeared through the Court, whether it is through Counsel or personally, he cannot agin seek anticipatory bail." Following which it held, "The petitioner is legally permitted to appear and once he has been permitted to appear legally he cannot contend that he has not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C., is not maintainable." Case Title: Ramesh v. State Through Dy RFO Case No: CRIMINAL PETITION NO.9975/2021 Date of Order: 21st January 2022 Appearance: Advocate Dhiraj A.K for petitioner; Advocate Vinayaka V.S for respondent
Criminal Appeal No. 538 of 1983. From the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl. A. No. 469 of 1981. G. Narasimhulu for the Appellants. T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A 1 to A 7 ') were tried for the offences under Sections 147, 148, 323, 379 and 302 read with Section 149 I.P.C. on the allegations that they caused the death of Madda Laksha mandas of village Ramaraogudem on November 1, 1980 near the Tobacco garden of A 1. The Trial Court acquitted A 7 of all the charges A 1 to A 6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with section 149 I.P.C. They were sentenced to imprisonment for life. On appeal, the High Court confirmed the conviction and sentence of A 1 to A 3. The conviction and sentence of A 4 to A 6 was set aside by the High Court and they were acquit ted on the following reasoning: . . . We feel that it would be safe to accept the evidence of P.Ws. 1 and 2 to the extent it is corroborated by the evidence 6 of P.W.3 in so far as the presence and partic ipation of the accused in the attack on the deceased is concerned. Accepting the evidence of P.W.3 we hold that the identity of A 1 to A 3 in the unlawful assembly consisting of A 1. to A 3 and some other unidentified persons is satisfactorily established. The manner in which the attack was made on the deceased can only lead to one inference namely that the common object of the unlawful assembly was to kill the deceased. We accordingly confirm the conviction and sentence of A 1 to A 3 under Sections 148 and 302 read with 149 I.P.C. We set aside the conviction and sentence of A 4 to A 6 under Sections 148 and 302 read with 149 I.P.C. and acquit them." This Court granted leave to appeal on the limited ques tion of applicability of Section 149 I.P.C. The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Section 148 and on applying 149 I.P.C. cannot be sustained. It is argued that the appellants, being three in number, could not have formed an unlawful assembly within the definition of Section 141 I.P.C. In our view, there is force in the contention of the learned counsel for the appellants. The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 I.P.C. It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime. The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Sections 148 and on apply ing 149 I.P.C. on the ground that they formed an unlawful assembly alongwith some unidentified persons. The prosecu tion case from the very beginning was that A1 to A7, the named persons, formed the Unlawful assembly. A 4 to A 7 having been acquitted, the remaining three appellants cannot be convicted under Sections 148 and on applying 149 I.P.C. We, therefore, set aside the conviction of the appellants under the said sections. The question still remains as to whether the appellants can be convieted under Section 302 read with Section 34 I.P.C. Both Sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences. The non applicability of Section i49 I.P.C. is, therefore, no bar in convicting the appellants under 7 Section 302 read with section 34 I.P.C. if the evidence discloses commission of an offence in furtherance of the common intention of them all. PW 1, the wife of the deceased, PW 2, the daughter of the deceased and PW 3, an adjoining land owner, are the three eye witnesses to the occurrence. It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties. During the last 30 years, there had been murders and rioting between the two factions. The deceased Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused. He had come on parole. On the day of occurrence at about 7.00 A.M. when he was passing near the field of A 1 he was attacked by the accused party. According to the eye witness es, A 1 and A 3 were armed with spears, A 2, A 4, A 5 and A 6 with knives and A 7 was armed with a stick. All of them way laid the deceased and dragged him into the Tobacco garden of A 1. It is in evidence that all the accused indis criminately inflicted injuries on the deceased with their respective weapons. When the deceased fell down the ac cused kept on giving him spear, knife and stick blows. The deceased was crying for water and when his daughter brought water A 2 caught hold of her and pushed her aside. She was also given beating by fists. Thereafter, A 1 left the spear and took a stick and gave beating to the deceased on his heals and chest and A 3 chopped of the fingers of left hand of the deceased with the knife. A 2 further gave blows to the deceased on his head. The deceased died instantaneously on the spot. Thereafter, at the asking of A 1, A 2 and A 3 dragged the dead body from the field of A 1 and placed the same on the road. There were as many as 18 injuries on the person of the deceased. Seven of those were deep penetrating wounds, 8 lacerated wounds and remaining were abrasions. The injuries caused fracture on the right perietal bone result ing in the opening of the skull. The fourth rib was broken and there was an injury to the lung. There were injuries all over the body. Keeping in view the manner of attack as disclosed by the eye witnesses and the number and nature of injuries, we have no hesitation in holding that the appellants made the mur derous attack on the deceased and caused his instantaneous death. We are satisfied that the appellants acted in fur therance of their common intention of murdering the de ceased. We, therefore, hold the appellants guilty under Section 302 read with Section 34 I.P.C. 8 Accordingly, we convert the conviction of the appellants to one under Section 302 read with section 34 I.P.C. and keep them sentenced to fife imprisonment. Appellants A 1 and A 3 are on bail under orders of this Court. We cancel the bail order. These appellants shall surrender to their bail bonds to undergo the sentence of imprisonment. T.N.A Appeal disposed of.	Appellants (A1 to A3) were tried for the offences under Sections 147, 148, 323 and 309 read with section 149 of the Indian Penal Code. The Trial Court acquitted A 7 of all the charges but convicted A 1 to A 6 under sections 148 and 302 read with section 149 and sentenced them to imprisonment for life. On appeal the High Court acquitted A 4 to A 6 but confirmed the conviction and sentence of the appellants. In appeal to this Court it was contended on behalf of the appellants that in view of the acquittal of four ac cused, the appellant 's conviction under section 148 and on applying section 149 cannot be sustained. The appellants being three in number could not have formed unlaWful assem bly under section 141 IPC. Disposing the appeal, this Court, HELD: 1. The High Court erred in confirming the convic tion and sentence of the appellants under Section 148 and on applying 149 I.P.C. on the ground that they formed an unlaw ful assembly alongwith some unidentified persons. The prose cution case was that the seven named accused formed the unlawful assembly and not that apart from the seven accused persons there were some other unidentified persons who were involved in the crime. Four accused having been acquitted there was no question of the remaining three appellants forming an unlawful assembly within the meaning of section 141 of the Indian Penal Code. Accordingly the appellants cannot be convicted under section 148 and an applying 149 I.P.C. Their conviction under the said sections is set aside. [6F G] 5 2. Both sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences. The non applicability of Section 149 I.P.C. is, therefore, no bar in convicting the accused under Section 302 read with section 34 I.P.C. if the evidence discloses commission of offence in furtherance of the common intention of them all. [6H, 7 A] 2.1 Keeping in view the manner of attack and the number and nature of injuries there is no hesitation in holding that the appellants acted in furtherance of their common intention, made the murderous attack on the deceased and caused his instantaneous death. Therefore, they are held guilty under Section 302 read with Section 34 I.P.C. and are sentenced to life imprisonment. [7G H]
iminal Appeals Nos. 248 to 251 of 1968. Appeals from the judgment an order dated August 13, 1968 of the Calcutta High Court in Criminal Appeals Nos. 425 to 428 of 1968. L.M. Singhvi and section P. Nayar, for the appepant (in all the appears). The respondent did not appear. The Judgment of the Court was delivered by Ray, J. These appeals are by certificate from the, judgment dated 13 August, 1968 of the High Court at Calcutta holding that 8 60 the memorandum of appeals from an order of, acquittal were barred by Article 114 of the . The appeals were directed against orders of acquittal passed by the Presidency Magistrate, Calcutta on 4 April, 1968. The four petitions of appeal were presented in the High Court on 1 July, 1968 by the learned Advocate authorised by the, Vakalatnama executed by the Assistant Registrar of Companies, West Bengal described as the appellant in all the_ petitions. The Assistant Registrar of Companies, West Bengal filed petitions of complaint before the Chief. Presidency Magistrate, Calcutta alleging that the certain officers/directors of the Standard Paint Works (P) Ltd. of 44 Beadon Row, Calcutta mentioned therein were guilty of offence for non compliance with provisions contained in the by reason of default in filing Annual Return of the Company together with the Annual Accounts and Balance sheet. Section 210 of the requires annual accounts and balance, sheet of the company to be filed within the time mentioned in the section. If any person being a director of the company fails to take all reasonable steps to comply with the provisions of section 210, he shall, in respect of each offence. be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The complainant in filing the petitions of complaint prayed for exemption of personal appearance under proviso to section 247 of the Code of Criminal Procedure read with section 621(1)A of the . The Presidency Magistrate passed the orders of acquittal in all the cases. Section 417 of the Code of Criminal Procedure speaks of appeal in case of acquittal. Sub section (3) of that:section is as follows "If such an order of acquittal is passed in any case instituted upon complaint and the. High Court, on an. application made to it by the complainant. in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court". Section 417 (4) of the Code of Criminal, Procedure states that no application under sub section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of 60 days from the date of the order of acquittal. No 8 application was made to the High Court in cornpiance with section 417 (3) of the Code of Criminal Procedure. 861 On behalf of the appellant it was contended both in the High, Court and in this Court that the appeals were preferred under section 624B of the . Section 624B is as follows "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may, in any case arising out of this Act, direct any company prosecutor or authorise any other person either by name or by virtue of his office, to present an appeal from an order of acquittal passed by any Court other than a High Court and an appeal presented by such prosecutor or other person shall be deemed to have been validly presented to the appellate Court.". The contention on behalf of the appellant that the right of appeal is conferred by section 624B of the is unacceptable. Section 624B only speaks of the Central Government directing or authorising any person to present an appeal from the order of acquittal. Section 417(1) of the Code of Criminal Procedure enacts that in case of acquittal the State Government may direct the Public Prosecutor to present an appeal to the High Court. Section 624B of the empowers the Central Government to present appeals through persons mentioned in that section. Presentation of appeal by the Central Government is a similar provision to section 417(1) of the Code of Criminal Procedure. Chapter XXXI of the Code of Criminal Procedure relates to, appeals. Appeal is a creature of statute. The right to appeal is governed by the Code of Criminal Procedure. , Section 404 of the Code of Criminal Procedure states that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code of Criminal Procedure or by any other law for the time being in force. Section 624B of the does not confer any right of appeal from any order passed by a Criminal Court in respect of any offence under the provisions of the . The right to appeal to the High Court in the present cases of acquittal is governed by section 417 of the Code of Criminal Procedure. Article 114 of the requires appeal under sub section (3) of section 417 of the Code of Criminal Procedure to be filed within 30 days from the date of the grant of special leave. No application for the grant of special leave to appeal from an order of acquittal was made within 60 days from that order of acquittal. The orders of acquittal were passed on 4 April, 1968. 862 The petitions of appeal were presented on 1 July, 1968. The appeals were rightly not entertained by the High Court because first there was no application for grant of special leave under section 417(3) of the Code of Criminal Procedure; secondly, the appeals were incompetent without grant of special leave, and thirdly these were barred by limitation. An appeal under section 417(3) against acquittal is competent only when there is special 'leave granted by the High Court. On obtaining special leave the appeal is thereafter filed within 30 days of the grant of leave to escape the mischief of the period of limitation under Article 114 ,.of the . A provision in the which confers right of appeal is section 483. It speaks of appeals from orders made and the decisions given in the matter of winding up of the companies by the Court and it enacts that such appeals shall lie to the same Court to which, in the same manner in which, and subject to the same ,conditions under which, appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. Section 624B is not such a section which can be said to be conferring a right of appeal. Section 624B only mentions as to the person through whom appeal is presented. The appeals therefore fail and are dismissed. V.P.S. Appeals dismissed.	The appellant filed complaints before the Chief Presidency Magistrate alleging that the officers of the respondent had committed an offence under the . They were acquitted on April 4, 1968. On July 1, 1968, appeals were filed in the High Court by the appellant (cornplainant) but the High Court held that they were barred by article 114 of the . In appeal to this Court, it was contended that the appeals were filed not under section 417 Cr.P.C, but under section 624B of the . HELD:(1) Section 404, Cr.P.C., provides that no appeal shall lie from any order of a criminal court except as provided by the Code or by any other law for the time being in force. But section 624B does not confer any right of appeal from an order of acquittal passed by a criminal court in respect of an offence under the . It only em powersthe Central Government to present appeals through persons mentioned in that section. [1861 E G] (2) Section 417, Cr. P.C. provides right of appeal in cases of acquittal and if the order of acquittal is passed in a case instituted upon complaint, an application for special leave to appeal from such order should be filed within 60 days from the date of the order of acquittal, and under article 114 of the , the appeal should be filed within 30 days from the date of the grant of special leave. The appeals were not rightly entertained in the present case, because (a) there was no application for grant of special leave under section 417(3), Cr. P.C., (b) the appeals were incompetent without grant of special leave; and (c) they were barred by limitation. [860 G H; 861 H; 862 A D]
ence No. 1 of 1964. Special Reference under article 143 of the Constitution of India. C.K. Dhaphtary, Attorney General, H.N. Sanyal, Solicitor General, section V. Gupte, Addl. Solicitor General, D. R. L. lyengar and R. H. Dhebar, for Union of India. M.C. Setalvad, G.S. Pathak, Jagadish Swaroop, S.N. Andley, P.L. Vohra, Rameshwar Nath, Mahinder Ndrain, Harish K. Puri and Suresh Vohra, for Hon 'ble the Chief Justice and other Judges of the Allahabad High Court. G. section Pathak, Jagdish Swaroop, Bishun Singh, Gopal Behari, J.S. Trivedi, S.N. Pawnikar, S.N. Andley, P.L. Vohra and Rameshwar Nath, for Hon 'ble Mr. Justice N.U. Beg. N.C. Chatterjee, Asif Ansari, M.K. Ramamurthi, and R.K. Garg for Hon 'ble Mr. Justice G.D. Sehgal. H. M. Seervai, Advocate General,41, Mahashtra, T. )Z. Andhyarujina and S.P. Varma, for U.P. Vidhan Sabha. N.A. Palkhivala, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for Hon 'ble the Chief Justice, Maharashtra High Court. J. M. Thakore, Advocate General, Gujarat, J. B. Dadachanji, O. C. Mathur and Revinder Jain, for Hon 'ble the Chief Justice, Gujarat High Court. D. Narsaraju, N. R Ramdar, O.P. Malhotra, B. Parthasarthy, J.B. Dadachanji, O.C. Mathur, and Ravinder Narain, for Hon 'ble the Chief Justice, Orissa High Court. Murli Manohar Vyas, section Murti, B.N. Kirpal, B.L. Khanna, K. K. Jain, Chitale and M. section Gupta, for Hon 'ble the Chief Justice, Rajasthan High Court. Murli Manohar, section Murti, B. N. Kirpal, B. L. Khanna,, K. K. jain, chitle and M. section Gupta, for Hon 'ble the Chief Justice, Madhya Pradesh High Court. D.P. Singh, section Balkrishnan, Shanti Bhatnagar and Lai Narain Singh, for Hon 'ble the Chief Justice, Patna High Court. C.1.165 2 424 A.C. Mitra and D.N. Mukherjee, for Hon 'ble Speker, West Bengal Legislative Assembly. section section Sanyal, section K. Acharyya and D. N. Mukheriee, for Hon 'ble Chairman, W.B.L.C. H.M. Seervai, Advocate General, Maharashtra, T.R. Anand yarujina, R.A. Gagrat and V.J. Merchant, for Hon 'ble the Speaker/Chairman Maharashtra L.A. & L.C. G.N. loshi, Atiqur Rehman and K.L. Hathi, for Hon 'ble the Speaker, Gujarat L.A. Atiqur Rehman and K.L. Hathi, for Hon 'ble the Speaker, Himachal Pradesh Vidhan Sabha. B.C. Barua, Advocate General, Assam and Naunit Lal, for Hon 'ble the Speaker, Assam Legislative Assembly. D.M. Sen, Advocate General, Nagaland and Naunit Lal, for Nagaland Legislative Assembly. B.P. Jha, for Hon 'ble the Chairman, Bihar Legislative Council and Hon 'ble the Speaker Bihar Legislative Assembly. K.L. Misra, Advocate General, Uttar Pradesh, B.C. Misra, D.D. Chaudhury and C.P. Lal, for the Advocate General for the State of U.P. M. Adhikari, Advocate General, Madhya Pradesh and I.N. Shroff, for the Advocate General for the State of Madhya Pradesh. N. Krishnaswamy Reddy, Advocate General, Madras, V. Ramaswamy and A.V. Rangam, for the Advocate General for State of Madras. B.V. Subrahamanyam, Advocate General, State of Andhra Pradesh, M. Jaganadha Rao and T.V.R. Tatachari, for the Advocate General for the State of Andhra Pradesh. B. Sen, S.C. Bose and P.K. Bose, for the Advocate General for the State of West Bengal. G.C. Kasliwal, Advocate General, State of Rajasthan, M. V. Goswami, for the State of Rajasthan. S.P. Varma, for the Advocate for the State of Bihar. J.P. Goyal, for M/s. Keshav Singh and B. Soloman. M. K. Nambyar and N. N. Keswani, for Bar Council of India. M. K. Nambyar, Chaudhury Hyder Hussain, B. K. Dhawan, Bishun Singh, Shiv Sastri and section section Shukla, for Oudh Bar Association. 425 R. Jethmalni, P.K. Kapila and A. K. Nag, for Western India Advocates Association (Intervener). section N. Kakar, C. section Saran, G. P. Gupta, and section C. Agarwal, for Allahabad High Court Bar Association (Intervener). M.K. Nambyar and V.A. Seyid Muhammad, for Bar Association of India (Intervener). R. V. section Mani, Shaukat Husain, E. C. Agarwala, Shahzadi Mohiuddin and O. C. Agarwal, for Applicants Interveners: (a) Lok Raksha Samaj (Sewak), (b) All India Civil Liberties Council (c) Sapru Law Society. M. K. Rama murthi, R. K. Garg, D. P. Singh and section C. Agar wal for Applicant Intervener Delhi Union of Journalists. K. Rajendra Chaudhury and K. R. Chaudhury, for Applicant Intervener, Bihar Working Journalists Union. Chinta Subba Rao, for Applicant Intervener, Institute of Public Opinion. GAJENDRAGADKAR C.J. delivered the Opinion on behalf of SUBBA RAO, WANCHOO, HIDAYATULLAH, SHAH AND RAJGOPALA AYYANGAR JJ. and himself. SARKAR J. delivered a separate Opinion. Gajendragadkar C.J. This is Special Reference No. 1 of 1964 by which the President has formulated five questions for the opinion of this Court under Article 143(1) of the Constitution. The Article authorises the President to refer to this Court questions of law or fact which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them. Article 143(1) provides that when such questions are referred to this Court by the President, the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. In his Order of Reference made on March 26, 1964, the President has expressed his conclusion that the questions of law set out in the Order of Reference are of such a nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon. It appears that on March 14, 1964, the Speaker of the Legislative Assembly of Uttar Pradesh administered, in the name of and under the orders of the Legislative Assembly (hereinafter referred to as "the House"), a reprimand to Keshav Singh, who is a resident of Gorakhpur, for having committed contempt of the House and also for having committed a breach of the privileges of Narsingh Narain Pandey, a member of the House. The contempt and 426 the breach of privileges in question arose because, of a pamphlet which was printed and published and which bore the signature of Keshav Singh along with the signatures of other persons. In pursuance of the decision taken by the House later on the same, day, the Speaker directed that Keshav Singh be committed to prison for committing another contempt of the House by his conduct in the House when he was summoned to receive the aforesaid reprimand and for writing a disrespectful fetter to the Speaker of the House earlier. According to this order, a warrant was issued over the signature of the Speaker of the House, Mr. Verma, directing that Keshav Singh be detained in the District Jail, Lucknow, for a Period of seven days, and in execution of the warrant Keshav Singh was detained in the Jail. On March 19, 1964, Mr. B. Solomon, an Advocate practising before the Lucknow Bench of the Allahabad High Court, presented a petition to the High Court on behalf of Keshav Singh under section 491 of the Code of Criminal Procedure, 1898, as well as under Article 226 of the Constitution. To this petition were implemented the speaker of the House, the House, the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail, Lucknow, where Keshav Singh was serving the sentence of improvement imposed on him by the House, as respondents 1 to 4 respectively. The petition thus presented on behalf of Keshav Singh alleged that his detention in jail was illegal on several grounds. According to the petition, Keshav Singh had been ordered to be imprisoned after the reprimand had been administered to him, and that made the order of imprisonment illegal and without authority. 'Me petition further alleged that Keshav Singh had not been given an opportunity to defend himself and that his detention was mala fide and was against the principles of natural justice. It was also his case that respondents 1 to 3 had no authority to send him to the District Jail, Lucknow, and that made his detention in jail illegal. After the said petition was filed before the Lucknow Bench of the Allahabad High Court, the learned Advocates for both the parties appeared before Beg and Sahgal JJ. at 2 P.m. and agreed that the petition should be taken up At 3 P.M. the same day. Mr. Solomon represented keshav Singh and Mr. K. N. Kapur, Assistant Government Advocate, appeared for all the respondents. Accordingly, the petition was taken up before the Court at 3 P.m. On this occasion, Mr. Solomon appeared for the petitioner but Mr. Kapur did not appear in Court. The Court then passed an Order that the applicant should be released on bail 427 on furnishing two sureties in a sum of Rs. 1,000 each and a personal bond in the like amount to the satisfaction of the District Magistrate, Lucknow. The Deputy Registrar of the Court was asked to take necessary action in connection with the Order. The Court also directed that the applicant shall remain present in Court at every hearing of the case in future. Thus, the petition was admitted and notice was ordered to be issued to the respondents with the additional direction that the case should be set down for hearing as early as possible. This happened on March .19, at 3 P.m. On March 20, 1964, Mr. Shri Rama, the Government Advocate, wrote to Mr. Nigam, Secretary to Government U.P. Judicial Department, Lucknow, giving him information about the Order passed by the High Court on Keshav Singh 's application. In this communication, Mr. Shri Rama has stated that after the matter was mentioned to the Court at 2 P.m. it was adjourned to 3 P.m. at the request of the parties; soon thereafter Mr. Kapur contacted Mr. Nigam on the phone, but while the conversation was going on, the Court took up the matter at 3 P.m. and passed the Order directing the release of Keshav Singh on terms and conditions which have already been mentioned. Mr. Shri Rama sent to Mr. Nigam three copies of the application made by Keshav Singh and suggested that arrangement should be made for making an appropriate affidavit of the persons concerned. He also told Mr. Nigam that the application was likely to be listed for hearing at a very early date. Instead of complying with the request made by the Government Advocate and instructing him to file a return in the application made by Keshav Sin , the House proceeded to take action against the two learned Judes why passed the order on Keshav Singh 's application, as well as Keshav Singh and his Advocate, on March 21, 1964. It appears that two Members of the House brought to the notice of the Speaker of the House on the 20th March what had happened before the Court in regard to the application made by Keshav Singh. Taking notice of the order passed by the High Court on Keshav Singh 's petition, the House proceeded to pass a resolution on March 21, 1964. This resolution said that the. House Was of the denote view at M/s. G. D. Sahgal, N. U. Beg. Keshav Singh and P. Solomon had committed contempt of the House and therefore, it was ordered that Keshav Singh Should immediately be taken into custody and kept confined in the District Jail, Lucknow, for the remaining term of his impri sonment and M/s. N. U. Beg, D. Sahgal and B. Solomon should 428 be brought in custody before the House. The resolution further added that after Keshav Singh completed the term of his imprisonment, he should be brought before the House for having again committed contempt of the House on March 19, 1964. The two learned Judges heard about this resolution on the radio on the evening of March 21, and read about it in the morning edition of the Northern India Patrika published on March 22, 1964. That is why they rushed to the Allahabad High Court with separate petitions under article 226 of the Constitution. petitions alleged that the impugned Resolution passed by the House was wholly unconstitutional and violated the provisions of article 211 of the Constitution. According to the petitions, the application made by Keshav Singh under article 226 was competent and in making an order releasing Keshav Singh, the Judges were exercising their jurisdiction and authority as Judges of the High Court under article 226. Their contention was that the resolution passed by the House amounted to contempt of Court, and since it was wholly without jurisdiction, it should be set aside and by an interim order its implementation should be stayed. To these petitions were impleaded as respondents Mr. Verma, the Speaker, Vidhan Sabha, Lucknow, the State of Uttar Pradesh and the Marshal, Vidhan Sabha. These petitions were filed on March 23, 1964. Apprehending that these developments had given rise to a very serious problem, a Full Bench of the Allahabad High Court consisting of 28 Judges took up on the same day the petitions presented before them by their two colleagues at Lucknow, directed that the said petitions should be admitted and ordered the issue of notices against the respondents restraining the Speaker from issuing the warrant in pursuance of the direction of the House given to him on March 21, 1964, and from securing execution of the warrant if already issued, and restraining the Government of U.P. and the Marshal of the House from executing the warrant. Meanwhile, on March 25, 1964, Mr. Solomon, the learned Advocate of Keshav Singh, presented a similar petition to the High Court under article 226. He prayed for a writ of mandamus on the same lines as the petitions filed by the two learned Judges, and he urged that suitable order should be passed against the House, because it had committed contempt of Court. To his petition Mr. Solomon had impleaded seven respondents; they were: the Speaker of the House, Mr. Verma: the Legislative Assembly, U.P.; the Marshal of the U.P. Legislative Assembly; 429 Mr. Saran and Mr. Ahmad, Members of the Legislative Assembly, U.P., who brought to the notice of the House the orders passed by the two learned Judges of the High Court; and the State of Uttar Pradesh. This application again was heard by a Full Bench of 28 Judges of the Allahabad High Court on March 25, and after admitting the petition, an interim order was passed prohibiting the implementation of the resolution the validity of which was challenged by the petitioner. At the preliminary hearing of this petition, notice had been served on the Senior Standing Counsel who was present in Court. He stated to the Court that he had no instructions at that stage to oppose the application. That is why the Court issued notice of the application and passed what it thought would be appropriate orders. On the same day, the House passed a clarificatory resolution. This resolution began with the statement that a misgiving was being expressed with regard to the motion passed by the House in that it could be construed as depriving the persons concerned of an opportunity of explanation, and it added that it was never the intention of the House that a charge against a High Court Judge for committing breach of privilege or contempt of the House, should be disposed of in a manner different from that governing breach of privilege or contempt committed by any other person. The House, therefore, resolved that the question of contempt may be decided after giving an opportunity of explanation to the persons named in the original resolution of March 20, 1964 according to rules. As a result of this resolution, the warrants issued for the arrest of the two learned Judges and Mr. Solomon were with drawn, with the result that the two learned Judges and Mr. Solomon were placed under an obligation to appear before the House and offer their explanations as to why the House should not proceed against them for their alleged contempt of the House. When the incidents which happened in such quick succession from March 19 to March 25, 1964, had reached this stage, the President decided to exercise his power to make a reference to this Court under article 143(1) of the Constitution on March 26, 1964. The Order of Reference shows that it appeared to the President that the incidents in question had given rise to a serious conflict between a High Court and a State Legislature which involved important and complicated questions of law regarding the powers and jurisdiction of the High Court and its Judges in relation to the State Legislature and its officers and regarding the 430 powers, privileges and immunities of the, State Legislature and its members in relation to the High Court and its Judges in the discharge of their duties. The President was also satisfied that the questions of law set out in his Order of Reference were of such a nature and of such public importance that it was expedient to obtain the opinion of this Court on them. That is the genesis of the present reference. The questions referred to this Court under this Reference read as follows : (1) Whether, on the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh consisting of the Hon 'ble, Mr. Justice N. U., Beg and the Hon 'ble Mr Justice G. D. Sahgal, to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Predesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Keshav Singh on bail pending the disposal of his said petition; (2) Whether, on the facts and circumstances of the case, Mr. Keshav Singh, by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon, Advocate, by presenting the said petition and the said two Hon 'ble ' Judges by entertaining and dealing with the said peti tion and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh; (3) Whether, on the facts and circumstances of the case, it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon 'ble Judges and Mr. B. Solomon, Advocate, before it in custody or to call for their explanation for its contempt; (4) Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon 'ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speker of the Legislative Assembly 431 of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; and (5) Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. At the hearing of this Reference, Mr. Varma has raised a preliminary objection on behalf of the Advocate General of Bihar. He contends that the present Reference is invalid under article 143(1) because the questions referred to this Court are not related to any of the entries in Lists 1 and III and as such, they cannot be said to be concerned with any of the powers, duties or functions conferred on the President by the relevant articles of the Constitution. The argument appears to be that it is only in respect of matters failing within the powers, functions and duties of the President that it would be competent to him to frame questions for the advisory opinion of this Court under article 143(1). In our opinion, this contention is wholly misconceived. The words of article 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact which has arisen or which is likely to arise, provided it appears to the President that such a question is of such a nature or of such public importance that it is expedient to obtain the opinion of this Court upon it. It is quite true that under article 143(1) even if questions are referred to this Court for its advisory opinion, this Court is not bound to give such advisory opinion in every case. article 143(1) provides that after the questions formulated by the President are received by this Court, it may, after such hearing as it thinking fit, report to 'the, President its opinion thereon. The use of the word "may" in contrast with the use of the word "shall" in the provision prescribed by article 143 (2) clearly brings opt the fact that in a given case this Court may respectfully refuse, to express its advisory opinion if it is satisfied that it should not express its opinion having regard to the nature of the questions forwarded to it and having regard to other relevant facts and circumstances. article 143 (2) 432 deals with cases in which the President may refer a dispute to this Court notwithstanding the prohibition prescribed by the proviso to article 131, and it adds that when such a reference is made, the Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. In other words, whereas in the case of reference made under article 143(2) it is the constitutional obligation of this Court to make a report on that reference embodying its advisory opinion, in a reference made under article 143(1) there is no such obligation. In dealing with this latter class of reference, it is open to this Court to consider whether it should make a report to the President giving its advisory opinion on the questions under reference. This position, however, has no bearing on the question raised by Mr. Varma. The validity of the objection raised by Mr. Varma must be judged in the light of the words of article 143(1) themselves and these words are of such wide amplitude that it would be impossible to accede to the argument that the narrow test suggested by Mr. Varma has to be applied in determining the validity of the reference itself. What article 143(1) requires is that the President should be satisfied that a question of law or fact has arisen or is likely to arise. He should also be satisfied that such a question is of such a nature and of such public importance that it is expedient to obtain the opinion of this Court on it. Prima facie, the satisfaction of the President on both these counts would justify the reference, and it is only where this Court feels that it would be inadvisable for it to express its advisory opinion on it that it may respectfully refuse to express any opinion. But there can be no doubt that in the present case it would be impossible to suggest that questions of fact and law which have been referred to this Court, have not arisen and they are not of considerable public importance. Therefore, we do not think there is any substance in the preliminary objection raised by Mr. Varma. The references made to this Court since the Constitution was adopted in 1950 illustrate how ' it would be inappropriate to apply the narrow test suggested by Mr. Varma in determining the competence or validity of the reference. The first Special Reference No. 1 of 1951 was made to this Court to obtain the advisory opinion of this Court on the question about the validity and constitutionality of the material provisions of the , the Ajmer Merwara (Extension of Laws) Act, 1947, and the Part C States (Laws) Act, 1951(1). The second Special (1) In re: the ; , 433 Reference(1) was made in 1958. This had reference to the validity of certain provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly, but had been reserved by the Governor for the consideration of the President. The third Special Reference(1) was made in 1959, and it invited the advisory opinion of this Court in regard to the validity of the material provisions of an agreement between the Prime Ministers of India and Pakistan which was described as the Indo Pakistan Agreement. The fourth Special Reference(2) was made in 1962. By this reference, the President forwarded for the advisory opinion of this Court questions in regard to the validity of the relevant provisions of a draft Bill which was intended to be moved in the Parliament with a view to amend certain provisions of the and the . It would thus be seen that the questions so far referred by the President for the advisory opinion of this Court under article 143 (1) do not disclose a uniform pattern and that is quite clearly consistent with the broad and wide words used in article 143(1). It is hardly necessary to emphasise that the questions of law which have been forwarded to this Court on the present occasion are of very great constitutional importance. The incidents which have given rise to this Reference posed a very difficult problem and unless further developments in pursuance of the orders passed by the two august bodies were arrested, they were likely to lead to a very serious and difficult situation. That is why the President took the view that a case for reference for the advisory opinion of this Court had been established and he accordingly formulated, five questions and has forwarded the same to us for our advisory opinion. Under article 143(1) it may be competent to the President to formulate for the advisory opinion of this Court questions of fact and law relating to the validity of the impinged provisions of existing laws; it may be open to him to formulate questions in regard to the validity of provisions proposed to be included in the Bills which would come before the Legislatures; it may also be open to him to formulate for the advisory opinion of this Court questions of constitutional importance like the present; and it may be that the President may, on receiving our answers consider whether the Union Government or the State Government should be requested to take any, suitable or appropriate action, either legislative or executive in (1) In re the Kerala Education Bill, 1957, [1959] S.C.R. 995. (2) In re: the Berubari Union, , (3) In re: the Bill to Amend etc. ; 434 accordance with the opinion expressed by this Court. That is why we feel no difficulty in holding that the present Reference is competent. As we have already indicated, when a Reference is received by this Court under article 143(1), this Court may, in a given case, for sufficient and satisfactory reasons, respectfully refuse to make a report containing its answers on the questions framed by the President; such a situation may perhaps arise if the questions formulated for the advisory opinion of this Court are purely socioeconomic or political questions which have no relation whatever with any of the provisions of the Constitution, or have otherwise no constitutional significance. It is with a view to confer jurisdiction on this Court to decline to answer questions for such strong and compelling reasons that the Constitution, or have used the word 'may ' in article 143 (1) as distinct from article 143 (2) "are the word used is 'shall '. In the present case, we are clearly of opinion that the questions formulated for our advisory opinion are questions of grave constitutional importance and significance and it is our duty to make a report to the President embodying our answers to the questions formulated by him. That takes us to the merits of the controversy disclosed by the questions formulated by the President for our advisory opinion. This Reference has been elaborately argued before us. The learned Attorney General opened the proceedings before us and stated the relevant facts leading to the Reference, and indicated broadly the rival contentions which the House and the High Court sought to raise before us by the statements of the case filed on their behalf. Mr. Seers, the learned Advocate General of Maharashtra, appeared for the House and presented before the Court a very learned, impressive and exhaustive argument. He, was followed by several learned counsel who broadly supported the stand taken by the House. Mr. Setalvad who appeared for the Judges of the Allahabad High Court, addressed to us a very able argument With his characteristic brevity and lucidity; and he was, in turn, followed by several learned counsel who appeared to support the stand taken by the Judges. Durng the course of the debate several propositions were canvassed before us and a very large area of constitutional law was covered. We ,ought, therefore to make it clear at the outset that in formulating our answers to the questions framed by the President in the present Reference, we propose to deal with only such points as, in our opinion, have a direct and material bearing on the problems posed by the said questions. It is hardly necessary to emphasise that in dealing With constitutional matters, the Court 435 should be slow to deal with questions which do not strictly arise. This precaution is all the more ' necessary in dealing with a reference made to this Court under article 143(1). Let us then begin by stating broadly the main contentions urged on behalf of the House and on behalf of the Judges and the Advocate. Mr. Seervai began his arguments by pointing out the fact that in dealing with reference under article 143(1), the Court is not exercising what may be described as its judicial function. There are no parties before the Court in such a reference and there is no his. The opinion expressed by the Court on the reference is, therefore, advisory; and so, he contends that though ha appears before us in the present reference on behalf ' of the House, he wants to make it clear that the House does not submit to the jurisdiction of this Court in any manner in respect of the area of controversy covered by the questions. In other words, he stated that his appearance before us was without prejudice to his main contention that the question about the existence and extent of the powers, privileges and immunities of the House, as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House; and whatever this Court may say will not preclude the House from deciding for itself the points referred to us under this Reference. This stand was based on the ground that the opinion "pressed by us is advisory and not in the nature of a judicial adjudication between the parties before the Court as such The same stand was taken by Mr. Seervai in regard to article 194(3) of the Constitution. article 194(3) deals with the question about the powers, privileges and immunities of the Legislatures and of the Members and Committees thereof. We will have occasion to deal with the provisions of this Article later on. For the present, it is enough to state that according to Mr. Seervai, it is the privilege of the House to construe the relevant provisions of ' article 194(3) and determine for itself what its powers, privileges and immunities are, and that being so, the opinion expressed by this Court on the questions relating to the existence and extent of its powers and privileges will not preclude the House from, determining the same questions for itself unfettered by the views of this Court. Having, thus made his position clear in regard to the claim which the House proposes to make in respect of its powers and Privileges, Mr. Seervai contended that even in England this dualism between the two rival jurisdictions claimed by the Judicature and the Parliament has always existed and it still continue& 436 to be unresolved. On some occasions, the dispute between the Judicature and the House of Commons has assumed a very bitter form and it has disclosed a complete antinomy or contradiction in the attitudes adopted by the two respective august bodies. The courts claimed that they had a right to decide the question about the existence and extent of powers and privileges in question and the Parliament consistently refused to recognise the jurisdiction of the courts in that behalf during the 17th, 18th and 19th centuries. The Parliament conceded that it could not create any new privileges, but it insisted on treating itself as the sole and exclusive judge of the existing privileges and was not prepared to part with its authority to determine what they were, or to deal with their breach, and how to punish the delinquent citizens. On the other hand, the courts insisted on examining the validity of the orders passed by the Parliament on the ground of breach of privilege, and the dualism thus disclosed persisted for many years. Mr. Seervai 'argues that the House for which he appears adheres to the stand which the House of Commons took in similar controversies which led to a conflict between the Judicature and itself on several occasions in the past. Consistently with this attitude, be denies the jurisdiction of the Allahabad High Court to deal with the points raised by Keshav Singh in his writ petition. Logically, his argument is that the presentation of the petition by Keshav Singh and his Advocate amounted to contempt of the House, and when the learned Judges entertained the petition and passed an interim order on it, they committed contempt of the House. That is the view taken by the House, and the propriety, correctness, or validity of this view is not examinable by the Judicature in this country. Alternatively, Mr. Seervai put his argument on a slightly different basis. He conceded that for over a century past, in England, this controversy can be taken to have been settled to a large extent by agreement between the Judicature and the House of Commons. It now appears to be recognised by the House of Commons that the existence and extent of privilege can be examined by the courts. It also appears to be recognised by the House of Commons that if in exercise of its power to punish a person for its contempt, it issues a speaking warrant, it would be open to the court to consider whether the reasons set out in the warrant amount to contempt or not. To this limited extent, the jurisdiction of the Judicature is recognised and consistently, for the last century, whenever it became necessary to justify the orders passed by it for its contempt, a return has always been 437 filed in courts. Mr. Seervai, however, emphasises the fact that even as a result of this large measure of agreement between the Judicature and the House of Commons on the question about the nature and extent of privilege, it appears to be taken. as settled that if an unspeaking or general warrant is issued by the House of Commons to punish a person who is guilty of its contempt, the courts would invariably treat the said general warrant as conclusive and would not examine the validity of the order passed by the House. In the present case, according to Mr. Seervai, the resolution which has been passed by the House against the two learned Judges as well as against Mr. Solomon is in the nature of a general resolution and though the warrants issued against the Judges have been withdrawn, it is clear that the decision of the House and the warrants which were initially ordered to be issued in pursuance of the said resolution, were in the nature of general resolution and general warrants, and so, it would not be open to this Court to enquire the reasons for which the said warrants were issued. The resolution in question and the warrants issued pursuant to it are conclusive and must be treated as such. The argument, therefore, is that in answering the question formulated under the present Reference, we should give effect to this position which appears to have been evolved by some sort of implied agreement between the Judicature and the House of Commons. This agreement shows that the right to determine questions of contempt and to decide adequacy of punishment for the said contempt belong exclusively to the House, and if in pursuance of the said exclusive power, a general warrant is issued, the House can never be called upon to explain the genesis or the reasons for the said warrant. This itself is an integral part of the privileges and powers of the House, and this integral part, according to the House, has been brought into India as a result of article 194(3) of the Constitution. In other words, the argument is that even if this Court has jurisdiction to determine the scope and effect of article 194(3), it should bear in mind the fact that this particular Power to issue an unspeaking general warrant and to insist upon the Judicature treating the said warrant as conclusive, is a part of the privileges to which the latter part of article 194(3) refers. It is on this broad ground that Mr. Seervai wanted us to frame our answers to the questions which are the subject matter of the Reference. On the other hand, Mr. Setalvad, for the Judges, contends that there is no scope for importing into our Constitution the dualism which existed in England between the Judicature and the House of Commons. He contends that there can be no doubt 438 that the question of construing article 194(3) falls within the exclusive jurisdiction of this Court and the High Courts and that the construction which this Court would place upon the relevant words used in the latter part of article 194(3) would finally determine the scope, extent and character of the privileges in question. According to Mr. Setalvad, article 194(3) cannot be read in isolation, but must be read in its context and in the light of other important constitutional provisions, such as articles 32, 211 and 226. When the material portion of article 194(3) is thus read, it would appear that there is no scope for introducing any antinomy or conflict or dualism between the powers of the High Court and those of the House in relation to matters which have given rise to the present 'questions. He further urges that it would be idle for the House to adopt an attitude which the House of Commons in England appears to have adopted in the 17th, 18th and 19th centuries when conflicts arose between the said House and the Judicature. For more than a century no attempt has been made by the House of Commons, says Mr. Setalvad, to contend that if a citizen who is punished by the House for its alleged contempt committed by him would be guilty of another contempt if he moved the Court in its habeas corpus jurisdiction, nor has Any attempt been made during this period by the House of Commons to proceed against a lawyer Who presents an application for habeas corpus or against Judas who entertain such applications; and so, the argument is that we ought 'to deal with the present dispute on the basis of the common agreement which has, by convention, been evolved between the two august and powerful institutions, the Judicature and the Legislature. Mr. Setalvad conceded that there appears to be some conven tion recognised by the English courts by which they treat a general or unspeaking warrant issued by the House as usually conclusive; but this aspect of the matter, according to him, is the result of convention or comity and cannot be treated as an integral part of the, privilege of the House itself. The basis for evolving this con I mention is rooted in the history of England, because the Parliament was the highest Court of Justice at one time and it is because of this history that the House of Commons came also to be regarded as a superior Court of Record. Such 'at assumption cannot be made in respect of the House in the present proceedings. Besides, in dealing with the question about the effect of a general warrant, the Court cannot ignore the significance of articles 32, 211 and 226 of the Constitution. Basing himself broadly on these arguments, Mr. Setalvad contends that the Constitution has resolved the problem of dualism in our country by 439 conferring on the High Courts and this Court the jurisdiction to deal with claims made by the citizens whose fundamental rights have been invaded, and that means that in this country, if an application for habeas corpus is made, it would be competent to. this Court or the High Courts to examine the validity of the order passed by any authority including the Legislature, and that must necessarily involve the consequence that an unspeaking warrant cannot claim the privilege of conclusiveness. That, in brief, in its broad features, is the approach adopted by Mr. Setalvad before us. It will thus be seen that the main controversy disclosed by the five questions formulated by the President ultimately lies within a very narrow compass. Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of ' the House ? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt ? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House ? The, argument urged by Mr. Seervai on behalf of the House is that in the case of a general warrant, the High Court has no jurisdiction to go behind the warrant; and in the present case, since it has entertained the petition and passed an order releasing Keshav Singh on bail without examining the warrant, and even before a return was filed by the respondents, it has acted illegally and without jurisdiction, and so, the learned Judges, of the High Court, the Counsel, and the party are all guilty of contempt of the House. Mr. Seervai urges that in any case, in habeas corpus proceedings of this character, the High Court had no jurisdiction to grant interim bail. It is not seriously disputed by Mr. Setalvad that the House has the power to inquire whether its contempt has been committed by anyone even outside its four walls and has the power to impose punishment for such contempt; but his argument is that having regard to the material provisions of our Constitution, it would not be open to the House to make a claim that its general warrant should be treated as conclusive. In every case where a party has been Sentenced by the House for contempt and detained, it would be open to him to move the High Court for appropriate relief under article 226 and the High Court would be entitled to examine the merits of his pleas, even though the warrant may be general P.C.I./65 3 440 or unspeaking. According to Mr. Setalvad, since the High Court has jurisdiction to entertain a Writ Petition for habeas corpus under article 226, it has also the power to pass an order of interim bail. Thus, the dispute really centers round the jurisdiction of the High Court to entertain a habeas corpus petition even in cases where a general or unspeaking warrant has been issued by the House directing the detention of the party in contempt. Though the ultimate solution of the problem posed by the questions before us would thus he within a very narrow compass, it is necessary to deal with some wider aspects of the problem which incidentally arise and the decision of which will assist us in rendering our answers to the questions framed in the present Reference. The whole of the problem thus presented before us has to be decided in the light of the provisions contained in article 194 (3 ) of the Constitution, and in that sense, the interpretation of article 194(3) is really the crux of the matter. At this stage, it is necessary to read Article 194 : "194. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature." ' 441 It will be noticed that the first three material clauses of article 194 deal with three different topics. Clause (1) makes it clear that the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the Legislature. While interpreting this clause, it is necessary to emphasis that the provisions of the Constitution subject to which freedom of speech has been conferred on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. The rules and standing orders may regulate the procedure of the Legislature and some of the provisions of the Constitution may also purport to regulate it; these are, for instance, Articles 208 and 211. The adjectival clause "regulating the procedure of the Legislature" governs both the preceding clauses relating to "the provisions of the Constitution" and "the rules and standing orders." Therefore, clause (1) confers on the legislators specifically the right of freedom of speech subject to the limitation prescribed by its first part. It would thus appear that by making this clause subject only to the specified provisions of the Constitution, the Constitution makers wanted to make it clear that they thought it necessary to confer on the legislators freedom of speech separately and, in a sense, independently of article 19(1)(a). If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in article 19(1)(a), it would have been unnecessary to confer the same right specifically in the manner adopted by article 194(1); and so, it would be legi timate to conclude that article 19(1)(a) is not one of the provisions of the Constitution which controls the first part of clause (1) of article 194. Having conferred freedom of speech on the legislators, clause (2) emphasises the fact that the said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may give in the Legislature or any committee thereof. In other words, even if a legislator exercises his right of freedom of speech in violation, say, of article 21 1, he would not be liable for any action in any court. Similarly, of the legislator by his speech or vote, is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court. If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any court by this clause. He 442 may be answerable to the House for such a speech and the Speaker may take appropriate action against him in respect of it; but that is another matter. It is plain that the Constitution makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause (2). Thus, clause (1) confers freedom of speech on the legislators within the legislative chamber and clause (2) makes it plain that the freedom is literally absolute and unfettered. That takes us to clause (3). The first part of this clause empowers the Legislatures of States to make laws prescribing their powers, privileges and immunities; the latter part provides that until such laws are made, the Legislatures in question shall enjoy the same powers, privileges and immunities which the House of Commons enjoyed at the commencement of the Constitution. The Constitution makers must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by cl. (3), are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3). This clause requires that the powers, privileges and immuni ties which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950. It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is : is 443 the power in question shown or proved to have subsisted in the House of Commons at the relevant time ? Clause (4) extends the provisions prescribed by the three preceding clauses to certain persons therein described. It will thus be seen that all the four clauses of article 194 are not in terms made subject to the provisions contained in Part In. In fact, clause (2) is couched in such wide terms that in exercising the rights conferred on them by cl. (1), if the legislators by their speeches contravene any of the fundamental rights guaranteed by Part III, they would not be liable for any action in any court. Nevertheless, if for other valid considerations, it appears that the contents of cl. (3) may not exclude the applicability of certain relevant provisions of the Constitution, it would not be reasonable to suggest that those provisions must be ignored just because the said clause does not open with the words "subject to the other provisions of the Constitution." In dealing with the effect of the provisions contained in cl. (3) of article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt win have to be made to resolve the said conflict by the adoption of the rule of harmonious construction. What would be the result of the adoption of such a rule we need not stop to consider, at this stage. We will refer to it later when we deal with the decision of this Court in Pandit M. section M. Sharma vs Shri Sri Krishna Sinha & Others(1). The implications of the first part of clause (3)may, however, be examined at this stage. The question is, if the Legislature of a State makes a law which prescribes its powers, privileges and immunities, would this law be subject to article 13 or not ? It may be recalled that article 13 provides that laws inconsistent with or in derogation of the fundamental rights would be void. Clause (1) of article 13 refers in that connection to the laws in force in the territory of India immediately before the commencement of the Constitution, and clause (2) refers to laws that the State shall make in future. Prima facie, if the legislature of a State were to make a law in pursuance of the authority conferred on it by clause (3), it would be law within the meaning of article 13 and clause (2) of article 13 would render it void if it contravenes or abridges the fundamental rights guaranteed,by Part M. As we will presently point out, that is the effect of the decision of this Court in Pandit Sharma 's(1) case. In other words, it must now be taken as settled (1) [1959] Supp. 1 S.C.R. 806. 444 that if a law is made under the purported exercise of the power conferred by the first part of clause (3), it will have to satisfy the test prescribed by the fundamental rights guaranteed by the Constitution. If that be so, it becomes at once material to enquire whether the Constitution makers had really intended that the limitations prescribed by the fundamental rights subject to which alone a law can be made by the Legislature of a State prescribing its powers, privileges and immunities, should be treated as irrelevant in construing the latter part of the said clause. The same point may conveniently be put in another form. If it appears that any of the powers, privileges and immunities claimed by the House are inconsistent with the fundamental rights guaranteed by the Constitution, how is the conflict going to be resolved. Was it the intention of the Constitution to place the powers, privileges and immunities specified in the latter part of cl. (3) on a much higher pedestal than the law which the Legislature of a State may make in that behalf on a future date ? As a matter of construction of clause (3), the fact that the first part of the said clause refers to future laws which would be subject to fundamental rights, may assume significance in interpreting the latter part of clause (3). That, in brief, is the position of the first three material provisions of article 194. The next question which faces us arises from the preliminary contention raised by Mr. Seervai that by his appearance before us on behalf of the House, the House should not be taken to have conceded to the Court the jurisdiction to construe article 194(3) so as to bind it. As we have already indicated, his stand is that in the matter of privileges, the House is the sole and exclusive judge at all stages. It may be that technically, the advisory opinion rendered by this Court on the Reference made to it by the President may not amount to judicial adjudication properly so called and since there are no parties as such before the Court in the Reference, nobody would be bound by our answers. But apart from this technical aspect of the matter, it is necessary that we should determine the basic question as to whether even in the matter of privileges, the Constitution confers on the House sole and exclusive jurisdiction as claimed by Mr. Seervai. It is common ground that the powers have to be found in article 194(3). That provision is the sole foundation of the powers, and no power which is not included in it can be claimed by the House; and so, at the very 'threshold of our discussion, we must decide this question. In dealing with this question, it is necessary to bear in mind one fundamental feature of a federal constitution. In England, 445 Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England is having a right to override or set aside the legislation of Parliament; and that the right or power of Parliament extends to every part of the Queen 's dominions(1). On the other hand, the essen tial characteristic of federalism is 'the distribution of limited executive, legislative and judicial authority among bodies which are co ordinate with and independent of each others. The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the con stitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any, change possible in the constitution by the ordinary process of federal or State legislation(2). Thus the dominant characteristic of the British Constitution cannot be claimed by a federal constitution like ours. Our Legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers con ferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. (1) Dicey, The Law of the Constitution 10th ed. xxxiv, xxxv. (2) Ibid p. Ixxvii. 446 In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense. There is another aspect of this matter which must also be mentioned; whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and their functions are normally confined to legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country; and so, we feel no difficulty in holding that the decision about the construction of article 194(3) must ultimately rest exclusively with the,Judicature of this country. That is why we must over rule Mr. Seervai 's argument that the question of determining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court. This conclusion, however, would not impair the validity of Mr. Seervai 's contention that the advisory opinion 447 rendered by us in the present Reference proceedings is not adjudication properly so called and would bind no parties as such. In coming to the conclusion that the content of article 194(3) must ultimately be determined by courts and not by the legislatures, we are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinovel nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this country. But when, as in the present case, a controversy arises between the House and the High Court, we must deal with the problem objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference is one of construing the relevant provisions of +,he Constitution and though its consideration may present some difficult aspects, we must attempt to find the answers as best we can. In dealing with a dispute like the present which concerns the jurisdiction, the dignity and the independence of two august bodies in a State, we must remember that the objectivity of our approach itself may incidentally be on trial. It is, therefore, in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the questions framed for our advisory opinion. If ultimately we come to the conclusion that the view pressed before us by Mr. Setalvad for the High Court Is erroneous, we would not hesitate to pronounce ' our verdict 448 against that view. On the other hand, if we ultimately come to the conclusion that the claim made by Mr. Seervai for the House cannot, be sustained, we would not falter to pronounce our verdict accordingly. In dealing with problems of this importance and significance, it is essential that we should proceed to discharge our duty without fear or favour, affection or ill will and with the full consciousness that it is our solemn obligation to uphold the Constitution and the laws. It would be recalled that article 194(3) consists of two parts. The first part empowers the Legislature to define by law from time to time its powers, privileges and immunities, whereas the Second part provides that until the legislature chooses so to define its powers, privileges and immunities, its powers, privileges and immunities would be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees, at the commencement of the Constitution. Mr. Seervai 's argument is that the latter part of article 194(3) expressly provides that all the powers which vested in the House of Commons at the relevant time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which cannot obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favorable construction placed on his words was justly regarded by the Commons as fundamental privilege(1)". It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and the privilege of impeachment cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt(1). This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that an powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. In construing the relevant provision of article 194(3), we must deal with the question in the light of the previous decision of this (1) Sir T. Erskine May 's Parliamentary Practice(16th ed.) p. 86. (2) lbid, p. 175. 449 Court in Pandit Sharma 's(1) case. It is, therefore, necessary to recall what according to the majority decision in that case, is the position of the provision contained in article 194(3). In that case. the Editor of the English daily newspaper, Search Light of Patna, had been called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly in that he had published in its entirety the speech delivered in the Assembly by a Member, portions of which had been directed to be expunged by the Speaker. The Editor who moved this Court under article 32, contended that the said notice and the action proposed to be taken by the Committee contravened his fundamental right of freedom of speech and expression under article 19 (1) (a), and also trespassed upon the protection of his personal liberty guaranteed under article 21. It is on these two grounds that the validity of the notice was impeached by him. This claim was resisted by the House by relying on article 194(3). Two questions arose, one was whether the privilege claimed by the House was a subsisting privilege in England at the relevant time; and the other was, what was the result of the impact of Articles 19 (1) (a) and 21 on the provisions contained in the latter part of Article 194(3)? The majority decision was that the privilege in question was subsisting at the relevant time and must, therefore, be deemed to be included under the latter part of article 194 (3). It also held that article 19 (1 )(a) did not apply, because under the rule of harmonious construction, in a case like the present where article 19 (1) (a) was in direct conflict with article 194(3), the particular provision in the latter article would prevail over the general provision contained in the former; it further, held that though article 21 applied, it had not been contravened. The minority view, on the other hand, was that the privilege in question had not been established in fact, and that alternatively, if it be assumed that such privilege was established and was, therefore, included under the latter part of article 194(3), it must be controlled by article 19(1)(a) on the ground that fundamental rights guaranteed by Part III of the Constitution were of paramount importance and must prevail over a provision like that contained in article 194(3) which may be inconsistent with them. At this stage, it would be useful to indicate broadly the points decided both by the majority and minority decisions in that case. Before the Court, it was urged by the petitioner that though article (1) [1959] Supp. 1 S.C.R. 806. 450 194(3) had not been made subject to the provisions of the Constitution, it does not necessarily mean that it is not so subject, and that the several clauses of article 194 should not be treated as distinct ,and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which, of course, would include article 19(1)(a). This argument was rejected both by the majority and the minority views. The next argument urged in that case was that article 194(1) in reality operates as an abridgement of the fundamental right of freedom of speech conferred by article 19(1)(a) when exercised in the State Legislatures, but article 194(3) does not, in terms, purport to be an exception to article 19(1)(a). This argument was also rejected by both the majority and the ' minority views. It was ,pointed out by the majority decision that clause (1) of article 194 no doubt makes a substantive provision of the said clause subject to the provisions of the Constitution; but in the context, those provisions cannot take in article 19 (1) (a), because this latter article does not purport to regulate the procedure of the legislature and it is only such provisions of the Constitution which regulate the procedure of the legislature which. are included in the first part of article 194(1). The third argument urged by the petitioner was that article 19 enunciates a transcendental principle and should prevail over the provisions of article 194(3), particularly because these latter provisions were of a transitory character. This contention was rejected by the majority view, but was upheld by the minority view. The fourth argument urged was that if a law is made by the legislature prescribing 'its powers, privileges and immunities, it would be subject to article 13 of the Constitution and would become void to the extent it contravenes the fundamental rights enshrined in Part III. This contention was accepted by both the majority and the minority decisions. That left one more point to be considered and it had reference to the observations made in an earlier decision of this Court in Gunupati Keshavram Reddy vs Nafisul Hasan and the State of U.P. (1). The majority decision has commented on this earlier decision and has observed that the said decision was based entirely on a concession and cannot, therefore, be deemed to be a considered decision of this Court. As we will presently point out, (1) A.I.R. 1954 S.C. 636. 451 the said decision dealt with the applicability of article 22(2) to a case falling under the latter part of article 194(3). The minority opinion, however, treated the said decision as a considered decision which was binding on the Court. We ought to add that the majority decision, in terms, held that article 21 applied, but, on the merits, it came to the conclusion that its alleged contravention had not been proved. On the minority view it was unnecessary to consider whether article 21 as such applied, because the said view treated all the fundamental rights guaranteed by Part III as paramount and, therefore, each one of them would control the provisions of article 194(3). It would thus be seen that in the case of Pandit Sharma(1), contentions urged by the petitioner did not raise a general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part HI at all. The contravention of only two articles was pleaded and they were Articles 19(1)(a) and 21. Strictly speaking, it was, therefore, unnecessary to consider the larger issue as to whether the latter part of article 194(3) was subject to the fundamental rights in general, and indeed, even on the majority view it could not be said that the said view excluded the application of all fundamental rights, for the obvious and simple reason that article 21 was held to be applicable and the merits of the petitioner 's argument about its alleged contravention in his case were examined and rejected. Therefore, we do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must always yield to the former. The majority decision, therefore, must be taken to have settled that article 19(1)(a) would not apply, and article 21 would. Having reached this conclusion, the majority decision has incidentally commented on the decision in Gunupati Keshavram Reddy 's(2) case. Apart from the fact that there was no contro versy about the applicability of article 22 in that case, we ought to point out, with respect, that the comment made by the majority judgment on the earlier decision is partly not accurate. In that case, a Constitution Bench of this Court was concerned with the detention of Mr. Mistry under an order passed by the Speaker of the Uttar Pradesh Legislative Assembly for breach of privilege of the said Assembly. The validity of Mr. Mistry 's detention was challenged on the ground that it had contravened article 22(2) of (1) (1959] Supp. 1 S.C.R. 806. (2) A.I.R. 1954 S.C. 636. 452 the Constitution. The facts alleged in support of this plea were admitted to be correct by the Attorney General, and on those admitted facts, the Court held that Mr. Mistry 's detention was clearly invalid. Referring to this decision, the majority judgment has observed that it "proceeded entirely on a concession of counsel and cannot be regarded as a considered opinion on the subject. " There is no doubt that the first part of this comment is not accurate. A concession was made by the Attorney General not on a point of law which was decided by the Court, but on a point of fact; and so, this part of the comment cannot strictly be said to be justified. It is, however, true that there is no discussion about the merits of the contention raised on behalf of Mr. Mistry and to that extent, it may have been permissible to the majority judgment to say that it was not a considered opinion of the Court. But, as we have already pointed out, it was hardly necessary for the majority decision to deal with the point pertaining to the applicability of article 22(2), because that point did not arise in the proceedings before the Court in Pandit Sharma 's(1) case. That is why we wish to make it clear that the orbiter observations made in the majority judgment about the validity or correctness ,of the earlier decision of this Court in Gunther Keshavram Reddy 's(1) case should not be taken as having decided the point in question. In other words, the question as to whether article 22(2) would apply to such a case may have to be considered by this Court if and when it becomes necessary to do so. Before we part with the decision of this Court in Pandit Sharma 's(1) case, it is necessary to refer to another point. We have already observed that the majority decision has accepted the, contention raised by the petitioner in that case that of a law were passed by the Legislature of a State prescribing its powers, privileges and immunities as authorised by the first part of article 194(3), it would be subject to article 13. Mr. Seervai has attempted to challenge the correctness of this conclusion. He contends that the power conferred on the legislatures by the first part of article 194(3) is a constitutional power, and so, if a law is passed in exercise of the said power, it will be outside the scope of article 13. We are unable to accept this contention. It is true that the power to make such a law has been conferred on the legislatures by the first part of article 194(3); but when the State Legislatures purport to exercise this power, they will undoubtedly be acting under article 246 read with Entry 39 of List IT. The enactment of such a law cannot be said to be in exercise of a constituent power, and so, such a law will have to be treated as a law within the meaning (1) [1959] Supp. 1 S.C.R. 806. (2) A.I.R. 1954 section C. 636. 453 of article 13. That is the view which the majority decision expressed in the case of Pandit Sharma(1), and we are in respectful agreement with that view. Mr. Seervai attempted to support his contention by referring to some observations made by Venkatarama Aiyar J. in Ananthakrishnan vs State of Madras(1). In that case, the learned Judge has observed that "[Art. 131 applies in terms only to laws in force before the commencement of the Constitution and to laws to be enacted by the States, that is, in future. It is only those two classes of laws that are declared void as against the provisions of Part III. It does not apply to the Constitution itself. It does not enact that the other portions of the Constitution should be void as against the provisions in Part III and it would be surprising if it did, seeing that all of them are parts of one organic whole. " This principle is obviously unexceptionable. This principle could have been invoked if it had been urged before us that either the first or the second part of article 194(3) itself is invalid because it is inconsistent with the relevant provisions in Part III which provides for fundamental rights. That, however, is not the argument of Mr. Setalvad, nor was it the argument urged before this Court in the case of Pandit Sharma(1). The argument was and is that if in pursuance of the power conferred by the first part of article 194(3) a law is made by the legislature, it is a law within the meaning of article 13, and this argument proceeds on the words of article 13 (2), itself. article 13 (2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. The law with which we are dealing does not purport to amend the Constitution and would not, therefore, form part of the Constitution when it is passed; like other laws passed by the Legislatures in exercise of the legislative powers conferred on them, this law would also be law within the meaning of article 13, and so, it is unreasonable to contend that the view taken by this Court in the case of Pandit Sharma(,,) that such a law would be subject to the fundamental rights and would fall within the mischief of article 13(2), requires reconsideration. The position, therefore, is that,in dealing with the present dispute we ought to proceed on the basis that the latter part of article 194(3) is not subject to article 19(1) (a), but is subject to article 21. The next question which we ought to consider is : was it the intention of the Constitution to perpetuate the dualism which (1) [1959] Supp. 1 section C. R. 806. (2) I.L.R. (1952] Mad. 933, 951. 454 rudely disturbed public life in England in the 17th, 18th and 19th centuries ? The Constitution makers were aware of several unhappy situations which arose as a result of the conflict between the Judicature and the Houses of Parliament and they knew that these situations threatened to create a deadlock in the public life of England. When they enacted article 194(3), was it their intention to leave this conflict at large, or have they adopted a scheme of constitutional provisions to resolve that conflict ? The answer to this question would obviously depend upon a harmonious construction of the relevant provisions of the Constitution itself. Let us first take article 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by Part HI and for any other purpose. It is hardly necessary to emphasis that the language used by article 226 in conferring power on the High Courts is very wide. article 12 defines the "State" as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under article 226(1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. article 226(1) read by itself, does not seem to permit such a plea to be raised. article 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the :enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we have said about article 226(1) is still more true about article 32(1). Whilst we are considering this aspect of the matter, it is relevant to emphasise that the conflict which has arisen between the High Court and the House is, strictly speaking, not a conflict between the High Court and the House as such, but between the House and a citizen of this country. Keshav Singh claims certain fundamental rights which are guaranteed by the Constitution and he seeks to move the High Court under article 226 on the ground that his fundamental rights have been contravened illegally. The High Court purporting to exercise its power under article 226(1), 455 seeks to examine the merits of the claims made by Keshav Singh and issues an interim order. It is this interim order which has led to the present unfortunate controversy. No doubt, by virtue of the resolution passed by the House requiring the Judges to appear before the Bar of the House to explain their conduct, the controversy has developed into one between the High Court and the House; but it is because the High Court in the discharge of its duties as such Court intervened to enquire into the allegations made by a citizen that the Judges have been compelled to enter the arena. Basically and fundamentally, the controversy is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly. That is why in dealing with the question about the extent of the powers of the House in. dealing, with cases of contempt committed outside its four walls, the provisions of article 226 and article 32 assume significance. We have already pointed out that in Pandit Sharma(1) this Court has held that article 21 applies where powers are exercised by the legislature under the latter part of article 194(3). If a citizen moves the High Court on the ground that his fundamental right under article 21 has been contravened, the High Court would be entitled to examine his claim, and that itself would introduce some limitation on the extent of the powers claimed by the House in the present proceedings. There are two other articles to which reference must be made. article 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part M. In other words, where the House makes rules for exercising its powers under the latter part of article 194(3), those rules must be subject to the fundamen tal rights of the citizens. Similarly, article 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. article 212(1) (1) [1959] pp. 1 S.C.R. 806. C.I.165 4 456 seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by article 194(3). That takes us to article 211. This article provides that no discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. This provision amounts to an absolute constitutional prohibition against any discussion in the Legislature of a State in respect of the judicial conduct of a Judge of this Court or of the High Court. Mr. Setalvad who appeared for the Judges has, based his argunent substantially on the provisions of this article. He contends that the unqualified and absolute terms in which the constitutional prohibition is couched in article 211 unambiguously indicate that the conduct of a Judge in the discharge of his duties can never become the subjectmatter of any action taken by the House in exercise of its powers or privileges conferred by the latter part of article 194(3). If a Judge in the discharge of his duties commits contempt of the House, the only step that can be taken against him is prescribed by article 121. article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided. Reading Articles 121 and 211 together, two points clearly emerge. The judicial conduct of the Judge cannot be discussed in the State Legislature. It can be discussed in the Parliament only upon a motion for presenting an address to the President praying for the removal of the Judge. The Constitution makers attached so much importance to the independence of the Judicature in this country that they thought it necessary to place them beyond any controversy, except in the manner provided by article 121. If the judicial conduct of a Judge cannot be dis cussed in the House, it is inconceivable that the same conduct can be legitimately made the subject matter of action by the House 457 in exercise of its powers under article 194(3). That, in substance, is the principal argument which has been urged before us by Mr. Setalvad. On the other hand, Mr. Seervai has argued that the effect of the provisions contained in article 211 should not be exaggerated. He points out that article 211 appears in Chapter HI which deals with the State Legislature and occurs under the topic "General Procedure", and so, the only object which it is intended to serve is the regulation of the procedure inside the chamber of the Legislature. He has also relied on the provisions of article 194(2) which expressly prohibit any action against a member of the Legislature for anything said or any vote given by him in the Legislature. In other words, if a member of the Legislature contravenes the absolute prohibition prescribed by article 21 1, no action can be taken against him in a court of law and that, says Mr. Seervai, shows that the significance of the prohibition contained in article 211 should not be overrated. Besides, as a matter of construction, Mr. Seervai suggests that the failure to comply with the prohibition contained in article 211 cannot lead to any constitutional consequence, and in support of this argument, he has relied on a decision of this Court in State of U.P. vs Manbodhan Lal Srivastava(1). In that cases, this Court was dealing with the effect of the provisions contained in article 320 of the Constitution. article 320 prescribes the functions of the Public Service Commis sions, and by clause 3(c) it has provided that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. It was held that the provisions of this clause were not mandatory and did not confer any right on a public servant, so that the absence of consultation or any irregu larity in consultation did not afford him a cause of action in a court of law. Mr. Seervai 's argument is that the words used in article 211 should be similarly construed and the prohibition on which Mr. Setalvad relies should be deemed to be merely directory and not mandatory. We are not impressed by Mr. Seervai 's arguments. The fact that article 21 1 appears under a topic dealing with "Procedure Generally", cannot mean that the prohibition prescribed by it is not mandatory. As we have already indicated, in trying to appreciate the full significance of this prohibition, we must read Articles 211 (1) ; 458 and 121 together. It is true that article 194(2) in terms provides for immunity of action in any court in respect of a speech made by a member or a vote given by him in the legislative Assembly. But this provision itself emphatically brings out the fact that the Constitution was anxious to protect full freedom of speech and expression inside the legislative chamber, and so, it took the pre caution of making a specific provision to safeguard this freedom of speech and expression by saying that even the breach of the constitutional prohibition prescribed by article 211 should not give rise to any action. Undoubtedly, the Speaker would not permit a member to contravene article 21 1; but if, inadvertently, or otherwise, a speech is made within the legislative chamber which contravences article 21 1, the Constitution makers have given protection to such speech from action in any court. The House itself may and would, no doubt, take action against him. It is also true that if a question arises as to whether a speech contravenes article 21 1 or not, it would be for the Speaker to give his ruling on the point. In dealing with such a question, the Speaker may have to consider whether the observations which a member wants to make are in relation to the conduct of a Judge in discharge of his duties, and in that sense, that is a matter for the Speaker to decide. But the significant fact still remains that the Constitution makers thought it necessary to make a specific provision by article 194(2) and that is the limit to which the Constitution has gone in its objective of securing complete freedom of speech and expression within the four walls of the legislative chamber. The latter part of article 194(3) makes no such exception, and so, it would be logical to hold that whereas a speech made in contravention of article 211 is protected from action in a court by article 194(2), no such exception or protection is provided in prescribing the powers and privileges of the House under the latter part of article 194(3). If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt, and the House proceeds to take action against the Judge in that behalf, such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of article 194(3). In our opinion, the omission to make any such provision when contrasted with the actual provision made by article 194(2) is riot without significance. In other words, this contrast leads to the inference that the Constitution makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative 459 chamber, would be to make a provision in article 194(2); and that is about all. The conduct of a Judge in relation to the discharge of his duties cannot be the subject matter of action in exercise of the powers and privileges of the House. Therefore, the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the, House, though if it is, no remedy lies in a court of law. But such conduct cannot be made the subject matter of any proceedings under the latter part of article 194(3). If this were not the true position, article 211 would amount to a meaningless declaration and that clearly could not have been the intention of the Constitution. Then, as regards the construction of article 21 1 itself, Mr. Seervai is no doubt in a position to rely upon the decision of this Court in State of U.P. vs Manbodhan Lal Srivastava(1). But it would be noticed that in coming to the conclusion that the provision contained in article 320(3)(c) was not mandatory, this Court has referred to certain other facts which determined the said construction. Even so, this Court has accepted the principle laid down by the Privy Council in Montreal Street Railway Company vs Normandin(1) wherein the Privy Council observed that "the question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. " question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by consider in its nature, its design, and the consequences which would follow from construing it the one way or the other. "(1) These principles would clearly negative the construction for which Mr. Seervai contends. It is hardly necessary to refer to other provisions of the Constitution which are intended to safeguard the independence of the Judicature in this country. The existence of a fearless and independent judiciary can be said to be the very basic foundation of the constitutional structure in India, and so, it would be idle, we think, to contend that the absolute prohibition prescribed by article 21 1 should be read as merely directory and should be allowed to be reduced to a meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his (1) ; (2) ; (3) People vs De Renna (2 N.Y.S.) (2) 694,166 Misc. (582) cited in Crawford, Statutory Construction p. 516. 460 duties. Therefore, we are satisfied that Mr. Setalvad is right when he contends that whatever may be the extent of the powers and privileges conferred on the House by the latter part of article 194(3), the power to take action against a Judge for contempt alleged to have been committed by him, by his act in the discharge of his duties cannot be included in them. Thus, Mr. Setalvad 's case is that so far as the Judges are concerned, the position is quite clear that as a result of the impact of the provisions contained in Articles 226 and 211, judicial conduct can never become the subject matter of contempt proceedings under the latter part of article 194(3), even if it is assumed that such conduct can become the subjectmatter of contempt proceedings under the powers and privileges possessed by the House of Commons in England. On the other hand, Mr. Seervai disputes Mr. Setalvad 's contention as to the impact of articles 226 and 211 on the latter part of article 194(3) and further urges that even if Mr. Setalvad be right in respect of that contention, he would not be entitled to dispute the validity of the power and privilege claimed by the House of Commons which can, therefore, be claimed by the House in the present proceedings that no court can go behind a general or unspeaking warrant. In order to determine the validity of these rival contentions, it is now necessary to consider very briefly what was the position of this particular power and privilege at the commencement of the Constitution. In dealing with this question, we will also very broadly refer to the wider aspect of the powers, privileges and immunities which vest in both the Houses of Parliament in England. While considering the question of the powers, privileges and immunities of the English Parliament it would, we think, be quite safe to base ourselves on the relevant statements which have been made in May 's Parliamentary Practice. This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice; and so, we think it would be an exercise in futility to attempt to deal with this question otherwise than by reference to May. Parliamentary privilege, according to May, is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law. The particular privileges of the House of Commons have been defined as "the sum of the fundamental 461 rights of the House and of its individual Members as against the prerogatives of the Crown; the authority of the ordinary courts of law and the special rights of the House, of Lords". There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term "privilege" to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are "absolutely necessary for the due execution of its powers". They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity(1). May points out that except in one respect, the surviving privileges of the House of Lords and the House of Commons are justifiable on the same ground of necessity as the privileges enjoyed by legislative assemblies of the self governing Dominions and certain British colonies, under the common law as a legal incident of their legislative authority. This exception is the power to punish for contempt. Since the decision of the Privy Council in Kielley vs Carson(1) it has been held that this power is inherent in the House of Lords and the House of Commons, not as a body with legislative functions, but as a descendant of the High Court of Parliament and by virtue of the lex et consuetudo parliamenti(1). Historically as originally the weaker body, the Commons had a fiercer and more prolonged struggle for the assertion of their own privileges, not only against the Crown and the courts, but also against the Lords. Thus the concept of privilege which originated in the special protection against the King began to be claimed by the Commons as customary rights, and some of these claims in the course of repeated efforts to assert them hardened into legally recognised "privileges". In regard to the fierce struggle by the House of Commons to assert its privileges in a militant way, May has made the significant comment that these claims to privilege were established in the late fifteenth and in the sixteenth centuries and were used by the House of Commons against the King in the seventeenth and arbitrarily against the people in the eighteenth century. Not until the nineteenth century was equilibrium reached and the limits of privilege prescribed and accepted by Parliament, the Crown and the Courts(3). The two Houses are thus of equal authority in the (1) May 's Parliamentary Practice pp. 42 43. (2) ; (3) May 's Parliamentary Practice, p. 44. 462 administration of a common body of privileges. Each House, as a constituent part of Parliament, exercised its own privileges independently of the other. They are enjoyed, however, not by any separate right peculiar to each, but solely by virtue of the law and custom of Parliament. Generally speaking, all privileges properly so called, appertain equally to both Houses. They are declared and expounded by each House. and breaches of privilege are adjudged and censured by each; but essentially, it is still the law of Parliament that is thus administered. It is significant that although either House may expound the law of Parliament, and vindicate its own privileges, it is agreed that no new privilege can be created. This position emerged as a result of the historic resolution passed by the House of Lords in 1.704. This resolution declared "that neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of Parliament. ' This resolution was communicated by the House of Lords to Commons and assented to by them(1). Thus, there can be no doubt that by its resolutions, the House of Commons cannot add to the list of its privileges and powers. It would be relevant at this stage to mention broadly the main privileges which are claimed by the House of Commons. Freedom of speech is a privilege essential to every free council or legislature, and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament. It is remarkable that notwithstanding the repeated recognition of this privilege, the Crown and the, Commons were not always agreed upon its limits. This privilege received final statutory recognition after the Revolution of 1688. By the 9th Article of the Bill of Rights, it was declared "that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament"(2). Amongst the other privileges are : the right to exclude strangers, the right to control publication of debates and proceedings, the right to exclusive cognizance of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own Members for their conduct in Parliament(1). Besides these privileges, both Houses of Parliament were possessed of the privilege of freedom from arrest or molestation, (1) May 's Parliamentary Practice, p. 47. (2) Ibid., p. 52. (3) Ibid., pp. 52 53. 463 and from being impleaded, which was claimed by the Commons on ground of prescription. Although this privilege was given royal and statutory recognition at an early date, ironically enough the enforcement of the privilege was dependent on the Lords and King, who were not always willing to protect the Commons. In this connection, May refers to the case of Thorpe who was the Speaker of the House of Commons and was imprisoned in 1452, under execution from the Court of Exchequer, at the suit of the Duke of York. It is an eloquent testimony to the dominance of the House of Lords and the weakness of the House of Commons which was struggling to assert its freedom and its rights that when the House of Lords in response to the application of the Commons adjudged that Thorpe should remain in prison, the Commons so easily acquiesced in this decision that they, immediately proceeded to the election of another Speaker(1). May points out that certain privileges have in course of time, been discontinued. Amongst them may be mentioned the freedom from being impleaded. Similarly, by the Parliamentary Privilege Act, 1770 a very important limitation of the freedom from arrest was affected. A somewhat similar position arises in respect of the privilege of exemption from jury service (2). In fact. the list of privileges claimed by the House of Commons in early days was a long and formidable list and it showed how the House of Commons was then inclined to claim all kinds of privileges for itself and its members. In course of time, however, many of these privileges fell into disuse and faded out of existence, some were controlled by legislation while the major privileges which can be properly described as privileges essential for the efficient functioning of the House, still continued in force. In considering the nature of these privileges generally, and particularly the nature of the privilege claimed by the House to punish for contempt, it is necessary to remember the historical origin of this doctrine of privileges. In this connection, May has emphasised that the original of the modern Parliament consisted in its judicial functions. "One of the principal lines of recent research", says May, "has revealed the importance of the judicial elements in the origins of Parliament. Maitland, in his introduction to the Parliament Roll of 1305, was the first to emphasise the importance of the fact that Parliament at that time was the King 's " great court" and was thereby (among other things) the highest court of royal justice. There is now general agreement in recognising the strongly judicial streak in the character of the earliest (1) May 's Parliamentary Practice, p. 70. (2) Ibid. pp., 75 77. 464 Parliaments and the fact that, even under Edward 111, although Parliaments devoted a considerable part of their time to political and economic business, the dispensation of justice remained one of their chief functions in the eyes of the King 's subjects"(1). As is well known, the Parliament of the United Kingdom is composed of the Sovereign, the House of Lords, and the House of Commons. These several powers collectively form the Legislature; and, as distinct members of the constitution, they exercise functions and enjoy privileges peculiar to each. The House of Lords, Spiritual and Temporal, sit together, and jointly constitute the House of Lords(2). The exact date of the admission of the Commons to a distinct place in the legislature has always been a subject of controversy; but as it is admitted that they often sat apart for deliberation, particular instances in which they met in different places will not determine whether their sepa ration, at those times, was temporary or permanent. When the Commons deliberated apart, they sat in the chapter house or the refectory of the abbot of Westminster; and they continued their sittings in that place after their final separation(3). The House of Lords always was and continues to be today a Court of Judicature. According to May, the most distinguishing characteristic of the Lords is their judicature, of which they exercise several kinds. They have the power to sit as a court during prorogation and dis solution; a Court of Appeal is constituted by the House of Lords and final appellate jurisdiction vests in them(4). May has also referred to the power claimed by the Parliament in respect of acts of attainder and impeachments, and he has described how this privilege was exercised by the House of Lords and the House of Commons(1). "In impeachments", says May, "the Commons are but accusers and advocates; while the Lords alone are judges of the crime. On the other hand, in passing bills of attainder, the Commons commit themselves by no accusation, nor are their powers directed against the offender; but they are judges of equal jurisdiction, and with the same responsibility, as the Lords; and the accused can only be condemned by the united judgment of the Crown, the Lords, and the Commons(6). " This aspect of the privilege is one of the typical features of the historical development of the constitutional law in England. It would thus be seen that a part of the jurisdiction claimed by the House of Lords as well as the House of Commons can be distinctly traced to the historical origin of the modem Parliament which, as we have just indicated, consisted in the judicial functions of Parliament. (1) May 's Parliamentary Practice, pp. 3 4.