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<s>[INST] Summarize the judgementAppeal No. 325 of 1962. Appeal from the judgment and decree dated August 4, 1959 of the Andhra Pradesh High Court in Appeal Suit No. 489 of 1954. K.Bhimsankaram and R. Ganapathy Iyer, for the appellants. P.Ram Reddy, T. V. R. Tatachari and B. R. G. K. Achar, for respondent No. 1. January 23, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal against the judgment of the High Court of Andhra Pradesh by which it reduced the amount of compensation awarded to the appellants by the Subordinate Judge, Vijayawada in respect of certain lands belonging to them which were acquired by the State. The lands in question are survey Nos. 281/2, 339/1 to 8 and 338/1 to 3 which are situate at a short distance from the town of Vijayawada and lie alongside the Vijayawada Eluru Road. The Land Acquisition Officer had fixed Rs. 3,500 per acre for the first two of these survey Nos. and Rs. 4.000 per acre for the third survey number. The learned Subordinate Judge granted a uniform rate of Rs. 10,000 per acre for the lands comprised in all the survey numbers. There were some disputes with regard to 296 the entitlement to the compensation for survey No. 339/1 to 3 and the Land Acquisition Officer, therefore, made a reference to the Court for the apportionment of the com pensation amount among the various claimants. Six of the appellants did not accept the award of the Land Acquisition Officer and made applications in writing to him within the time allowed by law for referring the matter for deter mination of the court. It is common ground that no refer ence was made by the Land Acquisition Officer in pursuance of these applications. When the matter came up before the Court it proceeded on the footing that the reference made to it by the Land Acquisition Officer was not merely limited to the apportionment of compensation but was also with respect to the amount of compensation. No objection was, however, raised on behalf of the State that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter. When the matter went up before the High Court by way of an appeal from the judgment of the Subordinate Judge, the Government pleader raised the question that in the absence of a reference on the question of quantum of compensation by the Land Acquisition Officer, the Court had no jurisdiction to consider that matter at all. The High Court, though it ultimately reversed the finding of the court as to the amount of compensation, unfortunately allowed the plea to be raised before it but ultimately upon a consideration of certain decisions, negatived it. We say unfortunately because this is not 'a kind of plea which the State ought at all to have taken. Quite clearly applications objecting to the rates at which compensation was allowed were taken in time by persons interested in the lands which were under acquisition and it was no fault of theirs that a reference was not made by the Land Acquisition officer. Indeed, whenever applications are made under section 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications were barred by time. Where an officer of the State is remiss in the performance of his duties in fairness the State ought not to take advantage of this fact. We are further of the 297 opinion that the High Court, after the plea had been raised, would have been well advised to adjourn the matter for enabling the appellants before us, who were respondents in the High Court, to take appropriate steps for compelling the Land Acquisition Officer to make a reference. All the same since the point was permitted to be urged before it by the High Court and has been raised before us on behalf of the State it is necessary to decide it. On behalf of the appellants it was contended before the High Court that by reason of the failure of the State to raise the plea before the Subordinate Judge as to the absence of a refer ence the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived. In our opinion the view of the High Court is not correct. Section 12(1) of the Land Acquisition Act provides that after an award is filed in the Collector 's office it shall, except as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area and value of the land and the apportionment of the compensation among the persons interested. The only manner in which the finality of the award can be called into question is by resort to the provisions of section 18 of the Land Acquisition Act, sub section (1) of which reads thus: "Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. " The proviso to sub section (2) prescribes the time within which an application under sub section (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that 298 reference. Thus the matter goes to the court only upon a reference made by the Collector. It is only after such a reference is made that the court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the court to consideration of the contentions of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under section 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee & Ors. vs Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor(1) wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of lack of inherent jurisdiction and the failure of the Slate to object to the proceedings before the court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence. In Alderson vs Palliser & Anr. (2) the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings. it cannot be waived. In Seth Badri Prasad & Ors. vs Seth Nagarmal and Ors. ( 3) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in (1) 6 M. 1. A. 134 at 155. (2) (1901)2 K.B.833. (3) [1959] supp.(1) S.C.R. 769. 299 the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu vs Secretary of State(1). In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisi tion Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the Court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer. Upon this short ground the appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the High Court. For determining the amount of compensation seven sale deeds were filed, Exs. Al to A4, on behalf of the State and B1 to B3 on behalf of the appellants. A synopsis of the sale deeds has been made by the High Court in its judgment and we can do no better than to reproduce it: Sl. Exhi Date Extent of Amount Rate per Proximity of No. bit land acre site acquired Acs. Rs. Rs. 1. A 1 15 2 46 0 40 1/2 1,750 4,240 Opposite to thesuit land and abutting the main road. A 2 25 8 46 0 65 1/2 2,500 3,800 Some distance away from the site of the acquired land towards Eluru. A.I. R. 1939 P. C. 39; 60 M. L. J. 399. 300 3. A 3 9 10 46 1 004,5OO 4,500 Very near the acqu ired land the same vendee. 4.A 4 9 10 46 1 004,500 4,500 Partof the same site, and the vendee. B 1 14 10 46 0 707,000 10,0005 furlongs away from the suit site and nearer Bezwada. B 2 14 2 47 1 09 just over 5 furlongs away to 12,000 12,000 wards Bezwada. 7.B 3 24 1 46 0 36 1,850 5,000 Itis a part and parcel of the same land that is sought to be acqui red. Out of these sale deeds Exs. Al and A2 were rejected by the High Court, Al on the ground that it is several months earlier than the date of notification under section 4 of the Act and exhibit A2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land. The High Court similarly rejected exhibit B2 2 on the ground that the transaction was entered into four months after the publi cation of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs from the land acquired. It has apparently rejected also exhibit B3, though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is only 36 cents in area. It has accepted Exs. A3 and A4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands. In so far as exhibit B1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946 the cir cumstances that it was actually registered on February 13, 1947 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante dated so as to make it appear to be earlier in point of time than the notification. In our opinion what the High Court has said about these three exhibits, B1, B2 and B3, seems to have consi 301 derable force. At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way. If these documents go away, as also Exs. Al and A2, we are left with only Exs. A3 and A4. Some argument was advanced before us to the effect that the lands comprised in the transactions repre sented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regards access, it is sufficient to say that they are parts of the same field which abut on the road, though the portions sold do not themselves abut on the road. Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road. In the circumstances we hold that the appeal is without substance. Accordingly we dismiss it with costs. Appeal dismissed. [/INST]On a dispute with regard to the entitlement to the compensation awarded to the appellants in respect of certain land acquired by the State, the Land Acquisition Officer made a reference to the court for the apportionment of the compensation amount among the various claimants. Six of the appellants did not accept the award of the Land Acquisition Officer and made applications to him for referring the matter, for determination by the court. No reference was made by him in pursuance of these applications. When the matter came up before the Court it proceeded on the footing that the reference made to it was not merely limited to the apportionment of compensation but also with respect to the amount of compensation. No objection was raised by the State before the Subordinate Judge that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter. When the matter went up in appeal before the High Court, the Government Pleader raised the question that in the absence of a reference on the question of quantum of compensation, the Court had no jurisdiction to consider that matter at all. The High Court, allowed this plea to be raised before it but ultimately negatived it. and it also modified the finding of the Court as to the amount of compensation. The appellants contended before the High Court that by reason of thefailure of the State to raise the plea before the Subordinate Judge asto the absence of a reference the State must be deemed to have waivedthe point. The High Court accepted this 'argument upon the view thatthis was not a case of inherent lack of jurisdiction and that the defectin the procedure was such as could be waived. Held:(i) On consideration of the relevant provisions contained in P 18 of the land Acquisition Act, the jurisdiction of the court arises solely on the basis of a reference made to it. Wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. Therefore, it was a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the Court on the ground of an absence of 295 reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquisition. (ii)The court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer. Nusserwanjee Pestonjee and others vs Meer Mynoodeen Khan Wullud Meer Subroodeen Khan Bahadur, 6 M.L.A. 134, Alderson vs Paliser and another, and Seth Badri Prasad and others vs Seth Nagarmal and others,[1959] Supp. (1) S.C.R. 769, relied on. Venkata Krishnayya Garu vs Secretary of State, A.I.R. 1939 (P.C. distinguished. </s>
<s>[INST] Summarize the judgementCivil Appeal Nos. 1831 1833 of 1972. Appeals by Special Leave from the Judgment and Order dated 22 9 1971 of the Allahabad High Court in I.T. References Nos. 775/70 and 342/64. section C. Manchanda and Mrs. Urmila Kapoor for the Appellant. V. section Desai and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by TULZAPURKAR, J. The assessee, Smt. Indermani Jatia, widow of Seth Ganga Sagar Jatia of Khurja, carried on money lending and other businesses and derived income from various sources such as investment in shares, properties and businesses. However, the capital, assets and income in respect of different sources of income were incorporated in one common set of books. With a view to commemorate the memory of her deceased husband, on October 21, 1955 she promised a donation of Rs. 10 lacs for setting up an Engineering College at Khurja to be named "Seth Ganga Sagar Jatia Electrical Engineering Institute Khurja". She also promised a further sum of Rs. 1.5 lacs for the construction of a Female Hospital at Khurja but this subsequent donation of Rs. 1.5 lacs was to include the total interest that was to accrue on the sum of Rs. 10 lacs earlier donated to the college. In pursuance of the promise made on October 21, 1955 she actually made over a sum of Rs. 5.5 lacs by depositing the same in a joint account opened in the names of the District Magistrate, Bulandshahr and Smt. Indermani Jatia for the college while the balance of Rs. 4.5 lacs was left with the assessee and was treated as a debt to the Institution and interest thereon at 6% per annum with effect from October 21, 1955 was to be finally deposited in the Technical Institute account. These facts become clear from a certificate dated October 17, 1958, issued by the District Magistrate, Bulandshahr which was produced before the Appellate Tribunal. The aforesaid transaction came to be recorded in the books of the assessee as follows: At the beginning of the accounting year (Samvat year 2012 13 accounting period 13 11 1955 to 1 11 1956) relevant to the assessment year 1957 58 the capital account of the assessee showed a net credit balance of Rs. 23,80,753. Initially on November 21, 1955, a sum of Rs. 10 lacs was debited to her capital account and corresponding credit was given to the account of the said Institute. At the close of the said accounting year (i.e. on 749 1 11 1956) after debiting the aforesaid sum of Rs. 10 lacs the capital account showed a net credit balance of Rs. 15,06,891. Thereafter, during the same year of account the assessee actually paid only a sum of Rs. 5.5 lacs to the institution on January 7, 1956 from the overdraft account which she had with the Central Bank of India Ltd., Aligarh. At the beginning of the accounting year the amount outstanding in the overdraft was Rs. 2,76,965; further overdrafts were raised during the accounting year with the result that at the end of the year the liability of the assessee to the bank was Rs. 9,55,660; among the further debits to this account during the year was said sum of Rs. 5.5 lacs paid to the Engineering College on January 7, 1956. The balance of the promised donation, namely, Rs. 4.5 lacs was, as stated earlier, treated as a debt due by her to the Institute and accordingly she was debited with interest thereon at 6% per annum with effect from October 21, 1955. In the assessment proceedings for the assessment years 1957 58, 1958 59 and 1959 60 the assessee claimed the deduction of three sums Rs. 20,107/ , Rs. 25,470/ and Rs. 18,445/ being the respective items of interest paid by her to the bank on Rs. 5.5 lacs during the Samvat years relevant to the said assessment years. The assessee contended that she had preferred to draw on the overdraft account of the bank for the purpose of paying the institution in order to save her income earning assets, namely, the shares, which she would have otherwise been required to dispose of and, therefore, the interest paid by her should be allowed. As regards interest on the remaining sum of Rs. 4.5 lacs (which was left as a loan with the assessee) that was debited to her account, the assessee urged that she was also entitled to claim the same as a permissible deduction; the claim in respect thereof, however, was made for the assessment years 1958 59 and 1959 60. As regards the three sums paid by way of interest on Rs. 5.5 lacs to the bank, the taxing authorities took the view that said claim for deduction was not admissible either against business income under section 10(2) or against income from investments under section 12(2) of the Indian Income Tax Act, 1922. So also the claim for deduction of interest credited to the college account on Rs. 4.5 lacs was disallowed. The assessee preferred appeals to the Appellate Tribunal. It was contended on behalf of the assessee that she had promised a donation of Rs. 10 lacs to the Engineering College on October 21, 1955, that the obligation to pay the said amount arose on November 21, 1955 when the amount was debited to her capital account and the corresponding credit was given to the account of the institution, and that out of this total donation a sum of Rs.5.5 lacs was actually deposited in the joint account of the 750 assessee and the District Magistrate, Bulandshahr on January 7, 1956 for which the overdraft with the Central Bank was operated and hence the interest was deductible as business expenditure. As regards interest on Rs. 4.5 lacs that was debited to her account and credited to the Institute 's account it was urged that this balance amount was kept in trust for the institution and hence the accruing interest thereon which was debited to her account should be allowed as a deduction. In support of these submissions a certificate issued by the District Magistrate, Bulandshahr dated October 17, 1958 was produced before the Tribunal. The Appellate Tribunal, however, confirmed the disallowance of interest claimed in respect of the sum of Rs. 5.5 lacs holding that the said sum of Rs. 5.5 lacs over drawn from the bank was not borrowed for business purposes but was borrowed for making over the donation and, therefore, the claim could not be sustained under section 10(2) of the Income Tax Act, 1922. As regards the interest accruing on the sum of Rs. 4.5 lacs in favour of the Engineering College, the Appellate Tribunal held that no donation of that sum had been made by the assessee, that it was at best a promise by the assessee to the District Magistrate to pay that amount for purpose of charity and the mere entries in the assessee 's own account book crediting the trust, which had yet to come into existence, would not amount to a gift or charity for a trust and as such the interest credited to the account of the Engineering College was also disallowed. Meanwhile, Smt. Indermani Jatia died and her legal heir Madhav Prasad Jatia was substituted in the proceedings. On the question whether the interest on Rs. 5.5 lacs was deductible for the assessment years 1957 58, 1958 59 and 1959 60, the Tribunal declined to make any reference to the High Court, whereupon the assessee applied to the High Court under section 66(2) and upon the application being allowed, the Tribunal referred the question whether interest on the overdraft of Rs. 5.5 lacs the sums of Rs. 20,107 (for the assessment year 1957 58), Rs. 25,470 (for the assessment year 1958 59) and Rs. 18,445 (for the assessment year 1959 60) paid to the Central Bank was allowable as a deduction under section 10(2)(iii) or 10(2) (xv) of the Indian Income Tax Act, 1922 (being Income Tax Reference No. 775 of 1970). As regards the deduction of interest on Rs. 4.5 lacs claimed for the assessment years 1958 59 and 1959 60, the Tribunal itself made a reference to the High Court under section 66(1) and referred for the opinion of the High Court the question whether in the facts and circumstances of the case the interest credited by the assessee to the account of Ganga Sagar Jatia Engineering College on the sum of Rs. 4.5 lacs 751 and accretion thereto was an admissible deduction for each of the said two years (being Income Tax Reference No. 342 of 1964). The High Court heard and disposed of both the references by a common judgment dated September 22, 1971. In the Reference No. 775 of 1970, the case of the assessee was that there was an obligation to pay Rs. 10 lacs to the Engineering College, that for the time being the assessee decided to pay Rs. 5.5 lacs, that it was open to the assessee to pay the amount from her business assets or to preserve the business assets for the purposes of earning income and instead borrow the amount from the bank and that she had accordingly borrowed the amount from the bank and, therefore, since the borrowing was made to preserve the business assets, the interest thereon was deductible under section 