(2) Ibid., pp.8 9. (3) lbid. , p.12. (4) Ibid., pp. 38 39. (5) Ibid., p. 40. (6) Ibid., p. 41. 465 The differences in punishments inflicted by Lords and Commons is also of some significance in this context. "While both Houses agree in regarding the same offences as breaches of privilege", says May, "in several important particulars there is a difference in their modes of punishment. The Lords have claimed to be a court of record and, as such, not only to imprison, but to impose fines. They also imprison for a fixed time, and order security to be given for good conduct; and their customary form of commitment is by attachment. The Commons, on the other hand, commit for no specified period, and during the last two centuries have not imposed fines. There can be no question that the House of Lords, in its judicial capacity, is a court of record; but, according to Lord Kenyon, 'when exercising a legislative capacity, it is not a court of record '. Whether the House of Commons be, in law, a court of record, it would be difficult to determine; for this claiming, once firmly maintained, has latterly been virtually abandoned, although never distinctly renounced"(1). This last comment made by May would be of decisive significance when we later have occasion to deal with the question as to whether the privilege claimed by Mr. Seervai that a general warrant cannot be examined by courts is a part of the privilege itself, or is the result of convention established between the courts and the House of Commons. Let us then briefly indicate, in the words of May, the general features of the power of commitment possessed by the House of Commons. "The power of commitment", says May, "is truly described as the keystone of parliamentary privilege". As was said in the Commons in 1593, "This court for its dignity and highness hath privilege, as all other courts have. And, as it is above all other courts, so it hath privilege above all other courts; and as it hath privilege and jurisdiction too, so hath it also Coercion and Compulsion; otherwise the jurisdiction is nothing in a court, if it hath no Coercion" (2). The comment made by May on this power of commitment is very instructive. The origin of this power which is judicial in its nature is to be found naturally in the medieval conception of Parliament as primarily a court of justice the "High Court of Parliament". As a court functioning judicially, the House of Lords undoubtedly possessed the power of commitment by at least as good a title as any court of Westminster Hall. But the Commons, "new comers to Parliament" within the time of judicial memory, could not claim the power on grounds (1) May 's Parliamentary Practice, p. 90. (2) Ibid., p. 90. 466 of immemorial antiquity. As late as 1399 they had record& their protest that they were not sharers in the judgments of Parliament, but only petitioners. The possession of the right by the Commons was challenged on this ground, and was defended by arguments which confounded legislative with judicial jurisdiction. It was probably owing to the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice that the Commons succeeded in asserting their right to commit offenders on the same terms as the Lords(1). That is the genesis of the privilege claimed by the House of Commons in the matter of commitment. As the history of England shows, the House of Commons had to engage in a fierce struggle in order to arrest recognition for this right from the King, the House of Lords, and in many cases the people themselves. This power was distinctly admitted by the Lords at the conference between the two Houses, in the case of Ashby vs White(2), in 1704, and it has been repeatedly recognized by courts of law. In fact this power is also virtually admitted by the statute, I James 1, c. 13, section 3, which provides that nothing therein shall "extend to the diminishing of any punishment to, be hereafter, by censure in Parliament, inflicted upon any person(3). " Now we will refer to the statement of the law in May 's book on the vexed question about the jurisdiction of courts of law in matters of privilege. May says, it would require a separate treatise to deal adequately with a subject which raises incidentally such important questions of constitutional law. According to him, in cases affecting parliamentary privilege the tracing of a boundary between the competence of the courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases, particularly from the seventeenth to the nineteenth centuries. It has been common ground between the Houses and the courts that privilege depends on the "known laws and customs of Parliament", and not on the ipse dixit of either House. The question in dispute was whether the law of Parliament was a "particular" law or part of the common law in its wide and extended sense, and in the former case whether it was a superior law which overrode the common law. Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely (1) May 's Parliamentary Practice, p. 91. (2) L.J. (1701 05),714. (3) May 's Parliamentary Practice, p. 92. 467 by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the courts, and, if so, in what sort of cases (1). The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The courts claimed the right to decide or themselves when it became necessary to do so in proceedings brought before them, questions in relation to the existence or extent of these privileges, whereas both the Houses claimed to be exclusive judges of their own privileges. Ultimately, the two points of view were reconciled in practice and a solution acceptable to both he parties was gradually evolved. This solution which is marked but by the courts is to insist on their right in principle to decide ill questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. Two of these are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to commit and punish for contempt. May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance(2). In other words, 'the question about the existence and extent of privilege is generally treated as justiciable in courts where it becomes relevant for adjudication of any dispute brought before the courts. In regard to punishment for contempt, a similar process of give and take by convention has been in operation and gradually a large area of agreement has, in practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law(3). Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House In matters of privilege, nor the decision of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, "there is (1) May 's Parliamentary Practice, p. 150. (2) Ibid., p. 152. (3) Ibid., p. 172. 468 much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect" and May describes these general conclusions in the following words : (1) It seems to be recognized that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the King and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly. (2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascer tainable, and reinforces the doctrine that it is known by the courts. On the other hand, the courts admit (3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts. (4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal(.). It is a tribute to the remarkable English genius for finding pragmatic ad hoc solutions to problems which appear to be irreconcilable by adopting the conventional method of give and take. The result of this process has been, in the words of May, that the House of Commons has not for a hundred years refused to submit its privileges to the decision of the courts, and so, it may be said to have given practical recognition to the jurisdiction of the courts over the existence and extent of its privileges. On the other hand, the courts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognized privileges(1). That broadly stated, is, the position of powers and privileges claimed by the House of Commons. (1) May 's Parliamentary Practice, p. 173. (2) Ibid., pp. 173 74. 469 What now remains to consider is the position in regard to the special privilege with which we are concerned, viz., the privilege to determine whether its contempt has been committed and to punish for such contempt, and to claim that a general order or warrant sentencing a person for its contempt is not examinable in a court of law. Is this last right claimed by Mr. Seervai on behalf of the House a part of the privilege vesting in the House of Commons, or is it the result of an agreement evolved between the courts and the House by convention, or by the doctrine of comity, or as a matter of legal presumption ? It is to this question that we must now turn. Even while dealing with this narrow question, it is necessary, we think, to refer broadly to the somewhat tortuous course through which the law on this question has been gradually evolved by judicial decisions in England. Just as in dealing with the question of privileges, on principle we have mainly based ourselves on the statements of May, so in dealing with the evolution of the law on this question, we will mainly rely on the decisions themselves. Both Mr. Seervai and Mr. Setalvad have referred us to a large number of English decisions while urging their respective contentions before us and in fairness, we think we ought to mention some of the important representative decisions to indicate how this doctrine of privilege and its accompaniments has been gradual`y developed in England. For our purpose, the story can be said to begin in the year 1677 when the Court of King 's Bench had occasion to deal with a part of this problem in The Earl of Shaftesbury 's case(1); it develops from time to time when some aspect or the other of this problem of parliamentary privileges came before the courts at Westminster until we reach 1884 when the case of Bradlaugh vs Gossett(1) was decided. Let us then begin with Shaftesbury 's case. In that case, the Earl of Shaftesbury was committed to the Tower of London under an order of the House of Lords which directed the constable of the Tower of London to receive him and keep him in safe custody during the pleasure of the House "for high contempts committed against this House; and this shall be a sufficient warrant on that behalf. " The Earl of Shaftesbury took the matter before the Court of Kings ' Bench on a writ of habeas corpus and urged that the committal of the Earl was unjustified in law, because the general allegation of "high contempts" was (1) (2) L.R. 12 Q.B.D. 721. 470 too uncertain for the Court to sustain. It was also argued or his behalf that in respect of the jurisdiction exercised by the Lords the boundaries of the said jurisdiction were limited by common law and its exercise was examinable in the courts. This plea was unanimously rejected by the Court which held that the Court could not question the judgment of the House of Lords as a superior court. Rainford C.J. held "that this Court hath no jurisdiction of the cause, and therefore, the form of the return: is not considerable". According to the learned Chief Justice, the impugned commitment was in execution of the judgment given by the Lords for the contempt; and therefore, if the Earl be bailed, he would be delivered out of execution; because for a contempt in facie curiae, there is no other judgment for execution. This case, therefore, accepted the principle that the House of Lords had jurisdiction to issue a warrant for contempt and that since the commitment of the person thus committed was in execution of the judgment given by the House of Lords, the general warrant issued in that behalf was not examinable by the King 's Bench Division. Five years thereafter, Jay moved the King 's Bench Division for release from arrest and brought an action against Topham, the serjeant at Arms, for arresting and detaining him. Topham pleaded to the jurisdiction of the court, but the court rejected his plea and judgment was given in favour of Jay. Seven years thereafter, the House of Commons declared that the said judgment was "illegal, a violation of the privileges of Parliament, and pernicious to the rights of Parliament". Acting on this view the two Judges were called at the Bar of the House and asked to explain their conduct. Appearing before the Bar, Sir Francis Pemberton mentioned to the House that he had been out of the Court for more than six years and did not exactly remember what had happened in the case. He expressed surprise that he was called to the Bar without giving him enough notice as to what was the charge against him. He also urged that if the defendant should plead he did arrest him by the command of this House, and should plead that to the jurisdiction of the Court of King 's Bench, he would satisfy the House that such a plea ought to be overruled. That is why he asked for time to look into the records of the court to make his further pleas. Eventually, the two Judges were ordered to be imprisoned(1). This incident has been severely criticised by all prominent writers on constitutional law in England and it would be fairly accurate to state (1) 471 that it has been regarded as an unfortunate and regrettable episode in the history of the House of Commons. It is somewhat ironical that what happened as long ago as 1689 is attempted to be done by the House in the present proceedings 14 years after this country has been used to a democratic way of life under a written Constitution Before we part with this case, however, it would be material to indicate briefly how succeeding Judges have looked at this conduct of the House of Commons. In Sir Francis Burdett vs Abbot(1), Lord Ellenborough C.J., observed : "It is surprising upon looking at the record in that case how a Judge should have been questioned, and committed to prison by the House of Commons, for having given a judgment, which no Judge whoever sat in this place could differ from" and he added that the AttorneyGeneral who had appeared in Burdett had conceded that probably the matter was not so well understood at that time, whereupon Lord Ellenborough observed that it was after the Revolution, which makes such a commitment for such a cause a little alarming; and he pointed out that it must be recollected that Lord C.J., Pemberton stood under the disadvantage at that period of having been one of the Judges who had sat on the trial of Lord Russel, and therefore did not stand high in popularity after the Revolution, when the judgment and attainder in his case had been recently reversed by Parliament. Similarly, in Stockdale vs Hansard(2), referring to this incident, Lord Denman C.J. declared : "Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those acts of arbitrary power for which they deprived King James of his Crown". The next case to which reference may be made is Ashby vs White("). In that case, the plaintiff was a burgess of Aylesbuy, and as such entitled to vote for two Members of Parliament. On the day of the election he requested the defendants, who were the Returning Officers of the borough, to receive his vote. This the defendants refused to do, and the plaintiff was not allowed to vote. That led to an action against the Returning Officers for fraudulently and maliciously refusing his vote, and it ended in an award for damages by the jury. In an action before the Queen 's Bench in arrest of judgment, it was urged that (1) ; , 541. (3) ; (2) 12, 1163. 472 the claim made by the plaintiff was not maintainable. This action succeeded according to the majority decision Holt C.J., dissenting. Justice Gould held that he was of opinion that the action brought against the defendants was not maintainable, and in support of his conclusion he gave four reasons; first, because the defendants are judges of the, and act herein as judges; secondly, because it is a Parliamentary matter, with which we have nothing to do; thirdly, the plaintiff 's privilege of voting is not a matter of property or profit, so that the hindrance of it is merely damnum sine injuria; and fourthly, it relates to the pub lick, and is a popular offence(1). Holt C.J., however, dissented from the majority opinion and expressed his views in somewhat strong language. Referring to the opinion expressed by his colleagues that the Court cannot judge of the matter because it was a Parliamentary thing, he exclaimed : "O by all means be very tender of that. Besides, it is intricate, and there may be contrariety of opinions. But this matter can never come in question in Parliament; for it is agreed that the persons for whom the plaintiff voted were elected; so that the action is brought for being deprived of his vote. "(1) He conceded that the court ought not to encroach or enlarge its jurisdiction; but he thought that the court must determine on a charter granted by the King, or on a matter of custom or prescription, when it comes before the court without encroaching on the Parliament. His conclusion was that if it be a matter with the jurisdiction of the Court, "we are bound by our oaths to judge of it"(3 ) . This decision, however, has nothing to do with the question of contempt. The next case which deals with the question of contempt of the House of Commons, is R. vs Paty(4). In that case, Paty and four others were committed to Newgate by warrant issued by the Speaker of the House. The warrant was a speaking warrant and showed that the persons detained had committed contempt of the jurisdiction of the House and open breach of its known privileges. The validity of this warrant was challenged by the said persons on the ground that it suffered from many infirmities. The majority decision in the case, however, was that the warrant was not reversible for the alleged infirmities and that the court had no jurisdiction to deal with the matter, because the House of Commons were the proper judges of their own privileges. Justice Powys referred to the earlier decision in The (1) ; , 129. (3) Ibid., 138. (2) Ibid., 137. (4) ; 473 Earl of Shaftesbury 's case(1) and observed all commitments for contempts, even those by this Court, should come to be scanned, they would not hold water. Our warrants here in such cases are short, as for a contempt, or for a contempt in such a cause. So in Chancery the commitments for contempts are for a contempt in not fully answering, etc., and would not this commitment be sufficient ?" He held that "the House of Commons is a great Court, and all things done by them are to be intended to have been rite acta, and the matter need not be so specially recited in their warrants; by the same reason as we commit people by a rule of Court of two lines, and such commitments are held good, because it is to be intended, that we understand what we do. "(1) It would thus be seen that the majority decision in that case proceeded on the basis that the House of Commons was a great Court and like the superior courts at Westminster, it was entitled to issue a short general warrant for committing persons for its contempt. If such a general warrant was issued and it was challenged before the courts at Westmins ter, it should be treated with the same respect as is accorded to similar warrants issued by the superior courts. Holt C.J., however, was not persuaded to take the view that the impugned imprisonment was such "as the freeman of England ought to be bound by"; and he added, "for that this, which was only doing a legal act, could not be made illegal by the vote of the House of Commons; for that neither House of Parliament, nor both Houses jointly, could dispose of the liberty or property of the subject; for to this purpose the Queen must join : and that it was in the necessity of their several concurrences to such acts, that the great security of the liberty of the subject consisted." ' (p. 236). This case, therefore, seems to recognise that it would be inappropriate for the courts at Westminster to examine the validity of a general warrant issued by the House of Commons. That takes us to the decision in Murray 's case(3) . Murray was committed to prison by the House of Commons for refusal to kneel, when brought up to the bar of the House. It was declared by the House that the refusal of Murray to kneel was "a most dangerous contempt of privilege". When a petition for habeas corpus was moved before the Court, it was rejected on the ground that "the House of Commons was undoubtedly a High Court and that it was agreed on all hands that they have power to judge of their own privileges, and it need not appear (1) (3) ; (2) ; , 234. 474 to us what the contempt was, for if it did appear, we could not judge thereof. " That is the view expressed by Justice Wright. The learned Judge also added that the House of Commons was superior to his own Court, and that his Court could not admit to bail a person committed for a contempt in any other Court in Westminster Hall. Dennison J. agreed and expressed his opinion that the Court at Westminster Hall was inferior to the House of Commons with respect to judging of their privileges and contempts against them. This case again proceeds on the basis that the House of Commons is a superior court, and as such its warrants cannot be examined. The next relevant case in point of time is Brass Crosby(1). Brass Crosby was Lord Mayor of London and a Member of the House of Commons, and as Magistrate he had admitted to bail a person who had been committed to prison under a warrant issued by the Speaker of the House under the orders of the House itself. The House held that Lord Mayor was guilty of breach of privilege of the House, and as such he was committed to the Tower of London. The validity of this order was challenged by Brass Crosby. The challenge, however, failed on the ground that when the House of Commons adjudges anything to be a contempt or a breach of privilege, their adjudication is a conviction, and their commitment in consequence is in execution. As Lord C.J. de Grey observed, "no court can discharge or bail a person that is in execution by the judgment of any other court," and so, he came to the conclusion that "the House of Commons having authority to commit, and that commitment being an execution, the question is what can this Court do ? He gave the answer with the remark that "it can do nothing when a person is in execution, by the judgment of a court having a competent jurisdiction; in such case, this Court is not a court of appeal. "(2) Concurring with this view, Blackstone J. observed that the House of Commons is a Supreme Court and he was impressed by the argument that "it would occasion the utmost confusion, if every Court of this Hall should have power to examine the commitments of the other Courts of the Hall, for contempts; so that the judgment and commitment of each respective Court, as to contempts, must be final, and without control. "(1) It would thus be seen that this decision proceeded on the same ground which had by then been recognised that the House of Commons was a superior ,court and as such had jurisdiction to punish persons adjudged (1) ; (3) Ibld., 1014. (2) Ibid., 1011. 475 by it to be guilty of contempt. A general warrant issued by the House in respect of such a contempt was treated as of the same status as a similar warrant issued by other superior courts at Westminster Hall. Before parting with this case, we may incidentally advert to the comment made by Lord Denman C.J. on this decision. Said Lord Denman : "We know now, as a matter of history, that the House of Commons was at that time engaged, in unison with the Crown, in assailing the just rights of the people. Yet that learned Judge [Blackstone J.] proclaimed his unqualified resolution to uphold the House of Commons, even though it should have abused its power(1). " The next important decision on this topic is Sir Francis Burdett 's case(1). This case arose out of an action of trespass which Sir Francis Burdett commenced against the Speaker of the House of Commons for breaking and entering his house, and imprisoning him in the Tower. The plea raised in defence was that the conduct of the defendant was justified by an order of the House for Burdett 's committal after the House had adjudicated that he had been guilty of a contempt of the House by publishing a libellous and scandalous paper reflecting on the just rights and privileges of the House. The case was elaborately argued and as May points out : "This case provides one of the principal authorities for the Commons ' power (as Lord Shaftesbury 's case does for the Lords ') to commit for contempt(, '). " The warrant in this case was a speaking warrant and the contempt was the contempt of the House of Commons. The plea made by Burdett was rejected, but the reasons given for rejecting the plea are significant. Lord Ellenborough C.J. has considered the question exhaustively. He has observed that upon the authority of precedents in Parliament, upon the recognition by statute, and upon the continued recognition of all Judges, he should have thought that there was a quantity of authority enough to have put the question to rest, that is, whether the House of Commons has the power of commitment for a contempt of their privileges ? The House undoubtedly had that power. Proceeding to deal with the matter on that basis, Lord Ellenborough held that the House was competent to decide both as to the fact and the effect of the publication which was held by it to be libellous, and he added that by analogy to the judgment of a Court of law, (and the judgments of either House of Parliament cannot with propriety (1) Stockdale vs Hansard, 112 E.R. 1112,1158. (2) ; (3) May 's Parliamentary Practice, p. 159. 476 be put upon a footing less authoritative than those of the ordinary Courts of Law), the House must be considered as having decided both, as far as respects any question thereupon which may arise in other Courts. The next question which Lord Ellenborough considered was if the warrant itself disclosed a sufficient ground for commit ment, and an order to the officers of the House to execute it, then the justification for the persons acting under it is made out, " unless any justifiable means appear to have been afterwards used to carry the warrant into execution. " It appears that in that case it was urged before the Court that if the warrant issued appeared to be on the face of it unjustified, illegal or extravagant, the Court would be entitled to entertain the petition for a writ of habeas corpus and grant relief to the petitioner. ,Lord Ellenborough dealt with this argument and expressed the opinion that if a commitment appeared to be for a contempt of the House of Commons generally, he would neither in the case of that Court, nor of any other of the Superior Courts, inquire further; but if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the Court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law, or national justice, in such a case the Court must look at it and act upon it as justice may require from whatever Court it may profess to have proceeded (pp. 558 60). It is thus clear that even while recognising that it would be inappropriate or improper to examine a general warrant issued by the House of Commons, Lord Ellenborough made it clear that this convention would be subject to the exception that wherever it appeared from the return or otherwise that the commitment was palpably unjust, the court would not be powerless to give relief to the party. This case went in appeal before the Court of Exchequer and the decision under appeal was confirmed. It appears that before the appellate decision was pronounced, Lord Eldon proposed to their Lordships that the counsel for the defendants should not be heard until they received the advice of the Judges on the question which he formulated. This question was : "Whether, if the Court of Common Pleas, having adjudged an act to be a contempt of Court, had committed for the contempt under a warrant, stating such adjudication generally without the particular circumstances, and the matter were brought before the Court of King 's 477 Bench, by return to a writ of habeas corpus, the return setting forth the warrant, stating such adjudication of contempt generally; whether in that case the Court of King 's Bench would discharge the prisoner, because the particular facts and circumstances, out of which the contempt arose, were not set forth in the warrant." After this question was handed to the Judges and they consulted among themselves for a few minutes, Lord Ch. Baron Richards delivered their unanimous opinion that in such a case the Court of King 's Bench would not liberate.( ') This opinion was accepted and Burdett 's appeal was dismissed without calling on the respondent. In this case, Lord Erskine observed that "the House of Commons, whether a Court or not, must like every other tribunal, have the power to protect itself from obstruction and insult, and to maintain its dignity and character. If the dignity of the law is not sustained, its sun is set, never to be lighted up again. So much I thought it necessary to say, feeling strongly for the dignity of the law; and have only to add that I fully concur in the opinion delivered by the Judges. " This case seems to establish the position that a warrant issued by the House of Commons was treated as a warrant issued by a superior Court and as such, the courts in Westminster Hall could not go behind it. In 1836 37 began a series of cases in which John Joseph Stockdale was concerned. This series of cases ultimately led to the arrest and imprisonment of the Sheriffs of Middlesex. It appears that in one of the reports published by the inspectors of prisons under the order of the House of Commons Stockdale was described in a libellous manner, and so, he brought an action against Messrs. Hansard in 1836. In defence, Hansard pleaded privilege and urged that the reports in question had been published under the orders of the House. The Court held that the order of the House supplied no defence to the action. Even so, the verdict of the jury went against Stockdale on a plea of justification on the merits, the jury having apparently held that the alleged libellous description of Stockdale was accurate. At the time when this case was tried, Lord Chief Justice Denman made certain observations which were adverse to the privileges of the House claimed by Hansard. He observed "that the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports is no justification for them, or for any book seller who publishes a parliamentary report containing a libel against any man(2). " Incidentally, it may be added that as a (1) ; ,1301. (2) May 's Parliamentary Practice, p. 159. 478 result of this controversy, the Parliament ultimately passed the Parliamentary Papers Act, 1840, which overruled this view. Not deterred by the adverse verdict of the jury on the merits, Stockdale began another action. Before this action was commenced, the House of Commons had passed a resolution in 1837 reaffirming its privileges, and expressing its deliberate view that for any court to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament. Nevertheless, in this second action brought by Stockdale, the House decided to put in a defence of privilege. This defence was rejected and a decree was passed for payment of damages and costs. Even so, the House of Commons did not act upon its resolutions and refrained from punishing Stockdale and his legal advisers for having taken the matter to a court of law; instead, it decided that the damages and costs be paid under the special circumstances of the case. Encouraged by this result Stockdale brought a third action for another publication of the said report. This time Messrs. Hansard did not plead; in consequence, the judgment went against them in default, and the damages were assessed by a jury, in the Sheriff 's Court, at pound 600. The Sheriffs of Middlesex levied for that amount, but were served with the copies of the resolutions passed by the House; and that naturally made them cautious in the matter. They, therefore, delayed the payment of the money to Stockdale as long as possible, but ultimately the money was paid by them to Stockdale under an attachment. At this stage, the House of Commons entered the arena and committed Stockdale to the custody of the Serjeant. It called upon the Sheriffs to refund the money and on their refusal, they were also committed for contempt. That led to proceedings taken by the Sheriffs for their release on a writ of habeas corpus. These proceedings, however, failed and that is the effect of the decision in the Case of the Sheriff of Middlesex(1). Naturally, Mr. Seervai has laid considerable emphasis on this decision. He has pointedly drawn our attention to the fact that the Court found itself powerless to protect the Sheriffs of Middlesex against their imprisonment, though the conduct which gave rise to contempt of the House was, in terms, the result of an order passed by the Court. Lord Denman C.J., who had himself elaborately discussed the question and disputed the validity of the claim made by the House of Commons in regard to its privi (1) ; 479 leges in the case of Stockdale vs Hansard(1), was a party to this decision. He began his judgment by declaring that his earlier judgment delivered in the case of Stockdale vs Hansard(1) was correct in all respects. Even so, the plea raised by the Sheriffs had to be answered against them, because their commitment was sustained by a legal warrant. Lord Denman then examined the three grounds on which the validity of the warrant was impeached and he found that there was no substance in those pleas. The learned Chief Justice considered the previous decisions bearing on the point and observed that the test prescribed by Lord Eldon in the case of Burdett vs Abbot (2) was relevant; and this test, as we have already seen, proceeds on the assumption that like the general warrants for commitment issued by the superior courts, the general warrants issued by the House of Commons on the ground of contempt should not be examined in proceedings for habeas corpus. Littledale J. concurring with, Lord Denman C.J. said : "if the warant declares the grounds of adjudication, this Court, in many cases, will examine into their validity; but, if it does not, we cannot go into such an inquiry. Here we must suppose that the House adjudicated with sufficient reason; and they were the proper judges". Justice Williams, who also concurred with Lord Denman, thought it necessary to add ' that "if the return, in a case like this, shewed a frivolous cause of commitment, as for wearing a particular dress, I should agree in the opinion expressed by Lord Ellenborough in Burdett vs Abbot(1), where he distinguishes between a commitment stating a contempt generally, and one appearing by the return to be made on grounds palpably unjust and absurd. Coleridge J. preferred ' to put his conclusion on the ground that "[the right of the House of Commons] to adjudicate in this general form in cases of contempt is not founded on privilege, but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment. " It is remarkable that Justice Coleridge thought it necessary to make it clear that the right to require a general warrant to be respected ' when its validity is challenged in habeas corpus proceedings, is now ,a part of the privilege itself; it is the result of a convention by which such warrants issued by superior courts of record are usually respected. This decision was pronounced in 1840, and ' can be said to constitute a landmark in the development of the law on this topic. Thus, this decision also does not assist Mr. Seervai in contending that it is a part of the privilege of the" (1) 11 12. (2) ; 480 House to insist that a general warrant issued by it must be treated as conclusive and is not examinable in courts of law. The next case is Howard vs Sir William Gosset(1). In that case, by a majority decision a warrant issued by the Speaker of the House against Howard was held to be invalid as a result of certain infirmities discovered in the warrant. Williams J. alone dissented. The warrant in this case was a general warrant and Williams J. held that the technical objections raised against the validity of the warrant could not be entertained, because a general warrant should be treated as conclusive of the fact that the party against whom the warrant had been issued had been properly adjudged to be guilty of contempt. Since the judgment was pronounced in favour of the plaintiff Howard, the matter was taken in appeal, and the majority decision was reversed by the Court of Exchequer. Parke B. considered the several arguments urged against the validity of the warrant and rejected them. The general ground for the decision of the Court of Exchequer was expressed in these words : "We are clearly of opinion that at least as much respect is to be shewn, and as much authority to be attributed, to these mandates of the House as to those of the highest Courts in the country; and, if the officers of the ordinary Courts are bound to obey the process delivered to them, and are therefore protected by it, the officer of the House of Commons is as much bound and equally protected. The House of Commons is a part of the High Court of Parliament, which is without question not merely a Superior but the Supreme Court in this country, and higher than the ordinary courts of law(1)". Thus, the result of this decision is that the House of Commons being part of the High Court of Parliament is a superior Court and the general warrants issued by it cannot be subjected to the close scrutiny, just as similar warrants issued by other superior courts of record are held to be exempt from such scrutiny. It would be noticed that the Court of Exchequer has observed in this case that the House of Commons as a part of the High Court of Parliament, is a Supreme Court in this country and is higher than the ordinary courts of law; and this recalls the original judicial character of the House of Parliament in its early career and emphasises the fact that the House of Lords which is a part of the House of Parliament still continues to be the highest court of law in England. The last case in this series to which we ought to refer is the decision of the Queen 's Bench Division in Bradlaugh vs (1) ; (2) 1bid. , at 174. 481 Gossett(1). This decision is not directly relevant or material but since Mr. Seervai appeared to rely on certain statements of law enunciated by Stephen J., we think it necessary to refer to it very briefly. In the case of Bradlaugh the Court was called upon to consider whether an action could lie against the Serjeantat Arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House directing him to do so; and the answer was in the negative. It appears that the material resolution of the House of Commons was challenged as being contrary to law, and in fact the Queen 's Bench Division proceeded to deal with the claim of Bradlaugh on the footing that the said resolution may strictly not be in accordance with the true effect of the relevant provision of the law; and yet it was held that the matter in dispute related to the internal management of the procedure of the House of Commons, and so, the Court of Queen 's Bench had no power to interfere. It was pressed before the Court that the resolution was plainly opposed to the relevant provision of the law. In repelling the validity of this argument, Stephen J., observed that in relation to the rights and resolutions concerning its internal management, the House stood precisely in the same relation "as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it". The learned Judge then proceeded to add "If they misunderstand it, or (I apologize for the supposition) wilfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses". That, said the learned Judge, was enough to justify the conclusion which he had arrived at(1). Mr. Seervai 's argument was that though the resolution appeared to constitute an infringement of the Parliamentary Oaths Act, the Court refused to give any relief to Brad laugh, and he suggested that a similar approach should be adopted in dealing with the present dispute before us. The obvious answer to this contention is that we are not dealing with any matter relating to the internal management of the House in the L. R. (2) lbid., 286. 482 present proceedings. We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside the fourwalls of the House, and that essentially raises different considerations. Having examined the relevant decisions bearing on the point, it would, we think, not be inaccurate to observe that the right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings has been based more on the consideration that the House of Commons is in the position of a superior court of record and has the right like other superior courts of record to issue a general warrant for commitment of persons found guilty of contempt. Like the general warrant issued by superior courts of record in respect of such contempt, the general warrants issued by the House of Commons in similar situations should be similarly treated. It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the courts in habeas corpus proceedings. In this connection, we ought to add that even while recognising the validity of such general warrants, Judges have frequently observed that if they were satisfied upon the return that such general warrants were issued for frivolous or extravagant reasons, it would be open to them to examine their validity. Realizing that the position disclosed by the decisions so far examined by us was not very favourable to the claim made by him that the conclusive character of the general warrants is a part of the privilege itself, Mr. Seervai has very strongly relied on the decisions of the Privy Council which seem to support his contention, and so, it is now necessary to turn to these decisions. The first decision in this series is in the case of the Speaker of the Legislative Assembly of Victoria vs Hugh Glass(1). In that case by the Constitution Act for the Colony of Victoria power had been given to the Legislative Assembly of Victoria to commit by a general warrant for contempt and breach of privilege of that Assembly. In exercise of that power, Glass was declared by the House to have committed contempt and under the Speaker 's warrant, which was in general terms, he was committed to jail. A habeas corpus petition was then moved on his behalf and this petition was allowed by the Chief Justice of the Supreme Court in the Colony, on the ground that the Constitution Statute and the Colonial Act did not confer upon the Legislative Assembly the same powers, privileges and immunities as were possessed by 1) 483 Assembly, the decision of the Supreme Court in the Colony was reversed and it was held that the relevant Statute and the Act gave to the Legislative Assembly the same powers and privileges as the House of Commons had at the time of the passing of the said Acts. Having held that the Legislative Assembly had the same powers as the House of Commons, the Privy Council proceeded to consider the nature and extent of these powers. Lord Cairns who delivered the judgment of the Privy Council observed that "[b]eyond all doubt, one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt; and incidental to that privilege, it has . been well established in this country that the House of Commons have the right to be the judges themselves of what is contempt, and to commit for that contempt by a Warrant, stating that the commitment is for contempt of the House generally, without specifying what the character of the contempt is. ' Then he considered the merits of the argument that the relevant Constitution Act did not confer on the Legislative Assembly of Victoria the incidental power of issuing a general warrant, and rejected it. "[Their Lordships] consider", said Lord Cairns, "that there is an essential difference between a privilege of committing for contempt such as would be enjoyed by an inferior Court, namely, privilege of first determining for itself what is contempt, then of stating the character of the contempt upon a Warrant, and then of having that Warrant subjected to review by some superior Tribunal, and running the chance whether that superior Tribunal will agree or disagree with the determination of the inferior Court, and the privilege of a body which determines for itself, without review, what is contempt, and acting upon the determination, commits for that contempt, without specifying upon the Warrant the character or the nature of the contempt." According to Lord Cairns, the latter of the two privileges is a higher and more important one than the former, and he added that it would be strange indeed if, under a power to transfer the whole of the privileges and powers of the House of Commons, that which would only be a part, and a comparatively insignificant part, of this privilege and power were transferred(1). In other words, this decision shows that the Privy Council took the view that the power to issue a general warrant and to insist upon the conclusive character of the said warrant it itself (1) , 573. 484 a part of the power and privilege of the House. Even so, it is significant that the distinction is drawn between the power and privilege of an inferior Court and the power and privilege of a superior Court; and so, the conferment of the larger power is deemed to have been intended by the relevant provision of the Constitution Act, because the status intended to be conferred on the Legislative Assembly of Victoria was that of the superior Court. In other words, the Legislative Assembly was treated as a superior Court and the power and privilege conferred on it was deemed to include both aspects of the power. Incidentally, it may be pointed out, with respect, that in considering the question, Lord Cairns did not apparently think it necessary to refer to the earlier English decisions in which the question about the extent of this power and its nature had been elaborately considered from time to time. The next Privy Council decision on which Mr. Seervai relied is Fielding and Others vs Thomas(1). In that case, the question about the extent of the power conferred on the Nova Scotia House of Assembly fell to be considered, and it was held by the Privy Council that the said Assembly had statutory power to adjudicate that wilful disobedience to its order to attend in reference to a libel reflecting on its members is a breach of privilege and contempt, and to punish that breach by imprisonment. For our present purpose, it is not necessary to refer to the relevant provisions of the statute on which the argument proceeded, or the facts which gave rise to the action. It is only one observation made by Lord Halsbury which must be quoted. Said Lord Halsbury in that case : "The authorities summed up in Burdett vs Abbot(1), and followed in the Case of The Sheriff of Middlesex(1), establish beyond all possibility of controversy the right of the House of Commons of the United Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of law and without having its process interfered with by those courts." (4 ) It is the last part of this observation which lends some support to Mr. Seervai 's case. All that we need say about this observation is that it purports to be based on two earlier decisions which we have already examined, and that it is not easily reconcilable with the reservations made by some of the Judges who had occasion to deal with this point in regard to their jurisdiction to examine the validity of the imprisonment of a petitioner where it appeared that the warrant issued by the House (1) (2) ; (3) 113 E.R.419. (4) [18961 L.R.A.C. 600, 609. 485 of Commons appeared on a return made by the House to be palpably frivolous or based on extravagant or fantastic reasons. The last decision on which Mr. Seervai relies is the case of The Queen vs Richards(1). In that case, the High Court of Australia was called upon to construe the provisions of section 49 which are similar to the provisions of article 194(3) of our Constitution. Section 49 reads thus : "The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. " One of the points which fell to be considered was what was the nature and extent of the powers, privileges and immunities conferred by section 49 of the Constitution on the Senate and the House of Representatives in Australia ? It appears that in that case Fitzpatrick and Browne were taken into custody by Edward Richards in pursuance of warrants issued by the Speaker of the House of Representatives of the Parliament of the Commonwealth. These warrants were general in character and they commanded Richards to receive the said two persons into his custody. On June 10, 1955, on the application of Fitzpatrick and Browne as prosecutors, the Supreme Court of the Australian Capital Territory (Simpson J.) granted an order nisi for two writs of habeas corpus directed to the said Edward Richards. On June 15, 1955, Simpson J. acting under section 13 of the Australian Capital Territory Supreme Court Act directed that the case be argued before a Full Court of the High Court of Australia. That is how the matter went before the said High Court. The High Court decided that section 49 operated independently of section 50 and was not to be read down by implications derived from the general structure of the Constitution and the separation of powers thereunder. Construing section 49 independently of section 50, the High Court held that the powers, privileges and immunities of the House of Commons at the establishment of the Commonwealth were conferred on the Parliament and since Parliament had made no declaration within the meaning of the said section, it was necessary to consider what the powers of the House of Commons were at the relevant time in order to determine the (1) ; 486 question as to whether a general warrant could be issued by Parliament or not, and the High Court held that under section 49 the Australian Parliament could claim the privilege of judging what is contempt and of committing therefor. It was also held that if the Speaker 's warrant is upon its face consistent with the breach of an acknowledged privilege, it is conclusive notwithstanding that the breach of privilege is stated in general terms. In other words, this decision undoubtedly supports Mr. Seervai 's contention that a general warrant issued by the House in the present case is not ,examinable by the High Court. In appreciating the effect of this decision it is necessary to point out that so far as Australia was concerned, the point in issue had been already established authoritatively by the decisions of the Privy Council in Dill vs Murphy (1) as well as in Hugh Glass(2). In fact, fact, Dixon C.J. has expressly referred to this "aspect of the matter. Naturally, he has relied on the observations made by Lord Cairns in Hugh Glass and has followed the said observations in deciding the point raised before the High Court ,of Australia. That is the basis which was adopted by Dixon C.J. in dealing with the question. Having adopted this approach, the learned Chief Justice thought it unnecessary to discuss at length the situation in England, because what the situation in England was, had been conclusively determined for the guidance of the Australian courts by the observations made by Lord Cairns in Hugh Glass(1). Even so, he has observed that the question about the powers, privileges and immunities of the House of Commons is one which the courts of law in England have treated as a matter for their decision, though he has added that "the courts in England arrived at that position after a long course of judicial decision not unaccompanied by political controversy. The law in England was finally settled about 1840. " This observation obviously refers to the Case of the Sheriff of Middlesex("). To quote the words of the learned Chief Justice : "Stated shortly, it is this : it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner ,of its exercise. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its (1)15 E.R. 784:(1864)1 Moo P.C.(N.S.)487. (2)[1869 71] 3L.R.P.C.560. (3) ; 487 face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms. This statement of law appears to be in accordance with cases by which it was finally established, namely, the Case of the Sheriff of Middlesex"(1). Thus, even according to Chief Justice Dixon, the existence and extent of privilege is a justiciable matter and can be adjudicated upon by the High Court. If the warrant is a speaking warrant, the Court can determine whether it is sufficient in law as a ground to amount to breach of privilege, though, if the warrant is unspeaking or general, the court cannot go behind it. In our opinion, it would not be reasonable to treat this decision as supporting the claim made by the House that the conclusive character of its general warrant is a part and parcel of its privilege. The learned Chief Justice in fact did not consider the question on the merits for himself. He felt that he was bound by the observations made by Lord Cairns and he has merely purported to state what in his opinion is the effect of the decision in the Case of the Sheriff of Middlesex(1). Besides, there is another aspect of this matter which cannot be ignored. The learned C.J. Dixon was dealing with the construction of section 49 of the Australian Constitution, and as GwyerC.J. has observed in In re The Central Provinces and Berar Act No. XIV of 1938 (2), "there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. " The learned Chief Justice has significantly added that this may be so even where the words or expressions used are the same in both cases for a word or a phrase may take a colour from its context and bear different senses accordingly (p. 38). These observations are particularly relevant and appropriate in the context of the point which we are discussing. Though the words used in section 49 of the Australian Constitution are substantially similar to the words used in article 194(3), there are obvious points on which the relevant provisions of our Constitution differ from those of the Australian Constitution. Take, for instance, article 32 of our Constitution. As we have already noticed, article 32 confers on the citizens of India the fundamental right to move (1) ; 1 Sup. C.I./65 6 (2) 488 this Court. In other words, the right to move this Court for breach of their fundamental rights is itself a fundamental right. The impact of this provision as well as of the provisions contained in article 226 on the construction of the latter part of Article 194(3) has already been examined by us, it may be that there are some provisions in the Australian Constitution which may take in some of the rights which are safeguarded under article 226 of our Cons titution. article 32 finds no counter part in the Australian Constitution. Likewise, there is no provision in the Australian Constitution corresponding to article 211 of ours : and the presence of these distinctive features contributes to make a substantial difference in the meaning and denotation of similar words used in the two respective provisions. viz., section 49 of the Australian Constitution and article 194(3) of ours. Besides, the declaration to which section 49 refers may not necessarily suffer to the same extent from the limitation which would govern a law when it is made by the Indian Legislatures under the first part of article 194(3). These distinctive features of the relevant and material provisions of our Constitution would make it necessary to bear in mind the words of caution and warning which Gwyer C.J., uttered as early as 1938. Therefore, we think that it would not be safe or reasonable to rely too much on the observations made by Dixon C.J. in dealing with the question of privileges in the case of Richards(1). Before we part with this topic, however, we may incidentally point out that the recent observations made by Lord Parker C.J. in In re Hunt(1) indicate that even in regard to a commitment for contempt by the superior court of record, the court exercising its jurisdiction over a petition filed for habeas corpus would be ,competent to consider the legality of the said contempt notwithstanding the fact that the warrant of commitment is general or unspeaking. Dealing with the arguments urged by Kenneth Douglas Hunt who had been committed for contempt by WynnParry J., Parker C.J. observed : "It may be that the true view is, and I think the cases support it, that though this Court always has power to inquire into the legality of the committal, it will not inquire whether the power has been properly exercised." He, however, added that in the case before him, he was quite satisfied that the application ought to fail on the merits. These observations tend to show that in exercising habeas corpus jurisdiction, a court at Westminster has jurisdiction to inquire into the legality of the commitment even though the commitment has been ordered (1) 92 C.L.R.157. (2) 489 by another superior court of record. If that be the true position, it cannot be assumed with certainty that Courts at Westminster would today concede to the House of Commons the right to claim that its general warrants are unexaminable by them. Even so, let us proceed on the basis that the relevant right Claimed by the House, of Commons is based either on the ground that as a part of the High Court of Parliament, the House of Commons is a superior court of record and as such, a general Warrant for commitment issued by it for contempt is treated as ,conclusive by courts at Westminster Hall; or in course of time the right to claim a conclusive character for such a general warrant became an incidental and integral part of the privilege itself. The question which immediately arises is: can this right be deemed to have been conferred on the House in the present proceedings under the latter part of article 194(3) ? Let us first take the basis relating to the status of the House of Commons as a Superior Court of Record. Can the House claim such a status by any legal fiction introduced by article 194(3) ? In our opinion, the answer to this question cannot be in the affirmative. The previous legislative history in this matter does not support the idea that our State Legislatures were superior Courts of Record under the Constitution Act of 1935. Section 28 of the said Act which dealt with the privileges of the Federal Legislature is relevant on this point. section 28(1) corresponds to article 194(3) of the present Constitution. Section 28(2) provides that in other respects, the privileges of members of the Chambers shall be such as may from time to time be defined by Act of the Federal Legislature and, until so defined, shall be such as were immediately before the establishment of the Federation enjoyed by members of the Indian Legislature. it is not disputed that the members of the Indian Legislature could not have claimed the status of being members of a superior Court of Record prior to the Act of 1935. Section 28(3) prescribes that nothing in any existing Indian Act, and, notwithstanding anything in the foregoing provisions of this section, nothing in this Act, shall be construed as conferring, or empowering the Federal Legislature to confer, on either Chamber or on both Chambers sitting together, or on any committee or officer of the Legislature, the status of a Court, or any punitive or disciplinary powers other than a power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner. Section 28 (4) is also relevant for our purpose. It provides that provision may be made by an Act of the Federal Legislature for the punish 490 ment, on conviction before a Court, of persons who refuse to give evidence r produce documents before a committee of a Chamber when duly required by the Chairman of the committee so to do There can be no doubt that these provisions clearly indicate that the Indian Legislature could not have claimed the power to punish for contempt committed outside the four walls of its Legislative Chamber. Section 71 of the same Act deals with the Pro vincial Legislatures and contains similar provisions in its clauses (2), (3) and (4). After the Indian Independence Act, 1947 (1 0 & 11 Geo. VI c. 20) was passed, this position was altered by the amendments made in the Government of India Act, 1935 by various amendment orders. The result of the amendment orders including Third Amendment Order, 1948 was that sub sections (3) and (4) of section 28 of the said Act were deleted and sub section (2) was amended. The effect of this amendment was that the members of the Federal Chambers of Legislature could until their privileges were defined by Act of Federal Legislature claim the privileges enjoyed by the members of the House of Commons which were in existence immediately before the establishment of the Federation. It is, however, remarkable that the corresponding subsections (3) and (4) of section 71 were retained. The question as to whether the result of the deletion of sub sections (3) and (4) and the amendment of sub section (2) of section 28 was to confer on the Federal Legislature the same status as that of the House of Commons, does not call for our decision in the present Reference. Prima facie, it may conceivably appear that the conferment of the privileges of the members of the House of Commons on the members of the Federal Legislature could not necessarily make the Federal Legislature the House of Commons for all purposes; but that is a matter which we need not discuss and decide in the present proceedings. The position with regard to the Provincial Legislatures at the relevant time is, however, absolutely clear and there would obviously be no scope for the argument that at the time when the Constitution was passed the Provincial Legislatures could claim the status of the House of Commons and as such of a superior Court of Record. That is the constitutional background of article 194(3) insofar as the Provincial Legislatures are concerned. Considered in the light of this background, it is difficult to accept the argument that the result of the provisions contained in the latter part of article 194(3) was intended to be to confer on the State Legislatures in India the status of a superior Court of Record. 491 In this connection, it is essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that the parliament was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest Court of law in the country. It is a fact of constitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious, we think, that these historical facts cannot be introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions, but there is a limit to the power of law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf; but legal fiction can hardly introduce historical facts from one country to another. Besides, in regard to the status of the superior Court of Record which has been accorded to the House of Commons, there is another part of English history which it is necessary to remember. The House of Commons had to fight for its existence against the King and the House of Lords, and the Judicature was regarded by the House of Commons as a creature of the King and the Judicature was obviously subordinate to the House of Lords which was the main opponent of the House of Commons. This led to fierce struggle between the House of Commons on the one hand, and the King and the House of Lords on the other. There is no such historical background in India and there can be no historical justification for the basis on which the House of Commons struggled to deny the jurisdiction of the Court; that is another aspect of the matter which is relevant in considering the question as to whether the House in the present case can claim the status of a superior Court of Record. There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a Court of Record. A Court of Record, according to Jowitt 's Dictionary of English Law, is a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority. The House, and indeed all the Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional background does not support the claim that they can be 492 regarded as Courts of Record in any sense. If that be so, the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record, is absent in the present case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons, by agreement, is deemed to possess, is vested in the House. On this view of the matter, the claim made by the House must be rejected. Assuming, however, that the right claimed by the House can be treated as an integral part of the privileges of the House of Commons, the question to consider would be whether such a right has been conferred on the House by the latter part of article 194(3). On this alternative hypothesis, it is necessary to consider whether this part of the privilege is consistent with the material provisions of our Constitution. We have already referred to Articles 32 and 226. Let us take article 32 because it emphatically brings out the significance of the fundamental right conferred on the citizens of India to move this Court if their fundamental rights are contravened either by the Legislature or the Executive. Now, article 32 makes no exception in regard to any encroachment at all, and it would appear illogical to contend that even if the right claimed by the House may contravene the fundamental rights of the citizen, the aggrieved citizen cannot successfully move this Court under article 32. To the absolute constitutional right conferred on the citizens by article 32 no exception can be made and no exception is intended to be made by the Constitution by reference to any power or privilege vesting in the Legislatures of this country. As we have already indicated we do not propose to enter into a general discussion as to the applicability of all the fundamental rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country, and that we are dealing with this matter on the footing that article 19 (1) (a) does not apply and article 21 does. If an occasion arises, it may become necessary to consider whether article 22 can be contravened by the exercise of the power or privilege under article 194(3). But, for the moment, we may consider article 20. If article 21 applies, article 20 may conceivably apply, and the question may arise, if a citizen complains that his fundamental right had been contravened either under article 20 or article 21, can he or can he not move this Court under article 32 ? For the purpose of making the point which we are discussing, the applicability of article 21 itself would 493 be enough. If a citizen moves this Court and complains that his fundamental right under article 21 had been contravened, it would plainly be the duty of this Court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. In fact, this question was actually considered by this Court in the case of Pandit Sharma("). It is true that the answer was made in favour of the legislature; but that is wholly immaterial for the purpose of the present discussion. If in a given case, the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law, but for capricious or mala fide reasons, this Court will have to examine the validity of the said contention, and it would be no answer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by article 32 on the construction of the latter part of article 194(3) is decisively against the view that a power or privilege can be claimed by the House though it may be inconsistent with article 21. In this connection, it may be relevant to recall that the rules which the House has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution under article 208(1). Then, take the case of article 211 and see what its impact would be on the claim of the House with which we are dealing. If the claim of the House is upheld, it means that the House can issue a general warrant against a Judge and no judicial scrutiny can be held in respect of the validity of such a warrant. It would indeed be strange that the Judicature should be authorised to consider the validity of the legislative acts of our Legislatures, but should be prevented from scrutinising the validity of the action of the legislatures trespassing on the fundamental rights conferred on the citizens. If the theory that the general warrant should be treated as conclusive is accepted, then, as we have already indicated, the basic concept of judicial independence would be exposed to very grave jeopardy; and so the impact of article 211 on the interpretation of article 194(3) in respect of this particular power is again decisively against the contention raised by the House. If the power of the High Courts under article 226 and the authority of this Court under article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the (1) [1959] Supp. 1 S.C.R. 806. 494 High Courts or this Court to invoke their jurisdiction even in, cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens ' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen. to appeal to the said power in a proper case. In In re Parliamentary Privilege Act, 1770(1), the Privy Council was asked to consider whether the House of Commons would be acting contrary to the Parliamentary Privilege Act, 1770, if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its privileges. The said question had given rise to some doubt, and so, it was referred to the Privy Council for its opinion. The opinion expressed by the Privy Council was in favour of Parliament. Confining its answer to the said limited question, the Privy Council took the precaution of adding that "they express no opinion whether the proceedings referred to in the introductory paragraph were 'a proceeding in Parliament, a question not discussed before them, nor on the question whether the mere is sue of a writ would in any circumstances be a breach of privilege." "In taking this course", said Viscount Simonds who spoke for the Privy Council, "they have been mindful of the inalienable right of Her Majesty 's subjects to have recourse to her courts of law for the remedy of their wrongs and would not prejudice the hearing of any cause in which a plaintiff sought relief. " The inalienable right to which Viscount Simonds referred is implicit in the provisions of article 226 and article 32, and its existence is clearly incon sistent with the right claimed by the House that a general warrant should be treated as conclusive in all courts of law; it would also be equally inconsistent with the claim made by the House that Keshav Singh has committed contempt by moving the High Court under article 226. In this connection, it would be interesting to refer to a resolution passed by the House of Lords in 1704. By this resolution, it was declared that deterring electors from prosecuting actions in the ordinary courts of law, where they are deprived of their right of voting, and terrifying attorneys, solicitors, counsellors, and serjeants at law, from soliciting, prosecuting and pleading in such cases, by voting their so doing to be a breach of privilege of the (1) ; 495 House of Commons, is a manifest assuming of power to control the law, to hinder the course of justice, and subject the property of Englishmen to the arbitrary votes of the House of Commons. This was in answer to the resolution passed by the House of Commons in the same year indicating that the House would treat the conduct of any person in moving the court for appropriate reliefs in matters mentioned by the resolution of the House as amounting to its contempt. These resolutions and counterresolutions merely illustrate the fierce struggle which was going on between the House of Commons and the House of Lords during those turbulent days; but the interesting part of this dispute is that if a question had gone to the House of Lords in regard to the competence of the House of Commons to punish a man for invoking the jurisdiction of the ordinary courts of law, the House of Lords would undoubtedly have rejected such a claim, and that was the basic apprehension of the House of Commons which was responsible for its refusal to recognise the jurisdiction of the courts which in the last analysis were subordinate to the House of Lords. Section 30 of the (25 of 1961) confers on all Advocates the statutory right to practise in all courts including the Supreme Court, before any tribunal or person legally authorised to take evidence, and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. Section 14 of the Bar Councils Act recognises a similar right. If a citizen has the right to move the High Court or the Supreme Court against the invasion of his fundamental rights, the statutory right of the advocate to assist the citizen steps in and helps the enforcement of the fundamental rights of the citizen. It is hardly necessary to emphasise that in the enforcement of fundamental rights guaranteed to the citizens the legal profession plays a very important and vital role, and so, just as the right of the Judicature to deal with matters brought before them under article 226 or article 32 cannot be subjected to the powers and privileges of the House under article 194(3), so the rights of the citizens to move the Judicature and the rights of the advocates to assist that process must remain uncontrolled by Article 194(3). That is one integrated scheme for enforcing the fundamental rights and for sustaining the rule of law in this country. Therefore, our conclusion is that the particular right which the House claims to be an integral part of its power or privilege is inconsistent with the material provisions of the Constitution and cannot be deemed to have been included under the latter part of article 194(3). 496 In this connection, we ought to add that there is no substance in the grievance made by Mr. Seervai that Keshav Singh acted illegally in impleading the House to the habeas corpus petition filed by him before the Lucknow Bench. In our opinion, it cannot be said that the House was improperly joined by Keshav Singh, because it was open to him to join the House on the ground that his commitment was based on the order passed by the House, and in that sense the House was responsible for, and had control over, his commitment (vide The King vs The Earl of Crewe, Ex parte Sekgome(1) and The King vs Secretary of State for Home Affairs, Ex parte O 'brien(2). Besides, the fact that Keshav Singh joined the House to his petition, can have no relevance or materiality in determining the main question of the power of the House to take action against the Judges, the Advocate, and the 'party for their alleged contempt. As we have indicated at the outset of this opinion, the crux of the matter is the, construction of the latter part of article 194(3), and in the light of the assistance in which we must derive from the other relevant and material provisions of the Constitution, it is necessary to hold that the particular power claimed by the House that its general warrants must be held to be conclusive, cannot be deemed to be the subject matter of the latter part of article 194(3). In this connection, we may incidentally observe that it is somewhat doubtful whether the power to issue a general unspeaking warrant claimed by the House is consistent with section 554(2)(b) and section 555 of the Code of Criminal Procedure. It appears that in England, general warrants are issued in respect of commitment for contempt by superior courts of record, and the whole controversy on this point, therefore, rested on the theory that the right to issue a general warrant which is recognised in respect of superior Courts of Record must be conceded to the House of Commons, because as a part of the High Court of Parliament it is itself a superior Court of Record. Before we part with this topic, there are two general considerations to which we ought to advert. It has been urged before us by Mr. Seervai that the right claimed by the House to issue a conclusive general warrant in respect of contempt is an essential right for the effective functioning of the House itself, and he has asked us to deal with this matter from this point of view. It is true that this right appears to have been recognised by courts in England by agreement or convention or by considerations of comity; but we think it is strictly not accurate to say that every (1) (2) 497 democratic legislature is armed with such a power. Take the, case of the American Legislatures. Article 1, section 5 of the American Constitution does not confer on the American Legislature such a power at all. it provides that each House shall be the judge of the Elections, Returns and Qualifications of its own Members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorised to compel the attendance of absent Members, in such manner, and under such penalties as each House may provide. Each House may determine the Rules of its proceedings, punish its Members for disorderly behaviour, and, with the concurrence of two thirds, expel a Member. Contempt committed outside the four walls of the legislative chamber by a citizen who is not a Member of the House seems to be outside the jurisdiction of the American Legislature ' As Willis has observed, punishment for contempt is clearly a judicial function; yet in the United States, Congress may exercise the power to punish for contempt as it relates to keeping order among its own members, to compelling their attendance, to protecting from assaults or disturbances by others (except by slander and libel), to determining election cases and impeachment charges, and to exacting information about other departments in aid of the legislative function(1). Nobody has ever suggested that the American Congress has not been functioning effectively because it has not been armed with the particular power claimed by the House before us. In India, there are several State Legislatures in addition to the Houses of Parliament. If the power claimed by the House before us is conceded, it is not difficult to imagine that its exercise may lead to anomalous situations. If by virtue of the absolute freedom of speech conferred on the Members of the Legislatures, a Member of one Legislature makes a speech in his legislative chamber which another legislative chamber regards as amounting to its contempt, what would be the position ? The latter legislative chamber can issue a general warrant and punish the Member alleged to be in contempt, and a free exercise of such power may lead to very embarrassing situations. That is one reason why the Constitution makers thought it necessary that the Legislatures should in due course enact laws in respect of their powers, privileges and immunities, because they knew that when such laws are made, they would be subject to the fundamental rights and would be open to examination by the courts in India. Pending the making of such laws, powers, privileges and immunities were conferred by the latter part of article 194(3). As we have already (1) Wills, constitutional Law, p. 145. 498 emphasised, the construction of this part of the article is within the jurisdiction of this Court, and in construing this part, we have to bear in mind the other relevant and material provisions of the Constitution. Mr. Seervai no doubt invited our attention to the fact that the Committees of Privileges of the Lok Sabha and the Council of States have adopted a Report on May 22, 1954 with a view to avoid any embarrassing or anomalous situations resulting from the exercise of the legislative powers and privileges against the members of the respective bodies, and we were told that similar resolutions have been adopted by almost all the Legislatures in India. But these are matters of agreement, not matters of law, and it is not difficult to imagine that if the same political party is not in power in all the States, these agreements themselves may not prove to be absolutely effective. Apart from his aspect of the matter, in construing the relevant clause of article 194(3), these agreements can play no significant part. In the course of his arguments Mr. Seervai laid considerable emphasis on the fact that in habeas corpus proceedings, the High Court had no jurisdiction to grant interim bail. It may be conceded that in England it appears to be recognised that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of ,contempt, bail is not granted by courts. As a matter of course, during the last century and more in such habeas corpus proceedings returns are made according to law by the House of Commons, but "the general rule is that the parties who stand committed for contempt cannot be admitted to bail. " But it is difficult to accept the argument that in India the position is exactly the same in this matter. If article 226 confers jurisdiction on the Court to ,deal with the validity of the order of commitment even though the commitment has been ordered by the House, how can it be said that the Court has no jurisdiction to make an interim order in such proceedings? As has been held by this Court in State of Orissa vs Madan Gopal Rungta, and Others("), an interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding. Indeed, as Maxwell has observed, when an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution(2). That being so, the argument based on the relevant provisions of the Criminal Procedure (1) [1952] S.C.R. 28. (2) Maxwell on Interpretation of Statutes, 11th ed., p. 350. 499 Code and the decision of the Privy Council in Lala Jairam Das and Others vs King Emperor(1), is of no assistance. We ought to make it clear that we are dealing with the ques tion of jurisdiction and are not concerned with the propriety or reasonableness of the exercise of such jurisdiction. Besides, in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. "Prima facie", says Halsbury, "no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. We cannot, therefore, accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question is null and void. Besides, the validity of the order has no relation whatever with the question as to whether in passing the order, the Judges have committed contempt of the House. There is yet one more aspect of this matter to which we may incidentally refer. We have already noticed that in the present case, when the habeas corpus petition was presented before the Lucknow Bench at 2 P.m. on March 19, 1964, both parties. appeared by their respective Advocates and agreed that the application should be taken up at 3 P.m. the same day, and yet the House which was impleaded to the writ petition and the other respondents to it for whom Mr. Kapur had appeared at the earlier stage, were absent at that time. That is how the Court directed that notice on the petition should be issued to the respondents and released the petitioner on bail subject to the terms and conditions which have already been mentioned; and it is this latter order of bail which has led to the subsequent developments. In other words, before taking the precipitate action of issuing warrants against the Judges of the Lucknow Bench, the House did not conform to the uniform practice which the House of Commons has followed for more than a century past and did not instruct its lawyer either to file a return or to ask for time to do so, and to request that the Court should stay its hands until the return was filed. It is not disputed that whenever commitment orders passed by the House of Commons are challenged in England before (1) 72 I.A. 120. (2) Halsbury 's Laws of England, vol. 9, p. 349. 500 the Courts at Westminster, the House invariably makes a return and if the warrant issued by it is general and unspeaking, it is so stated in the return and the warrant is produced. If this course had been adopted in the present proceedings, it could have been said that the House in exercising its powers and privileges, conformed to the pattern which, by convention, the House of Commons has invariably followed in England during the last century and more; but that was not done; and as soon as the House knew that an order granting bail had been passed, it proceeded to consider whether the Judges themselves were not in contempt. On these narrow facts, it would be possible to take the view that no question of contempt committed by the Judges arises. In view of the fact that Mr. Kapur had appeared before the Court at 2 P.m. on behalf of all the respondents and had agreed that the matter should be taken up at 3 P.m., it was his duty to have appeared at 3 P.m. and to have either filed a return or to have asked for time to do so on behalf of the House. If the House did not instruct Mr. Kapur to take this step and the Court had no knowledge as to why Mr. Kapur did not appear, it is hardly fair to blame the Court for having proceeded to issue notice on the petition and granted bail to the petitioner. In these proceedings it is not necessary for us to consider what happened between Mr. Kapur and the House and why Mr. Kapur did not appear at 3 P.m. to represent the House and the other respondents. The failure of Mr. Kapur to appear before the Court at 3 P.m. has introduced an unfortunate element in the proceedings before the Court and is partly responsible for the order passed by the Court. One fact is clear, and that is that at the time when the Court issued notice and released the petitioner on bail, it had no knowledge that the warrant under which the petitioner had been sentenced was a general warrant and no suggestion was made to the Court that in the case of such a warrant the Court had no authority to make any order of bail. This fact cannot be ignored in dealing with the case of the House that the Judges committed contempt in releasing the petitioner on bail. But we ought to make it clear that we do not propose to base our answers on this narrow view of the matter, because questions 3 and 5 are broad enough and they need answers on a correspondingly broad basis. Besides, the material questions arising from this broader aspect have been fully argued before us, and it is plain that in making the present Reference, the President desires that we should render our answers to all the questions and not ,exclude from our consideration any relevant aspects on the ground 501 that these aspects would not strictly arise on the special facts which have happened so far in the present proceedings. In conclusion,, we ought to add that throughout our discus sion we have consistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a Member of the House outside the four walls of the House, is conclusive, for it is on that claim that the House has chosen to take the view that the Judges, the Advocate, and the party have committed contempt by reference to their conduct in the habeas corpus petition pending before the Lucknow Bench of the Allahabad High Court. Since we have held that in the present case no contempt was committed either by the Judges, or the Advocate, or the party respectively, it follows that it was open to the High Court of Allahabad, and indeed it was its duty, to entertain the petitions filed before it by the two Judges and by the Advocate, and it was within its jurisdiction to pass the interim orders prohibiting the further execution of the impugned orders passed by the House. Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul vs Attorney General of Trinidad(1). Said Lord Atkin "Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out spoken comments of ordinary men. " We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislatures. Having thus discussed all the relevant points argued before us and recorded our conclusions on them, we are now in a position (1) A.I.R. 1936 P.C. 141. 502 to render our answers to the five questions referred to us by the President. Our answers are: (1) On the facts and circumstances of the it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, consisting of N. U. Beg and G. D. Sahgal JJ., to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition. (2) On the facts and circumstances of the case, Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon Advocate, by presenting the said petition, and the said two Hon 'ble Judges by entertaining and dealing with the said petition and order ing the release of Keshav Singh on bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly of Uttar Pradesh. (3) On the facts and circumstances of the case, it was not competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon 'ble Judges and Mr. B. Solomon Advocate, before it in custody or to call for their explanation for its contempt. (4) On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon 'ble Judges and Mr. B. Solomon Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; and (5) In rendering our answer to this question which is very broadly worded, we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four walls of the legislative chamber. 'A Judge of a High Court who entertains or deals with 503 a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition, does not commit contempt of the said Legislature; and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. In this answer, we have deliberately omitted reference to infringement of privileges and immunities of the House which may include priveleges and immunities other than those with which we are concerned in the present Reference. Sarkar J. This matter has come to us on a reference made by the President under article 143 of the Constitution. The occasion for the reference was a sharp conflict that arose and still exists between the Vidhan Sabha (Legislative Assembly) of the Uttar Pradesh State Legislature, hereinafter referred to as the Assembly, and the High Court of that State. That conflict arose because the High Court had ordered the release on bail of a person whom the Assembly had committed to prison for contempt. The Assembly considered that the action of the Judges making the order and of the lawyer concerned in moving the High Court amounted to contempt and started proceedings against them on that basis, and the High Court, thereupon, issued orders restraining the Assembly and its officers from taking steps in implementation of the view that the action of the Judges and the lawyer and also the person on whose behalf the High Court had been moved amounted to contempt. A very large number of parties appeared on the reference and this was only natural because of the public importance of the question involved. These parties were divided into two broad groups, one supporting the Assembly and the other, the High Court. I shall now state the actual facts which gave rise to the conflict. The Assembly had passed a resolution that a reprimand be administered to one Keshav Singh for having committed contempt of the Assembly by publishing a certain pamphlet libelling one of its members. No question as to the legality of this resolution arises in this case and we are concerned only with what followed. Keshav Singh who was a resident of Gorakhpar, in spite of being repeatedly required to do so, failed to appear before the Assembly which held its sittings in Lucknow, to receive the reprimand 504 alleging inability to procure money to pay the fare for the necessary railway journey. He was thereupon brought under the custody of the Marshal of the Assembly in execution of a warrant issued by the Speaker in that behalf and produced at the Bar of the House on March 14, 1964. He was asked his name by the Speaker repeatedly but he would not answer any question at all. He stood there with his back to the Speaker showing great disrespect to the House and would not turn round to face the Speaker though asked to do so. The reprimand having been administered, the Speaker brought to the notice of the Assembly a letter dated March 11, 1964, written by Keshav Singh to him, in which he stated that he protested against the sentence of reprimand and had absolutely no hesitation in calling a corrupt man corrupt, adding that the contents of his pamphlet were correct and that a brutal attack had been made on democracy by issuing the "Nadirshahi Firman" (warrant) upon him. Keshav Singh admitted having written that letter. The Assembly thereupon passed a resolution that "Keshav Singh be sentenced to imprisonment for seven days for having written a letter worded in language which constitutes ,contempt of the House and his misbehaviour in view of the House. " A general warrant was issued to the Marshal of the House and the Superintendent, District Jail, Lucknow which stated, "Whereas the . Assembly has decided . that Shri Keshav Singh be sentenced to simple imprisonment for seven days for committing the offence of the contempt of the Assembly, it is accordingly ordered that Keshav Singh be detained in the District Jail, Lucknow for a period of seven days. " The warrant did not state the facts which constituted the contempt. Keshav Singh was thereupon taken to the Jail on the same day and kept imprisoned there. On March 19, 1964, B. Solomon, an advocate, presented a petition to a Bench of the High Court of Uttar Pradesh then constituted by Beg and Sahgal JJ., which sat in Lucknow, for a writ of habeas corpus for the release of Keshav Singh alleging that he had been deprived of his personal liberty without any authority of law and that this detention was mala fide. This Bench has been referred to as the Lucknow Bench. This petition was treated as having been made under article 226 of the Constitution and section 491 of the Code of Criminal Procedure. On the same date the learned Judges made an order that Keshav Singh be released on bail and that the petition be admitted and notice be issued to the respondents named in it. Keshav Singh was promptly released on bail. This order interfered with the sentence of imprisonment passed by the House by permitting Keshav Singh to be released before he had served the full term of his sentence. On March 21, 1964, the, Assembly 505 passed a resolution stating that Beg J., Sahgal J., B. Solomon and Keshav Singh had committed contempt of the House and that Keshav Singh be immediately taken into custody and kept confined in the District Jail for the remaining term of his imprisonment and that Beg J., Sahgal J. and B. Solomon be brought in custody before the House, and also that Keshav Singh be brought before the House after he had served the remainder of his sentence. Warrants were issued on March 23. 1964 to the Marshal of the House and the Commissioner of Lucknow for carrying out the terms of the resolution. On the same day, Sahgal J. moved a petition under article 226 of the Constitution in the High Court of Uttar Pradesh at Allahabad for a writ of certiorari quashing the resolution of the Assembly of March 21, 1964 and for other necessary writs restraining the Speaker and the Marshal of the Assembly and the State Government from implementing that resolution and the execution of the orders issued pursuant to the resolution. The petition however did not mention that the war.rants had been issued. That may have been because the warrants were issued after the petition had been presented, or the issue of the warrant was not known to the petitioner. This petition was heard by all the Judges of the High Court excepting Sahgal and Beg JJ. and they passed an order on the same day directing that the implementation of the resolution be stayed. Similar petitions were presented by B. Solomon and Beg J. and also by other parties, including the Avadh Bar Association, and on some of them similar orders, as on the petition of Sahgal J., appear to have been made. On March 25, 1964, the Assembly recorded an observation that by its resolution of March 21, 1964 it was not its intention to decide that Beg J., Sahgal J., B. Solomon and Keshav Singh had committed contempt of the House without giving them a hearing, but it had required their presence before the House for giving them an opportunity to explain their position and it resolved that the question may be decided after giving an opportunity to the above named persons according to the rules to explain their conduct. Pursuant to this resolution, notices were issued on March 26, 1964 to Beg J., Sahgal J. and B. Solomon informing them that "they may appear before the Committee at 10 A.M. on April 6, 1964. . . to make their submissions". The warrants issued on March 23, 1964, which had never been executed, were withdrawn in view of these notices. The present reference was made on March 26. 1964 and thereupon the Assembly withdrew the notices of March 26, 1964 stating that in view of the reference the two Judges and Solomon and Keshav Singh need not appear before the Privilege Committee as required. 506 These 'facts are set out in the recitals contained in the order of reference. There is however one dispute as to the statement of facts in the recitals. It is there stated that the Assembly resolved on March 21, 1964 that the two Judges, Solomon and Keshav Singh "committed, by their actions aforesaid, contempt of the House. " The words "actions aforesaid" referred to the presentation of the petition of Keshav Singh of March 19, 1964 and the order made thereon. It is pointed out on behalf of the Assembly that the resolution does not say what constituted the contempt. This contention is correct. The main question 'in this reference is whether the Assembly has. the privilege of committing a person to prison for contempt by general warrant, that is, without stating the facts, which constituted the contempt, and if it does so, have the courts of law the power to examine the legality of such a committal '? In other words if there is such a privilege, does it take precedence over the fundamental rights of the detained citizen. It is said on behalf of the Assembly that it has such a privilege and the interference by the court in the present case was without jurisdiction. The question is then of the privilege of the Assembly, for if it does ,lot possess the necessary privilege, it is not disputed, that what the High Court has done in this case would for the present purposes be unexceptionable. First then as to the privileges of the Assembly. The Assembly relies for purpose on cl. (3) of article 194 of the Constitution. The first three clauses of that article may at this stage be set out. article 194(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in + 'he Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until 507 so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. Article 105 contains identical provisions in relation to the Central Legislature. It is not in dispute that the Uttar Pradesh Legislature has not made any law defining the powers, privileges and immunities of its two Houses. The Assembly, therefore, claims that :It has those privileges which the House of Commons in England had on January 25, 1950. I would like at this stage to say a few general words about "powers, privileges and immunities" of the House of Commons or its members. First I wish to note that it is not necessary for our purposes to make a distinction between "privileges", " powers" and "immunities". They are no doubt different in the matter of their respective contents but perhaps in no otherwise. Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege, its right to punish one for contempt may be more properly described as its power, while the right that no member shall be liable for anything said in the House may be really an immunity. All these rights are however created by one law and judged by the same standard. I shall for the sake of convenience, describe them all as "privileges". Next I note that this case is concerned with privileges of the House of Commons alone, and not with those of its members and its committees. I stress however that the privileges of the latter two are in no respect different from those of the former except as to their content,;. The nature of the privileges of the House of Commons can be best discussed by referring to May 's Parliamentary Practice, which is an acknowledged work of authority on matters concern in the English Parliament. It may help to observe here that for a long time now there is no dispute as to the nature of the recognised privileges of the Commons. I start to explain the nature of the privileges by pointing out the distinction between them and the functions of the House. Thus the financial powers of the House of Commons to initiate taxation legislation is often described as its privilege. This, however, is not the kind of privilege of the House of Commons to which cl. (3) of article 194 refers. Privileges of the House of Commons have a technical meaning in English Parliamentary Law and the article uses the word in that sense only. That technical sense has been de scribed in these words: "[C]ertain fundamental 508 rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. "(1) A point I would like to stress now is that it is of the essence of the nature of the privileges that they are ancillary to the main functions of the House of Commons. Another thing which I wish to observe at this stage is that "[s]one privileges rest solely upon the law and custom of Parliament, while others have been defined by statute. Upon these grounds alone all privileges whatever are founded" (2). In this case we shall be concerned with the former kind of privilege only. The point to note is that this variety of privilege derives its authority from the law and custom of Parliament. This law has been given the name of Lex Parliamenti. It owes its origin to the custom of Parliament. It is, therefore, different from the common law of England which, though also based on custom, is based on a separate set of custom, namely, that which prevails in the rest of the realm. This difference in the origin had given rise to serious disputes between Parliament and the courts of law but they have been settled there for many years now and except a dispute as to theory, the recurrence of any practical dispute is not considered a possibility. So Lord Coleridge C.J. said in Bradlaugh vs Gossett( '). "Whether in all cases and under all circumstances the Houses are the sole judges of their own privileges, in the sense that a resolution of either House on the subject has the same effect for a court of law as an Act of Parliament, is a question which it is not now necessary to determine. No doubt, to allow any review of parliamentary privilege by a court of law may lead, has led, to very grave complications, and might in many supposable cases end in the privileges of the Commons being determined by the Lords. But, to hold the resolutions of either House absolutely beyond inquiry in a court of law may land us in conclusions not free from grave complications too. It is enough for me to say that it seems to me that in theory the question is extremely hard to solve; in practice it is not very important, and at any rate does not now arise. " This passage should suffice to illustrate the nature of the dispute. It will not be profitable at all, and indeed I think it will be 'mischievous, ' to enter upon a discussion of that dispute for it will only serve to make turbid, by raking up impurities which have settled down, a stream which has run clear now for years. Furthermore (1) May ', Parliamentary Practice, 16th ed. p. 42. (3) , 275. (2) lbid, p. 44. 509 that dispute can never arise in this country for here it is undoubtedly for the courts to interpret the Constitution and, therefore, article 194(3). It follows that when a question arises in this country under that article as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution, that question must be settled, and settled only, by the courts of law. There is no scope of the dreaded "dualism" appearing here, that is, courts entering into a controversy with a House of a Legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature. The privilege which I take up first is the power to commit for contempt. It is not disputed that the House of Commons has this power. All the decided cases and text books speak of such power. "The power of commitment is truly described as the ' 'keystone of parliamentary privilege '. without it the privileges of Parliament could not have become self subsistent, but, if they had not lapsed, would have survived on sufferance. "(1) In Burdett V. Abbott, (2) Lord Ellenborough C.J. observed, "Could it be expected. . that the Speaker with his mace should be under the necessity of going before a grand jury to prefer a bill of indictment for the insult offered to the House ? They certainly must have the power of self vindication and self protection in their own hands. . The possession of this power by the House of Commons is, therefore, undoubted. It would help to appreciate the nature of the power to commit for contempt to compare it with breach of privlege which itself may amount to contempt. Thus the publication of the proceedings of the House of Commons against its orders is a breach of its privilege and amounts to contempt. All contempts, however, are not breaches of privilege. Offences against the dignity or authority of the House though called "breaches of privilege" are more properly distinguished as contempts. Committing to prison for contempts is itself a privilege of the House of Commons whether the contempt is committed by a direct breach of its privilege or by offending its (1) May, P. 90. (2) ; , 559. 510 dignity or authority.(1) "The functions, privileges and disciplinary powers of a legislative body are thus closely connected. The privileges are the necessary complement of the functions, and the disciplinary powers of the privileges. "(1) I may add that it is not in dispute that power to commit for contempt may be exercised not only against a member of the House but against an outsider as well. (3) It was contended on behalf of the High Court that the power of the House of Commons to commit for contempt was not con ferred by cl. (3) of article 194 on the Houses of a State Legislature because our Constitution has to be read along with its basic scheme providing for a division of powers and the power to commit to prison for contempt being in essence a judicial power, can under our Constitution be possessed only by a judicial body, namely, the courts and not by a legislative body like the Assembly. It was, therefore contended that article 194(3) could not be read as conferring judicial powers possessed by the House of Commons in England as one of its privileges on a legislative body and so the Assembly did not possess it. This contention of the High Court is, in my view, completely without foundation; both principle and authority are against it. This Court has on earlier occasions observed that the principle of separation of powers is not an essential part of our Constitution : see for example In re. Delhi Laws Act(1). Again the Constitution is of course supreme and even if it was based on the principle of separation of powers, there was nothing to prevent the Constitution makers, if they so liked, from conferring judicial powers on a legislative body. If they did so, it could not be said that the provision concerning it was bad as our Constitution was based on a division of powers. Such a contention would of course be absurd. The only question, therefore, is whether our Constitution makers have conferred the power to commit on the Legislatures. The question is not whether they had the power to do so, for there was no limit to their powers. What the Constitution makers had done can, however, be ascertained only from the words used by them in the Constitution that they made. If those words are plain, effect must be given to them irrespective of whether our Constitution is based on a division of power or not. That takes me to the language used in cl. (3) of article 194. The words there appearing are "the powers, privileges and immunities of a House. shall (1) May, p. 43. (2) lbid. (3) Ibid., p. 91 (4) ; ,883. 511 be those of the House of Commons". I cannot imagine more plain language than this. That language can only have one meaning and that is that it was intended to confer on the State Legislatures the powers, privileges and immunities which the House of Commons in England had. There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of division of powers. So much as to the principle regarding the application of the theory of division of powers. This question is further completely concluded by the decision of this Court in Pt. M. section M. Sharma vs Shri Sri Krishna Sinha(1). I will have to refer to this case in some detail later. There Das C.J., delivered the majority judgment of the constitution bench consisting of five Judges and Subba Rao J. delivered his own dissenting opinion. Das C.J., proceeded on the basis that the Houses of a State Legislature had the power to commit for contempt. It was, therefore, held that there was nothing in our Constitution to prevent a legislative body from possessing judicial powers. On this point Subba Rao J. expressed no dissent. Further, the Judicial Committee in England has in two cases held that under provisions, substantially similar to those of article 194(3) of our Constitution, the power of the House of Commons to commit for contempt had been conferred on certain legislative bodies of some of the British Colonies. In the Speaker of the Legislative Assembly of Victoria vs Glass(1) it was held that a statute stating. "The Legislative Council of Victoria. shall hold, enjoy and exercise such and the like privileges, immunities and powers as. were held, enjoyed and exercised by the Commons House of Parliament of Great Britain and Ireland" conferred on the Houses of the Legislature of the Australian Colony of Victoria the judicial power to commit for contempt. In Queen vs Richards(1) it was held that section 49 of the Commonwealth of Australia Constitution Act, 1901 which provided that "the powers, privileges and immunities of the Senate and the House of Representatives . shall be such as are declared by the Parliament, and until declared, shall be those of the Commons House of Parliament of the United Kingdom. ", conferred on the Houses judicial powers of committing a person to prison for contempt. It was observed by Dixon C.J. "This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say (1) [19591 Supp. 1 S.C.R. 806. (2) (3) ; 512 that they were regarded by many authorities as proper incidents of the Legislative function, notwithstanding the fact that considered more theoretically perhaps one might even say, scientifically they belong to the judicial sphere. But our decision is based upon the ground that a general view of the Constitution and the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear. "(1) The similarity in the language of the provisions in the Australian Constitution and our Constitution is striking. It was said however that they were not the same for under section 49 the Australian Houses might by resolution declare the privileges whereas in our case the privileges had to be defined by law and that in Australia there were no fundamental rights. I Confess I do not follow this argument at all. The guestion is not how the privileges are declared in Australia or what effect fundamental rights have on privileges, but as to the meaning of the words which in the two statutes are identical. In Richard 's case(1) an application was made to the Judicial Committee for leave to appeal from the judgment of Dixon C.J. but such leave was refused, Viscount Simonds observing that the judgment of the Australian High Court "is unimpeachable": Queen vs Richards(1). Reference may also be made to Fielding vs Thomas(1) for the interpretation of a similar provision conferring the privileges of the Commons on the Legislature of Nova Scotia in Canada. It would, therefore, appear that article 194(3) conferred on the Assembly the power to commit for contempt and it possessed that power. The next question is as to the privilege to commit by a general warrant. There is no dispute in England that if the House of Commons commits by a general warrant without stating the facts which constitute the contempt, then the courts will not review that order("). It was however said on behalf of the High Court that this power of the English House of Commons was not one of its privileges but it was possessed by that House because it was a superior court and, therefore, that power, not being a privilege, has not been conferred on the State Legislatures by article 194(3) of our Constitution. It is not claimed by the Assembly that it is a superior court and has, therefore, a power to commit for contempt by a general warrant. I would find nothing to justify such a claim if it had been (1) ; , (2) ; (3) ; ,171. (4) (5) See Burdett vs Abbot ; ; May 's Parliamentary Practice 16th ed. p. 173 513 made. This takes me to the question, is the power to commit by a general warrant one of the privileges of the House of Commons, or, is it something which under the common law of England that House possessed because it was a superior court ? I find no authority to support the contention that the power to commit by a general warrant with the consequent deprivation of the jurisdiction of the Courts of law in respect of that committal is something which the House of Commons had because it was a superior court. First, I do not think that the House of Commons was itself ever a court. The history of that House does not support such a contention. Before proceeding further I think it necessary to observe that we are concerned with the privileges of the House of Commons as a separate body though no doubt a constituent part of the British Parliament which consists also of the King and the House of Lords. The privileges however with which we are concerned are those which the House of Commons claims for itself alone as an independent body and as apart from those possessed by the House of Lords. Indeed it is clear that the privileges of the two Houses are not the same: May Ch. It may be that in the early days of English history the Parliament was a court. The House of Commons, however, does not seem to have been a part of this Court. In medieval times the legal conception was that the King was the source of all things; justice was considered to flow from him and, therefore, the court of justice was attached to the King. The King 's Court thus was a court of law and that is the origin of what is called "the High Court of Parliament". The history of the High Court of Parliament has been summarised in Potter 's Outlines of English Legal History (1958 ed.) and may be set out as follows : The King 's Council, under its older title of Curia Regis, was the mother of the Common law courts, but still retained some judicial functions even after the common law courts had been well established. (p. 78). Later however in the 14th and 15th centuries it came to be held that appeals from the King 's Bench lay to the Parliament and not to the Council. But Parliament had a great deal of work to do and could find little time for hearing petitions or even for hearing rules of Error from the King 's Bench and this jurisdiction fell into abeyance in the 15th century. It would appear, however, that of this Parliament, Commons were no part. In 1485 it was held by all the Judges that the jurisdiction in Error belonged exclusively to the House of Lords and not to the whole Parliament. Professor Holdsworth states in explanation of this fact that it was not quite forgotten that the jurisdiction was to the King and his Council in Parliament whereas the Commons were 514 never part of his Council, the King in his Council in Parliament meaning only the King and the House of Lords; p. 95. It is also interesting to point out that when the Commons deliberated apart, they sat in the chapter house or the refectory of the Abbot of Westminster; and they continued their sittings in that place after their final, separation; May p. 12. The separation referred to is the separation between the House of Lords and the House of Commons. It may also be pointed out that when it is said that laws in England are made by the King in Parliament, what happens is 'that the Commons go to the Bar of the House of Lords where the King either in person, or through someone holding a commission from him, assents to an Act. All this would show that the House of Commons when it sits as a separate body it does not sit in Parliament. So sitting it is not the High Court of Parliament. I wish here to emphasise that we are in this case concerned with the privileges of the House of Commons functioning as a separate body, that is, not sitting in Parliament. May observes at p. 90, "Whether the House of Commons be, in law, a court of record, it would be difficult to determine:" In Anson 's Law of the Constitution, 5th ed. Vol. 1 at p. 197, it has been stated that "Whether or not the House of Commons is a court of record, not only has it the same power of protecting itself from insult by commitment for contempt, but the Superior Courts of Law have dealt with it in this matter as they would with one another, and have accepted as conclusive its statement that a contempt has been committed, without asking 'What that contempt may have been. " I think in this state of the authorities it would at least be hazardous to hold that the House of Commons was a court of record. If it was not, it cannot be said to have possessed the power to commit for its contempt by a general warrant as a court of record. I now proceed to state how this right of the House of Commons to commit by a general warrant has been dealt with by authoritative textbook writers in England. At p. 173, after having discussed the tussle between the Commons and the Courts in regard to the privileges of the former and having stated that in theory there is no way of resolving the real point at issue should a conflict between the two arise. May observes, "In practice however there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect. " He then adds, "The courts admit : (3) that the control of each House, over its internal proceedings is absolute and cannot be interfered with by the courts. (4) That a committal for contempt by "either House is in practice within its exclusive jurisdiction, since the 515 facts constituting the alleged contempt need not be stated on the warrant of committal. " So May treats the right of the House of Commons to commit by a general warrant as one of its privileges and not something to which it is entitled under the common law as of right as a Court of Record. In Cases on Constitutional Law by Keir and Lawson, (4th ed.) p. 126, it is stated that among the undoubted privileges of the House of Commons is "the power of executing decisions on matters of privilege by committing members of Parliament, or any other individuals, to imprisonment for contempt of the House. This is exemplified in the case of Sheriff of Middlesex. " That is a case where the House of Commons had committed the Sheriff of Middlesex for contempt by a general warrant, the Sheriff having in breach of the orders of the House carried out an order of the King 's Bench Division, which he was bound to do and that Court held that it had no jurisdiction to go into the question of the legality of the committal by the House : see Sheriff of Middlesex(1). In Halsbury 's Laws of England, Vol. 28 p. 467, it is stated that the Courts of law will not enquire into the reasons for which a person is adjudged guilty of contempt and committed by either House by a warrant which does not state the causes of his a. rest. This observation is made in dealing with the conflict between the House of Commons and the courts concerning the privileges of the former and obviously treats the power to issue a general warrant as a matter of the privilege of the House. Lastly, in Dicey 's Constitutional Law (10th ed.) at p. 58 in the footnote it is stated. "Parliamentary privilege has from the nature of things never been the subject of precise legal definition. One or two points are worth notice as being clearly established. (1) Either House of Parliament may commit for contempt; and the courts will not go behind the committal and enquire into the facts constituting the alleged contempt provided that the cause of the contempt is not stated. " I thus find that writers of undoubted authority have treated this power to commit by a general warrant with the consequent deprivation of the court 's jurisdiction to adjudicate on the legality of the imprisonment, as a matter of privilege of the House and not as a right possessed by it as a superior court. I now proceed to refer to recent decisions of the Judicial Committee which a also put the right of the House. of Commons to com (1) ; 516 mit by a general warrant on the ground of privilege. The first case which I will consider is Glass 's(1) case. There the Legislative Assembly of the Colony of Victoria by a general warrant committed Glass to prison for contempt and the matter was brought before the court on a habeas corpus petition. I have earlier stated that under certain statutes the Assembly claimed the Same privileges which the House of Commons possessed. The Supreme Court of Victoria held in favour of Glass. The matter was then taken to the Judicial Committee and,it appears to have been argued there that "the privilege is the privilege of committing for contempt merely; that the judging of contempt without appeal, and the power of committing by a general Warrant, are mere incidents or accidents applicable to this Country, and not transferred to the Colony. " The words "this Country" referred to England. Lord Cairns rejected this argument with the following observations: "The ingredients of judging the contempt, and committing by a general Warrant, are perhaps the most important ingredients in the privileges which the House of Commons in this Country possesses; and it would be strange indeed if, under a power to transfer the whole of the privileges and powers of the House of Commons, that which would ,only be a part, and a comparatively insignificant part, of this privilege and power were transferred." (p. 573). He also said, (p. 572) "Beyond all doubt, one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt and incidental to that privilege, it has, as has already been stated, been well established in this Country that the House of Commons have the right to be the .judges themselves of what is contempt, and to commit for that contempt by a Warrant, stating that the commitment is for contempt of the House generally, without specifying what the character of the contempt is. It would, therefore, almost of necessity follow, that the Legislature of the Colony having been permitted to carry over to the Colony the privileges, immunities, and powers of the House of Commons, and having in terms carried over all the privileges and powers exercised by the House of Commons at the date of the Statute, there was carried over to the Legislative Assembly of the Colony the privilege or power of the House of Commons connected with contempt the privilege or power, namely, of committing for contempt, of judging itself of what is contempt, and of committing for contempt by a Warrant stating generally that a contempt had taken place. " In Richard 's case (2) the power to commit by a general warrant was considered as a privilege of the House and the observations of Lord Cairns (1) ; (2) ; 517 in Glass 's(1) case were cited in support of that view. As I have already said this view was upheld by the Judicial Committee : Queen vs Richard (2). It is of some interest to note that Dixon C.J. was of the opinion, as I have earlier shown, that the power to commit was scientifically more properly a judicial power but nonetheless he found that it was a privilege technically so called of the House of Commons and so transferred to the Australian Houses by section 49 of the Australian Constitution Act of 1901. It is also necessary to state here that this case was of the year 1955 and shows that the view then held was that the right to commit by a general warrant was a privilege of the House. I am pointing out this only because it has been suggested that even if it was a privilege. it had been lost by desuetude. These cases show that that is not so. Fielding vs Thomas(") also takes the same view. It was said that the decisions of the Judicial Committee were not binding on us. That may be so. But then it has not been shown that they are wrong and, therefore, they are of value at least as persuasive authorities. The fact that the decisions of the Judicial Committee are not binding on us as judgments of a superior court is however to no purpose. The real question for our decision is whether the House of Commons possessed a certain privilege. We may either have to take judicial notice of that privilege or decide its existence as a matter of foreign law. It is unnecessary to decide which is the correct view. If the former, under section 57 of the Evidence Act a reference to the authorised law reports of England would be legitimate and if the latter, then again under section 38 of that Act a reference to these reports would be justified. So in either case we are entitled to look at these reports and since they contain decisions of one of the highest Courts in England, we are not entitled to say that what they call a privilege of the House of Commons of their country is not a privilege unless other equally high authority taking a contrary view is forthcoming. I now come to some of the English cases on which the proposition that the right to commit by a general warrant is not a matter of privilege of the House of Commons but a right which it possessed as a superior court is, as I understood the argument of learned advocate for the High Court, based. I will take the cases in order of date. It will not be necessary to refer to the facts of these cases and it should suffice to state that each of them dealt with the right of the House of Commons to commit by a general warrant. First, there is Burdett vs Abbot(4).In this case, in the first court judg (1) ; , (2) ; (3) (4) ; 518 ments were delivered by Ellenborough C.J. and Baylay J. With regard to this case, Anson in his book at p. 189 says, "It is noticeable that in the case of Burdett vs Abbot while Bayley J. rests the claim of the House to commit on its parity of position with the Courts of Judicature. Lord Ellenborough C.J. rests his decision on the broader ground of expediency, and the necessity of such a power for the maintenance of the dignity of the House. " Ellenborough C.J., therefore, according to Anson, clearly does not take the view that the House of Commons is a court and all that Bay ley J. does, according to him, is to put the House of Commons in parity with a Superior Court. If the House of Commons was a court, there, of course, was no question of putting it in parity with one. There was an appeal from this judgment to the House of Lords and in that appeal after the close of the arguments, Lord Eldon L.C. referred the following question to the Judges for their advice, 16 Whether, if the Court of Common Pleas, having adjudged an act to be a contempt of Court, had committed for the contempt under a warrant, stating such adjudication generally without the particular circumstances, and the matter were brought before the Court of King 's Bench, by return to a writ of habeas cot pus. the return setting forth the warrant, stating such adjudication of contempt generally; whether in that case the Court of King 's Bench would discharge the prisoner, because the particular facts and circumstances, out of which the contempt arose, were not set forth in the warrant": Burdett vs Abbot(1). The Judges answered the question in the negative. Upon that Lord Eldon delivered his judgment with which the other members of the Court agreed, stating that the House of Commons had the power to commit by a general warrant. I am unable to hold that this case shows that Lord Eldon came to that conclusion because the House of Commons was a superior court. It seems to me that Lord Eldon thought that the House of Commons should be treated the same way as one superior court treated another and wanted to find out how the courts treated each other. I shall later show that this is the view which has been taken of Lord Eldon 's decision in other cases. But I will now mention that if Lord Eldon had held that the House of Commons was a court, a constitutional lawyer of Anson 's eminence would not have put the matter in the way that I have just read from his work. Then I come to the case of Stockdale vs Hansard(2). That case was heard by Lord Denman C.J., Littledale J., Patteson J. and Coleridge J. Lord Denman said, (p. 1168), (1) ; (2)112 E. R. 11 12. 519 "Before I finally take leave of this head of the argument, I will dispose of the notion that the House of Commons is a separate Court, having exclusive jurisdiction over the subject matter, on which, for that reason, its adjudication must be final. The argument placed the House herein on a level with the Spiritual Court and the Court of Admiralty. Adopting this analogy, it appears to me to destroy the defence attempted to the present action . we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it." Clearly Lord Denman did not proceed on the basis that the Commons was a court. In fact he refers to the right "as arising from this privilege. " Then I find Littledale J. observing at p. 1174: "But this proceeding in the House of Commons does not arise on adverse claims; there are no proceedings in the Court; there is no Judge to decide between the litigant parties; but it is the House of Commons who are the only parties making a declaration of what they say belongs to them." So Littledale J. also did not consider the Commons as a court. Then came Patteson J. who stated at p. 1185, "The House of Commons by itself is not the court of Parliament". Then again at p. 1185 he observes: "I deny that mere resolution of the House of Lords . would be binding upon the Courts of Law. . much less can a resolution of the House of Commons, which is not a Court of Judicature for the decision of any question either of law or fact between litigant parties, except in regard to the election of its members, be binding upon the Courts of Law." Lastly I come to Coleridge J. He stated at p. 1196: "But it is said that this and all other Courts of Law are inferior in dignity to the House of Commons, and that therefore it is impossible for us to review its decision. This argument appears to me founded on a misunderstanding of several particulars; first, in what sense it is that this Court is inferior to the House of Commons; next in what sense the House is a Court at all. " S.C.I./65 8 520 Then at p. 1196 he stated : "In truth, the House is not a Court of Law at all, in the sense in which that term can alone be properly applied here; neither originally, nor by appeal, can it decide a matter in litigation between two parties; it has no means of doing so; it claims no such power; powers of enquiry and of accusation it has, but it decides nothing judicially, except where it is itself a party, in the case of contempts. As to them no question of decree arises between Courts;" The observations of Coleridge J. are of special significance for the reasons hereafter to appear. It is obvious that neither Patteson J. nor Coleridge J. thought that the House of Commons was a Court or possessed any powers as such. Next in order of date is the case of the Sheriff of Middlesex(1). Lord Denman, C.J. said at p. 426: "Representative bodies must necessarily vindicate their authority by means of their own; and those means lie in the process of committal for contempt. This applies not to the Houses of Parliament only, but [as was observed in Burdett vs Abbot , to the Courts of Justice, which, as well as the Houses, must be liable to continual obstruction and insult if they were not entrusted with such powers. It is unnecessary to discuss the question whether each House of Parliament be or be not a Court; it is clear that they cannot exercise their proper functions without the power of protecting themselves against interference. The test of the authority of the House of Commons in this respect, submitted by Lord Eldon to the Judges in Burdett vs Abbot (5 Dow, 199) was whether, if the Court of Common Pleas had adjudged an act to be a contempt of Court, and committed for it, stating the adjudication generally, the Court of King 's Bench, on a habeas corpus setting forth the warrant, would discharge the prisoner because the facts and circumstances of the contempt were not stated. A negative answer being given, Lord Eldon, with the concurrence of Lord Erskine (who had before been adverse to the exercise of the jurisdiction), and without a dissentient voice from the House, affirmed the judgment below. And we must presume that (1) ; , 521 what any Court, much more what either House of Parliament, acting on great legal authority, takes upon it to pronounce a contempt, is so. " This observation would support what I have said about the judgment of Lord Eldon in Burdett vs Abbot(1). Denman C.J. did not think that Lord Eldon considered the House of Commons to be a Court for he himself found it unnecessary to discuss that question. The basis why he thought that the House of Commons must possess the right to commit by a general warrant was one of expediency and of confidence in a body of that stature. Coleridge J. observes at p. 427, "It appears by precedents that the House of Commons have been long in the habit of shaping their warrants in that manner. Their right to adjudicate in this general form in cases of contempt is not founded on privilege, but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment. Lord Eldon puts the case in this manner in Burdett vs Abbot (5 Dow, 165, 199). " Great reliance is placed on this observation of Coleridge J. but I think that is due to a misconception. Coleridge J. at p. 427 expressly affirms all that had been said by him and the other Judges in Stockdale vs Hansard(2). As I have earlier shown, he had there said that "in truth, the House is not a Court of Law at all." Therefore when he said that the right to adjudicate in the general form was not founded on privilege, whatever he might have meant, he did not mean that it was founded on the House of Commons being a court. I think what he meant was that it was a right which the House of Commons had to possess in order to discharge its duties properly and, therefore, not something conceded to it as a sign of honour and respect. He might also have meant that the power was not something peculiar to the House as it was also possessed by the courts for the same reason of expediency, and, therefore, it was not a privilege, a term which has been used in the sense of something which the Parliament possessed and which exceeded those possessed by other bodies or individuals : Cf. May 42. Then comes the case of Howard vs Gossett(3). It will be enough to refer to the judgment of the Court of Exchequer Chamber in appeal which begins at p. 158. That judgment was delivered by Parke B. who observed at p. 171: (1) ; (2) 112 E.R. 1112. (3) ; 522 .lm15 "the warrant of the Speaker is, in our opinion, valid, so as to be a protection to the officer of the House, upon a principle which, as it applies to the process and officers of every Superior Court, must surely be applicable to those of the High Court of Parliament and each branch ofit. " Here again the House is treated as being entitled to the same respect as a superior court, but it is not being said that the House is a superior court. Lastly, I come to Bradlaugh vs Gossett(1) in which at p. 285 Stephen J. said, "The House of Commons is not a Court of justice. " I am unable to see how these authorities can be said to hold that the power of the House of Commons to commit by a general warrant is possessed by it because it is a superior court. It was then said that even if the right to commit by a general warrant cannot be said to have been possessed by the House of ,Commons because it was superior court, the observations in the cases on the subject, including those to which I have already referred, would establish that the right springs from some rule of comity of courts, or of presumptive evidence or from an agreement between the courts of law and the House or lastly from some concession made by the former to the latter. I at once observe that these cases do not support the contention and no text book has taken the view they do or that the right is anything but a privilege. The contention further seems to me to be clearly fallacious and overlooks the basic nature of a privilege of the House of Commons. I have earlier stated the nature of the privilege but I will repeat it here. All privileges of the House of Commons are based on law. That law is known as lex Parliamenti. Hence privileges are matters which the House of Commons possesses as of right. In Stockdale vs Hansard(2) all the Judges held that the rights of the House of Commons are based on lex Parliamenti and that law like any other law, is a law of the land which the courts are entitled to administer. Now if the privilege of committing by a general warrant, is a right enforceable in law which belongs to the House of Commons, it cannot be a matter controlled by the rule of comity of courts. Comity of courts is only a self imposed restraint. It is something which the court on its own chooses not to do. It is really not a rule of law at all. It creates no enforceable right. A 'right ' to the privilege cannot be based on it. Besides there is no question of (1) (1884) (2) 12. 523 comity of courts unless there are two courts, each extending civility or consideration to the other. Here we have the House of Commons and the courts of law. The former is not a court and the latter needs no civility or consideration from the House for its proper functioning. Here there is no scope of applying any principle of comity of courts. Next as to the privilege being really nothing more than a rule of presumption that a general warrant of the House of Commons imprisons a person legally, so that the question of the legality of the committal need not be examined by a court of law, I suppose it is said that this is a presumption which the law requires to be made. If it is not so, then the right of the House would depend on the indulgence of the judge concerned and, therefore, be no right at all. That cannot be, nor is it said that it is so. What then ? If it is a presumption of law, what is the law on which the presumption is based ? None has been pointed out and so far as I know, none exists unless it be lex Parliamenti. Once that is said, it really becomes a matter of privilege for the lex Parliamenti would not create the presumption except for establishing a privilege. A right created by lex Parliamenti is a privilege. This I have earlier said in discussing the nature of privileges. Lastly, has the right its origin in agreement between the House of Commons and the courts of law, or in a concession granted by the latter to the former ? This is a novel argument. I have not known of any instance where a right, and therefore, the law on which it is based, is created by an agreement with courts. Courts do not create laws at all, least of all by agreement; they ascertain them and administer them. For the same reason, courts cannot create a law by concession. A court has no right to concede a question of law unless the law already exists. I find it impossible to imagine that any parliamentary privilege which creates an enforceable right could be brought into existence by agreement with courts or by a concession made by them. Before I part with the present topic I will take the liberty of observing that it is not for us to start new ideas about the privileges of the House of Commons, ideas which had not ever been imagined in England. Our job is not to start an innovation as to privileges by our own researches. It would be unsafe to base these novel ideas on odd observations in the judgments in the English cases, torn out of their context and in disregard of the purpose for which they were made. What I have quoted from these cases will at least make one pause and think that these cases can furnish no sure foundation for a novel theory as to the right of the House of 524 Commons to commit by a general warrant. Researches into old English history are wholly out of place in the present context and what is more, are likely to lead to misconceptions. To base our conclusion as to the privileges on researches into antiquities, will furthermore be an erroneous procedure for the question is what the privileges of the House of Commons were recognised to be in 1950. Researches into the period when these privileges were taking shape can afford no answer to their contents and nature in 1950. The question can be answered only by ascertaining whether the right under discussion was treated as a privilege of the House of Commons by authoritative opinion in England in the years preceding 1950. I then come to the conclusion that the right to commit for contempt by a general warrant with the consequent deprivation of jurisdiction of the courts of law to enquire into that committal is a privilege of the House of Commons. That privilege is, in my view, for the reasons earlier stated, possessed by the Uttar Pradesh Assembly by reason of article 194(3) of the Constitution. It is then said that even so that privilege of the Assembly can be exercised only subject to the fundamental rights of a citizen ,guaranteed by the Constitution. That takes me to Sharma 's case(1) As I read the judgment of the majority in that case, they seem to me to hold that the privileges of the House of Commons which were conferred on the Houses of a State Legislature by article 194(3), take precedence over fundamental rights. The facts were these. A House of the Bihar Legislature which also had made no law defining its privileges under article 194(3), had directed certain parts of its proceedings to be expunged but notwithstanding this the petitioner published a full account of the proceedings in his paper including what was expunged. A notice was thereupon issued to him by the House to show cause why steps should not be taken against him for breach of privileges of the House. The privilege claimed in that case was the right to prohibit publication of its proceedings. The petitioner, the Editor of the paper, then filed a petition under article 32 of the Constitution stating that the privilege did not control his fundamental right of freedom of speech under article 19 (1) (a), and that, therefore, the House had no right to take proceedings against him. He also disputed that the House of Commons had the privilege which the Bihar Assembly claimed. The majority held that the House possessed the privilege to prohibit the publication of its proceedings and that privilege was not subject to the fundamental right of a citizen under article (1) [1959] Supp. 1 S.C.R. 806. 525 19 (1)(a). Subba Rao J., took a dissentient view and held that fundamental rights take precedence over privileges and also that the House did not possess the privilege of prohibiting the publication of its proceedings. With the latter question we are not concerned in the present case. In the result Sharma 's(1) petition was dismissed. On behalf of the High Court two points have been taken in regard to this case. It was first said that the majority judgment required reconsideration and then it was said that in any event, that judgment only held that the privilege there claimed took precedence over the fundamental right of the freedom of speech and not that any other privilege took precedence over fundamental rights. I am unable to accept either of these contentions. On behalf of the Assembly it has been pointed out that in a reference under article 143 we have no jurisdiction to set aside an earlier decision of this Court, for we have to give our answers to the questions referred on the law as it stands and a decision of this Court so long as it stands of course lays down the law. I am unable to say that this contention is idle. It was said on behalf of the High Court that in In re. Delhi Laws Act(1) a question arose whether a decision of the Federal Court which under our Constitution has the same authority as our decisions, was right. It may be argued that this case does not help, for the question posed, itself required the reconsideration of the earlier judgment. I do not propose to discuss this matter further, for I do not feel So strongly in favour of the contention of the Assembly that I should differ from the view of my learned brothers on this question. I feel no doubt, however, that the majority judgment in Sharma 's case(1) was perfectly correct when it held that privileges were not subject to fundamental rights. I have earlier set out the first three clauses of article 194. The first clause was expressly made subject to the provisions of the Constitution whatever the provisions contemplated were while the third clause was not made so subject. Both the majority and the minority judgments are agreed that the third clause cannot, therefore, be read as if it had been expressly made subject to the provisions of the Constitu tion. For myself, I do not think that any other reading is possible. Clause (3) of article 194 thus not having been expressly made subject to the other provisions of the Constitution, how is a conflict between it and any other provisions of the Constitution which may be found to exist, to be resolved ? The majority held that the (1) [1959] Supp. 1. S.C.R. 806. (2) ; 526 principle of harmonious construction has to be applied for reconciling the two and article 194(3) being a special provision must take precedence over the fundamental right mentioned in article 19(1) (a) which was a general provision: (p. 860). Though Subba Rao J. said that there was no inherent inconsistency between article 19 (1) (a) and article 194(3), he nonetheless applied the rule of harmonious construction. He felt that since the legislature had a wide range of powers and privileges and those privileges can be exercised without infringing the fundamental rights, the privilege should yield to the fundamental right. This construction, he thought, gave full effect to both the articles: (pp. 880 1). With great respect to the learned Judge, I find it difficult to follow how this interpretation produced the result of both the articles having effect and thus achieving a harmonious construction. Ex facie there is no conflict between articles 194(3) and 19 (1) (a), for they deal with different matters. The former says that the State Legislatures shall have the powers and privileges of the English House of Commons while article 19 (1) (a) states that every citizen shall have full freedom of speech. The conflict however comes to the surface when we consider the particular privileges claimed under article 194(3). When article 194(3) says that the State Legislatures shall have certain privileges, it really incorporates those privileges in itself. Therefore, the proper reading of article 194(3) is that it provides that the State Legislatures have, amongst other privileges, the privilege to prohibit publica tion of any of its proceedings. It is only then that the conflict between articles 194 (3) and 19 (1) (a) can be seen; one restricts a right to publish something while the other says all things may be published. I believe that is how the articles were read in Sharma 's case(1) by all the Judges. If they had not done that, there would have been no question of a conflict between the two provisions or of reconciling them. Now if article 19 (1) (a) is to have precedence, then a citizen has full liberty to publish whatever he likes; he can publish the proceedings in the House even though the House prohibited their publication. The result of that reading however is to wipe out that part of article 194(3) which said that the State Legislatures shall have power and privilege to prohibit publication of their proceedings. That can hardly be described as harmonious reading of the provisions, a reading which gives effect to both provisions. It is a reading which gives effect to one of the provisions and treats the other as if it did not exist. (1) [1959] Supp. 1 S.C.R. 806. 527 It is true that if article 19(1) (a) prevailed, it would not wipe out all the other privileges of the House of Commons which had to be read in article 194(3). Thus the right of the House to exclude strangers remained intact even if the right to prohibit publication of proceedings was destroyed by article 19 (1) (a). But this is to no purpose as there never was any conflict between the right to exclude strangers and the freedom of speech and no question of reconciling the two by the rule of harmonious construction arose. When one part of a provision alone is in conflict with another provision, the two are not reconciled by wiping out of the statute book the conflicting part and saying that the two provisions have thereby been harmonised because after such deletion the rest of the first and the whole of the second operate. We are concerned with harmonising two conflicting provisions by giving both the best effect possible and that is not done by cutting the gordian knot by removing the conflicting part out of the statute. I agree that in view of the conflict between article 194(3) and article 1 9 ( 1 ) (a), which arises in the manner earlier stated, it has to be resolved by harmonious construction. As I understand the principle, it is this. When the Legislature here the Constitutionmakers enacted both the provisions they intended both to have effect. If per chance it so happens that both cannot have full effect, then the intention of the legislature would be best served by giving the provisions that interpretation which would have the effect of giving both of them the most efficacy. This, I believe, is the principle behind the rule of harmonious construction. Applying that rule to Sharma 's case(1), if the privilege claimed by the Legislature under article 194(3) of prohibiting publication of proceedings was given full effect, article 19 (1) (a) would not be wiped out of the Constitution completely, the freedom of speech guaranteed by the last mentioned article would remain in force in respect of other matters. If, on the contrary article 19 (1) (a) was to have full effect, that is, to say, a citizen was to have liberty to say and publish anything he liked, then that part of article 194(3) which says that the House can prohibit publication of its proceedings is completely destroyed, it is as if it had never been put in the,Constitution. That, to my mind, can hardly have been intended or be the proper reading of the Constitution. I would for these reasons say that the rule of harmonious construction supports the interpretation arrived at by the majority in Sharma 's case(1). Subba Rao J. gave another reason why he thought that funda mental rights should have precedence over the privileges of the (1) [1959] Supp. 1 S.C.R. 806. 528 Legislature and on this also learned counsel for the High Court relied in the present case. Subba Rao J. said that that part of article 194(3) under which the State Legislature claimed the same privilege as those of the House of Commons in England, which has been called the second part of this clause, was obviously a transitory provision because it was to have effect until the Legislature made a law defining the privileges as the Constitution makers must have intended it to do. He added that if and when the Legislature made that law that would be subject to the fundamental rights and it would be strange if provisions which were transitory were read as being free of those rights. The majority in Sharma 's case(1) no doubt said without any discussion that the law made under article 194(3) would be subject to all fundamental rights. Learned advocate for the Assembly however contended before us that that view was not justified. In the present case it seems to me it makes no difference whatever view is taken. Assume that the law made by a Legislature defining its privileges has to be subject to fundamental rights. But that will be so only because article 13 says so. Really the law made under article 194(3) is not to be read as subject to fundamental rights; the position is that if that law is in conflict with any fundamental right, it is as good as not made at all. That is the effect of article 13. The argument that since the laws made under article 194(3) are subject to fundamental rights, so must the privileges conferred by the second part of cl. (3) be, is therefore based on a misconception. Article 13 makes a law bad if it conflicts with fundamental rights. It cannot be argued that since article 13 might make laws made under cl. (3) of article 194 void, the privileges conferred by the second part of that clause must also be void. Article 13 has no application to a provision in the Constitution itself. It governs only the laws made by a State Legislature which article 194(3) is not. Therefore, I do not see why it must be held that because a law defining privileges if made, would be void if in conflict with fundamental rights, the privileges incorporated in article 194(3) 1 have already said that that is how the second Dart of article 194(3) has to be read must also have been intended to be subject to the fundamental rights. If such was the intention, cl. (3) would have started with a provision that it would be subject to the Constitution. The fact that in cl. (1 ) the words 'subject to the provisions of this Constitution ' occur while they are omitted from cl. (3) is a strong indication that the latter clause was not intended to be so subject. Furthermore, that could not have been the intention because then the privilege with which the present case is concerned, namely, to commit for contempt by a general 1. [1959] Supp. 1 S.C.R. 806. 529 warrant without the committal being subjected to the review of the court, would be wiped out of the Constitution for the fundamental right required that the legality of every deprivation of liberty would be examinable in courts. It was also said that fundamental rights are transcendental. I do not know what is meant by that. If they are transcendental that must have been because the Constitution made them so. The Constitution no doubt by article 13 makes laws made by the Legislatures subject to fundamental rights, but I do not know, nor has it been pointed out to us, in what other way the Constitution makes the fundamental rights transcendental. We are not entitled to read into the Constitution things which are not there. We are certainly not entitled to say that a specific provision in the Constitution is to have no effect only because it is in conflict with fundamental rights, or because the latter are from their nature, though not expressly made so, transcendental. Then as to the second part of article 194(3) being transitory, that depends on what the intention of the Constitution makers was. No doubt it was provided that when the law was made by the Legislature under the first part of article 194(3) the privileges of the House of Commons enjoyed under the latter part of that provision would cease to be available. But I do not see that it follows from this that the second part was transitory. There is nothing to show that the Constitution makers intended that the Legislature should make its own law defining its privileges. The Constitution makers had before them when they made the Constitution in 1950, more or less similar provisions in the Australian Constitution Act, 1901 and they were aware that during, fifty years, laws had not been made in Australia defining the privileges of the Houses of the Legislatures there but the Houses had been content to carry on with the privileges of the House of Commons conferred on them by their Constitution. With this example before them I have no rea son to think that our Constitution makers, when they made a similar provision in our Constitution, desired that our Legislatures should make laws defining their own privileges and get rid of the privileges of the House of Commons conferred on them by the second part of article 194(3). 1 think it right also to state that even if the rights conferred by the second part of article 194(3) were transitory, that would not justify a reading the result of which would be to delete a part of it from the Constitution. It is necessary to notice at this stage that in Ganupati Keshav Ram Reddy vs Nafisul Hassan(1) his Court held the arrest of (1) A.I.R. 1954 S.C.636 530 a citizen under the Speaker 's order for breach of privilege of the Uttar Pradesh Assembly without producing him before a magistrate as required by article 22 (2) of the Constitution was a violation of the fundamental right mentioned there. Reddy 's case(1) states no reason in support of the view taken. Subba Rao J., though he noticed this, nonetheless felt bound by it. The majority did not do so observing that the decision there proceeded on a concession by counsel. In this Court learned Advocate for the High Court said that there was no concession in the earlier case. I notice that Das C.J." who delivered the judgment of the majority in Sharma 's case(1) was a member of the Bench which decided Reddy 's case(1). If the decision in Reddy 's case( ') was not by concession at least in the sense that the learned advocate was unable to advance any argument to support the contention that privilege superseded fundamental right, it would be strange that the point was not discussed in the judgment. However all this may be, in view of the fact that it does not seem from the judgment to have been contended in Reddy 's case(1) that the second part of article 194(3) created privileges which took precedence over the fundamental rights, as the judgment does not state any reason in support of the view taken, for myself I have no difficulty in not following Reddy 's case(1) especially as the majority in Sharma 's case(1) did not follow it. It was also said that the privileges were only intended to make the Legislatures function smoothly and without obstruction. The main function of the Legislatures, it was pointed out, was the making of laws and the object of the privileges was to assist in the due discharge of that function. It was contended that if the laws made by a Legislature, for the making of which it primarily exists, are subject to fundamental rights, it is curious that something which is ancillary to that primary function should be free of them. I find nothing strange. in this. Laws made by a Legislature are subject to fundamental rights because the Constitution says so. The privileges are not subject because they are conferred by the Constitution itself and have neither been made so subject nor found on a proper interpretation to be such. I believe I have now discussed all the reasons advanced in support of the view that the majority decision in Sharma 's case (2) was erroneous. As I have said, I am not persuaded that these reasons are sound. C. 636. (2) [1959] Supp. 1 S.C.R. 806. 531 In R. K. Karanjia vs The Hon 'ble Mr. M. Anantasayanam lyyangar, Speaker, Lok Sabha (W.P. No. 221 of 1961 unreport ed), which was a petition under article 32 of the Constitution, a Bench of seven Judges of this Court was asked to reconsider the Correctness of the majority decision in Sharma 's case(1) but it considered that decision to be correct and refused to admit the petition. This is another reason for holding that Sharma 's case (1) was correctly decided. I now come to the other contention concerning Sharma 's case(1). It was said that all that the majority judgment held in that case was that the privilege of prohibiting publication of its proceedings conferred on a Legislature by the second part of cl. (3) of article 194 was not subject to the fundamental right of freedom of speech guaranteed by article 19 (1) (a) It was pointed out that that case did not say that all the privileges under the second part of article 194(3) would take precedence over all fundamental rights. It was stressed that Das C.J. dealt with the argument advanced in that case that article 21 would be violated by the exercise of the privilege of the House to commit for contempt by stating that there would be no violation of article 21 as the arrest would be according to procedure established by law because the arrest and detention would be according to rules of procedure framed by the House under article 208. It was contended that the majority therefore held that the fundamental right guaranteed by article 21 would take pre cedence over the privilege to commit. This contention is also not acceptable tome. No doubt Sharma 's case( ') was concerned with the conflict between article 19 (1) (a) and the privilege of the House under the second part of article 194(3) to prohibit publication of its proceedings and, therefore, it was unnecessary to refer to the other fundamental rights. The reason, however, which led the majority to hold that the conflict between the two had to be resolved by giving precedence to the privilege would be available in the case of a conflict between many other privileges and many other fundamental rights. Now that reason was that to resolve the conflict, the rule of harmonious construction had to be applied and the result of that would be that fundamental rights, which in their nature were general, had to yield to the privileges which were special. The., whole decision of the majority in that case was that when there was a conflict between a privilege created by the second part of article 194(3) and a fundamental right, that conflict should be resolved by harmonising the two. Tne decision would apply certainly to the conflict (1) [1959] Supp. 1 S.C.R. 806. 532 between the privilege of committal to prison for contempt by a general warrant without the validity of that warrant being reviewed by a court of law and the fundamental rights guaranteed by articles 21, 22 and 32. The majority judgment would be authority for holding that the conflict should be solved by a harmonious construction. Indeed that was the view of the minority also. The difference was as to the actual construction. Das C.J. no doubt said that there was no violation of article 21 in Sharma 's case(1) because the deprivation of liberty was according to procedure established by law. That was, to my mind, only an alternative reason, for he could have dealt with that point on the same reason on which he said that the fundamental right under article 19 (1) (a) must yield to the privilege of the House to prohibit publication of its proceedings, namely, by the application of the rule of harmonious construction. He could have said by the same logic that he used earlier, that the fundamental right guaranteed by article 21 was general and the privilege to detain by a general warrant was a special provision and must, therefore, prevail. I am unable to hold that by dealing with the argument based on article 21 in the manner he did, Das C.J. held that the fundamental right under article 21 took precedence over the privilege of committal by a general warrant which the Legislature possessed under the second part of cl. (3) of article 194. If he did so, then there would be no reason why he should have held that fundamental right of freedom of speech should yield to the House 's privilege to stop publication of its proceedings. Another reason for saying that Das C.J. did not hold that article 21 took precedence over the privilege to commit by a general warrant is the fact that he held that Reddy 's case(1) was wrongly decided. That case had held that article 22 had precedence over the privilege of committal. If article 22 did not have precedence, as Das C.J. must have held since he did not accept the correctness of Reddy 's case(2), no more could he have held that article 21 would have precedence over the privilege to commit for contempt. Some reference was made to cls. (1) and (2) of article 194 to show that Sharma 's case (1) decided that article 19 (1) (a) alone had to yield to the privilege conferred by the second part of cl. (3) of article 194, but I do not think that the majority decision in Sharma 's case(1) was at all based on those clauses. These clauses, it will be remembered, dealt with freedom of speech in the House. Das C.J., referred to them only because some arguments, to which it is unnecessary now to refer, had been advanced on the basis of these (1) [1959] Supp. 1 S.C.R. 806. (2) A.I.R. 1954 S.C. 636. 533 clauses for the purpose of showing that the privileges were subject to the fundamental right of freedom of speech. Both the minority and the majority judgments were unable to accept these arguments. Indeed the question in that case concerned the power to affect a citizen 's freedom of speech outside the House and cls. (1) and (2) only deal with freedom of speech of a member in the House itself and with such freedom that case had nothing to do. In this Court some discussion took place as to the meaning of the words "subject to the provisions of thein cl. (1) of article 194. These words can, in my view, only refer to the provisions of the Constitution laying down the procedureto be observed in the House for otherwise cls. (1) and (2) will conflict with each other. I will now make a digression and state that learned advocate for the Assembly pointed out that in article 194 the Constitution makers treated the liberty of speech of a member differently by expressly providing for it in cls. (1) and (2) and by providing for other privileges that is, privileges other than that of the freedom of speech in the House, in cl. He said that the reason was that if the freedom of speech in the House was conferred by cl. (3) it would be controlled by law made by the legislature and then the party in power might conceivably destroy that freedom. The intention was that the freedom of speech in the House should be guaranteed by the Constitution itself so as to be beyond the reach of any impairment by any law made by the legislature. I think that is the only reason why that freedom was treated separately in the Constitution in cls. (1) and (2) of article 194. Therefore those clauses have nothing to do with the case in hand. Nor had they anything to do with the decision in Sharma 's case. 'Me result is that in my judgment Sharma 's case covers the present case and cannot be distinguished from it. For the reasons earlier stated I come to the conclusion that when there is a conflict between a privilege conferred on a House by the second part of article 194(3) and a fundamental right, that conflict has to be resolved by harmonising the two provisions. It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is a fundamental right or for any other reason. In the present case the conflict is between the privilege of the House to commit a person for contempt with out that committal being liable to be examined by a court of law and the personal liberty of a citizen guaranteed by article 21 and the right to move the courts in enforcement of that right under article 32 or article 226. If the right to move the courts in enforcement of the fundamental right is given precedence, the privilege which provide,% 534 that if a House commits a person by a general warrant that committal would not be reviewed by courts of law, will lose all its effect and it would be as if that privilege had not been granted to a House by the second part of article 194(3). This, in my view, ,cannot be. That being so, it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal. It is not my intention to state that there may not be exceptions to the rule but I do not propose to enter into discussion of these exceptions, if any, in the present ,case. The existence of those exceptions may be supported by the observations of Lord Ellenborough C.J. in Burdett vs Abbot(1). May at p. 159 puts the matter thus: "Lord Ellenborough C.J., left open the possibility that cases might arise in which the courts would have to decide on the validity of a committal for contempt where the facts displayed in the return could by no reasonable interpreta tion be considered as a contempt". I think I have now sufficiently discussed the law on the subject and may proceed to answer the questions stated in the order of reference. Question No. 1. Whether, on the facts and cir cumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh. consisting of the Hon 'ble Shri Justice N. U. Beg and the Hon 'ble Shri Justice G. D. Sahgal, to entertain and deal with the petition of Shri Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Shri Keshav Singh on bail pending the disposal of his said petit ion. This question should, in my opinion, be answered in the affirmative. The Lucknow Bench was certainly competent to deal with ,habeas corpus petitions generally. The only point raised by the Assembly is that it has no jurisdiction to deal with such petitions when the detention complained of is under a general warrant issued by the Speaker. But the Lucknow Bench had to find out whether the detention of Keshav Singh was by such a warrant before it could throw out the petition on the ground of want of jurisdiction. The petition did not show that the detention was under a general warrant. That would have appeared when the Speaker of the Assembly and the jailor who were respondents to the petition made (1) (1811) 14 East I. 152: ; 535 their return. That stage had not come when the Lucknow Bench dealt with the petition and made orders on it. Till the Lucknow Bench was apprised of the fact that the detention complained of was under a general warrant, it had full competence to deal with the petition and make orders on it. It was said that the order for bail was illegal because in law release on bail is not permitted when imprisonment is for contempt. I do not think this is a fit occasion for deciding that question of law for even if the order for bail was not justifiable in law that would not otherwise affect the competence of the Bench to make the order. I do not suppose this reference was intended to seek an answer on the question whether in a habeas corpus petition where the imprisonment is for contempt, the law permits a release on bail. Question No. 2. Whether, on the facts and cir cumstances of the case, Shri Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Shri B. Solomon, Advocate, by presenting the said petition and the said two Hon 'ble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh. The first thing I observe is that the question whether there is a contempt of the Assembly is for the Assembly to determine. If that determination does not state the facts, courts of law cannot review the legality of it. Having made that observation, I proceed to deal with the question. The question should be answered in the negative. I suppose for an act to amount to contempt, it has not only to be illegal but also wilfully illegal. Now in the present case it does not appear that any of the persons mentioned had any knowledge that the imprisonment was under a general warrant. That being so, I have no material to say that the presentation of the petition was an illegal act much less a wilfully illegal act. No contempt was, therefore, committed by the Hon 'ble Judges or B. Solomon or Keshav Singh for the respective parts taken by them in connection with the petition. Question No. 3. Whether on the facts and cir cumstances of the case, it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon 'ble Judges and Shri B. Solomon, Sup. C.I./65 9 536 Advocate, before it in custody or to call for their explanation for its contempt; It will be remembered that, according to the recitals, the resolution of March 21, 1964 which directed the production of the Hon 'ble Judges in custody stated that they had committed contempt of the House by what they respectively did in connection with Keshav Singh 's petition of March 19, 1964 and that the Assembly disputes that the resolution so provided. We have however to answer the question on the facts as stated in the order of reference and have no concern with what may be the correct facts. For one thing, it would not be competent for the Assembly to find the Hon 'ble Judges and B. Solomon to be guilty of contempt without giving them a hearing. Secondly, in the present case I have already shown that they were not so guilty. That being so, it was not competent for the Assembly to direct their production in custody. It has to be noticed that in the present case the Assembly had directed the production of the Hon 'ble Judges not for the purpose of hearing them on the question of contempt but on the basis that they had committed a contempt. It is unnecessary, therefore, to discuss the question of the privilege of the House to "cause persons to be brought in custody to the Bar to answer charges of contempt". See May p. 94. Furthermore, the Assembly had modified its resolution to have the Judges, Solomon and Keshav Singh brought under custody and asked only for explanation from the Hon 'ble Judges and B. Solomon for their conduct. Therefore, strictly speaking, the question as to bringing them in custody before the House does not arise on the facts of the case. As to the competence of the Assembly to ask for explanation from the two Judges and B. Solomon, I think it had. That is one of the privileges of the House. As it has power to commit for contempt, it must have power to ascertain facts concerning contempt. Question No. 4. Whether, on the facts and cir cumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon 'ble Judges and Shri B. Solomon, Advocate and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other Respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; I would answer the question in the affirmative. The Full Bench had before it petitions by the two Judges and B. Solomon 537 complaining of the resolution of the Assembly finding them guilty of contempt. I have earlier stated that on the facts of this case, they cannot be said to have been so guilty. It would follow that the Full Bench had the power to pass the interim orders that it did. Question No. 5. Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. This is too general a question and is not capable of a single, answer; the answers would vary as the circumstances vary, and it is not possible to imagine all the sets of circumstances. Nor do I think we are called upon to do so. As learned advocates for the parties said, this question hag to be answered on the facts of this case. On those facts the question has to be answered in the negative. I propose now to refer to an aspect of the case on which a great deal of arguments had been addressed at the bar. That concerns the liability of a Judge for contempt. If I am right in what I have said earlier, a judge has no jurisdiction to interfere with a commitment by a House under a general warrant. If he makes an order which interferes with such a commitment, his action would be without jurisdiction. It would then be a nullity. Any officer executing that order would be interfering with the committal by the House and such interference would be illegal because the order is without jurisdiction and hence a nullity. If the House proceeded against him in contempt, a Court of Law could not, in any event, have given him any relief based on that order. It may be that the Judge by making such an order would be committing contempt of the House for by it he would be interfering with the order of the House illegally and wholly without jurisdiction. The question however to which I wish now to refer is whether the judge, assuming that he has committed contempt, can be made liable for it by the House. In other words, the question is , has the Judge immunity against action by the House for contempt committed by him ? If his order was legal, then, of course, he would not have committed contempt and question of immunity for him would not arise. 538 It was said on behalf of the High Court that even assuming that a Judge can commit contempt of a House, he has fully immunity. This was put first on the scheme of the Constitution which, it was said, favoured complete judicial independence. It was next pointed out that under our Constitution Judges cannot be removed from office except by the process of impeachment under article 124(4), that is, by the order of the President upon an address by each House of Parliament supported by a certain majority. Reliance was then placed on article 211 of the Constitution which prohibits discussion in the Legislature of the conduct of a Judge in the discharge of his duties and it was said that this indicated that a Judge cannot be liable for contempt, because to make him so liable his conduct has to be discussed. It was however conceded that article 211 did not give an enforceable right in view of article 194(2) but it was said to indicate the intention of the Constitution makers that a Judge is to be immune from liability for contempt of the Assembly. The correctness of these contentions was challenged on behalf of the Assembly. With regard to the point of judicial independence, it was said that it would hardly have been intended that a Judge should have immunity even though he deliberately committed contempt of a House. It was pointed out that the contempt would be deliberate, because the Judge would know that in the case of a general warrant he had no jurisdiction to proceed further. As regards the argument based on the irremovability of Judges except in the manner provided, it was said that that had nothing to do with immunity for contempt. It was pointed out that the Constitution provided for State autonomy and it could not have been intended that when a Judge committed contempt of a State Legislature, the only remedy of that body would be to approach the Central Parliament with a request to take steps for the removal of the Judge. That would, also seriously impair the dignity of the State Legislature. The grant of relief, in such a case would depend on the sweet will of the Central Parliament and relief would be unlikely to be obtained particularly when the parties in power in the State and. the Centre, were as might happen, different. The irremovability of the Judges was not, it was said, intended to protect their deliberate wrongful act but only to secure their independence against illegal interference from powerful influences. It was argued that the immunity of a Judge would also put the officers of the court who would be bound to 539 execute all his orders, in a helpless and precarious condition, for they have to carry out even illegal orders of the Judges and thereby expose themselves to the risk of punishment legitimately imposed by an Assembly. It was lastly said that if independence of the Judges was necessary for the good of the country, so was the independence of the Legislatures. In regard to article 211, it was observed that it did not at all indicate an intention that the Judges would not be liable for contempt committed by themselves. Its main object, it was contended, was to permit the freedom of speech guaranteed by article 194(1) to be restrained in a certain manner. Furthermore, it was pointed out that article 211 would not bar a discussion unless it was first decided that that discussion related to the conduct of a Judge in the discharge of his duties, a decision which would often be difficult to make and in any case the decision of the House would not be open to question in a court of law, for it is one of the privileges of the House of Commons which a State Legislature has obtained under article 194(3) that it has absolute control of its internal proceedings: (see Bradlaugh vs Gosset). On all these grounds it was contended that our Constitution did not confer any immunity on a Judge for an admitted contempt committed by him. It was pointed out that in England judicial officers, including Judges of superior courts, did not have that immunity and reference was made to Jay vs Topham(1) and case of Brass Crossby(2). I am not sure that I have set out all the arguments on this question but what I have said will give a fair idea of the competing contentions. For the purpose of this case, I do not think it necessary to go into the merits of those contentions. The questions that arise on the facts of the reference can, in my view, be answered without pronouncing on the question of immunity of Judges. It is often much better that theoretical disputes should be allowed to lie buried in learned tracts and not be permitted to soil our daily lives. It would not require much strain to avoid in practice circumstances which give rise to those disputes. In England they have done so and there is no reason why in our country also that would not happen. I strongly feel that it would serve the interest of our country much better not to answer this question especially as it has really not arisen. I do hope that it will never arise. (1) 12 Howell 's State Trials 82 1. (2) 19 Howell 's State Trials 1138. 540 I think it right to mention that Mr. Verma appearing for the Advocate General of Bihar raised a point that this reference was incompetent or at least should not be answered. He said that a reference can be made, by the President only when he needed the advice of this Court with regard to difficulties that he might feel in the discharge of his duties. Mr. Verma 's contention was that the questions in the reference related to matters which did not concern the President at all. He said that the advice given by us on this reference will not solve any difficulty with which the President may be faced. On the other side, it was contended that the President might consider the amendment of the Constitution in the light of the answers that he might receive from this Court. Mr. Verma replied to this answer to his argument by saying that it was not for the President to consider amendments of the Constitution and that it was not the object of article 143 that this Court should be consulted for the purpose of initiating legislation. I am unable to say that Mr. Verma 's contention is wholly unfounded but I do not propose to express an opinion on that question in the present case. Before I conclude, I must say that I feel extremely unhappy that the circumstances should have taken the turn that they did and that the reference to this Court by the President should have been rendered necessary. With a little more tact, restraint and consideration for others. the situation that has arisen could have been avoided. I feel no doubt that Beg and Sahgal JJ. would have dismissed the petition of March 19, 1964 after they had possession of the full facts. I regret that instead of showing that restraint which the occasion called for, particularly as the order of imprisonment challenged was expressly stated to have been passed by a body of the stature of the Assembly for contempt shown to it, a precipitate action was taken. No doubt there was not much time for waiting but Keshav Singh could not force the hands of the Court by coming at the last moment. The result of the order of the Hon 'ble Judges was no interfere with a perfectly legitimate action of the Assembly in, a case where interference was not justifiable and was certainly avoidable. On the other hand, the Assembly could have also avoided the crisis by practising restraint and not starting proceedings against the Judges at once. It might have kept in mind that the Judges had difficult duties to perform, that often they had to act on imperfect materials, and errors were, therefore, possible. It could have realised that when it placed the facts before the Judges, its point of view would have been appreciated and appropriate orders 541 made to undo what had been done in the absence of full mate rials. Such an action of the Assembly would have enhanced its stature and prestige and helped a harmonious working of the different organs of the State. I wish to add that I am not one of those who feel that a Legislative Assembly cannot be trusted with an absolute power of committing for contempt. The Legislatures have by the Constitution been expressly entrusted with much more important things. During the fourteen years that the Constitution has been in operation, the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. I would point out that though article 211 is not enforceable, the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. We must not lose faith in our people, we must not think that the Legislatures would misuse the powers given to them by the Constitution or that safety lay only in judicial correction. Such correction may produce friction and cause more harm than good. In a modem State it is often necessary for the good of the country that parallel powers should exist in different authorities. It is not inevitable that such powers will clash. It would be defeatism to take the view that in our country men would not be available to work these powers smoothly and in the best interests of the people and without producing friction. I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the State amicably, wisely, courageously and in the spirit in which the makers of the Constitution expected them to act.	The Legislative Assembly of the State of Uttar Pradesh committed one Keshav Singh,who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt. While undergoing imprisonment for the committal, Keshav Singh through his Advocate moved a petition under article 226 of the Constitution and section 491 of the Code of Criminal Pro cedure, challenging his committal as being in breach of big fundamental rights; he also prayed for interim bail. The High Court (Lucknow Bench) gave notice to the Government Counsel who accepted it on behalf of all the respondents including the Legislative Assembly. At the time fixed for the hearing of the bail application the Government Counsel did not appear. Beg and Saghal JJ. who heard the application ordered that Keshav Singh be released on bail pending the decision of his petition under article 226. The Legislative Assembly found that Keshav Singh and his Advocate in moving the High Court, and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the Assembly, and passed a resolution that all of them be produced before it in custody. The Judges and the Advocate thereupon filed writ petitions before the High Court at Allahabad and a Full Bench of the High Court admitted their petitions and ordered the stay of the execution of the Assembly 's resolution against them. The Assembly then passed a clarificatory resolution which modified its earlier stand. Instead of being produced in custody, the Judges and the Advocate were asked to appear before the House and offer their explanation. At this stage the President of India made a Reference under article 143(1) of the Constitution in which the whole dispute as to the constitutional relationship between the High Court and the State Legislative including the question whether on the facts of the case Keshav Singh 414 his Advocate, and the two Judges, by their respective acts, were guilt of contempt of the State Legislature, was referred,. , to the Supreme Court for its opinion and report. At the hearing of the Reference a preliminary objection as to the competency of the Reference was raised on behalf of the Advocate General of Bihar, on the ground that it did not relate to any, of the matters covered by the President 's powers and duties under the Constitution. It was also urged, that even if the Reference was competent, the Court. should not answer it as it not obliged "to do so, and the answers given by,it would not help) the President in solving any of the difficulties with which ' he might be faced in discharging his duties. The Court did not ' accept these contentions and proceeded to hear the parties which fell,broadly,into two groups those supporting the Assembly and those supporting the High Court. On behalf of,the,Assembly it was urged that by 194(3) of the Constitution all the power and immunities of the House of Commons of the United Kingdom on,. was I the sole judge 'of its privileges and the Courts had no jurisdiction to interfere with their exercise. In the alternative , it was contended that Courts in England never interfered virtue of article privileges with a committal by the House of Commons for contempt when the committal was by a general warrant, I.e., a warrant which did not state the facts constituting the contempt, and, therefore Courts in India were also precluded from examining the legality of the general warrants of, the State Legislatures. The proceedings in the High Court in the present case were, therefore, in contempt of the legislature. Those supporting the stand taken by the High Court urged that the Legislature received the powers of the House of Commons subject to provisions of the Constitution and to the fundamental rights, that the power to commit by general warrant was not one of the privileges of the House of Commons, that by virtue of Articles 226 and 32, "the citizen had the right to move the Courts when his fundamental rights were contravened, and that because of the provisions in article 211, the Legislature was precluded from taking any action against the Judges. HELD : (Per P. B. Gajendragadkar C. J., K. Subba Rao, K. N. Wanchoo ' M. Hidayatullah, J. Shah and N. jj.)The terms of article 143(1) are very wide and all that they require is that the President should be satisfied that the questions to be referred are ' of such a nature and of such public imp that it would be expedient to obtain the Supreme Court opinion on them. The President 's order making the present Reference showed that he was so satisfied, and therefore the Reference was competent. The argument that a Reference "under article 143(1) could only be on matters directly 'related to the President 's powers and duties under the Constitution was misconceived [431 E F] 432 E F]. Earlier References made by the President under article 143(1) showed no uniform pattern and that was consistent with the broad and wide words used in article 143(1). [433 C D]. In re : The ; , , In re: The Kerala Education Bill, 1957, [1959] S.C.R. 995, In re: Berubari Union & Exchange of Enclaves, and In re: Sea Customs Act, [1964] 3S.C.R. 787, referred to. It is not obligatory on the Supreme Court to answer a Reference under article 143(1) the word used in that Article being 'may, in contrast to the word 'shall ' used in article 143(2). Refusal to make a report 415 answering the questions referred would however be justified only for sufficient and satisfactory reasons e.g., the questions referred being of a purely socio economic or political character with no constitutional significance at all. The present Reference raised questions of grave constitutional importance and the answers given by the Court could help the President to advise the Union and State Governments to take suitable legislative or executive action 1 It was therefore the duty of; the court to answer it. [434 B D; 433 G H]. The advisory opinion rendered by the Court in the present Reference proceedings was not adjudication properly so called, and would bind no parties as such. [446 H; 447 A]. (ii) The State Legislatures in India. could not by virtue of article 194(3) claim to be the sole of their powers and privileges to the exclusion of the courts. Their powers and privileges were to be found in article 194(3) alone and nowhere else, and the power to interpret that Article lay under the scheme of the Indian Constitution, exclusively with the Judiciary of this country. (Scheme of the Constitution dis cussed). [444 G H; 446 G H" It was not the intention of the Constitution to perpetuate in India the 'dualism ' that rudely disturbed public life in England during the 16th, 17th and 18th centuries. The Constitution makers were aware of the several unhappy situations that arose there as a result of the conflict between the Judicature and the Houses of Parliament, and the provisions of articles 226, 32, 208, 212(1) and 211 (examined by the Court) showed that the intention was ' to avoid such a conflict in this country. [454 A B; 455 C E]. Article 211 which provides that the Legislatures could not discuss the conduct of the Judge in the discharge of his duties, was mandatory. [457 G H]. State of U. P. vs Manbodhan Lal Srivastava, [1958] S.C.R. 533 and Montreal Street Railway Company vs Nornwndin, L. R. ; , referred to. (iii) Although article 194(3) has not been made expressly subject to the provisions of the Constitution, it would be unreasonable in construing it to ignore the other provisions, if for valid reasons they were found to be relevant and applicable. Therefore wherever it appeared that there was a conflict between the provisions of article 194(3) and the provisions relating to fundamental rights, an attempt had to be made to resolve the said conflict by the adoption of the rule of harmonious construction as was done in Sharma Is case. [443 C E]. Pandit M. section M. Sharma vs Shri Sri Krishna Sinha & Others, [1959] Supp. 1 S.C.R. 806. (iv) In Sharma 's case a majority of this Court held, in terms, that article 21 was applicable to the contents of article 194(3) though article 19(1) was not. The minority view was that article 194(3) was subject to all the fundamental rights. [451 B C]. The majority in Sharma 's case cannot be said to have held that article 194(3) was independent of all the fundamental rights for the simple reason that it was held that article 21 was applicable, although on the facts of the case its provisions were found not to have been contravened. The petitioner in that case had not raised at all the general issue as to the applicability and relevance to article 194(3) of all the fundamental rights in Part 111, and therefore it was unnecessary for the Court to discuss and decide that general issue. His claim was based on the applic 416 ability of two Articles only i.e., Articles 21 and 19(1) (a). The Court A held that the former was applicable and the latter was not. This must therefore be taken to have been settled in Sharma 's case. [451 C F]. But Sharma 's case cannot be said to have settled the issue whether article 22(2) was applicable to article 194(3) or not. [Observations of the majority therein as to the correctness of the decision in Freddy 's case which was decided on the basis that Art,. 22(2) was applicable, held to be obiter]. [452 D E]. Pandit M. section M. Sharma vs Shri Sri Krishna Sinha & Others, [1959] Supp. 1 S.C.R. 806 and Gunupati Keshavram Reddy vs Nafisul Hasaan and the State of U.P., A.I.R. 1954 S.C. 636, discussed. (v) The view taken in Sharma 's case that the laws defining the powers and privileges of the legislatures under the first part of article 194(3) would be subject to article 13 and therefore to the fundamental rights, did not require reconsideration. [453 G]. Anantha Krishnan vs State of Madras, A.I.R. 1952 Mad. 395, considered. (vi) The first part of article 194(3) empowers the State Legislatures to define by law their own powers, privileges and immunities. The second part of the Article says that till they define their powers etc. in the above manner, their powers, privileges and immunities will be those of the British House of Commons. The second part was obviously in tended to confer for the interim period till laws were made under the first part, those incidental privileges and immunities which every Legislature must possess in order that it may be able to function effectively. [442 C E]. The powers of the House of Commons conferred by this clause are those which were still in existence at the commencement of the Constitution i.e., 26th January, 1950 and not those which had fallen into desuetude or the claim in respect of which had been given up. Further, only those powers can be deemed to have been conferred which were not only claimed by the House of Commons but also recognised by the British Courts. [442 F H]. (vii) The claim that all the powers of the British House of Commons became vested in the Indian Legislatures by virtue of article 194(3) cannot be accepted in its entirety for there are many powers of the House of Commons such as right of access to the sovereign, passing acts of attainder, impeachment, determining its own Constitution etc.which cannot be possibly exercised by the Indian Legislatures. [448 D G]. May 's Parliamentary Practice, 16th Edn. p. 86, referred to. (viii) article 194(3) did not confer on the Indian State Legislatures the right to commit for contempt by a general warrant which could not be examined for its validity by courts in habeas corpus proceedings. The right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings, was based on the con sideration that the House of Commons was in the position of a superior court of record and had the right like other superior courts of record to issue a general warrant for the commitment of persons found guilty of contempt. There was a convention in England whereby the general warrants committing for contempt issued by a superior court of record were not examined by other courts. It was on that ground and not on the F ground of privilege that the general warrants issued by the House of Commons were treated as beyond scrutiny by the courts. [482 B D 496 F]. 417 May 's Parliamentary Practice, 16th Edn. relied on. Ashby vs White, L.J. (1701 05) 714, Earl of Shaftesbury 's case, , Bradlaugh vs Gossett, L.R. XII Q.B.D. 271, 12 State Tr.122, Sir Francis Burdett, Abbott, 104 E.R. 501, Stockdale vs Hansard, , Ashby vs White and Others, ; , R. vs Paty & others; , , Murray 's case; , , Brass Crosby, , Burdett vs Abbott 3 E . R. 1289, Sheriff of Middlesex; , and Howard vs Gossett, ; , discussed and relied on. Bradlaugh vs Gossett, L.R. XII Q.B.D. 271, held not applicable. Speaker of the Legislative Assembly of Victoria vs Hugh Glass, (1869 71) III L.R., P.C. 560, Fielding and Others vs Thomas, , The Queen vs Richards, ; and Dill vs ; , not followed. Observations of Gwyer C.J., in Central Provinces and Berar Act No. XIV of 1938 to the effect that decisions in respect of other Constitutions could not be safely applied even when the Provisions interpreted are similar, relied on. Observations of Parker J. in re: Hunt 's case [1959] 1 Q.B.D. 678, referred to as indicating that even in regard to a commitment for contempt by a superior court of record, the court exercising its jurisdiction over a petition filed for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the warrant for commitment was general or unspeaking. The Indian State Legislatures were not at any time in their history, either under the Constitution Act. 1935, or under the Indian Independence Act, 1947, intended to be courts of record. The legal fiction in article 194(3) could not transfer the history of England to India and confer on the Indian State Legislatures the status of superior courts of record. Thus the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior court of record, was absent in their case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Common ,, by agreement, was deemed to possess, became vested in the Indian Legislatures. On this view of the matter the claim made by the Uttar Pradesh Assembly had to be rejected. [492 A B]. (ix) Even if the power to commit by non examinable general warrant were treated as forming an integral part of the privileges of the House of Commons it would not follow that the Indian State Legislatures could exercise that power by virtue of article 194(3). [495 H]. The very existence of the powers of the Courts under article 226 and 32 necessarily implies a right in the citizen to approach the High Court or the Supreme Court for the protection of his fundamental rights. (The present dispute was really between a citizen and the Legislature and not one between the High Court and the Legislature). [494 A B]. If a citizen moved this court and complained that his fundamental right under article 21 [held to be applicable to article 194(3) in Sharma 's case] or any other applicable right, bad been contravened, it would plainly be the duty of this Court to examine the merits of the said contention. It would be no answer in such a case to say that the warrant issued against the citizen was a general warrant and a general warrant must stop all further judicial enquiry and scrutiny. The impact of the 418 fundamental right conferred on Indian citizen by article 32 on the construction of the latter part of article 194(3) was decisively against the view that a power or privilege could be claimed by the House though it may be inconsistent with article 21. In this connection it was relevant to recall that the rules for regulating the procedure of the House were subject to the provision of the Constitution under article 208(1). [493 D E]. Observations of Simonds J., in In re : Parliamentary Privileges Act, 1770; , and Resolution of the House of Lords, C.J. 1702 04, pp. 555, 560, (Cited in May 16th Edn. p. 47), referred to. It would be strange if the House which was incompetent because of article 21 1 to discuss the conduct of a Judge in the discharge of his duties, should have the power to summon him in custody for alleged contempt committed in discharge of his duties. If the claim of the House were upheld it would mean that the House could issue a general warrant against a Judge and no judicial,scrutiny,could be held in respect of the validity of such a warrant. This would Put the basic concept of judicial independence into grave jeopardy. [493 E H]. It 'was also ' doubtful whether the power to issue a general up spcaking warrant was consistent with section 554(2)(b) and section 555 of the Code of Criminal Procedure [496 E F]. Section 30 of the , confers on all Advocates, the statutory right to practice in all courts, including the Supreme Court, before any Tribunal or person legally authorised to take evidence, and before any other authority or person before whom such Advocate is by or under any,law for the time being in force entitled to practice. Section 14 of the Bar Councils Act recognises a similar right. Just as the rights of the Judicature to deal with matters before them under article 226 or article 32 cannot be subjected to the powers and privileges of the House under article 194(3), so the rights of the citizen to move the Judicature and the right of the Advocates to assist that process must remain uncontrolled by article 194(3). That is one integrated scheme for protecting the fundamental rights and for sustaining the rule of law in this country. Therefore the right to commit by a conclusive general warrant which the State Assembly claimed to be an integral part of its powers or privileges was inconsistent with the material provisions of the Constitution and could not be deemed to have been included under the latter part of article 194(3). [495 E H]. The power to commit by general warrant was moreover not essential for the effective functioning of a House of Legislature. The American Congress had been functioning effectively without such power. [497 B E]. In India, there are 14 State Legislatures in addition to the Houses of Parliament. If the power claimed by the U.P. Assembly were conceded it is not difficult to imagine that its exercise may lead to anomalous situations as when a member of one Legislature is committed for contempt by a general warrant issued by another Legislature on account of a speech made by him in his own Legislature. [497 E F]. (x) It was open to Keshav Singh in his petition under article 226 to implead the, House on the ground that his commitment was based on. the order passed by the House, and in that sense the House was responsible for, and had control over his commitment. [496 B C]. The King vs The Earl of Crewe Ex parte Sekgome. [1910] 2 K.B.D. 576 and The King vs Secretary of State for Home Affairs Ex parte O 'brien, [1923] 2 K.B.D. 361, referred to. 419 (xi) Although in England parties who stand committed for contempt by the house of Commons are not admitted to bail by courts, the position in India is different. If article 226 confers jurisdiction on the court to deal with the validity of the order of commitment even though the commitment has been ordered by the House, it follows that the court has jurisdiction to make an interim order in such proceedings. [498 F H] State of Orissa vs Madan Gopal Rungla and others, [1952] S.C.R. 28 and Maxwell on Interpretation of Statutes, 11th Edn. p. 350, relied on. Lala Jairam Dav & others and King Emperor, 72 I.A. 120, held inapplicable. (xii) On the facts of the case the High Court was competent to entertain the petition of Keshav Singh and to grant him bail pending, disposal of his petition. There was no contempt of the U.P. Assembly committed by Keshav Singh or his Advocate in moving the application under article 226, or by the High Court in entertaining the said petition and granting bail. It was not competent for the Legislative Assembly to direct the production of the two Hon 'ble Judges and the Advocate before it in custody or to call for their explanation for their conduct. It was competent for the Full Bench of the Allahabad High Court to entertain and deal with the petitions of the said two Hon 'ble Judges and ,the Advocate, and to pass interim orders restraining the Speaker of the U.P. Assembly and other respondents to the said petitions from implementing the aforesaid direction of the Assembly. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner (who is not a member of the Legislature) or issuing any process against the petitioner for its contempt (the alleged contempt having been committed outside the four walls of the House), or for the infringement of its privileges and immunities, or who passes any order on such petition, does not commit any contempt of the said Legislature, and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. [502 A; 503 C]. (xiii) It is necessary to remember that the status, dignity and importance of the two institutions, the Legislature and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two bodies as well as the executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the ;three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this Country. [447 D E]. (xiv) The power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and stat of their office is to deserve respect from the public at large by them quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislature. [501 F G]. 420 Observations of Lord Atkin in Andre Paul vs Attorney General of Trinidad, A.I.R.1936 P.C. 141, referred to. Per Sarkar J. (i) It is undoubtedly for the Courts to interpret the Constitution and therefore article 194(3). It follows that when a question arises in this Country as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution, that question must be settled, and settled only by the courts of law. There is no scope of the dreaded 'dualism ' appearing here, that is, courts entering into a controversy with a House of a Legislature as to what its privileges are. [509 A B]. (ii) The words appearing in article 194(3) are "the powers, privileges and immunities of a House. shall be those of the House of Commons. " One cannot imagine more plain language than this. That language can only have one meaning and that is that it was intended to confer on the State legislatures the powers, privileges and immunities which the House of Commons in England had. There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of division of powers. [511 A B]. Bradlaugh vs Gossett, (1884) 12 Q.B.D.271, Burdett vs Abbott. ; , In re : Delhi Laws, [1951] S.C.R. 747. M.S.M. Sharma vs Shri Sri Krishna Sinha. [1959] Supp. 1 S.C.R. 806, Speaker of the Legislative Assembly of Victoria vs Glass Queen vs Richards; , , Queen vs Richards, ; and Fielding vs Thomas, [1896] A.C. 660, referred to. (iii) The power to commit by a general warrant with the consequent deprivation of the jurisdiction of the courts was, one of the privileges of the House of Commons. That privilege was possessed by the U.P. Assembly by virtue of article 194(3) of the Constitution. [524 C D]. There is no authority to show that the House of Commons possessed the powers to commit by a general warrant because it was a superior court of record. Neither the history of the House, nor the judgments in English cases support that contention. The courts only treated the House as entitled to the same respect as a superior court. They did not say that the House was a superior court. [513 B C, 522 B]. May 's Parliamentary Practice, 16th Edn. Potter 's Outlines of Legal History, (1958 Edn.) Anson 's Law of the Constitution. 6th Edn. Vol. 1, referred to. Bradlaugh vs Gossett, Burdett vs Abbott, 5 Dow 165, Sheriff of Middlesex, , Stockdale vs Hansard, (1839) 9 AD & El and Howard vs Gossett, relied on. It is fallacious to say that the right to commit by general warrant possessed by the House of Commons springs from some rule of comity of courts, or of presumptive evidence, or from an agreement between courts of law and the House, or lastly, from some concessions made by the former to the latter. [522 E F]. All privileges of the House of Commons are based on law. That law is known as Lex Parliamenti. That law like any other law is a law of the land which courts are entitled to administer. [522 F G]. It is not for us to start new ideas about privileges of the House of Commons, ideas which had not ever been imagined in England. Researches into the period when these privileges were taking shape can afford no answer to their contents and nature in 1950. [523 G H; 524 B C]. 421 Writers of undoubted authority as well as certain recent decisions of the Judicial Committee have treated the power to commit by a conclusive general warrant as a matter of privilege of the House and not as a right possessed by it as a superior court. [515 G H]. May 's Parliamentary Practice, 16th Edn. Cases on Constitutional Law by Keir and Lawson, Halsbury 's Law 's of England, Vol. 28, 467, Dicey 's Constitutional Law, 10th Edn., referred to. Speaker of the Legislative Assembly of Victoria vs Glass, Fielding vs Thomas, and Sheriff of Middlesex, relied on. (iv) The decisions of the Judicial Committee may not be binding on Indian courts but they have high persuasive value, unless shown to be wrong. The question is whether the House of Commons had a certain privilege. If judicial notice of the privilege has to be taken, then under section 57 of the Evidence Act, a reference to the authorised law reports of England would be legitimate, and if the existence of the privilege has to be decided as a matter of foreign law, then again under section 38 of that Act a reference to these reports would be justified. And since they contain decisions of one of the highest courts in England, we are not entitled to say that what they call a privilege of the House of Commons of their country is not a privilege, unless some equally high authority taking the contrary view is forthcoming. [517 D F]. (v) It cannot be said that the privilege in question can be exercised by the Indian State Legislatures only subject to the fundamental rights of a citizen guaranteed by the Constitution. In Sharma 's case this court laid down that the privileges of the House of Commons which were conferred on the House of a State Legislature by article 194(3) take precedence over fundamental rights. This decision was correct and did not require reconsideration. [524 E F; 525 B C, F]. In re : Delhi Laws Act, 1950; , , referred to. It was not held in Sharma 's case that article 21 takes precedence over the privileges in article 194(3). Das C.J. no doubt said that there was no violation of article 21 in that case because the deprivation of liberty was according to procedure established by law. But that was only an alter native reason for he could have held as he did in the case of article 19(1)(a) that article 21 being a general provision and article 194(3) being special, the former must yield to the latter. [531 E F; 532 B E]. Another reason for saying that Das C.J. did not hold that Art 21 took precedence over the privilege to commit by a general warrant is the fact that he held that Reddy 's case was wrongly decided. That case had held that article 22 had precedence over the privilege of committal. If article 22 did not have precedence, as Das C.J. must have held since he did not accept the correctness of Reddy 's case, no more could he have held that article 21 would have precedence over the privilege to commit for contempt. [532 E F]. (vi) The majority in Sharma 's case no doubt said without discussion that the law under article 194(3) would be subject to all fundamental rights, but that is so only because article 13 says so. [528 C D]. Article 13 makes a law bad if it conflicts with fundamental rights. it cannot be said that since article 13 might make laws made under cl. (3) of article 194 void, the privileges conferred by the second part must also be void. Article 13 has no application to the provisions of the Constitution itself. It governs only the laws made by a State Legislature which article 194(3) is not. The fact that in cl. (1) of article 194 the words 422 'subject to the provisions of the Constitution ' occur, while they are omitted from cl. (3) is a strong indication that the latter clause was not intended to be so subject. [528 E H). (vii) When there is a conflict between a privilege conferred on a House by the second part of article 194(3) and a fundamental right that conflict has to be resolved as in Sharma 's case by harmonising the two provisions. Harmonious construction means that both the provisions should be given maximum effect without one of them wiping out the other. In the instant case the conflict was between the privilege of the House to commit a person for contempt without that committal being liable to be examined by a court of law, and the personal liberty of a citizen guaranteed by article 21 and the right to move the courts in enforcement of that right under article 32 or article 226. If the right to move the courts in enforcement of the fundamental right is given precedence, the privilege which provides that if a House commits a person by a general warrant that committal would not be reviewed by courts of law, will lose all its effect and it would be as if the privilege had not been granted to a House by the second part of article 194(3). This was not harmonious construction. That being so, it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal. [533 G H, 534 A C]. Observation of Lord Ellenborough C. J. in Burdett vs Abbott, referred to for possible exceptions to the rule. [534 C D]. (viii) The Lucknow Bench was not apprised of the fact that the detention of Keshav Singh was under a general warrant, and till so apprised it had full competence to deal with the petition under article 226. It was not necessary in the present reference to decide the question whether in a habeas corpus petition where the commitment is for contempt the law permits release on bail, because the Reference was not meant to seek an answer to that question. No contempt was committed by the Hon 'ble Judges or B. Solomon or Keshav Singh for the respective parts taken by them in connection with the petition as it did not appear that any of those persons knew that the commitment was under a general warrant. Since they were not guilty, it was not competent for the Assembly to order their production in custody. Strictly speaking, the question as to bringing them in custody before the House did not arise on the facts of the case as the Assembly had modified its resolution in that regard. The Assembly was competent to ask for explanation from the two Judges and B. Solomon. As it had power to cormorant for contempt it necessarily had power to ascertain facts concerning the contempt. The Full Bench was competent to entertain the petition of the two Judges and B. Solomon Advocate if on the facts of the case they could not be said to be guilty. It would follow that the Full Bench had the power to pass the interim orders it did. On the facts of the case, a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes I any order on such a petition does not commit contempt of the said Legislature, and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. [534 D; 537 D]. (ix) During the fourteen years that the Constitution has been in operation, the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. Though article 211 is 423 not enforceable the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. We must not lose faith in our people, must not think that the Legislatures Would misuse the powers given to them by the Constitution or that safety lay in judicial correction. Such correction may do more harm than good. In a modern State it is often necessary for the good of the country that parallel powers shoul exist in different authorities. It is not inevitable that such powers will clash. [541 C E].