10(2) (iii) or 10(2) (xv) of the Act. The High Court observed that there was nothing to show that the assessee would necessarily have had to employ the business assets for making payment of that amount, and secondly, it was only where money is borrowed for the purposes of business that interest paid thereon becomes admissible as a deduction, and since, in the instant case, the sum of Rs. 4.4 lacs was admittedly borrowed from the Bank for making payment to the Engineering College it was not a payment directed to the business purposes. According to the High Court the mere circumstance that otherwise the assessee would have to resort to the liquidation of her income yielding assets would not stamp the interest paid on such borrowings with the character of business expenditure. After referring to the decisions one of the Bombay High Court in Bai Bhuriben Lallubhai vs Commissioner of Income Tax, Bombay North Cutch and Saurashtra and the other of the Calcutta High Court in Mannalal Ratanlal vs Commissioner of Income Tax Calcutta, the High Court rejected the contention of the assessee and held that interest paid on Rs. 5.5 lacs in any of the years was not deductible either under section 10(2) (iii) or 10(2) (xv) of the Act and answered the questions against the assessee. As regards the question referred to it in Income Tax Reference No. 342 of 1964, the High Court took the view that there was nothing on record before it to establish that the assessee had actually donated the entire amount of Rs. 10 lacs to the Engineering College, that the certificate issued by the District Magistrate, Bulandshahr on October 17, 1958 merely showed that a balance of Rs. 4.5 lacs was left as a loan with the assessee and that the interest accruing thereon from the date of the initial donation "was to be finally deposited in the account of the Technical Institute" and that though the assessee had made 752 entries in her account books crediting the trust with the interest on the amount, the trust had not yet come into existence and as such the amount credited represented her own funds and lay entirely within her power of disposition. With such material on record, the High Court confirmed the Tribunal 's view that Rs. 4.5 lacs had not been donated by the assessee on October 21, 1955 in favour of the Engineering College and, therefore, the interest credited by the assessee in favour of the Institute on the said sum and the accretion thereto continued to belong to the assessee and as such she was not entitled to the deduction claimed by her and accordingly the question was also answered against the assessee. On obtaining special leave the original assessee represented by her legal heir has preferred Civil Appeals Nos. 1831 1833 of 1972 to this Court. Mr. Manchanda appearing for the appellant has raised two or three contentions in support of the appeals. In the first place he has contended that though the deduction claimed by the assessee in this case was on the basis of business expenditure falling under either section 10(2)(iii) or 10(2)(xv), the taxing authorities, the Tribunal and the High Court have confused the issue by considering the claim for deduction under section 12(2) of the Act. According to him the scope for allowing the deduction under section 10(2)(iii) or 10(2)(xv) was much wider than under section 12(2) of the Act. He urged that by applying the ratio of the decision in Bhuriben 's case (supra), which was admittedly under section 12(2) of the Act, to the facts of the instant case the lower authorities as well as the High Court had adopted a wrong approach which led to the inference that the deduction claimed by the assessee was not admissible. Secondly, he urged that considering the case under section 10(2) (iii) or 10(2) (xv) the question was when could the obligation to pay Rs. 10 lacs to the Engineering College be said to have been incurred by the assessee and according to him such obligation arose as soon as the donation or gift was complete and in that behalf placing reliance upon the certificate dated October 17, 1958, issued by the District Magistrate, Bulandshahr, as well as the entries made by the assessee in her books, he urged that the gift was complete no sooner the capital account of the assessee was debited and the college account was credited with the said sum of Rs. 10 lacs on November 21, 1955, especially when her capital account had a credit balance of Rs. 15,06,891 after giving the debit of Rs. 10 lacs; the gift in the circumstances would, according to him, be complete then as per decided cases such as Gopal Raj Swarup vs 753 Commissioner of Wealth Tax, Lucknow Naunihal Thakar Dass vs Commissioner of Income Tax, Punjab. He further urged that though the sum of Rs. 5.5 lacs was actually paid by the assessee by borrowing the amount on January 7, 1956 from the overdraft account with the Central Bank of India Ltd. the said overdraft was a running overdraft account opened by her for business purposes and if from such overdraft account any borrowing was made interest thereon would be deductible under section 10(2)(iii) or 10(2) (xv) as being expenditure incurred for the purposes of the business. According to him, once a borrowing was made from an overdraft account meant for business purposes, the ultimate utilization of that borrowing will not affect the question of deductibility of interest paid on such borrowing under section 10(2) (iii) or 10(2) (xv) and in that behalf he placed reliance upon two decisions of the Bombay High Court, namely, Commissioner of Income Tax, Bombay City II vs Bombay Samachar Ltd., Bombay and Commissioner of Income Tax, Bombay City IV vs Kishinchand Chellaram. He, therefore, urged that the High Court had erred in sustaining the disallowance in respect of interest paid by the assessee on Rs. 5.5 lacs to the Bank in the three years in question as also the disallowance in regard to the interest credited by the assessee to the account of the Engineering College in the two years in question on the sum of Rs. 4.5 lacs and the accretion thereto. On the other hand, Mr. Desai for the Revenue, disputed that there was any confusion of the issue or that any wrong approach had been adopted by the lower authorities or by the High Court as suggested by learned counsel for the appellant. He pointed out that initially the assessee had specifically raised the plea that the borrowing of Rs. 5.5 lacs had been resorted to with a view to save income yielding investments, namely, the shares and, therefore, both the alternative cases as to whether the interest paid on Rs. 5.5 lacs was an admissible deduction either against business income under section 10(2) (iii) or income from investments under section 12(2) were considered by the taxing authorities and the taxing authorities held that such interest was not admissible under either of the provisions. He pointed out that so far as the Tribunal and the High Court were concerned the assessee 's claim for deduction under section 10(2) (iii) or 10(2) (xv) had been specifically considered and negatived. He sought to justify the view of the Tribunal and the High Court in regard to the disallowance of interest paid by 754 the assessee on the sum of Rs. 5.5 lacs to the Bank in the three concerned assessment years as also the disallowance of interest credited by the assessee to the account of the Engineering College on the sum of Rs. 4.5 lacs and the accretion thereto; as regards the sum of Rs. 5.5 lacs he contended that the real question was not as to when the obligation to pay to the college was incurred by the assessee but whether the obligation incurred by the assessee was her personal obligation or a business obligation and whether the expenditure by way of payment of interest to the Bank was incurred for the purpose of carrying on business and as regards the sum of Rs. 4.5 lacs whether the trust in favour of the college had at all come into existence on October 21, 1955 or November 21, 1955 as contended for by the assessee and on both the questions the view of the Tribunal and the High Court was right. As regards the two Bombay decisions, namely Bombay Samachar 's case (supra) and Kishinchand Chellaram 's case (supra), he urged that the ratio of the decisions was inapplicable to the instant case. At the outset we would like to say that we do not find any substance in the contention of learned counsel for the appellant that there has been any confusion of the issue or that any wrong approach has been adopted by the taxing authorities, the Tribunal or the High Court. After going through the Tribunal 's order as well as the judgment of the High Court we are clearly of the view that the case of the assessee has been considered both by the Tribunal as well as by the High Court under section 10(2) (iii) or 10(2) (xv) and not under section 12(2). In fact, in Reference No. 775 of 1970 the questions framed by the Tribunal in terms referred to section 10(2)(iii) and 10(2) (xv) and proceeded to seek the High Court 's opinion as to whether the sums representing interest paid by the assessee to the Central Bank on the overdraft of Rs. 5.5 lacs for the concerned three years were allowable as a deduction under either of the said provisions of the Act and the High Court after considering the matter and the authorities on the point has come to the conclusion that such interest was not allowable as a deduction under either of the said provisions It is true that the High Court did refer to the decision of the Bombay High Court in Bai Bhuriben 's case (supra) but that decision was referred to only for the purpose of emphasizing one aspect which was propounded by that Court, namely, that the motive with which an assessee could be said to have made the borrowing would be irrelevant and that simply because the assessee in that case had chosen to borrow money to buy jewellery it did not follow that she had established the purpose required to be proved under section 12(2) that she borrowed the money in order to maintain or preserve the fixed deposits or helped her to earn interest. This is far from say 755 ing that the ratio of that case has been applied by the High Court to the instant case. In fact, the High Court found that there was no material to show that the assessee in the instant case would necessarily have had to employ the business assets for making payment to charity. The High Court actually considered the assessee 's case under section 10(2) (iii) and 10(2) (xv) and disallowed the claim for deduction under these provisions principally on the ground that the said borrowing of Rs. 5.5 lacs was unrelated to the business of the assessee. Proceeding to consider the claim for deduction made by the assessee under section 10(2)(iii) or 10(2)(xv), we may point out that under section 10(2) (iii) three conditions are required to be satisfied in order to enable the assessee to claim a deduction in respect of interest on borrowed capital, namely, (a) that money (capital) must have been borrowed by the assessee, (b) that it must have been borrowed for the purpose of business and (c) that the assessee must have paid interest on the said amount and claimed it as a deduction. As regards the claim for deduction in respect of expenditure under section 10(2)(xv), the assessee must also satisfy three conditions, namely, (a) it (the expenditure) must not be an allowance of the nature described in clauses (i) to (xiv), (b) it must not be in the nature of capital expenditure or personal expenses of the assessee and (c) it must have been laid out or expended wholly and exclusively for the purpose of his business. It cannot be disputed that the expression "for the purpose of business" occurring in section 10(2) (iii) as also in 10(2) (xv) is wider in scope than the expression "for the purpose of earning income profits or gains" occurring in section 12(2) of the Act and, therefore, the scope for allowing a deduction under section 10(2) (iii) or 10(2) (xv) would be much wider than the one available under section 12(2) of the Act. This Court in the case of Commissioner of Income Tax, Kerala vs Malayalam Plantations Ltd has explained that the former expression occurring in section 10(2) (iii) and 10(2)(xv), its range being wide, may take in not only the day to day running of a business but also the rationalisation of its administration and modernisation of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title, it may also comprehend payment of statutory dues and taxes imposed as a pre condition to commence or for the carrying on of a business; it may comprehend many other acts incidental to the carrying on of the business but, however wide the meaning of the expression may be, its limits are implicit in it; the purpose shall be for the purposes, of business, that is to say, the expenditure incurred shall be 756 for the carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business. So far as the claim for deduction of interest paid by the assessee on the sum of Rs.5.5 lacs to the Bank in the three concerned years is concerned, the real question that arises for determination is whether the particular borrowing of Rs. 5.5 lacs was for the purposes of business of the assessee or not? The amount of Rs. 5.5 lacs having been actually parted with by the assessee on January 7, 1956, and having been accepted by the institute the same being deposited in the joint account of the assessee and the District Magistrate, Bulandshahr for the Engineering College, the gift to that extent was undoubtedly complete with effect from the said date. The said payment was made by the assessee by drawing a cheque on the overdraft account which she had with the Central Bank of Indian Ltd., Aligarh. In regard to this overdraft account the Tribunal has noted that at the beginning of the accounting year the amount outstanding in the said over draft was Rs. 2,76,965, that further overdrafts were raised during the accounting year with the result that at the end of the year the assessee 's liability to the bank in the said account rose to Rs. 9,56,660 and that among the further debits to this account during the year was said sum of Rs. 5.5 lacs paid to the college on January 7, 1956. On a consideration of the aforesaid position of the overdraft and the other material on record, the Tribunal has recorded a clear finding of fact which has been accepted by the High Court that the said borrowing of Rs. 5.5 lacs made by the assessee from the Bank on January 7, 1956 had nothing to do with the business of the assessee but the amount was directly made over to the college in part fulfilment of the promised donation of Rs. 10 lacs with a view to commemorate the memory of her deceased husband after whom the college was to be named. In other words the borrowing was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on the business nor in her capacity as a person carrying on that business. Such expenditure can by no stretch of imagination be regarded as business expenditure. It is true that initially on November 21, 1955 the capital account of the assessee was debited and the college account was credited with the sum of Rs. 10 lacs in the books of the assessee but in our view making of these entries in the assessee 's books would not alter the character of the borrowing nor would the said borrowing be impressed with the character of business expenditure, for, admittedly, the assessee maintained only one common set of books in which were incorporated entries pertaining to her capital, assets and income from all her different sources. It is, therefore, clear to us that the interest that was paid on the sum 757 of Rs. 5.5 lacs to the bank by the assessee for the three concerned years was rightly held to be not deductible either under section 10(2)(iii) or under section 10(2) (xv) of the Act. The two Bombay decisions on which reliance was placed by the counsel for the appellant, namely, Bombay Samachar 's case (supra) and Kishinchand Chellaram 's case (supra) are clearly distinguishable and do not touch the issue raised in the instant case before us. In the former case, the assessee had during the relevant assessment years paid amounts of interest on capital which was borrowed from outsiders and had claimed deduction in respect of such interest. It was not disputed that the capital borrowed by the assessee from the outsiders was admittedly used by the assessee for the purpose of its business. The taxing authorities had taken the view that if the assessee had collected outstandings which were due to it from others it would have been able to reduce its indebtedness and save a part of the interest which it had to pay on its own borrowings, that the assessee could not be justified in allowing its outstandings to remain without charging any interest thereon while it was paying interest on the amounts borrowed by it, and that to the extent to which it would have been in a position to collect interest on the outstandings due to it from others, it could not be permitted to claim as an allowance interest paid by it to outsiders. The High Court held that such a view was clearly unsustainable and observed that it is not the requirement under section 10(2) (iii) that the assessee must further show that the borrowing of the capital was necessary for the business so that if at the time of the borrowing the assessee has sufficient amount of its own the deduction could not be allowed and the High Court further took the view that in deciding whether a claim of interest on borrowing can be allowed the fact that the assessee had ample resources its disposal and need not have borrowed, was not a relevant matter for consideration. The decision in Kishinchand Chellaram 's case (supra) was rendered in the peculiar facts which obtained in that case. The Tribunal had recorded a clear finding that since the business of the assessee was that of banking there was no borrowal as such but only acceptance of deposits by the assessee from its clients which were made by the assessee in the course of and for the purposes of its business. In those circumstances the Tribunal took the view that the aspect as to how these deposits, which were admittedly received by the assessee from the depositors in the course of its banking business, were subsequently utilized would not be material for the purpose of deciding the question whether interest paid by the assessee on these deposits should be allowed under section 10(2) (xv) of the Act and the High Court refused to interfere with that view of the Tribunal and rejected the Revenue 's application for a Reference. In the instant 758 case admittedly the borrowing of Rs. 5.5 lacs had been made by the assessee to meet her personal obligation and not the obligation of her business. The borrowing was completely unrelated to the purpose of the business and was actually used for making charity. On these facts it will be clear that the interest paid on such borrowing cannot be allowed as deduction either under section 10(2) (iii) or 10(2) (xv). Turning to the question of interest credited by the assessee during the assessment years 1958 59 and 1959 60 to the account of the Engineering College on the sum of Rs. 4.5 lacs and the accretion thereto the real question is whether the gift or donation of Rs. 4.5 lacs was complete and a trust of that amount came into existence in favour of the college as has been contended for by the assessee. The only material on which reliance has been placed by the assessee in this behalf consists of the entries made in the assessee 's books of accounts and the certificate dated October 17, 1958 issued by the District Magistrate, Bulandshahr but from this material it is difficult to draw the inference suggested by the counsel for the appellant. In our view both the Tribunal as well as the High Court were right in taking the view that the certificate dated October 17, 1958 was of no avail to the assessee inasmuch as it merely stated that the assessee had promised a donation of Rs. 10 lacs on October 21, 1955, out of which Rs. 5.5 lacs were deposited in the joint account maintained in the name of the assessee and the District