Civil Appeal No. 1537 of 1970. Appeal by special leave from the judgment and order dated the 10/30th June, 1969 of the Bombay High Court, Nagpur Bench, Nagpur in Appeal No. 90 of 1962. 1178 U. R. Lalit and A. G. Ratnaparkhi, for the Appellant. section section Khanduja for the Respondent. The respondent filed a suit in the Court of the Second Joint Civil Judge, Amrawati alleging that the house situated near Saraf Bazar in Amrawati had been purchased by her in 1950 for Rs. 4,000 and thereafter improvements had been affected by her to the property. Being in need of money, she entered into an agreement with the appellant for a loan of Rs. 2,000 and it was decided that simultaneously she should execute a nominal document of sale and a rent note. These documents were executed on January 7, 1953. She alleged that the documents were never intended to be acted upon, and that the rent paid by her represented in fact interest at 18% on the loan. She continued in possession of the house property throughout and, it is said, carried on repairs from time to time. It was stated that the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent. As two suits had resulted in decrees, she considered it necessary to file the present suit for a declaration that she was, and continued to be, owner of the house property. In defence, the appellant maintained that the sale deed represented a genuine, transaction, and ownership of the house property had passed to the appellant. It was pleaded that the decrees passed by the Court of Small Causes operated as res judicata barring the respondent from pleading that the sale deed was merely a nominal transaction. Reliance was also placed on section 92 of the Indian Evidence Act. The trial court held that the sale deed was never intended to be acted upon and decreed the suit. The appellant appealed to the District Court, Amravati, but the learned District Judge did not accept the case that a sale had taken place. He held, however, that the transaction between the parties constituted a mortgage. He modified the trial court decree to conform to that finding. The High Court of Bombay, in second appeal, did not agree with the finding of the lower appellate court that the transaction was a mortgage and affirmed the findings of the trial court that the sale deed and rent note were sham documents, that the decrees of the 1179 Court of Small Causes did not operate as res judicata and that section 92 of the Indian Evidence Act did not prevent the respondent from establishing the true nature of the transaction. Accordingly, the High Court set aside the decree of the lower appellate court and resorted that of the trial court. When this appeal was heard by us, it appeared that the parties may settle the dispute by negotiated compromise. It seems, however, that no compromise has been possible. Accordingly, we proceed to dispose of the appeal on its merits. Two points have been raised before us. The appellant urges that the Small Causes Court decrees, in view of the general principles of res judicata, precluded the trial of the question whether the sale transaction was a genuine transaction. The other point concerns the operation of section 92 of the Evidence Act. The successive suits were filed by the appellant against the respondent in the Court of Small Causes for recovery of arrears of rent. In each suit the appellant contended that she was owner of the property and the respondent was her tenant. The tenancy was alleged on the basis of the document dated January 7, 1953 which on its terms purported to be a sale deed by the respondent in favour of the appellant. The respondent resisted the suits. The court decreed the suits on the finding that the document was a sale deed, and therefore the respondent was not the owner of the property but merely a tenant of the appellant. The question is whether this finding operates as res judicata in the instant suit. The High Court repelled the plea of res judicata on the ground that section 11 of the Code of Civil Procedure governed the case, and that as a Court of Small Causes is not competent to try a suit for a declaration of title to immovable property, the court which passed the decrees relied on by the appellant was not competent to try the present suit and therefore an imperative condition of section 11 was not satisfied. It is contended before us on behalf of the appellant that the High Court erred in applying the statutory provisions of section 11 of the Code, and should have invoked instead the general principles of res judicata. On that, it is submitted, all that was necessary to find was whether the Court of Small Causes was competent to try the two earlier suits and decide the issues arising therein. We have been referred to Gulabchand Chhotalal Parikh v, State of Bombay where 1180 this Court has taken the view that the provisions of section 11 of the Code are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and that on the general principles of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary, it was said, "that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter". The observations were made in considering the question whether decisions on matters in controversy in writ petitions under Article 32 or Article 226 of the Constitution could operate as res judicata in subsequent regular suits on the same matters in controversy between the same parties. A number of other cases have been cited on behalf of the appellant in support of the plea of res judicata. We have considered them and we do not think that they help the appellant. In Muhammad Abdul Ghafur Khan vs Gokul Prasad and others the Allahabad High Court limited itself to observing that a Court of Small Causes possessed a discretion on whether to return the plaint under section 23, Provincial Small Cause Courts Act on a finding that the relief claimed depended on proof of title. The same High Court in Madan Kishor and Another vs Mahabir Prasad and others merely observed that it was for the Court of Small Causes to decide under section 23 of the Provincial Small Cause Courts Act whether a question of title was involved in the suit and on finding so it was open to it to return the plaint. That was also the view expressed by it in Ram Dayal Sonar vs Sukh Mangat Kalwat. So also in Ganga Prasad vs Nandu Ram, the Patna High Court said that the Court of Small Causes had power under section 23 to return the plaint where it was of opinion that the question of title raised was so intricate that it should not be decided summarily. To the same effect was the view expressed by the Lahore High Court in Ganesh Das vs Feroze Din. 1181 In Puttangowda Mallangowda Patil vs Nikanth Kalo Deshpande, the Bombay High Court declared that a Court of Small Causes could render a finding on an issue as to title to immovable property but only in a suit which did not ask for that relief and merely for payment of a sum of money. Our attention was drawn to Asgarali Roshanalli and another vs Kayumalli Ibrahimji, but we find nothing there of assistance to the appellant. Reliance was placed on the decision of the Allahabad High Court in Lala Jageshwar vs Shyam Behari Lal. There a learned Single Judge took the view that as a Court of Small Causes is a Court of exclusive jurisdiction the restrictive conditions imposed by s 11 of the Code of Civil Procedure requiring "two fold competency" of the Court whose decision is to operate as res judicata cannot be invoked. It was sufficient, he observed, that the decision had been rendered by a court of competent jurisdiction and it was not necessary that that court should also be competent to decide the subsequent suit. The judgment was brought in appeal to this Court but while disposing of the appeal, Shyam Behari Lal vs Lala Jageshwar Prasad, this Court declined to decide whether a Court of Small Causes could be regarded as a Court of exclusive jurisdiction. We find, however, that the view taken by the High Court in Lala Jageshwar Prasad (supra) was expressly overruled by a Full Bench of the High Court in Manzurul Haq and another vs Hakim Mohsin Ali and it was laid down that a Court of Small Causes could be described as a court of "preferential jurisdiction" but not as court of "exclusive jurisdiction". It was also held by the Full Bench that a decision rendered by a Court of Small Causes in a suit for arrears of rent would not operate as res judicata in a subsequent suit filed in the Court of the Munsif for recovery of arrears of rent for a different period and for ejectment. That the principle of res judicata could not be availed of where a decision given by a Court of Small Causes was relied on in a subsequent regular civil suit was the view also taken by the Punjab High Court in Pateshwar Parshad Singh vs A. section Gilani. It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot 1182 be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. Poholi Mullick vs Fukeer Chunder Patnaik, Chet Ram and others vs Ganga, Anwar Ali vs Nur Ul Haq and Another, Khandu valad Keru vs Tatia valad Vithoba. See also Mohd. Yusuf and another vs Abdul Wahid and S.A.A. Annamallai Chettiar vs Molaiyan and others. Our attention has been drawn to Explanation VIII to section 11 in the Code of Civil Procedure recently inserted by the Code of Civil Procedure (Amendment) Act, 1976. Section 97(3) of the Amendment Act declares that the new provision applies to pending suits, proceedings, appeals and applications. In our opinion the Explanation can be of no assistance, because it operates only where an issue has been heard and finally decided in the earlier suit. Accordingly, we hold that the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata in the present suit. The next contention on behalf of the appellant is that sub s.(1) of section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the 1183 terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub section (1) of section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub section (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another vs Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail. In the result, the appeal is dismissed with costs. S.R. Appeal dismissed.	Being in need of money, respondent entered into an agreement with the appellant for a loan of Rs. 2,000 and it was decided that simultaneously she should execute a nominal document of sale and rent note, of her house situated near Sarafa Bazar in Amravati. These documents were executed on January 7, 1953. The respondent continued in the possession of the house property throughout and carried on repairs from time to time. Since the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent and the said suits had resulted in a decree, the respondent filed a suit for declaration that she was and continued to be owner of the house property. The documents executed on January 7, 1953, it was said, were never intended to be acted upon. In defence, the appellant maintained that the sale deed represented a genuine transaction, and ownership of the house property had passed to her. It was further pleaded that the decrees passed by the Court of Small Causes operated as res judicata barring the respondent from pleading that the sale deed was merely a nominal transaction. Reliance was also placed on section 92 of the Indian Evidence Act. Dismissing the appeal by special leave, the Court ^ HELD: 1:1. When a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. A question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. [H81 G 1182A C] 1177 1:2. Explanation VIII to section 11 of the Code of Civil Procedure operates only where an issue has been heard and finally decided in the earlier suit. [1182 D E] 1:3. In the instant case, the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata. [1182 E] Poholi Mullick vs Fukeer Chunder Patnaik, (1874) 22 Suth W.R. 349; Chet Ram and Others vs Ganga, 1886 Allahabad Weekly Notes; Anwar Ali vs Nur Ul Haq and Another, ; Khandu Valad Keru vs Tatia valad Vithoba, (1871) 8 Bombay H.C.R.A.C. 23(24) (DB); Mohd. Yusuf and another vs Abul Wahid, A.I.R. 1948 All. 296 and S.A.A. Annamalai Chettiar vs Molaiyan and others, A.I.R. 1970 Mad. 396, approved. Muhammad Abdul Ghafur Khan vs Gokul Prasad and others, A.I.R. 1914 All. 527; Gulabchand Chhotalal Parikh vs State of Bombay, ; Madan Kishor and Another vs Mahabir Prasad and others, A.I.R. 1929 All. 816; Ram Dayal Sonar vs Sukh Mangal Kalwar, A.I.R. 1937 All. 676; Ganga Prasad vs Nandu Ram, A.I.R. 1916 Patna 75; Ganesh Das vs Feroze Din, A.I.R. 1934 Lahore 355, Puttangowda Mallangowda Patil vs Nikanth Kalo Deshpande, XV Bombay Law Reporter 773; Asgarali Roshanalli and another vs Kayumalli Ibrahimji, A.I.R. 1956 Bombay 236: Lala Jageshwar Prasad vs Shyam Behari Lal, A.I.R. 1967 All. 125; Shyam Behari Lal vs Lala Jogeshwar Prasad, ; Manzural Haq and another vs Hakim Mohsin Ali, A.I.R. 1970 All. 604; Pateshwari Parshad Singh vs A. section Gilani, A.I.R. 1959 Punjab 420, referred to and dissented from. The bar imposed by sub section (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties. [1183 C F] Tyagaraja Mudaliyar and another vs Vedathanni, A.I.R. 1936 Privy Council 70, followed.
Appeal No.1865 of 1975. From the Judgment and Decree dated 7/10.2.1975 of the Gujarat High Court in First Appeal No. 291 of 1967. 566 A.S. Qureshi, N.K. Sahoo, P.H. Parekh, and Ms. Chetna Anand for he Appellant. Dushyant Dave, Mrs. Nandini Gore for Mrs. M. Karanjawa la, R. Karanjawala (N.P), Anip Sachthey and Rajesh for the Respondents. The plaintiffs Nos. 2 to 4 were Dumaldars of village Nalej of erstwhile State of Chhota Udepur (hereinafter referred to as the jagirdars). The jagirdars vide exhibit 58 dated 9.1.1954 sold all the teak trees in favour of plaintiff no.1 (hereinafter referred to as the contractor) for a sum of Rs.6,001/ and received a sum of Rs. 101/ as earnest money. By another agreement exhibit 59 dated 29th July, 1954, the jagirdars sold all the Mahuda trees in favour of the con tractor for a sum of Rs. 5001/and received sum of Rs. 600/ as earnest money. On 1st August, 1954 Bombay Merged Territo ries and Areas (Jagirs Abolition) Act, 1953 (hereinafter referred to as the 'Jagir Abolition Act ') was applied to village Nalej. The compensation in lieu of trees was not awarded to the Jagirdars as the same had already been sold by the Jagirdars in favour of the contractor. The contractor made an application to the Collector of Baroda under sou rashtra Felling of Trees Act for permission to cut the trees in question. The Collector forwarded the application to the Mamlatdar of Chhota Udepur who granted the permission vide order dated 25th September, 1961. The contractor then start ed cutting the trees in question. However, the Prant Offi cer, Chhota Udepur prevented the contractor from cutting the trees. The contractor then made representations to the Divisional Forest Officer and the Government. In reply the contractor was told that the Jagirdar had no right to the trees standing in the reserved forest area and in the waste land. Thereupon the contractor 's authorisation to cut the trees and his transit passes to transport the goods were withheld. The Government invited tenders for the sale of the trees already cut and sold the same on 30th July, 1962 for a sum of Rs.15786/ . The Government also sold other trees to other persons and realised from them some amounts. The Jagirdars and the contractor filed a suit against the Gov ernment of Gujarat and the Divisional Forest Officer, Chhota Udepur, District Baroda for rendition of account, for a declaration of the plaintiffs title of the trees in question and for a declaration of the right of the contractor to cut the trees in question and to remove the cut materials. 567 A declaration was also sought that the impugned action of the Government was illegal, ultra rites and unlawful and to give a direction to the Government to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor. It was also prayed that out of the sale proceeds of the cut materi als on 30th July, 1962 for Rs.15786/ an amount of Rs.1267.82 having paid by the Divisional Forest Officer, a decree for the balance of Rs.14518.18 may be passed against the Government. The Trial Court by judgment dated 31st March, 1967 partly decreed the suit. It was declared that the jagirdars were the full owners of the trees and as such the contractor had also become the full owner of the trees. It was also declared that the contractor was entitled to cut and remove these trees and the State of Gujarat, its officers, servants and agents were ordered to issue necessary permit, authori sation and transit passes to plaintiff no.1 (contractor) for removal of the trees. The state was also ordered to pay Rs.14518.18 together with proportionate costs and interest at 4% per annum on this amount from the date of decree till realisation. The State of Gujarat, its officers, servants and agents were also restrained by perpetual injunction not to interfere with the rights of ownership of the plaintiffs except in due course of law. Prayer for rendition of ac counts was dismissed. The State of Gujarat, aggrieved by the Judgment and decree of the Trial Court filed an appeal in the High Court. The Division Bench of the High Court allowed the appeal, set aside the decree passed by the Trial Court and dismissed the suit. The cross objections filed by the plaintiffs were also dismissed. It would be necessary to state some events which have a material bearing with the case. The Jagir Abolition Act came into force on 1.8.54 as already mentioned above. The Govern ment issued a notification dated 15th February, 1955 under Sec. 4 of the and constituted cer tain survey numbers of the village Nalej into a reserve forest. Thereafter another notification was issued under section 20 of the constituting survey No.102 alone into a reserve forest. It may be noted that in the present case we are concerned with the Teak and Mahuda trees standing on survey No.102 of village Nalej. Learned counsel appearing on behalf of the State of Gujarat had raised the following contentions before the High Court: 1. Under the Forest Rules of Chhota Udepur State, Chhota Udepur State had exercised rights over three kinds of forest 568 reserved, protected and open. These rights devolved upon the State of Gujarat. Therefore, the State of Gujarat can exercise those rights and issue under section 4 of the the impugned notification. Under the Forest Rules of Chhota Udepur State 21 kinds of trees including teak and mahuda trees were reserved trees and they were prohibited from being cut. The interest which Chhota Udepur State had in those trees de volved upon the State of Gujarat and, there fore, under Section 4 of the it was within the power and authori ty of the State of Gujarat to issue the im pugned notification. Under section 5 of the Jagir Abolition Act the soil vested in the Jagirdars and not the trees. Therefore, the jagirdars could not have sold away to the contractor the trees in question. Since the trees in question had vested in the State it was within the power and authority of the State to issue the im pugned notification. The agreement executed by the Jagirdars in favour of the contractor were not valid and, therefore, not enforceable at law. They did not confer any title upon the contractor. Alternatively, if the contractor had acquired any rights under the said agreements, his remedy lay in claiming compensation in respect of his rights which were hit by the impugned notification. The High Court dealt with the above four contentions in seriatim. While dealing with the first contention the High Court considered that the decision of the appeal largely turned upon the forest Rules of Chhota Udepur State. The High Court after considering the matter in detail held that survey No.102 of village Nalej was a reserved forest during the days of Chhota Udepur State. The High Court referred to the forest Rules of Chhota Udepur State in order to find out the position in relation to survey no.102 of Nalej. Schedule 'A ' of the Rules contained the detailed discription of areas which was declared as reserved forest. At serial No.11 Village Nalej has been mentioned amongst other villages. Columns 7 and 8 showed that an area of 250 acres and 14 gunthas of village Nalej was declared as reserved forest. No survey number of that area had been mentioned therein. According to the High Court this Entry in Schedule 'A ' lends support to the fact that there was one reserved forest admeasur 569 ing 290 acres and 14 gunthas in village Nalej of Chhota Udepur State. Survey No.102 of Village Nalej as a reserved forest was not mentioned but this was on account of the reason that Chhota Udepur State made its forest Rules in 1934 which were published in 1938 when the reserved forest area of village Nalejj did not bear any survey number. However, it was mentioned in the Rules that there was one reserved forest in village Nalej to the extent of 290 acres and 1.4 Gunthas. The plaintiffs themselves admitted in agreement exhibit 59 that survey No.102 was a reserved forest. It was then held that in respect of a reserved forest Jagirdars did not have the right to cultivate any land nor to cut any trees. The only right he had was a right to graze cattle and to remove some forest produce in accord ance with Regulations made by Chhota Udepur State in that behalf. The Jagirdar did not have any right to any trees situated in reserved forest. With the merger of Chhota Udepur State with the then State of Bombay the property belonging to Chhota Udepur State in the reserved forest devolved upon the State of Bombay and subsequently upon the State of Gujarat. The High Court thus accepted the first contention raised on behalf of the State of Gujarat. The High Court then considered the second contention and in this regard observed that Rule 4 of the Forest Rules of Chhota Udepur State contained the list of reserved trees. 21 kinds of trees had been listed as reserved trees which included the teak and Mahuda trees which formed the subject matter of the two transactions between the Jagirdars and the contractor. The High Court then held that the right to forest produce which Chhota Udepur State had in respect of such trees in the "open forest" devolved upon the State of Bombay, on merger of Chhota Udepur State with it and there after upon the State of Gujarat. It was thus held that the second contention raised on behalf of the State was right and the same was upheld. The High Court found no substance in the third conten tion and rejected the same. However, the High Court observed that in the light of the finding recorded on the second contention it was quite clear that the trees which vested in the Jagirdars vested in them subject to such right or inter est in them which the State had under the Forest Rules of Chhota Udepur State. In the 4th and last contention challenging the validi ty of the two agreements exhibits 58 and 59, the High Court observed that there are two aspects of this contention. The first aspect is that agreements exhibits 58 and 59 were compulsorily registerable and that since they were not registered, they did not convey any title to the contractor in respect of the 570 subject matter of the agreements. The High Court in this regard held that what was transferred was the standing timber and not any interest in soil. Therefore, the two agreements were not compulsorily registerable. The High Court then considered the second aspect of the 4th conten tion. It was argued on behalf of the State that all the survey numbers to which agreements exhibits 58 and 59 relat ed were waste lands and as such under section 8 of the Jagir Abolition Act they vested in the State. The High Court in this regard held that forest lands are not waste lands. Therefore, if they have not vested by virtue of the provi sions of section 8 of the Jagir Abolition Act in the State of Gujarat. The High Court in view of the findings recorded above on the first and second contentions in favour of the state, allowed the appeal and dismissed the suit filed by the plaintiffs. Learned counsel for the plaintiffs appellants raised altogether new line of argument before us. It was submitted that the appellants did not challenge the existence or the legality of the Chhota Udepur Forest Rules but their submis sion was that the said Rules did not apply to the facts and circumstances of this case. It has been contended that the aforesaid forest Rules, together with all other laws of Chhota Udepur State, stood repealed on 28.7.48 when the Indian States (Application of Laws) Order 1948 came into force. On and from 28.7.1948 the , and the Rules made thereunder became applicable. The two agreements were made on 9.1.1954 and 29.7.1954 long after the Chhota Udepur Forest Rules were repealed and before the issuance of the notification by the Government dated 12.5.55 declaring its intention to make a part of survey No. 102 of Nalej as reserved forest under Sec.4 of the . It has thus been submitted that so far as the impugned contracts are concerned the same are not adversely affected either by the Forest Rules of Chhota Udepur State or by the Notifica tion issued under section 4 of the . It has been contented that the High Court was wrong in holding that the impugued contracts dated 9.1.1954 and 29.7.1954 could not pass any right on the contractor as the same were hit by the provisions of Chhota Udepur State Forest Rules, when in fact those forests Rules had already been repealed. It was also argued that the High Court 's decision about reserved forests is based on surmises and so called admis sion in the contract exhibit 59. The words used in the plaint are "alleged jungle bhag" which does not amount to an admission that it is a reserved forest. In the agreement exhibit 59 the words used are "So called reserved forest" and subsequently in the same agreement the words used are "reserved Padtar (vacant)". It has thus been submitted that the earlier use of words 'so called ' is not repeated subse quently and as such it means that the plaintiffs had denied 571 the same to be reserved forest. As regards Entry No.11 in the Schedule to the Forest Rules of Chhota Udepur State, the High Court itself has observed that no survey number is mentioned. This itself goes to prove that survey No.102 was not intended to be covered by the said Entry No.11. Thus it was not proved that survey No.102 was a reserved forest. It was further argued that assuming that survey No.102 in village Nalej was a reserved forest under the Forest Rules of Chhota Udepur State, it ceased to be so from 28.7.48. It is an admitted position that the Notification under Section 4 of the was published on 12.5.55 and in case survey No.102 of village Nalej was already continuing as reserved forest under the Forest Rules of Chhota Udepur State, then there was no necessity at all of issuing a fresh Notification under Section 4 of the . The fact that such Notification was issued on 12th May, 1955 clearly goes to show that survey No.102 did not constitute reserved forest in between the period 28.7.48 to 12.5.55. We do not find any force in the above submission made on behalf of the appellants. So far as the legality of the Chhota Udepur State 's Forest Rules is concerned, it was nowhere challenged by the plaintiffs. In the written submis sions filed before us on behalf of the appellants the point made at 1.1 itself reads as under: "The appellants do not challenge the existence or the legality of the Chhota Udepur Forest Rules (hereinafter the Forest Rules). The appellants merely submit that those Rules do not apply to the facts and circumstances of this case". Apart from the above stand taken by the appellants themselves, Judgment of the High Court of Gujarat in Special Civil Application No. 404/61 State of Gujarat vs Kumar Shri Ranjit Singhji Bhavani Singhji, Shn C.M. 7halair Jagir Abolition Officer, Baroda and others decided on 22nd April, 1965 has been placed on record by the Learned counsel for the appellants. In the aforesaid judgment Shelat, C.J., and Bhagwati, J. (as he then was) have observed that in 1934, the State of Chhota Udepur promulgated amended Forest Rules under Notification of August 1, 1934. The Notification was issued under the signature of the Ruler himself. These Rules, therefore,. became and constituted the law of the State. The High Court in the impugned order before us has also placed reliance on such Rules. The High Court has rightly held that at serial No.11 an area of 290 acres and 14 gun thas of village Nalej was declared as reserved forest. No survey number on that area could have been mentioned because the reserved forest area of village Nalej did not bear any survey number at that time. However, it cannot disputed be that there 572 was one reserved forest in village Nalej admeasuring 290 acres and 14 gunthas and the plaintiffs themselves have admitted in the plaint that the trees in question were in the alleged jungle bhag. In the agreement exhibit 59 also the words used are "so called reserved forest". Thus apart from the above admissions, the entire case has been contest ed in the trial court as well as in the High Court on the assumption that the trees in question were standing on the area of reserved forest declared by the Chhota Udepur State. In case the plaintiffs wanted to show that the trees in question were not inside the reserved forest area they should have taken such stand in a clear manner and it .would have been very easy for them to succeed in the suit without going through all the various legal submissions made by the parties. Thus we see no reason to take a different view from the High Court and we affirm the finding of the High Court in this regard that the trees in question stood on the area which was declared as reserved forest under the Forest Rules framed by the Chhota Udepur State. In order to appreciate the other submission made by the learned counsel for the appellants we would refer to the Indian States (Application of Laws) order, 1948 (hereinafter referred to as 'Application of Laws order ' 1948).It would be necessary to reproduce Section 5 which repeals the enact ments in force in Indian States. Section 5: Repeal of enactments in force in Indian States: All enactments in force in the Province of Bombay and extended to any such State under paragraph 3 shall stand repealed: Provided that the appeal by this Order of any such enactments shall not affect the validity, invalidity, effect or consequence of any 'thing already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceed ing in respect thereof, of any release or discharge of or from any debt, penalty, obli gation, liability, claim or demand or any indemnity already granted, or the proof of any past act or thing; Nor shall the repeal by this order of any enactment affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemp tion, office or appointment, in so far as the same respectively is not in any way inconsist ent with any of the enactments extended under paragraph 3 of this order, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed; 573 Nor shall the repeal by this order of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force immediately before the date on which this order comes into force. There is no doubt that Chhota Udepur State, has been mentioned in Schedule 1 of the Application of Laws order and all enactments in force in Chhota Udepur stood repealed and the mentioned in Schedule 11 became applicable, but the proviso to section 5 clearly provides that the repeal by this order shall not affect any right, title, obligation or liability acquired, accrued or in curred. Thus the Jagirdars had already acquired accrued or incurred a liability in respect of the trees in question which were part of the reserved forest as declared under the Forest Rules of Chhota Udepur State. There is nothing on the record to show that the Jagirdars were cutting trees from the part of village Nalei which was declared reserved forest during the time of erstwhile Chhota Udepur State. Jagirdars could not have given a better title to the contractot in respect of the trees, which the jagirdars themselves did not possess. The repealing of the Forest Rules of Chhota Udepur State on 28th July, 1948 did not furnish any additional or increased rights to the Jagirdars which they did not have before the merger of Chhota Udepur State. It has been vehemently contended on behalf of the appel lants that it was a case of full proprietorship right in the Jagir and the Jagirdars had full and complete rights of ownership in the soil, as well as the trees. Reliance is placed on the definition of proprietary jagir under Clause XVIII as conternplated in section 2 of the Jagir Abolition Act which reads as under: "Proprietary Jagir" means a Jagir in respect of which the Jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil". It has been contended that the Jagirdars in the present case had not only a right over the trees but also interest in the soil and as such they had full right to sell the trees to the contractor. It was submitted that even if there were any restrictions on cutting of trees so long as forest rules of Chhota Udepur State remained in force that restric tion was removed on 28.7.48 when such rules were repealed by the Application of Laws order. After the forest rules of Chhota Udepur State were repealed, the Jagirdars got full right to alienate the trees as such right was inherent in the right of proprietary Jagir. It was also submitted that the Government of Bombay had itself taken policy decision that all contracts made by the Jagirdars prior to the aboli tion of jagits on 1.8.54 shall be honoured. It cannot be considered the intention of the Government to take away such vested rights 574 in the jagirdar having come into force on 28.7.48, after a lapse of seven years by issuing a Notification on 12.5.55 under Section 4 of the . It has also been contended that the Government has recognized that right of full ownership in the trees in favour of other jagirdars similarly situated and there was no justification for taking such arbitrary and discriminatory action against the plain tiffs alone. The above submissions are based on a total misconcep tion. As already mentioned above, there is no question of taking away any rights. It is no doubt correct that it is a case of proprietary jagir, but it does not confer any right in respect of trees standing in a reserved forest. Once it is established that during the time of existence of erst while State of Chhota Udepur an area admcasuring 290 acres and 14 gunthas in village Nalej was declared as reserved forest and Jagirdars had no right at all in the trees stand ing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws order. There is another insurmountable difficulty for the plaintiffs in as much as the trees had not been cut and removed prior to 12.5.55 when admittedly a notification has been issued under Sec. 4 of the also. That being so no relief can be sought for cutting and removing the trees in question after 12.5.55 as the survey No.102 has been constituted as reserved forest under the provisions of The tree in question are teak and Mahuda trees which were out of 21 kinds of trees declared as reserved trees which were prohibited from being cut under the extent of forest rules of Chhota Udepur State. Such trees even if standing in forest were not allowed to be cut. Thus examining the matter from any angle, we are already of the opinion that the plaintiffs are not entitled to any relief as claimed in the suit. So far as the ground of discrimination is concerned, it is well settled that in order to establish the same it is necessary to make out such case in the pleadings. In the present case no such ground was taken in the plaint nor any facts or material were placed on record during the trial of the suit or before the High Court and the same cannot be considered for the first time before this Court, specially when the defendants were not given any opportunity to meet the same. In our view the High Courts was right in dismissing the suit. In the result we find no force in this appeal and the same is dismissed. In the facts and circumstances of the case we direct no order as to costs. Y.L. Appeal dismissed.	This appeal by the plaintiffs is against an order of rever sal dtd.7/10th February, 1975 passed by the Gujarat High Court. Plaintiff No.1 first appellant is the contractor and Plaintiffs Nos. 2 to 4, the other appellants. are the jagir dars of the farmer State of chhota Udepur. The Jagirdars sold some teak trees to plaintiff No.1, contractor. With effect from 1.8.1954, the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 was made applicable to village Nalej,and no compensation was awarded to the Jagir dars in lieu of the trees, as they had sold them to appel lant No.1 (since dead) and now represented by his legal representatives. The contractor made an application to the Collector of Baroda under Sourashtra Felling of Trees Act for permission to cut the trees in question, which was forwarded to Mamlatdar of Chhota Udepur who granted the same on 25.9.1961 as a consequence whereof the contractor started cutting the trees. The Prant Officer, Chhota Udepur however, prevented the contractor from cutting the trees whereupon the contractor represented the matter before the Divisional Forest Officer and the State Government but was told that the Jagirdars had no right to the trees standing in the reserved forest area and in the waste land. The Government sold the trees already cut for Rs. 15786 and also sold the other trees to some other persons. The Jagirdars and the contractor filed a suit against the State of Gujarat and the Divisional Forest Officer. Chhota Udepur, District, Baroda for rendition of accounts, for declaratio of the plaintiffs ' title to the trees, for a declaration of the right of the contractor to cut the trees and to remove the same, and for direction to the State to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor. Decree for the balance of the amount of Rs. 14518.18 after adjusting Rs. 1267.82 already received was also sought. The trial court partly decreed the suit holding that the jagir dars were the full owners of the trees and as such the 564 565 contractor had also become the full owner thereof. The State was also ordered to pay Rs. 14518.18 with proportionate costs and interest at 4 per centum per annum on this amount from the date of decree till realisation. The State of Gujarat appealed against that order to the High Court of Gujarat contending (i) that under Forest Rules of Chhota Udepur State, Chotta Udepur State had exercised rights over three kinds of forest reserved, protected and open, the State of Gujarat was thus competent to issue notification under sec. 4 of the Indian Forest Act, 1947. (ii) under the rules, Mahuda and teak trees were reserved trees and they are prohibited from being cut; (iii) under the Jagir Abolition Act, Section 5, the solid vested in the jagirdar and not the trees; hence Jagirdars could not have sold the trees and (iv) the agreement executed between the contractor and the Jagirdars was not enforceable at law; the contractor could not claim any right/interest under the same. The High Court negatived all the contentions and the rights accruable to the contractor under the agreement and allowed the appeal of the State and dismissed the suit filed by the appellants. Hence this appeal by the appellants. Dismissing the appeal, this Court HELD: The trees in question stood on the area which was declared as reserved forest under the forest rules framed by the Chhota Udepur State. [512 B] Once it is established that during the time of existence of erstwhile State of Chhota Udepur an area admeasuring 290 acres and 14 gunthas in village Nalej was declared as re serve forest and jagirdars had no right at all in the trees standing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws Order. [514 C D]
Civil Appeal No. 2324 of 1980. Appeal by special leave from the judgment and order dated the 23rd April, 1979 of the Allahabad High Court in Civil Misc. Writ No. 2228 of 1979. Dr. L. M. Singhvi, and section K. Verma for the Appellant. Mrs. Shobha Dikshit for Respondent Nos. I & 2. section N. Kacker and B. R. Agarwala & P. G. Gokhale for Respondent No. 4. The Judgment of the Court was delivered by CHANDRACHUD, C. J. : The question which arises for consideration in this appeal is whether the appellant, Dr. R. K. 285 Khandelwal, is entitled to be admitted to the M. D. Course in Paediatrics of the Agra University and whether in denying him that opportunity, the State has violated any of his legal rights. The appellant passed his M.B.B.S. Examination from the section N. Medical College, Agra, in December 1976 and completed his internship in December 1977. Being desirous of prosecuting post graduate studies in Paediatrics, he took a year s house job in the Paediatrics Department of the section N. Medical College Hospital, which he completed in January 1979. He then applied for admission to the M. D. Course in Paediatrics for the academic year 1979 80. He was admitted to the D.C.H. Course but he was refused admission to the M.D. Course on two grounds: First, that amongst the applicants for the M. D. Course in Paediatrics there were four students who had secured higher marks than him in the M.B.B.S. Examination, and second, that on the basis of the 1:1 ratio between teachers and students, there were only four seats available for the post graduate course in Paediatrics. The appellant filed a writ petition in the High Court of Allahabad challenging the decision of the College by which he was denied admission to M.D. (Paediatrics). That petition was dismissed summarily by a Division Bench of the High Court on the ground that the relief of mandamus sought by the appellant could not be granted to him since he had failed to establish that any of his legal rights was violated. This appeal by special leave is directed against the High Court 's order dated April 23, 1979. The appellant, as stated earlier, was admitted to the D.C.H. Course after he had finished his house job in Paediatrics. His case is that for many years in the past, candidates who had passed the D.C.H. Examination were preferred for admission to the M. D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination. There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course. Admittedly, there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. All that is alleged is that such a practice was recognised over many years or at least, that such was the under standing of all concerned. Both the practice and the understanding have been denied on behalf of the College. But apart from that, 286 discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination. We also feel some difficulty on the facts before us in accepting the contention of the appellant that passing the D.C.H. Examination was a passport for admission to the M.D. Course. It may, at the highest, be said that it was easier for students to get admitted to the M.D. Course after passing the additional examination of D.C.H. after the M.B.B.S. Examination. The appellant applied for admission to the M.D. (Paediatrics Course for the academic year 1979 80. He had passed his M.B.B.S. Examination in December 1976. There were other students who had applied for admission to the M.D. Course in Paediatrics along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the marks obtained by the appellant in the December 1976 Examination. The number of seats being limited, admissions were given according to merit and the four students who had secured highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination. No one was admitted to the 1979 80 academic year for the M.D. Course in Paediatrics, who had secured lesser marks than the appellant. The four students who secured admission had obtained marks varying between 60.06% to 65.80% while the appellant had secured 58.56% marks only. He was sixth in order of merit amongst the applicants and there were only four seats available bearing in mind the ratio of 1:1 between the teachers and the students. Dr. Singhvi, who appears on behalf of the appellant, raised a further contention that the ratio 1:1 was relaxed from time to time by the University and that the appellant was discriminated against by the arbitrary refusal of the authorities to relax the ratio in his favour. We are prepared to accept that if there is a power to relax the ratio, that power must be exercised reasonably and fairly. It cannot be exercised arbitrarily to favour some students and to disfavour some others. But the difficulty in the way of the learned counsel is that this point of discrimination was not taken in the Writ Petition which was filed in the High Court, it was not argued in the High Court and is not even mentioned in the Special Leave Petition before us. The question as to whether the authorities have the power to relax the ratio and the further question as to whether that power has been exercised arbitrarily in this case raise new points 287 into which it is difficult for us to enquire for the first time. We are therefore unable to entertain the submission made by the counsel. The appellant has thus failed to make out a case of injury to any of his legal rights, for which reason the appeal must fail. The appeal is accordingly dismissed. But considering that under interim orders passed by this Court from time to time the appellant has appeared for the M.D. Examination on the completion of the Course, we hope that the University and the S.N. Medical College will take a sympathetic view of the appellant 's case and have his result declared. It may be mentioned that because of the interim orders passed by this Court directing the College and the University to admit the appellant to the M.D. Course in Paediatrics, the College cancelled the appellant 's admission to the D.C.H. Course. That may have been right because no student can do the D.C.H. Course and the M D. Course simultaneously. But the point of the matter is that if this Court were not to direct as an interim measure that the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject to the result of this Appeal), the appellant might have completed his D.C.H. Course and, subject to being admitted to the M.D. Course within a year or so from now he would have taken his M.D. Examination after passing the D.C.H. Examination. The authorities concerned will bear in mind that the appellant should not be placed in a worse position than he would have been in, had he not filed this appeal. Therefore, if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed, he should be permitted to take the examination again (or again and again) in accordance with the rules of the University. Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February 1981, we hope that the appellant 's result would be declared forthwith. There will be no order as to costs. N.V.K. Appeal dismissed.	The appellant applied for admission to the M.D. (Paediatrics) Course for the academic year 1979 80. He had passed his M.B.B.S. Examination in December, 1976. There were other students who had applied for admission along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had secured higher marks than the appellant. The number of seats being limited, admissions were given according to merit and four students who had secured the highest number of marks were given preference to others regardless of the year in which they had passed their M.B.B.S. Examination. The appellant filed a writ petition in the High Court challenging the E decision of the college by which he was denied admission. The petition was dismissed summarily by a Division Bench on the ground that the relief of mandamus could not be granted since the appellant had. failed to establish that any of his legal rights was violated. In the appeal to this Court it was contended on behalf of the appellant that: (a) For many years in the past candidates who had passed the D.C.H. Examination were preferred for admission to the M.D. Course but that the University suddenly discontinued that practice, as a result of which he had to compete with others who had passed their M.B.B.S. Examination, and (b) the ratio 1:1 between teachers and students was relaxed from time to time by the University and that the appellant was discriminated against by the arbitrary refusal of the authorities to relax the ratio in his favour. Dismissing the appeal, ^ HELD: The appellant has failed to make out a case of injury to any of his legal rights. Because of interim orders passed by this Court directing the College and the University to admit the appellant to M.D. Course in Paediatrics, the College cancelled the appellant 's admission to the D.C.H. Course. If the appellant has passed the M.D. Examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the 284 reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed he should be permitted to take the examination again (or again and again) in accordance with the rules of the University. Since the result of the other students, who had appeared for the M.D. Examination along with the appellant, was declared in February, 1981 the appellant 's result to be declared forthwith. [287 B F] (a) There was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. That such a practice was recognised over many years or that such was the understanding of all concerned has been denied on behalf of the College. Besides discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination. The appellant therefore cannot make a grievance of a change in the practice for admission to the M.D. Course. [285 G 286 B] In the instant case no one was admitted to the M.D. Course who had secured lesser marks than the appellant. He was sixth in order of merit and there were only four seats available. [286 E] (b) If there is a power to relax the ratio, that power must be exercised reasonably and fairly. It cannot be exercised arbitrarily to favour some students and to disfavour some others. [286 G] In the instant case this point of discrimination was not taken in the writ petition filed in the High Court, not argued in the High Court, and not even mentioned in the Special Leave Petition. The question as to whether the authorities have the power to relax the ratio and the further question as to whether that power has been exercised arbitrarily raise new points into which it is difficult to enquire for the first time. This plea cannot therefore be entertained. [286 H 287 A]
Mrs G. P. Mulekar, APP for the Respondent-State. By this Appeal filed under Section 374 of the Code of Criminal Procedure, 1973, the Appellant seeks to challenge the apeal-634.2014.doc Judgment dated 15 September 2011 passed by the learned Sessions Judge, Pune, in Sessions Case No. 556 of 2010, whereby the Appellant is convicted for committing an offence punishable under Section 302 of the Indian Penal Code, 1860. He was sentenced to undergo imprisonment for life together with payment of the fine of Rs.500/- and in default of payment of fine, he has been sentenced to undergo rigorous imprisonment for six months. 2. Background facts, in a nutshell, are as follows: i) Accused/Appellant Uttam Lande was residing at village Takve Budruk along with his wife Sangita and two sons, namely, Balaji and Dyneshwar. The accused was addicted to liquor. After consuming liquor, he used to threaten his wife that he would not keep her alive. ii) On 29.04.2010 at about 6:00 am, accused Uttam consumed liquor and insisted his wife Sangita not go to work. On refusal, the accused got infuriated and raked up a quarrel, stating that he would see how she could go for work. He then poured kerosene on her and set her on fire. Sangita began shouting; hearing her screams, the neighbours rushed to her rescue and extinguished the fire. She suffered burn injuries on her face, chest, abdomen and thighs. She was immediately taken to Dr Dahiphale’s clinic in the same village. apeal-634.2014.doc On his advice, she was shifted to Sassoon Hospital, Pune. As it was a case of burning, the Police were informed. visited the hospital and consulted Medical Officer Dr Raghvendra Chalikwar to record the statement of Sangita. Upon examination of Sangita, Dr Chalikwar found her in a fit condition to give a statement. Accordingly, on 29.04.2010 at about 4:30 pm, PHC Mr Waghule, in the presence of Dr Chalikwar, recorded her statement wherein she alleged that her husband/accused poured kerosene on her person and set her ablaze. Her statement was then forwarded to Vadgaon Maval Police Station for further action. Based on this, an offence bearing C.R. No. 74 of 2010 under Section 307 of the Indian Penal Code came to be registered against the accused. Panchnama of the scene of occurrence came to be drawn. Incriminating articles found thereat were seized. Seized articles were sent to the forensic science laboratory for analysis. The witnesses were interrogated, and their statements were recorded. iv) On 03.05.2010, the brother of Sangita shifted her to Pawana Hospital for further medical treatment. However, on 06.05.2010, Sangita succumbed to the burn injuries and, therefore, the offence was converted to one under Section 302 of the Indian Penal Code. apeal-634.2014.doc v) Inquest on the dead body of the deceased was held. The autopsy examination of the deceased was conducted. Police procured postmortem notes and the report from the forensic science laboratory. As the investigation revealed the complicity of the accused in the offence punishable under Section 302 of the Indian Penal Code, a charge sheet came to be lodged against him. 3. To prove its case, the prosecution examined as many as seven witnesses and tendered a number of documents. The evidence of the prosecution can be conveniently classified into three parts. Firstly, the dying declaration allegedly made by the deceased, which was sought to be proved through the testimony of PHC Shashikant Waghule (PW1) and Dr Raghvendra Chalikwar (PW2). Secondly, the medical evidence formed by the testimony of Dr Raghvendra Chalikwar (PW2), Dr Madhav Waghmare (PW4) and Dr Ashwin Masane (PW5), and the documents came to be proved in their evidence. Thirdly, circumstantial evidence in the nature of the Scene of Occurrence Panchnama and Chemical Analyzer’s Report. After the completion of prosecution evidence, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein the entire incriminating evidence was put to the accused. In reply, the accused pleaded innocence and apeal-634.2014.doc false implication at the instance of the deceased’s brother. According to him, Sangita sustained burn injuries from the bursting of a kerosene stove while cooking a meal. 4. The learned Sessions Judge relying on the statement of Sangita made before PHC Shashikant Waghule and Dr Raghvendra Chalikwar and which has been treated as the dying declaration of Sangita (hereinafter referred to as ‘the deceased’) and the testimony of the witnesses and documents, found that the prosecution case had been proved beyond doubt and held the accused guilty and convicted him under Section 302 of the Indian Penal Code. Evidence of PW1 and PW2 are relied upon to repose the faith in the dying declaration. 5. Mr Abhishek Avchat, learned counsel appearing on behalf of the Appellant, submitted that the learned trial Court committed a manifest error in returning a finding of guilt sans legal evidence. According to him, no reliance could be placed on the statement, which was considered to be the dying declaration of the deceased, as the declaration was not made to a Magistrate but to a Police Officer, and no explanation was offered as to why the declaration could not be made to the Magistrate. The cause of burn injuries is attributed to the accidental bursting of the stove. apeal-634.2014.doc 6. To further raise suspicion on the dying declaration, it is submitted that the facts and circumstances of the case demonstrate that the deceased was in no state to make a statement because of her suffering 72% burn injuries. Also, there was no corroborating evidence of this alleged dying declaration. In his view, in the absence of any corroboration of the dying declaration, the conviction could not be justified. 7. It has been submitted that the neighbours, who took the deceased to the hospital and the brother of the deceased, who got her discharged from Sassoon Hospital and admitted her to a private hospital, have not been examined, nor have any independent witnesses, though available, was examined by the prosecution. 8. It has been submitted that Dr Hariram Dahiphale (PW7) has stated that the deceased informed him that she suffered burn injuries due to the bursting of the stove accidentally. There is inconsistency in the evidence of Dr Dahiphale, narration in the FIR, and the dying declaration of the deceased. 9. It has been submitted that though the incident occurred on 29.04.2010 at about 6:00 am, the dying declaration was recorded at apeal-634.2014.doc about 4:30 pm, as such, ample time for tutoring was available. Further, it has been submitted that there are discrepancies in the medical papers of Sassoon and Pawana Hospitals, as the papers of Pawana Hospital show accidental burns as against homicidal burns. 10. According to the learned counsel for the Appellant, the trial Court did not examine the evidence from a proper perspective. He complains that the trial Court has misread the prosecution evidence and was influenced by several assumptions which cannot be sustained based on the material on record, and this has resulted in a grave miscarriage of justice. In support of his contentions, the learned counsel relied on the decision in Uttam v/s. State of 11. Mrs G. P. Mulekar, learned Additional Prosecutor appearing for the respondent-State, made various submissions countering the arguments put forth by the Appellant. She submitted that the deceased had narrated a detailed incident, which is amply corroborated by the medical evidence, wherein she had explicitly named the Appellant as a culprit. 12. It has been submitted that the evidence of Dr Chalikwar (PW2) shows that at the time of admission, the deceased had given apeal-634.2014.doc a history of homicidal burns. This witness stated that before the recording of the dying declaration of the deceased, he examined her and found her to be conscious and oriented to time, place and person. In his presence, PHC Waghule, as per narration given by Sangita, recorded her dying declaration. 13. Learned APP invited our attention to the fact that the Police Head Constable, who had recorded the dying declaration, was not the Investigating Officer, nor was he posted at Vadgaon Maval Police Station. According to her, the conviction in a murder case based on a truthful dying declaration, even made to the Police Officer and not to the Magistrate, is sufficient to convict the accused. According to her, no fault can be found with the 14. It is submitted that there is only one dying declaration recorded on 29.04.2010 at about 4:30 pm. The evidence of PW1 and PW2 corroborates the dying declaration. Panchnama of the scene of occurrence does not support the theory of the bursting of the stove. It is pointed out that after examining Sangita, Dr Chalikwar (PW2) endorsed the dying declaration to the effect that she was in sound condition to give the statement. After that, he apeal-634.2014.doc claimed to have signed the dying declaration, which came to be proved in the evidence. 15. It is a settled position of law that a dying declaration must not necessarily be made to a Magistrate only. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. 16. In Jaswant Singh v/s. State (Delhi Administration) 2, it is held that conviction in the murder case based on a truthful dying declaration, even made to Police Official and not to the Magistrate, is sufficient to convict the accused. 17. In State of Uttar Pradesh v/s. Ramsagar Yadav & Ors. 3, the Hon’ble Supreme Court, has observed that a dying declaration can be acted upon without corroboration. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true, it is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration. apeal-634.2014.doc 18. In Ramawati Devi v/s. State of Bihar4, it was enunciated that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such a statement must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person based on a dying declaration in light of the facts and circumstances of the case. 19. In Jagbir Singh v/s. State (NCT of Delhi) 5, after referring to its previous pronouncements in Paniben v/s. State of Gujarath6, wherein the principles of a dying declaration were expounded as “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja & Anr. v/s. State of (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of Uttar Pradesh v/s. Ram Sagar Yadav8, Ramawati Devi v/s. State of Bihar9) apeal-634.2014.doc (iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Reddy v/s. Public Prosecutor10) (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v/s. State of Madhya Pradesh11) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v/s. State of (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v/s. State of Uttar Pradesh13) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v/s. Krishnamurti (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of apeal-634.2014.doc the statement itself guarantees truth. (Surajdeo Ojha v/s. State of Bihar15) (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses had said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhau Ram v/s. State of Madhya Pradesh16) (x) Where the prosecution version defers from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of Uttar Pradesh v/s. Madan Mohan17)” 20. A survey of these decisions would show that the mere fact that the dying declaration was recorded by a Police Official cannot be a ground to discard the same. It is for the defence to demonstrate that the Police Official has some agenda or motive to record a false statement or to fabricate the statement of the victim of the crime. Conviction of a person can be made solely on the basis of a dying declaration which inspires the confidence of the Court. If there is nothing suspicious about the declaration, no corroboration is necessary. The Court must be satisfied that there is no tutoring or prompting. apeal-634.2014.doc 21. On the aforesaid touchstone, reverting to the facts of the present case, it is pertinent to note that the defence has not disputed the fact of the death of the deceased because of burn injuries on 06.05.2010. The crux of the matter is whether the death was homicidal. Further, whether the deceased was in a fit condition to make the declaration and whether the declaration was voluntary and true. 22. It is not in dispute that Sangita sustained burn injuries at her residential house on 29.04.2010. The plea sought to be raised on behalf of the appellant that the deceased suffered burn injuries due to the accidental bursting of the stove are negativated by the fact that the scene of occurrence panchnama does not show the presence of kerosene stove leaves apart in bursting state at the spot of the incident. Neither accused stepped into the witness box nor examined any witness to prove the case of the accidental bursting of the stove. 23. On the contrary, there is evidence on record, both in the form of oral testimony and documentary evidence, to show that a nylon saree, and a petticoat, in burnt condition, and a plastic can containing kerosene oil and a matchbox were found at the spot of apeal-634.2014.doc the incident. These articles were also sent for forensic examination. It is seen from the report of the chemical analyser that traces of kerosene oil were found on the burned clothes of the deceased. Evidence of PW3 Santosh panch witness and PW6, the Investigating Officer Gorakh Tupe, duly proves the scene of offence panchnama Exh.19. 24. The next question is whether the deceased was in a physical and mental condition to make a dying declaration. In this respect, the evidence of PHC Mr Shashikant Waghule (PW1) shows that the deceased was brought to the Sassoon General Hospital, Pune, on 29.04.2010. On receiving information from PHC Tilekar, he went to the Sassoon Hospital, met the Medical Officer and requested him to certify the fitness of Sangita to record her statement. Accordingly, the Medical Officer examined her and found her conscious and oriented to time, place and person. He claimed to have recorded the statement of the deceased as per her version. He further deposed that the statement was read over to Sangita and obtained her foot-thumb impression. 25. According to Mr Waghule (PW1), the deceased had stated that in the last two months, her husband had started taking excessive liquor and used to tell her that one day he would not keep apeal-634.2014.doc her alive. On 29.04.2010, at about 6:00 pm, her husband directed her not to go to work, and on refusing, he threatened her that he would see how she would go to work and that he would not keep her alive. After that, her husband poured kerosene on her person and set her on fire with a matchstick. When she started crying and shouting, neighbours came to her rescue and put off the fire and admitted her to the hospital. 26. Mr Waghule (PW1) claimed that he had recorded the statement of the deceased in the presence of the Medical Officer. The Medical Officer then put his endorsement certifying that the deceased was conscious and oriented to time, place and person; before, during and at the end of the statement. 27. Dr Raghvendra Chalikwar (PW2), the Medical Officer attached to the Sassoon General Hospital, seeks to lend support to the claim of Mr Waghule (PW1). Dr Chalikwar (PW2) informed the Court that the deceased was admitted to the hospital on 29.04.2010. At the time of her admission, she had given a history of homicidal burn injuries. He stated that the Police Head Constable recorded the statement of Sangita in his presence as per the narration given by her. He stated that he made an endorsement over the dying declaration of Sangita that she was conscious and apeal-634.2014.doc oriented to time, place and person before, during and at the end of the dying declaration (Exh.13). The evidence of PW1 and PW2 would demonstrate that at the time of recording dying declaration of Sangita, she was in a condition to make the statement. 28. There is no acceptable material or circumstances to suspect that the PHC Mr Waghule (PW1), who recorded the dying declaration or the Medical Officer (PW2), had any animus against the accused or were in any way interested in fabricating a dying declaration. In such circumstances, the dying declaration recorded by the PW1, who was performing his official duties, sufficiently assures that the deceased was capable of making the dying 29. On the next count, as to whether the dying declaration was voluntary and true and free from tutoring or prompting, it is seen from the record, more particularly the hospital papers, that when the deceased was admitted to the Sassoon Hospital, the accused was present with her. This fact automatically rules out the possibility of tutoring the deceased to implicate the accused falsely in the crime. Even the evidence of PW2 shows that at the time of recording the dying declaration of the deceased her relatives were sent out. apeal-634.2014.doc 30. It is not in dispute that immediately after the incident, the deceased was taken to the clinic of Dr Hariram Dahiphale (PW7). One contradiction is brought on record from the evidence of this witness. This contradiction, on its proof by the Investigating Officer (PW6), is at Exh. 63. This witness had stated to the Police while recording his statement that the deceased had told him that she sustained burns while cooking food because of the bursting of the stove. In this respect, the learned Sessions Judge has rightly observed that this contradiction cannot be accepted as substantive evidence, but it can, at the most, impeach the credit of Dr Hariram (PW7), and no inference can be drawn from the evidence that the dying declaration of Sangita at Exh. 13 is not truthful. 31. Similarly, the confusion created by medical case papers at Exh.23 of Pawana Hospital shows that the deceased sustained accidental burns. But here, we cannot ignore the evidence of PW5 Dr Ashwin, the Resident Medical Officer of Pawana Hospital, who categorically states that at the time of admission of the deceased, she had not given the history. Therefore, it does not amount to her dying declaration. In this respect, the learned Sessions Judge had rightly held that the contention of the learned defence counsel that the first dying declaration was made by the deceased before Dr Dahiphale (PW7) and her third dying declaration was before the apeal-634.2014.doc hospital authorities of Pawana Hospital was devoid of substance as no such dying declarations were found to be made by the accused. 32. Lastly, Mr Abhishek Avachat, the learned counsel appearing for the Appellant, submitted that the alleged incident was not pre- mediated. The dispute ensued over a trivial matter. There is no material to suggest that the Appellant had any intention of causing the death of his wife. His rage had dominated his passive spirit, and in an impulsive moment, rage had become an act of aggression. He had no intention to commit an act which would result in the death of his wife and, therefore, his act would fall under Section 304 Part II of the Indian Penal Code. 33. Reference in this connection was made to the following cases: (i) Jai Prakash v/s. State (Delhi Administration)18 (ii) Kesar Singh & Anr. v/s. State of Haryana19 (iii) Haridas Bedare v/s. The State of Maharashtra20 (iv) Subhash Kumbar v/s. State of Maharashtra21 34. Mrs Mulekar, the learned Additional Public Prosecutor appearing for the Respondent-State, made various submissions countering the arguments put forward by the Appellant. She 20 Criminal Appeal No. 966 of 2015 decided on 18.10.2022 21 Criminal Appeal No. 744 of 2017 decided on 06.10.2022 apeal-634.2014.doc submitted that the deceased Sangita had narrated a detailed incident which is amply corroborated by the medical evidence wherein she had specifically named the Appellant as a culprit. 35. We have given anxious consideration to the submissions of the learned counsel for the parties. Also perused the Judgments relied upon by the learned counsel for the Appellant. 36. In order to bring the act of an accused within the purview of Section 304 Part I or Part II of the Indian Penal Code, it is not sufficient to prove that the incident took place all of a sudden without any premeditation, but, it is also to be proved that the accused did not take undue advantage or did not act cruelly. In the present case, the act of the accused of pouring the kerosene oil on the person of the deceased, setting her ablaze and not extinguishing the fire would speak entirely against him and demonstrates the intention and knowledge on the part of the Appellant. The deceased was the wife of the Appellant and was alone in the house. The Appellant had taken undue advantage of the situation and acted cruelly. Even if the incident in question was not premeditated and sudden, the manner of retaliation is disproportionate. The learned Sessions Judge in the impugned judgment has rightly observed that the act of the accused in setting apeal-634.2014.doc ablaze the deceased was an intentional act for causing her death, and it was preceded by threats emanated from him that he would not let her alive. Thus, by no stretch of the imagination, it can be said that the offence would not be murder punishable under Section 302 of the Indian Penal Code. 37. We have already concluded that the dying declaration of the deceased recorded by PW1 is truthful and voluntary and that she was in a sound condition to give a valid statement. The learned counsel for the Appellant was not in a position to show any infirmity in this dying declaration, either in the form of procedure adopted or any circumstance leading that it was not voluntary or was given under the influence. Significantly, the Appellant has not come with any version that he tried to rescue his wife from the burning. Again, his act of setting the deceased ablaze and not extinguishing the fire would speak entirely against him. Therefore, in our overall view of the matter, we are not convinced with the case of the defence that the accused suffered from accidental burn injuries, and the instant case is not one of homicidal death. The trial Court has discussed the entire evidence in detail and, in our opinion, has reached the right conclusion that the prosecution has been able to establish the case against the accused beyond a reasonable doubt. 38. Resultantly, this Appeal fails and is hereby dismissed. The order of conviction and sentence passed by the learned Sessions Judge, Pune, in Sessions Case No. 556 of 2010, is hereby	The Bombay High Court recently upheld the murder conviction of a man observing that he did not try to extinguish the fire showing that he had the intention to murder his wife. A division bench of Justice Nitin W. Sambre and Justice R. N. Laddha held – “the act of the accused of pouring the kerosene oil on the person of the deceased, setting her ablaze and not extinguishing the fire would speak entirely against him and demonstrates the intention and knowledge on the part of the Appellant. The deceased was the wife of the Appellant and was alone in the house. The Appellant had taken undue advantage of the situation and acted cruelly. Even if the incident in question was not premeditated and sudden, the manner of retaliation is disproportionate”. The prosecution’s case was that after consuming liquor, the appellant used to threaten his wife that he will not keep her alive. One day he consumed liquor and stopped his wife from going to work. When she refused, he got infuriated and poured kerosene on her and set her on fire. She suffered burn injuries on her face, chest, abdomen and thighs and died. In her dying declaration, she stated that her husband poured kerosene on her and set her ablaze. The appellant’s defence was that his wife suffered burn injuries from the bursting of kerosene stove while cooking a meal. The sessions judge relied on the dying declaration and the witness testimonies and convicted him under Section 302 of the IPC. Advocate Abhishek Avchat for the appellant contended that the dying declaration cannot be relied on as it was not made to a magistrate but to a police officer without any explanation. Further, the deceased was not in a fit state to make a statement as she had suffered 72% burn injuries. Additional Public Prosecutor G. P. Mulekar said that the police head constable (PHC) who recorded the dying declaration was not the investigating officer, neither was he posted at the police station. In a murder case, a truthful dying declaration even made to the police officer and not to the magistrate is sufficient to convince the accused. The court relied on several Apex Court judgments and reiterated that the dying declaration need not necessarily be made to a magistrate only. The essential condition is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. “It is for the defence to demonstrate that the Police Official has some agenda or motive to record a false statement or to fabricate the statement of the victim of the crime. Conviction of a person can be made solely on the basis of a dying declaration which inspires the confidence of the Court. If there is nothing suspicious about the declaration, no corroboration is necessary. The Court must be satisfied that there is no tutoring or prompting”. The court noted the accused did not show any material to prove the case of accidental bursting of the stove. The evidence does not show the presence of kerosene stove let alone bursting of one at the spot of the incident, the court noted. The PHC testified that he recorded the dying declaration in the presence of the medical officer. The medical officer testified that the deceased was conscious and oriented to time, place, and person before, during, and at the end of the declaration. The court noted that there is no material to suspect that the PHC and the medical officer has any reason to fabricate the dying declaration. The court further noted that when the deceased was admitted to the hospital, her husband was present with her. This automatically rules out the possibility of tutoring her to implicate him falsely in the case, the court held. The court concluded that the dying declaration is truthful and voluntary and the deceased was in a sound condition to give a valid statement. The court also noted that the appellant did not claim that he tried to rescue his wife from the burning. Therefore, the court did not believe the defence that it was a case of accidental death. “The learned Sessions Judge in the impugned judgment has rightly observed that the act of the accused in setting ablaze the deceased was an intentional act for causing her death, and it was preceded by threats emanated from him that he would not let her alive. Thus, by no stretch of the imagination, it can be said that the offence would not be murder punishable under Section 302 of the Indian Penal Code”, the court concluded. Case no. – Criminal Appeal No. 634 of 2014 Case Title – Uttam Anna Lande v. State of Maharashtra
11/05/2022 Shri Vijay M. Adwani, Advocate with Shri Manish Upadhyay and Shri A.M. Sachwani, counsel for the petitioner. Shri Ramakant Mishra, Asst. Solicitor General for India/respondents. Shri Ramakant Mishra, A.S.G. accepts notice for respondents. He prays for and is granted three weeks time to file reply to writ petition as well as application for grant of interim relief. Also heard on IA No.2, which is an application for grant of interim relief. Learned counsel for the petitioner would submit that pursuant to arrest made by Directorate of Revenue Intelligence (DRI) on 01.05.2021 of two persons at Railway Station- Raipur, DRI further searched the house of petitioner on the same date and have seized gold bar, silver ingots and fine silver and cash amount also amounting to Rs.32 lakhs. Seizure proceedings was put to challenge by the petitioner before this Court by way of filing writ petition bearing WPC No.5388 of 2021, which was finally decided vide order dated 02.03.2022 whereby the notice under Section 110 (2) of the Customs Act, 1962 (for short “the Act of 1962”) for extending the time for investigation was quashed and subsequent notices/summons issued to the petitioner therein have been held to be without any authority of law. It is further contended that in terms of Section 110 (2) of the Act of 1962, if proceedings have not been concluded within prescribed period, the investigation agency have to mandatorily return back the goods which were taken into possession from the petitioner but that was not done till date. Order dated 02.03.2022 passed by the learned Single Judge was put to challenge by respondent- Department along with the application for grant of interim relief but till date, no interim relief has been granted in their favour and the order dated 02.03.2022 is still in existence and force. It is contended that after passing of order dated 02.03.2022, as on the date, proceedings of search and seizure was quashed, no further proceedings under under Section 124 of the Act of 1962 which is the proceedings for confiscation of good seized can be initiated. He submits that pending consideration of this writ petition, awaiting reply of respondents, further proceedings pursuant to the notice under Section 124 of the Act of 1962 may be stayed. Shri Ramakant Mishra, learned ASG for the respondents would submit that though there is order in favour of petitioner in WPC No.5388 of 2021 but the said order is under challenge before the Division Bench in Writ Appeal No.211 of 2022 and is pending consideration. Hence, proceedings have not attained finality. He also contended that the amendment has been brought into the Act of 1962 by virtue of Notification dated 31.03.2022 and in that amended provision, there is no mention of Proper Officer and the amendment has been made applicable with retrospective effect. Hence the interim relief as sought for by the petitioner may not be granted at this stage. Taking into consideration the facts and circumstances of the case, taking into consideration the submission made by learned counsel for the petitioner based on order dated 02.03.2022 passed by the High Court in WPC No.5388 of 2021 whereby the notice under Section 110 (2) of the Act of 1962 was held to be without any authority of law, the notice was quashed, it is directed that respondents shall not proceed any further pursuant to notice dated 23.04.2022 (Annexure P-1) issued under Section 124 of the Act of 1962, till the next date of hearing.	The Chhattisgarh High Court bench of Justice Parth Prateem Sahu has quashed the show cause notice which was issued by the DRI and stayed the proceedings. The petitioner/assessee submitted that pursuant to the arrest made by DRI of two persons at Railway Station-Raipur. The DRI searched the house of the petitioner on the same date and seized gold bars, silver ingots, fine silver, and cash amounts also amounting to Rs. 32 lakhs. The petitioner has challenged the seizure proceedings before the high court. The High Court quashed the notice under Section 110 (2) of the Customs Act, 1962 for extending the time for investigation. Subsequent notices/summons issued to the petitioner were also without any authority of law. The petitioners contended that in terms of Section 110 (2) of the Customs Act Act of 1962, if proceedings have not been concluded within the prescribed period, the investigation agency has to mandatorily return back the goods which were taken into possession by the petitioner, but that has not been done till date. The order of the High Court was challenged by the department along with the application for grant of interim relief, but till date, no interim relief has been granted in their favour and the order dated 02.03.2022 is still in existence and in force. The petitioner contended that after the passing of an order dated 02.03.2022, as on the date, proceedings of search and seizure were quashed and no further proceedings under Section 124 of the Customs Act, 1962, which is the proceedings for confiscation of goods seized, could be initiated. Further proceedings pursuant to the notice were stayed while the writ petition was being considered and a response from the department was awaited. The department contended that though there was an order in favour of the petitioner, the order was under challenge before the Division Bench in Writ Appeal No.211 of 2022 and was pending consideration. Hence, proceedings have not attained finality. The amendment has been brought into the Customs Act by virtue of a Notification dated 31.03.2022. In the amended provision, there was no mention of the proper officer and the amendment has been made applicable with retrospective effect. Hence, the interim relief sought for by the petitioner may not be granted. "Taking into consideration the facts and circumstances of the case, taking into consideration the submission made by counsel for the petitioner based on order dated 02.03.2022 passed by the High Court in WPC No.5388 of 2021 whereby the notice under Section 110 (2) of the Act of 1962 was held to be without any authority of law, the notice was quashed, itis directed that respondents shall not proceed any further pursuant to notice dated 23.04.2022 issued under Section 124 of the Act of 1962, till the next date of hearing," the court said. Case Title: Vijay Baid Versus Union Of India Dated: 11/05/2022 Counsel For Petitioner: Advocate Vijay M. Adwani Counsel For Respondent: Asst. Solicitor General for India Ramakant Mishra
N: Criminal Appeal No. 329 of 1975. From the Judgment & Order dated the 15th April, 1975 of the Allahabad High Court in Crl. A. No. 1144 of 1971. R.L. Kohli and S.K. Sabharwal for the Appellants. D.P. Uniyal and R.K. Bhatt for the Respondent. The following Judgments were delivered: FAZAL ALI, J. This appeal by special leave is directed against a judgment dated 15.4.1975 of the Allahabad High Court by which the Judges of the High Court while acquitting the accused, Anil Kumar and Satish Kumar, altered the conviction of Ram Karan, Sunil Kumar and Ved Prakash from one under sections 302 and 307 read with section 149 I.P.C. to one under sections 302 and 307 read with section 34, I.P.C. and confirmed the sentences of imprisonment for life imposed on these appellants. The prosecution case has been detailed in the judgment of the High Court as also in the judgment of our learned Brother Varadarajan J. and it is not necessary to repeat the same. So far as the question of occurrence is concerned that has been proved beyond reasonable doubt as pointed out by Brother Varadarajan, J. as also by the High Court. We also agree with the appreciation of the evidence by Brother Varadarajan, J. and his conclusion that the two deceased died at the hands of the appellants. The entire occurrence seems to have been the result of a chronic land dispute between the parties in which several commissions were issued and which ultimately proved futile. The prosecution has no doubt proved that the two persons were killed at the hands of the accused and that the occurrence had taken place while the Commissioners were present at the spot though they were not able to see the actual assault and were, therefore, not in a position to depose the detailed manner in which the assault had taken place. The only serious question on which we would like to sound a discordant note from our Brother Varadarajan, J. is as to the actual nature of the offence which had been committed by the appellants, Sunil Kumar and Ved Prakash. It would appear from the evidence 398 of CW 1 as also other eye witnesses that the accused were also assaulted with knife and one of them, Chhotey Lal, died as a result of the injuries caused to him. The medical evidence as also the evidence of CW 1 clearly shows that there was exchange of hot words, followed by the assault on the appellants which, according to the prosecution, was a result of the exercise of self defence by the prosecution party, particularly Dinesh Chandra. In fact, the learned Sessions Judge and the High Court held that the accused were the aggressors and, therefore, they had no right of private defence. In order to ascertain whether the accused had the right of private defence, the genesis of the incident has to be traced. Now, in this case the prosecution witnesses being partisan, the only important injured witness Dinesh Chandra, PW 11 being the son of the deceased, it would be necessary to ascertain with accuracy the genesis of the quarrel as revealed from the evidence of Court witnesses not shown to be partisan. CW 1, Prem Narain Mathur is the practising advocate and was appointed as a Commissioner. He was accompanied by Mahesh Chandra, Vakil, CW 3, advocate appearing on behalf of the plaintiffs (accused Ram Karan) in the suit in which Commission was issued and Shri Jafar Imam, CW 2, learned advocate appearing for the defendants in the same suit. C.W. 1 and C.W. 3 were at the house of accused 1 Ram Karan. C.W. 1 says that several persons assembled at that time at the house of Ram Karan. He is a bit vague but he says that at that time after tea was served and he was about to leave that place he saw a person lying on the pavement of the road. This injured person was lying in front of the house of accused 1 Ram Karan. This statement has not been questioned in cross examination nor adversely commented upon. It gives a clue to the genesis of the occurrence. After measurements were taken as directed by the Court, C.W. 1 and C.W. 3 came to the house of accused 1 Ram Karan. Some persons collected there. According to C.W. 1 injured persons were seen lying in front of the house of accused 1 and that was none else than the deceased. If amongst those who collected at the house were the two deceased and P.W. 11 Dinesh Chandra, another injured witness on the side of the prosecution, it is crystal clear that the prosecution witnesses and the two deceased Prakash Chandra and Umesh Chandra had come to the house of accused 1 Ram Karan. How, if one of them was armed with a knife, they must have come with a view to either picking up quarrel or to guard themselves. The occurrence took place in front of the house of 399 accused 1. On the side of the prosecution Prakash Chandra and Umesh Chandra received fatal injuries and Dinesh Chandra was also injured. However, on the side of the accused Chhotelal, son of accused 1 Ram Karan, suffered six injuries one of which proved fatal and he died. Accused Ram Karan himself was also injured. Injuries on both sides appear to have been caused with sharp cutting weapon like knife. It is easy to infer the genesis of the dispute. Both the parties were completely exasperated with the litigation. Accused 1 Ram Karan had summoned Commission on five to six occasions and his attempt to end the litigation was thwarted by objections being taken on the side of Prakash Chandra deceased. Therefore, both sides were in an exasperated mood. Suddenly at the spur of the moment there ensued a quarrel. Prakash Chandra and Umesh Chandra on the side of the prosecution died and Chhotelal on the side of the accused died and each of them met a homicidal death. On the side of the prosecution Dinesh Chandra was injured, on the side of accused Ram Karan was injured. From this an irresistible inference ensues that exception 4 to section 300, I.P.C. would be attracted. The exception provides that culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. All the ingredients of Exception 4 are satisfied. Prakash Chandra and his two sons and others came to the house of accused 1 to protest for the work of the Commissioner. Dinesh Chandra amongst them was armed with a knife. May be, he may be usually carrying the same for his safety. The incident occurred in front of the house of accused 1 upon a sudden quarrel by this confrontation with eyebrows having been raised because of a persistent litigation, the occurrence took place. There is no clear evidence to show that any one took undue advantage or acted in a cruel or unusual manner. Taking an overall view of the situation, we find no evidence of any intention to kill the two deceased on the part of the accused because the occurrence itself had taken place suddenly when, to begin with, the entire episode started for the particular purpose of partitioning the land by the Commissioners who had visited the village. In these circumstances we are satisfied that Exception 4 of section 300, I.P.C. is attracted and the offence of murder would be reduced to culpable homicide in respect of accused Sunil Kumar and Ved Prakash and, therefore, they would be guilty of committing 400 an offence under section 304(1)/34 I.P.C. and they should be convicted accordingly. To this extent, therefore, we are unable to agree with Brother Varadarajan, J. that the conviction of the appellants Sunil Kumar and Ved Prakash under section 302 read with section 34 of the I.P.C. should be confirmed. We, therefore, allow this appeal to the extent that the conviction of Sunil Kumar and Ved Prakash are altered from one under section 302 read with section 34 of the I.P.C. to that under section 304(1)/34 I.P.C. and they are sentenced to rigorous imprisonment for seven years. Conviction and sentences under section 307/34, I.P.C. are maintained and sentences awarded have already been directed to run concurrently. We allow the appeal of Ram Karan as indicated by Brother Varadarajan, J. VARADARAJAN, J. This Criminal Appeal by special leave is directed against the judgment of a Division Bench of the Allahabad High Court in Criminal Appeal No. 1144 of 1971, whereby the learned Judges, while acquitting two appellants Anil Kumar and Satish Kumar of the charges, altered the conviction of Ram Karan, Sunil Kumar and Ved Prakash, appellants in this Criminal Appeal, under section 302 and 307, both read with section 149 I.P.C., into one under sections 302 and 307 both read with section 34 I.P.C. and confirmed the sentences of imprisonment for life for each of the two counts of murder of Prakash Chandra and Umesh Chandra and rigorous imprisonment for four years for attempt to murder Dinesh Chandra (P.W. 11) to run concurrently and set aside the conviction of the appellant Ram Karan under section 147 and the other two appellants under section 148 I.P.C. The first appellant Ram Karan is the father of other appellants Sunil Kumar and Ved Prakash and also of Anil Kumar and Satish Kumar, who have been acquitted by the High Court as well as of deceased Chhotey Lal. The learned Sessions Judge who tried the case convicted Ram Karan and all his four sons, Sunil Kumar, Anil Kumar, Ved Prakash and Satish Kumar under section 302 read with section 149 I.P.C. (two counts) and section 307 read with section 149 I.P.C. and sentenced them to undergo imprisonment for life on each of the two counts under section 302 read with section 149 I.P.C. and to imprisonment for four years under section 307 read with section 149 I.P.C. He convicted Ram Karan under section 147 and his aforesaid four sons under section 148 I.P.C. and sentenced Ram Karan to undergo rigorous imprisonment 401 for one year and his sons to undergo rigorous imprisonment for two years under section 147 and section 148 I.P.C. respectively. The case of the prosecution was this: The deceased Prakash Chandra was the father of the deceased Umesh Chandra and the injured witness Dinesh Chandra (P.W. 11) as well as of Gyan Chand (P.W. 1). Prakash Chandra and his sons were living in Seohara town, Bijnor district. The appellant Ram Karan and his five sons including the deceased Chhotey Lal were living in another house in the same town as the neighbours of Prakash Chandra and his sons. Prakash Chandra and his sons built a new house on a vacant land which existed between these two houses about three years prior to the occurrence in this case which has taken place at about 1.00 p.m. on 6.9.1970. The appellant Ram Karan and five others filed Civil Suit No. 34 of 1967 in the court of the Munsif, Nagina against Prakash Chandra and his brother Gopi Chandra and one Krishna Devi, alleging that while constructing the new house Prakash Chandra had encroached upon a portion of their land. In that suit, Ram Karan got Commissioners appointed by the court on five or six occasions for taking measurements of the properties with the object of proving his case of encroachment by Prakash Chandra. But those Commissioners ' reports were set aside on the objection raised by Prakash Chandra and the other defendents. The last Advocate Commissioner Mr. Mathur (C.W. 1) visited the spot on 6.9.1970, accompanied by Mr. Zafar Hussain (C.W. 2) who appeared for Prakash Chandra and another and Mr. Mahesh Chand (C.W. 3) who appeared for Ram Karan. After the completion of the survey work at about 12.30 p.m. all the three lawyers were standing and talking in front of Ram Karan 's baithak at about 1.00 p.m. Then Prakash Chandra and Umesh Chandra came there to talk with the Commissioner. Ram Karan, who was present there along with his five sons, did not like that interference of Prakash Chandra and Umesh Chandra with the Commissioner. He stated that he has spent thousands of rupees for taking out the commissions and that the reports of the Commissioners were set aside on the objection of Prakash Chandra. So saying, he instigated his sons to kill Prakash Chandra and his sons. Thereupon, Chhotey Lal and Ved Prakash attacked Prakash Chandra with knives while Sunil Kumar, Anil Kumar and Satish attacked Umesh Chandra with knives. On seeing Dinesh Chandra (P.W. 11) who rushed meanwhile from the eastern side to help his father and brother, Ram Karan instigated his sons to attack him and caught hold of him by 402 his waist, and all his five sons attacked him and inflicted injuries. Then P.W. 11 took out a knife from his pent pocket and wielded it against Ram Karan and Chhotey Lal in self defence and they sustained injuries. P.W. 11 received injuries and fell down. Gyan Chandra (P.W. 1), who was seeing the occurrence, ran to his house along with some others and bolted the door when Sunil Kumar, Anil Kumar and Satish chased him for attacking him. Abdul Wahid, P.W. 10, and others who were witnessing the occurrence raised an alarm, and Ram Karan and his sons ran away. Gyan Chand, (P.W. 1) came out of his house sometime later and found his father Prakash Chandra and brother Umesh Chandra dead and Dinesh Chandra (P.W. 11) lying with injuries. He prepared the report, exhibit Ka. 3 and proceeded in a jeep with his brother Dinesh Chandra (P.W. 11), to Seohara Police Station situate about half a mile away and handed over that report at 1.30 p.m. Dinesh Chandra (P.W. 11) was taken to Dhampur hospital after he was given first aid by a Doctor on the way. He was examined at the Dhampur hospital by Dr. Bagchi, P.W. 3 who found on his person an abrasion and nine incised wounds of which injury No. 7 on the right side of the chest through which blood and air were coming out was serious and the rest were simple. The dead bodies of Prakash Chandra and Umesh Chandra which were found lying in front of their house where blood also was found, were later sent for autopsy. Ram Karan and Chhotey Lal went to the Government hospital, Bijnor where they were examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15 p.m. respectively on 6.9.1970. P.W. 2 found one punctured wound and four incised wounds on Chhotey Lal and three incised wounds on Ram Karan. The injuries on both of them were fresh and those on Ram Karan were simple while injury No. 1 on Chhotey Lal, namely, a punctured wound which was lung deep and anterior to the left nipple, was grievous and the rest were simple. The injuries on both could, in the opinion of P.W. 2, have been caused by knife. P.W. 2 issued the wound certificates exhibit Ka. 12 and Ka. 13. Ram Karan 's report was lodged at the Police Station at 10.30 p.m. on 6.9.1970. Chhotey Lal died in the District hospital, Bijnor on 10.9.1970. Dr. Zuber conducted autopsy on the bodies of Prakash Chandra and Umesh Chandra on 7.9.1970 and found nine antemortem, injuries, of which six were incised wounds, on the body of Prakash Chandra and six antemortem incised wounds on the body 403 of Umesh Chandra and he opined that the death of both of them was due to shock and haemorrhage resulting from the incised injuries. exhibit Ka. 1 and Ka. 2 are the postmortem certificates relating to Prakash Chandra and Umesh Chandra issued by Dr. Zuber who was examined as P.W. 1 in the Committing Magistrate 's Court (exhibit Ka. 37). Dr. Dua (C.W. 4) conducted autopsy on the body of Chhotey Lal on 11.9.1970 and found an abrasion and five incised wounds which were sufficient in the ordinary course of nature to cause death. The prosecution 's case rests mainly on the evidence of Gyan Chand (P.W. 1), Abdul Wahid (P.W. 10) and Dinesh Chandra (P.W. 11). As stated earlier P.Ws 1 and 11 are the sons of deceased Prakash Chandra and brothers of the other deceased Umesh Chandra. P.W. 11 had received injuries during the occurrence and P.W. 1 is the witness who had lodged the First Information Report (exhibit K. 3) in the Seohara Police Station at the earliest opportunity at 1.30 p.m. soon after the occurrence which had taken place at about 1.00 p.m. These three witnesses were put forward as eyewitnesses and they have deposed in support of the case of the prosecution. The accused put forward their version of the case. According to the accused, after the Commissioner (C.W. 1) finished his work and went to the house of the appellant Ram Karan, Prakash Chandra and his sons Umesh Chandra and Dinesh Chandra (P.W. 11) came to the baithak of Ram Karan and attacked Ram Karan and deceased Chhotey Lal with knives and thereupon they grappled with those three persons and wrested the knives from them and attacked them in self defence. The accused examined D.W. 1 on their behalf. The court examined the Commissioner and the counsel of the parties in the civil suit as C. Ws. 1 to 3 and the Doctor who conducted autopsy on the body of Chhotey Lal as C.W. 4. The evidence of C.W. 1 is that after he completed taking measurements he went along with Ram Karan 's counsel Mr. Mahesh Chandra (C.W. 3) to the baithak of Ram Karan 's house, that both of them came out of the house 8 or 10 minutes later, that when he advanced from the door of the baithak he saw a person lying injured on the pavement of the road and another injured person standing there, that a third person came and struck the injured person who was standing, and that he and C.W. 3 left the place thereafter. The evidence of C.W. 3 is that he and C.W. 1 who had gone to the baithak of Ram Karan 's house after C.W. 1 had 404 taken the measurements, came out of the baithak 5 or 7 minutes later, and saw Chhotey Lal grappling with a young man, that in the course of grappling Chhotey Lal fell down bleeding, that Chhotey Lal managed to get up and snatched the weapon of the assailant and struck him with it, that Prakash Chandra came to the rescue of the young man and Chhotey Lal struck him with the same weapon and both the young man and Prakash Chandra fell down after receiving injuries from Chhotey Lal, and that on account of the incident he went away along with C.W. has added that soon after he went and sat in the baithak of Ram Karan 's house, Zafar Hussain (C.W. 2) came and said something to C.W. 1 from beyond the door of the baithak. The evidence of Zafar Hussain (C.W. 2) is that after measurements had been taken C. Ws. 1 and 3 went to the baithak of Ram Karan 's house while he sat in the verandah of the old haveli of Prakash Chandra, that he and Prakash Chandra 's son, who is now no more, thereafter went near the Commissioner (C.W 1) and he told C.W. 1 that he may hear what Prakash Chandra wanted to say, that after saying so he got back for meeting another person while Prakash Chandra and his son remained there, that after reaching the verandah of Prakash Chandra he went away with Mehboob Ali who was waiting for him to Mehboob Ali 's house and that no quarrel took place when he was present there though when he was returning to the verandah of Prakash Chandra 's house he heard some hot words being exchanged near the baithak of Ram Karan 's house. The learned Sessions Judge has observed in his judgment that the evidence of C.Ws. 1 to 3 is contradictory, unnatural and not truthful. He found that P.W. 1 's report (Ka. 3) was lodged in the Police Station at 1.30 p.m. soon after the occurrence had taken place at about 1.00 p.m. and that there has been no attempt at concoction in this case. He rejected the contention that Abdul Wahid, (P.W. 10) had any reason to depose falsely against the appellant Ved Prakash and found his evidence to be reliable. He observed that though Prakash Chandra had been working as an Engineer in a sugar mill at Seohara and P.W. 10 was employed in the engineering department, P.W. 10 was actually working under one Bachcha Lal and is an independent witness. P.W. 1 has stated in his evidence that Prakash Chandra, Umesh Chandra and Ram Karan did not have any weapon at the time of the occurrence. The evidence of the injured witness P.W. 11 is that when he returned home from Moradabad at about 12.30 p.m. on the day of occurrence 405 he saw his father Prakash Chandra and brother Umesh Chandra lying in a pool of blood and that on seeing him Ram Karan shouted that he also should be killed and caught hold of him by his waist and that he was attacked with knives by the accused persons including Ram Karan and he wielded in self defence the knife which he had purchased on that day for his work. The learned Sessions Judge accepted the evidence of P.Ws. 1, 10 and 11 and commented upon Ram Karan and Chhotey Lal going to the hospital at Bijnor without arranging for a report being given at the Police Station at Seohara in time and held that the accused were the aggressors and that Dinesh Chandra (P.W. 11) caused injuries to Ram Karan and the deceased Chhotey Lal in the exercise of the right of private defence. Accordingly he found the accused guilty and convicted them and sentenced them as mentioned above. The High Court also rejected the defence theory that Chhotey Lal was attacked by three persons armed with knife, chura and khukhri having regard to the fact that he had only one lung deep punctured wound and the other four wounds were only skin deep and of very minor dimensions. The learned Judges of the High Court found that the name of Anil Kumar is not mentioned in the First Information Report (exhibit Ka. 3) but instead the name of one Virendra is mentioned and that it appears from the evidence of P.W. 1 that Virendra is the name of Prakash Chandra 's brother. They found that in the statement of P.W. 11 recorded as dying declaration, Sushil Kumar is mentioned instead of Satish Kumar. In these circumstances the learned Judges found that there is reasonable doubt regarding the participation of the accused Anil Kumar and Satish Kumar and they gave the benefit of that doubt to those two appellants before them and acquitted them. In other respects, the learned Judges accepted the evidence of P.Ws. 1, 10 and 11 regarding the occurrence and rejected the defence version and held the appellants guilty under section 302 read with section 34 in respect of the murder of Prakash Chandra and Umesh Chandra and under section 307 read with section 34 in respect of Dinesh Chandra, (P.W. 11) and convicted them accordingly and sentenced them to undergo imprisonment for life under section 302 read with section 34 I.P.C. and rigorous imprisonment for four years under section 307 read with section 34 I.P.C. 406 We perused the records and the judgments of the learned Sessions Judge and of the learned Judges of the High Court and heard the arguments of Mr. R.L. Kohli, Senior Advocate who appeared for the appellants and of Mr. D.P. Uniyal, Senior Advocate who appeared for the respondent State of U.P. We were taken through the evidence of P.Ws. 1, 10 and 11. The learned Sessions Judge has observed in his judgment that the evidence of the three lawyers C.Ws. 1 to 3 is contradictory, unnatural and not truthful and that if they had given honest evidence it would have been easier for the court to conclude which side was the aggressor. This observation of the learned Sessions Judge appears to be too sweeping and not correct at least with reference to C.W. 2 who has professed ignorance about the actual occurrence in the case and has stated that he left after asking C.W. 1 from outside the baithak of Ram Karan 's house to hear what Prakash Chandra who had gone with him and his deceased son wanted to tell him because another person Mehboob Ali with whom he later went to his house was waiting for him in the verandah of Prakash Chandra 's house. The evidence of C.W. 2 that no quarrel took place when he was present there though when he was returning to the verandah of Prakash Chandra 's house he heard some hot words being exchanged near the baithak of Ram Karan 's house, is, in a way, corroborated by the evidence of P.W. 1. P.W. 1 has stated that when exchange of hot words started the Commissioner and Vakils of the parties moved from there to the road and that just when Ram Karan 's Vakil had gone a short distance from Ram Karan 's house, Ram Karan and others stated that "they have got our thousands of rupees spent over litigation. We have become tired of getting commissions issued. Kill them today so that the trouble may be ended for ever. At that time all the five sons of Ram Karan, Chhotey Lal, Ved Prakash, Satish Kumar, Sunil Kumar and Anil Kumar were present, and when Ram Karan said so all five sons whipped out knives and started assulting. .". This portion of the evidence of P.W. 1 is to the effect that the lawyers C.Ws. 1 3 were not present at the time of the actual assault on the deceased Prakash Chandra and Umesh Chandra as a well as on P.W. 11. Even P.W. 10 has stated in his evidence that "when he reached near dharmshala at about 12.45 p.m. he heard the shouts of Ram Karan from his house situate at a distance of 30 paces, that when he reached the end of the road he was in a position to see the house of Ram Karan, that on hearing the shouts he proceeded towards the place from where they came and stood near 407 the wall and found three Vakils present and also Prakash Chandra and Umesh Chandra, that as soon as he reached the place, the Vakils left the place, that Ram Karan then stated that he got the Commissioner appointed 5 or 6 times and spent several thousands of rupees and he should be killed and that when Ram Karan said so his sons Chhotey Lal and Ved Prakash began to attack Prakash Chandra with knives, that Sunil Kumar and Ram Karan 's other sons began to assault Umesh Chandra with knives, that during the marpit Prakash Chandra and Umesh Chandra fell down after receiving injuries, that thereafter Dinesh Chandra, son of Prakash Chandra came from the eastern direction, and on seeing him Ram Karan shouted that he should also be done to death, and he caught hold of Dinesh Chandra by his waist, and that all the four boys and deceased Chhotey Lal began to assault Dinesh Chandra with knives, and Dinesh Chandra wielded his knife in self defence and caused injuries to Ram Karan and Chhotey Lal and thereafter fell down and became unconscious. ". This portion of the evidence of P.W. 10 also shows that C.Ws. 1 to 3 left the place soon after exchange of hot words began between the two sides. Therefore, I am of the opinion that there is no reason to reject the evidence of C.W. 2 that no quarrel took place when he was present near about the scene of occurrence. In the circumstances of the case, it is very probable that before serious trouble started from the exchange of hot words, C.Ws. 1 to 3. the Commissioner and the counsel for both the parties in the civil suit, left the place and were not present at the time of the actual occurrence as stated by P.Ws. 1 and 10. Mr. R.L. Kohli drew our attention to some portions of the judgment of the learned Judges of the High Court and submitted that the observation of the learned Judges that from the side of the defence it was not suggested to any witness that Abdul Wahid (P.W. 10) was a different man and that he has been introduced because the real Abdul Wahid was not prepared to support the prosecution case is incorrect. The learned counsel further submitted that the observation of the learned Judges that the presence of Gyan Chand (P.W. 1) at the time of the occurrence does not appear to have been challenged by the defence is also not correct. This criticism of the learned counsel for the appellants appears to be well founded, for I find that a suggestion has been made to P.W. 10 in cross examination and he has admitted that there is also 408 another person named Wahid son of Abdul Rehman in his mohalla and that that person was an accused in a rioting case. And in the cross examination of P.W. 1 it has been clearly suggested that he was not present at the spot and that he prepared the report exhibit Ka. 3 afterwards with some consultation. P.W. 1 has no doubt denied that suggestion and stated that he was present at the spot and that he himself wrote the report exhibit Ka. 3 before he came out of the house by opening the door. The learned Judges have stated in their judgment that after Ram Karan stated that he has spent thousands of rupees on commissions and every time the report of the Commissioner was set aside on the objection of Prakash Chandra and he instigated his sons to kill Prakash Chandra and Umesh Chandra, all the five sons of Ram Karan started giving knife blows to Prakash Chandra and Umesh Chandra and both of them fell down. This portion of the judgment of the learned Judges is to the effect that all the five sons of Ram Karan including the deceased Chhotey Lal attacked the deceased Prakash Chandra and Umesh Chandra whereas it is the case of the prosecution as brought out in the evidence of P.W. 1 that after Ram Karan instigated his sons to open the attack only Chhotey Lal and Ved Prakash attacked Prakash Chandra with knives and only Sunil Kumar. Anil Kumar and Satish Kumar attacked Umesh Chandra with knives. It is unfortunate that these inaccuracies have crept into the judgment of the learned Judges of the High Court. But on an overall consideration of the entire material on record and the evidence in the case in the light of the arguments of the learned counsel for the parties I am of the opinion that the appreciation of the evidence of P.Ws. 1, 10 and 11 by the learned Sessions Judge and the learned Judges of the High Court in so far as the appellants Sunil Kumar and Ved Prakash are concerned is correct and that the evidence of P.Ws. 1 and 10 proves beyond reasonable doubt that these two appellants Sunil Kumar and Ved Prakash attacked the deceased Prakash Chandra and Umesh Chandra with knives as a result of which both of them, who had no weapons died on the spot, and the evidence of P.Ws. 10 and 11 proves satisfactorily and beyond any reasonable doubt that these two appellants attacked P.W. 11 with knives with such intention that if he had died as a result of the injuries sustained by him they would be guilty of murder in furtherance of their common intention to murder. The dead bodies of Prakash Chandra and Umesh Chandra and blood were found in front of the house of both the 409 deceased and P.W. 11. Both the deceased had no weapons and they had been attacked before P.W. 11 arrived and wield his knife against Ram Karan and Chhotey Lal. The main occurrence had taken place in front of the house of both the deceased and P.W. 11. Before the trial court it was not submitted that the attack by the accused persons on both the deceased Prakash Chandra and Umesh Chandra and P.W. 11 was without any pre meditation in a sudden fight in the heat of passion upon a sudden quarrel. Nor is it a case in which it could be said that the offenders had not taken undue advantage or had not acted in a cruel or unusual manner. No such argument was put forward even before the High Court to bring the main occurrence under section 304 (Part I) I.P.C. Since I have found that the occurrence has taken place in front of the house of the two deceased and P.W. 11 in this case and that the accused persons were the aggressors neither Exception 2 nor Exception 4 to section 300 I.P.C. would apply to the facts of this case and the offence cannot be brought under section 304 (Part I) I.P.C. In these circumstances, I agree with the learned Sessions Judge that the appellants Sunil Kumar and Ved Prakash were the aggressors and find that they have been rightly convicted under section 302 read with section 34 I.P.C. for the offence of murder of those two persons and under section 307 read with section 34 I.P.C. with reference to P.W. 11. But I am of the opinion, having regard to the age of appellant Ram Karan, who was about 70 years old at the time of the occurrence that there is a reasonable doubt as to whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by his waist and whether he would have asked all his sons to attack and kill Prakash Chandra and his son. I therefore, give the benefit of this reasonable doubt to the appellant Ram Karan and set aside his conviction under section 302 read with s.34 (two counts) and under section 307 read with section 34 and acquit him and direct him to be set at liberty forthwith if he is in custody and his presence is not required in connection with any other case. In other respects I dismiss the criminal appeal and confirm the conviction of Sunil Kumar and Ved Prakash and the sentences awarded to them. In accordance with the opinion of the majority, the appeal is allowed to the extent that the conviction of Ram Karan under section 302 read with section 34 (two counts) and under section 307 read with section 34 of the Indian Penal Code is set aside and he is acquitted and that convictions of the appellants, Sunil Kumar and Ved Prakash, are 410 altered from one under section 302/34, I.P.C. to that under section 304(1)/34, IPC and they are sentenced to rigorous imprisonment for seven years. Conviction and sentences under section 307/34, I.P.C. are maintained and sentences awarded have already been directed to run concurrently. S.R. Appeal partly allowed.	The five accused Ram Karan, his sons Sunil Kumar, Ved Prakash, Anil Kumar, Satish Kumar and deceased son Chhoteylal filed a Civil Suit 34 of 1967 against the decased Prakash Chandra, his brother Gopi Chandra and one Krishan Devi, alleging that while constructing their new house Prakash Chandra had encroached upon a portion of their land. In that suit appellant Ram Karan got Commissioners appointed by the court on five or six occasions for taking measurements of the properties with the object of proving his case of encroachment by Prakash Chandra, the deceased. But these Commissioners ' reports were set aside on the objection raised by Prakash Chandra and the other defendants. The last Advocate Commissioner Mr. Mathur (C.W. 1) visited the spot on 6 9 1970, the day of occurrence, accompanied by Mr. Zafar Hussain (C.W. 2) who appeared for deceased Prakash Chandra and Mr. Mahesh Chandra (C.W. 3) who appeared for Ram Karan. After the completion of the survey work and measurements at about 1 P.M. when all the three lawyers were standing and talking in front of the house of the appellants deceased Prakash Chandra and Umesh Chandra came there to talk to the Commissioner, which interference was not liked by the appellants. This resulted in a sudden quarrel, exchange of hot words later followed by assault with knife etc., on the appellants which, according to prosecution, was in the exercise of right of self defence by the prosecution party, particularly Dinesh Chandra (P.W. 11). On the side of the appellants Ram Karan 's son Chhotey Lal (accused) died and on the side of the prosecution Prakash Chandra and his son Umesh Chandra died and Dinesh Chandra (P.W. 11) was grievously injured. All the five accused were tried and convicted by the Sessions Judge for offences under sections 302/149 I.P.C. (two counts) and 307/149 I.P.C. and were sentenced to imprisonment for life and rigorous imprisonment for four years respectively. Ram Karan was also convicted under section 147 and sentenced to undergo rigorous imprisonment for one year and his four sons were convicted under section 148 and sentenced to rigorous imprisonment for two years. In appeal the 396 High Court acquitted Anil Kumar and Satish Kumar, set aside the conviction and sentence under sections 147 and 148 I.P.C. in respect of the rest and confirmed (a) their sentence of life imprisonment by altering the conviction one under sections 302/34 I.P.C. and (b) their sentence of four years rigorous imprisonment to one under sections 307/34 I.P.C. Hence the appeal by special leave by Ram Karan and his two sons. Acquitting Ram Karan and allowing the appeal of the other two in part, the Court ^ HELD: Having regard to the age of the appellant Ram Karan who was about 70 years old at the time of the occurrence, there is a reasonable doubt as to whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by his waist and whether he would have asked all his sons to attack and kill Prakash Chandra and his sons. The appellant Ram Karan is entitled to be set at liberty. [409 D E] BY MAJORITY Per Fazal Ali, J. (and on behalf of D.A. Desai, J.) 1:1. Exception 4 to section 300 I.P.C. provides that culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. [399 D] 1:2. In this case, the incident occurred upon a sudden quarrel and no one took undue advantage or acted in a cruel or unusual manner on either side. Prakash Chandra and Umesh Chandra on the side of the prosecution died and Chhotey Lal on the side of the accused died and each of them met a homicidal death. Therefore exception 4 to section 300 Indian Penal Code is clearly attracted and the offence of murder would be reduced to culpable homicide in respect of Sushil Kumar and Ved Prakash and, therefore, they would be guilty of committing on offence under section 304(1)/34 I.P.C. A sentence of rigorous imprisonment for seven years would be appropriate; conviction and sentence under sections 307/34 I.P.C. being in order would run con currently. [399 B C, G H, 400 A] Per Varadarajan, J. (contra). Sunil Kumar and Ved Prakash were the aggressors and they have been rightly convicted under section 302 read with section 34 I.P.C. for the offence of murder of Prakash Chandra land Umesh Chandra and under sections 307/34 I.P.C. with reference to P.W. 11. Neither Exception 2 nor Exception 4 to section 300 I.P.C. would apply to the facts of the case and the offence cannot be brought under section 304 (Part I) I.P.C. The evidence of P.Ws. 1, 10 and 11 proves beyond reasonable doubt that these two appellants Sunil Kumar and Ved Prakash attacked the deceased Prakash Chandra and Umesh Chandra with knives as a result of which both of them, who had no weapons died on the spot and these two appellants attacked P.W. 11 with knives with such intention that if he had died as a result of the injuries sustained by him they would be guilty of murder in furtherance of their common intention to murder. Their conviction under section 307/34 is proper. [408 F H, 409 C D] 397