Magistrate, Bulandshahr for the college and the remaining sum of Rs. 4.5 lacs was left as a loan with the assessee and interest thereon at 6% per annum was to be finally deposited in the Technical Institute account. The Tribunal and the High Court were also right in taking the view that beyond making entries in the books of account of the assessee there was no material on record to show that the assessee had actually made over a sum of Rs. 4.5 lacs to the college or that the college had accepted the said donation with the result that the amount credited to the college account in her books represented her own funds and lay entirely within her power of disposition and that being so, the interest credited by the assessee on the said sum of Rs. 4.5 lacs and the accretion thereto continued to belong to the assessee, and, therefore, she was not entitled to the deduction in respect of such interests. Counsel for the assessee attempted to contend that the obligation to make over the said sum of Rs. 4.5 lacs could be said to have become enforceable on the basis of promissory estoppel but in our view, no material has been placed on record by the assessee to show that acting on the promised donation the college authorities had actually incurred any expenditure towards construction or acted to their prejudice during the accounting period relevant to the assessment years 1958 59 and 1959 60 so as 759 to support the plea of promissory estoppel. Of course, if in any subsequent years the assessee is in a position to place any material before the taxing authorities or the Tribunal or the Court which would support the plea of promissory estoppel the position in such years may be different. It is thus obvious that if no trust in favour of the college in regard to the amount of Rs. 4.5 lacs could be said to have come into existence either on October 21, 1955 or on November 21, 1955 or on any other subsequent date during the relevant years, no deduction in respect of interest credited by the assessee to the account of the college over the said sum can be allowed. In the circumstances, in our view, the High Court rightly answered the questions referred to it against the assessee in both the references. The appeals are accordingly dismissed with costs. V.D.K. Appeals dismissed. [/INST]The appellant assessee carried on money lending and other businesses and derived income from various sources such as investment in shares, properties and business. Pursuant to her promise to donate a sum of Rs. 10 lacs for setting up an Engineering College to commemorate the memory of her late husband, she actually made over a sum of Rs. 5.5 lacs by depositing the same in a joint account opened in the name of the District Magistrate, Bulandshahr and Smt. Indermani Jatia for the College. The balance of Rs. 4.5 lacs was left with the assessee and was treated as a debt to the institution and interest thereon at 6% per annum with effect from October 21, 1955 was to be finally deposited in the technical institute account. Though in the books of accounts, on November 21, 1955, a sum of Rs. 10 lacs was debited to her capital account and corresponding credit was given to the account of the institute, the assessee actually paid the sum of Rs. 5.5 lacs to the institution on January 7, 1956 from the overdraft account which she had with the Central Bank of India, Aligarh. In the assessment proceedings for the assessment years 1957 58, 1958 59, 1959 60, the assessee claimed the deduction of these sums Rs. 20,107/ Rs. 25,470/ and Rs. 18,445/ being the respective items of interest paid by her to the bank on Rs. 5.5 lacs during the samvat years. The assessee contended that she had preferred to draw on the overdraft account of the bank for the purpose of paying the institution in order to save her income earning assets, namely, the shares, which she would have otherwise been required to dispose of and therefore, the interest paid by her should be allowed. As regards interest on the remaining sum of Rs. 4.5 lacs (which was left as a loan with the assessee) that was debited to her account, the assessee claimed that it was a permissible deduction. The taxing authorities took the view that the claim for deduction was not admissible either against business income under section 10(2) or against income from investments under section 12(2) of the Income Tax Act, 1922. The appeals preferred to the Appellate Tribunal failed. The references made to the High Court went against the assessee. Dismissing the appeals by special leave, the Court ^ HELD: 1. Under section 10(2)(iii) of Income Tax Act, 1922, three conditions are required to be satisfied in order to enable the assessee to claim a deduction in respect of interest on borrowed capital, namely, (a) that money 746 (capital) must have been borrowed by the assessee, (b) that it must have been borrowed for the purpose of business and (c) that the assessee must paid interest on the said amount and claimed it as a deduction. [755B C] 2. As regards the claim for deduction in respect of expenditure under section 10(2) (xv), the assessee must also satisfy three conditions namely (a) it (the expenditure) must not be an allowance of the nature described in clauses (i) to (xiv); (b) it must not be in the nature of capital expenditure or personal expenses of the assessee and (c) it must have been laid out or expended wholly and exclusively for the purpose of his business. [755C D] 3. The expression "for the purpose of business" occurring in s.10(2)(iii) as also in 10(2)(xv) is wider in scope than the expression "for the purpose of earning income profits or gains" occurring in section 12(2) of the Act and, therefore, the scope for allowing a deduction under section 10(2)(iii) or 10(2)(xv) would be much wider than the one available under section 12(2) of the Act. [755D E] Commissioner of Income Tax vs Malayalam Plantations Ltd., ; ; applied. 4. Neither there had been any confusion of the issue nor any wrong approach had been adopted by the taxing authorities, the Tribunal or the High Court. The case of the assessee had been considered both by the Tribunal as well as by the High Court under s.10(2) (iii) or 10(2) (xv) and not under s.12(2). In fact, in Reference No. 775 of 1970 the questions framed by the Tribunal in terms referred to s.10(2)(iii) and 10(2)(xv) and proceeded to seek the High Court 's opinion as to whether the sums representing interest paid by the assessee to the Central Bank on the overdraft of Rs. 5.5 lacs for the concerned three years were allowable as deduction under either of the said provisions of the Act and the High Court after considering the matter and the authorities on the point had come to the conclusion that such interest was not allowable as a deduction under either of the said provisions. [743D G] 5. It is true that the High Court did refer to the decision of the Bombay High Court in Bhai Bhuriben 's case but that decision was referred to only for the purpose of emphasising one aspect which was propounded by that Court, namely, that the motive with which an assessee could be said to have made the borrowing would be irrelevant. In fact the High Court found that there was no material to show that the assessee, in the instant case, would necessarily have had to employ the business assets for making payment to charity. The High Court actually considered the assessee 's case under section 10(2) (iii) and 10(2) (xv) and disallowed the claim for deduction under these provisions principally on the ground that the said borrowing of Rs. 5.5 lacs was unrelated to the business of the assessee. [745G H, 755A B] Bhai Bhuriben Lallubhai vs Commissioner of Income Tax, North Cutch and Saurashtra, ; explained. (6) In the instant case: (a) The amount of Rs. 5.5 lacs having been actually parted with by the assessee on January 7, 1956, and having been accepted by the institute the same being deposited in the joint account of the assessee and the District 747 Magistrate, Bulandshahr for the Engineering College, the gift to that extent was undoubtedly complete with effect from the said date. [756A C] (b) The said payment made by the assessee by drawing a cheque on the overdraft account was a borrowing which was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on the business nor in her capacity as a person carrying on that business. Such expenditure could by no stretch of imagination be regarded as business expenditure. [756C, F] (c) It is true that initially on November 21, 1955 the capital account of the assessee was debited and the college account was credited with the sum of Rs. 10 lacs in the books of the assessee but making of these entries in the assessee 's books would not alter the character of the borrowing nor would the said borrowing be impressed with the character of business expenditure for admittedly, the assessee maintained only one common set of books in which were incorporated entries pertaining to her capital, assets and income from all her difference sources. The borrowing was completely unrelated to the purpose of the business and was actually used for making charity. It is, therefore, clear that the interest that was paid on the sum of Rs. 5.5 lacs to the bank by the assessee for the three concerned years was rightly held to be not deductible either under section 10(2) (iii) or under section 10(2) (xv) of the Act. [756F H, 757A] Commissioner of Income Tax, Bombay City II vs Bombay Samachar Ltd., Bombay, ; Commissioner of Income Tax, Bombay City IV vs Kishinchand, ; distinguished. (d) Both the Tribunal as well as the High Court were right in taking the view that the certificate dated October 17, 1958 was of no avail to the assessee inasmuch as it merely stated that the assessee had promised a donation of Rs. 10 lacs on October 21, 1955, out of which Rs. 5.5 lacs were deposited in the joint account maintained in the name of the assessee and the District Magistrate, Bulandshahr for the college and the remaining sum of Rs. 4.5 lacs was left as a loan with the assessee and interest thereon at 6% per annum was to be finally deposited in the technical institute account. The Tribunal and the High Court were also right in taking two views that beyond making entries in the books of account of the assessee there was no material on record to show that the assessee had actually made over a sum of Rs. 4.5 lacs to the college or that the college had accepted the said donation with the result that the amount credited to the college account in her books represented her own funds and lay entirely within her power of disposition and that being so, the interest credited by the assessee on the said sum of Rs. 4.5 lacs and the accretion thereto continued to belong to the assessee, and, therefore she was not entitled to the deduction in respect of such interests, and [758C G] (e) If no trust in favour of the college in regard to the amount of Rs. 4.5 lacs could be said to have come into existence either on October 21, 1955 or November 21, 1955 or on any other subsequent date during the relevant years, no deduction in respect of interest credited by the assessee to the account of the college over the said sum can be allowed. [759A B] 748 </s>
<s>[INST] Summarize the judgementiminal Appeal No. 33 of 1955. Appeal under Articles 132 (1) and 134 (1) (c) of the Constitution of India from the Judgment and Order dated June 30, 1954, of the Court of Judicial Commissioner, Kutch in Criminal Revision Application No. 13 of 1952. Porus A. Mehta and B. H. Dhebar, for the appellant. H. J. Umrigar, for the respondent. March 7. The Judgment of the Court was delivered by KAPUR J. Two important questions arise for decision in this case of a small magnitude and the State has filed this appeal not for the purpose of obtaining a conviction but because of the importance of the questions raised and implications of the judgment 747 of the Judicial Commissioner. The respondent was convicted of an offence under section 12(a) of the Bombay Prevention of Gambling Act (Act IV of 1887 hereinafter termed the Bombay Act) as applied to Kutch and was sentenced to a fine of Rs. 50 or in default simple imprisonment for 15 days and for feiture of the amounts recovered from the respondent at the time of the commission of the offence. He took a ' revision to the Judicial Commissioner of Kutch, who hold that the Act under which the respondent had been convicted had not been validly extended to and was not. in force in the State of Kutch. It is the correctness of this decision which has been canvassed before us. There was sufficient evidence against the respondent which was accepted by the trying magistrate; and if the Act was validly extended to and was in operation in the State of Kutch, his conviction by the learned magistrate was correct and his acquittal by the learned Judicial Commissioner erroneous. On June 7, 1951, the respondent, it was alleged committed the offence he was charged with He was convicted by the magistrate on July 26, 1951, and his revision to the Sessions Judge was dismissed. He then took a revision to the Judicial Commissioner of Kutch who allowed his petition on June. 30, 1954, and granted a certificate under articles 132(1) and 134(1) of the Constitution. Kutch before 1948 was what was called an Indian State. The Maharao of Kutch handed over the gover. nance of the State to the Dominion of India on June 1, 1948 and thus the whole administration of the State passed to the Dominion and it became a Centrally administered area. On July 31, 1949, the then Central Government issued under section 4 of the Extra Provincial Jurisdiction Act (Act XLVII of 1947), an order called the Kutch (Application of Laws) Order, 1949. Under cl. 3 of this order certain enactments were applied to Kutch with effect from the date of the commencement of the order. One of these enactments was the Bombay Act. Clauses 4 and 6 of this order are important and may be quoted; 748 4. "Except as otherwise specifically provided in the first schedule to this order the enactments applied by this order shall be construed as if references therein to the authorities and territories mentioned in the first column of the table hereunder printed were references to the authorities and territories, respectively, mentioned opposite thereto in the second column of the said table. TABLE. Provincial Government, Governor The Chief Commissioner of Kutch. or Chief Controlling Revenue Authority. Government The Central Government or the Chief Commissioner, as the con text may require. High Court Court of the judicial Commissioner, Kutch. Provinces of India, any Province Kutch or any part thereof of India or any part thereof. The Province or Presidency of Kutch or any part thereof. Bombay or any part thereof. " Any Court may construe the provisions of any enactment, rule, regulation, general order or byelaw applied to Kutch or any part thereof by this order, with such modifications not affecting the substance as may be necessary or proper in the circumstances. " On August 1, 1949, Kutch became a Chief Commissioner 's province under the States Merger (Chief Commissioners Provinces) Order, 1949. Clause 2(1)(c) of this order is as follows: " As from the appointed day, the parts of States specified in the Second Schedule to this order shall be administered in all respects as if they were a Chief Commissioner 's Province, and shall be known as Chief Commissioner 's Province of Kutch. " The Second Schedule gives the parts of the pre 1947 Indian States which were to comprise the Chief Commissioner 's Province of Kutch. Under el. 4 of this Order all laws which were in force including orders made under section 4 of the Extra Provincial Jurisdiction Act of 1947, were to continue in force until replaced. On January 1, 1950, Merged States ' Laws Act (Act LIX of 1949), came into force. By this Act certain Central Acts were extended to the province of Kutch 749 including the General Clauses Act (Act X of 1897). On January 26, 1950, the Constitution of India came into force and Adaptation of Laws Order, 1950, was promulgated the same day. Clause 4(1) of this order provides: "Whenever an expression mentioned in column 1 of the table hereunder printed occurs (otherwise than in a title or preamble or in a citation or description of an enactment) in an (existing Central or Provincial Laws) whether an Act, Ordinance or Regulation mentioned in the Schedule to this Order or not, then, unless that expression is by this Order expressly directed to be otherwise adapted or modified, or to stand unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in column 2 of the said Table, and there shall also be made in any sentence in which the expression occurs such consequential amendments as the rules of grammar may require." The necessary portions of the table are: Province (except where it occurs in any expression mentioned above) State Provincial. . . State Provinces (except where it occurs in any expression mentioned above). States Clauses 15 and 16 in (Part III) Supplementary, are as follows: 15. " Save as is otherwise provided by this Order, all powers which under any law in force in India or any part thereof were, immediately before the appointed day, vested in or exercisable by any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter in question." 