Appeals Nos. 2441 and 2442 of 1968. Appeals by special leave from the judgment and order dated October 17, 1968 of the Bombay High Court in Arbitration Petitions Nos. 49 and 50 of 1968. I. N. Shroff, for the appellant (in C.A. No. 2441/1968). V. M. Tarkunde and I. N. Shroff, for the appellant (in C.As. 2442 of 1968). section V. Gupte, B. R. Agarwala for the respondent (in both the appeals). The Judgment of the Court was delivered to Ray, J. These two appeals are by special leave against I the judgment dated 17 October, 1968 of the High Court at Bombay determining under section 33 of the that the umpire rightly entered upon the reference and further extending the time till 31 December, 1968 for making an award thereof by the umpire. Two questions arise for consideration in these appeals. First, whether there can be any valid appointment of umpire by arbitrators without obtaining consent of the appointee to be an um 697 pire. Second, on the construction of the arbitration agreement in the present case was the operation of paragraph 4 of Schedule: I of the excluded with the result that the umpire could enter upon the reference only in the event of a difference arising between the arbitrators. On 26 April, 1967 there was an arbitration agreement between the partnership firm of Indian Engineering Company and Keshavsinh Dwarkadas Kapadia. Kapadia had appointed M/s. Chetan Trading Company as the sole selling agent of Kapadia 's, several products including aluminium and copper wire by an agreement dated 16 September, 1965. Chetan Trading Company in their turn appointed Indian Engineering Company as their sole selling agent in respect of aluminium and copper wires. Chetan Trading Company terminated their agreement with Indian Engineering Company. Kapadia also terminated the sole selling agency with Chetan Trading Company Indian Engineering Company contended that on the termination of the sole selling agency between themselves and Chetan Trading Company Indian Engineering Company became the sole selling agent of Kapadia in terms of the agreement ' dated 16 September, 1965. Indian Engineering Company claimed damages against Kapadia for breach of the agreement. Kapadia claimed damages and moneys from Indian Engineering Company. 'Disputes arose between the parties. These disputes were referred to arbitration in accordance with the agreement dated 26 April, 1967. There was a similar arbitration agreement between Chetan Trading Company and Indian Engineering Company on 5 June, 1967 in respect of their disputes and claims against each other. The arbitration agreement and the arbitrators were identical in both the cases. Clauses 1, 2, 5 and 6 of the arbitration agreement which are relevant for the purposes of the present appeals are as follows: Clause (1): All the disputes and differences arising out of or in relation to the said Sole Selling Agency Agreement be and they are hereby referred to the arbitration of the said Shri H. G. Advani and Shri J. N. Gandhi. Clause (2) That the arbitration shall be governed by them provisions of the . Clause (5): The arbitrators shall make and publish their award within four months from the date of their entering upon the reference and they are hereby authorised to extend the said time from time to time as may be required with the previous written consent of both the parties hereto. 698 Clause (6): The said arbitrators shall before proceeding with the arbitration appoint an umpire and in the event of any difference arising between them they shall refer the 'matter to the umpire for his decision and award. The arbitrators Messrs. Advani and Gandhi held their first meeting on 12 September, 1967. At the said meeting before entering upon the reference the arbitrators appointed an umpire in the following terms: "Mr. Porus Mehta failing him Mr. Murzban Mistry appointed umpire". On 11 January, 1968 the time laid down by clause (5) of the agreement for making the award expired. On 14 January, 1968 the respondents wrote to the appellants to obtain the neces sary extension of time for making the award. The appellants did not comply with the request and on 6 March, 1968 wrote to the arbitrators that Mr. Advani one of the arbitrators would be biased in favour of the respondents. Thereafter, the respondents through their solicitors called upon the arbitrators to refer the matter to the umpire and also by a separate letter called upon the umpire Mr. Porus A. Mehta to enter on the reference as umpire appointed by the arbitrators. Mr. Mehta fixed a meeting on 27 May, 1968. The appellants raised certain objections. The meeting was adjourned. Another meeting was fixed on 17 June, 1968. At the meeting held on 17th June, 1968 Mr. Mehta gave certain directions in regard to the proceedings and instructions thereof and fixed 12 July, 1968 for hearing. The appellants by letter dated 12 July, 1968 addressed to Mr. Mehta contended that the consent of the umpire was not obtained before his appointment and therefore there was no valid appointment of the umpire. Mr. Mehta fixed the meeting on 13 July, 1968 and decided to proceed with the arbitration and adjourned the meeting to 20 July, 1968. The appellants obtained an adjournment on the ground that the appellants wanted to file a petition challenging the appointment of Mr. Mehta as an umpire. Mr. Mehta adjourned the matter till 30 July, 1968. In this context of events the appellants filed applications under section 33 of the which resulted in the order appealed against. Three contentions which had been advanced An the High Court were repeated here. First, that the arbitrators before pro ceeding with the reference did not obtain consent of the umpire to his appointment as umpire, and, therefore, there was no appointment of umpire. Secondly, under clause (6) of the arbitration agreement operation of paragraph 4 of Schedule I of the 699 was excluded and the umpire could enter upon the reference only in the event of a difference arising between the arbitrators on their disagreement. No difference arose between the arbitrators in the present case but only time for making the award expired. Therefore, the umpire had no right to enter upon the reference. Thirty under clause (6) of the arbitration agreement, the umpire had no right to enter upon the reference unless the arbitrators referred the matter to the umpire. The High Court relied on the decision of the Judicial Committee in Mirza Sadik Husain vs Mussanmat Kaniz Zohra Begam and Anr.(1) (38 I.A. 181) and held that the umpire signified the consent by taking up the office and the umpire rightly entered on the reference. The High Court held that the contingency provided for in paragraph 4 of Schedule I to the was not excluded. The High Court however said that if the High Court was wrong in the view that paragraph 4 of Schedule I to the was not excluded, expiry of time to make an award could not be regarded as a disagreement between the arbitrators. The third contention of the appellants was also rejected by the High Court on the ground that clause (6) of the arbitration agreement in the present case did not apply when the arbitrators did not make an award within time. Counsel for the appellants contended that the words 'if any appointed arbitrator or umpire I neglects or refuses to get ' occurring in section 8(1) of the mean that one can refuse to act only after one has accepted the appointment. This contention was supported by relying on the following observation in Russell on Arbitration, 18th Edition, at page 212: "Acceptance of offices: Acceptance of the office by the arbitrator appears to be necessary to perfect his appointment. It has been so decided in the case of an umpire, and it would seem to be only reasonable that an appointment should not be considered effective until the person appointed has agreed either expressly or tacitly to exercise the function of the office". Two decisions are cited in Russell in support of the view expressed by the author. These decisions are: Ringland vs Lowndes (7 ) ; E.R. 749 and Tradax Export section A. vs Volkawagenwerk 3 A.G. ', (1969) 2 O.B. 599. The decision in Tradax Export case (supra) has been affirmed by the Court of Appeal as will appear in It is important to notice the distinction between appointment and acceptance of office. The present appeals concern the appointment of an umpire. The questions of effectiveness or per 700 fection of appointment are by the nature of things subsequent to appointment unless the agreement or the statute provides otherwise. Arbitrators and umpire too are often appointed by the parties. Sometimes an umpire is appointed by arbitrator. The constitution of the arbitral body and the manner in which the appointments are made are primarily dealt with in the arbitration agreement or else the will apply. In some cases, the appointment of arbitrator may require special consideration. If, for instance, two arbitrators are required to be appointed one by each party an appointment of arbitrator by a party is not complete without communication thereof to the other party. The reason in the words of Lord Denman is this : 'Neither party can be said to have chosen an arbitrator until he lots the other party know the object of his choice" (See Thomas vs Fredricks) ( 1 847) 10 Q.B. 775). Where each party was to appoint a valuer by 31 May, 1847 and one of the parties nominated a referee late on 31 May and sent by that night 's post a notice thereof to the defendant who received it on 1 June, it was held that the plaintiff had not nominated a referee by 31 May. (See Tew vs Harris The necessity for communication of appointment of arbitrator to the parties as also to the appointee depends often on the languae of the arbitration clause. In the Tradax Export case, (supra) the arbitration clause was as follows : ". . Any claim must be made in writing and claimant 's arbitrator appointed within three months ' of final discharge and where this provision is not complied with the claim shall be deemed to be waived and absolutely barred". This is described as the usual Centrocon arbitration clause in charterparty agreement. It is noticeable that in the Centrocon arbitration clause the claimant is required to appoint an arbitrator within three months of final discharge of cargo or else the claim is barred. An effective appointment of an arbitrator in such a clause is necessary to constitute arbitral authority within the stipulated time to prevent the claim from being barred. Therefore, in such a clause not only communication to the appointee but also the acceptance of office by the appointee is essential for effective appointment of arbitrator within the meaning of the clause. A mere nomination or appointment unknown to the appointee was held not to be an appointment far less an effective appointment of arbitrator within the meaning of that clause. The appointment will be effective only when the appointed arbitrator accepts office and is armed with the duty and authority of an arbitrator. Even in such a clause the stage of effective appointment will be when he has indicated his willingness to act in that matter. 701 In the Tradax Export case (supra) the charterers gave notice of appointment to the arbitrator. Three months expired The other side contended that there was no appointment of arbit rator within the stipulated time. The arbitrator was not set in motion. Neither was the arbitrator clothed with the mandate of arbitration nor was the machinery of arbitration invoked by the charterers. The appointment of an arbitrator there had to be perfected and implemented by calling upon the appointee to act. In the Tradax Export case (supra) the Court of Appeal observed that if an application under section 27 of the English Arbitration Act, 1950 had been made, the court would have, granted relief as explained in Liberian Shipping Corporation 'Pegasus ' vs A. King & Sons Ltd. Section 27 of the English Arbit ration Act is a special provision conferring power upon the court to extend the time for commencement of arbitration proceedings where in the circumstances of the case undue hardship would otherwise be, caused. This aspect indicates that in the Centrocon clause commencement of proceedings by effective appointment is vital and that is why relief against rigour of time clauses is granted under section 27 of the English Arbitration Act, 1950. In the present appeals, the reference was to arbitrators and they were required to appoint an umpire. The appointment of an umpire by two arbitrators means that the arbitrators are to coneur in appointing an umpire. There is no particular method of appointment of an umpire prescribed by the Act. The usual method of appointment of an umpire by the arbitrators is in writing. Arbitrators who are required to appoint an umpire are under no obligation to obtain the approval of the choice of the personnel by the parties who appointed the arbitrators. If any party is dissatisfied with the choice that will not affect the validity of the appointment (See Oliver vs Collings E.R. (1045). The appointment by arbitrators of an umpire should be the act of the will and judgment the two. Such an appointment is to be one of the choice and not of chance. [See Re. Cassell ; E.R. 232]. If an umpire declines the office the appointment is ineffectual. Ile arbitrators in such a case can make another appointment of an umpire if the arbitration agreement empowers them to do SO Or the court can appoint an umpire in lieu of an appointed umpire who refuses to act. Declining the office will be refusal to act. It is, therefore, apparent that appointment of umpire is something different from the acceptance of office by the umpire. The arbitrator Or umpire assumes his office when he accepts the appointment. There is no NO authority for the proposition that consent of the appointee is required before an umpire is appointed by the arbitrators. The observations in Russll on arbitration. 18 th Ed. 702 at page, 212 do not support that submission. The decision in Ringland vs Lowndes supra) which is referred to in Russell had very special features. Under the Public Health Act, 1848 a disputed claim to compensation was to be settled by arbitration. Arbitrators were required to make an award within 21 days after the appointment or within extended time, if any. If arbitrators neglected or refused to appoint an umpire for seven days after being requested so to do by any party the court of quarter sessions would on the application of such party appoint an umpire. In that case arbitrators were appointed in January, 1861. The arbitrators refused to appoint an umpire. The plaintiff applied at the Easter sessions to appoint an umpire but failed in consequence of want of a notice of his intention to make such application. The plaintiff thereafter gave the required notice and the second application was made at the Midsummer sessions. One Johnson was named as umpire. But as his consent had not been obtained no formal appointment was made. A third application was made at the Michaelms sessions and Johnson was on 14 October appointed umpire and accepted the appointment. The question for consideration was whether the appointment of the umpire was at the Midsummer sessions or at the Michaelmas sessions. Under the statute the award was, to be made within three months from the umpire,s appointment. The umpire made an award on 30 December, 1861. If the appointment was in the Midsummer sessions the Award would be bad. It will appear from the report (15 C.B ' (N.S.) 173 at pp. 178, 179 and 749 at pp. 752 and 759) that it was the duty. and practice of the clerk of the peace to make an, entry of the acts and proceedings of the court from Which the orders of the court were subsequently formally drawn up and no order would in the course of practice be formally drawn up unless the assent of the umpire to act had been previously obtained. Counsel for the board in Ringland 's case did not strongly press the objections that ' an order 'was made at the Midsummer sessions because there was no formal order of the Court in Midsummer 'sessions. The decision in Ringland vs Lowndes (supra) went up on appeal as will, appear from; , , E.R. 207, The appeal, however was on actual decision in Tringland,s case (supra) ;is 'to whether a party who attended before, an, arbitrator under protest, cross examined adversary 's witnesses and called witnesses did not preclude himself from afterwards objecting that the arbitrator was proceeding without authority it will appear at conceded that the, appointment of Johnson as an umpire took Place the October sessions. the special provisions of the statute, the mode. of making an application to the court of quarter Sessions, me practice of the court in regard to drawing up of 703 orders for appointment of umpire and the specific requirement of consent of the appointee to an order for appointment of umpire are all special and peculiar features in Ringland vs Lowndes (supra) to support the view that acceptance of umpirage is necessary for the appointment of the umpire. The decision of the Judicial Committee in Mirza Sadiq Husain vs Musammat Kaniz Zohra Begam (supra) was on the meaning of the words 'refuses to act ' occurring in section 510 of the Code of Civil Procedure, 1882. That section conferred power on the court to appoint a new arbitrator or umpire "if the arbitrator or the umpire refuses to act". The, Judicial Committee did not accept the construction put upon the words 'refuses to act ' by the High Courts in India that the power of the court under section 5 10 to appoint a new arbitrator in place of another arises only when that other had first consented to act and thereafter refused or became incapable. The Judicial Committee said "it appears to their Lordships that when an. arbitrator is nominated by parties, his refusal to act is signified as clearly by his refusal to accept nomination as by any other course he could pursue. His refusal to act necessarily follows, for he has not performed the first action of all, namely, to take up the office by signifying his assent to his appointment Their Lordships do not enter at length,into the matter as it appears that any other construction would open the way to an easy defeat of the provisions of the statute". Under section 8 of the Arbitration Act ,1940 if any umpire refuses to act and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators as the case may be, do not supply the vacancy any party may take recourse ' to the provisions of the statute for appointment of umpire. The construction which the Judicial Committee put upon the words 'refuses to act ' in Mirza Sadik Husain 's case (supra) applies to the provisions contained in the . Where the arbitrators appoint an umpire upon the condition of the umpire 's acceptance of office, the arbitrators wilt have power to reappoint an umpire if the post is refused. 'Where, again, the arbitrators appoint an umpire, without any such condition of acceptance of office, and the appointee declines the office, the, arbitrators in accordance with their powers under the arbitration agreement ea appoint an umpire again. The court has also power to appoint in lieu of an appointed umpire who refuges to act, as stated in section 8 of the . In all these cases the appointment of an. umpire becomes effective by acceptance of the office. Thereupon the power of appointment is exhausted. If the appointed person 704 after acceptance of office refuses to act or will not act the parties have to take recourse to the court. When the umpire assumes his office he accepts the appointment. The acceptance may be express or implied. Ile acceptance need not be in writing. It may be evidenced by conduct. It may be also by proceeding with the arbitration. In Mirza Sadik Husain 's case (supra) both the parties by agreement appointed arbitrators to settle their respective rights. One of the arbitrators refused to act. The respondents in that case declined to nominate another arbitrator in their behalf . The Judicial Committee said that this declinature was within their rights, the reason being that the arbitrator refused to accept office or to act after he had been appointed. The arbitrators in the present case completed their appointment of umpire before entering on the reference. Thereafter, it remained for the umpire to act or to refuse to act. The question of acceptance of appointment of umpire arises with reference to the stage when he is called upon to act. The does not say that appointment of umpire by arbitrators is to be made only after obtaining consent of the appointee. The arbitrators here appointed an umpire before entering on the reference: The appointment was not conditional upon the acceptance of appointment by the umpire. The scheme of arbitration proceedings indicates that the appointment of umpire and the acceptance of office are two separate matters arising at different stages in the proceedings. When the umpire is called upon to proceed in terms of the, appointment he will either assent expressly or by conduct to act or he will decline to act. The High Court was correct in holding that there was a valid appointment of the umpire and the umpire rightly entered upon the reference. Ile umpire 's authority commenced when he entered upon the reference on being asked to proceed with the reference. The other contention on behalf of the, appellants that para graph 4 of the First Schedule to the was excluded by clause (6) of the arbitration agreement in the: present case is unsound. Section 3 of the provides that an arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference. Paragraph 4 of the First Schedule provides that if the arbitrators have allowed their time to expire without making an award or have delivered to any party to the arbitration 705 agreement or to the umpire a notice in writing stating that they cannot agree, the umpire shall forthwith enter on the reference in lieu of the arbitrators. Clause (6) of the arbitration agreement does not state that only in the event of a difference arising between the arbitrators there shall be a reference to the umpire. There is no intention in the agreement to exclude the operation of paragraph 4 of the First Schedule to the . In the present case the agreement provided for appointment of umpire. The agreement also provided for making of the award by the arbitrators. It is, therefore, apparent that the intention of the parties was that when arbitrators would allow their time to expire without making the award the umpire would enter on the reference in lieu of the arbitrators. The High Court expressed the view that if the arbitrators allowed the time to expire that by itself would not amount to disagreement between the arbitrators. As to what constitutes disagreement cannot be laid down in abstract or inflexible propositions. It will depend upon the facts of the case as to whether there was a disagreement. The High Court did not agree with the view expressed in Russel on Arbitration, 18th Ed. at pages 205 and 208, that failure to make an award in time where the agreement prescribed time in which the arbitrators award is to be made would amount to disagreement. In Lossifoglu vs Counmantaro [1941] 1 K.B. 396 the arbitration clause provided "in case the arbitrators so appointed disagree they shall appoints an umpire". One of the arbitrators repeatedly endeavoured to arrange a meeting with the other, but failed to arrange such a meeting. The arbitrator then unsuccessfully attempted to obtain consent of the latter to the appointment of umpire. Thereafter, application was made to the court for the appointment of umpire. Disagreement between the arbitrators may take various shapes and forms. In the present case the arbitrators by reason of attitude of a party in correspondence addressed to the arbitrators could not agree to proceed with the matter. Where one of the arbitrators decline to act and the other is left alone it will in a case of this type amount to disagreement between the two arbitrators. In the Present case, there was disagreement between the arbitrators. Time to make the award also expired. Therefore, from both points of view the umpire had authority to inter upon the reference. For these reasons, we are of opinion that the High Court was correct in making the order. The appeals are dismissed. The order of the, High Court is upheld, In view of the fact that the time granted by the High Court till 31 December, 1968 for making the award cannot apply, the umpire Porus A. Mehta is I L3Sup. Cl/72 706 granted time for three months to make the award. Three months will run from the date of service of this order by any party to these appeals. The appellants will pay one set of hearing fee to the respondents. V.P.S Appeals dismissed.	Disputes having arisen between the appellant and the respondent, they were referred to arbitration in accordance with an arbitration agreement. The arbitrators entered upon the reference and also appointed an umpire. After the time for making the award had expired the appellant took the stand that one of the arbitrators would be biased in favour of the respondents. The respondents therefore called upon the arbitrators to refer the matter to the umpire and also wrote to the umpire and the umpire entered upon the reference. Thereafter, the appellants filed applications under section 33 of the . The High Court held that the umpire rightly entered upon the reference, and extended the time to enable the umpire to make an award. In appeal to this Court it was contended that : (1) the appointment of the umpire was not valid because the consent of the appointee was not obtained,; and (2) under cl. 6 of the Arbitration agreement the operation of para 4 Sch. I of the was excluded, and the umpire could enter upon the reference only in the event of a difference arising between the arbitrators and the arbitrators referred the matter to the umpire. Dismissing the appeal, HELD : (1) There is a distinction between appointment and acceptance of an office. The question of effectiveness or perfection is ordinarily subsequent to appointment. The scheme of arbitration proceedings indicates that the appointment of an umpire and the acceptance of office are two separate matters arising at different stages in the proceedings. [699 H; 700 A: 704 E] When the arbitrators are required to appoint an umpire it only means that the arbitrators are to concur in appointing the umpire. There is no particular method of appointment of an umpire though the usual method is by writing. Arbitrators who are required to appoint an umpire are under no obligation to obtain the approval of the choice of the person by the parties who appointed the arbitrators. If any party is dissatisfied with the choice it will not affect the validity of the appointment; nor is the appointment conditional upon the acceptance of appointment by the umpire. The necessity for communication of appointment to the parties as well as to the appointee depends on the language of the arbitration clause. The does not say that the appointment of umpire by the arbitrators is to be made only after obtaining the consent of the appointee. [700 D E; 701 D F; 704 D E] When the umpire assumes his office he accepts the appointment. Acceptance may be express or implied. It need not be in writing; it may be evidenced by conduct. It may also be evidenced by proceeding with 696 the arbitration. When the umpire is called upon to proceed in terms of the appointment he will either assent expressly or by conduct to act, or he will decline to act. [704 A B, D, E F] Mirza Sadik Husain vs Mussamat Kaniz Zohra Begam, L.R. 38 I.A. 181, applied. Ringland vs Lowndes, ; ; and Tradax Export S.A. vs Vokswagenwerk A.G. , explained and distinguished. (2) (a) Paragraph 4 of the first schedule provides that if the arbitra delivered to any party to the arbitration agreement or to the umpire a notice in writing stating that they cannot agree, the umpire shall forthwith enter on the reference in lieu of the arbitrators. 'Mere is no intention in cl. 6 of the agreement to exclude the operation of this paragraph. On the contrary the agreement shows that the intention of the parties was that when the arbitrators allowed time to expire without making the award the umpire should enter on the reference in lieu of the arbitrators. [704 H; 705 A C] (b) In the present case, the arbitrators, by reason of the attitude of one of the parties could not agree to proceed with the matter. Where one of the arbitrators declines to act and the other is left alone in a case of this type, it will amount to disagreement between the arbitrators. [705 F G] (c) Failure to make an award in time where the agreement prescribed time does in. certain circumstances, amount to disagreement. [705 D E] Iossifoglu vs Counmantaros, and Russel on Arbitration, 18th Ed. pp. 205, 208, referred to.
Appeals Nos. 507 508 of 1963. Appeal by special leave from the judgment and order dated November 4, 1950, of the Orissa High Court in Special Jurisdiction Cases Nos. 38 and 39 of 1958. R.Ganapathy Iyer and R. N. Sachthey, for the appellant (in both the appeals). 817 B.Sen and section N. Mukherjee, for the respondents (in both the appeals). April 21, 1964. The Judgment of the Court was delivered by SIKRI, J. The respondent, hereinafter referred to as the the dealer, filed a return for the quarter ending June 30, 1951, under the Orirsa Sales Tax Act (Orissa Act XIV of 1947) (hereinafter referred to as the Act). He claimed a deduction of Rs. 2,40,000/ under section 5(2)(a)(ii) in respect of the goods sold to a registered dealer, named M/s. Lal & Co. Ltd., BA 1335. Similarly, for the quarter ending September 30. 1951, he claimed a deduction of Rs. 15,677/1/3. By two assessment orders passed under section 12(2) of the Act, the Sales Tax Officer, Cuttack III circle, Jaipur, Orissa, determined the tax payable allowing the deduction of Rs. 2,40,000/ and Rs. 15,677/l/3, under section 5(2)(a)(ii). The dealer filed appeals to the Assistant Collector, Sales Tax, challenging the assesment on grounds which are not relevant. The dealer later filed revisions against the decision of the Assistant Collector. While the revisions were pending, the legislature amended the Orissa Sales Tax Act, in 1957, by Orissa Sales Tax (Amendment) Act (Orissa Act XX of 1957). The effect of this amendment was that revisions were treated as appeals to Sales Tax Tribunal, and it enabled the Government to file cross objec tions. The State of Orissa, in pursuance of this amendment, filed memorandum of cross objections challenging the deduc tion of Rs. 2,40,000/ and Rs. 15,677/l/3, on the ground that the dealer had not produced any declaration, as required under r. 27(2) of the Orissa Sales Tax Rules, 1947, as evidenced from the Check Sheet kept on record. The Tribunal upheld this objection and directed that fresh assessments be made. Certain other questions were raised before the Tribunal by the dealer, but as nothing turns on them as far as these appeals are concerned, they are not being mentioned. The Tribunal stated a case to the High Court and one of the questions referred to was "whether the assessing officer was not wrong in allowing deduction of Rs. 2,40,000/ for the quarter ending on 30 6 51 and Rs. 15,677/1/3 for the quarter ending on 30 9 51 from the respective gross turnover of the applicant. " The High Court, following its earlier decision in Member, Sales tax Tribunal, Orissa vs Messrs section Lal & Co. Limited (1) answered the question in the affirmative. The State of Orissa having obtained special leave from this Court, these appeals are now before us for disposal. Mr. Ganapathy lyer, on behalf of the State of Orissa, has contended before us that it is clear that r. 27(2) was not complied with, and, therefore, the Sales Tax Officer was wrong (1) (1961) 12 S.T.C. 25. 818 in allowing the said deduction. The answer to the question referred depends on the correct interpretation of section 5(2)(a)(ii), Co. and r. 27(2). They read thus: "section 5(2)(a)(ii) sales to a registered dealer of goods specified in the purchasing dealer 's certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of containers or other materials for the packing of such goods. Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover." "Rule 27(2). Claims for deduction of turnover under sub clause (ii) of clause (a) of sub section (2) of section 5 A dealer who wishes to deduct from his gross turnover on sales which have taken place in Orissa the amount of a sale on the ground that he is entitled to make such deduction under sub clause (ii) of clause (a) of sub section (2) of section 5 of the Act, shall produce a copy of the relevant cash receipt ,or bill according as the sale is a cash sale or a sale .on credit in respect of such sale and a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealer 's certificate of registration as being required for resale by him or in the execution of any contract: Provided that no dealer whose certificate of registration has not been renewed for the year during which the purchase is made shall make such a declaration and that the selling dealer shall not be entitled to claim any deduction of sales to such a dealer. " It is, plain from the terms of section 5(2)(a)(ii) that a selling ,dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealer 's certificate of registration as being intended for re sale by him in Orissa. No other condition is imposed by the above section. The proviso deals with consequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration, and ,directs that, in that event, the price of goods so utilised shall 819 be included in his turnover. Therefore, there is nothing in the section itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, them the price of goods is included in the taxable turnover of the buying dealer. But Mr. Ganapathy lyer says, be it so, but the rule making authority is entitled to make ruler, for carrying out the purposes of the Act, and r. 27(2) is designed to ensure that a buying dealer 's certificate of registration does, in fact, mention that the goods are intended for resale by him, and for that purpose it has chosen one exclusive method of proving the fact before a Sales Tax Officer. He further urges that no other method of proving that fact is permissible. Rule 27(2) is mandatory and if there is breach of it the selling dealer is not entitled to deduction. The learned counsel for the res pondent, on the other hand, contends that r. 27(2) is directory. He points out that the word 'shall ' should be read as 'may ', in the context. He further says that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer, according to the appellant, this would not be enough, but this could never have been intended. In our opinion, r. 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite Statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in r. 27(2), before being entitled to a deduction. We are, therefore, of the opinion that the High Court came to a correct conclusion. The High Court is correct in holding that the production of a declaration under r. 27(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of section 5(2)(a)(ii) of the Act. In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has not been shown that in fact the registration certificate of the buying dealer, M / s section Lal & Co., did not contain the statement that the goods were intended for resale by him in Orissa. The appeals accordingly fail and are dismissed with costs. One set of hearing fee. Appeals dismissed.	Assessment orders were passed by the Sales Tax Officer allowing the deductions of two amounts claimed by the respondent dealer under section 5(2)(a)(ii) of the Orissa Sales Tax Act in respect of goods sold to a registered dealer. The respondent dealer filed appeals to the Assistant Collector Sales Tax, challenging the assessment on grounds which were not relevant and against those decisions revisions were filed by the dealer. While the revisions were pending the Orissa Sales Tax Act was amended by Orissa Sales Tax (Amendment) Act (Orissa Act, 10 of 1957) with the result that revisions were treated as appeals to the Sales Tax Tribunal, and it enabled the Government to file cross objections. In pursuance, the State filed cross objections challenging the deductions on the ground that the dealer had not produced any declaration as required under r. 27(2) of the Orissa Sales Tax Rules, 1947. The Tribunal upheld this objection and directed that fresh assessments be made. On statement of the case, the High Court answered that the assessing officer was not wrong in allowing the deductions. On appeal by special leave). Held:(i) There is nothing in section 5 (2) (a) (ii) itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, then the price of goods is included in the taxable turnover of the buying dealer. (ii)The production of a declaration under r. 7(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of section 5(2)(a)(ii). Rule 27(2) must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales tax Officer to be satisfied that, in fact. the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in r. 27(2). before being entitled to a deduction. Member Sales tax Tribunal, Orissa vs Mls. section Lai & Co. (1961) 12 S.T.C. 25, referred to.
Civil Appeal No. 570 of 1976. Appeal by Certificate from the Judgment and Order dated 9.2.1976 of the Madras High Court in Tax Case No. 104 of 1969. T.A. Ramachandran, P.N. Ramaligam and A.T.M. Sampath for the Appellant. 628 V.Gauri Shanker, Manoj Arora, section Rajappa and Ms. A.Subhashini for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. This is the assessee 's appeal form a judgment of the Madras High Court dated 10.1.1975 answering three questions referred to it by the Income tax Appellate Tribunal in favour of the Revenue and against the assessee. The reference related to the assessment year 1961 62, the previous year in respect of which commenced on 13.4.1960. The judgment of the High Court is reported as (1976) 102 I.T.R.622. The appellant assessee is a partnership firm. Since 1949, it was carrying on, in Malaya, a money lending business and, as part of and incidental to the said business, a business in the purchase and sale of house properties, gardens and estates. It had been reconstituted under a deed dated 26.3.1960. The firm 's accounts for the year 1960 61, which commenced on 13.4.60, would normally have come to a close on or about the 13th April, 1961. However, the firm closed its accounts as on 13.3.1961 with effect from which date it was dissolved. Along with its income tax return for the assessment year 1961 62 filed on 10th April 1962, the assessee filed a profit and loss account and certain other statements. In the profit and loss account, a sum of $ 1,01,248 was shown as "difference on revaluation of estates, gardens and house properties" on the dissolution of the firm on 13.3.61, such difference being $ 70,500 in respect of "house properties" and $ 30,748 in respect of estates and gardens. In the memo of adjustment for income tax purposes, however, the above sum was deducted on the ground that it was not assessable either as revenue or capital. A statement was also made before the officer that partner Ramanathan Chettiar, forming one group and the other partners forming another group, were carrying on business separately with the assets and liabilities that fell to their shares on the dissolution of the firm. The Income tax Officer (I.T.O.) issued a notice under section 23(2) on the same day (10.4.1962) posting the hearing for the same day and completed the assessment also on the same day, after making a petty addition of Rs. 2083 paid as property tax in Malaya, and recording the following note: "Audit assessment Lakshmanan appears return filed I.T. 86 acknowledged in list of books scrutinised order dictated". 629 For the subsequent assessment year 1962 63, the assessee filed a return showing nil income along with a letter pointing out that the firm had been dissolved on 13.3.1961. Thereafter, on 3.9.63, the I.T.O. wrote a letter to the assessee to the effect that the revaluation difference of $ 1,01,248 should have been brought to tax in the assessment year 1961 62 in view of the decision of the Madras High Court in Ramachari & Co. vs C.I.T., He called for the basis for the valuation and also for the assessee 's objections. The assessee sent a reply stating that no profit or loss could be assessed on a revaluation of assets. Relying on a circular of the Central Board of Revenue dated 21.6.1956, it was urged that the assessee was gradually winding up its business in Malaya and that therefore, the surplus would only be capital gains. It was urged that the revaluation had been at a market price prevalent since 1.1.1954 and that, therefore, no capital gains were chargeable to tax. The I.T.O. followed up his letter by a notice under section 148 read with section 147(b). The assessee objected to the reassessment on two grounds: (1) that the circumstances did not justify the initiation of proceedings under section 147(b); and (2) that no assessable profits arose to the firm on the revaluation of assets on the eve of the dissolution of the firm. Overruling these objections, the I.T.O. completed a reassessment on the firm after adding back the sum of Rs.1,58,057 (the equivalent of $ 1,01,248) to the previously assessed income. The assessee 's successive appeals to the Appellate Assistant Commissioner and the Appellate Tribunal and reference, at its instance, to the High Court having failed,the assessee is before us. Three questions of law were referred to the High Court by the Tribunal. These were: "1. Whether, on the facts and circumstances of the case, the reassessment made on the assessee firm for the assessment year 1961 62 under section 147 of the Income tax Act is valid in Law? 2. Whether, on the facts and circumstances of the case, assessment of the sum of $ 1,01,248 as revenue profit of the assessee firm chargeable to tax for the assessment year 1961 62 is justified in law? 3. Whether, on the facts, and circumstances of the case, the Appellate Tribunal is right in law in sustaining the assessment of the sum of $ 1,01,348 after having found that the Department Officers are bound by the Circular of the Central Board of Revenue?" 630 We may deal at the outset with the third question. Though the High Court has dealt with this question at some length, we do not think any answer to this question can or need be furnished by us for the following reasons. First, the assessee has not been able to place before us the circular of the Board on which reliance is placed. It is not clear whether it is a circular or a communication of some other nature. Second, the circular, to judge from its purport set out in the High Court 's judgment, seems to have been to the effect that the surplus arising from the sale of properties acquired by a money lender in the course of his business would be in the nature of capital gains and not of income. Obviously such a proposition could not have been intended as a broad or general proposition of law, for the nature of the surplus on sale of assets would depend on the nature of the asset sold and this, in turn, would depend on the facts and circumstances of each case. In this case, no material was placed at any stage to show that the assets in question constituted the capital assets of the firm and not its stock in trade. Third, the plea of the assessee which was in issue all through was that there was no sale of assets by the firm when its assets are distributed among its partners and that no profits whether capital or revenue could be said to arise to the firm merely because, at the time of the dissolution, the firm revalued its assets on the basis of market value or any other basis, for adjusting the mutual rights and liabilities of the partners on the dissolution of the firm. The terms of the circular, as set out in the order of the High Court, cannot therefore be of any assistance to the assessee in answering the issues in this case. We, therefore, do not answer the third question posed by the Tribunal. Turning now to the first question, the relevant facts have already been noticed. The following relevant and material facts viz. (i) the dissolution of the firm, (ii) the revaluation of its assets, (iii) the distribution thereof among two groups of its partners, and (iv) the division and crediting of the surplus on revaluation to the partner 's accounts were not only reflected in the balance sheet, the profit and loss account and the profit and loss adjustment account but were also mentioned in the statement filed before the I.T.O. along with the return. Clearly, action u/s 148 read with clause (a) of s.147 could not be initiated in these circumstances but is action under clause (b) of that section also impermissible? That is the question. We may now set out the provisions of clause (b) of section 147 for purposes of easy reference. This clause which corresponds to section 34(1)(b) of the Indian Income tax Act, 1922 (`the 1922 Act ') permits initiation of reassessment of proceedings, "notwithstanding 631 that there has been no omission or failure as mentioned in clause (a) on the part of the assessee" provided "the Income tax Officer has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment". In the present case, on the information already on record and in view of the decision in Ramachari & Co. vs C.I.T., , there can be no doubt that the I.T.O. could reasonably come to the conclusion that income, profits and gains assessable for the assessment year 1961 62 had escaped assessment. But is that belief reached "in consequence of information in his posession"? The assessee 's counsel says "no", for, says he, it is settled law that the "information" referred to in clause (b) above, should be "information" received by the I.T.O. after he had completed the original assessment. Here it is pointed out that all the relevant facts as well as the decision in Ramachari (supra) had been available when the original assessment was completed on 10.4.1962. Action cannot be taken under this clause merely because the I.T.O., who originally considered the surplus to be not assessable, has on the same facts and the same case law which had been available to him when he completed the assessment originally, changed his opinion and now thinks that the surplus should have been charged to tax. The validity of the assessee 's argument has to be tested in the light of the decisions of this Court which have interpreted section 147(b) of the 1961 Act or its predecessor section 34(1)(b) of the 1922 Act and expounded its parameters. We may start with the decision in Maharaj Kumar Kamal Singh vs I.T.O., S.C. In this case it was held that the word "information" would include information as to the true and correct state of the law and would also cover information as to relevant judicial decisions. In that case the I.T.O. had re opened the assessment on the basis of a subsequent decision of the Privy Council and this was upheld. Referring to the use of the word "escape" in the section, the Court observed. "In our opinion, even in a case where a return has been submitted, if the income tax Officer erroneously fails to tax a part of asessable income, it is a case where the said part of the income has escaped assessment. The appellant 's attempt to put a very narrow and artificial limitation on the meaning of the word "escape" in section 34(1)(b) cannot, therefore, succeed." (underlining ours) 632 The meaning of the word "information" was again explained thus in C.I.T. vs A. Raman & Co., [1968] 67 I.T.R. 11 SC: "The expression `information ' in the context in which it occurs must, in our judgment, mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment. . Jurisdiction of the Income tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information, must, it is true, have come into the possession of the Income tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income tax Officer is not affected." (underlining ours) We may next refer to Kalyanji Mavji & Co. vs C.I.T., [1976 102] I.T.R. 287. It is unnecessary to set out the facts of this case. It is sufficient to refer to the enunciation of the law regarding the scope of section 34(1)(b) as culled out from the earlier decisions of this Court on the subject. At page 296 the Court observed: "On a combined review of the decisions of this Court the following tests and principles would apply to determine the applicability of section 34(1)(b) to the following categories of cases: (1) where the information is as to the true and correct state of the law derived from relevant judicial decisions; (2) where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income tax Officer. This is obviously based on the principle that the taxpayer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority; 633 (3) where the information is derived from an external source of any kind. Such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment; (4) where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law." Before applying the above principles to the facts of the present case, we may refer to two earlier decisions of the Madras High Court which have been followed in the judgment under appeal. In Salem Provident Fund Society Ltd. vs C.I.T., , the Income tax officer, in calculating the annual profits of an insurance company, had, under the statute to work out the difference between the deficiencies as shown in the actuarial valuation of the company in respect of two successive valuation periods. At the time of original assessment, the Income tax Officer, by mistake, added the two deficiencies instead of subtracting one from the another. This mistake he committed not in one assessment year but in two assessment years. Subsequently, he discovered his mistake and initiated proceedings under section 34(1)(b). The contention urged on behalf of the assessee was that all the statements, on the basis of which the re assessment proceedings were taken, were already on record and that, in such a case, there was no `information ' which would justify the reassessment. An argument was also raised that the rectification, if any, could have been carried out only under section 35 and not under section 34. These contentions were repelled. In regard to the former objection, the High Court pointed out: "We are unable to accept the extreme proposition that nothing that can be found in the record of the assessment, which itself would show escape of assessment or under assessment, can be viewed as information which led to the belief that there has been escape from assessment or under assessment. Suppose a mistake in the original order of assessment is not discovered by the Income tax Officer himself on further scrutiny but it is brought to this notice by another assessee or even by a subordinate or a superior officer, that would appear to be information disclosed to the Income tax Officer. if the mistake itself is not extraneous 634 to the record and the informant gathered the information from the record, the immediate source of information to the Income tax Officer in such circumstances is in one sense extraneous to the record. It is difficult to accept the position that while what is seen by another in the record is `information ' what is seen by the Income tax Officer himself is not information to him. In the latter case he just informs himself. It will be information in his possession within the meaning of section 34. In such cases of obvious mistakes apparent on the face of the record of assessment that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under assessment. A similar question arose in CIT vs Rathinasabapathy Mudaliar, In that case the assessee, who was a partner in a firm, did not include in his return the income of his minor son admitted to the benefits of the partnership as required by section 16(3) of the 1922 Act. The minor son submitted a separate return and was assessed on this income. Subsequently, the Income tax Officer "discovered" his error in not assessing the father thereon and started re assessment proceedings. The re assessment was upheld by the Madras High Court on the same logic as had been applied in Salem Provident Fund Society Ltd. case (supra). The above line of thinking has not only held the field for about thirty years now but has also received approval in Anandji Haridas and Co. (P) Ltd. vs S.P. Kushare, Sales Tax Officer, [1968] 21 S.T.C. 326. This issue has further been considered in the decision of this Court in the case of Indian and Eastern Newspaper Society vs C.I.T. (the IENS case, for short) [1979] I.T.R. 996. In this case the income of the assessee derived by letting out certain portions of the building owned by it to its members as well as to outsiders was being assessed as business income. In the course of audit, an internal audit party expressed the view that the money realised by the assessee on account of the occupation of its conference hall and rooms should have been assessed under the head "income from property" and not as business income. The Income tax Officer thereupon initiated re assessment proceedings and this was upheld by the Tribunal. On a direct reference under s.257 of the Act, this Court held that the opinion of the audit party on a point of law could not be regarded as "information" and that the initiation of the reassessment proceedings was not justified. It was contended for the Revenue, that the reassessment proceedings would 635 be valid even on this premise. Dealing with this argument, the Court observed: "Now, in the case before us, the ITO had, when he made the original assessment, considered the provisions of sections 9 and 10. Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion on material already considered by him. The revenue contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b). Reliance is placed on Kalyanji Mavji & Co. vs CIT, , where a Bench of two learned, Judges of this Court observed that a case where income had escaped assessment due to the "oversight, inadvertence or mistake" of the ITO must fall within section 34(1)(b) of the Indian Income Tax Act, 1922. It appears to us, with respect, that the proposition is stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on re appraising the material considered by him during the original assessment, the ITO discovers that he has committed an error inconsequence of which income has escaped assessment, it is open to him to reopen the assessment. In our opinion, an error discovere on a reconsideration of the same material (and no more) does not give him that power. That was the view taken by this Court in Maharaj Kumar Kamal Singh vs CIT, [1959] 35 I.T.R. 1; CIT vs A. Raman & Co., and Bankipur Club Ltd. vs CIT and we do not believe that the law has since taken a different course. Any observation in Kalyanji Mavji & Co. vs CIT, suggesting the contrary do not, we say with respect, lay down the correct law." (underlining ours) The Court proceeded further to observe: "A further submission raised by the revenue on section 147(b) of the Act may be considered at this stage. It is urged that the expression "information" in section 147(b) refers to the realisation by the ITO that he has committed an error when making the original assessment. It is said that, when upon receipt of the audit note the ITO discovers or realizes that a mistake has been committed in the original 636 assessment, the discovery of the mistake would be "information" within the meaning of section 147(b). The submission appears to us inconsistent with the terms of section 147(b) Plainly, the statutory provision envisages that the ITO must first have information in his possession, and then in consequence of such information he must have reason to believe that income has escaped assessment. The realisation that income has escaped assessment is covered by the words "reason to believe", and it follows from the "information" received by the ITO. The information is not the realisation, the information gives birth to the realisation. " Sri Ramachandran submits that these decisions support his contention that reassessment proceeding can be validly initiated only if there is some information received by the I.T.O. from an external source after the completion of the original assessment but not in a case like the present where there is nothing more before the I.T.O. than what was available to him when the original assessment was completed. He also submits that the observations in the IENS case have cast doubts on the propositions enunciated in Kalyanji Mavji 's case (supra) and reiterates the proposition that reassessment proceedings cannot be availed of to revise, on the same material, the opinion formed or conclusion arrived at earlier in favour of the assessee. On the other hand, Dr. Gaurisankar, appearing for the Revenue, mentioned that the decision in the IENS case holding that the opinion of an audit party would not constitute `information ' and qualifying the principles enunciated in Kalyanji Mavji is pending consideration by a larger Bench of this Court. He, however, submitted that the reassessment in this case would be valid even on the strength of the observations in the IENS case. We shall proceed to consider the correctness of this submission. We have pointed out earlier that Kalyanji Mavji (supra) outlines four situations in which action under S.34(1)(b) can be validly initiated. The IENS case has only indicated that proposition (2) outlined in this case and extracted earlier may have been somewhat widely stated; it has not cast any doubt on the other three propositions set out in Kalyanji Mavji 's case. The facts of the present case squarely fall within the scope of propositions 2 and 4 enunciated in Kalyanji Mavji 's case. Proposition (2) may be briefly summarised as permitting action even on a "mere change of opinion". This is what has been doubted in the IENS case (supra) and we shall discuss its application to this case a 637 little later. But, even leaving this out of consideration, there can be no doubt that the present case is squarely covered by proposition (4) set out in Kalyanji Mavji & Co. (supra). This proposition clearly envisages a formation of opinion by the Income tax Officer on the basis of material already on record provided the formation of such opinion is consequent on "information" in the shape of some light thrown on aspects of facts or law which the I.T.O. had not earlier been conscious of. To give a couple of illustrations, suppose an I.T.O., in the original assessment, which is a voluminous one involving several contentions, accepts a plea of the assessee in regard to one of the items that the profits realised on the sale of a house is a capital realisation not chargeable to tax. Subsequently he finds, in the forest of papers filed in connection with the assessment, several instances of earlier sales of house property by the assessee. That would be a case where the I.T.O. derives information from the record on an investigation or enquiry into facts not originally undertaken. Again, suppose if I.T.O. accepts the plea of an assessee that a particular receipt is not income liable to tax. But, on further research into law he finds that there was a direct decision holding that category of receipt to be an income receipt. He would be entitled to reopen the assessment under s.147(b) by virtue of proposition (4) of Kalyanji Mavji. The fact that the details of sales of house properties were already in the file or that the decision subsequently come across by him was already there would not affect the position because the information that such facts or decision existed comes to him only much later. What then, is the difference between the situations envisaged in propositions (2) and (4) of Kalyanji Mavji (supra)? The difference, if one keeps in mind the trend of the judicial decisions, is this. Proposition (4) refers to a case where the I.T.O. initiates reassessment proceedings in the light of "information" obtained by him by an investigation into material already on record or by research into the law applicable thereto which has brought out an angle or aspect that had been missed earlier, for e.g., as in the two Madras decisions referred to earlier. Proposition (2) no doubt covers this situation also but it is so widely expressed as to include also cases in which the I.T.O., having considered all the facts and law, arrives at a particular conclusion, but reinitiates proceedings because, on a reappraisal of the same material which had been considered earlier and in the light of the same legal aspects to which his attention had been drawn earlier, he comes to a conclusion that an item of income which he had earlier consciously left out from the earlier assessment should have been brought to tax. In other words, as pointed out in IENS case, it also 638 ropes in cases of a "bare or mere change of opinion" where the I.T.O. (very often a successor officer) attempts to reopen the assessment because the opinion formed earlier by himself (or, more often, by a predecessor I.T.O.) was, in his opinion, incorrect. Judicial decisions had consistently held that this could not be done and the IENS case (supra) has warned that this line of cases cannot be taken to have been overruled by Kalyanji Mavji (supra). The second paragraph from the judgment in the IENS case earlier extracted has also reference only to this situation and insists upon the necessity of some information which make the ITO realise that he has committed an error in the earlier assessment. This paragraph does not in any way affect the principle enumerated in the two Madras cases cited with approval in Anandji Haridas, [1986] 21 S.T.C. 326. Even making allowances for this limitation placed on the observations in Kalyanji Mavji, the position as summarised by the High Court in the following words represents, in our view, the correct position in law: "The result of these decisions is that the statute does not require that the information must be extraneous to the record. It is enough if the material, on the basis of which the reassessment proceedings are sought to be initiated, came to the notice of the Income tax Officer subsequent to the original assessment. If the Income tax Officer had considered and formed an opinion on the said material in the original assessment itself, then he would be powerless to start the proceedings for the reassessment. Where, however, the Income tax Officer had not considered the material and subsequently come by the material from the record itself, then such a case would fall within the scope of section 147(b) of the Act. " Let us now examine the position in the present case keeping in mind the narrow but real distinction pointed out above. On behalf of the assessee, it is emphasised (a) that the amount of surplus is a very substantial amount,(b) that full details of the manner in which it had resulted had been disclosed, (c) that the profit and loss account, the profit and loss adjustment account and statement made before the I.T.O. had brought into focus the question of taxability of the surplus and (d) that decision in Ramachari 's case had been reported by 10.4.1962. No Income tax Officer can be presumed to have completed the assessment without looking at all this material and the said decision. No doubt, some doubt had been thrown as to whether a statement had been given at the time of original assessment that the amount 639 of surplus was not taxable as an income or a capital gain but the case has proceeded on the footing that such a statement was there before the officer. This, therefore, is nothing but a case of "change of opinion". On the other hand, the authorities and the Tribunal have drawn attention to the fact that the return, the section 143(2) notice and assessment were all on the same day and counsel for the Revenue urged that obviously, in his haste, the I.T.O. had not looked into the facts at all. It is urged that no Income tax Officer who had looked into the facts and the law could have failed to bring the surplus to tax in view of then recent pronouncement in Ramachari 's case. Dr. Gaurishankar submitted that the Tribunal has found that the I.T.O. "had acted mechanically in accepting the return without bringing his mind to play upon the entry in the statement with reference to the distribution of the assets". He pointed out that there is no evidence of any enquiry with reference to this aspect and that, the amount involved being sufficiently large, the I.T.O., if he had been aware of the existence of the entry would certainly have discussed it. He urged that the question whether the I.T.O. had considered this matter at the time of the original assessment or not is purely a question of fact and the Tribunal 's conclusion thereon having been endorsed by the High Court, there is no justification to interfere with it at this stage. We think there is force in the argument on behalf of the assessee that, in the face of all the details and statement placed before the I.T.O. at the time of the original assessment, it is difficult to take the view that the Income tax Officer had not at all applied his mind to the question whether the surplus is taxable or not. It is true that the return was filed and the assessment was completed on the same date. Nevertheless, it is opposed to normal human conduct that an officer would complete the assessment without looking at the material placed before him. It is not as if the assessment record contained a large number of documents or the case raised complicated issues rendering it probable that the I.T.O. had missed these facts. It is a case where there is only one contention raised before the I.T.O. and it is, we think, impossible to hold that the Income tax Officer did not at all look at the return filed by the assessee or the statements accompanying it. The more reasonable view to take would, in our opinion, be that the Income tax Officer looked at the facts and accepted the assessee 's contention that the surplus was not taxable. But, in doing so, he obviously missed to take note of the law laid down in Ramachari which there is nothing to show, had been brought to his notice. When he subsequently became aware of the decision, he initiated proceedings under section 147(b). The material which constituted information and on 640 the basis of which the assessment was reopened was the decision in Ramachari. This material was not considered at the time of the original assessment. Though it was a decision of 1961 and the I.T.O. could have known of it had he been diligent, the obvious fact is that he was not aware of the existence of the decision then and, when he came to know about it, he rightly initiated proceedings for assessment. We may point out that the position here is more favorable to the Revenue than that which prevailed in the Madras cases referred to earlier. There, what the I.T.O. had missed earlier was the true purport of the relevant statutory provisions. It seems somewhat difficult to believe that the I.T.O. could have failed to read properly the statutory provisions applicable directly to facts before him (though that is what seems to have happened). Perhaps an equally plausible view, on the facts, could have been taken that he had considered them and decided, in one case, not to apply them and, in the other, on a wrong construction thereof. In the present case, on the other hand, the material on which the I.T.O. has taken action is a judicial decision. This had been pronounced just a few months earlier to the original assessment and it is not difficult to see that the I.T.O. must have missed it or else he could not have completed the assessment as he did. Indeed it has not been suggested that he was aware of it and yet chose not to apply it. It is therefore much easier to see that the initiation of reassessment proceedings here is based on definite material not considered at the time of the original assessment. In the above view of the matter, we uphold the High Court 's view on the first question. The second question raises a more difficult problem. There can be no doubt that the decision of the Madras High Court in Ramachari squarely covers the situation. Ramachari holds that the principle of valuing the closing stock of a business at cost or market at the option of the assessee is a principle that would hold good only so long as there is a continuing business and that where a business is discontinued, whether on account of dissolution or closure or otherwise, by the assessee, then the profits cannot be ascertained except by taking the closing stock at market value. Ramachari has subsequently been followed by the Kerala High Court in Popular Workshops vs Commissioner of Income Tax, and in Popular Automobiles vs Commissioner of Income Tax, Shri Ramachandran contends that the decision in Ramachari 641 does not lay down the correct law. He submits than, while it is no doubt true that the closing stock has to be valued, the well settled principle is that it should be valued, at cost or market whichever is lower and there is no justification for laying down a different principle for valuation of the closing stock at the point of discontinuance of business unless the goods are actually sold by the assessee at the time of discontinuance. Further, it has been held by a series of decisions of this Court that when a firm is dissolved and the assets are distributed among the partners, there is no sale or transfer of the assets of the firm to the various partners: vide, Addanki Narayanppa vs Bhaskara Krishnappa, ; ; CIT vs Dewas Cine Corporation, ; CIT vs 2Bankey Lal Vaidya, ; Malabar Fisheries Co. vs C.I.T., and in Sunil Siddharthbhai vs C.I.T., He submits that, in logical sequence, dissolution comes first and distribution of assets comes later. Therefore, revaluation of the assets of a firm, which is only for the division of the assets among the partners on a real and not a notional basis, is part of the division of the assets and therefore logically, in point of time, subsequent to the dissolution of the firm. Since the revaluation takes place after the dissolution no profits can be said to have accrued to the firm by the process of revaluation. The revaluation of the assets is not in the course of business and is not an activity which can partake of the nature of trade. Assuming but not conceding that it is possible to have a revaluation of the assets, for example, stock in trade before dissolution, any excess which arises on the revaluation is only an imaginary or notional profit and cannot be brought to tax for the following reasons: (i) As a result of such revaluation, there can be no profit, because the firm cannot make a profit out of itself: Vide Kikabhai Premchand vs C.I.T., (ii) The process of revaluation of stock by itself cannot bring in any real profits: vide C.I.T. vs K.A.R.K. Firm, [1934]2 I.T.R. 183; Chainrup Sampatram vs C.I.T., [1953) and C.I.T. V. Hind Construction ltd., [1972] 83 I.T.R. 211; and (iii) It is well settled that what is taxable under the income tax law is only real income vide C.I.T. vs M/s Shoorji Vallabhdas and Co., [1962] 46 I.T.R. 144 and C.I.T. vs Birla Gwalior (P) Ltd., There is, therefor, no principle by which the stock in trade can be valued at market price so as to bring to tax the notional profits which might in future be realised as a result of the sale of the stock in trade. 642 The question posed before us is a difficult one. We think, however, that the High Court was right in pointing out that the several decisions relied upon for the assessee as to the nature of the transaction by which a firm, on dissolution, distributes its assets among its partners, have no relevance in the present case. As the High Court rightly observed, those cases relate to what happens after or in consequence of the dissolution of a firm whereas we are here concerned with a question that arises before or at the time of dissolution. What we have to decide is the basis on which, in making up the accounts of a firm upto the date of dissolution, the closing stock with the firm as at a point of time immediately prior to the dissolution is to be valued. It is this principle that has been decided in Ramachari and the High Court decisions following it (including the one under appeal) and the question is whether they lay down the correct law. In the first place, it is settled law that the true trading results of a business for an accounting period cannot be ascertained without taking into account the value of the stock in trade remaining at the end of the period. Though, as pointed out by this Court in Chainrup Sempatram vs C.I.T., it is a misconception to think that any profit arises out of the valuation of closing stock, it is equally true that such valuation is a necessary element in the process of determining the trading results of the period. This is true in respect of any method of accounting and in C.I.T. vs Krishnaswamy Mudaliar, this Court pointed out that, even where the assessee is following the cash system of accounting, the valuation of closing stock cannot be dispensed with. In this decision, this Court quoted with approval the following observations in C.I.R. vs Cock, Russel & Co. Ltd. "There is no word in the statutes or rules which deals with this question of valuing stock in trade. There is nothing in the relevant legislation which indicates that in computing the profits and gains of a commercial concern the stock in trade at the start of the accounting period should be taken in and that the amount of the stock in trade at the end of the period should also be taken in. It would be fantastic not to do it: it would be utterly impossible accurately to assess profits and gains merely on a statement of receipts and payments or on the basis of turnover. It has long been recognised that the right method of assessing profits and gains is to take into account the value of the stock in trade at the beginning and the value of the stock in trade at the 643 end as two of the items in the computation. I need not cite authority for the general proposition, which is admitted at the Bar, that for the purposes of ascertaining profits and gains the ordinary principles of commercial accounting should be applied, so long as they do not conflict with any express provision of the relevant statutes. " Next the principles as to the method of valuation of the closing stock are equally well settled. Lord President Clyde set these out in Whimster & Co. vs C.I.R., in the following words: "In computing the balance of profits and gains for the purposes of income tax,. two general and fundamental commonplaces have always to be kept in mind. In the first place, the profits of any particular year or accounting period must be taken to consist of the difference between the receipts from the trade or business during such year or accounting period and the expenditure laid out to earn those receipts. In the second place, the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of the Income tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating excess profits duty, as the case may be. For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchant 's manufacturer 's business the values of the stock in trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower; although there is nothing about this in the taxing statutes. " The principle behind permitting the assessee to value the stock at cost is very simple. In the words of Bose, J. In Kikabhai Premchand vs C.I.T., [1953] 24 I.T.R. 506 S.C. it is this: "The appellant 's method of book keeping reflects the true position. As he makes his purchases he enters his stock at the cost price on one side of the accounts. At the close of the year he enters the value of any unsold stock at cost on the other side of the accounts thus cancelling out the entries relating to the sum unsold stock earlier in the 644 accounts; and then that is carried forward as the opening balance in the next year 's account. This cancelling out of the unsold stock from both sides of the accounts leaves only the transactions on which there have been actual sales and gives the true and actual profit or loss on his year 's dealings. " As against this, the valuation of the closing stock at market value invariably will create a problem. For if the market value is higher than cost, the accounts will reflect notional profits not actually realised. On the other hand, if the market value is less, the assessee will get the benefit of a notional loss he has not incurred. Nevertheless, as mentioned earlier, the ordinary principles of commercial accounting permit valuation "at cost or market, whichever is the lower". The rationale behind this has been explained by Patanjali Sastri, C.J. in Chainrup Sampatram vs C.I.T., , S.C. where an attempt was made to value the closing stock at a market value higher than cost. The learned Chief Justice observed: "It is wrong to assume that the valuation of the closing stock at market rate has, for its object, the bringing into charge any appreciation in the value of such stock. The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the account at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions on which there have been actual sales in the course of the year showing the profit or loss actually realised on the year 's trading. As pointed out in paragraph 8 of the Report of the Committee on Financial Risks attaching to the holding of Trading Stocks, 1919, "As the entry for stock which appears in a trading account is merely intended to cancel the charge for the goods purchased which have not been sold, it should necessarily represent the cost of the goods. If it is more or less than the cost, then the effect is to state the profit on the goods which actually have been sold at the incorrect figure. . From this rigid doctrine one exception is very generally recognised on prudential grounds and is now fully sanctioned by custom, viz., the adoption of market value at the date of making up accounts, if that value is less, than cost. It is of course an anticipation of the loss that may be made on those goods in 645 the following year, and may even have the effect, if prices rise again, of attributing to the following year 's results a greater amount of profit than the difference between the actual sale price and the actual cost price of the goods in question" (extracted in paragraph 281 of the Report of the Committee on the Taxation of Trading Profits presented to British Parliament in April 1951). While anticipated loss is thus taken into account, anticipated profit in the shape of appreciated value of the closing stock is not brought into the account, as no prudent trader would care to show increased profit before its actual realisation. This is the theory underlying the rule that the closing stock is to be valued at cost or market price whichever is the lower, and it is now generally accepted as an established rule of commercial practice and accountancy. " From the above passage, it will be seen that the proper practice is to value the closing stock at cost. That will eliminate entries relating to the same stock from both sides of the account. To this rule custom recognises only one exception and that is to value the stock at market value if that is lower. But on no principle can one justify the valuation of the closing stock at a market value higher than cost as that will result in the taxation of notional profits the assessee has not realised. The High Court in Ramachari has, however, outlined another exception and seems to have rested this on two considerations. The first is the observation of Lord Buckmaster in C.I.T. vs Ahmedabad New Cotton Mills Co. Ltd., [1930] L.R. 57 I.A. 21 to the following effect: "The method of introducing stock into each side of a profit and loss account for the purpose of determining the annual profits is a method well understood in commercial circles and does not necessarily depend upon exact trade valuations being given to each article of stock that is so introduced. The one thing that is essential is that there should be a definite method of valuation adopted which should be carried through from year to year, so that in case of any division from strict market values in the entry of the stock at the close of one year it will be rectified by the accounts in the next year. " From these observations, the High Court inferred: "It is obvious from the above that the privilege of valuing 646 the opening and closing stock in a consistent manner is available only to continuing business and that it cannot be adopted where the business comes to an end and the stock in trade has to be the disposed of in order to determine the exact position of the business on the date of closure. " The second consideration which prevailed with the High Court is reflected in the following passage from the judgment: "It seems to us that none of these cases has any application to the facts of the present case . There is no authority directly in point dealing with this question, where a partnership concern dissolves its business in the course of the accounting year, what is the basis on which the stock in trade has to be valued as on the date of dissolution. We have accordingly to deal with the matter on first principles. The case of a firm which goes into liquidation forms a close parallel to the present case. In such a case all the stock in trade and other assets of the business will have to be sold and their value realised. It cannot be controverted that it is only by doing so that the true state of the profits or losses of the business can be arrived at. The position is not very different when the partnership ceases to exist in the course of the accounting year. The fact that Ramachari, one of the ex partners, took over the entire stock and continued to run the business on his own, is not relevant at all, when we consider the profits or losses of the partnership ' which has come to an end. It should, therefore, follow that in order to arrive at the correct picture of the trading results of the partnership on the date when it ceases to function, the valuation of the stock in hand should be made on the basis of the prevailing market price. " We are not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case. Even in a continuing business, the valuation at market value is permissible only when it is less than cost; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost. But, in either event, it is allowed to be done because its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over 647 or under valuation is possible, In this context, it is difficult to see how valuation, at other than cost, can be justified on the principle of Ahmedabad Advance Mills case (supra). We, however, find substance in the second consideration that prevailed with the High Court. The decision in Muhammad Hussain Sahib vs Abdul Gaffor Sahib, [1950] 1 M.L.J.81 correctly sets out the mode of taking accounts regarding the assets of a firm. While the valuation of assets during the subsistence of the partnership would be immaterial and could even be notional, the position at the point of dissolution is totally different: "But the situation is totally different when the firm is dissolved or when a partner retires. The settlement of his account must be not on a notional basis but on a real basis, that is every asset of the partnership should be converted into money and the account of each partner settled on that basis. . The assets have to be valued, of course, on the basis of the market value on the date of the dissolution . " This applies equally well to assets which constitute stock in trade. There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial man, would value the assets only on a real basis and not at cost or at their other value appearing in the books. A short passage from Pickles on Accountancy (Third Edn), p. 650 will make this clear: "In the event of the accounts being drawn up to the date of death or retirement, no departure from the normal procedure arises, but it will be necessary to see that every revaluation required by the terms of the partnership agreement is made. It has been laid down judicially that, in the absence of contrary agreement, all assets and liabilities must be taken at a "fair value," not merely a "book value" basis, thus involving recording entries for both appreciation and depreciation of assets and liabilities. This rule is applicable, notwithstanding the omission of a particular item from the books, e.g. investments, goodwill (Cruikshank vs Sutherland). Obviously, the net effect of the revaluation will be a profit or loss divisible in the agreed profit or loss sharing ratios. " 648 The real rights of the partners cannot be mutually adjusted on any other basis. This is what happened in Ramachari. Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for them to contend that the valuation should be on some other basis. Once this principle is applied and the stock in trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax. The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible. For these reasons, we agree with the answer given by the High Court to the second question as well. The appeal fails and is dismissed. But we would make no order regarding costs. R.N.J. Appeal dismissed.	The Appellant Assessee, a partnership firm was engaged mainly, in Malaya, in money lending business since 1949 and incidental to this business was also doing the business of sale and purchase of house properties, gardens and estates. It was reconstituted under a deed dated 26.3.1960. The firm was dissolved on 13.3.1961 and closed its accounts with effect from that date. In its income tax return filed on 10.4.1962 for the assessment year 1961 62 it had filed a profit and loss account wherein amount of $.1,01,248 equivalent of Rs.1,58,057 was shown as "difference on revaluation of the estates, gardens and house properties" on the dissolution of the firm. In the memo of adjustment for income tax purposes this amount was deducted as being not assessable either as revenue or capital. The Income Tax Officer issued notice under section 23(2) of the Act on that very day and completed the assessment also on the same day after making a petty addition of Rs.2088 paid as property tax in Malaya. When for the subsequent year 1962 63, the assessee filed its return showing nil income stating in the forwarding letter that the Firm had been dissolved on 13.3.1961, the I.T.O. wrote to the assessee that the revaluation difference of Rs.1,58,057 should have been brought to tax in the previous year. The assessee replied that no profit or loss could be assessed on a revaluation of assets, that the assessee was gradually winding up its business in Malaya, the surplus would be only capital 625 gains and that revalutation had been at the market price prevalent since 1954 and thus no capital gains were chargeable to tax. Not satisfied, the I.T.O. issued a notice under section 148 read with Section 147(b) of the Income Tax Act, 1961. The assessee filed objections. Overruling all the objections, the Income Tax Officer completed reassessment of the assessee Firm adding back the sum of Rs. 1,58,057 to the previously assessed income. Having failed right upto the High Court, the assessee came in appeal before this Court. Dismissing the appeal, affirming the decision of the High Court, this Court. HELD: (1) The proceedings u/s 147(b) were validly initiated. The facts of this case squarely fall within the scope of propositions (2) and (4) enunciated in Kalyanji Mavji 's case. Proposition (2) may be briefly summarised as permitting action even on a "mere change of opinion". This is what has been doubted in the IENS case. But, even leaving this out of consideration, there can be no doubt that the present case is squarely covered by proposition (4) set out in Kalyanji 's case. This proposition clearly envisages a formation of opinion by the Income Tax Officer on the basis of material already on record provided the formation of such opinion is consequent on "information" in the shape of some light thrown on aspects of facts or law which the Income Tax Officer had not earlier been conscious of. [636G 637B] The difference between the situations envisaged in propositions (2) and (4) of Kalyanji Mavji is this, that proposition (4) refers to a case where the Income Tax Officer initiates reassessment proceedings in the light of "information" obtained by him by an investigation into material already on record or by research into the law applicable thereto which has brought out an angle or aspect that had been missed earlier. Proposition (2) no doubt covers this situation also but it is so widely expressed as to include also cases in which the Income Tax Officer, having considered all the facts and law, arrives at a particular conclusion, but reinitiates proceedings because, on a reappraisal of the same material which had been considered earlier and in the light of the same legal aspects to which his attention had been drawn earlier, he comes to a conclusion that an item of income which he had earlier consciously left out from the earlier assessment should have been brought to tax. [637F H] It is true that the return was filed and the assessment was completed on the same date. Nevertheless, it is opposed to normal human 626 conduct than an officer would complete the assessment without looking at the material placed before him. It is not as if the assessment record contained a large number of documents or the case raised complicated issues rendering it probable that the Income Tax Officer had missed these facts. It is a case where there is only one contention raised before the Income Tax Officer and it is, we think, impossible to hold that the Income Tax Officer did not at all look at the return filed by the assessee or the statements accompanying it. The more reasonable view to take would, in our opinion, be that the Income Tax Officer looked at the facts and accepted the assessee 's contention that the surplus was not taxable. But, in doing so, he obviously missed to take note of the law laid down in Ramachari which there is nothing to show, had been brought to his notice. when he subsequently became aware of the decision, he initiated proceedings under section 147(b). The material which constituted information and on the basis of which the assessment was reopened was the decision in Ramachari. this material was not considered at the time of the original assessment. Though it was a decision of 1961 and the Income Tax Officer could have known of it had he been diligent, the obvious fact is that he was not aware of the existence of that decision then and, when he came to know about it, he rightly initiated proceedings for reassessment. [639E 640B] The material on which the Income Tax Officer has taken action is a judicial decision. This had been pronounced just a few months earlier to the original assessment and it is not difficult see that the Income Tax Officer must have missed it or else he could not have completed the assessment as he did. Indeed it has not been suggested that he was aware of it and yet chose not to apply it. It is therefore, much easier to see that the initiation of reassement proceedings here is based on definite material not considered at the time of the original assessment. [640D E] (2) The stock in trade of a firm at the time of its disolution, has to be assessed at a fair value. there can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real basis and not at cost or at their other value appearing in the books. The real rights of the partners cannot be mutually adjusted on any other basis. This is what happened in Ramachari. Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for them to contend that the valuation should be on some other basis. Once this principle is applied and the stock in trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm 627 and has to be charged to tax. The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view was possible. [642B D, 647E,648A C] Popular Automobiles vs Commissioner of Income Tax, ; Sunil Siddharthbhai vs Commissioner of Income Tax, ; Pupular Workshops vs Commissioner of Income Tax ; Malabar Fisheries Co. vs Commissioner of Income Tax, ; Indian & Eastern Newspaper Society vs Commissioner of Income Tax, ; Kalyanji Mavji & Co. vs Commissioner of Income Tax, [1976] 102 I.T.R. 287; M/s A.L.A. Firm vs The Commissioner of Income Tax, Madras ; Commissioner of Income Tax vs Hind Construction Ltd., ; Commissioner of Income Tax vs Birla Gwalior (P) Ltd., ; Anandji Haridas & Co. (P) Ltd. vs S.P. Kushare, Sales Tax Officer, [1968] 21 S.T.C. 326; Commissioner of Income Tax vs Dewas Cine Corporation, ; Ramachari & Co. vs Commissioner of Income Tax, ; Maharaj Kumar Kamal Singh vs Income Tax Officer, S.C.; Commissioner of Income Tax vs A Raman & Co., S.C.; Salem Provident Fund Society Ltd. vs Commissioner of Income Tax, ; Commissioner of Income Tax vs Rathinasabapathy Mudaliar, ; Addanki Narayanappa vs Bhaskara Krishnappa, ; ; Commissioner of Income Tax vs Bankey Lal Vaidya ; Kikabhai Premchand vs Commissioner of Income Tax, [1953] 24 I.T.R. 506 (S.C.); Commissioner of Income tax vs K.A.R.K. Firm, ; Chainrup Sampathram vs Commissioner of Income Tax, ; Commissioner of Income Tax vs M/s. Shoorji Vallabhadas & Co., , Commissioner of Income Tax vs Krishnaswamy Muldaliar, ; Commissioner of Income Tax vs Ahmedabad New Cotton Mills Co. Ltd., [1930] L.R. 57 I.A. 21; Muhammad Hussain Sahib vs Abdul Gaffor Sahib, reffered to.
First petitioner minor child and second petitioner, its mother are knocking at the doors of Writ Court grieving against the non-issuance of the Transfer Certificate of the child, by the 9th Respondent – School despite repeated 2. After service of notice, the respondents have entered appearance through their advocates; official respondents 1, 2 & 3 are represented by learned AGA; the fourth respondent is represented by his Panel Counsel; learned ASG represents respondents 5 to 8; respondents 9 & 10 are represented by their Panel Counsel; similarly, the now impleaded respondent no.11 is also represented by his own counsel. 3. Learned Panel Counsel appearing for respondent School & 11th respondent being the father of the first petitioner & husband of the second, oppose the writ petition contending that without the consent of the father TC cannot be issued; the counsel for the school submits that unless school dues are cleared, the request for issuance of TC cannot be considered; they also contend that since the child now in Kolkata is attending the school online and therefore, there is no reason for shifting it to another school. 4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: (a) The first petitioner is a minor daughter of second petitioner and, now impleaded 11th respondent happens to be its father; there appears to be some estrangement between the spouses as is reflected from the record; the Division Bench of this Court in father's W.P.(HC) No. 32/2021, has made some observations at paragraphs 10 & 11 of the judgment which show that the custody of the child is with the second petitioner; that being the position, the respondent Nos. 9, 10 & 11 are not justified in opposing the request for the issuance of Transfer Certificate of the child who is now stated to be admitted to a school in Kolkata; because of estrangement between the parents, child’s educational prospects should not be affected by not issuing the TC. (b) The contention of counsel for the 11th respondent that to which school a child of the estranged parents should be admitted, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally, cannot be countenanced as a thumb rule; child is as yet a minor and it is a female; admittedly it is in the exclusive custody of 2nd petitioner- mother; ordinarily, law favours custody of minor daughters being with the mothers, needs no elaboration; the child is already admitted to a school in Kolkata; the legal battle for its custody between the parents is stated to be still going on. What is being decided in this case is only the matter of Transfer Certificate and not the child custody or visitation rights. Justice of the case warrants the issuance of Transfer Certificate to facilitate educational career progression of the child; in matters like this all agencies involved should co-ordinate and facilitate the same. This is reflected in the provisions of Sec.5 of the Right of Children to free and compulsory Education Act, 2009. In the above circumstances, this writ petition succeeds; a Writ of Mandamus issues to the respondents nos.1, 2 & 3 to cause issuance of Transfer Certificate by the respondent nos. 9 & 10- School; a direction also issues to the 10th respondent to hand the subject Transfer Certificate to the second petitioner-mother within ten days, failing which the respondents 9 & 10 each shall pay to the second petitioner Rs.5,000/- for the delay brooked each day, apart from running the risk of contempt of court. The observations made hereinabove shall not influence the claims for child custody or the visitation	The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects. Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate. The plea was opposed by the Sorsfort International School on the grounds that... The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects. Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate. The plea was opposed by the Sorsfort International School on the grounds that without the consent of the father TC cannot be issued. Further, unless school dues are cleared, the request for issuance of TC cannot be considered. Since the child is now in Kolkata and attending the school online, therefore, there is no reason for shifting it to another school. The father of the child also opposed the plea, contending that to which school a child of the estranged parents should be admitted, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally. The bench on going through the records said "The respondent Nos. 9, 10 (School) & 11 (father) are not justified in opposing the request for the issuance of Transfer Certificate of the child who is now stated to be admitted to a school in Kolkata." It added "Because of estrangement between the parents, child's educational prospects should not be affected by not issuing the TC." The court also junked the contention of the father that selection of school for the child of estranged parents, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally. The bench said "This cannot be countenanced as a thumb rule. Child is as yet a minor and it is a female, admittedly it is in the exclusive custody of the 2nd petitioner mother. Ordinarily, law favours custody of minor daughters being with the mothers, needs no elaboration." It added "The legal battle for custody between the parents is stated to be still going on. What is being decided in this case is only the matter of Transfer Certificate and not the child custody or visitation rights." The court then opined "Justice of the case warrants the issuance of Transfer Certificate to facilitate educational career progression of the child; in matters like this all agencies involved should coordinate and facilitate the same. This is reflected in the provisions of Sec.5 of the Right of Children to free and compulsory Education Act, 2009." Accordingly the court directed the authorities to cause issuance of Transfer Certificate by the respondent nos. 9 & 10- School and hand it to the mother within ten days. Failing which the school and principal each shall pay to the second petitioner Rs.5,000 for the delay brooked each day, apart from running the risk of contempt of court. Case Title: AMRUSHA DAS V. STATE OF KARNATAKA Case No: WRIT PETITION NO.19057 OF 2021 Date of Order: 13TH DAY OF JANUARY, 2022 Appearance: Advocate SWAROOP SRINIVAS for petitioner; Advocate VINOD KUMAR, FOR R1-R3; Advocate VIDYULATHA, FOR R4; ASG SHANTHI BHUSHAN FOR R5-R8; Advocate M P SRIKANTH, FOR R9 & R10; Advocate SHYAM SUNDAR H V, for R11
Civil Appeal No. 1983 of 1970 From Judgment and Decree dated 29 7 69 of the Punjab & Haryana High Court in F.A.O. No. 35/66. 568 Naunit Lal, K. Vasdev and Ms. V. Grover for the appellant. V.M. Phadke and Harbans Singh for the respondent. The Judgment of the court was delivered by MISRA, J. The present appeal by special leave is directed against the judgment and order dated 29th July, 1969 of the High Court of Punjab and Haryana at Chandigarh. The dispute in this appeal centres around a religious institution in village Ramgarh (also known a Bhagtuana), tehsil Faridkot, district Bhatinda. This village was previously in the erstwhile Nabha State which merged with Pepsu and after the reorganisation of the States, became a part of the Punjab State in 1956. Sixty five persons claiming to be members of the Sikh community moved an application before the State Government under section 7 (1) of the Sikh Gurdwara Act, 1925 (hereinafter referred to as the Act), as amended by the Amendment Act I of 1959, to have the institution declared to be a Sikh Gurdwara. The State Government notified the said application in the Punjab Gazette in terms of section 7 (3) of the Act on 18th October, 1963. Upon this the appellant made an application under sections 8 and 10 of the Act claiming that the institution was not a Sikh Gurdwara but an Udasi institution known as Dera Bhai hagtu. This application was referred by the State Government to the Sikh Gurdwara Tribunal for adjudication. It was contended by the appellant that throughout its long history the institution has been an Udasi institution. This institution was not established for use by Sikhs for public worship. nor was it founded in the memory of a Sikh Martyr, saint or a historical person. It has never been used for public worship by the Sikhs. The institution was the Dera of Udasi Bhekh and the objects of worship are idols of Gola Sahib and of Baba Srichand, and the various samadhs. The petition was resisted by the respondent Shiromani Gurdwara Prabandhak Committee on three grounds: (1) that the appellant was not competent to move the petition under s.7 of the Act because he was not a hereditary office holder, (2) that the provisions of the Act are not ultra vires the Constitution, and (3) that the institution in dispute was a Sikh Gurdwara. On the pleadings of the parties the Tribunal framed three issues: whether the provisions of the Act are ultra vires the Constitution, 569 (2) whether the appellant was a hereditary office holder, and (3) whether the institution in dispute was a Sikh Guradwara. Issue No. 1 was not pressed and, therefore, the Tribunal in conformity with the previous decisions held the provisions of the Act to be intra vires the Constitution. On the second issue the Tribunal recorded a finding in favour of the appellant. On the third issue, the Tribunal held that the disputed institution was a Sikh Gurdwara. The appellant feeling aggrieved by the judgment of the Tribunal took up the matter in appeal to the High Court and the High Court in its turn confirmed the findings of the Tribunal and dismissed the appeal by the impugned judgment. The appellant has now come to his Court on obtaining special leave and the only issue that survives for consideration by this Court is issue No.3, that is, whether the institution in dispute is a Sikh Gurdwara. Before dealing with the points urged by the counsel for the parties it would be appropriate at this stage to know the distinctive features of Sikhism and Sikh temples. Although for the purpose of historical research and analysis on such subject, the forum of a court of law is not ideal yet if the statute enjoins the Court to decide such questions, the Court has got to discharge the responsibility. Section 16 (1) of the Act provides: "16 (1). Notwithstanding anything contained in any other law in force if in any proceeding before a tribunal it is disputed that a gurdwara should or should not be declared to be a Sikh Gurdwara, the tribunal shall, before enquiring into any other matter in dispute relating to the said gurdwara, decide whether it should or should not be declared a Sikh Gurdwara in accordance with the provisions of sub section (2). " One of the most fascinating aspects of Sikhism is the process which began with human Gurus, continued during the period of duality in which there were human Gurus and a collection of sacred writings and ended with the present situation in which full authority is enjoined by the scripture. In every respect the scripture is what the Gurus were. Both the Gurus and the Book deserve respect, which they are accorded because of the Bani which they express, the word of divine truth. Therefore, it was possible for Guru Arjan, the fifth in the human line, to bow before the collection which he had compiled and installed 570 in the newly built Darbar Sahib in 1604 for he was acknowledged the higher authority of the Banidue to the personal importance and significance which he possessed as Guru. The Sikh Gurus have much in common with other preceptors in Indian tradition but their history and contribution is distinctive. They were not Brahmins, they did not see their calling to be that of expounding Vedas, they taught in vernacular not Sanskrit and their message was for everyone. They were ten in number each remaining faithful to the teachings of Guru Nanak, the first Guru and when their line was ended by a conscious decision of Guru Gobind Singh, the last Guru, succession was invested in a collection of teachings which was given the title of Guru Granth Sahib. This is now the Guru of the Sikhs. An important characteristic of the teachings of the Sikh Gurus is their emphasis upon the message, the Bani. It is this stress which made possible the transfer of Guruship to the scripture. The human Gurus were the instruments through whom the voice of God became audible. The holiest book of the Sikhs is Guru Granth Sahib compiled by the Fifth Master, Guru Arjan. It is the Bible of Sikhs. After giving his followers a central place of worship, Hari mandir, he wanted to give them a holy book. So he collected the hymns of the first four Gurus and to these he added his own. Now this Sri Guru Granth Sahib is a living Guru of the Sikhs. Guru means the guide. Guru Granth Sahib gives light and shows the path to the suffering humanity. Wherever a believer in Sikhism is in trouble or is depressed he reads hymns from the Granth. When Guru Gobind Singh felt that his worldly sojourn was near, he made the fact known to his disciples. The disciples asked him as to who would be their Guru in future. The Guru immediately placed five pies and a coconut before the holy Granth, bowed his head before it and said "The Eternal Father willed, and I raised the Panth. All my Sikhs are ordained to believe the Granth as their preceptor. Have faith in the holy Granth as your Master and consider it. The visible manifestation of the Gurus. He who hath a pure heart will seek guidance from its holy words". 571 The Guru repeated these words and told the disciples not to grieve at his departure. It was true that they would not see his body in its physical manifestation but he would be ever present among the Khalsas. Whenever the Sikhs needed guidance or counsel, they should assemble before the Granth in all sincerity and decide their future line of action in the light of teachings of the Master, as embodied in the Granth. The noble ideas embodied in the Granth would live for ever and show people the path to bills and happiness. Temples are found almost in every religion but there are some difference between the Sikh temples and those of other religions. The sikh Gurdwaras have the following distinctive features: 1. Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurdwara. The central object of worship in a Gurdwara is Sri Guru Granth Sahib, the holy book. The pattern of worship consists of two main items: reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular Granthi and then singing of some passages from the Holy Granth. The former is called Katha and the second is called Kirtan. A Sikh thus worships the Holy Words that are written in the Granth Sahib, the Words or Shabada about the Eternal Truth or God. No idol or painting of any Guru can be worshipped. 2 Sikh worship in the Gurdwara is a congregational worship, whereas Hindu temples are meant for individual worship. A Sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet every day in the Gurdwara. Gurdwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not to know where hospitality is available. There may be complexity of rooms in a Gurdwara for the building may also serve as a school; or where children are taught the rudiments of Sikhism as well as a rest centre for travellers. Often there will. be a kitchen where food can be prepared though langar itself might take place in the yawning. Sometimes the Gurdwara will also be used as a clinic. But its Pivotal point is the place of worship and the main room 572 will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself. From the foregoing discussion it is evident that the sine qua non for an institution being a Sikh Gurdwara is that there should be established Guru Granth Sahib and the worship of the same by the congregation, and a Nishan Sahib as indicated in the earlier part of the judgment. There may be other rooms of the institution meant for other purposes but the crucial test is the existence of Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib. It is not necessary that there must be a granthi in a Gurdwara. Any learned person can read Guru Granth Sahib and explain to the congregation. With this preliminary about the distinctive features of a Sikh temple we proceed to deal with the contentions of the counsel for the parties. Shri Naunit Lal, counsel for the appellant contended that the High Court has misread the evidence and that has vitiated its finding. He referred to the material portions of the judgment and the evidence of the parties to support his contention. on perusal of the judgment and the relevant evidence we do not find any misreading of evidence by the High Court. This contention, therefore, has no force. We, however, find that the High Court proceeded on the assumption that admittedly Bhai Bhagtu was a Sikh saint and that the disputed institution was established in his memory. This would be evident from the following observation made by he High Court. "On an overall consideration of this aspect we are inclined to accept the contention of Mr. Shant that admittedly Bhai Bagtu was a Sikh saint and this institution was established in his memory and as such the case of the respondent would also come within the ambit of section 16(2) (iv) of the Sikh Gurudwara Act". But this observation is not warranted from the pleadings or the evidence of the parties. Pritam Dass, the appellant, as P.W.S. in his deposition has categorically stated: "Bhai Bhagtu was an Udasi Fahir". In the pleadings also the appellant set up that Bhai Bhagtu was an Udasi saint and the institution was a Dera of the Udasi sect, 573 while the respondent, on the other hand, in its reply stated that Bhai Bhagtu was a Sikh saint and the institution was established in the memory of that Sikh saint. In this state of pleadings and the evidence adduced by the parties it will not be correct to say that admittedly Bhai Bhagtu was a Sikhsaint and that this institution was established in his memory. Rather this was the only disputed question to be decided by the Court. Thus while holding that there is no misreading of evidence we find that there is misreading of the pleadings of the parties. It was next contended for the appellant that the appellant of udasi set being incharge of the institution in question, the succession to the institution being from Guru to Chela, the institution being recorded as Dera of Udasi sect in some of the revenue records, the existence and worship of various idols and samadhs within the precincts of the institution and the absence of a granthi in the institution are all in compatible with the institution being a Sikh Gurdwara. Shri M. N. Phadke appearing for the respondent on the other hand has contended that (1) the points which were never urged in the courts below could not be allowed to be raised for the first time in this Court; (2) in any case the existence of samadhs and idols within the precincts of the institution and the worship thereof, and the absence of a granthi and the succession to the institution from guru to chela are not destructive of the institution being a Sikh Gurdwara; (3) the finding of the High Court that the institution in question is a Sikh Gurdwara is fully warranted by the evidence on record, and (4) the nature of the institution has to be decided in the light of sub section (2) of section 16 of the Sikh Gurdwara Act. The Court has been called upon to decide whether the institution in question is a Sikh Gurdwara. While considering this question the Court has to take into consideration all the circumstances which favour or militate against the institution being a Sikh Gurdwara. In the very nature of things and in view of the requirements of sub section (2) of section 16 it becomes necessary to consider whether the institution being in charge of an Uadasi saint, the existence of samadhs of Udasi saints and worship thereof, or the existence of the idols and absence of a granthi and succession to the institution from guru to chela are all relevant considerations and the Court has to consider them if there is evidence on the record. In the instant case evidence has been adduced on behalf of the appellant about the existence of samadhs and the various idols, the absence of a granthi and succession to the institution 574 from guru to chela. We see no reason why the appellant be prevented from urging the aforesaid circumstances. On the question whether the existence of samadhs and of the idols and the absence of a granthi or succession to the institution from guru to chela militates against the institution being a Sikh Gurdwara the counsel for the parties have adduced evidence in support of their respective contentions. The counsel for the parties have also cited cases in support of their respective contentions. The counsel for the appellant relied on Hem Singh & Ors. vs Basant Das & Anr(1). In that case the question for consideration was whether Udasis are Sikhs. The court held that Udasis are not Sikhs for the purposes of Sikh Gurdwara Act. Although Guru Nanak founded Sikhism as a new religion by sweeping away idolatry and polytheism, Sri Chand, the son of Guru Nanak, the founder of the Udasis, was himself not a Sikh but a Hindu. No reconciliation between the Sikhs and the Udasis ever took place. The Udasis are in consequence not Sikhs, but schismatics who separated in the earliest days of Sikhism and never merged with the followers of the Gurus. Reliance was next placed upon Bawa Ishar Dass & ors. vs Dr. Mohan Singh & ors (2) The Court held: ". it has been established that the Mahants have all along been Udasis, that the institution was an Udasi monastery, that the Guru Granth Sahib was read there by the Udasi Mahant and that Sikhs may have attended these readings but that all other ceremonies, observed by Udasis and Hindus, were performed at the institution. It cannot be held from the mere fact that the Udasis also read the Guru Granth Sahib a book which they do venerate, that the Sikhs should be associated in the management of this genuine Udasis institution. It was held by a Division Bench of this Court in that the Udasi order constitutes a separate sect, distinct from the orthodox Sikhs and that though they have retained many Hindu beliefs and practices, yet in the wider sense of the term they may also be Sikhs. They occupy an intermediate position between strictly orthodox Sikhs and Hindus. The Udasis are in fact a monastic 575 Order in their origin and are followers of Bawa Siri Chand, son of the first Guru though they worship smadhs, etc. they do reverence the Granth Sahib without completely renouncing Hinduism. They are often in charge of the village Dharamsala or Gurdwara, which is a Sikh institution but in other cases the Sadh and his chelas constitute a monastery or college. Owing to their intermediate positions, it is possible for Udasis to be in charge of a Sikh Gurudwara properly so called, but it does not follow that that institution is a sikh Gurudwara and not a true Udasi institution merely because the Granth Sahib is read". In Harnam Singh vs Gurdial Singh on an analysis of various decisions this Court held: "These decisions clearly indicate the principle that though the Sikh Guru Granth Sahib is read in the shrines managed by the by the members of the Udasi Sect, that was not enough to hold that those shrines were Sikh Gurdwaras. In the case before us, the more fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institutions was meant for, or belonged to, the followers of the Sikh religion. Clearly, the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhs who cannot be regarded as Sikhs and consequently, in their mere capacity of followers of Sikhs religion residing in village Jhandawala, the plaintiffs/respondents could not be held to have such an interest as could entitled hem to institute the suit under section 92 of the Code of Civil Procedure." Shri Phadke appearing, for the respondent on the other hand his cited Mahant Dharam Das etc. vs State of Punjab & Ors (2). Dealing with the tenets of the Sikhs this Court observed: "The Sikhs believe in the ten Gurus the last of whom was Guru Gobind Singh. They further believe that there is no other Guru after Guru Gobind Singh who enjoined on his followers that after him they should Consider Guru Granth Sahib as the Guru. They do not subscribe to idol worship and polytheism, nor do they have any Samadhi in their shrines. The teaching of Sikhs was against asceticism. They believe in Guru Granth Sahib, which is a Rosary of sacred poems, exhortations, etc. 576 During the time of the Sikh Gurus the Gurdwaras were under their direct supervision and control or under their Masends or missionary agents. After the death of Guru Gobind Singh the Panth is recognised as the corporate representative of the Guru on earth and thereafter they were managed by the Panth through their Granthis and other sewadars who were under direct supervision of the local Sangat or congregation The position of the Gurdwaras changed during British regime. The mahants who were in charge of the Sikh Gurdwaras could either be a Sikh Mahant or Udasi Mahant. Though there was no reconciliation between the Sikhs and Udasis, it did not matter if the Mahant of a Sikh Gurdwara was not a Sikh Mahant because the Panth or Sangat exercised control over the Gurdwaras". Next reliance was placed o Sohan Das vs Bela Singh & Ors.(2) Dealing with section 16(2) of the Sikh Gurudwara Act the Court observed: "The documentary evidence therefore establishes that the dharamsala has been a place of public worship since 1853, and that such worship has been connected with the Granth Sahib I am prepared to accept the evidence of the objectors that the existence of a samadh dates only from recent times, more than probably after the Sikh Gurdwara controversy had become acute and he importance of a samadh had been realized by the Udasi Mahants. I hold therefore that the evidence supports the conclusion of the majority of the Tribunal that this institution falls within s.16 (2) (iii) of the Act". In view of the divergent cases cited by the counsel for the parties we have to take into consideration the distinctive features of a Sikh Gurdwara as discussed in the earlier part of the judgment. So viewed, the existence an worship of Guru Granth Sahib and the existence of Nishan Sahib are the determinative factor. The Tribunal did not take into consideration the oral evidence adduced by the parties. Eight witnesses were produced on behalf of the appellant while six witnesses were produced on behalf of the respondent. The High Court also did not give a proper deal to the oral evidence adduced by the appellant. The only consideration given by the High Court to the oral testimony of the witnesses on behalf, of the appellant was in the following terms: 577 "As regards the oral testimony on the point that the institution was a Dera of an Udasi Sadhu, the same is obviously interested, and hardly credible. The Tribunal has not attached any weight to the same and we are wholly in agreement with the finding of the Tribunal on that point. " The witnesses on either side have come to depose on oath. The grounds on which the evidence adduced on behalf of the appellant has been discarded may equally apply to the evidence adduced on behalf of the respondent. The Court should have considered the worth of the evidence of each witness and should have given reasons for disbelieving the same on merit. A bald observation that the witnesses produced on behalf of the appellate are interested must be deprecated. Even otherwise the courts below have not approached the case from the correct angle. (The Courts had to decide the question in view of the provisions of sub section (2) of section 16 of the Act and they had to record a positive finding in the light of sub s.(2) of section 16,) which reads: "16 (2) If the tribunal finds that the gurdwara (i) was established by, or in memory of any of the Ten Sikh Gurus, or in commemoration of any incident in the life of any of the Ten Sikh Gurus and was used for public worship by Sikhs, before and at the time of the presentation of the of the petition under sub section (1) of section 7; or (ii) owing to some tradition connected with one of the Ten Sikh Gurus, was used for public worship predominantly by Sikhs, before and at the time of the presentation of the petition under sub section (I) of section 7; or (iii) was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs, before and at the time of the presentation of the petition under Sub section (I) of section 7; or (iv) was established in memory of a Sikh martyr, saint or historical person and was used for public worship by Sikhs, before and at the time of the presentation of the petition under sub section (I) of section 7; or 578 (v) owing to some incident connected with the Sikh religion was used for public worship predominantly by Sikhs, before and at the time of the presentation of the petition under sub section (I) of section 7; the tribunal shall decide that it should be declared to be a Sikh Gurdwara, and record an order accordingly". Unless the claim falls within one or the other of the categories enumerated in sub section (2) of section 16, the institution cannot be declared to be a Sikh Gurdwara. The Court had, therefore, first to consider as pleaded by the parties, as to whether Bhai Bhagtu was a Udasi saint or a Sikh saint, and then to decide on the basis of evidence whether the institution in question is one or the of the types indicated. This was the only question for consideration before the High Court but unfortunately it assumed what was to be proved. On the foregoing discussion we are satisfied that the High Court has not given a proper deal to the matter and has not considered the oral evidence adduced on behalf of the parties. Nor has it approached case from the correct perspective of law. Ordinarily, in a situation as here the matter should have gone back to the High Court for recordings findings on the basis of appreciation of evidence but we are not inclined to remand the matter as it is a very old dispute. We are, therefore , prepared to take that burden ourselves and finally decide the dispute. As would appear, parties were aware of the nature claim and the evidence to be led and, therefore, parties concentrated their attention on the aspects which would be, decisive of the points in dispute. It is unfortunate that the Tribunal and the High Court did not Keep the proper perspective in view whiles dealing with the matter. On behalf of the appellant Ram Saran Dass, P W 1, Charan Dass, PW 2, Bishan Dass, PW 3, Jagraj Singh, PW 4, Chajju Ram, PW 5, Zora Singh Patwari, PW 6, Surjit Singh, PW 7 and the appellant, PW 8, were examined. On behalf of the respondent, Hardev Singh, RW 1, Bachan Singh, RW 2, Balbir Singh, RW 3, Balwant Singh, RW 4, Hazura Singh, RW 5, and Gurdial Singh, RW 6, were examined as witness. 579 The finding of the High Court as extracted hereinbefore clearly show that the four important and most relevant aspects of the case as disclosed in the evidence were completely overlooked or side tracked by the High Court, They are: (i) there are Samadhs on the premises of the institution ;(ii) there are idols and photos of Hindu deities; (iii) Bhai Bhagtu was a Udasi Saint; and (iv) succession was from Guru so Chela. The petition filed by the appellant under s.8 of the Act contained a clear averment that the institution had been set up by Bhai Bhagtu who was a Udasi Saint and the presence of three Samadhs of (I) Bhai Bhagtu, (2) Baba Paras Ram Ji and (3) Mahant Sahib Dass Ji, was also asserted. In the written statement the respondent, after a vague denial, had admitted the institution to have been founded by Bhai Bhagtu. PW 1, Ram Saran Dass stated that there was an idol of Baba Srichand in the institution and there were pictures of Lord Krishna and other Hindu deities. This statement was elicited in cross examination made by the respondent. PW 2 has stated that there is an idol of Baba Srichand and Gola Sahib in the institution and they are objects of worship. PW 3, Bishan Dass, referred to the idol of Baba Shrichand. PW 4, Jagral stated that there were three or four samadhs on the premises of the institution and those are objects of worship There was no challenge to this statement in examination in chief by cross examination. PW 5 was asked in cross examination whether there were Samadhs on the premises of the institution and his answer is revealing. He stated that there are three Samadhs on the premises of the institution and there is a dome over the Samadhs of Bhai Bhagtu. He added that there are other pictures of Hindu deities and Hindu Festivals are celebrated in the institution. PW 7, Surjit Singh, the local Sarpanch stated that the institution was of Udasi Fakirs. He also stated that there is a Samadh of Bhai Bhagtu on the premises of the institution and it is an object of worship. He indicated that the Samadh of Bhai Bhagtu was worshipped in a grand scale while the other two Samadhs were not treated on equal basis. There was no cross examination of this witness on this aspect. Pritam Dass, the appellant did support his case. Ordinarily his evidence would have been treated as interested as he happens to be the party but his assertions have well corroborated. Coming to the respondent 's side, the first witness Hardev Singh in his examination in chief stated that there is a Samadh of Bhai Bhagtu in the institution and another Samadh of his mother. On the basis of this admission of the principal witness of the respondent there can be 580 on doubt that Samadhs exist within the institution. At the hearing counsel had pointed out that this witness was a member of the Communist Party. We do not think that would at all be a proper way of appreciating the evidence of the witnesses. He was a witness called by the respondent and was not declared hostile, if he made admissions in his examination in chief. On the other hand, the fact that he does not belong to the groups of either party and is a Communist would lend credence to his evidence as coming from an impartial source. The next witness, RW 2, Bachan Singh admitted the existence of the Samadhs but denied that the Samadh of Bhai Bhagtu was an object of worship. RW 3, Balbir Singh, admitted the presence of Samadh of Bhai Bhagtu as also of his mother. It is in the evidence of this witness that he also belongs to the Communist Party. What we have said about RW 1 equally applies to this witness. RW 4, Balwat Singh admitted the presence of Bhai Bhagtu 's Samadh; while RW 5, Hazura Singh stated that there were two Samadhs on the premises one of Bhai Bhagtu and the other of his mother. The last witness, RW 6, Gurdial Singh in his evidence admitted the existence of the two, Samadhs of Bhai Bhagtu and his mother. This analysis of the evidence clearly indicates that it has been unquestionably established without the slightest shadow of a doubt that there are at least two Samadhs on the premises of the institution one being of Bhai Bhagtu and the other of his mother. The existence of the idol of Baba Srichand, the founder of the Udasi sect in the premises also seems to have been fully established. As already stated, Sikhs would not permit the idol of Baba Srichand in a Gurdwara, while Udasis would ordinarily install such an idol to perpetuate the memory of the founder of their sect. What emerges from this discussion is that as found by the Tribunal, the succession was from Guru to Chela; that Bhai Bhagtu was a Udasi Saint and there are Samadhs on the premises one of Bhai Bhagtu and the other of his mother. Evidence shows that there are photos of Hindu deities in the institution. These three facts, without anything more, would be sufficient to reject the case of the respondent that the institution is a Sikh Gurdwara. We would like to reiterate that existence of Samadhs and succession from Guru to Chela would clearly be destructive of character of the institution as a Sikh Gurdwara because they are inconsistent with the tenets of the Sikh 581 religion. The issue before the High Court as also the Tribunal was whether the institution Dera Bhai Bhagtu was a Sikh Gurdwara. Reference to another aspect would be relevant here. Counsel for the respondent emphasized the feature that there was evidence to show that Guru Granth Sahib was recited and read in this institution. It is well established that Udasis are mid way between Sikhs on the one hand and Hindus on the other. Srichand, son of Guru Nanak, the founder of the Sikhism, had, as already indicated, broken away and set up the Udasi sect. Udasis while venerating Guru Granth Sahib, retained Hindu practices and also showed their veneration to the Samadhs. From the very fact that Guru Granth Sahib was recited in this institution, no support can be drawn for the claim that the institution was a Sikh Gurdwara. On the materials on record, we are of the view that the findings recorded by the Tribunal as also the High Court are wholly unsupportable to satisfy the tests indicated in law for determining the character of the institution. We allow the appeal, reverse the decision of the Tribunal as upheld by the High Court and declare that Dera Bhai Bhagtu is not Sikh Gurdwara. In the circumstances of the case there would be no order as to costs. S.R. Appeal allowed.	Sixty five persons claiming to be members of the Sikh community moved an application before the State Government under Section 7(1) of the Sikh Gurudwara Act, 1925 to have a religious institution in village Ramgarh (also known as Bhagtuana of Faridkot tehsil, declared to be a Sikh Gurudwara. The State Government notified the said application in the Punjab Government Gazette in terms of Section 7(3) of the Act on 18th October, 1963. Upon this the appellant made an application under Section 8 and 10 of the Act claiming that the institution was not a Sikh Gurudwara but an Udasi institution known as Dera Bhai Bhagtu. The application was referred to the Sikh Gurudwara Tribunal for adjudication. The petition was resisted by the respondent Shiromani Gurudwara Prabandhak Committee on three grounds: (i) that the appellant was not competent to move the petition under section 7 of the Act as he was not a hereditary office holder, (ii) that the provisions of the Act are not ultravires the Constitution; and (iii) that the institution in dispute was a Sikh Gurudwara. The Tribunal held against the respondent and in favour of the appellant on contention(1). Since the second contention was not pressed and the third question was the only issue, the Tribunal held that the institution was a Sikh Gurudwara. In appeal, the Punjab and Haryana High Court confirmed the Tribunal 's findings. Hence the appeal by Special Leave of the Court. Allowing the appeal, the Court ^ HELD: 1.1. The religious institution, Dera Bhai Bhagtu is not Sikh Gurudwara. On the materials on record, the findings recorded by the Tribunal as well as the High Court are wholly unsupportable to satisfy the tests indicated in law for determining the character of the institution. [581D] 1.2. The findings of the High Court clearly show that the four important and most relevant aspects of the case as disclosed in the evidence were completely overlooked or side tracked by the High Court. They are: (i) there are Samadhs on the premises of the institution; (ii) there are idols and photos of Hindu deities; (iii) Bhai Bhagtu was a Udasi Saint; and (iv) succession was from Guru to Chela. 565 The petition filed by the appellant under s.8 of the Act contained a clear averment that the institution had been set up by Bhai Bhagtu who was a Udasi Saint and the presence of three Samadhs of (1) Bhai Bhagtu, (2) Baba Paras Ram Ji, and (3) Mahant Sahib Dass Ji, was also asserted. In the written statement the respondent, after a vague denial, had admitted the institution to have been founded by Bhai Bhagtu. Pritam Dass, the appellant did support his case. Ordinarily his evidence would have been treated as interested as he happens to be the party but his assertions have been well corroborated. The same is strengthened by the evidence of all respondent 's witnesses. The evidence of witnesses clearly indicates: (i) that there are atleast two samadhs in the premises of the institution one being of Bhai Bhagtu and the other of his mother; (ii) the existence of the idol of Baba Srichand, the founder of the Udasi Sect in the premises. Clearly the Sikhs would not permit the idol of Baba Srichand in a Gurudwara while Udasis would ordinarily install such an idol to perpetuate the memory of the founder of their sect; (iii) the succession was from Guru to Chela; and (iv) there are photos of Hindu deities in the institution. These facts without anything more would be sufficient to reject the case of the respondent that the institution is a Sikh Gurudwara. [579A C; G; 580G H] 1.4. From the very fact that Guru Granth Sahib was recited in the institution no support can be drawn for the claim that the institution was a Sikh Gurudwara. It is well established that Udasis are midway between Sikhs on the one hand and the Hindus on the other. Srichand son of Guru Nanak, the founder of Sikhism, had broken away and set up the Udasi sect. [581B C] 2.1. Although for the purpose of historical research and analysis on the subject like Sikhs and Sikh temples, the forum of a court of law is not ideal, yet, if the statute enjoins the court to decide such questions, the court has got to discharge the responsibility. [569D] 2.2. The court has been called upon to decide whether the institution in question is a Sikh Gurudwara. While considering this question the Court has to take into consideration all the circumstances which favour or militate against the institution being a Sikh Gurudwara. In the very nature of things and in view of the requirements of sub s.(2) of section 16 it becomes necessary to consider whether the institution being in charge of a Udasi saint, the existence of samadhs of Udasi saints and worship thereof, or the existence of the idols and absence of a granthi and succession to the institution from guru to chela are all relevant considerations and the Court has to consider them if there is evidence on the record. In the instant case evidence has been adduced on behalf of the appellant about the existence of samadhs and the various idols, the absence of a granthi and succession to the institution from guru to chela. The appellant cannot, therefore, be prevented from urging the aforesaid circumstances. [573F H; 574A] 2.3. Courts cannot discard the evidence of witnesses of one side by simply saying that the oral testimony is interested and hardly any credible, when witnesses on either side have come to depose on oath. Here, the grounds on which the evidence adduced on behalf of the appellant has been discarded may equally apply to the evidence adduced on behalf of the respondent. The Court should have considered the worth of the evidence of each witness and should have given reasons for disbelieving the same on merit. A bald observation that the witnesses produced on behalf for the appellant are interested must be deprecated. The courts had to decide the 566 question in view of the provisions of sub s.(2) of s.16 of the Act and they had to record a positive finding in the light of sub s.(2) of s.16. Unless the claim falls within one or the other of the categories enumerated in sub section(2) of s.16, the institution cannot be declared to be a Sikh Gurudwara [577B D; 578C] 3.1. One of the most fascinating aspects of Sikhism is the process which began with human Gurus, continued during the period of duality in which there were human Gurus and a collection of sacred writings and ended with the present situation in which full authority is enjoined by the scripture. In every respect the scripture is what the Gurus were. [569G] Both the Gurus and the Book deserve respect, which they are accorded because of the Bani which they express, the word of divine truth. Therefore, it was possible for Guru Arjan, the fifth in the human line, to bow before the collection which he had complied and installed in the newly built Darbar Sahib in 1604 for he was acknowledged the higher authority of the Bani due to the personal importance and significance which he possessed as Guru. [569H; 570A] The Sikh Gurus have much in common with other preceptors in Indian tradition but their history and contribution is distinctive. They were not Brahmins, they did not see their calling to be that of expounding Vedas, they taught in vernacular not Sanskrit and their message was for everyone. They were ten in number each remaining faithful to the teachings of Guru Nanak, the first Guru and when their line was ended by a conscious decision of Guru Gobind Singh, the last Guru, succession was invested in a collection of teachings which was given the title of Guru Granth Sahib. This is now the Guru of the Sikhs. [570B C] An important characteristic of the teachings of the Sikh Gurus is their emphasis upon the message, the Bani. It is this stress which made possible the transfer of Guruship to the scripture. The human Gurus were the instruments through whom the voice of the God became audible. [570D] The holiest book of the Sikhs is Guru Granth Sahib complied by the Fifth Master, Guru Arjun. It is the Bible of Sikhs After giving his followers a central place of worship, Hari Mandir, he wanted to give them a holy book. So he collected the hymns of the first four Gurus and to these he added his own. Now this Sri Guru Granth Sahib is a living Guru of the Sikhs. Guru means the guide. Guru Granth Sahib gives light and shows the path to the suffering humanity. Wherever a believer in Sikhism is in trouble or is depressed he reads hymns from the Granth. Whenever the Sikhs needed guidance or counsel, they should assemble before the Granth in all sincerity and decide their further line of action in the light of teachings of the Master, as embodied in the Granth. The noble ideas embodied in the Granth would live for ever and show people the path to blisss and happiness. [570E F; 571B] 3.2. Temples are found almost in every religion but there are some differences between the Sikh temples and those of other religions. The Sikh Gurudwaras have the following distinctive features: [571C] 1. Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurudwara. The central object of worship 567 in a Gurudwara is Sri Guru Granth Sakib, the holy book. The pattern of worship consists of two main items: reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular Granthi and then singing of some passages from the Holy Granth. The former is called Katha and the second is called Kirtan. A Sikh thus worships the Holy Words that are written in the Granth Sahib, the words or Shabada about the Eternal Truth or God. No idol or painting of any Guru can be worshipped. [571C D] 2. Sikh worship in the Gurudwara is a congregational worship, whereas Hindu temples are meant for individual worship. A Sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is the collective body of Sikhs who meet every day in the Gurudwara. [571E F] 3. Gurudwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not, to know where hospitality is available. There may be complexity of rooms in a Gurudwara for the building may also serve as a school, or where children are taught the rudiments of Sikhism as well as a rest centre for travellers. Often there will be a kitchen where food can be prepared though langar itself might take place in the yawning. Sometimes the Gurudwara will also be used as a clinic. But its pivotal point is the place of worship and the main room will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself. [571G H; 572A] 3.3. The sine qua non for an institution being a Sikh Gurudwara is that there should be established Guru Granth Sahib and the worship of the same by the congregation, and a Nishan Sahib as indicated in the earlier part of the Judgment. There may be other rooms of the institution meant for other purposes but the crucial test is the existence of Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib. It is not necessary that there must be a granthi in a Gurudwara. Any learned person can read Guru Granth Sahib and explain to the congregation. [572B C] Hem Singh and Others vs Basant Das & Anr. (1935 36) L.R. 631 IA 180; Bawa Ishar Dass & Others vs Dr. Mohan Singh and Others, Arjan Singh vs Inder Das ; Harnam Singh vs Gurdial Singh ; Mahant Dharam Das etc. vs State of Punjab & Ors. ; Sohan Das vs Bela Singh & Ors. AIR 1934 Lah. 180 referred to,
ivil Appeal Nos.4554 to 4556 of 1991. From the Judgment and Order dated 18.2.91 of the Madhya Pradesh High Court in Misc. Petition Nos. 1707, 1746 and 1797 of 1986. D.D. Thakur, C.S.Chazed, V.Gambhir, Surinder Kamail, S.K.Gambhir and N.N.Bhatt for the Appellants. K.K. Venugopal, P.P.Rao, G.L.Sanghi, K.K. Sharma, Ashok K. Mahajan, L.R. Singh, D.Mehta, A.Vachher, R.N.Mittal and S.K.Mehta for the Respondents. The Judgment of the Court was delivered by 249 RANGANATH MISRA, CJ. Special leave granted. Ujjain Development Authority is in appeal challenging the judgment of the Madhya Predesh High Court, Indore Bench, rendered in an application under Article 226 of the Consti tution annulling the notification issued under section 4 of the Land Acquisition Act of 1894 (hereinafter referred to as 'the Act ') by holding that scheme No.23 flamed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 does not operate against certain specified lands of the respondents. It would appear that there was a similar notification under section 4(1) of the Act for acquisition of the self same properties along with some 600 hectares for the purpose of development of Ujjain, a historical town of Kalidas fame within Madhya Pradesh. On 17.9.80 for different reasons the notification had been quashed. In 1985 the impugned notifi cation was issued afresh under section 4(1) of the Act. The High Court found that the requirements of the stat ute for completing the scheme for the purpose of which the acquisition had been made had not been complied with and, therefore, no action for acquisition under the scheme could be taken. We have heard learned counsel for both the sides and must state that the reasoning given by the High Court is difficult to find fault with. There are, however certain features which lead us not to sustain the decision of the High Court. Admittedly there has been a notification under section 50(2) of the Adhiniyam. Gazette Notification in respect of Scheme No. 23 has also been produced. Though there is a finding that the pre conditions had not been complied with strictly under the statutory provisions, the High Court has not found any mala fides. The Development Authority in question consisted of only one person. His own order was perhaps taken by him and the governmental authori ties as the requisite resolution. The respondents did not take the ground that there was no valid authority behind the scheme. In the earlier petition also such a ground had not been raised. The High Court called for the record and dis covered for itself that the statutory pre condition had not been complied with for the said scheme to operate. If this question had been raised when the earlier writ petition was filed about 12 years back, the defect could have then been rectified. It is the admitted case before us that the undisputed huge patch of land has been substantially improved upon under the scheme. Cancellation of the notification does not bring the matter to an end. Obviously fresh proceedings would be taken after complying with the defect if the judg ment of the High Court is allowed to stand. If the acquisi tion is not made the respondents should enjoy usual benefits of their land on account of the 250 development of the neighbouring area and if the re acquisi tion is made there would be claim for higher compensation. Looking at the matter from these different angles, we have thought it appropriate to allow the appeal, vacate the judgment of the High Court and allow the acquisition to remain subject, however, to the condition that the notifica tion under section 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date. We would like to point out that the potential value of the land has substantially enhanced on account of the improvements made pursuant to the notification which had been assailed. We have directed the deemed date of the notification under section 4(1) to be postponed by almost three years and during this period the appellant has brought about the bulk of the improvements in the neighbourhood. We direct that 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the respondents, but in fixing market value all other legitimate considerations shall be taken into account. We make it clear that we have no intention to extend the benefit under section 28A of the Act to the owners of the lands already acquired under the notification of 1980 or 1985 on the basis of our direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1. In fact our order must be deemed to be a separate notification for acquisition and, therefore, it would not be a common notifi cation for the purpose of section 28 A of the Act. The respondents should, therefore, be entitled to this benefit that instead of the notification under section 4(1) of the Act being of 1985, it shall be treated to be of 1.1.1988. The appellate authority is now entitled to take position in accordance with law subject to the valuation of the compen sation in the manner indicated. There will be no order as to costs. V.P.R. Appeals dis posed of.	A notification u/s.4(1) of the Land Acquisition Act, 1894 was issued for acquisition of the questioned lands along with some other lands for the purpose of development of the town. On 17.9.80 the same was quashed. In 1985 another similar notification was issued u/s 4(1) of the Act, for acquisition of the same lands for the Scheme No.23 framed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973. The respondents challenged the notification before the High Court under Article 226 of the Constitution. The High Court allowed the writ petitions annulling the notification and holding that the Scheme No.23 did not operate against certain specified lands of the respondents. It also found that the statutory requirements for completing the scheme were not complied with and therefore, no action for acquisition under the Scheme could be taken. These appeals were filed by the Development Authority against the High Court judgments by special leave. Disposing of the appeals, this Court, HELD: 1. The pre conditions had not been complied with strictly under the statutory provisions. The High Court has not found any malafides. The Development Authority in ques tion consisted of only one person. His own order was perhaps taken by him and the gov 248 ernmental authorities as the requisite resolution. The respondents did not take the ground that there was no valid authority behind the scheme. [249 E F] 2. The huge patch of land has been substantially improved upon under the scheme. Cancellation of the notifi cation does not bring the matter to an end. Obviously, fresh proceedings would be taken after complying with the defect if the judgment of the High Court is allowed to stand. If the acquisition is not made the respondents should enjoy usual benefits of their land on account of the development of the neighbouring area and if the re acquisition is not made there would be claim for higher compensation. [249 G250 A] 3. It is directed that the acquisition remain to subject, to the condition that the notification under sec tion 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date, and that as the deemed date of the notification under sec tion 4(1) to be postponed by almost three years and during this period since the appellant has brought about the bulk of the improvements in the neighbourhood, 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the re spondents, but in fixing market value all other legitimate considerations shall be taken into account. There is no intention to extend the benefit under section 28 of the Act to the owners of the lands already acquired under the noti fication of 1980 or 1985 on the basis of court 's direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1.1988. [250 B D]
Digitally signed by (BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE) WP No. 14860 of 2022 The petitioner has called in question validity of the order of transfer at Annexure - A dated 23.12.2021. The facts made out in the petition is that respondent No.6 has been posted to the place of the petitioner as per the impugned order at Annexure-A dated 23.12.2021. Insofar as the posting of the petitioner is concerned, it is only observed that the petitioner is to report to the competent authority for obtaining an order for posting. It is further noticed that it is only on 20.07.2022, more than about six [6] months after the order at Annexure - A, during the pendency of the present proceedings, the petitioner has WP No. 14860 of 2022 been given an order of posting at the Town Municipal Counsel, Ullal (for vacant post). 2. The only point that requires to be considered is as to whether the order of transfer after the period of general transfers could be upheld where no order of posting has been shown as regards the petitioner. The legal position insofar as not showing order of posting of an employee in whose place another employee has been placed, has been considered in detail by the Division Bench of this Court in M.Arun Prasad Vs. The Commissioner of Excise and Others1. The observations at Paragraph Nos.4 to 7 are reproduced below: "4. We may record that this Court in the above referred order dated 16.09.2016 at paragraph-6 had observed thus: 6. There are two serious infirmities in the transfer order. One is that when the petitioner is transferred from the post of Assistant Conservator of Forest, there is no clear posting order at a particular post of the petitioner. W.P.No.58931/2016 (S-KAT) dated 02.03.2017 WP No. 14860 of 2022 Unless the petitioner is lifted from one place and posted at another place, it cannot be said that any vacancy has arisen of the petitioner and such an exercise of the power cannot be appreciated even if one keeps in mind the administrative circumstances for the public interest as the case may be. It is hardly required to be stated that when ‘A’ is posted in place of ‘B’ from one place to another then only there will be a vacancy of ‘A’ and ‘B’ can be posted at the place of ‘A’. If ‘A’ is lifted and his posting is kept in lurch and ‘B’ is posted vice-A such practice cannot be appreciated and deserves to be rather deprecated and the reason being that the officer who is lifted from one place is not certain at which place he has to join the duty and unless he joins the duty at different place, it cannot be said that vacancy in law had arisen at his original place. So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide. 5. Thereafter this Court while allowing the petition had also observed at paragraph-12 in the said decision which reads as under: “12. Before parting with, we would find it appropriate to observe that in number of cases it is found by this Court that the transfer order is passed in a manner that one Officer is lifted from one post but it is not clarified about his next posting and he is expected to approach before the concerned Department for appropriate posting and another Officer vice him is already posted. This practice would keep the Officer in lurch about his next posting even he is to be transferred. Such practice is deprecated by the Court in this matter as well as in other WP No. 14860 of 2022 matters. A reference may be made to the order passed by this Court in W.P.No.39438/2016 disposed of on 19.08.2016 and W.P.No.43919/2016 disposed of on 23.08.2016. Hence, in order to ensure that appropriate mechanism is worked out, the registry shall forward the copy of the order to the Chief Secretary of the State Government to look into the matter and to take suitable action.” 6. Pending the present petition, the posting order of the petitioner was already made. However, the fact remained that without appropriate posting of the petitioner, the transfer order was passed coupled with the aspects that as per the observations made by this Court in the earlier order, no transfer order could have been passed without appropriate posting of the Officer who is lifted from the place he is working." 3. It is clear that the position of law is settled that passing an order of transfer without showing place of posting would suffer from legal malafide. This position is reiterated by the Division Bench of this Court in the latest decision in Mahiboob Sab Vs. The State of Karnataka and Others2. It is also to be noticed that this is the stand of the Government as is noticed from the Circulars W.P.No.16363/2021 (S-KSAT) dated 31.05.2022 WP No. 14860 of 2022 of 18.01.2017 and 27.03.2017. In fact, the Circular of 27.03.2017 further stipulates that reasons must be recorded in writing for not showing posting to any Government Servant and such reasons should be "compelling administrative reasons like non availability of post due to abolishment/up-gradation/down-gradation, shifting in lieu of suspension, requirement of Government Servant to perform urgent confidential work in a post, unsuitability or inefficiency to work in the existing vacancy or for being utilized against temporary and leave vacancy etc., which are only illustrative but not exhaustive". Procedure is also shown to review orders of transfer by the Head of the Department where person displaced is not shown posting recording reasons in writing. 4. Admittedly, in the present case, none of the procedures are followed. Despite the observations by the Division Bench of this Court in M.Arun Prasad's case WP No. 14860 of 2022 (supra) and also the Government Circulars referred to above, time and again orders of transfer are being passed without showing places for posting. In terms of the order in M.Arun Prasad's case (supra), vacancy will not arise until an employee in whose place another employee has been transferred, is shown a place of posting. The Government to ensure that such instances should not repeat and strict compliance of Circular dated 27.03.2017 as well as directions of the Division Bench of this Court in M.Arun Prasad's case (supra). 5. It is also necessary to note that transfer is made in the month of December. Even as per the records submitted by the Government, as per note on 01.10.2021 it is observed that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place. In the present case, as stated earlier, there was no vacant WP No. 14860 of 2022 place while considering the representation of the respondent No.6 to be transferred and posted in the place of the petitioner. It is also noticed that the case of respondent No.6 is on the basis of the letter of the Member of the Legislative Assembly. Nevertheless, procedure requires to be followed. 6. The delay in filing is explained by way of earlier proceedings instituted by the petitioner before this Court in W.P.No.3955/2022 (S-RES) disposed of on 22.02.2022 and subsequently, in Application.No.1439/2022 disposed of on 12.07.2022. 7. Accordingly, on two grounds i.e., not showing an order of posting for a period of more than six [6] months and on the ground that no transfer must be made except to a vacant post after the period of general transfers, while noticing that the transfer is made in December 2021 as noticed in the proceedings of transfer, WP No. 14860 of 2022 the petition is allowed. The impugned order dated 23.12.2021 at Annexure - A is set aside. The parties are directed to be placed in the position prior to the impugned It is only expected that the State will ensure strict compliance with its own Circular of 27.03.2017 as well as directions of the Division Bench passed in M.Arun Prasad's case (supra) and the observations in Mahiboob Sab's case (supra).	The Karnataka High Court has directed the State government to ensure that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place. A single judge bench of Justice S Sunil Dutt Yadav allowed a petition filed by one Murthy and set aside the order of transfer dated 23.12.2021 issued to him.... The Karnataka High Court has directed the State government to ensure that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place. A single judge bench of Justice S Sunil Dutt Yadav allowed a petition filed by one Murthy and set aside the order of transfer dated 23.12.2021 issued to him. It placed the petitioner back in the position prior to the impugned order of transfer. Further the bench said, "It is only expected that the State will ensure strict compliance with its own Circular of 27.03.2017 as well as directions of the Division Bench passed in M.Arun Prasad's case (supra) and the observations in Mahiboob Sab's case (supra)." In its order in the case of M Arun, W.P.No.58931/2016 (S-KAT) dated 02.03.2017 the bench had deprecated the practice of lifting an officer from one post but not clarifying about his next posting. "He is expected to approach before the concerned Department for appropriate posting and another Officer vice him is already posted. This practice would keep the Officer in lurch..." The government circular dated 27.03.2017 stipulates that reasons must be recorded in writing for not showing posting to any Government Servant and such reasons should be "compelling administrative reasons like non availability of post due to abolishment/ up-gradation/ down-gradation, shifting in lieu of suspension, requirement of Government Servant to perform urgent confidential work in a post, unsuitability or inefficiency to work in the existing vacancy or for being utilised against temporary and leave vacancy etc., which are only illustrative but not exhaustive". Procedure is also shown to review orders of transfer by the Head of the Department where a person displaced is not shown posting recording reasons in writing. The petitioner by the impugned order was asked to report to the competent authority for obtaining an order for posting. Only after six months, that is only on 20.07.2022, after the order during the pendency of the present proceedings, the petitioner was given an order of posting at the Town Municipal Council, Ullal (for vacant post). To which the bench said, "In the present case, none of the procedures are followed. Despite the observations by the Division Bench of this Court in M.Arun Prasad's case (supra) and also the Government Circulars referred to above, time and again orders of transfer are being passed without showing places for posting." Further it observed, "In the present case, as stated earlier, there was no vacant place while considering the representation of the respondent No.6 to be transferred and posted in the place of the petitioner. It is also noticed that the case of respondent No.6 is on the basis of the letter of the Member of the Legislative Assembly. Nevertheless, procedure requires to be followed." Finally it held, "Accordingly, on two grounds i.e., not showing an order of posting for a period of more than six [6] months and on the ground that no transfer must be made except to a vacant post after the period of general transfers, while noticing that the transfer is made in December 2021 as noticed in the proceedings of transfer, the petition is allowed. The impugned order dated 23.12.2021 at Annexure - A is set aside. The parties are directed to be placed in the position prior to the impugned order." Case Title: MURTHY v. THE STATE OF KARNATAKA Case No: WRIT PETITION NO. 14860 OF 2022 Date of Order: 18TH DAY OF AUGUST, 2022 Appearance: Advocate PAVANA CHANDRA SHETTY H for petitioner; AGA M.C.NAGASHREE, FOR R1 TO R4; Advocate H.V.MANJUNATH, FOR C/R5 AND R6
1. This is an application filed under Section 482 CrPC with a prayer to set aside and quash the FIR registered as Laban P. S Case No 102(11) of 2021 under Section 5(j)(ii)/6 of the POCSO Act, 2012 and the consequent proceedings in Special POCSO Case No. 28 of 2022 pending before the learned Special Judge (POCSO) at Shillong. 2. Heard Ms. S. A. Pandit, learned counsel for the petitioners who has submitted that the petitioner No. 1 and the petitioner No. 2 have known each other since the month of January, 2021 and have developed mutual love for each other. They have also got into a physical relationship in course of their 3. In the month of April, 2021, the petitioner No 2 realised that she is pregnant and she accordingly informed the petitioner No 1. Thereafter, the petitioner No. 1 came and started living together with the petitioner No. 2 and since then they cohabited as husband and wife. 4. On 21.11.2021, the petitioner No. 2 felt some pregnancy contractions and was taken to the Ganesh Das Hospital, Shillong by the petitioner No. 1 for medical check-up. At the hospital, she has given her age as 17 years. On the basis of this information, the hospital staff accordingly informed the police. The petitioner No. 2 however, was subsequently admitted to Robert Hospital, Shillong where she gave birth to a baby girl on 23.11.2021. 5. In the meantime, the police on receipt of the said information from Ganesh Das Hospital, has treated the same as an FIR and caused registration of Laban P. S Case No. 102(11) of 2021 under Section 5(j)(ii)/6 of the POCSO 6. On investigation being conducted, the Investigating Officer have eventually filed the charge sheet on 23.01.2022 implicating the petitioner No. 1 as the accused who is to face trial before the competent court, a regular case was registered as Special POCSO Case No. 28 of 2022 and the matter was taken up by the learned Special Judge (POCSO), Shillong. 7. The petitioner No. 1 was never arrested during the period of investigation as the petitioner No. 2 in her statement before the police have stated that she is in a relationship with the petitioner No. 1 and that they are now staying together after she gave birth to a baby girl on 23-11-2021 and if the petitioner No. 1 is arrested, then there will be no one to look after the family. 8. The petitioner No. 1 has been summoned to enter appearance before the Trial Court and the matter is at the stage of consideration of charges. 9. Being highly aggrieved by the proceedings initiated against the petitioner No. 1 before the court of the learned Special Judge (POCSO), Shillong, the petitioners as stated above have approached this Court with a prayer to set aside the FIR and the related POCSO case wherein the petitioner No. 1 has been named as the accused. 10. Heard Ms. S. A. Pandit, learned counsel for the petitioners who has submitted that admittedly the petitioner No. 2 was about 17 years of age when she cohabitated with the petitioner No. 1 and at the time when she gave birth to her child she was also above 17 years but less than 18 years of age. However, the fact that the relationship between the alleged victim and the accused has been established to be that of husband and wife, the sexual relationship between the two is one of consensual and not forced and in fact, cannot be considered to be a case of sexual assault. 11. The fact that the petitioner No. 2 has by now attained the age of majority on 25-05-2022 and, as such, can be considered to be legally living together with petitioner No. 1 as husband and wife is also one of the contentions raised by the learned counsel for the petitioners. 12. The union between the petitioners herein as husband and wife have also been blessed by the family members of both sides, therefore, continuation of the said proceedings would not be for ends of justice. It is prayed that this petition would be allowed and that the related FIR and criminal case against the petitioner No. 1 be set aside and quashed. 13. Mr. K. P. Bhattacharjee, learned GA for the State-respondent has not made any strong objection to the prayer of the petitioners herein, but has only submitted that since the case before the Trial Court against the petitioner No. 1 is at the stage of consideration of charges, it may not be prudent for this Court to curtail the proceedings at this juncture. 14. Upon hearing the learned counsels this Court has given due consideration to the submission made and has also produced the petition in 15. Facts as indicated above need not be mentioned again, suffice it to say that the prayer of the petitioners has to be considered while looking into the related provisions of the POCSO Act. However, on an overall assessment of the fact situation, this Court is of the view that an exercise of power under Section 482 CrPC to ensure that real and actual justice is done cannot be curtailed by the strict interpretation or application of the related provisions of 16. This Court in the case of Skhemborlang Suting & Anr. v. State of Meghalaya & Anr. at para 7 has observed as follows:- “7. Though, the POCSO Act has been rightly enacted to safeguard children from sexual exploitation, but in the peculiar facts and circumstances of the case of the petitioners herein, the rigors of the said Act may not be applied to their case and the converse would only result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support, physically or financially from her husband who may be languishing in jail.” 17. The observation of the Hon’ble Calcutta High Court at para 47, 48 and 49 in the case of Ranjit Rajbanshi v. State of West Bengal & Ors. C.R.A No. 458 of 2018, has also been found relevant by this Court when it was observed “47. In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim. 48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused. 49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC 7 and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union.” 18. As has been observed above, this Court for securing ends of justice would not be found wanting if under the peculiar facts and circumstances and if there is no drastic impact on the societal balance, the case of the parties be required to be looked at sympathetically. 19. The present position being that the petitioners, particularly the petitioner No. 2 being of legal marriageable age and said to be living a married life with petitioner No. 1 along with their new born child, continuation of the criminal proceedings against the petitioner No. 1 would indeed serve no purpose for all concerned. 20. Accordingly, the prayer of the petitioners herein finds merit with this Court and the same is allowed. 21. The FIR registered as Laban P. S Case No. 102(11) of 2021 under Section 5(j)(ii)/6 of the POCSO Act, 2012 and the consequent proceedings in Special POCSO Case No. 28 of 2022 pending before the learned Special Judge (POCSO) at Shillong, are hereby set aside and quashed. 22. Petition disposed of. No costs.	The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.The observation came from Justice W. Diengdoh... The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age. The observation came from Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and his child-bearing minor partner. The couple had been living together like husband and wife. The accused was booked after the minor was admitted to the hospital in connection with her pregnancy and was found to be aged 17 years. The matter was reported to the local Police which swung in action and registered a case under Section 5(j)(ii)/6 of the POCSO Act, 2012. Though the Petitioner was not arrested during investigation, keeping in mind that there will be no one to look after the family, he was summoned to appear before the Trial Court at the stage of consideration of charges. The minor submitted that their union was blessed by the family members of both sides and therefore, continuation of the criminal proceedings would not be for ends of justice. The State also did not make any strong objection to the prayer of the petitioners. "On an overall assessment of the fact situation, this Court is of the view that an exercise of power under Section 482 CrPC to ensure that real and actual justice is done cannot be curtailed by the strict interpretation or application of the related provisions of law...The present position being that the petitioners, particularly the petitioner No. 2 being of legal marriageable age and said to be living a married life with petitioner No. 1 along with their new born child, continuation of the criminal proceedings against the petitioner No. 1 would indeed serve no purpose for all concerned," the Court said. Reliance was placed on Skhemborlang Suting & Anr. v. State of Meghalaya & Anr. where the High Court quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born. In view of the above, FIR against petitioner no. 1 was quashed. Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors.