16. " Subject to the provisions of this Order any reference, by whatever form of words in any existing law to any authority competent at the date of the passing of that law to exercise any powers or authorities, or to discharge any functions, in any part of India shall, where a corresponding new authority has been constituted by or under the Constitution, have 750 effect until duly repealed or amended as if it were a reference to that new authority. " On November 28, 1950 the Chief Commissioner of Kutch issued the following notification: In exercise of the powers vested in him under section I of the Bombay Prevention of Gambling Act, '1887 (IV of 1887) as applied to Kutch by the Kutch (Application of Laws) Order, 1949 the Chief Commissioner has been pleased to order that all the provisions of the said Act shall come into force throughout the whole of Kutch with immediate effect. " On a consideration of all the Acts and Orders as well as the above mentioned Adaptation of Laws Order, of 1950, the learned Judicial Commisioner was of the opinion that , all such powers vested in or exercisable by any other person or authority before 26 1 1950 ceased to be so vested or exercisable by that person or authority ", and, therefore, only the President, whether exercising the powers himself or through the Chief Commissioner, could exercise the powers of a State Government and the Chief Commissioner himself could not. His finding therefore was that the Chief Commissioner could not issue the above notification of November 28, 1950. In its appeal against the Order of acquittal by the learned Judicial Commissioner, the State has raised two questions: (1)that the Bombay Act had been validly extended to and was in force in the whole of Kutch because of the Kutch (Application of Laws) Order, 1949 and thus any contravention of that Act became punishable under the Act, and (2)That even if the Bombay Act was not thus extended to Kutch, the Act became applicable to the State of Kutch by the issuing of the notification of November28, 1950, and therefore, the respondent was rightly convicted and the conviction was wrongly set aside by the learned Judicial Commissioner. In: order to decide the first contention we have to see what is the effect of the various provisions of the Acts and Orders above referred to. In cl. 4 of the 751 Kutch (Application of Laws) Order, 1949, the words; used are shall be construed as if reference therein. . In our opinion all that these words mean is I shall be read as ' and if that is how these words are understood then wherever in the Bombay Act the words 'Provincial Government ' are used they have to be read as the Chief Commissioner of Kutch; the word Government has to be read as the " Chief Commissioner of Kutch"; and the Province or the " Presidency of Bombay " as " Kutch or any part thereof ". If the Bombay Act is so read, then at the time when the Constitution came into force the words Provincial Government or Government or Province or Presidency of Bombay were no longer in the Act which had become applicable to the State of Kutch. On the other hand, the words there must be taken to be Chief Commissioner of Kutch, and Kutch or any part thereof, respectively. The fallacy in the learned Judicial Commissioner 's judgment lies in this that due effect was not given to these words which had become substituted, but emphasis was laid on the words 'shall be construed as ' as if these words had been used for the purposes of interpretation of the different words in the Bombay. Act rather than implying substitution of the corresponding words. In this view of the matter cl. 2 (1) (c) of the States Merger (Chief Commissioners ' Provinces) Order, 1949 which provided for the administration of the State of Kutch as if it was a Chief Commissioner 's Province, would not affect the position nor would the extension of the General Clauses Act under the Merged States ' Laws Act. Clause 4 of the Adaptation of Laws Order, 1950 only substituted in place of the words Province, Provincial and Provinces the words State or States, wherever they occurred in any existing law, and the effect of cls. 15 and 16 of that order was the continuance of the powers vested in the authorities in whom they had previously been vested. The position which therefore emerges on a combined reading of these various clauses is that in Bombay Act, as applied to Kutch, the words I Presidency of Bombay ' were to be replaced by the. words 'Kutch or any part thereof ' and the I Provincial 752 Government ' by the I Chief Commissioner of Kutch ' and the powers which had been given to the different authorities under the different Acts were to continue to remain in the person or persons in whom they were already vested. As the powers had been vested in the Chief Commissioner under the provisions of these various Acts and Orders, they continued to remain so vested and the General Clauses Act did not have any operational effect on these various words which were used in the Bombay Act as modified and applied to Kutch. ,SO understood, section 1 of the Bombay Act would read as follows: " This Act may be cited as the Bombay Prevention of Gambling Act, 1887. All or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the " Official Gazette " to any local area in Kutch or any part thereof." The Chief Commissioner of Kutch may, from time to time, by an order published as aforesaid, cancel or vary any order made by it under this section. " The portion of this section, viz., "It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said city and island and to all places not more than three miles distant from any part of such station houses respectively " would not continue in the Act as applied to Kutch because these parts are not in the State of " Kutch or any part thereof " and cl. 6 of the Kutch (Application of Laws) Order, 1949 would come into operation for the purpose. It was then contended that by the mere application of the Bombay Act to Kutch it became operative and came into force in the whole of Kutch. This argument suffers from the infirmity that in its application to Kutch section 1 of the Bombay Act would have to be excluded which would be an incorrect way of looking at the question. The true position is that the whole of the Act including amended section 1 as given above, became applicable to Kutch and therefore a notification 753 ,was necessary before it could be brought into force in any part of Kutch. It was applied to Kutch, but its provisions were not in operation before the notification; and in our opinion, the judgment of Baxi J. C. in Agaria Osman Alarakhya vs The Kutch State (1) which has been followed in the case now before us, to the extent that it dealt with the necessity of a notification under section 1 of the Bombay Act, was correctly decided; and therefore, the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act, could not be held to have been validly applied to the State of Kutch. This brings us to the second question, i.e., the validity of the notification issued on November 28, 1950. The learned Judicial Commissioner held: " The Chief Commissioner of a Part C State can act to such extent as he is authorised by the President to do. These being the provisions of the Constitution, the Bombay Act must be construed with the adaptation that the rule of construction mentioned in the Kutch (Application of Laws) Order, 1949 is deleted. Hence, even if substitution of expression as mentioned in para 4 of the Adaptation of Laws Order, 1950 is not made, the rule of construction mentioned in the Kutch (Application of Laws) Order, 1949 for construing the expression I Provincial Government ' as the I Chief Commissioner, Kutch ' does not survive. " Article 239 of the Constitution relates to administration of Part C States and provides: " Subject to the other provisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Lieutenant Governor to be appointed by him. . . This Article has been relied upon for urging that in a Part C State, the administration had to be carried on by the President acting through a Chief Commissioner. But this does not take away the powers of the Chief Commissioner given to him under any other Statute or (1) A.I.R. (1951) Kutch 9. 97 754 Order. The Chief Commissioner of Kutch under section I of the Bombay Act, had the power to issue notifications making that Act operative in Kutch or any part of Kutch and those powers were not affected by article 239 of the Constitution particularly because of el. 15 of the Adaptation of Laws Order, 1950, which preserved these powers of the Chief Commissioner. Therefore, the notification issued by the Chief Commissioner on November 28, 1950 was valid and issued under legal authority; and the Act came into force in the parts to which the notification made it so applicable. We have therefore, come to the conclusion that the learned Judge was in error in holding that the notification was not a valid one and in so far as that was the basis of the acquittal of the accused, the judgment under appeal must be set aside. In the result the appeal of the State is allowed, the judgment of the learned Judicial Commissioner acquitting the respondent is set aside and that of the learned Magistrate sentencing him to a fine of Rs. 50 and sentence in default and of forfeiture restored. Appeal allowed. [/INST]The appellant was a senior. advocate. He was required to appear before the Special Judge to make his submission on the question of sentence to be imposed upon his client who was convicted for an offence under s.5(2) of the Prevention of Corruption Act, 1947. As he appeared in a shirt and trouser outfit and not in Court attire, the Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity. The appellant took umbrage and left the Court. Some other advocate appeared in the matter and the accused having being found guilty of the charge of corruption the Judge imposed a sentence of four years R.I. The appellant made a written application to the Judge couched in scurrilous language making the imputation that the Judge was a 'corrupt Judge ' and added that he was 'contaminating the seat of justice '; and forwarded copies of the application, without occasion or need to the Administrative Judge, Chief Secretary and other authorities. The High Court initiated contempt proceedings, found the appellant guilty of having committed criminal contempt under section 2(c)(1) of the and after affording full opportunity of hearing, imposed a sentence of simple imprisonment for one week and a fine of Rs. 500. Dismissing the Appeal, ^ HELD: 1. Considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that the appellant should not escape with impunity on the mere tendering of an apology which in any case. does not wipe out the mischief. If such a apology were to be accepted, as a rule, and not as an exception, it would virtually be tantamount to issuing a 'licence ' to scandalize courts and commit contempt of court with impunity. The High Court was justified in imposing a substantive sentence and the said sentence cannot be said to be excessive or out of proportion.[838E; 837E, 838F] 834 No Judge can take a decision which does not displease one side or the other. By the very nature of his work he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such a risk, it will sound the death knell of the institution. The day must be dreaded when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disagree on him with impunity, if any of his orders, or the decision rendered by him displeases any of the Advocates appearing in the matter. A line has therefore to be drawn some where, some day, by some one. That is why the Court is impelled to act (rather than merely sermonise) much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and 'with circumspection. [837H; 838A B] 2. An attitude of unmerited leniency cannot be adopted at the cost of principle and at the expense of the Judge who has been scandalized. To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the mail studded path of duty. Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty. [338C] In the instant case, the appellant sought to justify his conduct before the High Court on the ground of the treatment alleged to have been meted out to him by the Special Judge. No remorse was felt. No sorrow was expressed. No apology was offered: He expressed his sorrow only before this Court, saying that he had lost his mental balance, and was granted an opportunity to tender an apology. He appeared before the Special Judge and tendered a written apology indicating that he was doing so: "as directed by the Hon 'ble Supreme Court. " This circumstance shows it was a 'paper ' apology, and that the expression of sorrow came from his pen, not from his heart. It is one thing to "say" sorry it is another to "feel" sorry. This Court cannot subscribe to the 'slap say sorry and forget ' school of thought in administration of contempt jurisdiction. [886H; 837A C] </s>
<s>[INST] Summarize the judgementivil Appeal No. 41 of 1979. (From the Judgment and Order dated 23rd August, 1978 of Allahabad High Court in Writ Petition No, 1483 of 78) WITH Civil Appeal No. 379 of 1980. From the Judgment and order dated 28th March, 1979 of the Allahabad High Court in civil Misc Writ No. 1287 of 1977 G.L. Saghi, V.A. Bobde & H.K. Puri for the appellant in C.A. No. 41/79. R.K. Jain for the appellant in C.A. No. 379/80. K.P. Gupta for the respondents in C.A. No. 41/79. Shanti Bhushan and R.B. Mehrotra for the respondent in C.A. No. 379/80. The Judgment of the Court was delivered by FAZAL ALI J. We would first take up Civil appeal No. 379 of 1980 which is directed against an Order dated March 28, 1979 passed by the Allahabad High Court dismissing the writ petition of the appellant and arises in the following circumstances. The appellant owns a house bearing No. 113, Amroha Gate, Fruit Market, Moradabad, in a portion of which he had inducted respondent No.3 (Vishwa Nath Kapoor) as a tenant while retaining some portion for himself, when he (appellant) was serving as a Judicial Officer in the State of Uttar Pradesh. In the year 1968, the appellant retired as a District Judge as a result of which he had to vacate his official residence, which necessitated the present eviction proceedings against respondent No.3. The application for eviction was filed on 2.1.1973 under s.21(1) (b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the '1972 Act ') in which the appellant prayed that the portion occupied by respondent No.3 may be released on the ground of personal requirement as after retirement he wanted to occupy the entire house. The appellant further claimed that due to shortage of accommodation he had to stay with his son elsewhere. The eviction proceedings were contested by the respondent on the following grounds: (a) that since the appellant was already living with his son there was no particular urgency or personal necessity for him to occupy the rented portion also, 318 (b) that the appellant had in his occupation a part of the house which was retained by him even after inducting him (respondent) as a tenant and which was sufficient for his needs, and (c) that the appellant after keeping his household effects in the portion retained by him had locked up the same and was, therefore, not in actual occupation of the house as required by Explanation (iv) to section 21 (1) (b). In the same token, it was submitted as a point of law that the essential ingredient of Explanation (iv) to s.21(1) (b) was that the building must have been in occupation of the landlord for residential purposes which alone would be a conclusive proof of personal necessity. It was also contended as a question of fact that as the appellant landlord was not in actual occupation of the premises, Explanation (iv) would not be attracted in the instant case. To buttress this argument it was submitted that the landlord never occupied or possessed the premises but had locked up the same and was residing elsewhere. This plea of the respondent tenant did not find favour with the Prescribed Authority or the High Court. The dominant question, therefore, turns upon the import and interpretation of Explanation (iv) to s.21(1) (b), particularly the nature and meaning of the word 'occupation ' as used in Explanation (iv). The crux of the matter, therefore, was as to whether or not the case of the appellant squarely fell within the four corners of Explanation (iv) and whether the word 'occupation ' included actual residence of the landlord even though he may not have been residing there. We might mention that while the eviction proceedings were pending before the Prescribed Authority the 1972 Act was amended by U.P. Act No.28 of 1976 (for short to be referred to as the '1976 Act ') which came into force with effect from 5th July 1976 and which deleted Explanation (iv). The Prescribed Authority, relying on Explanation (iv), held that the need of the landlord was fully made out and accordingly passed an order of eviction against the tenant, partly releasing some portion in appellant 's favour. The appellant then filed an appeal before the District Judge which was heard by an Additional District Judge who accepted the offer of the tenant and modified the Order of the Prescribed Authority by further releasing some other portion in his favour. The appellant then filed a writ 319 petition before the High Court which upheld the decision of the District Judge and dismissed the writ petition. Before we approach the question of law raised before us it may be necessary to give a detailed picture of the position of the premises retained by the landlord and that rented out to the tenant. The house in question is a double storeyed one containing some rooms on the first floor and some on the ground floor which were retained by the landlord at the time of the lease and the rest of the portion was let out to the tenant. The learned counsel for the appellant contended that in view of the requirements of the landlord he had a real and bona fide need for occupying the entire house and therefore, the entire portion occupied by the tenant should have been released in favour of the appellant. This argument was countered by Mr. Shanti Bhushan, counsel for the respondent, who put forward the following legal submission: In the first place, he contended that Explanation. (iv) would not in terms apply to the facts of the present case because on the findings of fact arrived at by the courts below it was not shown that the appellant was in actual occupation of the portion retained by him, which is a prerequisite for the application of Explanation (iv) to s.21 (1) (b). In this connection, it was submitted that the admitted position being that the application was previously employed as a District Judge and was living elsewhere, he could not be deemed to be in occupation of the portion retained by him. In order to appreciate this argument, it may be necessary to examine closely the language of Explanation (iv) which may be extracted thus: "(iv) the fact that the building under tenancy is a part of a building, the remaining part thereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord. " The pivotal argument of the counsel for the respondent turns upon the interpretation of the word 'occupation '. This, however, does not present any difficulty because in a recent decision in the case of Babu Singh Chauhan vs Rajkumari Jain & Ors.(1) this Court while 320 construing a similar term in the same Act observed as follows: "We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make section 17 (2) inapplicable. Possession by a landlord of his property may assume various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it in charge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye of law. " It is true that the court used the word 'possession ' but in Explanation (iv) to s.21(1) (b) the word used is 'occupation ' and not 'possession ' but this Court treated the word 'possession ' as being a synonym of 'occupation '. In Webster 's Third New International Dictionary the word 'occupation ' has been defined at page 1560 thus: "Occupation to take possession of, occupy, employ" The Black 's Law Dictionary (5th Edn.) defines 'occupation ' at page 82 thus: "occupation possession; control; tenure; use." In Corpus Juris Secundum (vol.67) at page 74 'occupation ' has been mentioned thus: "The word may be employed as referring to the act or process of occupying, the state of being occupied, occupancy, or tenure." This Court in the observations, extracted above, has clearly pointed out that 'possession ' or 'occupation ' may take various forms and it was expressly held that even keeping the household effects by the owner is an act of occupation. It is, therefore, manifestly clear that even if a landlord is serving outside or living with his near relations but makes casual 321 visits to his house and thus retains control over the entire or a portion of the property, he would in law be deemed to be in occupation of the same. Therefore, we are unable to accept the argument of Mr. Shanti Bhushan that the essential ingredient of Explanation (iv) has not been made out, there being no actual physical occupation by the landlord of the portion retained by him. Indeed, if the broad argument put forward by the counsel is to be accepted then that would destroy the very concept of constructive or actual possession or occupation. For, instance, even if a house is not let out to anybody but is locked up, can it be said that the owner who is not living there but has kept his household effects, would not be deemed to be in occupation of the same? The answer must necessarily be in the negative. It seems to us that the policy of the law was to give a facility to the landlord so as to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole house. Mr. Shanti Bhushan then argued that Explanation (iv) does not confer any substantive right but merely raises a presumption that if a landlord is in occupation of a part of the premises, his need would be deemed to be bona fide. We are, however unable to agree with this argument. We must remember that all the Rent Control Acts try to deprive and curtail the legal right of an owner to his property and have put constraints and restraints on his right by giving substantial protection to the tenants in public interest, otherwise if the Rent Acts were to be abolished or were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions of the Transfer of Property Act. The words "shall be conclusive to prove" in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and recognised if a part of an accommodation is retained by the landlord. We are unable to agree with Mr. Shanti Bhushan that the words "conclusive to prove that the building is bona fide required by the landlord" constitute a rule of evidence. In fact, this argument was put forward before us because the learned counsel wanted to submit that in view of the 1976 Amendment Act, deleting Explanation (iv) to s.21(1) (b) of the 1972 Act, it would be deemed to be retrospective and therefore the relief given by Explanation (iv) would disappear. We cannot agree with this somewhat far fetched submis 322 sion because Explanation (iv) deals not merely with a particular procedure but with the substantive rights of the parties. The said Explanation has asserted and affirmed the substantive right of a landlord to get a portion of a building vacated where he is in occupation of a part of it. Such a substantive right cannot be taken away merely by a procedural amendment nor does the language of the amendment introduced by the 1976 Act envisage or contemplate such a position. Section 14 of the 1976 Act merely recites that Explanations (ii) and (iv) of s.21(1) (b) shall be omitted. There is nothing to show that the legislature intended to give any retrospective effect to the deletion of Explanation (iv). In these circumstances, therefore, the right to ejectment having accrued to the appellant under Explanation (iv) was a vested right as an owner and could not be affected by the 1976 amendment unless it was couched in a language which was either expressly or by necessary intendment meant to be operative retrospectively. Lastly, it was argued by Mr. Shanti Bhushan that the fact remains that the appellant, even after retirement, was not in actual possession of the portion retained by him and was living with his son or other relations most of the time exception casual visits to the premises in dispute. A further argument was raised in an additional Note supplied by the counsel for the respondent that as the bathroom and the latrine were in occupation of the tenant, the landlord could not possibly have occupied the premises retained by him and could not have lived there in the absence of these facilities. The High Court rightly rejected these arguments by observing thus: "The last argument was that the view of the Prescribed Authority that since the petitioner did not occupy the portion retained by him and lived with his son and, therefore, his need was not bona fide has no merits in as much as the petitioner did not have either a latrine or a bathroom and that he could not possibly occupy the house in the position in which it had been retained. There may be some truth in the submission made by the learned counsel for the petitioner. But, as neither the Prescribed Authority nor the Appellate Authority based their judgment on this feature of the case and they examined the merits of the claim of the respective parties, it is not possible to interfere with the judgments of the courts below." 323 An attempt was made by the parties to come to a settlement but, unfortunately, the efforts failed. The argument of Mr. Shanti Bhushan that merely because the landlord was living with his son or his relation after retirement and, therefore, was not in occupation of the house cannot be accepted because it was not for the tenant to dictate to the landlord as to how he should use his own premises. A tenant has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his property or live therein. In these circumstances, therefore, we are satisfied that the case of the appellant is clearly covered by the provisions of Explanation (iv) to s.21(1) (b) and a decree for release of the entire premises should have been passed by the District Judge against the respondent. We, therefore, allow this appeal, set aside the judgments of all the courts below and order release of the entire premises in possession of the respondent to the appellant. Time is granted to the respondent to vacate the premises on or before 31st December 1984, subject to the usual undertaking to be given and filed by him in the Court within four weeks from today, failing which the grant of time shall stand revoked without further reference to the Bench and the appellant would be entitled to be put in possession forthwith. Civil Appeal No. 41 of 1979 This appeal was heard alongwith civil appeal No. 379 of 1980 which we have decided by our judgment. The main point involved in this appeal was as to whether the portion of the premises sought to be vacated by the landlady was one single unit or two separate units. This Court remanded the matter to the trial court for examining this point and the trial court has returned a finding, basing its decision on the report of the Commissioner appointed for the Purpose, that the entire building constituted one single unit. It is, therefore, manifest that if the entire building was one unit and the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion also. In view of our decision in civil appeal No. 379 of 1980, the appeal is allowed and we order release of the entire portion in favour of the appellant. Time is granted to the respondent to vacate the premises on or before 31st October 1984, subject to the usual undertaking being given and filed within four weeks from today, failing which the grant of time 324 shall stand revoked without further reference to the Bench. There will be no order as to costs. Let a certified copy of this judgment be placed on the file of civil appeal No.41 of 1979. S.R. Appeals allowed. [/INST]The appellant was employed as a Librarian under the Ist respondent. His services were terminated for misconduct. He laid a complaint before the Industrial Tribunal under section 33A of the . The Tribunal came to the conclusion that though the charge of misconduct against the appellant was established, the punishment of termination of service was not warranted, ordered reinstatement with half of his back wages and other benefits from the date of termination. The respondent employer applied to the High Court under Article 227 to quash the direction of reinstatement contending that as the Tribunal had found misconduct on the pa t of the workman, it was obligatory for the Tribunal to impose some punishment which it had railed to do. It was further contended that as there was loss of confidence, reinstatement was not appropriate. The High Court held that with holding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment,. held that reinstatement was not called for, vacated the order of reinstatement, directed payment . Of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15,000. Allowing the appeal. 224 ^ HELD: 1. The order of the High Court is set aside and the award of the Industrial Tribunal is restored. The High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation at Rs. 150000 it acted without any legitimate basis. '[228D, 227H, 228A] 2. Section IIA of the vests wide discretion in the Tribunal. and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. [226G, '227A] 3. The High Court under Article 227 of the Constitution does not enjoy the wide discretion vested in the Tribunal under section IIA, though as a superior court, it is vested with the right of superintendence. The High Court is in disputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and it could in an appropriate case quash the award of the Tribunal aud thereupon remit the matter to it for fresh disposal in accordance with law and directions if any. The High Court is not entitled to exercise . the powers of the Tribunal and substitute an award in peace of the one made by the Tribunal as in the case of an appeal where it lies to it. [227D] </s>
<s>[INST] Summarize the judgementN: Criminal Appeal Nos. 106 107 of 1986. WITH (Criminal Appeal Nos. 166 67/1986). From the Judgment and order dated 5.9.1985 of the High Court of Rajasthan in D.B. Appeal No. 126/77 and Criminal Appeal Nos. 98 and 99 of 1977. R.L. Kohli, Uma Dutt and R.C. Kohli for the Appellant. B.D. Sharma and M.I. Khan Additional Advocate General for the Respondent. The Judgment of the Court was delivered by OZA, J. These two appeals arise out of the conviction of these two appellants alongwith one another under Section 302 read with Section 34 and sentenced to imprisonment for life and fine of Rs. 100 each in Sessions Case No. 39/75 by Sessions Judge, Jhunjhunu dated 601 29th January 1977. Alongwith these two appellants Chandan and Om Prakash one Babulal son of Onkar Mal was also convicted but we have no appeal before us on behalf of Babulal. The prosecution case was that Smt. Dhaka widow of Shri Hanuman Prasad and mother of Shri Gyarsi Lal was living all alone in her house (Haveli) at Ward No. 1, Khetadi. In the morning of 23rd August, 1975 a person engaged for grazing the goats in jungle went to Smt. Dhaka 's house for taking her goats for grazing and called Smt. Dhaka but he did not get any response. P.W. 2 Smt. Banarsi who was living in the vicinity came on the spot and alongwith the Goatmen went inside the Haveli. They found goods scattered here and there and even when they loudly called Smt. Dhaka they did not hear any reply. P.W. 1 Matadeen who was feeding pigeons nearby was informed by Smt. Banarsi that Smt. Dhaka normally used to get up early but it appears that she had not woken up by that time and therefore expressed surprise. On this Matadeen went inside the house, reached the upper floor and found all the rooms opened and plenty of goods of Smt. Dhaka lying scattered. There he saw Smt. Dhaka Iying on a cot and found that she was wounded and bleeding at number of places. Shri Matadeen, then went to the Police Station, Khetadi and submitted his report exhibit P. 1. The Station House officer Surindra Singh reached the spot, prepared a memo and carried out the investigation. On 3rd September, 1975 one Mam Chand was arrested as an accused. Another accused Babulal was arrested on 5th September and the acquitted accused Laxmikant was arrested on 7th September and the two appellants in this appeal Om Prakash and Chandan were arrested on 11th September, 1975. Mam Chand later was granted pardon and has been examined as an approver in this case. On trial the learned Sessions Judge convicted all the accused persons and on appeal the High Court acquitted the accused Laxmikant but maintained the conviction against the three and aggrieved by the judgment of the High Court the present appeal on special leave has been filed before us by the two appellants mentioned above. It is not in dispute that there is no direct evidence in this case. The only evidence is the evidence of the approver Mam Chand and other evidence regarding recovery of articles. Learned counsel for the appellant contended that certain articles were recovered at the instance of Om Prakash and were put up for test identification and according to the evidence of the test identification these articles that were put up for identification, four witnesses were supposed to identify. Four witnesses appeared at test identification but three appeared in the 602 Court at trial. Out of these four witnesses, the first witness did not identify any article. The two witnesses Rameshwar and Phool Chand, P.Ws 13 and 14 did identify some articles. Their evidence after consideration has been rejected by the trial court and the other witness who identified the articles was Gyarsi Lal who happens to be the son of deceased, for the reasons best known, has not been examined at the trial at all and it was therefore contended by the learned counsel that so far as the recovery and identification of articles are concerned no article recovered has been identified to be that of the deceased and therefore this evidence of recovery in absence of identification is not at all relevant for the prosecution. He therefore contended that as it is settled law that accomplice 's evidence if it inspires confidence could be used to convict the accused person only if there is independent corroboration which could connect the accused with the crime and it was contended that this evidence of recovery and identification was supposed to be the evidence connecting the accused with the crime and corroborating the testimony of the approver but the learned Judges of the High Court did not consider this aspect of the matter that the two witnesses who had identified some articles their testimony has been discarded by the trial court and the High Court has not come to the conclusion that the trial court was not right in rejecting their testimony but superficially held that the evidence of identification is sufficient to corroborate the testimony of the approver. It was also contended that even the reading of the testimony of the approver shows that he has tried to keep himself away and the manner in which he has described the whole incident and the way in which he was taken into confidence by the other accused persons make his testimony unnatural and therefore could not be accepted. Learned counsel also placed reliance on certain decisions of this Court where the rule of prudence about the testimony of the accomplice has been repeatedly stated. Learned counsel appearing for the State of Rajasthan admitted that so far as the identification evidence is concerned, the most important witness Gyarsi Lal has not been examined at the trial and the other two who were examined, their testimony has been rejected but he attempted to contend that although Gyarsi Lal has not been examined in evidence at the trial but in test identification he had identified articles and therefore that evidence is sufficient to corroborate the testimony of the accomplice. He however did not challenge the proposition that the conviction could not be maintained on the sole testimony of the accomplice unless it is corroborated by some independent evidence connecting the accused with the crime. 603 So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime. In Haroon Haji Abdulla vs State of Maharashtra, [ ; it was observed as under: "An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false. But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused against whom the accomplice evidence is used, with the crime". Similarly in Ravinder Singh vs State of Haryana, [ ; it was observed as under: "An approver is a most unworthy friend, if at all, and he. having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver 's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. " 604 In this decision the first test indicated is that if the story given out by the accomplice appears intrinsically to be natural and probable, then alone that evidence could be of some value and then it is further observed that ordinarily an approver 's statement has to be corroborated. In this view of the settled legal position which was not disputed before us, it was contended that the evidence about recovery is of no consequence as there is no evidence of identification but as it was contended by the learned counsel for the respondent State that Gyarsi Lal who is the son of the deceased is not examined at the trial but he had identified articles at the identification parade and the learned counsel attempted to contend that this evidence could be used as a piece of corroboration. Unfortunately this evidence could not be looked into because: i) what he identified and stated to the Magistrate who conducted the identification parade is only a hearsay evidence as that evidence could only be used to corroborate his testimony if he was examined at the trial; and ii) what he stated to the Magistrate at the time of the test identification parade is not subjected to cross examination and was at the back of the accused could not be used as evidence against the accused. These are matters so settled and therefore it is sufficient to say that this contention is without any substance. Except this even the learned counsel for the State of Rajasthan had to concede that there is nothing about identification or anything to connect these articles with the crime and in such a situation the evidence of recovery is not at all relevant as it is not connected with the crime. It is not disputed that except this we are left with the only evidence of the approver Mam Chand. His evidence has been read by the counsel for the parties before us and his evidence clearly indicates that he has attempted to suggest that he did nothing. Neither he stated that he participated in looting nor in injuring or attacking the deceased. Reading through his evidence clearly indicates that he has claimed to be a spectator at every moment but has not participated at any stage. Apart from it the initial story appears also to be absolutely unnatural as according to him, he did not know anyone of these accused persons but a month before the incident they took him into confidence and told him to join them. After reading the evidence of the witnesses as a whole apparently the impression created is that the version does not appear to be natural version. In this view of the matter, in our opinion, the testimony is not such which inspires confidence. Apart from it as there is no corroboration at all from any other independent circumstance or source of evidence therefore the conviction of the appellants could not be maintained. It is rather unfortunate that the appeal has come up for hearing after a long time and ultimately it is found that 605 there is no evidence to sustain the conviction. The appeals are there A fore allowed. The sentence and conviction passed against both the accused are set aside. The appellants shall be set at liberty forthwith. P.S.S. P.S.S. Appeals allowed. [/INST]% The appellant, an employee of the Institute of Constitutional and Parliamentary Studies (I.C.P.S., for short), was dismissed from service by order dated November 17, 1982, as a result of disciplinary action. He challenged the dismissal order by a writ petition before the High Court. The question whether the I.C.P.S. was a 'State ' within the meaning of Article 12 of the Constitution arose for consideration as a major issue in the matter before the High Court. A Single Judge of the High Court dismissed the petition, holding that the employer was neither an agency nor an instrumentality of the government and did not constitute 'State ' as above said, and, therefore, was not subject to the writ jurisdiction of the High Court. The appeal against that judgment of the Single Judge was dismissed by the Division Bench of the High Court. Aggrieved by the decision of the High Court, the appellant moved this Court by special leave. Disposing of the appeal, the Court, ^ HELD: In the course of hearing, Dr. Anand Prakash, counsel for the I.C.P.S., respondent No. 2, stated that whether the Institute be 'State ' or not within the meaning of Article 12 of the Constitution, the employer was prepared to give a fresh opportunity to the appellant to meet the charges against him. With that concession, the order of dismissal, etc. passed against the appellant should have been set aside and the matter should have gone before the enquiry officer, but Dr. Anand Prakash as also counsel for the Union of India invited the Court to decide the issue as to whether the I.C.P.S. constituted 'State ' within the constitutional meaning of the term. [263H; 264A C] The main question for consideration then was whether I.C.P.S. was a 'State '. I.C.P.S. could become 'State ' only if it was found to be an authority within the territory of India or under the control of the Government of India. [264D,G] 261 I.C.P.S. is a registered society. The emergence of a new generation within less than two decades of independence gave rise to a feeling that the people 's representatives in the Legislatures required the acquisition of the appropriate democratic bias and spirit. I.C.P.S. was born as a voluntary organisation to fulfil this requirement. The Speaker of the Lok Sabha was its first President. Three Ministers, a former Chief Justice of India and a former Attorney General joined as its Vice Presidents. Some of the public officers were associated in its Administrative set up. Services of some employees of Parliament were lent to it. While Article 12 refers to Parliament as such, a few members of Parliament cannot be considered as Parliament so as to constitute that body as referred to in Article 12. The Speaker and the Ministers who joined as Vice Presidents of the Society were there in their personal capacities and not as Ministers, etc. There were many people in the category of Vice President, Executive Chairman, Treasurer and members, who were not a part of the Government, and some of them did not belong to Parliament. [281A F] The objects of the Society were not governmental business. Many of the objects of the Society were not confined to the two Houses of Parliament and were intended to have an impact on Society at large. [281G H] The Memorandum of the Society permitted acceptance of gifts, donations and subscriptions. No material was placed before the Court for the stand that the Society was not entitled to receive contributions from any indigenous source without government sanction. Since government money has been coming, the usual conditions attached to government grants have been applied and enforced. If the Society 's affairs were really intended to be carried on as a part of the Lok Sabha or Parliament as such, the manner of functioning would have been different. The accounts of the Society are subject to audit as the affairs of the Societies receiving government grants are. Government imposes conditions and restrictions when grants are made, and the Society is also subject to the same, and the mere fact that such restrictions are made is not a determinative aspect.