minal Appeal No. 100 of 1969. 572 Appeal by special leave from the judgment and order dated January 8, 1969 of the Bombay High Court in Criminal Application No. 1341 of 1968. C. L. Sareen and J. C. Talwar, for the appellant. P. K. Chatterjee and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Shelat, J. The appellant and one Bakshi Singh Sunder Singh were accused No. 2 and accused No. 1 respectively in the committal proceedings before the Presidency Magistrate, 28th Court, Greater Bombay. This appeal, by special leave, is directed against the judgment of the High Court of Bombay refusing to quash the order of committal passed by the learned Magistrate. The facts relevant to this appeal are few and may first be stated. On October 31, 1963, one Jivansingh Uttam Singh obtained a British passport bearing No. 183459 at Nairobi. On the strength of that passport he was returning to India with his family. On his way he died on board the ship. According to the prosecution that passport came into the hands of the appellant. Bakshi Singh desired to go to the United Kingdom, but had no passport. The appellant agreed to arrange his journey and also for that purpose to obtain a passport for him. The allegation was that the appellant prepared an applica tion for a visa in the name of Bakshi Singh. It was further alleged that with a view to procure the said visa the photograph of the said deceased Jivansingh was removed from the said passport and that of Bakshi Singh substituted. The visa having in this fashion been obtained, Bakshi Singh journeyed to the United Kingdom having on his way made some intermediate halts. The British authorities suspected that the, passport was a forged document and repatriated Bakshi Singh to India. On his arrival he was handed over to the Special Police, Bombay. The Special Police carried out investigation in the course of which they recorded statements of certain witnesses including that of Tanna Singh, the younger brother of Bakshi Singh. On completion of the investigation, the police filed a charge sheet before the learned Magistrate. That charge sheet is not before us. But counsel for the appellant informed us that Bakshi Singh was therein charged under secs. 419 and 471 read with sec. 468, and the appellant was charged under secs. 419/109, 468 and 471 of the Penal Code. Counsel also. informed us that the Magistrate did not examine any witnesses, during the committal 573 proceedings but on a perusal of the charge sheet and the documents filed before him under sec. 173 of the Code of Criminal Procedure he framed the charges and committed, by his order dated September 13, 1968, Bakshi Singh and the appellant for trial before the Sessions Court. By that order he directed the said Bakshi Singh to stand his trial under secs. 120B, 419, 467 and 471 read with sec. 467, and the appellant under secs. 120B and 467 of the Penal Code. The offence of criminal conspiracy charged under sec. 120B was that the said Bakshi Singh and the appellant had conspired to forge the said passport for the use of the said Bakshi Singh. In the High Court various contentions were raised on behalf of the appellant in support of his application under sec. 561A of the Code of Criminal Procedure including that under sec. 196A (2). That contention was that no consent as required by sec. 196A(2) having been first obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy, and therefore, the committal order was without jurisdiction and had to be quashed. In this appeal we are concerned only with that contention as the special leave ranted to the appellant has been limited to that ground alone. Sub sec. 2 of sec. 196A, which is relevant to the present case, provides that no court shall take cognizance of the offence of criminal conspiracy punishable under sec. 120B of the Penal Code in a case ' inter alia where the object of such conspiracy is to commit any non cognizable offence. There is no doubt that the charge, as framed by the Magistrate and for which he committed the appellant and Bakshi Singh to stand their trial before the Sessions Court, was for criminal conspiracy, the object of which was to forge the said passport, a non cognizable offence. In respect of that offence, sec. 196A(2) would undoubtedly apply. What that section prohibits is taking cognizance of an offence of criminal conspiracy unless consent to the initiation of proceedings against the person charged with it has been first obtained. As provided by sec. 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes 574 cognizance of an offence on a complaint or on a police report, or upon information of a person other than a police officer. Therefore, when a magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report. It is not in dispute that the charge sheet submitted by the police officer for the purpose of initiation of proceedings by the magistrate was for offences under sees. 419 and 471 read with sec. 468 against Bakshi Singh and under sees. 419/109, 471 and 468 against the appellant. The charge sheet admittedly did not refer to or charge either of them with criminal conspiracy under sec. 120B. Prima facie it is not possible to say that at the stage when the police filed the charge sheet the Magistrate took cognizance of the offence, under sec. 120B, for, that was not the offence alleg ed in the charge sheet to have been committed by either of the two accused persons. True it is that the Magistrate ultimately drew up charges which included the offence under sec. 120B, the object of which was to forge the passport, an offence under sec. The Magistrate also did not consider it necessary to examine any witnesses and frame the charges on a perusal of the charge sheet submitted to him by the police, the statement of witnesses recorded by the police during their investigation and such other documents as were filed under sec. 173 of the Code of Criminal Procedure &,fore him. The materials before him, therefore, were the same as were before the police officer who had filed the charge sheet. But while drawing up the charges and passing his order of committal, the Magistrate considered that though the charge sheet filed before him alleged the commission of offences under secs. 419/109, 471 and 468, the proper charge on the materials before him, although they were the same as before the police officer, warranted a charge of criminal conspiracy for forging a passport. It is quite clear, however, that the cognizance which he took was of the offences alleged in the charge sheet because it was in respect of those offences that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not for the offence under sec. It was at a later stage, i.e., at the time of passing the committal order that he considered that a charge under sec. 120B was the more appropriate charge and not a charge under sec. 109 of the Penal Code. That being so, it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy, and therefore, sec. 196A(2) did not apply. Counsel in this connection relied on certain observations made in a minority judgment of section K. Das, J., in Pramatha Nath 575 Taluqdar vs Saroj Ranjan Sarkar. (1) The question involved there was, whether a second complaint could be entertained by a magistrate who or whose predecessor had on the same or similar allegations dismissed a previous complaint, and if so, in what circumstances should such a complaint be entertained. Arising . out of this question a contention was raised whether on the complaint, as it was framed, the Magistrate had the jurisdiction to, take cognizance of the offences alleged in the complaint in the, absence of a sanction under sec. The second complaint alleged offences under secs. 467 and 471 read with sec. 109 of the Penal Code. But in para 5 thereof, there was an allegation as to criminal conspiracy and it was on the basis of that allegation that sec. 196A(2) was sought to be involved. It was in this connection that the learned Judge at page 315 of the report, observed : "It would not be proper to decide the, question of sanction me rely by taking into consideration the offences mentioned in the heading or the use of the expression " criminal conspiracy" in para, 5. The proper test should ' be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of section 196A(2) of the Code of Criminal Procedure. It is from that point of view that the petition of 'complaint must be examined. " The learned Judge ultimately held that though the offence of criminal conspiracy was alluded to in para 5 of thesaid complaint, the offence "primarily and essentially" chargedwas abetment by conspiracy under sec. 109 of the Penal Code, and therefore. no consent under sec. 196A(2) was required. In Biroo Sardar vs Ariff (2) the view also taken was that itis not the, sections referred to which matter but the offence prima facie disclosed. Following that decision, the High Court of Bombay in Ramchandra vs Emperor(3) observed that the question whether sanction is necessary or not depends not on the sections referred to in a complaint but the offence prima facie disclosed '. by the facts alleged in it. It is clear from the charge sheet submitted to the magistratethat the offence of criminal conspiracy was not even referred to. The offence "primarily and essentially" alleged therein was oneof abetment of forgery under secs. 468 and 471 and of false, (1) [1962] Supp. 2 S.C.R. 297. (2) A.I.R. 1925 Cal. (3) A.I.R. 1939 [Bom.] 129. 576 impersonation under sec. 419 read with sec. Assuming that the Magistrate before taking cognizance had persued the statements of witnesses recorded by the police during investigation, it was conceded by counsel, after he himself had gone through them from the record, that none of the witnesses had alleged therein either directly or indirectly of the appellant having entered into a criminal conspiracy with Bakshi Singh for forging the passport. It cannot be disputed that the charge sheet also prima facie disclosed the offence of abetment. That being so, it is ,impossible to sustain the argument that the Magistrate took cognizance of the offence under sec. 120B, and therefore, consent under sec. 196A(2) was required as a condition precedent or that the committal order and the proceedings for committal which be took were vitiated for want of such consent. The appeal, therefore, fails and is dismissed. V.P.S. Appeal dismissed.	The police filed a charge sheet against the appellant and another for various offences in connection with the fabrication of a British passport. The offences mentioned in the charge sheet against the appellant were sections 419/109, 468 and 471, I.P.C., and against the other accused sections 419 and 471 read with section 468. The Magistrate did not examine any witnesses, but after perusing the charge sheet and other documents filed before him under section 173, Cr.P.C., framed charges against the two accused and committed them for trial before the Sessions Court. The charges against the accused included the offence under section 120B, I.P.C., the object of the conspiracy being, to commit the non cognizable offence of forging the passport. The appellant filed an application in the High Court for quashing the committal order on the ground that no consent, as required by section 196A(2), Cr. P.C., having been obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy. The High Court dismissed the application. Dismissing the appeal to this Court, HELD : (1) Cognizance takes place when the Magistrate takes judicial notice of an offence. Therefore, when a Magistrate takes cognizance of an offence under section 190, Cr. P.C. upon a police report, prima facie he does so of the offences alleged in the report. [573 H; 574 A] In the present case the charge sheet did not refer to or charge either of the accused with criminal conspiracy. The cognizance which the Magistrate took was therefore, only, of the offences alleged in the chargesheet, and it was only at the later stage of passing the committal order that he considered that a charge under section 120B was more appropriate than that of abetment. [574 F H] (2) Even on the basis that it is not the sections referred to in the charge sheet that matter, but the offence prima facie disclosed by the allegations, in the present case the offence 'primarily and essentially disclosed in the charge sheet and other documents was one of abetment of forgery and of the false impersonation. [575 F H] Therefore, the Magistrate did not take cognizance of the offence under section 120B, I.P.C., and hence, consent under section 196A(2) Cr. P.C., was not a condition precedent. [576 B C]
Civil Appeals No. 2815 & 2816 of 1980. 110 Appeals by special leave from the Award dated the 3rd September, 1980 of the National Industrial Tribunal at Bombay in Complaint No. NTB 2 and NTB 3 of 1980 arising out of Reference No. NTB 1 of 1979. WITH CIVIL APPEAL NO. 2607 of 1980 Appeal by special leave from the Award dated the 3rd Sept. 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979. AND CIVIL APPEAL NO. 3150 of 1980 Appeal by Special leave from the Award dated 3rd September, 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979. F.S. Nariman R.A. Shroff, H.S. Parihar and Shradul section Shroff, for the Appellant in CAS 2815 16/80, for Respondent No. 2 in CA. 2607/80 & for Respondent No. 1 in C.A. 3150/80. C. N. Murthy and P. P. Mittal for Respondent No. 1 in CA. 2815 16/80. M.K. Ramamurthy, P.S. Khera and S.K. Dawar, for RR 2 70 in CAS. 2815 16/80, for Respondent No. 3 in CA 2607/80 & for Respondent Nos. 3 & 40 67 in CA. 3150/80. K.K. Venugopal, C.N. Murthy and P.P. Mittal 1980 for the Appellants. A.K. Sen, A.K. Gupta, Brij Bhushan, N.P. Mahendra and Miss Renu Gupta, for the Appellants in CA. 3150/80. S.K. Bisaria for RR. 2 4 and 6 39 in CA. 3150/80. The Judgment of the Court was delivered by GUPTA, J. These are four appeals by special leave from an Award of the National Industrial Tribunal, Bombay, made on September 3, 1980 disposing of two complaints under section 33 A of the holding that the employer, 111 Reserve Bank of India, Bombay had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and had thereby contravened the provisions of section 33 (1) (a) of the Act. Civil Appeals 2815 and 2816 of 1980 have been preferred by the Reserve Bank of India, Bombay. In civil appeal 2607 of 1980 the appellants are some of the stenographers employed in the Bombay office of the Reserve Bank of India. The four appellants in civil appeal 3150 of 1980 are also employees of the Reserve Bank of India, Bombay, one of whom is a clerk grade I and the other three are officiating as staff officers grade A. How the appellants in Civil Appeals 2607 and 3150 are affected by the Award will appear from the facts stated below. The facts leading to the making of the complaints under section 33 A are as follows. On June 16, 1979 the Government of India, Ministry of Labour, in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with headquarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their class III workmen. The dispute as described in the schedule to the order of reference related to "specific matters pertaining to class III workmen" enumerated in the schedule. The schedule listed 35 matters in all, item No. 12 of which is described as 'Promotion '. On May 13, 1972 appellant Reserve Bank of India, Bombay, had issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as Staff Officers Grade A. This Circular No. 8 prescribed as a condition for promotion passing a test consisting of three papers on the following subjects: noting, drafting, precis & essay writing, (ii) Reserve Bank of India Act, and (iii) functions and working of the Reserve Bank of India. Candidates with less than 15 years ' service in class III cadre at the time of the test and who had not passed in the subjects 'Practice and Law of Banking ' and 'Book keeping and Accounts ' in Part I of the Institute of Bankers Examination were to appear and pass in an extra paper divided into two parts on the aforesaid two subjects. Candidates who had passed in either or both these subjects in part I of the Institute of Bankers Examination were exempted from appearing in the corresponding part or both parts of this paper. The circular further provided that an estimate of the vacancies anticipated to occur in each office during a 'panel year ' i. e. from September 1 to 112 August 31, was to be declared by the Bank in advance and the number of candidates in that office to be called for the test to fill the vacancies in that office was not to exceed twice the number of such vacancies. A candidate who had been unsuccessful in more than one test was to be treated as a repeater and the number of such repeaters sitting for a test would be in addition to the aforesaid number of candidates. An employee in the substantive rank of teller, stenographer grade II, stenographer grade I or personal assistant was eligible to appear in the test under this circular provided he had put in a minimum period of 15 years ' service in class III cadre. A further condition relating to these three types of employees, tellers, stenographers and personal assistants, was that they could be called to appear in the test only if a clerical candidate of the same length of service found a place within twice the number in the combined seniority list. The said three types of employees were required to pass both parts I and II of the Institute of Bankers examination, or if they were graduates, in part I only. Those of them who would pass the test were to be posted on the clerical desk for one year for acquiring experience and thereafter they were to be absorbed in the next list to be prepared on the result of the test succeeding the one in which they had passed. They were to rank in seniority below the juniormost successful candidate in the test in which they qualified. A further requirement was that the stenographers and personal assistants should have worked for at least 5 years as such; this condition was thought necessary because it was possible that some of them may have been employed as typists for some time. Feeling that the aforesaid circular No. 8 adversely affected them, the Stenographers filed a writ petition in the Andhra Pradesh High Court challenging the validity of the circular. The main grievance seems to have been that by the said Circular No. 8 they were placed en bloc below the clerks which made the chances of promotion so far as they were concerned illusory. The Andhra Pradesh High Court dismissed the writ petition with the following observations: ". .the clerks and the stenographers who have passed at the qualifying written examination do not acquire any right to promotion by merely being put in a panel. As observed by the Supreme Court in the case cited in Gangaram vs Union of India, A.I.R. 1970 S.C. 2178, the effect of passing at the qualifying examination is only 113 to remove a hurdle in their way for further promotions to the posts of staff officers, grade II. In the matter of actual promotion there is nothing illegal in the department promoting the clerks as a group in the first instance and postponing the promotions of the stenographers to a later stage. .It is urged on behalf of the petitioners that previous to the new scheme, the stenographers were placed at the top of the clerks en bloc and that they have now been brought to the bottom. This argument is based upon a misconception that the panel creates any rights. Hence nothing turns upon the place fixed in the panel". The High Court however made certain recommendations "to avoid frustration and dissatisfaction among the stenographers". It was suggested that "the Reserve Bank may frame suitable rules for fixing the seniority among the staff officers, grade II, on some rational and equitable principles, i.e., by length of service or marks obtained at the qualifying examination or by adopting a reasonable ratio between the two classes, so that the chances of further promotions for the stenographers may not be illusory". This judgment was delivered on March 5,1973. In the months of March and November, 1973 charters of demand were submitted respectively by the All India Reserve Bank Workers Organisation and the All India Reserve Bank Employees Association. The latter Association is the one which is recognised by the Bank. On January 23, 1976 by Administration Circular No. 5 the Bank modified Circular No. 8 to remedy the alleged adverse effect suffered by the stenographers as a result of Circular No. 8. On June 16, 1979 the order referring to the National Tribunal at Bombay the dispute between the Bank and the class III workmen was made. The All India Reserve Bank Employees Association filed a writ petition in the Calcutta High Court in July 1979 challenging this order of reference. The High Court at Calcutta issued an injunction restraining the National Tribunal from adjudicating on the reference until the writ petition was disposed of. A settlement was thereafter reached between the Bank and the All India Reserve Bank Employees Association and the injunction was vacated. On November 21, 1979 the Bank and the Association applied to the Tribunal jointly for making an award on the basis of the settlement. In the meantime on October, 10, 1979 the impugned Circular No. 6 was issued. The following changes were introduced by Circular 114 No. 6 in the scheme of promotion set out in Circular No. 8 relating to personal assistants, stenographers, tellers and the clerical staff: (1) The eligibility period so far as these three types are concerned was reduced from 15 years to 10 years service. (2) The condition requiring stenographers and personal assistants to put in 5 years service as such was dispensed with. (3) Their period of training on clerical desk was reduced from 1 year to six months. (4) They were to be fitted according to the length of their service in the panel for the year in which they passed the test and not in the next panel as before. (5) Those who are graduates among these three groups, even if they had not passed in all the subjects in part I of Indian Institute of Bankers examination, would be eligible for exemption from appearing in the additional paper on 'Practice and Law of Banking ' and 'Book keeping and accounts ' if they had passed in these two subjects in the said examination. (6) This benefit of exemption which was available to the clerical staff of 15 years ' standing previously was extended to those of them who had put in only 10 years service. The two complaints (complaint Nos. 2 and 3 of 1980) on which the impugned award has been made were filed respectively on July 22, 1980 and August 1, 1980. The complainants who were clerks grade I had passed the test in the panel year 1978 79 and were empanelled for promotion to the post of staff officer grade A. The grievance made in the two complaints is that the result of the changes introduced in the promotional scheme by Circular No. 6 relaxing for the stenographers and personal assistants the conditions they were required to satisfy to be able to sit for the test and permitting them to be fitted according to the length of their service in the panel for the year in which they had passed the test, was that many who could not have been considered for promotion in preference to the complainants had circular No. 8 been in force, would 115 now be entitled to a higher preference. According to the complainants the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the . The complainants in complaint No. 2 of 1980 stated that if the alterations introduced by Circular No. 6 were allowed to continue "the chances of promotion would become bleak for them '; complainants in complaint No. 3 of 1980 also expressed a similar apprehension that as a result of the changes introduced "their chances of promotion would recede further and further". The appellants in civil appeal 2607 of 1980 who are stenographers acquired eligibility to appear in the qualifying test because of the modifications introduced in the existing scheme by Circular No. 6. All the four appellants in civil appeal 3150 of 1980 are from clerical cadre, three of whom are officiating as staff officers grade A; they are also beneficiaries of the relaxations made in the existing scheme by circular No. 6. The appellants in both these appeals are obviously affected by the Award allowing the complaints and declaring circular No. 6 as invalid. Section 33 (1) (a) prohibits the employer during the pendency of a proceeding in respect of an industrial dispute before a Labour Court or Tribunal or National Tribunal from altering to the prejudice of the workmen concerned in the dispute their existing conditions of service. Sub section (2) of section 33, however, permits the employer to alter the conditions of service in regard to any matter not connected with the dispute in accordance with the standing orders applicable to the workman concerned or in accordance with the terms of the contract between the employer and the workman. The right given to the employer under sub section (2) is subject to the condition laid down in sub section (3) of section 33 that the right can be exercised only with the express permission in writing of the authority before which the proceeding is pending. Section 33 A of the Act provides that where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention may make complaint in writing to such Labour Court, Tribunal or National Tribunal, and on receipt of such complaint the Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to it or pending before it in accordance with the provisions of the Act and submit its award to the appropriate government. Section 31 (1) of the Act provides for penalty for contravention of the provisions of section 33; an 116 employer found guilty of such contravention is punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both. In this case circular No. 6 was not introduced with the permission of the National Tribunal, Bombay, before which the reference was pending; to determine whether thereby the provisions of section 33 have been contravened, the question that requires to be answered is whether the alterations introduced by Circular No. 6 are connected with the dispute pending in reference before the National Tribunal. This again leads to the question, what was the dispute that was referred to the National Tribunal for adjudication? According to the complainants their promotional prospects were adversely affected by the impugned circular. Item 12 of the schedule annexed to the order of reference is described as 'Promotion '. Demand No. 19 in the charter of demands presented by the All India Reserve Bank Employees Association mentions 'Promotional avenues ' but, as the National Tribunal itself noticed, the matters specified under the head 'promotional avenues ' relate to the creation of more promotional posts and the upgrading of certain posts. Demand No. 19 does not thus relate to the promotional scheme in question. The impugned award also refers to demand No. 27 of the charter of demands submitted by the All India Reserve Bank Workers organisation. Demand No. 27 is described as 'Promotional Policy ' and all that is said in the charter of demands under this head is that the matter "should be discussed and finalised on the basis of pre requisites of promotional policy submitted in 1969". It is not therefore clear how demand No. 27 could have a connection with the promotional scheme set out in circular No. 6 issued in 1979. The award does not refer to the statements of claim filed on behalf of the workmen; it is likely that because of the order of injunction issued by the Calcutta High Court to which we have earlier referred, the unions representing the workmen were not able to file their statements of claim before the National Tribunal disposed of the complaints under section 33A. The Tribunal however held: " contemplates reference in wider terms than the actual item in dispute. Section 10 (IA) of the which provides for the appointment of the National Tribunal shows that the Central Government could form its opinion not only on the existing dispute but also on the apprehended dispute and the order of reference can cover not only the dispute but any matter appearing to be connected with or relevant to the dispute. In view of it, it cannot be said that when the item 'Promotion ' has been referred to 117 the Tribunal, it has the limitation of remaining in the frame work of the demand. the Tribunal has the jurisdiction to decide on the natural meaning of the words used in the item of reference. The item seems to have been deliberately stated in terms. it looks to be referring to the process involving promotions." Having said so the Tribunal added: "The extent of such process will have to be carefully defined because there is no dispute with the axiomatic principle that promotion is a matter in the discretion of the employer". It is difficult to follow the steps of reasoning in the extract from the award quoted above; it is also not clear how the view expressed therein helps in ascertaining what was the dispute referred to the Tribunal for adjudication. No one can deny that under section 10 (IA) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case however shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication. As section 10 (IA) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it. The Tribunal thought it unjust to restrict the meaning of the word 'promotion ' to what was suggested by the charters of demand and decided to give it its "natural meaning" which according to the Tribunal includes "the process involving promotion". The question however remains how did the Tribunal satisfy itself that when by the order of reference a specific matter, namely, 'promotion ' was referred to it for adjudication, it was implied that the word should be given a "natural meaning" in the sense in which the Tribunal understood it. We do not think it reasonable to suppose that the order of reference required the Tribunal to adjudicate on all possible matters relating to promotion. We therefore accept the contention of the appellants that the Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute. 118 Having reached this conclusion we should have sent the matter back to the National Tribunal for ascertaining the scope of the dispute referred to it for adjudication, if the assumption were correct that the alterations in the promotional scheme introduced by Circular No. 6 amounted to changing the conditions of service of the complainants; if not, remitting the matter to the Tribunal will be unnecessary. What Circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test. If they passed the test, they would get into the penal along with employees belonging to the clerical cadre who also had passed the test. Vacancies in the post of staff officer Grade A are filled by recruiting employees from the panel. The panel, it appears from the award, is a permanent one. How those who come out successful in the test are to be fitted in the panel has been stated earlier. The panel is made up of employees belonging to different cadres. It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service. The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service. It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees. In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby, but in this case the question is whether if amount to altering the condition of service of the complainants. In Reserve Bank of India vs N.C. Paliwal this Court upheld the validity of the combined seniority scheme introduced by the Reserve Bank for the clerical staff. The first paragraph of the head note to the report summarizes the facts on which challenge to the scheme was based: "At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments. There was a separate 119 seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre. There were two grades of clerks in each Department, namely, Grade I and Grade II. The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical. There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month. There were also several categories of non clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks. In view of expanding activities in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the Specialised Departments than in the General Department. This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion. The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve. As a result of the recommendation of the National Tribunal. however, the Reserve Bank introduced the Optee Scheme of 1965 as a first step towards equalization of opportunities. Under the scheme, the option to go over to the Specialised Departments was confined to confirmed Grade II clerks and officiating Grade I clerks in the General Department. If he exercised the option, he was eligible to be selected. If he was selected. he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ . His seniority in the cadre of Grade II clerks in the Specialised Department in which he was absorbed would be deter 120 mined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service. It was argued in Paliwal 's case that the combined list was invalid because it discriminated against the petitioners vis a vis other grade II clerks who had opted under the optee Scheme of 1965. This Court held: "The contention of the petitioners was that some of the Grade II clerks who had opted under the optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudicially affected their promotional opportunities and thus brought about unjust discrimination between persons belonging to the same class. This contention has no force and must be rejected. We have already discussed and shown that it was competent to the Reserve Bank to introduce the Combined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments. There was no such assurance given by the Reserve Bank when it introduced the optee Scheme of 1965. What it did was merely to equalise the opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments. The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the Clerical services until all the transferee Grade II Clerks were promoted. The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory 121 against them. It may be that some transferee Grade II Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not. But that cannot be helped. It is all part of the incidence of service and in law, no grievance can be made against it." These observations in Paliwal 's case are equally applicable to the case before us. It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when circular No. 6 was introduced had been promoted as staff officers Grade A. There was no such assurance given by the Bank when it introduced circular No. 8 on which the complainants rely. The Bank did not undertake that it would not take any step to change the conditions the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted. Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted. That cannot be helped, and, as observed in Paliwal 's case, "it is all part of the incidence of service and in law no grievance can be made against it". Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted. It may be recalled that in 1964 and again by circular No. 8 in 1972 the stenographers conditions of service were altered to their prejudice. The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier. The grievance of the complainants really relates to the changes affecting their chances of promotion. We have earlier quoted from the charters of demand to show that the complainants themselves looked upon the alterations made by circular No. 6 as affecting their "chances of promotion". It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of 122 promotion only. This Court in Mohd. Shujat Ali and others etc. vs Union of India & Ors. etc. held: "But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a condition of service. that though a right to be considered for promotion is a condition of service, mere chances of promotion are not." In Shujat Ali 's case the respondents went down in seniority and it was urged that this affected their chances of promotion. In Shujat Ali reference was made to earlier decision of this Court, State of Mysore vs G.B. Purohit where also it was held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. The facts of Purohit 's case and what was decided in that case have been summarized in Shujat Ali 's case as follows: "What happened in State of Mysore vs G.B. Purohit was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected. This contention was negatived and Wanchoo J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. " The fact that as a result of the changes made by circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion. 123 that being so, it cannot be said that the alterations made by circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis. The appeals are accordingly allowed and the complaints dismissed, in the circumstances of the case the parties will bear their own costs. V.D.K. Appeals allowed.	On May 13, 1972 the Reserve Bank of India, Bombay issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as staff officers Grade A. Feeling that the aforesaid Circular adversely affected them, the stenographers filed a writ petition in the Andhra Pradesh High Court challenging its validity, Their grievance was that by the said circular No. 8 they were placed en bloc below the clerks which made their chances of promotion illusory. On March 5, 1973 the Andhra Pradesh High Court dismissed the writ petition, but made certain recommendations to avoid frustration and dissatisfaction among the stenographers. In 1973 charters of demands were submitted to the Reserve Bank of India by the employees ' associations. On January 23, 1976 the Bank issued Administration Circular No. 5 modifying Circular No. 8 to remedy the alleged adverse effect suffered by stenographers as a result of Circular No. 8. On June 16, 1979, the Central Government in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with head quarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their Class III workmen. The dispute as described in the Schedule to the order of reference related to "specific matters. . pertaining to Class III workmen" enumerated in the Schedule. The Schedule listed 35 matters in all, item No. 12 of which is described as "promotion". During the pendency of the reference, on October 10, 1979 the Reserve Bank of India issued Administration Circular No. 6 introducing certain change in the scheme of promotion set out in circular No. 8 by relaxing certain conditions of eligibility for the personal assistants, stenographers, tellers and the clerical staff. Feeling aggrieved, some clerks (Grade I) who were empanelled for promotion to the post of Staff Officer Grade A after passing the test, filed two complaints before the National Tribunal under section 33A of the Industrial Dispute Act alleging (i) that as a result of Circular No. 6 many who could not have been considered for promotion in preference to the complainants had Circular No. 8 been in force, would now be entitled to a higher preference, 108 and (ii) that the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the inasmuch as their chances of promotion would recede. The National Tribunal by its award dated September 3, 1980 disposed of these two complaints holding that the Reserve Bank of India had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and thereby contravened the provisions of section 33 (1) (a). Hence the appeals by special leave. Allowing the appeals and dismissing the complaints, the Court ^ HELD: 1: 1. The order of reference did not require the Tribunal to adjudicate on all possible matters relating to promotion. The Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute. [117 G H] 1 : 2. Item No. 12 of the Schedule annexed to the order of reference is described as "promotion". Demand No. 19 in the Charter of Demands presented by the All India Reserve Bank Employees Association mentions "promotional avenues", but the matters specified under the head "promotional avenues" relate to the creation of more promotional posts and the upgrading of certain posts. Demand No. 19 does not thus relate to the promotional scheme in question. Demand No. 27 of the Charter of Demands submitted by the All India Reserve Bank Workers Organisation is described as "promotional policy" and all that is said in the charter of demands is that the matters "should be discussed and finalised on the basis of prerequisites of promotional policy submitted in 1969". Demand No. 27 could, therefore, have no connection with the promotional scheme set out in Circular No. 6 issued in 1979. [116 C E] 1: 3. Under section 10 (1A) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication. As section 10 (1A) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it. [117 C E] 2: 1. What circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test. It they passed the test, they would get into the panel along with employees belonging to the clerical cadre who also had passed the test. Vacancies in the posts of staff officer Grade A are filled by recruiting employees from the panel. The panel is a permanent one. Alterations of the conditions of the eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged another cadre, assuming for the present 109 that the said conditions were conditions of service. The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but this would not amount to changing their conditions of service. The conditions of service of an employee cannot include an implied right to prevent the employer from altering the conditions of service of other employees. In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby. [118 B F] 2: 2. It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when Circular No. 6 was introduced had been promoted as staff officers Grade A. There was no such assurance given by the Bank when it introduced Circular No. 8. The Bank did not undertake that it would not take any step to change the conditions of the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted. Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted. [121 B E] Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted. The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier. [121 E F] Reserve Bank of India vs N.C. Paliwal ; , followed. It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of promotion only. Though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. [121 G H, 122 A, C D] The fact that as a result of the changes made by Circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion. That being so, it cannot be said that the alterations made by Circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis. [122 G H, 123 A B] Mohd. Shujat Ali and others etc. vs Union of India & Ors. etc. ; , ; State of Mysore vs G.B. Purohit, C.A. 2281 of 1965 decided on 25 1 1967 (S.C.) unreported, applied.
Appeal No. 204/1956. Appeal from the judgment and decree dated February 23, 1951, of the Madras High Court in O. section Appeal No. 13/1948. R. Keshva Aiyangar and M. section K. Aiyangar, for the appellant. A. V. Viswanatha Sastri and Naunit Lal, for .respondent No. 1. B. K. B. Naidu, for respondent No. 6. 1961. January 27. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal arises out of a suit filed by the respondent M. Raghava Mudaliar who claims to be the reversioner of Madhava Ramanuja Mudaliar. In his suit the respondent alleges that after the death of Madhava Ramanuja Mudaliar which took place on March 22, 1893, his property came into the possession of his widow Manickammal. Sub sequently the said Manickammal and Rengammal, the widowed mother of the deceased Madhava Ramanuja Mudaliar alienated the properties without any legal necessity. According to the respondent the said alienation was not binding on him and so he was entitled to recover possession of the said property free of any encumbrance or charge. Manickammal died on October 18, 1941, whereas Rengammal died in June, 1921. On the death of the widow Manickammal reversion fell open and that has given a cause of action to the respondent for his present suit. Madhava Ramanuja Mudaliar died issueless and was survived by his widow, his widowed mother, his sister Andalammal and the respondent and his sister Apurupammal who are the children of Ammakannu Ammal the second sister of Madhava Ramanuja Mudaliar, and Ethirajammal the daughter of the third sister of Madhava Ramanuja Mudaliar. To his suit the respondent impleaded the appellant Andalammal, Krishnasami Mudaliar, son of the said Apurupammal (defendant 1) and Susila Bai Ammal daughter of 626 Ethirajammal as defendants 2 to 4. The Udayavar Temple by the sole trustee Bysani Krishnaiah Chetty was joined as defendant 5. After her husband 's death Manickammal obtained letters of administration to his estate from the High Court at Madras. It appears that the relations of the widow with her mother in law were embittered, and that led to disputes between them. These disputes were settled by the two widows in pursuance of the advice of certain arbitrators who mediated between them. The settlement thus reached was recorded in writing on May 27, 1893 (exhibit D 2). It would be relevent to refer to the main terms of the settlement at this stage. This settlement set out the properties covered by it as Serial Nos. 1 to 5. Item No. 1 which was a house in three blocks was divided between the respondent and his sister Apurupammal who were to take one share; Ethirajammal who was to take another share; and Andalammal who was to take the third share. House No. 62, which, was Serial No. 2, and houses and shops Nos. 126 and 127 which were shown as Serial No. 3 were agreed to be sold, and it was settled that out of the sale proceeds the debts of the deceased Madhava Ramanuja Mudaliar and his father should be discharged; expenses incurred in obtaining the letters of administration should then be deducted along with the expenses of sale, and the balance should be divided equally between the two widows subject to a payment of Rs. 1,000/ to the mother in law in lieu of her jewels. The two cawnies of lands which were Serial No. 4 were agreed to be given to the maternal uncle of the deceases Madhava Ramanuja Mudaliar, whereas the moveables which were shown as Serial No. 5 had to be divided half and half between the two widows. This document con tained a clause which provided that " in case any one of us contravenes the terms the other party shall not only cancel this agreement but his title to the estate of Madhava Ramanuja Mudaliar prior to the agreement shall in no way be affected subject to. which this agreement has been entered into. " The document thus executed was attested by four attesting witnesses. 627 It appears that soon after this agreement was finalised, Krishnasamy Mudaliar, defendant 3, objected to its validity and disputed the right of the widows to deal with the property in the manner specified in it. He was, however, persuaded to abandon his objections. ' and a sale deed was executed by him conveying his reversionary rights to the two widows for consideration ' on September 10, 1894. By this document defendant 3 purported to recognise and grant an absolute title to the two widows in regard to the estate of the deceased (exhibit D 3). Subsequent to this document the two widows began to enjoy the properties as agreed between them. On February 4, 1895 the two widows sold item No. 1 in Schedule 11 attached to the plaint, i.e., Nos. 126 and 127, Anna Pillai Street and Audiappa Naick Street respectively to Thatha Venkata Raghava Subbu Chetty. The appellant is the successor in title of the said division in respect of the said item No. 1 in Schedule II. In the present appeal we are concerned only with this item. On May 27, 1895, a composite deed of partition and administration of property of the deceased was executed by and between the two widows (exhibit D 5). By this document the three blocks in the house shown as Serial No. 1 in exhibit D 2 were delivered into the possession of the respective donees. The maternal uncle of the deceased was given two cawnies of lands as therein stipulated and the debts of the deceased were discharged and expenses incurred in respect of the letters of administration were met. It is under these circumstances that the respondent filed his present Suit No. 56 of 1946 on the Original Side of the Madras High Court;. and he claimed that the alienations made by the two widows were not binding on him and he was entitled to the possession of the property left by the deceased Madhava Ramanuja. The schedule attached to the plaint referred to four items of property, and as we have already pointed out it is only with item No. 1 out of these four items with which we are concerned in the present appeal. 628 In regard to the said item the appellant urged that the agreement between the two widows (exhibit D 2) and the subsequent composite deed executed in pursuance of it (exhibit D 5) were in the nature of a family arrangement, and as such they were binding on the respondent. In was also alleged by the appellant that the respondent had received benefit under the said arrangement and by his conduct had ratified it. The appellant further pleaded that the transfer in favour of his predecessor was supported by legal necessity. Incidentally a plea of surrender was also raised by the appellant. Mr. Justice Kunhiraman, who tried the suit, held that there was a family arrangement which bound the respondent. He also observed that the respondent had received benefit under the said arrangement and was therefore precluded from challenging its validity. The learned Judge incidentally made some observations which showed that he was inclined to uphold the plea of surrender raised by the appellant. In the result the respondent 's suit was dismissed. The respondent then took the matter in appeal and succeeded. The appeal court held that the impugned arrangement cannot be said to be a bona fide family settlement which would bind the respondent. Before the appeal court it was conceded that the plea of surrender raised by the appellant could not be sustained, and that the contention that the respondent was bound by the family arrangement could not also be sustained. It was, however, urged on behalf of the appellant that the respondent 's conduct precluded him from disputing the validity of the arrangement but this argument was rejected by the appeal court; likewise, the contentions that the transfer in favour of the appellant 's predecessor was justified by legal necessity also failed. As a result of these findings the respondent 's appeal was allowed, the decree passed by the trial court was set aside, and the claim for possession made by the respondent was decreed. The respondent 's suit was accordingly directed to go before the Official Referee for ascertainment of mesne profits 629 claimed by him. It is against this decree that the appellant has come to this Court in appeal. The principal point which has been urged before us by Mt% R. Keshav Aiyangar on behalf of the appellant is that in substance the respondent has ratified the impugned transaction, has received benefit under it, and by his conduct has affirmed it, and so it is not open to him to challenge its validity and binding character. In support of this argument he has canvassed for our acceptance the proposition that if a person with full knowledge of his rights assents to a transaction which may otherwise be voidable at his instance and takes benefit under it, he is subsequently precluded from disputing its validity. In support of this argument he has relied on a decision of this Court in Sahu Madho Das vs Pandit Mukand Ram (1). In that case this Court has held that it is settled law that an alienation by a widow in exercise of her powers is not altogether void but only voidable by the reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding. This Court also observed that it is a principle of general application underlying many branches of the law that a person who with full knowledge of his rights has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, cannot go back on that election and avoid it at a later stage ; having made his election he is bound by it. The argument is that though the respondent may not be a party to the impugned transaction, if by his conduct it can be said that he has elected to uphold it and has received benefit under it he cannot be allowed to go back upon the election. There is of course no doubt about the correctness of the principle thus enunciated, but the difficulty in the way of the appellant arises when the applicability of the said principle is tested in the light of the relevant material findings in that case. That is why it is necessary to refer very briefly to the findings of fact on which the decision in Sahu (1) ; , 630 Madho Das 's case (1) rests. In that case this Court considered the question as to whether the plaintiff Mukand Ram had assented to the impugned family arrangement, and observed that as he was not a party to the arrangement his assent to the arrangement itself and not to something else must be clearly established, and also his knowledge of the facts. Then, having thus posed the question the material evidence was examined, and it. was held that the cumulative effect of the said evidence led to the reasonable inference that the plaintiff 's assent was to the very arrangement itself, and his conduct as well as the conduct of his brother Kanhaiya Lal was consistent only with that hypothesis; in other words, the examination of the material evidence justified the inference that Mukand Ram had in fact elected to assent to the transaction and had received benefit under it, and so the doctrine of election or ratification precluded him from disputing the validity of the said transaction. It is, however, significant that dealing with the case of the minor sons, who were not parties either personally or through their guardians, and who did not claim title either through Pato or her daughters, this Court expressly observed that so far as they were concerned what they received were gifts pure and simple and the only assent that could be inferred from the mere acceptance of the gifts and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others. This observation brings out in bold relief by contrast the relevant findings in the light of which the plaintiff was held precluded from disputing the validity of the impugned transaction. The appellant has also relied on another decision of this Court in Dhiyan Singh vs Jugal Kishore (2). In that case it was held that even if the impugned award was invalid the plaintiff who disputed its validity was barred from making that claim by reason of estoppel. Brijlal against whom the plea of estoppel was effectively raised appeared to have made a claim to the estate in question in 1884 when the impugned (1) [1955] a S.C.R. 22. (2) [1952] S.C.R. 478. 631 transaction took place,, and it was as a result of this claim that settlement was reached and the impugned transaction effected. This Court held that even if the award which was challenged was invalid Brijlal by his conduct had precluded himself from raising the contention against the validity of the award. In , coming to this conclusion this Court observed that, the case before it was very similar to the one which the Privy Council had decided in Kanhai Lal vs Brij Lal (1). When we turn to the Privy Council decision itself we find that Kanhai Lal, who was held by the Privy Council to be precluded from challenging the arrangement to which he was a party, had set up a title in himself on the strength of an alleged adoption, and when, having regard to the said title, a settlement was reached and a compromise arrangement was made, it was held by the Privy Council that the doctrine of estoppel came into play. Kanhai Lal, who subsequently became a reversioner according to the Privy Council, was bound by the previous arrangement and " cannot now claim as a reversioner. " These two decisions also emphasise, the fact that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settlers his claim as well as the claim of his opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open. There are two other decisions of the Privy Council to which reference may be made. In Rangaswami Gounden vs Nachiappa Gounden (2) the Privy Council had to deal mainly with the question of surrender, its theory and its essential features. Incidentally it had also to deal with the case of reversioner who had taken from an alienee from a Hindu widow a mortgage of a property which included a part of the property alienated, and the question raised was whether by reason of the fact that the reversioner had a mortgage of the said property he was precluded from challenging the validity of the said alienation; and the Privy Council held that he was not so precluded. In dealing with this aspect of the question the Privy Council (1) (1919) L.R. 45 I.A. 118. (2) (1918) L.R. 40 I.A. 72. 632 observed that it is well settled that though he who may be termed a presumptive reversionary heir has a title to challenge an alienation at its inception, he need not do so, but is entitled to wait till the death of the widow has affirmed his character, a character which up to that date might be defeated by birth or by adoption The Privy Council then examined the nature of the mortgage, the properties included in it, and observed that the said mortgage consisted of 2/14ths of the mitta which had come to the mortgagors in right of their own succession, and the remaining share had come to them through the impugned deed of gift. Then it was observed that at the time of the mortgage the mortgagee did not know whether he would ever be such a reversioner in fact as would give him a practical interest to quarrel with the deed of gift; and the Privy Council asked "why should he not take all that the mortgagers could give or propose to give. " " To hold that by doing so ", observed the Privy Council, " he barred himself from asserting his own title to a part of what was mortgaged seems to their Lordships a quite unwarrantable proposition." This decision shows that the principle of election or estoppel or ratification must be applied with due circumspection and the mere fact that the reversioner has received some benefit under the transaction or has not challenged the validity of the transaction when it took place cannot bar his rights as a reversioner when reversion in his favour falls open. The last case on which reliance has been placed by the appellant is the decision of the Privy Council in Ramgouda Annagouda vs Bhausaheb (1). In this case the widow of the last male holder had alienated nearly the whole of the property of her husband by three deeds executed and registered on the same day. One of the deeds was in favour of a presumptive reversioner. The Privy Council held that the three deeds had to be regarded as forming one transaction entered into by all the persons interested in the properties, and that after the reversion fell open, the reversioners who were parties to the said transactions (1) (1927) L.R. 54 I.A. 396. 633 were precluded from disputing the two alienations by reason of their conduct. According to the Privy Council the three deeds in question were inseparably connected together and in that view Annagouda, the reversioner, who challenged two of the three transactions, not only consented to the sale to Shivgouda and the gift to Basappa which were the two transactions impeached but these dispositions formed part of the same transaction by which he himself acquired a part of the estate. Thus it may be taken to be well settled that if a presumptive reversioner is a party to an arrangement which may properly be called a family arrangement and takes benefit under it, he would be precluded from disputing the validity of the said arrangement when reversion falls open and he becomes the actual reversioner. The doctrine of ratification may also be invoked against a presumptive reversioner who, though not a party to the transaction, subsequently ratifies it with full knowledge of his rights by assenting to it and taking benefit under it. It is, however, clear that mere receipt of benefit under an arrangement by which a Hindu widow alienates the property of her deceased husband would not preclude a presumptive reversioner from disputing the validity of the said alienation when he becomes the actual reversioner. It must always be a question of fact as to whether the conduct of the said reversioner on which the plea of ratification is based does in law amount to ratification properly so called. It is in the light of these principles that we must now consider the relevant facts in the present appeal. There can be no doubt that the transaction which took place on May 27, 1893, as a result of the dispute between the two widows and with the intervention of the well wishers of the family is not a family arrangement as understood under Hindu Law. This position was conceded before the High Court and is not disputed before us (exhibit D 2). Similarly, the sale deed which was executed by defendant 3 in favour of the two widows is of no assistance because it was obviously a sale by defendant 3 of his reversionary rights which were then no better than spes suwessionis and as 634 such this transaction (exhibit D 3) cannot help to validate the earlier arrangement between the two widows. The composite document (exhibit D 5) of May 27, 1895, is in substance no more than an alienation no doubt executed for the purpose of carrying out the original arrangement between the two widows. Thus in dealing with the question as to whether the respondent is precluded from challenging the validity of the impugned transaction it is necessary to bear in mind that the original transaction is not a transaction in the nature of a family arrangement. Besides, he was then a minor and admittedly he was not a party to any of the said transactions. It is, however, urged that the respondent obtained a certificate or a patta from the Collector in regard to the property conveyed to him under exhibit D 5, and the argument is that he has deliberately withheld the said patta because he apprehended that if produced the patta would go against him. The explanation given by the respondent for not producing the patta is attacked as unsatisfactory, and it is urged that the said explanation cannot possibly conceal his intention to keep back the document from the Court. In his cross examination the respondent stated that the Collector 's certificate which had been given to him by his grandmother had been filed by him in Suit No. 495 of 1916 in the City Civil Court, and he added that his advocate in the said suit had not returned the document to him. We may assume that the respondent has not produced the document though it was in his possession; but we have on the record two documents which were issued to the other donees, and all that the appellant is entitled to assume is that a similar document had been issued in favour of the respondent. In our opinion, the two documents on the record do not assist the appellant 's argument that any representation had been made by the respondent to the Collector before he obtained a patta in his favour. In fact the issue of the patta is a routine matter which would necessarily follow on the execution of the registered sale deed (exhibit D 5). On the registration of the said document persons who got certain immoveable properties 635 under it were given the certificates by the Collector in ordinary course, and so no argument can be built up against the respondent that the acceptance of the patta amounts to the ratification of the original transaction of sale. It is then urged that in Civil Suit No. 495 of 1916 filed in the City Civil Court at Madras by Apurupammal against tile respondent and another, the respondent filed the written statement in which he admitted the validity of the impugned transaction. It appears that the plaintiff in that suit had based her claim on the said impugned transaction, and in respect of the said claim the respondent had alleged in paragraph 2 of his written statement that he admitted that in consequence of certain disputes which arose between the mother and the widow of the deceased Govinda Mudaliar a compromise settlement was arrived at in pursuance of which some transfers were effected. This, it is said, amounts to an admission of the validity of the said transaction (exhibit D 15). This argument, however, fails to take notice of the fact that while referring to the said compromise settlement the respondent had expressly added that the said compromise settlement was obviously to take effect only during the life tenancy of the widow of the deceased Govinda Mudaliar (exhibit P 3). In other words, taking the statement as a whole, as we must, the respondent looked upon the said compromise settlement as an alienation made by the widow and as intended to take effect during her lifetime and no more. In other words, far from supporting a plea of ratification against the respondent this statement strengthens his case that he took the benefit with the knowledge and under the belief that the arrangement under which the said benefit flowed was intended to be operative during the ,Lifetime of the widow, and as such he had no occasion to challenge its, validity whilst the widow was alive. A somewhat similar argument is based on the conduct of the respondent in relation to Civil Suit No. 1117 of 1921 filed by Masilamani Mudaly, the sister 's son, and the deceased Govinda Mudaliar in the Madras High Court (exhibit P.16). To this suit the 636 respondent was impleaded as defendant 7. In this suit the said plaintiff had challenged the validity of the arrangement, and asked for appropriate injunctions against defendant 6 to the suit, Thuggi Kondiah Chetty, Trustee of Udayavar Koil, and other defendants from dealing with the property to the prejudice of the reversionary right of the plaintiff. It is unnecessary to refer to the pleadings in the said suit or to specify in detail the reliefs claimed. The only point which is relevant to consider is that the reversioner had challenged the arrangement in question. The respondent by his written statement had purported to support the plea made by the plaintiff, and had added that he was not personally aware of any attempt on the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment. This suit, however, did not proceed to a trial as it was dismissed for want of prosecution, and the argument is that since the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non prosecution. In our opinion, this argument is far fetched and cannot possibly sustain the plea of ratification against the respondent. If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 11 17 of 1921 or should in fact have challenged the said arrangement at all. The last argument urged in support of the plea of ratification is based on the oral evidence given by the respondent in the present case. The respondent was asked about the quarrels between the mother and the widow of the deceased Mudaliar, and he said that they were living together and that there were quarrels between them. Then he was asked as to whether he got the property under the impugned arrangement, and he said that his grandmother gave him the house with the Collector 's certificate and told him that she 637 was going to die soon and so he may take the house. The respondent also admitted that since the house was thus delivered to him and to his sister they were in possession of it and in enjoyment of its income. The respondent then stated that he was not aware of the document of 1895 until 1916, and that he came to know about the division between the two widows( only in 1910. It is urged that this statement should not be believed, and that the reluctance of the respondent to disclose the truth should lead to the inference that he knew all about the impugned transaction and its effect, and that when he took possession of the property allotted to him under the said transaction he knew fully well about his rights and he accepted the benefits with the object of reifying the whole transaction. In our opinion there is no ,substance in this argument. In this connection it is relevant to remember that until Act II of 1929 was passed a sister 's son, like the respondent, would have had very few chances of becoming an actual reversioner; he would have come in the list of bandhus; and so it would be difficult to assume that at the time when the respondent accepted the gift of the house he knew about his rights as a possible reversioner. Besides, the benefit which he obtained under the impugned transaction could also in substance have been claimed by him under an earlier arrangement entered into between Govinda Mudaliar and Madhava Ramanuja Mudaliar on February 7, 1887 (exhibit D 1). Having regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs. D 2 and D 5). Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferee under 638 the said transaction. He also could not have known about his rights as a possible reversioner. Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ,ratification against the respondent. Indeed, to hold otherwise would be in the words of the Privy Council a quite unwarrantable proposition " (1) (p. 87). That leaves the question of legal necessity to be considered. The High Court has held that the impugned transfer cannot be said to have been justified by legal necessity; and, in our opinion, the finding of the High Court on this point is obviously right. In dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother in law to enter into the impugned transaction under the guise of a family arrangement. The document itself (exhibit D 5) does not purport to be justified by legal necessity. In terms it purports to give effect to the original arrangement of 1893 (exhibit D 2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid. Besides, out of a total consideration of about Rs. 10,000/ the amount of Rs. 776/ can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all. The amount of Rs. 558/ was the expense incurred for executing the document; similarly the amount of Rs. 409/representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity. The other items of consideration do (1) (1918) L.R. 46 I.A. 72. 639 not even purport to be for legal necessity. Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity. The result is the appeal fails and is dismissed with costs. Appeal dismissed.	M, a Hindu, died leaving his mother, widow, sisters and sisters ' son and daughters. There were disputes between the mother and the widow which were settled at the instance of certain arbitrators. Under this settlement a portion of one of the houses was given to a sister of M, another portion to R son of another sister and his sister and a third portion to the daughter of the third sister. Certain properties , which had been agreed to be sold under the settlement were sold to the appellant by the mother and the widow. After the death of the mother and the widow R filed a suit as the next reversioner of M for recovery of the properties sold on the ground that the alienation was without necessity and was not binding on him. The appellant contended (i) that R was precluded from disputing the settlement between the mother and the widow as he had received a benefit under it and had ratified it by his conduct and (ii) that the transfer was for legal necessity. Held, that the transfer was not binding on R and he was entitled to avoid it. The settlement between the mother and the widow was also not binding on R. If a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open. But the mere fact that the reversioner has received some benefit under the transaction or has not challenged its validity when it took place cannot bar his rights as a reversioner. It will always be a question of fact as to whether the conduct of the reversioner on which the plea of ratification is based does in law amount to ratification properly so called. In the present case the settlement was not in the nature of a family arrangement; at that time R was a minor and was not a party to any of the said transactions. There was no conduct of R which could amount to ratification of the settlement or of the alienation. At the time when he accepted the gift he could not know about his rights as a possible reversioner. Further, there was no legal necessity for the transfer. Sahu Madho Das vs Pandit Mukand Ram ; , Dhiyan Singh vs Jugal Kishore, [1952] S.C.R. 478, Kanhai Lal vs Brij Lal (1918) L.R. 45 I.A. 118. Rangasami Gounden vs Nachiappa Gounden (1918) L.R. 46 I.A. 72 and Ramgouda Annagouda vs Bhausakeb (1927) L.R. 54 I.A. 396, referred to 625
Appeals Nos. 680 to 682 of 1963. Appeals by special leave from the judgment and decree dated February 8, 1960 of the Board of Revenue, U. P. in petitions Nos. 203 to 205 of 1958 59. J. P. Goyal, for the appellant (in all the appeals). Brijbans Kishore and Ramesh B. Saxena, for respon,dents Nos. I to 3 (in all the appeals). April 17, 1964. The judgment of the Court was delivered ,by HIDAYATULLAH, J. This judgment shall also govern the disposal of C. A. 681 of 1963. These are appeals by special leave of this Court against a common order of the Board of Revenue, U.P. dated February 8, 1960 disposing of three .appeals. Civil Appeal No. 682 of 1963 (since compromised) was also against the same decision. The appellant in each 'of these appeals is one Amba Prasad who was the Zamindar of village Rhonda, Pargana and Tehsil Khurja, District Bulandshahr, before the coming into operation of the U. P. Zamindari Abolition and Land Reforms Act, 1950. The opposite parties (who will be referred to as the answering respondents in this judgment) are persons whose names were recorded in column 23 (miscellaneous) in the Khasra for the year 1356 Fasli, as persons in possession and who claim, by reason of the entry, to be the recorded, occupants of the fields in dispute, and to have 'obtained adhivasi rights in the fields under section 20 of the Abolition Act. Though the point in dispute appears to lie within a very narrow compass the history of litigation in respect of these plots is as tedious as it is long. It must unfortunately be told to get a true measure of the ,arguments in the appeals. Amba Prasad brought two suits under section 180 of the U.P. Tenancy Act, 1939 for ejectment from the fields now in dis pute and for damages, against Mohammad Ali and Mst. Sharifan respectively because their names A ere recorded in the Khasra as tenants 'bila tasfia lagan '. These suits were dismissed by the trial Judge and Aniba Prasad 's appeal to the Commissioner failed on November 30, 1943. Amba Pra.sad then appealed to the Board of Revenue, U.P. and succeeded. The order of the Board of Revenue, U. P. is dated March 19, 1949 (item No. 25). Mohammad Ali had died by L/P(D)ISCI 26 802 then and was represented by one Faivazali and six others. Sarifan had also died and was represened by one Abdul Sattar alias Chunna Khan and two others. As a result of the decision of the Board of Revenue possession of the fields was delivered to Amba Prasad on July 1, 1949 the day of the commencement of the year 1357 Fasli. The dakhalnamas are items Nos. 44 and 45 in this record and they mention fields Nos. 427/2, 428/2, 429, 430 and 380 (item No. 44) and fields Nos. 416, 418/1 and 418/2 (item No. 45) of village Rhonda, Pargana and Tehsil Khurja, District Bulandshahr. Immediately after obtaining possession of the fields Amba Prasad was required to commence proceedings under section 145, Criminal Procedure Code before the Sub Divisional Magis trate, Anupshahr against Faiyazali and Abdul Sattar and others and on January 13, 1951 these proceedings terminated in favour of Amba Prasad (item No. 28). The Sessions Judge Bulandshahr made a reference to the High Court of Allahabad recommending that the order be vacated but the High Court declined to interfere. The order of the High Court is dated October 20, 1951 (item No. 29). Meanwhile Amba Prasad started a prosecution under section 218, Indian Penal Code against the Lekhpal alleging that he had made false entries in the Revenue papers but the Magistrate, 1st Class, Buland shahr discharged him by his order dated July 24, 1950 (item No. 26). An application for revision of the order filed by Amba Prasad was dismissed by the Sessions Judge, Bulandshahr on October 10, 1950 (item No. 27). During the pendency of the proceedings under section 145,. Criminal Procedure Code these fields remained under atta chment from August 23, 1949 (1358 F.) to November 6, 1951 (1359 F.). Two suits were then commenced in the court of the Munsif, Khurja for declaration that crops of the fields under attachment belonged to the plaintiffs. One suit (97 of 1951) was filed by Abdul Noor Khan and others (answering respondents) and the other (67 of 1952) was filed by Sarfraz Ali Beg and 8 others (respondents in C. A. 682 of 1963since compromised). These suits were directed against Amba Prasad and the plaintiffs claimed to be in possession of the fields by virtue of entries to this effect in the remarks column of the Khasras of the relevant years. These suits failed on August 9, 1952 and August 8, 1953 respectively (vide items Nos. 30 and 32). It appears that proceedings under section 107,, Criminal Procedure Code were also started against A. Noor khan and others before Magistrate, 1st Class, Bulandshahrand they were bound over to keep the peace. There is on the file of this case an order of the Sessions Judge, Buland shahr dismissing their application in revision on February 24, 1953 (item No. 31). 803 Meanwhile, the answering respondents and Sarfraz Ali and others commenced on November 6, 1951 three suits under section 61 read with section 183 of the U. P. Tenancy Act, 1939 .for declaration of Sirdar rights and to claim hereditary rights under section 180/2 ibid. These suits were decreed against Amba Prasad by the Judicial Officer, Anupshahr on July 14, 1953. He held that the Dakhaldehi of July 1, 1949 did not affect the plaintiffs and since they were shown to be in possession they were entitled to succeed (item No. 33). Amba Prasad filed an appeal and the Commissioner, Meerut Division re versed the decision by his order dated April 1, 1954 (item No. 35). The Board of Revenue, U. P. also dismissed the appeal of the plaintiffs on September 17, 1955 (item No. 38). On October 10, 1953 two suits were filed by the answering respondents in these two appeals and a third by the res pondents in C. A. No. 682 of 1963 which has been compro mised. These suits were under section 232/2O of the U. P. Zamin dari Abolition and Land Reforms Act. It is with these suits that we are concerned in the appeals. Two suits also under section 232/20 of the Abolition Act were filed by Ayub Ali Khan and Abdul Sattar Khan and others against Amba Prasad. The answering respondents and Sarfraz Ali and others were joined as defendants in those suits. The plaints in these two suits are dated December 28, 1954 and December 20, 1954 (items Nos. 36 and 38). They were dismissed by the Sub Divisional Magistrate, Khurja on % lay 16, 1955. The Addi tional Commissioner, Meerut, dismissed the appeals on Janu ary 30, 1950 in default of appearance (item No. 39). On September 4, 1958 the Sub Divisional Officer, Khurja dismissed the three suits filed by the answering respondents ,and the respondents in the companion appeal. In these suits the answering respondents relied on extracts from the Khasras of 1355F, 1356F, 1357F, 1358F and 1359F as showing their possession. These lands, however, were under attachment from August 23, 1949 (1358F) to November 6, 1959 (1359F) and could not be in the possession of the answering respondents in the years 1358F and 1359F. This fact was noticed by the Commissioner, Meerut Division, in his order dated April 1, 1954 and he cast doubts on the entries in 1355F ,and 1356F. The Sub Divisional Officer took up the same line of reasoning and pointed 'out that in years subsequent to 1355F the entry would have found place in column 6 of the Khasra and not the remarks column. He accordingly held that the entries of 1355 F and 1356 F were unreliable and .the answering respondents had not acquired adhivasi rights. On Appeal, the Additional Commissioner, Meerut, reversed ,the decision on April 19, 1959 and decreed the suits. Before the Commissioner the answering respondents claimed that as L /P(D)ISCI 26(a) 804 they were recorded occupants in 1356F they were not required to prove actual possession. This proposition, it appears, was conceded by the counsel for Amba Prasad. He only argued that the entries were not in accordance with paragraph 87 of the Land Records Manual and they were considered spurious in earlier litigation. He also claimed that the answering respondents were barred by the principle of res judicata because though they were parties to the suits of Ayub Ali Khan and Abdul Sattar they did not claim adhivasi rights in those suits. The learned Commissioner pointed out that the entries were no doubt suspected to be spurious by the Commissioner on April 1, 1954, but this was after July 1. 1952 which was the date of vesting and the case therefore was outside Expla nations 11 and III of section 20(b) of the Abolition Act. The learned Commissioner, therefore, was of the opinion that them entries could not be discarded as they must have been completed under the rules before April 30, 1949, that is to say, even before the Dakhaldehi. He held that the answering respondents (appellants before him) had acquired adhivasi rights. Amba Prasad appealed to the Board of Revenue. The Board dismissed his appeal on February 8, 1960 by the order now impugned. This time the learned counsel for Amba Prasad conceded that the entry was made but contended that it was fraudulently made after July 1, 1949 and referred to the prosecution of the Lekhpal. The Board 'of Revenue pointed out that there was no order for the correction of the entry before the date of vesting and the Lekhpal was acquitted of ' the charge under section 218, Indian Penal Code. Since the entries were not corrected as required by Explanation 11 to section 20 the conditions of section 20(b) of the Abolition Act were held to be satisfied and the appeal was dismissed. Mr. Goyal on behalf of Amba Prasad contends that these suits were barred by res judicata. He submits that in the previous suits filed by Ayub Ali Khan and Abdul Sattar and others, the answering respondents were made defendants and could have raised the plea that they had acquired adhivasi rights and as they did not raise such a plea they cannot now raise it. We do not accept this Contention. The answering respondents had filed these suits even before Ayub Ali Khan and Abdul Sattar had filed their suits. Further, the suits filed by Ayub Ali Khan and Abdul Sattar did not decide anything because they were dismissed owing to a technical flaw in the plaint. Even the appeal was dismissed in default of appearance. Lastly, the answering respondents and Amba Prasad were co defendants and no issue between them was tried or decided even if one was necessary to be tried. 805 Mr. Goyal next contends that the answer in respondents must show that they were in possession and that under Explanation I to section 20 they were evicted after June 30, 1948. He submits that these conditions are not fulfilled by them. Mr. Goyal also wishes to withdraw the concession made on behalf of Amba Prasad before the Tribunals below that the answering respondents need not prove their possession. He says that the concession was made because there were rulings of the Allahabad High Court which bound the Revenue Tri bunals. He submits that these rulings should be considered and urge that possession in 1356 Fasli must be proved. He further submits that even entries in the Khasra and Khatauni to be of value must be made in accordance with sections 28 and 33 of the U. P. Land Revenue Act and he relies on paragraph 87 of the Land Record Manual to contend that the entries in favour of the answering respondents were irregular. These contentions though they appear to be many are really two. The first questions the entry and the other the right of the answering respondents even if the record be correct to claim adhivasi rights under section 20 of the Abolition Act. We shall consider them separately. The first question is whether these entries were regularly made. It is pointed out that they were doubted by the Revenue Tribunals in some other proceedings and that the Lekhpal was also prosecuted under section 218, Indian Penal Code. That, however, does not prove in these proceedings that the entries are spurious. The Lekhpal was discharged and the Additional Commissioner has held here: "By making the entry in the remarks column it is also not possible to attribute any dishonest or collusive entry. It appears that Shri Amba Prasad had filed a criminal case against the patwari but this was after the entries in the remarks column in favour of appellants had been made. The entry in 1356 fasli cannot be discarded on the remarks in the judgments referred by the learned counsel for the respondent. It appears that Sri Mohammad Ali and Srimati Sharifan were the proprietors and they mortgaged their share with present respondents and Sri Amba Prasad purchased the equity of redemption and got the share partitioned. There was litigation between Sri Amba Prasad and Sri Mohammad Ali and Srimati Sharifan upto High Court. Sri Amba Prasad and others filed suits against Srimati Sharifan and Sri Mohammad Ali under section 180 and it was decreed in the 2nd appeal on 19 3 49. The possession was delivered on 1 7 1949, in execution of the decree. The Khasra for 1356 fasli under 806 the rules may have been deposited some time before 31st July 1950 but the entries in the Khasras had to be completed upto 30th April 1949" Mr. Goyal relies upon paragraph 87 of the Land Records Manual and argues that the names of persons occupying land without the consent of persons whose names are recorded in column 5 of the khasra should have been entered in column 6 but column 6 is crossed out. It is, however, to be seen that when a tenant leaves the neighbourhood without leaving in charge of his holding, a person responsible for the pay ment of his rent as it falls due and without giving a written notice to the land holder of such arrangement, the Lekhpal is required to show the name of the actual cultivator in the column of remarks preceded by the word 'qabiz ' (see Para. 85(c)). That is how the entry stands and there is nothing on the record of this case on the strength of which it can be said that the entry in 1356F was not regularly made. If it was wrong Amba Prasad ought to have got it corrected but the doubts cast on the entry cannot be said to have corrected it .as required by Explanation III to section 20 of the Abolition Act. There is thus no doubt that the answering respondents were recorded as 'qabiz ' in 1356F. There is also no doubt that if they were 'qabiz ' they were dispossessed after June 30, 1948. The possession of Amba Prasad did not begin ,earlier than July 1, 1949. There is nothing to show that the possession of the answering respondents was disturbed bet ween these two dates, because the attachment came much later. Mr. Goyal, however, contends that the burden is on ,the answering respondents to prove their possession and eviction after June 30, 1948 before they can regain possession as adhivasis under section 20. Mr. Brij Bans Kishore, however, joins issue and claims that the answering respondents have done enough when they show that they are recorded as 'occupants ' in the year 1356F. He contends that it is not necessary to show possession though he does not admit that the Ian were not in his clients ' possession. We have pointed out above that the eviction could not have taken place before July 1, 1949. The Dakhalnamas show that possession was given to Amba Prasad on July 1, 1949. In so far as the appellant is concerned he was not in possession before that date and the khasra for 1356F shows that the answering respondents were 'qabiz ' (in possession). It is ,contended that the suit is for possession and the date of dispossession has not been given as required by rule 183. No such objection appears to have been made at any time. In any event, that date is useful only to calculate limitation and it is not Amba Prasad 's cases that there is any such bar. 807 The real dispute thus is whether a person who is recorded as 'qabiz ' but not as a tenant or a sub tenant can get the advantage of section 20 of the Abolition Act and claim rights as an adhivasi. It is convenient at this stage to set out the material portions of section 20: "20. Every person who (a) * (b) was recored as occupant (i)of any land (other than grove land or land to which section 16 applies) in the khasra or khatauni of 1356F prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under clause (c) of subsection (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947, or (ii) * * * * be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof. Explanation I Where a person referred to in clause (b) was evicted, from the land after June 30, 1948, he shall notwithstanding anything in any order or decree, be deemed to be a person entitled to regain possession of the land. Explanation II Where any entry in the records referred to in clause (b) has been corrected before the date of vesting under or in accordance with the provisions of the U. P. Land Revenue Act, 1901, the entry so corrected shall for the purposes of the said clause, prevail. Explanation III For the purposes of explanation 11 an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent court requiring any correction in records has been made before the said date and had become final even though the correction may not have been incorporated in the records. Explanation IV For the purposes of this section " occupant" as respects any land does not include a person who was entitled as an intermediary to the land or any share therein in the year l356 Fasli. " The scheme of the section may now be noticed. The section, speaking generally says that certain persons "recorded" a,, "occupants" of lands (other than grove lands or lands to which section 16 applies) shall be known as adhivasis and. 808 shall be entitled to retain or to regain possession of them, after the date of vesting which was July 1, 1952. Such persons do not include an intermediary (Explanation IV). Such persons must be recorded as occupants in the khasra or khatauni for 1356F (1 7 48 to 30 6 49). If such a person is in possession be continues in possession. If he is evicted after June 30, 1948 he is to be put back in possession notwithstanding anything in any order or decree. By fiction such persons are deemed to be entitled to regain possession (Explanation 1). The emphasis has been laid on the record of khasra or khatauni of 1356F and June 30, 1948 is the datuni line. The importance of an entry in these two documents is further apparent from explanations 11 and 111. Under the former, if the entry is corrected before the date of vesting (1 7 52), the corrected entry is to prevail and under the latter the entry is deemed to be corrected (even though not actually corrected) if an order or decree of a competent court ordering the correction had been made before the date of vesting and the order or decree had become final. There are thus two date lines. They are June 30, 1948 and July 1, 1952, and the title to possession as adhivasi depends on the entries in the khasra or khatauni for the year 1356F. Before we proceed to decide whether the answering respondents satisfy the above tests we must consider what is meant by the terms 'occupant ' and 'recorded '. The word 'occupant ' is not defined in the Act. Since khasra records possession and enjoyment the word 'occupant ' must mean a person holding the land in possession or actual enjoyment. The khasra, however, may mention the proprietor, the tenant, the sub tenant and other person in actual possession, as the case may be. If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant the tenant, and between a tenant and the sub tenant the latter and between him and a person recorded in the remarks column as "Dawedar qabiz" the dawedar qabiz are the occupants. This is the only logical way to interpret the section which does away with all intermediaries. If rights are not to be determined except in the manner laid down by the section, the entries must be construed as explained by the four explanations. Once we find out the right person in the light of the explanations, that person continues as an adhivasi after July 1, 1952, provided he is in possession or was evicted after June 30, 1948. If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary. The word 'occupant ' thus signifies occupancy and enjoyment. Mediate possession, (except where the immediate possessor holds on behalf of the mediate possessor) is ,of no consequence. In this way even persons who got into Occupation when lands were abandoned get recognition. The 809 section eliminates inquiries into disputed possession by ac cepting the records in the khasra or khatauni of 1356F, or its correction before July 1, 1952. It was perhaps thought that all such disputes would have solved themselves in the four years between June 30, 1948 and June 30, 1952. There was, however, for some time a difference of opinion, on the point whether possession in 1356F should be proved, between the High Court of Allahabad and the Board of Revenue. Section 20 came before this Court in The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rehman and others(1) where the correctness of Lala Nanak Chand vs The Board of Revenue, U.P.(2) was challenged oil the ground that it had held that a mere entry in 1356F without possession in that year was sufficient. This Court did not decide the question and left it open. Subsequently, the Allahabad High Court in several decisions including the Full Bench decision in Ram Dular Singh and another vs Babu Sukh Ram and others(3) has endorsed the earlier view in Nanakchand vs Board of Revenue, U.P.(2) In L. Bhal Singh vs Bhop and another(4) the following passage from Nanak Chand 's case was expressly approved: "It seems to us that clauses (b)(i) and (b)(ii) of Sec. 20 do not require the proof of actual possession in the year 1356F. What they require merely is the entry of a person 's name as an occupant in the Khasra or Khatauni of 1356F. The words of the section are clear. (Every person who was recorded as occupant in the Khasra or Khatauni in 1356F. etc.). The words are not "every person who was an occupant in 1356F": nor are the words "every person who was recorded as an occupant in the year 1356F and who was also in possession in that year". There is no warrant for introducing words in the section which are not there. This conclusion is reinforced by what is stated in Explanation 11". The Board of Revenue in Sugriva vs Mukhi etc.(5) has also adopted the same view. In view of the long established line 'of cases we see no justification for reopening of this question. The decision of the Board of Revenue was therefore right. The appeal fails and is dismissed with costs. One set of hearing fees. Appeal dismissed. (1) ; (2) (3) (4) at p. 291.	On October 10, 1953, the respondents filed suits under section 232 read with section 20 of the U. P. Zamindari Abolition, and Land Reforms Act, 1950 against the appellant before the Sub Divisional Officer. Before the coming into operation of the Abolition Act the appellant (Amba Prasad) was Zamindar of the disputed land. The names of the respondents were recorded in column 23 (miscellaneous) in the Khasra for the year 1356 Fasli as persons in possession of the disputed land. The respondents claimed adhivasi rights under section 20 of the Abolition Act because they were recorded as occupants of the fields in dispute in the Khasra for 1356 Fasli. The common case of the respondents was: (i) that they were in possession of the suit land (ii) that they were dispossessed after June 30, 1948 by the appellant, (iii) that as they were recorded occupants in 1356F they were not required to prove actual possession. The case of the appellant was that the entry was fraudulently made after July 1, 1949. These suits were dismissed by the Sub Divisional officer. On appeal, the Additional Commissioner held that the respondents had acquired the adhivasi fights. Against this order Amba Prasad (the appellant) appealed to the Board of Revenue. The Board of Revenue dismissed the appeals. The appellant then filed appeals in this Court. Held:(i) Under section 20 of the Abolition Act (U. P. Zamindari Abolition and Land Reforms Act) a person continues as an adhivasi after July 1, 1952. provided he is in possession or was evicted after June 30, 1948. If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary. (ii)The words "recorded as occupants" in section 20 of the Abo lition Act mean persons recorded as occupants in the Khasra or Khatauni for 1356 Fasli (1 7 48 to 30 6 49). Such persons do not include an intermediary. The word "occupant" must mean a person holding the land in possession or actual enjoyment. Mediate possession (except where he immediate possessor holds on behalf of the mediate possessor) is of no consequence. (iii)The appellant was not entitled to raise the plea of the correctness of the entry in Khasra because the entry was not corrected before the date of vesting (1 7 52) as required by Explanation (ii) to section 20 of the Abolition Act. (iv)The title to possession as adhiwasi depends on the entries in the Khasra or Khatauni for the year 1356 Fasli. Section 20 of the Abolition Act does not require the proof of actual possession. Therefore, section 20 eliminates inquiries into disputed possession by accepting the record in the Khasra or Khatauni of 1356F. or its correction before July 1, 1952. 801 The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rehman, ; , referred to. Lala Nanak Chand vs Board of Revenue, U. P., 1955 A.L.J. 408, Ram Dular Singh vs Babu Sukh Ram, , Bhal Singh vs Bhop and Anr., and Sugriva vs Mukhi etc., , approved.