[281H; 282 A D] There are registered societies which have been treated as 'State ', but in the case of each of them, either governmental business had been undertaken by the Society or what was expected to be the public obligation of the 'State ' had been undertaken to be performed as a part of the Society 's function. [282H; 283A] 262 Having given anxious consideration to the facts of the case, the Court is not in a position to hold that I.C.P.S. is either an agency or an instrumentality of the State so as to come within the purview of other authorities"in Article 12 of the Constitution. I.C.P.S. is a case of its type typical in many ways and normal tests may, perhaps, not properly apply to test its character. Even if some institution becomes 'State ' within the meaning of Article 12, its employees do not become holders of Civil posts so as to become entitled to the cover of Article 311 of the Constitution. They would, however, be entitled to the benefits of Part III of the Constitution. It is unnecessary to examine the appellant 's case, keeping Articles 14 and 16 of the Constitution in view, as, on the concession of counsel for I.C.P.S., the proceedings would have to re open. [283C E] In the result, the appellant would be entitled to the following reliefs. The order of dismissal set aside and the proceedings restored to the stage of enquiry. [283F] The appellant shall be deemed to have been restored to service and he would become entitled to normal relief available in such a situation. He should be deemed to be in service and his suspension would not continue. His suspension, which had merged into dismissal is vacated. It shall, however, be open to the employer to make any direction as is deemed appropriate in that behalf in future. [283F G] The appellant becomes entitled to salary for the past period subject to his satisfying the authorities that he had not earned any income during that period. [283H] The appellant shall be given a reasonable opportunity by the enquiring officer to meet the charges and the enquiry shall be completed within four months. [283H; 284A] The enquiry officer shall allow inspection to the appellant of all records relevant to the enquiry. [284B] Rajasthan State Electricity Board, Jaipur vs Mohan Lal and Ors. , ; ; Smt. Ujjam Bai vs State of Uttar Pradesh, [1963] l SCR 778; Sabhajit Tewary vs Union of India Sardar Singh Raghuvanshi & Anr. , ; ; Ramana Dayaram Shetty vs The 263 International Airport Authority of India & Ors., ; ; Managing Director, Uttar Pradesh Warehousing Corporation & Anr. vs Vinay Narayan Vajpayee, ; ; Ajay Hasia, etc. vs Khalid Mujib Sehravardi & Ors. etc. ; , ; Som Prakash Rekhi v Union of India and Anr., ; ; B.S.Minhas vs Indian Statistical Institute & Ors., ; and P. K Ramachandra Iyer and Ors. vs Union of India and Ors. </s>
<s>[INST] Summarize the judgementAppeals Nos. 459 and 460 of 1957. Appeals by special leave from the judgment and order dated the 30th November, 1956, of the Industrial Tribunal, Bombay, in Reference 1. T. Nos. 10 and 13 of 1956. R.H. Kolah, Dadachanji and section N. Andley, for the appellant. 930 C.L. Dudhia and I. N. Shroff, for the respondents in C. A. No. 459 of 1957. A.S. R. Chari and 1. N. Shroff, for the respondents in C. A. No. 460 of 1957. May 5. The Judgment of the Court was delivered by GAJENDRAGADKAR J. These two appeals arise out of a demand for bonus made against the appellants by their workmen for the year 1953 54. The Associated Cement Companies Ltd., Bombay, the Cement Marketing Company of India Ltd., Bombay and the Concrete Association of India, Bombay, were faced with a demand of their workmen employed in their offices at Bombay for bonus equivalent to seven months ' basic wages with dearness allowance. The industrial dispute arising out of this demand was referred by the Government of Bombay for adjudication before the Industrial Tribunal, Bombay, under section 10 of the Industrial Disputes Act and it was numbered I. T. No. 10 of 1956. The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka, was similarly faced with a demand of its workmen for bonus equivalent to 50% of total earnings or six months ' total earnings. This dispute was referred to the same tribunal and was numbered 1. T. No. 13 of 1956. By consent of parties both the references were heard together and evidence was recorded and documents tendered in the first reference. By its award delivered on November 30, 1956, the tribunal directed the companies to pay their workmen drawing a basic pay or wages up to Rs. 500 per month bonus equivalent to 1/3 of their basic wages or pay (less bonus already paid for the year 1953 54) subject to the conditions specified in the award. It is against this award that the respective companies have preferred the two appeals by special leave. In this judgment the said companies will hereafter be described as the appellant and their workmen as respondents. The A. C. C. is the principal company concerned in the dispute. The Cement Marketing Company of 931 India Ltd., (hereafter called the C. M. I.) has been separately registered under the Indian Companies Act as a Joint Stock Company; but it is a hundred per cent. subsidiary of the A. C. C. The C. M. I. are the Sales Managers of the A. C. C. while the Concrete Association of India (hereafter called the C. A. I.) is merely a department of the C. M. 1. As a result of the agreement which came into operation from ' August 1, 1953, all financial transactions of the C. M. 1. in relation to sales now find a place in the accounts of the A. C. C. Similarly all of its fixed assets have been taken over and appear in the balance sheets of the A. C. C. All the three concerns have a common staff in Bombay. The A. C. C. had already paid to its employees bonus equivalent to three months ' basic wages for the year 1953 54 and so had the C. M. I. to its workmen. It appears that the C. M. I., including the C. A. I., undertakes to pay to its employees the same amount of bonus as has been paid or awarded to the employees of the A. C. C. There is no dispute that the A. C. C. is the biggest amongst the companies in India which manufacture cement. It owns 15 cement factories at different places in India and 2 in Pakistan. Out of the total quantity of cement despatched by all the cement factories in India in 1953 54 the A. C. C. despatched 55.46 %. The A. C. C. came into existence in 1936 as a result of the merger of four important groups of companies engaged in the manufacture of cement. These were F. E. Dinshaw, Tatas, Killick Nixon and Khatau, groups. It appears that 11 companies in all merged with the A. C. C. Before the tribunal the case for the respondents was that the appellant held a position of monopoly in the cement industry and was easily in a position to pay the bonus claimed by them. Their allegation was that the appellant had inflated the capital invested by the merging companies while taking them over in 1936; it had set up new factories out of the profits earned by it without raising fresh capital and thereby had used profits for the purpose of expansion. In the year 195354 the appellant had capitalised the full amount 932 standing to the credit of the premium on shares account and had transferred a part of the reserves for taxation to the capital account thus increasing the aggregate capital. The emoluments of the workers were inadequate and so they were entitled to the bonus claimed by them in order to fill up the gap between the actual wage paid to them and the living wage due to them. The respondents also contended that the claim made by the appellant for rehabilitation and replacement in the dispute for the year 195152 included not only the amount required for rehabilitation and replacement but also expansion; and so, according to them, the appellant was not entitled to any amount for rehabilitation purposes in the year in dispute. They also alleged that the appellant was not entitled to claim. interest at more than 4% on paid up capital and 2 % on working capital. Thus the respondents urged that if all the relevant facts are taken into account it would be found that the claim for bonus made by them in the two respective references was just and proper. In support of their case the respondents filed several statements which, they claimed, had been prepared in accordance with the Full Bench formula, and they also cross examined Mr. Tongaonkar who gave evidence on behalf of the appellant. This claim was resisted by the appellant. It was urged on its behalf that the points raised by the respondents in the present references bad been heard and finally decided in the previous adjudication (Ref. I. T. No. 115 of 1953) which dealt with their claim for bonus for the preceding year; and it was alleged that the respondents were barred from raising the same questions over again in the present adjudication. The cement machinery, though heavy, is subject to rigours of extremely tough and heavy duties and the machinery has to run ceaselessly day and night throughout the year. The appellant contended that, having regard to the special features of the cement industry, the machinery had to be kept on the highest standards of maintenance and needed frequent replacement and rehabilitation. A cement factory is a very expensive industrial proposition. The appellant denied that 933 it was in a monopolistic position and pleaded that its object was to deliver cement as cheaply as possible to the consumers. The respondents ' allegation that there was " puffing up of block capital at the time of the merger in 1936 " was denied by the appellant and it was not admitted that ever since its inception it had steadily made huge profits. The appellant also denied the allegation of the respondents that the profits, coming out of the business had been used in expanding its factories. It had used all available resources including premium on issue of shares and depreciation fund for replacement, rehabilitation and modernisation. It was not true that the appellant had built huge reserves and that the wages paid by the appellant to its employees were inadequate; on the contrary they compared very favourably with those in other comparable industries. The appellant denied the statement of the respondents that no plant reinstatement reserve over and above the deprecia tion allowance was necessary in the current year and it urged that the calculations made by the respondents alleged to be in terms of the Labour Appellate Tribunal formula were inaccurate. In its turn the appellant claimed more than 6% interest on paid up capital and more than 4% interest on working capital. The appellant also emphasised that it had already paid to the respondents bonus for three months though the strict working out of the formula would show that there was no available surplus for the relevant year and so the respondents would not be entitled to any bonus at all. In support of its case the appellant examined Mr. G. R. Tongaonkar, its controller of planning and development, and produced a statement (exhibit C 2) showing the original cost of the blocks to be replaced and the approximate replacement cost. It also produced amongst other documents a statement (exhibit C 10) showing the cost of the assets of the merging companies on July 31, 1936, as taken over by the appellant and the statement (exhibit C 29) showing the capital expenditure from 1936 37 to 1953 54 on expansion, modernisation, rehabilitation, replacement, sundry capital jobs, etc. 934 In addition a statement was filed by the appellant (exhibit C 23) showing that the calculations made under the Full Bench formula would show a substantial deficit and that would support its case that there was no available surplus for the relevant year from which any bonus could be claimed by the respondents. exhibit C 2 is a statement prepared by Mr. Tongaonkar showing the original cost of the block to be replaced and the approximate replacement cost. This statement has been prepared on the basis that the approximate cost to the merging companies of their assets as on 31 7 1936 was 5.73 crores. It is admitted that this statement has lumped together all the properties of the appellant including plant and machinery, as well as buildings, roads, bridges and railway sidings and has classified them into four categories. The statement contains 9 columns. The first column gives the year or years of purchase of machinery. This could classifies the four categories of the blocks according to their respective years of purchase. The first category consists of blocks purchased up to 1939, the second purchased between 1940 44, the third purchased between 1945 47 and the last purchased between 1949 54. Column 2 gives the original cost of the said categories as on 31 7 1954. Column 3 gives particulars of such portions of the blocks as have been discarded, scrapped or sold. In this column the years in which the blocks were discarded, scrapped or sold are indicated and their original cost is me 935 figures mentioned in col. 5 for 1939 and 1940 44 blocks have been arrived at by reducing the corresponding figures given in col. 4 by 20%. Column 6 gives the approximate present life of the machinery and plant mentioned in col. 4; col. 7 sets out the breakdown value of the machinery referred to in col. 4, whilst col. 8 gives the approximate cost of rehabilitation of machinery as shown in col. 5 less breakdown value as shown in col. 7. The last column works out the annual requirements of the appellant in respect of the rehabilatation of the four categories of blocks. The figures in this column are arrived at by dividing the amounts mentioned in col. 8 by the respective divisors mentioned in col. 6. The total annual requirement of the appellant in respect of rehabilitation is shown as of the order of Rs. 3,29,61,752. exhibit C 23 is a statement prepared by Mr. Tongaonkar to show the deficiency in profits in relation to payment of additional bonus claimed by the respondents for the accounting year 1953 54. This statement has been prepared alternatively on the basis of statutory depreciation allowable by income tax authorities and also on the basis of straight computation at ordinary rates. The first method results in a deficit of Its. 107.20 lakhs, while the second in a deficit of 97.86 lakhs. In working out the provision for rehabilitation, this statement first takes the replacement cost of block up to 1939 as per exhibit C 2 to be Rs. 1601.19 lakhs. From this amount the available reserves as on 1 8 1953 which are of tile order of Rs. 311 lakhs are deducted, leaving a balance of Rs. 1290.19 lakhs. Then the replacement costs of the three remaining categories of blocks are taken into account and all the said amounts are divided by the appropriate divisors mentioned in col. 6 of exhibit C 2. The result is the sum of Rs. 284.48 lakhs, and that is claimed by the appellant as the provision for rehabilitation under the formula. In his evidence Mr. Tongaonkar has given reasons in support of the respective multipliers and divisors adopted by him in making his calculations in exhibit C 2. 119 119 936 He has also given several details on all the relevant and material points in support of the appellant 's case. Naturally the respondents have cross examined him at length. One of the questions in controversy between the parties in the present appeals centres round the appreciation of Mr. Tongaonkar 's evidence and the value to be attached to the statements prepared by him. On the contentions raised by the parties before it the tribunal framed ten issues for determination and it has made its findings on them in the light of the evidence adduced before it. It has held that the appellant had not inflated the capital invested by the merging companies while taking them over in 1936. It has allowed 6% interest on the entire paid up capital of Rs. 1267.59 lakhs, and 4% interest on the working capital. In regard to the claim for depreciation the tribunal has held that it was normal depreciation calculated according to the straight line method which should be allowed. On the question of income tax, the tribunal has allowed the same at 83.4 pies in a rupee as claimed by the appellant on its net profits. It has, however, rejected the appellant 's case that the income from investments in shares and securities received by it should be excluded for the purpose of bonus; while it has allowed the sum of Rs. 10 lakhs provided by the appellant as annual contribution to the reserve for gratuity, as also the expenditure on the cost of dismantling buildings, prospecting expenses, etc. It did not accept the respondents ' case that the bonus paid by the appellant to its officers should be reduced or wholly disallowed for the purpose of calculations under the formula; and, on the question as to whether overtime payment should be included in the payment of bonus, it has upheld the respondents ' contention and allowed the inclusion of the said payment. Having disposed of these minor issues, the tribunal examined at length the claim made by the appellant in regard to the provision for rehabilitation, replacement and modernisation. Indeed this was the most controversial and the most important issue raised 937 before it. The tribunal examined the evidence of Mr. Tongaonkar as well as exhibit C 2 and other documents produced by him, and came to the conclusion that " exhibit C 2 presents an incorrect and exaggerated picture of the A.C.C. 's requirements of rehabilitation and replacement" and so it cannot be relied upon. According to the tribunal the multiplier 4.28 adopted by Mr. Tongaonkar was itself an inflationary figure; and it thought that " the consequence of applying it not to the original price but to its increased price paid by the A.C.C. would be to obtain an inflationary result. It appears that the tribunal wag inclined to hold that 2.7 was a fair multiplier representing the price increase over the pre war base. The tribunal was also not satisfied with Mr. Tongaonkar 's evidence in regard to the life of plant and machinery ; and so it held that the period of life given in col. 6 of exhibit C 2 cannot be accepted as correct. While dealing with the question about the rise in prices, the tribunal has held that it was usual to take the average level of prices prevailing in a period of about five years in preference to the prices prevailing in a particular year as was done by Mr. Tongaonkar. The tribunal subjected Mr. Tongaonkar 's evidence on the question of replacement, rehabilitation and modernisation to a close examination and held that the method adopted by Mr. Tongaonkar in distinguishing between modernisation and expansion was of a purely subjective estimate " which does not bear the scrutiny of an objective test ". On the whole the tribunal was not prepared to accept Mr. Tongaonkar 's evidence at its face value and it was not prepared to treat exhibit C 2 and consequently exhibit C 23 as reliable. It is relevant to point out at this stage that the tribunal has not made any finding about the life of the machinery nor has it recorded any conclusion as to a proper divisor. In fact it has completely left out of consideration Exs. C 2 and C 23 while determining the amount which should be allowed for the appellant 's claim for rehabilitation for the relevant year. The tribunal then examined the principle underlying the Full Bench formula and held that, it was not 938 intended to be worked out as a rigid mathematical formula. " We must make it ", says the tribunal, " as flexible as possible so as to do justice to everybody concerned in the earning of profits". The general question, which it has considered in this connection, is how far and to what extent profits of a concern should contribute to the satisfaction of the claims of industry for replacement; rehabilitation and modernisation. It was impressed by the argument that, where the requirements under these items are so huge as to be out of tune with the profits, it would be open to an industrial adjudicator to allow only a reasonable provision to be made out of the profits for the said items and leave the industry concerned to tap other resources to make up the balance. In support of this conclusion it has referred to the observations made by F.R.M. de Paula in his "Principles of Auditing", the report of the Taxation Enquiry Commission and of the working party for the Cotton Textile Industry. It has also relied on a part of the speech delivered by Mr. J. R.D. Tata in addressing the annual general meeting of the shareholders of the Tata Iron and Steel Company in August 1950. In this connection the tribunal has expressed its apprehension that if all the money required for a continuous process of modernisation and expansion is to come out of the profits made by the concern, labour will rarely see a day when they will enjoy bonus granted to them out of profits; though it has hastened to add that it was far from its mind that a progressive concern like the A.C.C. should not keep pace with time and modernise its machinery; but it only wished that it should give a fair deal to the workers in the distribution of the profits. Having hold that, if the claims for rehabilitation turn out to be huge and out of tune with the profits made by the industry, it would be open to the tribunal to grant the claim of the industry in that behalf only to the extent that it deems to be reasonable and fair, it proceeded to consider how far and to what extent the appellant 's claim should be allowed in the present proceedings. It is necessary to mention that in dealing with this 939 question the tribunal was considerably influenced by the past conduct of the appellant. It thought that for rehabilitation the appellant had claimed no more than Rs. 192 or 193 lakhs in the previous adjudication proceedings where the dispute for bonus had reference to the year 1951 52. If the claim then made by the appellant was no more than Rs. 192 or 193 lakhs, the present claim for Rs. 284 lakhs, the tribunal thought, ' was obviously inflated and unreal. Similarly the tribunal emphasised the fact that the programme earlier submitted by the appellant to the Tariff Commission was in turn more modest than the claim made in the said adjudication proceedings. It appears that in the said programme the appellant had made out a case for the estimated expenditure of Rs. 18.36 crores to be spread over a period of ten years from 1 8 1952 to 31 7 1962 and that works out approximately at the figure of Rs. 184 lakhs per year. It was on these facts that the tribunal held that " if the A.C.C. estimated its annual requirements of rehabilitation, replacement and modernisation at Rs. 192 lakhs per year during the period of ten years commencing from 1 8 1952, 1 do not think that it should be allowed to depart from it now". In substance, according to the tribunal, the present claim for rehabilitation was very much inflated, it had no relation to realities, and so the appellant should not be allowed to make such a claim. That is why it did not think it necessary to record any finding as to the proper divisor, and to determine, in the light of Mr. Tongaonkar 's evidence, what approximately would be a fair or reasonable amount for rehabilitation under the formula. It is thus clear that in making its final calculations the tribunal has assumed that the claim made by the appellant for rehabilitation, replacement and modernisation must be taken to be no more than Rs. 192 or 193 lakhs, and on that assumption it has considered to what extent the claim should be allowed. Ultimately the tribunal came to the conclusion that in the circumstances of the case it would be fair to allow the appellant about Rs. 165 to 170 lakhs as annual provision for the said items. In support of this conclusion 940 the tribunal has relied on the fact that for the two years 1952 53 and 1953 54 the appellant had spent about Rs. 339.76 lakhs for the purpose of rehabilitation, replacement land modernisation and that works at the average of Rs. 170 lakhs per year. The tribunal has then taken into account the fact that the appellant had a plant reinstatement reserve of Rs. 235 lakhs and a general reserve of Rs. 76 lakhs in the beginning of the year 1953 54. If these amounts which would be available for rehabilitation are spread over the ten year period of the tentative programme planned by the appellant, the annual figure would come to Rs. 31 lakhs; and this amount would have to be deducted from Rs. 165 lakhs which the tribunal was inclined to grant in respect of the relevant item. That is how the tribunal has made the appropriate calculations under the formula, and has shown that, even after the payment of one month 's additional bonus as directed by it, the appellant would still be left with a surplus of Rs. 23.48 lakhs. That in brief is the nature and effect of the findings made by the tribunal. Before dealing with the merits of the points raised in these appeals it would be convenient to refer to the genesis and the terms of the formula which has been evolved by the Full Bench of the Labour Appellate Tribunal in the case of The Mill Owners Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay (1) in 1950. It appears that from 1940 A. D. onwards the claims for bonus made by the employees against their employers in different industries were dealt with on an ad hoe basis from case to case. Sometimes the employers voluntarily paid bonus to their workmen; and where disputes arose they were decided by the tribunals in the light of the circumstances of each case without relying on any broad consideration of policy or without attempting to lay down any general principles. In 1948 a bonus dispute arose between the Mill Owners Association, Bombay and its employees, and it was referred for adjudication to the Industrial Court. In considering this dispute the Industrial Court went (1)(1950) L.L.J. 1247. 941 elaborately into the matter, laid down certain principles and awarded to the workmen bonus equivalent in amount to 3/8 of the total basic earnings of each workman subject to certain conditions. In the subsequent year a similar dispute arose between the same parties; and it was again referred to the Industrial Court for adjudication. The Court made its award on July 7, 1950, directing 55 mills of the Association to pay to their workmen, whether permanent or temporary, 1/6 of the basic earnings of each of them as bonus. This award was challenged by the Association before the Labour Appellate Tribunal. It was urged on behalf of the Association that the wage structure in the textile industry had been settled by standardisation and so bonus must be regarded as a gratuitous payment; and it was argued that at any rate grant of bonus cannot be made for the purpose of making up the deficiency between the actual and living wages. These contentions were rejected by the Labour Appellate Tribunal and the question about the grant of bonus was considered on general principles on the basis of which a formula,, often described as the First Full Bench Formula, was ultimately evolved. "As both capital and labour contribute to the earnings of the industrial concern ", observed the appellate tribunal, " it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges ". The appellate tribunal was also of the view that where the goal of living wages had been attained, bonus, like profit sharing, would represent more as the cash incentive to better efficiency and production; but where the industry had not the capacity to pay a living wage bonus must be looked upon as the temporary satisfaction wholly or in part of the needs of the employee. In other words, according to this decision, the award of bonus is based on a two fold consideration. It is made in recognition of the fact that labour has made some contribution to the profit earned by the industry, and so it is entitled to claim a share in it; and it is also intended to help labour to bridge or narrow down the gap, as far as may be reasonably possible, between the living wage to which labour is entitled and the actual wage received by it. 942 Dealing with the problem from this point of view the appellate tribunal conceded that investment necessarily implies the legitimate expectation of the investor to secure recurring returns on the money invested by him in the industrial undertaking, and so it held that it was essential that the plant and machinery should be kept continuously in good working order for the purpose of ensuring that return. Such maintenance of the plant and machinery would necessarily be to the advantage of labour because the better the machinery the larger the earnings and the brighter the chance of securing a good bonus. On this consideration it was held that the amount of money that would be necessary for rehabilitation, replacement and modernisation of the machinery would be a prior charge on the gross profits of the year. Since the depreciation allowed by the income tax authorities is only a percentage on the written down value the depreciation fund set apart on that basis would not be sufficient for the purposes of rehabilitation and an extra amount would have to be annually set apart nationally under the heading of 'reserves ' to make up the deficit. This position was apparently not disputed by the employees. The claim made by the industry that a fair return on the paid up capital must be secured and that ordinarily it should be paid at the rate of 6% per annum was also not disputed. The employees, however, challenged the claim of the industry that reserves employed as working capital should carry any interest; but their objection was overruled and it was held that working capital also would be entitled to interest though at a much lower rate than that on the paid up capital. Then the question of taxes was considered and it was agreed that a provision had to be made for taxes which would be payable on the amount determined after deducting depreciation from the gross profits less any bonus which may be awarded. In the result the appellate tribunal laid down the manner and method in which the available surplus should be determined. The notional accounting for this purpose starts with the figure of the gross profits which are 943 arrived at after payment of wages and dearness allowance, to the employees and other relevant items of expenditure. Then a deduction for depreciation is made, and on the notional balance thus derived a provision for taxes payable is allowed. Then follow the provisions for reserves for rehabilitation, return on paid up capital and return on reserves employed as working capital. That gives the amount of surplus if ' any. Whenever the working of this formula leaves an amount of available surplus, labour was held entitled to claim a reasonable share in this amount by way of bonus for the current year. This formula is based on considerations of social justice and is intended to satisfy the legitimate claims of both capital and labour in respect of the profits made by the industry in a particular year. It takes the particular year ' as a unit and makes all its notional calculations on the basis of the gross profits usually taken from the profit and loss account; in this particular case the available surplus determined by the application of the formula was found to be 2.61 crores; and out of this surplus 0.30 crores were awarded as bonus to clerks and other staff and 1.86 crores was awarded as bonus to the employees leaving a net notional balance of 0.45 crores. This Court had occasion to consider the said formula in Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur (1). The judgment in that case indicates that without committing itself to the acceptance of the formula in its entirety, this Court in general accepted as sound the view that since labour and capital both contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit if there is a surplus after meeting the four prior or necessary charges specified in the formula. It is relevant to add that in dealing with the concept of bonus this Court ruled that bonus is neither a gratuitous payment made by the employer to his workmen nor can it be regarded as a deferred wage. According to this decision, where wages fall short of the living (1) ; 120 944 standard and the industry makes profit part of which is due to the contribution of labour, a claim for bonus can be legitimately made. However, neither the propriety nor the order of priority as between the four prior charges and their relative importance nor their content was examined by this Court in that case; and though the formula has subsequently been generally accepted by this Court in several reported decisions (Baroda Borough Municipality vs Its Workmen (1), Sree Meenakshi Mills, Ltd. vs Their Workmen (2) and The State of Mysore vs The Workers of Kolar Gold Mines (3) ) the question about the adequacy, propriety, or validity of its provisions has not been examined nor has the general problem as to whether the formula needs any variation, change or addition been argued and considered. It is for the first time since 1950 that, in the present appeals, we are called upon to examine the formula carefully and express our decision on the merits of its specific provisions. As we have already indicated, in dealing with the present dispute the tribunal has held that, in working out the formula, it could relax its provisions even though the proposed relaxation may mean a material variation of the formula itself. On behalf of the appellant Mr. Kolah has taken strong exception to this approach. He has argued that, in the last eight years and more, on the whole the formula has worked fairly well in the interest of both capital and labour, and so the tribunal was not justified in departing from it in the present case. This argument undoubtedly raises a question of considerable importance. Before examining this argument, however, it is necessary to consider one preliminary point: Was the tribunal justified in holding that the appellant could not be allowed to add to its previous claim for rehabilitation ? The decision of the tribunal on this point seems to indicate that the tribunal thought that the appellant was estopped from making any such claim; and the correctness of this conclusion is challenged by the appellant. (1)[1957] S.C.R. 33, 39. (2) ; , 884. (3) ; 945 It is true that, in the report submitted by the appellant before the Tariff Commission in April 1953, it had set out the details of its ten year programme which included, besides replacement, rehabilitation, modernisation and expansion, mechanisation of quarries as well as construction and improvement of houses for its labour staff. The report of the Tariff Commission (p. 30) shows that the cost of the programme was ' estimated at Rs. 18.36 crores, excluding the cost of a new plant at Sindri, or about Rs. 184 lakhs per annum. Subsequently in January 1954, when Mr. Tongaonkar gave evidence in the previous adjudication proceedings, he produced a statement (exhibit U 8) according to which the appellant 's annual requirements for rehabilitation would be of the order of Rs. 192 or 193 lakhs, whereas in the present proceedings the said claim is made at Rs. 284 lakhs. A bare statement of these facts prima facie suggests that the appellant 's present claim for rehabilitation has been growing from stage to stage, and in its present form it is very much inflated; and that is what the tribunal has also assumed. In our opinion this assumption is not wholly correct. Mr. Tongaonkar 's evidence shows that in the report of the jobs submitted to the Tariff Commission the appellant had not included all relevant items of rehabilitation, replacement and modernisation. The report merely gave a list of the jobs which the appellant had proposed to undertake during the ten year period ending July 31, 1962. It was in no sense an exhaustive statement about the appellant 's requirements in regard to the rehabilitation of all its blocks. In fact, having regard to the nature and scope of the enquiry before the Tariff Commission, the report made by the appellant had to be restricted to the urgent jobs which it wanted to undertake during the execu tion of its ten year programme; and so it would not be reasonable to hold that the figure of annual rehabilitation expenses which can be deduced from the said report has any relation to the claim for rehabilitation made by the appellant in terms of the working of the formula. Then again the appellant 's claim for rehabilitation 946 in the earlier proceedings has also been satisfactorily explained by Mr. Tongaonkar. The respondents have placed considerable reliance on the statement filed by Mr. Tongaonkar in the said proceedings (exhibit U 8). This document has been produced by the respondents in support of their contention that it purports to make a claim for Rs. 192 lakhs per year 'for rehabilitation. That no doubt is true ; but in terms the document purports to show the estimated expenditure required during the ten year period there specified; and as Mr. Tongaonkar has stated, it does not include a full statement of the claim in regard to the rehabilitation of all the blocks belonging to the appellant. In considering the respondents ' argument on this point, it is necessary to bear in mind that in the earlier proceedings the appellant had filed a separate statement showing the amount to which it was entitled by way of rehabilitation under the formula; this statement was exhibit C 3 and it has been produced in the present case and exhibited as U 5. It appears that in the earlier proceedings the tribunal did not attach any importance to the said document and virtually ignored it because, like the present tribunal, it held that " it does not appear to be necessary to plan further ahead than ten years and it is desirable to base calculations of rehabilitation on realities "(1). Even so the Labour Appellate Tribunal found that the appellant 's contention that its workmen were not entitled to any additional bonus was not well founded even if its claim for rehabilitation was confined to Rs. 192 or Rs. 193 lakhs. Besides, Mr. Tongaonkar has stated on oath that exhibit U 8 was not among the documents originally submitted by the appellant to the tribunal in 1954. it was in fact prepared and submitted at a later stage at the instance of the tribunal itself. It is, therefore, clear that exhibit U 8 was not intended to, and did not supply, the basis of the appellant 's claim in the earlier proceedings in accordance with the formula. A study of the items contained in exhibit U 8 also supports the same conclusion. Mr. Tongaonkar has (1) ,592. 