Appeals Nos. 2459 and 2460 of 1968 and 1161 and 1162 of 1971. Appeals by certificate/special leave from the judgment and order dated April 1, 1968 of the Calcutta High Court in Income tax Reference No. 163 of 1964. N. A. Palkhivala, T. A. Ramachandran and D. N. Gupta, for the appellant (in all the appeals). Jagadish Swarup, Solicitor General, B. B. Ahuja, R. N. Sach they and B. D. Sharma for the respondent (in all the appeals). The Judgment of the Court was delivered by Hegde, J. The first two appeals have been brought by certi ficate and the other two by special leave. The later two appeals came to be filed because the certificates on the basis of which the earlier appeals were brought, were found to be defective inasmuch as the High Court had not given any reason in support of those certificates. Hence it is sufficient, if we deal with the later two appeals. The appellant is a non resident British Shipping Co. whose ships ply in waters all over the world including the Indian waters. For the assessment years 1960 61, and 1961 62 (the relevant accounting years being calendar years 1959 and 1960), the Income tax Officer computed its total income taxable under the 12 L 256 Sup CI/72 170 Indian Income tax Act, 1922 (which will hereinafter be referred to as the, Act) by taking into account the ratio certificates issued by the Chief Inspector of Taxes, U.K. which were based on the assessments made on the appellant in U.K. During the relevant period, there was in U.K. "investment allowance" corresponding to "development rebate" under the Act. The certificates issued by the Chief Inspector contained the percentage ratio of the total world profits of the appellant to its world earnings and similarly the percentage ratio of the wear and tear allowance and the investment allowance to its total world earnings. In making the assessment the Income tax Officer purported to proceed on the basis of rule 33 of the Indian Income tax Rules 1922. The said rule reads : "In any case in which the Income tax Officer is of opinion that the actual amount of the income, profits or gains accruing or arising to any person residing out of the taxable territories whether directly or indirectly through or from any business connection in the taxable territories, or through or from any property in the taxable territories or through or from any assets or source ,of income in the taxable territories, or through or from any money lent at interest and brought into the taxable territories in cash or in kind cannot be ascertained, the amount of such income, profits or gains for the purposes of assessment to income tax may be calculated on such percentage of the turnover so accruing or arising as the Income tax Officer may consider to be reasonable, or on an amount which bears the same proportion to the total profits of the business of such person (such profits being computed in accordance wi th the provisions of the Indian Income tax. Act), as the receipts so accruing or arising bear to the total receipt of the business, or in such other manner as the Income tax Officer may deem suitable. " The Income tax Officer proceeded to assess the appellant assessee on the second of the three bases mentioned in rule 33; but in computing Indian earnings, he did not include the destination earnings ' received in India ie.freight received in Indian ports in respect of cargo loaded at non Indian ports nor did he take into account the investment allowance granted to the appellant in its U.K. assessments. Aggrieved by the order of the Income tax Officer, the assessee took up the matter in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner accepted the contention of the assessee as regards the inclusion of the desti 171 nation earnings in the computation of the *Indian earnings of the assessee but rejected its contention as regards the investment allowance. Aggrieved by the order of the Appellate Assistant Commissioner both the assessee as well as the Revenue appealed to the income tax Appellate Tribunal. The Tribunal allowed the appeal of the assessee and dismissed that of the Revenue. Thereafter at the instance of the Revenue, the following two questions of law were referred to the High Court under section 66(1) of the Act. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the destination earnings collected in India should be considered as part of the Indian earnings in determining the assessee 's Indian income under Rule 33 of the Income tax Rules ? Whether, on the facts and in the circumstances of the case, the Tribunal was right in allowing the claim of the assessee for the investment allowance under the U.K. Act (corresponding to the development rebate under the Indian Income tax Act, 1922) in the compu tation of its total world income for the purpose of determining the assessee 's Indian income under rule 33 of the Income tax Rules, 1922 ?" The High Court answered the first question in favour of the, assessee and the second in favour of the Revenue. Hence these appeals by the assessee. The Revenue has not appealed against the decision of the High Court as regards Question No. 1. Hence we have only to consider whether the decision of the High Court relating to Question No. 2 is in accordance with law. At the commencement of his arguments Mr. Palkhivala, learned Counsel for the assessee indicated that rule 33 may not be applicable to the facts of the case; but he said that for the purpose of this case, he was prepared to proceed on the basis that the said rule is the governing provision. The authorities under the Act as well as the High Court have examined the facts of this case on the basis of rule 33. The second question referred to the High Court requires the High Court to express its opinion whether on the facts and in the circumstances of the case, the Tribunal was right in allowing the claim of the assessee for the investment allowance under the U.K. Act in the computation of the total world income for the purpose of determining the assessee 's Indian income under rule 33. Under these circumstances, it would not be appropriate for, us at this stage to ignore the ,earlier proceedings and examine the case afresh on a wholly diffe 172 rent basis. Hence we have not gone into the question whether rule 33 is applicable to the facts of the case. We are proceeding on the assumption that it applies. An mentioned earlier, the assessee is a non resident. Its liability to pay tax arises under sections 3 and 4 of the Act. The total income that arose or accrued or deemed to have arisen or accrued to it in this country in the relevant previous years is liable to be taxed in this country. Section 10(2) provides for certain allowances to be deducted while computing the taxable income. Section 10 (2) (vib) deals with the development rebate. The material part of that section reads: "In respect of a new ship acquired or new machinery or plant installed after the 3 1st day of March, 1954 which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of acquisition of the ship or of the installation of the machinery or plant, equivalent to, (i) in the case of a ship acquired after the 3 1st day of December, 1957, forty per cent of the actual cost of the ship to assessee, and (ii) in the case of a ship acquired before the 1st day of January, 1958 and in the case of any machinery or plant, twenty five per cent. of the actual cost of the ship or machinery or plant ,to the assessee. " The proviso to that clause says "Provided that no allowance under this clause shall be made unless (a) the particulars prescribed for the purpose of clause (vi) have been furnished by the assessee in respect of the ship or machinery or plant; and (b) except where the assessee is a company being a licensee within the meaning of the (54 of 1948), or where the ship has been acquired or the machinery or plant has been installed before the 1st day of January, 1948 an amount equal to seventy five per cent of the development rebate to be actually allowed is debited to the profit and loss account of the relevant previous year and credited to a reserve, account to be utilised by him 173 during a period of ten years next following : or the purposes of the business of the undertaking except (i) for distribution by way of dividends or profits, or (ii) for remittance outside India as profits or for the creation of any asset outside India, and if any such ship, machinery, or plant is sold or otherwise transferred by the assessee to any person other than the Government at any time before the expiry of ten years from the end of the year in which it was acquired or installed, any allowance made under this clause shall be deemed to have been wrongly allowed for the purposes of this Act. " It may be noted that in the case. of a shipping company like the appellant before us, whose ships ply all over the world, it may not be possible to strictly comply with the provisions contained in section 4 of section 10(2). The provisions dealing with the levy of Income tax are not identical in all countries. It may well nigh be impossible for a shipping company like the appellant to rigidly comply with the requirements of the laws in force in the numerous countries where it can be said to have earned income. Possibly to get over such a difficulty rule 33 was enacted. That is how the Revenue had proceeded in assessing the appellant. Evidently in exercise of its power under section 5(8) of the Act, which says that "all officers and persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Central Board of Revenue. ", the Central Board of Revenue had issued the notification dated February 10, 1942. Under that notification instructions had been issued to the assessing authorities, laying down the principles to be applied in assessing the foreign shipping companies. As regards the British Shipping Companies, they were directed to permit those companies "to elect to be assessed on the basis of a ratio certificate granted by the U. ' K. authorities regarding the income or loss and the wear and tear allowance". At the time that notification was issued the Act did not provide for a development rebate. Therefore that notification does not refer to any development rebate. But it is made clear by that notification that a British Shipping Company can elect to be assessed on the basis of a ratio certificate granted by the U.K. authorities regarding the income or loss which means the net income or net loss. During the relevant previous years, the Act 174 provided for deduction of the development rebate in the computation of the taxable income. During those years the U.K. Income tax Act provided for a similar allowance; but that allowance was known as investment allowance. We were informed at the bar that in those years, the percentage of devlopment rebate allowed under the Act was the same as that allowed under the U.K. law as investment allowance. In about the beginning of 1964 M/s. Turner Morrison & Co.which was the a agent of several British Shipping Companies in India appears to have written to the Board of Revenue seeking its advice as to how the British Shipping Companies could claim development rebate. In reply to that letter, the Board of Revenue wrote to them as follows "Sub: Assessment of British Shipping Companies on the basis of ratio certificates Treatment of investment allowance granted in the U.K. I am directed to reply your letter dated 8th Feb. 1957 on the above subject and to state that as the development rebate which corresponds to the investment allowance granted in the U.K. is allowed under the In dian Income tax Act from the assessment year 1956 57, there is no objection to allow the investment allowances for the purpose of the computation of the Indian Income of British Shipping Companies. This would, however be subject to the condition that the investment allowance would be permitted as a deduction only to the extent to which the rate of the allowance granted in the U.K. is not greater than the rate of development rebate allowed under the Indian Income tax Act. " We were informed that the copies of that letter were sent to the Income tax Commissioners in the various States. From this letter, it is clear that the Board of Revenue had instructed the taxing authorities to take into consideration the investment allowance granted by the U.K. authorities in computing the taxable income of the British Shipping Companies. At this stage, it is necessary to mention that the proviso to cl. (vib) of section 10(2) referred to earlier was incorporated into the Act sometime after the above instructions were issued by the Board of Revenue. The authorities under the Act have proceeded on the basis that the computation of the income of the assessee has to be made on the second of the three bases mentioned in rule 33. This assumption appears to be incorrect. Admittedly the profits of the assessee company were not computed in accordance with the provisions of the Act. That being so, the second basis mentioned 175 in rule 33 cannot be applied. This aspect was brought to the notice of the High Court. But the High Court refused to consider the same on the ground that both the Revenue as well as the assessee had proceeded before the authorities under the Act on the assumption that the second basis mentioned in rule 33 is the relevant basis. In our opinion the High Court erred in adopting that approach. The fact that the authorities under the Act as well as the parties were under a mistaken impression cannot alter the true position in law. It is obvious that that basis could not have been applied. That being so the computation of the appellant 's income had to be made either under the first basis viz. the calculation of the profits and gains on such percentage of the turnover accruing or arising as the Income tax Officer may consider to be reasonable or on the third basis i.e. 'in such other manner as the Income tax Officer may doom suitable '. From the assessment orders made by the Income tax Officer, it does not appear that in computing the taxable income of the assessee, he adopted the first basis. The most appropriate basis under which he could have computed the income was the last basis viz. "in such other manner as the Income tax Officer may deem suitable. " While adopting that basis, the Income tax Officer is not required to rigidly apply the various conditions prescribed in the Act in the matter of granting one or the other of the permissible allowances. He may adopt any equitable basis so long as that basis does not conflict either with rule ' 3 or with the instructions or directions given by the Board of Revenue. The power given to the Income tax Officer under that basis is a very wide power. That power is available not only to the Income tax Officer but also to the Appellate Assistant Commissioner and the Tribunal. As the Tribunal had determined the tax due from the appellant on the basis of the ratio certificate given by the U.K. authorities, it cannot be said that the decision reached by the Tribunal was an unreasonable one. The Tribunal 's decision accords with the instructions given by the Board of Revenue. The fact that the Proviso to section 10 (2) (vib) was incorporated into the Act after the Board issued its instructions cannot affect either the validity of rule 33 or the force of the instructions issued by the Board of Revenue because neither rule 33 nor the instructions issued were strictly in accordance with section 10(2). They merely lay down certain just and fair methods of approach to a difficult problem. The learned Solicitor General appearing for the Revenue at one stage of his arguments contended that the instructions issued 176 by, the, Board of Revenue cannot have any binding effect and those instructions cannot abrogate or modify the provisions of the Act. .But he did not contend that the Rule 33 is ultra vires the Act. The instructions, in question merely lay down the manner of applying rule 33. Now coming to the question as to the effect of instructions issued under section 5 (8) of the Act, this Court observed in Navnit Lal C. Javeri vs K. K. Sen Appellate Asstt. Commissioner Bombay : (1) "It is clear that a circular of the kind which was issued by the Board would be binding on all officers and persons employed in the execution of the Act under section5(8) of the, Act. This circular pointed, out to all the officers that it was likely that some of the companies might have advanced loans to their share holders as a result of genuine transactions of loans, and the idea was, not to affect such transactions and not to bring them within the mischief of the new provison." The directions given in that circular clearly deviated from the Provisions of the Act, yet this Court held that the circular was binding on the Income tax Officer. For the reasons mentioned I above, Civil Appeals Nos. 1161 and 1162 of 1971 are allowed and in substitution of the answer given by the High Court to question No. 2, we answer that question in the affirmative and in favour of the assessee. The assessee is entitled to its costs in those appeals both in this Court as well as in the High Court costs one set. Civil Appeals Nos. 2459 and 2460 of 1968 are dismissed as being not maintainable. In those appeals, there will be no order as to costs. G.C. C.A.s Nos. 1161 and 1162/71 allowed. C.A.s Nos. 2459 and 2460/68 dismissed.	Under a circular issued in 1962 by the Central Board of Revenue under section 5(8) of the Indian Income tax Act, 1922 the assessing authorities were directed to permit British Shipping Companies to elect to be assessed on the basis of a ratio certificate granted by the U.K. authorities regarding the income or loss and the wear and tear allowance. In 1964 the Board instructed the taxing authorities to take into consideration the investment allowance granted by U.K. authorities in computing the taxable income of the British Shipping companies. The appellant was a non resident British ' Shipping company whose ships plied all over the world including Indian waters. For the years 1960 61 and 1961 62 the Income tax Officer computed it,, total income under the Indian Income tax Act, 1922 by taking into account the ratio certificates issued by the Chief Inspector of Taxes U.K. which were based on the assessments made on the appellant in U.K. In making assessment the Income tax Officer purported to.proceed on the basis of r. 33 of the Indian Income tax Rules, 1922. One of the points considered by the Income tax Officer and the Appellate Assistant Commissioner was whether the investment allowance was to be taken into account in assessing the Indian income. Both of them rejected the contention of the appellant that it should be taken into account. The tribunal decided in favour of the appellant but the High Court in reference took the oppo site view. In appeal to this Court by special leave. HELD : (i) The authorities under the Act proceeded on the basis that the computation of the income of the assessee had to be made on the second of the three bases mentioned in r. 33. Admittedly the profits of the assessee were not computed in accordance with the provisions of the Act. That being so, the second basis mentioned in r. 33 could not be applied. This aspect was brought to the notice of the High Court. But the High Court refused to consider the same on the ground that both the Revenue as well as the assessee had proceeded before the authorities under the Act on the assumption that the second basis mentioned r. 33 was the relevant basis. The High Court erred in adopting this approach. The fact that the authorities under the Act as well as the parties were under a mistaken impression could not alter the true position in law. [174 H 175 B] (ii) The computation of appellant 's income had to be made either under the first basis viz. the calculation of the profits and gains on such percentage of the turnover accruing or arising as the income tax Officer may consider to, be reasonable, or on the third basis i.e. 'in such other manner as the Income tax Officer may deem suitable '. [175 C] 169 From the assessment orders it did not appear that the first basis was adopted. The most appropriate basis under which the income could have been computed was the last basis viz. "in such other manner as the Income tax Officer may deem suitable". While adopting that basis the Income tax Officer is not required to rigidly apply the various conditions prescribed in the Act in the matter of granting one or the other of the permissible allowances. He may adopt any equitable basis as long as the basis does not conflict either with r. 33 or with the instructions or directions given by the Board of Revenue. The power given to the Income tax Officer on that basis is a very wide power. That power is available not only to the Income tax Officer but also to the Appellate Assistant Commissioner and the Tribunal. [175 D F] As the Tribunal had determined the tax due from the appellant on the basis of the ratio certificate given by the U.K. authorities, it could not be said that the decision reached by the Tribunal was an unreasonable one. The Tribunal 's decision was in accord with the instructions of the Board of Revenue. [175 F] The fact that the proviso to section 10(2) (vib) was incorporated into the Act after the Board issued its instructions could not affect either the validity of r. 33 or the force of the instructions issued by the Board of Revenue because neither r. 33 nor the instructions issued by the Board were strictly in accordance with section 10(2). [175 G H] Navnit Lal C. Javeri V. K. K. Sen, Appellate Asstt. Commissioner, Bombay, , applied.
1. This is an application under Section 482 of the Code of Criminal Procedure to quash the First Information Report in Crime No. 355/2020 dated 12th November, 2019 registered with Ramanand Police Station, Dist. Jalgaon and consequent criminal proceeding criappln1122.21.odt being RCC No. 66/2021 pending on the fle of learned Judicial Magistrate First Class, Jalgaon, for offences punishable under Sections 498A, 323, 504, 406, 506 read with Section 34 of the Indian Penal Code and Section 3 of the Dowry Prohibition Act. 2. Heard learned counsel for the applicant, learned APP for the State and learned counsel for respondent No. 2. We have perused the record and considered the submissions advanced by learned counsel for the respective parties. 3. The scope and power of the High Court to quash the First Information Report or criminal proceedings under Section 482 of the Code of Criminal Procedure is well settled. The Hon’ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others, AIR 1992 Supreme Court Cases 335 has laid down the guidelines that must be adhered to while exercising its inherent powers under Section 482 of the Code of Criminal Procedure to quash the First Information Report. The relevant paragraph reads thus :- “ 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this criappln1122.21.odt Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defned and suffciently channelised and infexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the frst information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the frst information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police offcers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police offcer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a criappln1122.21.odt just conclusion that there is suffcient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specifc provision in the Code or the concerned Act, providing effcacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fde and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 4. In Zandu Pharmaceutical Works Ltd. and others vs. Md. Sharaful Haque and others, AIR 2005 SCC 9, the Apex Court has “8. … It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justifed to quash any proceeding if it fnds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant criappln1122.21.odt has alleged and whether any offence is made out even if the allegations are accepted in toto.” 5. Since the First Information Report in question emanates from matrimonial dispute, it would be relevant to refer to the case of Kahkashan Kausar alias Sonam and Others vs. State of Bihar and others, (2022) 6 SCC 599, wherein the Apex Court has observed that“incorporation of Section 498-A of I.P.C. was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498-A I.P.C. as instruments to settle personal scores against the husband and his relatives.” The Apex Court, upon considering the previous judgments relating to quashment of F.I.R. in respect of offence punishable under Section 498-A of the I.P.C. has observed in paragraph no.17 thus,- “17. … this Court has at numerous instances expressed concern over the misuse of Section 498-A I.P.C. and the increased tendency of implicating relatives of the husband in criappln1122.21.odt matrimonial disputes, without analysing the long-term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this Court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.” 6. Keeping the above preposition of law in mind, the crucial question for consideration is whether the accusations levelled against the applicant fall under any of the categories as enumerated in the case of Bhajan Lal (supra). 7. The applicant herein is a married sister of the husband of respondent No. 2. The marriage between respondent No. 2 and the brother of the applicant was solemnised on 19th April, 2019. Respondent No. 2 left the matrimonial home on 7 th June, 2019. She lodged First Information Report on 12th November, 2019 against her husband, his parents and applicant herein alleging that they had subjected her to physical and mental cruelty within the meaning of Section 498A of the Indian Penal Code. 8. The First Information Report prima facie reveals that there is rift in marital ties between the respondent No. 2 and her husband, the brother of the applicant herein. The applicant has been dragged into the matrimonial dispute with allegations that - i) On 18th May, 2019, she ordered Chicken Biryani for her brother but told respondent No. 2 to cook her own food. ii) When respondent No. 2 had visited the applicant, she was told to get ready in an unused washroom. iii) The applicant had told respondent No. 2 not to raise her voice against her parents. iv) The applicant had phoned the brother of respondent No. 2 and told him that they should keep respondent No. 2 at her parental house at Jalgaon and that respondent No. 2 should seek divorce. v) The applicant told the brother of respondent No. 2 that the behaviour of respondent No. 2 was not acceptable to them and that she should mend her ways to continue to live in the matrimonial vi) The applicant, who is a Judicial Offcer, ought to have intervened the dispute between the respondent No. 2 and her criappln1122.21.odt husband impartially rather than being biased, supporting her brother and blaming her. vii) The applicant posted a comment on her WhatsApp status congratulating her brother for fnding a new girl in his life and advising him to forget the past and start a new life. 9. The aforesaid accusations even if taken at face value and accepted in their entirety, do not constitute any offence justifying investigation against the application. The case in our hand is fully covered by categories (1) and (3) as enumerated by the Apex Court in Bhajan Lal (supra). It is pertinent to note that unfounded criminal charges and long drawn criminal prosecution can have serious consequences. A person subjected to such litigation suffers immense mental trauma, humiliation and monetary loss. Reckless imputations can also result in serous repercussion on career progression and future pursuits and most importantly it stigmatizes reputation, brings disrepute and lowers the image of a person amongst friends, family and colleagues. It is to be noted that loss of character or bruised reputation cannot be restored even by judicial reprieve. As Shakespeare has famously said that “Good name in man and woman, dear my lord, is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; ’twas criappln1122.21.odt mine, ’tis his, and has been slave to thousands: But he that flches from me my good name Robs me of that which not enriches him and makes me poor indeed.” In legal parlance, right to reputation and dignity of an individual is held to be an integrated part of Articles 21 and 19(2) of the Constitution. Therefore, it is imperative for the Court to exercise power under Section 482 of the Code of Criminal Procedure, in ft cases, to safeguard and protect the rights of every person subjected to such litigation and prevent misuse of criminal process for personal vendetta. 10. As noted by us above, the First Information Report in question is a classic example wherein the family members of the husband have been implicated in proceedings under Section 498A of the Indian Penal Code as an instrument to settle personal score with the husband. The unfounded proceedings, qua the applicant, need to be quashed to prevent the abuse of the process of the Court, to protect the right of the applicant and thus to secure the ends of 11. In the circumstances, application is allowed in terms of prayer clauses ‘C’ and ‘C-1’. Consequently, First Information Report criappln1122.21.odt bearing Crime No. 355/2020 dated 12 th November, 2019 registered with Ramanand Police Station, Dist. Jalgaon for offences punishable under Sections 323, 504, 406, 504, 506 read with Section 34 of the Indian Penal Code and Section 3 of Dowry Prohibition Act and RCC No. 66/2021 pending on the fle of learned Judicial Magistrate First Class, Jalgaon, stand quashed and set aside, qua the applicant.	The Bombay High Court recently quashed an FIR against a judicial officer accused of subjecting her brother’s wife to physical and mental cruelty. A division bench of Justice Anuja Prabhudessai and Justice R. M. Joshi of Aurangabad said that this case of Section 498A IPC is being used to settle personal score. “...the First Information Report in question is a classic example wherein the family members of the husband have been implicated in proceedings under Section 498A of the Indian Penal Code as an instrument to settle personal score with the husband. The unfounded proceedings, qua the applicant, need to be quashed to prevent the abuse of the process of the Court, to protect the right of the applicant and thus to secure the ends of justice”, the court held. The court reiterated that an individual’s right to reputation and dignity is an integral part of Articles 21 and 19(2) of the Constitution. The court quoted Shakespeare’s play Othello in its judgment – “Good name in man and woman, dear my lord, is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; ’twas mine, ’tis his, and has been slave to thousands: But he that filches from me my good name Robs me of that which not enriches him and makes me poor indeed.” The judicial officer, along with her brother and parents, were implicated in an FIR filed in June 2019. She was accused of inflicting mental and physical harm on her sister-in-law under section 498A of the IPC. Hence, she approached the high court under section 482 Cr.P.C. with an application to quash the FIR. According to the FIR, there is a rift between the complainant and her husband. It was alleged that the applicant ordered Chicken Biryani for her brother but told the complainant to cook her own food. Further, she told the complainant not to raise her voice against her parents and encouraged her brother to seek divorce from the complainant, according to the FIR. The FIR further stated that the applicant, as a judicial officer, should have intervened in the dispute between the complainant and her husband impartially rather than being biased and supporting her brother. The court said that even if the accusations are accepted at face value, they do not constitute any offence justifying the investigation. The present case is covered by State of Haryana v. Bhajan Lal in which Supreme Court laid down the guidelines for exercising inherent powers under Section 482 of the Cr.P.C. to quash FIRs, the court held. The court said that unfounded criminal charges and long drawn criminal prosecution can have serious consequences such as mental drama, humiliation, and monetary loss. “Reckless imputations can also result in serous repercussion on career progression and future pursuits and most importantly it stigmatizes reputation, brings disrepute and lowers the image of a person amongst friends, family and colleagues. It is to be noted that loss of character or bruised reputation cannot be restored even by judicial reprieve”, the court added. Advocate A. R. Devkate represented the applicant. APP P. G. Borade appeared for the State. Advocate T. K. Sant appeared for the complainant. Case no. – Criminal Application No. 1122 of 2021 Case Title – Vrushali Jayesh Kore v. State of Maharashtra and Anr.
Appeals Nos. 2596 and 2597 of 1966. Appeals by special leave from the Orders dated May 2, 1966 and June 22, 1966 of the Government of India, Ministry of Mines and Metals, New Delhi on application is filed by the appellant under Rule 54 of the Mineral Concession Rules, 1960. section J. Sorabji, A. J. Rana, J. R. Gagrat and B. R. Agarwal, or the appellant (in both the appeals). G. N. Dikshit, R. N. Sachthey for section P. Nayyar, for respondent No. 1 (in both the appeals). P. Ram Reddy and B. Parthasarathy, for respondent No. 2 (in both the appeals). M. C. Setalvad, B. Dutta, and O. C. Mathur, for respondent No. 3 (in both the appeals). The Judgment of the Court was delivered by Mitter, J. These two appeals by special leave, are Iimited to the question as to whether in dismissing a revision and confirming the order of the State of Andhra Pradesh, the Union of India was bound to make a speaking order. The text of the order is the same in both the cases, the only difference being in 304 the situs and the area in respect of which the lease was applied for. One of the orders runs as follows "New Delhi, the 22nd June, 1966". I am directed to refer to your revision application dated 14 12 1964 and letter dated 28 1 1966 on the above subject and to say that after careful consideration of the grounds stated therein, the Central Government have come to the conclusion that there is no valid ground for interfering with the decision of the Government of Andhra Pradesh rejecting your application for grant of mining lease for asbestos over an area of Ac.1 13 50 in Brahmanapalii village, Cuddapah District, Andhra Pradesh. Your application for revision is, therefore, rejected. " The facts leading to the two appeals are as follows : In response to a notification dated January 8, 1964 published in the State Gazette by the Andhra Pradesh Government inviting applications under r. 58 of the rules framed under the (hereinafter referred to as the Rules and the Act) the appellant submitted two applications in the prescribed form viz., Form "I" for areas aggregating Ac. 113 50 in village Brahmanapalli and Ac. 13 10 in village Ippatta both in the district of Cuddapah for mining asbestos. Respondent No. 3 also made similar applications on the same date. According to the appellant his applications complied with all the requirements of Form "I" while those of respondent No. 3 were defective in some respects. Besides the appellant and the respondent No. 3, there was only one other person who applied for a prospecting licence which was rejected off hand. As between the appellant and the respondent No. 3, the Government of Andhra Pradesh preferred the latter. The relevant portion of the order dated 19th October 1964 in respect of the village Brahmanapalli under section 10(3) of the Act was as follows : "As between the other applicants Sri Bhagat Raja and M/s. Tiffin 's Barytes, Asbestos and, Paints Ltd., the Government prefer M/s. Tiffin 's Barytes. as they are having adequate general experience and technical knowledge, and are old lessees in the district, without any arrears of mineral dues to the Government. The mining lease application of Sri Bhagat Raja for the areas covered by the mining lease application of M/s. Tiffin 's Barytes, Asbestos and Paints Ltd. is rejected. " 305 The text of the Order with regard to village Ippatta is practically the same. The appellant filed application in revision in the prescribed form i.e. Form 'N ' under section 30 of the Act read with r. 54 to the Union of India on December 14, 1964. The appellant tried to bring out in his revision applications that the financial condition of the 3rd respondent was extremely precarious as would be evidenced by documents, copies whereof were annexed to his petition. The 3rd respondent filed a counter statement to the revision application in April 1965. In March 1966 the appellant received the comments of the Andhra Pradesh Government on his revision applications. The appellant filed rejoinder to the counter statements of the 3rd respondent in May 1965 and to the comments of the Andhra Pradesh Government in April 1966. He also asked for the grant of a personal hearing before the decision of the case which was not given. Ultimately, his applications were rejected by orders quoted hereinabove. Various grounds of appeal were taken in the application for special leave to appeal preferred by the appellant. An, attempt has been made therein to show that respondent No. 3 had no experience in asbestos mining, that its financial position was very unsatisfactory and that its application for mining lease was not in proper form. A complaint was also made that in rejecting the applicant 's revision applications the Union of India was bound to give reasons for its decision as it was exercising quasi judicial powers under section 30 of the Act read with rr. 54 and 55, that principles of natural justice and fairplay requiring the divulgence of the grounds were violated and that a personal hearing should have been given to the appellant before the disposal of the revision applications. We are not called upon in this case to go into the merits of the case but only to examine the question as to whether it was necessary for the Government of India to give reasons for its decision in view of the provisions of the Act and the Rules or aliunde because the decision was liable to be questioned in appeal to this Court. It is necessary to take note of a few provisions ofthe Act and the relevant rules framed thereunder to ascertain the scope of a party 's right to, apply for a lease and the powers and duties of the Government in accepting or rejecting the some. The preamble to the Act shows that its object was to provide for the regulation of mines and the development of minerals under the control of the Union of India. Under section 4(1) no person can undertake any prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a prospecting licence or a mining lease granted under the Act and the Rules. Under sub section (2) of the section 306 "No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules mad. , thereunder. " S.5 lays down certain conditions which a person desiring to have a mining lease must fulfil. section 8 provides for the period for which a mining lease may be granted. Under section 10(1) an application for a mining lease has to be made to the State Government concerned in the prescribed form. Sub section (3) of S.10 runs as follows : "On receipt of an application under this section, the State Government may, having regard to the provisions of this Act and any rules made thereunder, grant or refuse to grant the licence or lease." Under sub section (2) of section 11 a person whose application for a licence is received earlier than those of others shall have a preferential right for the grant thereof over the others. The proviso to this sub section enacts that where applications are received on the same day, the State Government, after taking into consideration the matters specified in sub section (3), may grant the mining lease to such one of the applicants as it may deem fit. Sub section (3) specifies the matters referred to in sub section (2) and they are as follows : (a) any special knowledge or experience in, prospecting operations or mining operations, as the case may be, possessed by the applicant; (b) the financial resources of the applicant; (c) the nature and quality of the technical staff employed or to be employed by the applicant; and (d) such other matters as may be prescribed. 'section 13(1) enables the Central Government to make rules for regulating the grant of prospecting licences and mining leases. Under s.19 any mining lease granted, renewed or acquired in contravention of the provisions of the Act is to be void and of no effect. Power of revision of the order of the State Government is given to the Central Government in the following terms: "The Central Government may, of its own motion or on application made within the prescribed time by the aggrieved party, revise any order made by a State Government or other authority in exercise of the powers conferred on it by or under this Act. " Rules were made by the Central Government under s.13 of the Act known as the Mineral Concession Rules, 1960. R.22 pres cribes that an application for the grant of a mining lease must be made to the State Government in Form "I" accompanied by a 307 fee of Rs. 200/ , a deposit of Rs. 5001 and an income tax clearance certificate. Under r. 26 the State Government is obliged to give reasons for refusal to grant a mining lease. Any person aggrieved by an order made by the State Government may prefer an application for revision under r. 54 in Form 'N '. In every such application against the order of the State Government refusing to grant a mining lease, a person to whom a lease has been granted must be impleaded as a party. R. 55 originally framed in 1960 was amended in July 1965. Under the amended r.55 the position is as follows: "(1) On receipt of an application for revision under r. 54, copies thereof shall be sent to the State Government and to all the impleaded parties calling upon them to make such comments as they may like to make within three months of the date of issue of the communication and if no comments are received within that period, it is to be presumed that the party omitting to make such comments has none to make. (2) On receipt of the comments from any party under Sub rule (1), copies thereof have to be, sent to the other parties calling upon them to make further comments as they may like to make within one month from the date of the issue of the communication. (3) The revision application, the communications containing comments and counter conmments referred to in sub rules (1) and (2) shall constitute the record of the case. (4) After considering the records referred to in sub rule (3), the Central Government may confirm, modify or set aside the order or pass such other order in relation thereto as it may deem just and proper. " From the above, it will be amply clear that in exercising its powers of revision under r. 55 the Central Government must take into consideration not only the material which was before the State Government but comments and counter comments, if any, which the parties may make regarding the order of the State Government. In other words, it is open to the parties to show how and where the State Government had gone wrong, or, why the order of the State Government should be confirmed. A party whose application for a mining lease is turned down by the State Government is therefore given an opportunity of showing that the State Government had taken into consideration irrelevant matters or based its decision on grounds which were not justified. At the time when applications for a licence are made by different parties to the State Government. they are not L5Sup/67 7 308 given an opportunity of showing any defects or demerits in the applications of the others or why their applications should be Preferred to others. The State Government has to make up its mind by considering the applications before it as to which party is to be preferred to the other or others. S.11(3), as already noted, prescribes the matters which the State Government must consider before selecting one out of the numerous applicants. But the possibility of the State Government being misled in its consideration of the matters cannot be ruled out. It may be that a party to whom a lease is directed to be granted has in fact no special knowledge or experience requisite for the mining operations or it may be that his financial resources have not been properly disclosed. It may also be that the nature and quality of the technical staff employed or to be employed by him is not of the requisite standard. In an application for revision under r. 55 it will be open to an aggrieved party to contend that the matters covered by sub section (3) of section 11 were not properly examined by the State Government, or that the State Government had not before it all the available material to make up its mind with respect thereto before grant in a licence. In a case where complaints of this nature are made, of necessity, the Central Government has to scrutinise matters which were not canvassed before the State Government. A question may arise in such cases as to whether the order of the Central Government in the form in which it was made in this case would be sufficient, specially in view of the fact that the correctness thereof may be tested in appeal to this Court. It is now well settled that in exercising its powers of revision under r. 55 the Central Government discharges functions which are quasi judicial : see Shivji Nathubhai vs The Union of India & Ors. (1) and M. P. Industries vs Union (1). In the latter case one of us (our present Chief Justice) said (at p. 471) : "The entire scheme of the rules posits a judicial procedure and the Central Government is constituted as a tribunal to dispose of the said revision. Indeed this Court in Shivji Nathubhai vs The Union of India (supra) rules that the Central Government exercising its power of review under r. 54 of the Mineral Concession Rules, 1949, was acting judicially as a tribunal. The new rule, if at all, is clearer in that regard and emphasises the judicial character of the proceeding. If it was a tribunal, this Court under article 136 of the Constitution can entertain an appeal against the order :of the Central Government made in exercise of its revisional powers under r. 55 of the Rules." (1) [1960]2 S.C.R. 775. (2) 309 Let us now examine the question as to whether it was incum bent on the Central Government to give any reasons for its decision on review. It was argued that the very exercise of judicial or quasi judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers of the High Courts under article 227 of the Constitution and of appellate powers of this Court under article 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected", or, "dismissed". In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are ,sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a "speaking order" is called for. The order of the Central Government of June 22, 1966 is so worded as to be open to the construction that the reviewing authority was primarily concerned with finding out whether any grounds had been made out for interfering with the decision of the State Government. In other words, the Central Government was not so much concerned to examine the grounds or the reasons for the decision of the State Government but to find out whether here was any cause for disturbing the same Prima facie the order does not show that the reviewing authority had any thought of expressing its own reasons for maintaining the decision arrived at. If detailed reasons had been given by the 310 State Government and the Central Government had indicated clearly that it was accepting the reasons for the decision of the State Government, one would be in a position to say that the reasons, for the grant of a lease to a person other than the appellant were obvious. But, where as here, the State Government does not find any fault or defect in the application of the unsuccessfully applicant and merely prefers another on the ground that "he had adequate general experience and technical knowledge and was an old lessee without any arrears of mineral dues" it is difficult to say what turned the scale in favour of the successful applicant excepting the fact that he was known to the State Government from before. We do not want to express any views on this but if this be a proper test, then no new entrant in the field can have any chance of success where there is in old lessee competing with him. The order of the Central Government does not bring out any reason for its own decision except that no ground for interference with the decision arrived at was established. Now we propose to examine some decisions of this Court where the question as to whether the reviewing authority should give reasons for its decisions was gone into. In Harinagar Sugar Mills vs Shyam Sundar Jhunjhunwala(1) this Court had to consider whether the Central Government exercising appellate powers under s.111 of the before its amendment in 1960 was a tribunal exercising judicial functions and as such, subject to the appellate jurisdiction of this Court under article 136 of the Constitution and whether the Central Government had acted in excess of its jurisdiction, or acted illegally otherwise in directing the company to register the transfer or transfers in favour of the respondents. There, the articles of association of the company concerned gave the directors the right in their absolute discretion and without assigning any reason to refuse to register any transfer of shares. The directors declined to register some shares in the name of the transferees who applied to the High Court at Bombay for orders under section 38 of the Indian Companies Act, 1913 for rectification of the share register on the ground that the board of directors had exercised their right mala fide, arbitrarily and capriciously. The High Court rejected these petitions on the ground that controversial questions of law and fact could not be tried in summary proceedings under section 38. The transferees requested the directors once more to register the shares. On their refusal to do so, appeals were preferred to the Central Government under s.111(3) of the Indian which had since come into operation. The Joint Secretary, Ministry of Finance, who heard the appeals declined to order registration of transfers (1)[1962] 2 S.C.R. 339 @ 357. 311 practically on grounds similar to those put forward by the High Court of Bombay. Thereafter, the original holder of the shares transferred some shares to his son and some to his daughter in id '", and the transferees requested the company to register the transfers. The directors once more refused. Against the resolution of the directors, separate appeals were preferred by the son and daughter in law of the original holder of the shares. The Deputy Secretary to the Government of India set aside the resolution passed by the board of directors and directed the company to register the transfers. No reasons were however given for such order. The company came up in appeal to this Court under article 136 of the Constitution. According to the judgment of the majority of Judges, the exercise of authority by the Central Government was judicial as it had to adjudicate upon the rights of contesting parties when there was a lis between them. It was observed in that case that "If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this court under Art 136 of the Constitution, we fail to see how the power of this court can be effectively exercised if reasons are not given by the Central Government in support of its order." This Court further held that there had been no proper the appeals, no reasons having been given in support orders of the Deputy Secretary who heard them and result, the orders were quashed with a direction that the be re heard and disposed of according to law. In Sardar Govindrao vs State(1) the appellants who to be descendants of former ruling chiefs in same districts of Madhya Pradesh applied under the Central Provinces and Berar Revocation of Land Revenue Exemptions Act, 1948 for grant of money or pension as suitable maintenance for themselves. They held estates in two districts on favourable terms as Jahgirdars Maufidars and Ubaridars and enjoyed, an exemption from paymnent of land revenue aggregating Rs. 27,828 5 0 per year. On the passing of the Act, the exemption was lost and they claimed to be entitled to grant of money or pension under the provisions of the Act. They applied to the Deputy Commissioner who forwarded their applications to the State Government. These were rejected without any reasons being given therefor. The appellants filed a petition in the High Court of Madhya Pradesh under article 226 of the Constitution for a writ of certiorari 'to quash the order of the State Government. The High Court held that the State Government "was (1) [ ; 312 not compelled to grant either money or pension because the exercise of the power under section 5 was discretionary and the petition, therefore was incompetent." section 5(3) of the C.P. and Berar Act provided as follows : "The Provincial Government may make a grant of money or pension (i) for the maintenance or upkeep of any religious, charitable or public institution or service of a like nature, or (ii) for suitable maintenance of any family of a descendant from a former ruling chief. " section 6 'barred the jurisdiction of civil courts. It was observed by this Court . "The Act lays down upon the Government a duty which obviously must be performed in a judicial manner. The appellants did not seem to have been heard at all. The Act bars a suit and there is all the more reason that Government must deal. with such case in a quasi judicial manner giving an opportunity to the claimants to state their case in the light of the report of the Deputy Commissioner. The appellants were also entitled to know the reason why their claim for the grant of money or pension was rejected by Government and how they were considered as not falling within the class of persons who it was clearly intended by the Act to be compensated in this manner. . As the order of Government does not fulfil the elementary requirements of a quasijudicial process we do not consider it necessary to order a remit to the High Court. " In the result this Court set aside the order of the Government and directed the disposal of the case in the light of the remarks made. In M. P. Industries vs Union(1) the order of the Central Government rejecting the revision application under r. 55 of the Mineral Concession Rules was couched in exactly the same language as the order in appeal before us (see at p. 475 of the report) One cannot help feeling that the Ministry concerned have a special form which is to be used whenever a review application is to be rejected. This may easily lead anyone to believe that the review is a sham and nothing but the formal observance of the power granted to the Central Government. In that case, all the three learned Judges of this Court who heard the appeal were unanimous in dismissing it : some of the obser (1) [196] 1 S.C.R. 466. 313 vations made bear repetition. It was there argued that if the Central Government had to give reasons when it functioned as a tribunals it would obstruct the work of the Government and lead to unnecessary delays. As to this it said by our present Chief Justice : "The Central Government functions only through different officers and in this case it functioned through an Under Secretary. The condition of giving reasons is only attached to an order made by the Government when it functions judicially as a tribunal in a comparatively small number of matters and not in regard to other administrative orders it passes. Our Constitution posits a welfare State. .In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a welfare State. But arbitrariness in their functioning destroys the concept of a welfare State it , self Self discipline and supervision exclude or at any rate minimise arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds. A reasoned order is a desirable con dition of judicial disposal. If tribunals can make orders with out giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power. But, if reasons for an order are given, it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. " It was further observed in that case that the position of ordinary courts of law was different from that of tribunals exercising judicial functions and it was said : "A Judge is trained to look at things objectively, uninfluenced by considerations of policy or expediency; but, an executive officer generally looks at things from the standpoint of policy and expediency. The habit of 314 mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it, is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appellate courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional court agrees with the reasoned judgment of the subordinate court or there are no legally permissible grounds to interfere with it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the first tribunal is laconic and does not give any reasons. That apart, when we insist upon reasons; we do not prescribe any particular form or scale of the reasons. The extent and the nature of the reasons depend upon case of affirmance where the original tribunal gives bunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons. What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon the facts of each case. " It must be noted however that the above view was not shared by the two other Judges of the Bench constituting this Court. It was said by them : "For the purpose of an appeal under article 136, orders of Courts and tribunals stand on the same footing. An order of court dismissing a revision application often gives no reason, but this is not a sufficient ground for quashing it. Likewise, an order of an ad minstrative tribunal, ' rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for the rejection. " They distinguished the case of Harinagar Sugar Mills Ltd.(1) on the ground that the Central Government had reversed the decision ' appealed without giving any reasons and the latter did not disclose any apparent grounds for reversal and added: "There is a vital difference between the order of reversal by the appellate authority in that case for no (1) [1962] 2 section C.R. 339. 315 reason whatsoever and the order of affirmance by the revising authority in the present case. " As has already began noted, the board of directors in that case did not give any reasons for the refusal to register and the Central Government adopting the same course reversed the decision of the directors without giving any reasons. Clearly, the act of the Central Government there savoured of arbitrariness. Under the articles of association of the company, the directors were not obliged to give any reasons. Their power of refusal was unrestricted if they acted bona fide or in the interest of the company. The reversal of their discretion clearly amounted to a finding that they had acted arbitrarily or mala fide and one was; left to guess the reasons of the Central Government for coming to this conclusion. As has already been said, when the authority whose decision is to be reviewed gives reasons for its conclusion and the reviewing authority affirms the decision for the reasons given by the lower authority, one can assume that the reviewing authority found the reasons given by the lower authority as acceptable to it; but where the lower authority itself fails to give any reason other than that the successful applicant was an old lessee and the reviewing authority does not even refer to that ground, this Court has to grope in the dark for finding out reasons for upholding or rejecting the decision of the reviewing authority. After all a tribunal which exercises judicial or quasi judicial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of parties of far reaching consequence to them are adjudicated upon in a summary fashion, without giving a personal hearing where proposals and counter proposals are made and examined, the least that can be expected is that the tribunal should tell the party why the decision is going against him in all cases where the law gives a further right of appeal. On behalf of the respondents, it was contended that r. 55 which provided for a revision did not envisage the filing of fresh pleadings and fresh material but only invited comments of the parties with regard to the matter before the Central Government. It was argued that if after going through the comments and counter comments the Central Government found no reason to arrive at a conclusion different from that of the State Government, it was not called upon to disclose any grounds for its decision in review. Our attention was drawn in particular to r. 26 of the Mineral Concession Rules which enjoined upon the State Government to communicate in writing the reasons for any order refusing to grant or renew a mining lease. The absence of any provision in r. 55 for giving such reasons was said to be decisive on the matter as indicative of the view of the legislature that there was no necessity for giving reasons for the order on review. We find ourselves unable to accept this contention. Take the case 316 where the Central Government sets aside the order of the State Government without giving any reasons as in Harinagar Sugar Mills ' case(1). The party who loses before the Central Government cannot know why he had lost it and would be in great difficulty in pressing his appeal to the Supreme Court and this Court would have to do the best it could in circumstances which are not conducive to the proper disposal of the appeal. Equally, in a case where the Central Government merely affirms the order of the. State Government, it should make it clear in the order itself as to why it is affirming the same. It is not suggested that the Central Government should write out a judgment as courts of law are wont to do. But we find no merit in the contention that an authortiy which is called upon to determine and adjudicate upon the rights of parties subject only to a right of appeal to this Court should not be expected to give an outline of the process of reasoning by which they find themselves in agreement with the decision of the State Government. As a matter of fact, r. 26 considerably lightens the burden of the, Central Government in this respect. As the State Government has to give reasons, the Central Government after considering the comments and counter comments on the reasons given by the State Government should have no difficulty in making up its mind as to whether the reasoning of the State Government is acceptable and to state as briefly as possible the reasons for its own conclusion. Our attention was drawn to a judgment of this Court in Nandrant Hunatram, Calcutta vs Union of India(2). There, one of the points made by the appellant in the appeal to this Court was that the order of the Central Government, in review, upholding the action of the State Government cancelling the mining lease granted to the appellant was bad inasmuch as no reasons were given. It was pointed out in the judgment in that case that the facts there were so notorious that the reasons for the action of the State Gov ernment and the confirmation of its order by the Central Government were too obvious and could not possibly be questioned by anybody. There the partners of the appellant firm had fallen out among themselves and none of them was willing to spend money on the colliery with the result that the work came to a stand still and the colliery began to get flooded. At this juncture, Government stepped in and made a promise to the essential workmen that their wages would be paid and this saved the colliery. Thereafter the Chief Inspector of Mines was informed by one of the partners of the appellant firm that the other partners were preventing him from making payment for running expenses of the colliery and that he was not in a position to perform his duties as an,occupier. He accordingly resigned his office. Tre Manager also (1) [1962]2 S.C.R. 339. (2) A.I.R. resigned and the Sub Divisional Officer of the district informed Government that the situation had become so alarming that some action on the part of the Government was absolutely necessary. In spite of notice, the partners refused to take any action with the result that the Government took over the colliery and terminated the lease. The revision application filed before the Central Government under r. 54 of the rules was turned down without giving any reasons. Negativing the contention of the appellant that the order of the Central Government was bad in law because no reasons were given, it was said by this Court that "The documents on the record quite clearly establish that the colliery was being flooded as the essential services had stopped functioning and but for the timely intervention of the State Government the col liery would have been lost. In these circumstances, it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government, which stood completely vindicated. . The action of the State Government far from being arbitrary or cap ricious was perhaps the only one to take and all that the Central Government has done is to approve of it." The last portion of the passage was relied upon by the counsel for the respondents in support of his argument that as the order in review is merely in confirmation of the action of the State Government reasons need not be given. But the above dictum cannot be considered dissociated from the setting of the circumstances in which it was made. There it was plain as a pike staff that the State Government had no alternative but to cancel the lease : the absence of any reasons in the order on review could not possibly leave anybody in doubt as to whether reasons were. As a matter of fact in the setting of facts, the reasons were so obvious that it was not necessary to set them out. There is nothing in this decision which is contrary to M.P. Industries vs Union(1). What the decision says is that the reasons for the action of the State were so obvious that it was not necessary, on the facts of the case, to repeat them in the order of the Central Government. Our attention was also drawn to another judgment of this Court in Commissioner of Income tax vs K. V. pilliah(2). One of the questions in that case before the High Court of Mysore (1) [1966] T. section C. R. 466. (2) 43 1. T R. 411. 318 under section 66(2) of the Indian Income tax Act was, whether, on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was justified in sustaining both the addition ,of Rs. 41 142/ as income from business and Rs. 7,000/ as cash credits, and whether such addition did not result in double taxation. It was held by this Court that the question whether Rs. 41,142/ was liable to be taxed fell to be determined under. the first question. In respect of the other amount of Rs. 7,000/the Income tax Officer had held that the explanation of the assessee was untrue and the Appellate Assistant Commissioner and the Tribunal had agreed with that view. In this setting of facts, it ,,was said by this Court: "The Income tax Appellate Tribunal is the final factfinding authority and normally it should record its conclusion on every disputed question raised before it, setting out its reasons in support of its conclusion. But, in failing to record reasons, when the Appellate Tribunal fully agrees with the view expressed by the Appellate Assistant Commissioner and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, mnerely because it does not repeat the grounds of the Appellate Assistant Commissioner on which the decision was given against the assessee or the department. The criticism made by the High Court that the Tribunal had "failed to perform its duty in merely affirming the conclusion of the Appellate Assistant Commissioner" is apparently unmerited. On the merits of the claim for exclusion of the amount of Rs. 7,000/ , there is no question of law which could be said to arise out of the order of the Tribunal. " The above observations were sought to be pressed into service 'by the counsel for the respondents 'but there, is a good deal of ,difference between that case and the one with which we have to deal. The High Court there was merely called upon to give its ,opinion on the statement of facts set out by the Appellate Tribunal. It was for the Income tax Officer in the first instance to accept or reject the explanation with regard to the cash credit. It the Income tax Officer found the assessee 's explanation unacceptable, lie had to say why he did not accept it. Unless the assessee in appeal was able to point out to the Appellate authorities some flaw in the reasoning of the Income tax Officer, it is not necessary for the appellate authorities to give their reasons independently. The ,explanation of the assessee is either accepted or rejected; but in the case which we have before us, the State Government has to consider the merits and demerits of the applications and to give its reasons why it prefers one to the other or others. There is a dispute between two or more contesting parties and the reasons for 319 preferring one to the other or others may be more than one. It is. not a question of accepting or rejecting an explanation. In our opinion, what was said in the above Income tax case will not apply in the case of a review by the Central Government of a decision of the State Government under the Act and the Rules. It may be of interest to note that in Rex vs Northumberland Compensation Appeal Tribunal, Ex parte Shaw(1) an application was made in the King 's Bench Division in England for an order of certiorari for the quashing of a decision reached by the Compensation Appeal Tribunal dismissing an appeal by Shaw against an award to him of compensation for loss of employment as a clerk to a Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948. There the question of the practice and procedure with regard to the issue of a writ of certiorari was gone into at some length. The tribunal in that case had made a speaking order. It was contended by the counsel for the tribunal that the King 's Bench Division had no power to examine the order in the case before it on certiorari oil the ground that certiorari went only to defect of jurisdiction. This was turned down and the Divisional Court held that it had jurisdiction to quash by certiorari the decision of an inferior tribunal when the latter had embodied the reasons for its decision in its order and those reasons are bad in law. For our purpose, we need only refer to the observations of Lord Goddard, C.J. at p. 724 of the report where he said : "I think it is beneficial in this case that we should do so, not merely having regard to the facts of this case, but because so many tribunals have now been set up, all of whom, I am certain, desire to do their duty in the best way, and are often given very difficult sets of regulations and statutes to construe. It certainly must be for their benefit, and I have no doubt but that they wilt welcome, that this court should be able to give guidance to them if, in making their orders, they make their orders speaking orders, so that this court can then consider them if they are brought before the court on certiorari '. " The case for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to this court. Counsel for the respondents referred us to the comment on this case made by Sir C. K. Allen in his Law and Orders (Second Edition) at p. 259 to p. 261. According to the learned author, the Northumberland Compensation case might be a great deterrent than encouragement to speaking orders inasmuch as "the prospect (1) [1951]1 K.B. 711. 320 of having their mental process set forth in literary form, might be ,extremely disagreeable to them" and up to the year 1956 did not seem to have assisted greatly the means of recourse against decisions of inferior jurisdictions. Speaking for ourselves, with great respect to the learned author, we do not think that the position of the Central Government as a reviewing authority tinder the Mineral Concession Rules can be equated with an appellate tribunal of the type whose decision was before the King 's Bench Division in England. If the State Government is enjoined by law to give its reasons, there is no reason why it should be difficult for the appellate authority to do so. The necessity and the desirability of tribunals making speaking orders has been adverted upon by different High Courts in India. Thus in Vedachala Mudaliar vs State of Madras(3) where the State Government of Madras set ,aside the order of the Central Road Traffic Board without giving ;any reasons, it was observed that "When the policy of the Legislature is to confer powers on administrative tribunals with a duty to discharge their functions judicially I do not see any reason why they should be exempted from all those safeguards inherent in its exercise of that jurisdiction. From the standpoint of fair name of the tribunals and also in the interests of the public, they should be, expected to give reasons when they set aside an order of an inferior tribunal. . Further, if reasons for an order are given, there will be less scope for arbitrary or partial exercise of powers and the order 'ex facie ' will indicate whether extraneous circumstances were taken into consideration by the tribunal in passing the order." Refrence may also be made to Ramayya vs State of Andhra (2 and Annamalai vs State of Madras(3). To the same effect is the judgment of the Kerala High Court in Joseph vs Superintendent of Post Offices, Kottayam(1). We have already commented that the order of the Central Gov ernment in this case is couched in the same language as was used in the case before this court in M.P. Industries vs Union(5) in August 1965. The old rule 55 was replaced by a new rule which ,came into force on 19th July 1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only, the new rule is aimed at calling upon all the parties including the State Government to make their comments in the matter and the parties are given the right to make further comments on those made by (1) A.I.R. 1952 Madras 276. (3) A.I.R. 1957 Andhra Pradesh 739. (2) I.L.R. 1956 Andhra Kerala 245. (5) ; 321 the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party may challenge the grant of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to show that the comments and counter comments, which were before the Central Government in this case, had been considered. It would certainly have been better if the order of 22nd June 1966 had shown that the Central Government had taken into consideration all the fresh material adduced before it and for the reasons formulated they thought that the order of the State Government should not be disturbed. In the result, the appeals are allowed and the orders of the Central Government passed on 22nd June, 1966 are set aside. The Central Government is directed to decide the review applications afresh in the light of the observations made. The appellant will get his costs throughout from the 3rd respondent. G.C. Appeals allowed.	The appellant was one of several applicants for a mining lease in Andhra Pradesh. The State Government however granted it to 'respondent No. 3. The appellant then filed an application in revision, under section 30 of the Mines & Minerals (Regulation and Development) Act, 1957, read with r. 54, to the Union of India. Respondent No. 3 filed a counter statement and the State Government filed its comments. The appellant filed a rejoinder. The Union Government without hearing the appellant rejected his revision application. An appeal was filed before this Court. The question that fell for consideration was whether it was necessary for the Government of India to give reasons for its decision in view of the provisions of the Act and the Rules or aliunde because the decision was liable to be questioned in appeal to this Court. HELD : (i) In exercising its powers of revision under r. 55 the Central Government discharges functions which are quasi judicial. The decisions of tribunals in India are subject to the supervisory powers of the High Court under article 227 of the Constitution and of appellate powers of this court under article 136. Both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected ' or 'dismissed '. In such a case this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the case. This would certainly be a very unsatisfactory method of dealing with the appeal. [308E F; 309B C] If the State Government gives sufficient reasons for accepting the application of one party and rejecting that of others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo, without anybody being the wiser for the review by the Central Government. The same difficulty would arise where the State Government gives a number of reasons some of which are good and some are not and the Central Government gives its decision without specifying those reasons which according to it are sufficient to uphold the order of the State Government. That is why in such circumstances, what is known as a 'speaking order ' is called for. [309C F] 3 03 A 'speaking order ' is all the more necessary in the case of a decision under r. 55 because there is provision for new material being placed before the Central Government which was not there before the State Government, and further, because the decision, affecting important rights of parties, is given in a summary manner without a hearing being allowed to the parties. A party is entitled to know why the decision has gone against him. [320G 321B] The absence in r. 55 of any provision for giving such reasons is not decisive of the matter in view of the above considerations. [315H] Shivji Nathubhai vs The Union of India, ; , M.P. Industries vs Union, ; , Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunihunwala, ; and Sardar Govindraov. State, [1965] 1 S.C.R. 678, followed. Nandram Hunatram, Calcutta vs Union of India, A.I.R. 1966 S.C.1922 and Commissioner of Income tax vs K. V. Pilliah, , distinguished. Rex vs Northumberland Compensation Appeal Tribunal Ex parte Shaw, , Vedachala Mudaliar vs State of Madras, A.I.R. 1952 Madras 276, Rantayya vs State of Andhra, I.L.R. 1956 Andhra 712, Annamalai vs State of Madras, A.I.R. 1957 Andhra Pradesh 738 and Joseph vs Superintendent of Post Offices, Kottayam, I.L.R. 1961 11 Kerala 245, referred to.
Appeals Nos. 702 and 703 of 1967. Appeals from the judgment and order dated September 28, 1960 of the Madhya Pradesh High Court in Misc. First Appeals Nos. 12 and 16 of 1958. M. C. Chagla, Rameshwar Nath and Swaranjit Ahuja, for the appellant (in both the appeals). section T. Desai and D. N. Mukherjee, for respondent No. 1 (in both the appeals). I. N. Shroff, for respondents Nos. 2 and 3 (in C.A. No. 703 of 1967) and respondent No. 2 (in C.A. No. 702 of 1967). The Judgment of the Court was delivered by Grover, J. These appeals which have been brought by cer tificates from a common judgment of the Madhya Pradesh High Court arise out of certain acquisition proceedings. The facts may be stated. Plots Nos. 670, 671 and 735 situate in Madan Mahal Extension area, Jabalpur were acquired by the State Government under the Land Acquisition Act 1894, hereinafter called the 'Act ', for constructing the Home Science College. In the present appeals we are concerned mainly with Plot No. 670. On August 31, 1940, a deed of lease had been executed on behalf of the Municipal Corporation granting a lease free of premium to the Hitkarini Sabha, Jabalpur, which is the appellant before us. The laese was in respect of 10 Acres of land comprising Plot No. 670 and another strip of land measuring 0.621 Acres as described in the deed and delineated in the plan annexed thereto. The period of the lease was 30 years and the purpose for which the land was to be used was for locating and running the Hitkarini City College. Amongst other terms and conditions the, appellant was to pay a yearly rent of Rs. 5 / , for 1 0 acres and Re. 1 / for the other strip of land besides, paying, and discharging all rates and taxes etc. The appellant, on the expiry of the lease, was entitled 495 to have the same renewed on , such terms and conditions as might be agreed between the parties. The appellant had built a, college hostel on the aforesaid land and had also used the attached ground as playground for students. The Collector of Jabalpur, by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and after disposing of certain preliminary objections he assessed the compensation for the lands in all the three plots at As.0/8/ per sq. According to the Collector the appellant was not merely a lessee or tenant at will as contended by the Corporation but was a lessee for the term mentioned in the lease deed dated August 31, 1940, the lease having been made for a specific purpose, i.e. for locating and running a City College. As regards Plot No. 670 the apportionment was made between the appellant The appellant and the Corporation were dissatisfied with the award of the Collector. Applications for reference were made under section 18 (1) of the Act. The Additional District Judge held that the price should be 10 As. per sq. and that the appellant and the Municipal Corporation were entitled to equal compensation for plot No. 670. The Corporation and the appellant filed appeals to the High Court. The decision of the Additional District Judge, fixing the price of the land at As. 0/8/ per sq. ft. was affirmed. As regards the dispute regarding apportionment the High Court held, following a decision of a Division Bench of the same court in Dagdulal vs Municipal Committee, Burhar(1), that the lease deed having been executed by the Administrator during the time when the Corporation stood superseded was ineffective to convey the lease hold interest to the appellant. However, the appellant had been paving refit at the stipulated rate which had been accepted for a long time by the Corporation. It amounted, therefore, to the creation of a tenancy by necessary implication and the relationship of landlord and tenant came into existence. On the character of tenancy, whether it should be deemed to be from year to year or whether it should be on terms contained in the lease deed, the High Court held that the tenancy continued on the terms contained in the lease deed. The High Court then proceeded to say : "The lease deed in this case was executed on 31 8 1940 and was for a period of thirty years. It was, therefore to remain in force for 15 years more after the date of acquisition. There is a renewal clause which has been already quoted above. The lessee is entitled for renewal "on such terms and conditions as, may be agreed to between the parties". It appears to. us that the clause (1) 496 is uncertain and vague and does not form a valid contract for renewal of the lease. Normally in a covenant for renewal there is an express agreement that the lease would be continued on the same terms and conditions subject to a reservation that the rent way be enhanced under certain circumstances. In the instant, case, ill the terms and conditions have been left to the agreement of patties which may not take place at all. Although a renewal is contemplated no terms on which it can be granted have been fixed between the parties. Under section 29 of the Indian Contract Act such a contract cannot be enforced. , It has been held in Ramaswami vs Rjajagopala (I.L.R. I I Mad. 260) that a lease whereby a tenant agreed to pay whatever rent the Landlord might fix was void for uncertainty". The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962. Before us two matters have been sought to be raised. One one relates to the quantum of compensation awarded by the learned Additional District Judge and the other to the apportionment between the appellant and the Corporation. We shall first deal with apportionment. It has been argued that since the High Court had held that the tenancy continued on the terms contained in the lease deed benefit should have been given of the renewal clause also. The High Court had taken the view that that clause was uncertain and vague and did not form a valid contract for the renewal of the lease. Our attention has been invited to a judgment of the Mysore High Court in H. V. Rajan vs C. N.Gopal & Others.(1) There the relevant portion of the renewal clause was "lessee shall have the option of five years but subject only to such terms and conditions as may be mutually agreed upon". It was observed that ordinarily the renewal clause in a lease deed was an important term of the agreement and the courts would be reluctant to ignore that clause on the ground that it was vague unless on a reasonable construction no meaning could be attached to it. An agreement to renew the lease, without more, must be deemed to be an agreement to renew as per the original terms. Even if the renewal provided was dependent on the agreement between the parties the clause merely provided for an agreement on reasonable terms. If the parties could not agree as to those terms the courts could step in. In our judgment it is altogether unnecessary to decide the true scope and effect of the renewal clause contained in the deed executed on August 31, 1940. At the time the lease was executed (1) A.I.R. 1961 Mys. 497 there used to be a Municipal Committee in Jabalpur Aparently it became a Corporation later. The Committee was superseded in Charge of the Committee Jabalpur as also Secretary of the Municipal Committee had signed the lease on behalf of that Committee. In the decision of the Madhya Pradesh High Court in Dagdulal 's(1) case the view had been expressed that so long as Municipal Committee was not reconstituted the ownership of the property stood transferred by operation of law to the State Government and therefore the Administrator had no power whatsoever to sell the property which had vested in the Government. The Additional District Judge had observed that the lease deed had been executed in pursuance of a resolution which had already been passed by the Municipal Committee. The High Court, however, found on the evidence produced before the Additional District Judge that the final resolution passed by the Municipal Committee was only for the grunt of a license and not a lease to the appellant. The deed of lease, therefore, was, held to be ineffective for conveying any lease hold interest to it. But still the High Court held that the tenancy was to last for a period of thirty years. We are wholly unable to comprehend how any lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause which has already been mentioned. If the officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void. It is true that by acceptance of the rent from the appellant the relationship of landlord and tenant came into existence between the parties but Mr. Chagla for the appellant has not been able to show how a lease for a period of 30 years together with a renewal clause could be held to have been created or to have come into existence. It may be mentioned that we are not concerned with the period of 30 years which has already been taken into consideration by the High Court because no appeal has beep filed on that point by the Corporation. The only matter which requires determination is whether the High Court, while deciding the question of apportionment, should have given due affect to the renewal clause. In our opinion the High Court could riot have done so. If the so called deed of lease dated August 31, 1940 was wholly ineffective and void for the purpose of demising the land for a period of 30 years one could only look at the provisions of the Transfer of Property Act for determining the term for which the tenancy came into existence. Under section 106 of that Act the ,tenancy, in the present case, could be only from month to month because the immovable property had not been leased out (1) 498 for agricultural or manufacturing purpose in which case the lease would have been from year to year. We are therefore unable to accede to the contention that the renewal clause in the lease deed dated August 31, 1940 was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation. The next question relating to quantum can be disposed of shortly. The sole criticism of Mr. Chagla is that the potential value of the plot in question was not taken into consideration. It is true, as pointed out in Raja Vyrigherla Marayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam(1) that where the land to be valued possesses some unusual or unique features as regards its position or its potentialities the court determining the market value will have to ascertain as best as it can from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities. It has been urged that Plot No. 670 had a special situation or position in view of its size, locality, nearness to business centre and the Madan Mahal Station. But the value which was fixed by the Additional District Judge and the High Court was fixed by reference to sales of plots of comparable nature. The following portion of the judgment of the High Court shows how the matter was dealt with "We may observe that the two witnesses relied upon by the appellants purchased small plots at the rate of Re. 1/ per sq. As the map of the Wright Town Madan Mahal Extension area produced by the Corporation before us shows, these plots are in a fully developed lay out having roads and drains round about. We had asked the Corporation to calculate how much area out of the acquired sites would be required to be left open for roads and drains and they have calculated that about 70,000 sq. ft. would have to be left open for this pur pose. Obviously, therefore, it is only the remaining plot which would have value as building sites. Besides leaving so much area open, costs will have to be incurred in developing the roads, and drains for which the Corporation has estimated the cost to be Rs. 8,500/ . Considering all these factors and also calculating the built up area in the lay outs surroundings the acquired land, we find that it is only eighty per cent of the land which can be sold as building site. On these calculations if the average price of the plots sold in the locality is taken to be /12/ per sq. the (1)66 I.A. 104. 499 overall price of the acquired land without roads and drains would work out to a little less than / 9/ per sq. To put the matter, in a different way, the value of / 10/ per sq. found by the Additional Judge would work out to a little over /12/ per sq. ft., if only the area which could be built upon is considered saleable as building site. We,therefore, find that the price at /10/per sq. allowed by the Additional District judge, is not unreasonable; if anything it errs on the generous side". We have no manner of doubt that the High Court had taken all the factors into consideration while assessing the value. In the result the appeals fail and are dismissed. There will be no order as to costs. Appeals dismissed.	The Municipal Corporation of Jabalpur purporated to grant a leave of certain land to the appellant Sabha. According to the document the period of lease was 30 years. The appellant was entitled on the expiry of the lease to, have the same renewed on such terms and conditions as might be agreed between the parties, The appellant made a college hostel on the aforesaid land and had also used the attached ground as playground for students. A portion of the said land was sought to be acquired by the State Government under the Land Acquisition Act, 1894 for constructing the Home Science College. The Collector of Jabbulpur by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and assessed the compensation at As. /8/ per sq. Apportionment was made between the appellant and the Corporation on the footing that the appellant was not merely a tenant at will as contended by the Corporation but was a lessee for the terms mentioned in lease. The appellant and the Corporation made applications for reference under section 18(1) of the Act. The Additional District Judge held that the price should be As. /10/ per. sq ft. and that the appellant and ' the Municipal Corporation were entitled to equal compensation. The Corporation and the appellant filed appeals to the High Court. The decision of the Addl. District Judge fixing the price of the land As. /10/ per sq. ft. was affirmed. As regards the dispute regarding apportionment the High Court held that the lease deed having been exempted by the Administrator during the time when the Corporation stood superseded was ineffective to convey the leasehold interest to the appellant. However, the appellant was paying the rent which had been accepted for a long time by the Corporation. there was thus a tenancy by necessary implication. The High Court further held that the lease was to continue for the period of 30 years mentioned in the deed but there was no valid contract for renewal of least because the clause relating to that was vague and uncertain. The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962.In appeal before the Court the quest ions relating to quantum of compensation and the apportionment between the appellant and the Corporationfell for consideration. HELD : (1) No lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause. If th officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void. It is true that by the acceptance of rent from the appellant the relationship of landlord and tennant came into xistence. But that did not show that a lease deed for a period of 30 years with a renewal clause had come into existence. [497E] Since the lease deed was ineffective the lease could be under the provisions of section 106 of the 'transfer of 'Pro@y Act, only from. mouth 494 to month because the immovable property had not been leased out for agricultural or manufacturing purpose in which case it would have been from year 'Lo year. Therefore the :contention that the renewal clause was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation could not be accepted. (The question whether the High Court was right in holding that the period of lease was 30 years was not gone into because the Corporation had filed no appeal against that portion of the decision. [497H] Dagdulal vs Municipal Committee, Burhar, (19 '60) M.P.L.J. 627 and H. V. Ranan vs G. N. Gopat & Ors. A. I. R. 1961 Mys. 29, referred to. (2) The value which was fixed by the Addl. District Judge and the High Court was fixed by reference to sales of plots of comparable nature. There was no doubt that the High Court had taken all the factors into consideration while as essing the value and there was no reason to interfere in this regard. [499A C] Raja Vyigheria Narayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam, 66 I.A. 104, referred to.
ivil Appeal No. 4460 Of 1988. From the Order dated 15.4. 1988 of the Customs Excise and Gold (Control) Appellate Tribunal New Delhi in Appeal No. E/Appeal No. 2225 of 1986 A. 3 V. Sreedharan, V.J. Francis and N.M. Popli for the Appel lant. Ashok H. Desai, Solicitor General, Dalip Tandon and P. Parmeshwaran for the Respondent. The Judgment of the Court was delivered by FATHIMA BEEVI, J. This is an appeal under section 35L of the . The appeal is di rected against the order dated 15.4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi. The appellant is the manufacturer of Hacksaw blades and Bandsaw Blades failing under Tariff Item No. 51 A(iv) of the Central Excise Tariff. The appellant filed a classification list as per Rule 173B of the Central Excise Rules 1944 on 26.3.1985 in respect of their products furnishing the tariff rate of 15% Ad valorem by mistake instead of furnishing the effec tive rates of duty as per Notification No.85/85 CE dated 17.3.1985. The aggregate value of the clearance in the preceding year i.e. 1984 85 did not exceed Rs.75 lakhs. In the case of first clearance upto an aggregate value not exceeding Rs.7.5 lakhs, the effective rates of duty is nil and in the case of next clearance of Rs.7.5 lakhs, the duty is 3.75% Ad valorem. The Assistant Collector of Central Excise, Hyderabad, approved the Tariff rate 15% Ad valorem on 3.6.1985 instead of the above effective rates as the appellant did not claim the exemption as per Notification No.85/85 CE dated 17.3.1985 due to ignorance. A revised classification list with the effective rates in respect of the products with retrospective effect from 26.3.1985 was filed on 31.10.1985. The revised classification list was approved. The appellant claimed that they had paid excess Rs.2,55,172.55 from 1.4.1985 to 31.8.1985 as excise duty. They made an application for refund as per rule under sec tion 11B of the on 30.10.1985. The Assistant Collector of Central Excise by his order dated 13.12.1985 sanctioned the refund claim only partly. For the period from 1.4.1985 to 27.4.1985, the refund claim was rejected on the ground that the same was time barred. The Assistant Collector held that the refund claim for the period 1.4.1985 to 27.4.1985 was time barred for the reason that under section 11B, the 'relevant date ' for preferring the claim for a case such as that of the appellant was the date of payment of duty and, according to him, the duty had been paid by adjustment in the personal ledger account as and when goods were removed. The plea of the appellant is that mere debiting in the personal ledger account should not be taken as the starting point for 4 limitation and the relevant date should be the date on which RT 12 Returns which are filed on a monthly basis are as sessed. The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise (Appeals). The further appeal to the Tribunal was also unsuccessful. The question that arises for decision in the appeal is as to the starting point of limitation for filing an appli cation under section 11B of the . Section 11B so far as it is material reads as under: "11B. Claim for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. Provided that the limitation of six months shall not apply where any duty has been paid under protest. Explanation For the purposes of this section (B) "relevant date" means, (a) to (d) . . . . . . . . (e) in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (f) in any other case, the date of payment of duty. " The appellant 's contention before the authorities was that the date of assessment would be the date of payment of duty within the meaning of clause (f) above. We agree with the learned Solicitor General that this argument is not tenable. Where an assessee maintains a personal ledger account, duty is paid by way of debit therein and goes to reduce the amount of deposit paid by the assessee. It is 5 not a mere adjustment entry; it is effective payment. Before us, however, learned counsel for the assessee has raised an alternative contention. According to the appellant it is clause (e) which is applicable in the case whereas the contention of the respondent is that clause (f) is attract ed. To understand this argument, it is necessary to refer to 'Self removal ' procedure under which the appellant cleared the goods. Chapter VII A of the Rules relates to removal of excise goods on determination of duty by producers, manufacturers of private warehouse licensees. Under Rule 173B, every assessee shall file with the Proper Officer for approval a list in prescribed form showing full description of all excisable goods or products manufactured, the rate of duty leviable on such goods and such other particulars as the Collector may direct. The Proper Officer shall, after such enquiry as he deems fit, approve the list with such modifi cations as are considered necessary and return one copy of the approved list to the assessee who shall unless otherwise directed by the Proper Officer determine the duty payable on the goods intended to be removed in accordance with such list. All clearance shall be made only after the approval of the list by the Proper Officer. Sub rule (2 A) of Rule 173B provides as under: "(2 A) All clearances shall, subject to the provisions of rule 173CC, be made only after the approval of the list by the proper officer. If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall, either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under rule 9B for provisional assess ment of the goods. " Where the assessee disputes rate of duty approved by the Proper Officer in respect of goods, he may have to give an intimation to that effect to such officer and to pay duty under protest at the rate approved by such officer. When the dispute about the rate of duty has been finalised or for any other reason affecting rates of duty, a modification of the rate or rates of duty is necessitated, the Proper Officer shall make such modification and inform the assessee accord ingly. Under Rule 173C, the assessee shall file with the Proper Officer a price list in prescribed form. Prior ap proval of the price list by the 6 Proper Officer is necessary in the specified cases. Here also, sub rule (5) of rule 173C provides: "(5) Subject to the provisions of rule 173CC, an assessee specified in sub rule (2) shall not clear any goods from a factory, warehouse or other approved place of storage unless the price list has been approved by the proper officer. In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other rea sons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such asses see to avail himself of the procedure prescribed under rule 9B for provisional assessment of the goods." Under Rule 173CC, assessee may remove goods in certain cases pending approval by the Proper Officer of the classi fication or price list. Rule 173F provides that where the assessee has complied with the provisions of Rules 173B, 173D, and where applicable 173C, 173CC, he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as other wise expressly provided, remove such goods unless he has paid the duty as determined. Under Rule 173G, every assessee shall keep an account current with the Collector. This rule lays down the procedure which is to be followed by the assessee for payment of duty. According to sub rule (3) of Rule 173G, within five days after the close of each month every assessee shall file with the Proper Officer a monthly return in the prescribed form showing the quantity of the excisable goods manufactured, duty paid on such quantity and other particulars. The Proper Officer makes an assessment as provided under Rule 1731 on the basis of the information contained in the return and after such further enquiry as he may consider necessary assess the duty due on the goods removed and the assessment is completed. The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed and where the duty so assessed is more than the duty determined and paid, the assessee shall pay the deficiency by making a debit in the current account within 10 days of the receipt of copy of the return and where such duty is less, the assessee shall take credit in the account current for the excess. This is the scheme for the payment of duty for clearance of goods by the manufacturers. This procedure is known as self removal procedure. There will be no time bar for refund if the duty is paid under 7 protest. The period of 6 months is prescribed in other cases. As we have already seen, section 1 1B says that the period of 6 months "in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof". In this case, the classification list filed by the appellant for the period 1.4.1985 to 27.4.1985 was not approved till 3.6.1985. From the provisions of Rules 173B, 173C and 173CC, which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer. However, if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure pre scribed under Rule 9B for provisional assessment of the goods. In the present case between 1st April, 1975 when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. This is the procedure prescribed under Rule 9B except for the circum stance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearances of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment. In such a situation clause (e) of para (B) of the Explanation under section 11B will be attracted. In this case the RT 12 Returns for the month of April, 1985 was filed on 8.5.1985 and the same was assessed on 29.10.1985. It is, therefore, only from the date of this assessment that time bar in section 11B will operate. In the present case the refund application had been filed on the 30th of October, 1985. It cannot, therefore, said to be time barred. We, therefore, accept this contention of the appellant. The appeal has therefore to be allowed holding the appellant is entitled to the full amount and there is no bar of limi tation as found by the Tribunal. We, therefore, allow the appeal. In the facts and circumstances of the case there will be no order as to costs. T.N.A. Appeal allowed.	The appellant was manufacturing Hacksaw blades and Bandsaw falling under Tariff Item No. 51 A(iv) of the Cen tral Excise Tariff. On 26.3.1985 they filed a classification list as per Rule 173 B of the Central Excise Rules, 1944 in respect of their products furnishing the tariff rate of 15% Ad valorem by mistake instead of furnishing the effective rates of duty as per Notification No.85/85 CE dated 17.3.1985. The Assistant Collector of Central Excise ap proved the classification list on 3.6.1985. On 31.10.1985 the appellant filed a revised classification list with the effective rates of its products with retrospective effect from 26.3.1985 which was also approved by the Assistant Collector of Central Excise. On 30.10.1985 the appellant made an application under section 11B of the for refund of excise duty claiming that they had paid excess excise duty from 1.4.1985 to 31.8.1985. By its order dated 13.12.1985 the Assistant Collector of Central Excise allowed the claim only partly but rejected the claim for the period from 1.4.1985 to 27.4.1985 on the ground that the claim was barred under section 11B of the Act because the 'relevant date ' for preferring the claim for the appellant was the date of payment of duty and the duty had been paid by adjustment in the personal ledger account as and when goods were removed; The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise (Appeals). Appellant 's further appeal to the Customs Excise and Gold (Control) Appellate Tribunal was also unsuccessful. In appeal to this Court under section 35L of the it was contended on behalf of the appellant (i) that mere debiting in the personal ledger account should not be taken as the 2 starting point for limitation and the, relevant date should be the date on which ART 12 Returns, which were filed on a monthly basis, were assessed: and (ii) that clause (e) of Explanation to Section 11 (B) was applicable to the case. Allowing the appeal, this Court, HELD: 1. The scheme for payment of duty of goods under which the appellant was clearing his goods is known as 'self removal ' procedure. There will be no time bar for refund if the duty is paid under protest. The period of 6 months is prescribed in other cases. [6H; 7A] 2. In the instant case, the classification list filed by the appellant for the period 1.4.1985 to 27.4.1985 was not approved till 3.6.85. From provisions of Rules 173B, 173C and 173CC of the Central Excise Rules, 1944 it is clear that clearances can be made only after the approval of the list by the particular officer. However, if there is likely to be delay in accordance with the approval the officer can allow the assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of goods. Between 1st April, 1975 when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment. In such a situation clause (e) of para (B) of the Explanation under section 11 B will be attracted. The RT 12 Return for the month of April, 1985 was filed on 8.5.1985 and the same was assessed on 29.10.1985. It is, therefore, only from the date of this assessment that time bar in section 11 B will operate. The refund application having been filed on 30th October, 1985 cannot, therefore, said to be time barred. [7B D; E F]

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