947 stated that the total amount of the estimated expenditure shown in this document included only a small portion of the expenditure required for rehabilitation of the post 1944 block. It is true that Mr. Tongaonkar 's statement that in the said total amount nearly Rs. 50 lakhs represent the amount for replacement or rehabilitation of post 1944 block is inaccurate. The Chaibasa Cement Factory and the Sevalia Cement Factory for the rehabilitation of which Rs. 64.98 and 85.15 lakhs have been claimed in exhibit U 8 are undoubtedly parts of the post 1944 block and the amounts claimed for them are very much more than Rs. 50 lakhs. It is nevertheless clear that 'the items in exhibit U 8 do not include a claim for rehabilitation for all the blocks of the appellant, and it is not surprising either, because a claim for the rehabilitation of all the blocks had been separately made by the appellant in the earlier proceedings under exhibit C 3. Thus there can be no doubt that neither the report submitted by the appellant before the Tariff Commission nor the estimate given by exhibit U 8 was prepared under the formula; and so any disparity in the amounts claimed in the two earlier documents cannot be seriously pressed into service against the appellant when it seeks to make a claim for rehabilitation strictly in accordance with the formula. We must, therefore, hold that the tribunal was in error in coming to the conclusion that by reason of its previous conduct the appellant could not be allowed to place its claim for rehabilitation at a figure higher than Rs. 192 lakhs in the relevant year. In this connection it would be pertinent to remember that in dealing with the employer 's claim for rehabilitation the tribunal is called upon to assess respective values of the relevant factors on hypothetical and empirical considerations, and so it may generally not be useful or wise to take recourse to strict legalistic principles like estoppel in deciding this question and indeed all material questions in industrial adjudications. Does the formula need to be revised, and should it be revised and reconstructed ? That is the question 948 which we must now consider. It appears that some tribunals have taken the view that the rigid working of the formula may defeat its object of recognising the social justice of labour 's claim for bonus and so they have made suitable adjustments in its operation. It is this approach which has raised the larger issue of principle in the group of appeals which have been placed for disposal before the Constitution Bench. So we must examine this question in its broad aspects and if we decide not to change the formula we must state what, in our opinion is the content of the different items mentioned in the formula and how they should be calculated and mutually adjusted. Let us first set out the case as it has been made for changing the formula. It is 'urged that though the formula purports to recognise the principle of social justice on which labour 's claim for bonus is based, it does not accord to the said claim the high priority it deserves. Social justice has been given a place of pride in the preamble to the Constitution and it has been enshrined in the Directive Principles under articles 38 and 43. Since 1950, ideas about social and economic justice have made an appreciable progress and they require the readjustment of priorities prescribed by the formula in favour of the claim for bonus. It is also contended that experience in industrial adjudication during the last eight years and more shows that employers are becoming increasingly more rehabilitation conscious and their appetite for the provision of rehabilitation is fast growing from year to year. In the present case, for instance, though the appellant occupies a dominant position in its line of trade and though it makes large profits, it has made such a tall claim for rehabilitation that if the said claim is allowed the working of the formula leaves no available surplus from which bonus can be granted to labour. The appellant has no doubt paid bonus for three months and it is unlikely that the appellant would depart from its practice of paying the said bonus even in future; but that does not affect the 949 position that in the light of the appellant 's claim for rehabilitation the working of the formula would not justify the grant of any bonus to labour. This shows that the notional claim for rehabilitation which an employer can make under the formula tends to be completely divorced from the reality or actuality of the need of rehabilitation; and that needs to be corrected. Besides, it is said, that the theory that the trading profits of the industry must provide for the whole of the rehabilitation expenses is not universall accepted by enlightened and progressive businessmen and economists. In this connection reliance is placed on the observations of F. R. M. de Paula in his " Principles of Auditing " that " the object of depreciation is the replacement of original investment capital and that an increase in replacement cost is an important matter and means that additional capital is required in order to maintain the original earning capacity ". It is also pointed out that the Institute of Chartered Accountants in England and Wales, in its recommendations made in 1949 under the heading " Rising price levels in relation to accounts " has pointed out that " the gap between historical and replacement costs might be too big to be bridged by a provision made for replacement spread over a period of years either by way of supplementing the depreciation charges or by setting up in lieu of depreciation a provision for renewals based on estimated replacement costs ". It is therefore suggested that in revising the formula the claims for rehabilitation should be fixed at a reasonable amount and industry should be required to find the balance from other sources and if necessary from its share in the available surplus. In this connection it is pointed out that when the Labour Appellate Tribunal evolved the formula it was dealing directly with the needs of the textile industry and there was no dispute that the plant and machinery of the textile industry had become old and obsolescent and needed immediate replacement, rehabilitation and modernisation. It is doubtful whether, in giving priority to the claim for rehabilitation in the 950 context of the needs of the textile industry with which the appellate tribunal was concerned, it really intended that rehabilitation should be claimed 'by every industry on theoretical considerations whether or not the said claim was justified by its actual or practical need for rehabilitation. In substance the argument is that the Full Bench of the Labour Appellate Tribunal evolved its formula in order that labour may get a reasonable share in the available surplus and may thereby receive assistance in filling up the gap between its actual wage and the living wage which it looks forward to receive in due course; and if it is found that, in working out the items which are treated as prior charges, in a majority of cases the formula leaves no available surplus, then its main object is frustrated and that is the justification for revising it and readjusting its priorities. In support of this view reliance has also been placed on the recommendations of the Committee on 'Profit sharing '. This Committee had been appointed in 1948 to advise the Government of India " on the principles to be followed for the determination of (a) fair wages to labour, (b) fair return to capital employed in the industry, (e) reasonable reserves for the maintenance and expansion of the undertaking, and (d) labour 's share of the surplus profits, calculated on a sliding scale normally varying with production, after provision has been made for (b) and (c) above ". The Committee viewed its problem from three im portant angles, viz., " profit sharing as an incentive to production, profit sharing as a method of securing industrial peace, and profit sharing as a step in the participation of labour in management ". The Committee recognised that putting back profits into the industry is one of the most useful forms of capital investment and this should be encouraged and it recommended that a figure of 20% for reserves should be generally aimed at, though it considered that, as a first charge, 10% of the net profits should be compulsorily set aside for reserves, leaving it to the good sense of the management to allocate the balance or more out of their own share of surplus profits. In regard 951 to the labour 's share in the surplus profits, the Committee stated that, having due regard to the conditions prevailing in the industry selected for an experiment in profit sharing, it had come to the conclusion that labour 's share should be 50% of the surplus profits of the undertakings. It is a matter of common knowledge that so far Government have not thought it desirable, expedient or possible to legislate in this matter in the light of the recommendations made by this Committee; but it is suggested that these recommendations afford a rational basis for reconstructing the formula. It may be conceded that there is some force in some of the arguments urged in support of the plea that the formula should be revised and its priorities should be readjusted and redefined; but, on the other hand, we cannot ignore the fact that on the whole the formula has worked satisfactorily in a large number of industries all over the country. Except for a few cases, particularly in Bombay, where some of the tribunals have taken the view that, in its rigid form, the formula has become unworkable from the point of view of labour, in a majority of cases industrial disputes arising between employers and their workmen in regard to bonus have been settled by tribunals on the basis of this formula; and it would not be unreasonable or inaccurate to say that by and large labour 's claim for bonus has been fairly and satisfactorily dealt with. The main source of contest in the working of the formula centres round the industry 's claim for rehabilitation; but, as we shall presently point out, if this claim is carefully scrutinised and examined in the light of evidence which the employer has to produce in support of his claim, even the settlement of this item would, as it is intended to, invest the tribunal with sufficient discretion to make the working of the formula elastic enough to meet its two fold object of doing justice both to industry and labour. It is true that in the working of the formula employers sometimes make an attempt to add items to the list of prior claims. In The State of Mysore vs The 121 952 workers of Kolar Gold Mines (1), it was urged before this Court by the industry that it was a wasting industry and as such it needed special consideration. The contention was that for the prosperity and longevity of the industry a special provision for the prospecting of new ore has to be made and that should be added as an additional item in the list of prior charges. This argument was, however, rejected and it was held that the special features of the industry would be taken into account in determining the amount which could be reasonably claimed under rehabilitation. This decision shows the reluctance of this court to vary or add to the formula which oil the whole has so far worked fairly satisfactorily. The theory that the whole of the rehabilitation charges need not come out of the trading profits of the industry does not appear to be generally accepted. As has been observed by Paula himself: " In the past the accepted principle has been that the main object of providing for the depreciation of wasting assets is to recoup the original capital invested in the purchase of such assets. As part of the capital of the concern has been invested in the purchase of these assets, therefore, when their working life comes to an end, the earning capacity of these assets ceases. Thus they will become valueless for the purposes of the business, and the original capital sunk in their acquisition, less any scrap value, will have been lost. Hence, in order to keep the original capital of a business intact, if any part thereof is invested in the purchase of ' wasting assets, revenue must be held back by means of depreciation charges to profit and loss account, in order to replace the capital that is being lost by reason of the fact that it is represented by assets that are being consumed or exhausted in the course of trading or seeking to earn income It is also stated by the same author that " in all cases where One of the direct causes of earning revenue is gradually to consume fixed assets of wasting nature, the depreciation of such assets should be provided for out of revenue " (3). It is true (1) ; (2) F.R.M. de Paula 's Principles of Auditing ', 1957, P. 136. (3) Ibid, p. 138. 953 that the author recognises that " owing to the very considerable increase in the price level since the termination of the 1939 45 war, industry is finding its original money capital insufficient for its needs. Thus the cost of replacement of fixed assets has greatly increased and in addition, further working capital is required to finance a given volume of production. Many economists, industrialists, and accountants contend that provision should be made, in arriving at profits, for this increased capital requirement ". Having noticed this view the author adds that " at the time of writing this matter is still being debated and final decisions have not yet been reached ", and he concludes that " until a final solution of this complex problem is reached it would be inadvisable for the auditor to act on any principle other than that recommended by the Institute "(1); and that principle appears to be that depreciation should be provided for out of revenue. Besides, it must be borne in mind that, in adjusting the claims of industry and labour to share in the profits on a notional basis, it would be difficult to repel the claim of the industry that a provision should be made for the rehabilitation of its plant and machinery from the trading profits. On principle the guaranteed continuance of the industry is as much for the benefit of the employer as for that of labour; and so reasonable provision made in that behalf must be regarded as justified. The recommendations made by the Committee on Profit sharing ' cannot be of much assistance because they raise questions of policy and principle which Legislature can more appropriately consider. If the Legislature feels that the claims for social and economic justice made by labour should be redefined on a clearer basis it can step in and legislate in that behalf. It may also be possible to have the question comprehensively considered by a high powered commission which may be asked to examine the pros and cons of the problem in all its aspects by taking evidence from all industries and all bodies of workmen. The plea for the revision of the formula raises an issue (1)F.R.M. de Paula 's Principles of Auditing ', 1957, P 80. 954 which affects all industries; and before any change is made in it, all industries and their workmen would have to be heard and their pleas carefully considered. It is obvious that while dealing with the present group of appeals it would be difficult, unreasonable and inexpedient to attempt such a task. That is why we think that labour 's claim for bonus should be decided by tribunals on the basis of the formula without attempting to revise it. Whilst we are not prepared to accede to the argument that the formula should be revised, we wish to emphasise that the formula is elastic enough to meet reasonably the claims of the industry and labour for fairplay and justice. In its broad features it recognises the claims of the industry and tabulates them under different items as prior charges, and then provides for the distribution of available surplus between the labour, the industry and the shareholders. The items specified in the formula have to be worked out notion ally on theoretical grounds; in determining the content of each one of the items it is therefore essential to scrutinise and weigh carefully all the relevant and material facts. If the content of each item is determined objectively in the light of all relevant and material facts, the tribunals would generally find it possible to make reasonable adjustments between the rival claims and provide for a fair distribution of the available surplus. In this sense it is necessary to treat the formula as elastic and not rigid in working out detailed calculations under it. We have no doubt that if the industry and labour genuinely desire to settle the disputes as to bonus without the intervention of the conciliator or the adjudicator, the formula would help them to arrive at a reasonable settlement. If the employer does not make an unduly inflated claim under the items which safeguard industry 's interests, and if workmen do not make an exaggerated demand for bonus, it would normally not be beyond the co operative effort of the parties to arrive at a reasonable figure which should be paid to labour by way of bonus from year to year. It is unnecessary to emphasise that industrial disputes 955 settled amicably are in the interest of both capital and labour. Amicable settlements of such disputes lead to ' peace, harmony and co operation between capital and labour and that invariably helps more production which is a matter of great national importance at present. But unfortunately, in many cases, both the industry and labour do not appear to be too keen on settling ' these disputes amicably, with the result that claims for bonus give rise to disputes year after year and inevitably the machinery under the Industrial Disputes Act is set in motion. Conciliation efforts are made but they do not succeed; then reference is made under section 10 of the Act and the dispute is taken before the tribunal; since both the parties are not in a mood to co operate with each other, over statements are made on both sides, allegations are met by counter allegations and they are sought to be supported by evidence. In such a case the tribunals must examine the rival contentions and scrutinise the evidence adduced by the parties objectively and in a judicial manner. If proper evidence is led and it is judicially weighed, the tribunal would be able to work the formula in a reasonable manner and arrive at a result which would be substantially in conformity with the object underlying the formula. It is obvious that, in making the relevant calculations under the items of prior charges specified in the formula, the tribunals should have a clear idea as to the content of each one of the said prior charges; and so it is necessary to examine carefully this aspect of the matter. We have already noticed that the formula for awarding bonus to workmen is based on two considerations; first that labour is entitled to claim a share in the ' trading profits of the industry because it has partially contributed to the same; and second that labour is entitled to claim that the gap between its actual wage and the living wage should within reasonable limits be filled up. The concept of labour 's contribution to the profits of the industry has reference to the contribution made by the employer and the workmen taken together as a class; and so it would 956 not be relevant to, inquire which sectionof labour has contributed to what share of the profits. The board idea underlying this concept is that the capital invested by the employer and labour contributed by workmen jointly produce the profits of an industry. This does not necessarily mean that, in theindustry in question, labour must actually manufacture or produce goods, though, in the case of manufacture and,production of goods contribution of labour. is patent and obvious. In the Burma Shell Oil Storage and Distributing Co., of India Pd. vs Their, Workmen(1) the Labour Appellate Tribunal rejected the employers ' claim that, since workmen employed by them did not manufacture or produce any goods but merely assisted them in the distribution Of oil, they were not. entitled to claim any bonus under the formula. It is wrong to say ", observed the labour Appellate, Tribunal, that because the employees of these oil companies merely market the oil they have not earned the right to any bonus". It was also Pointed out that the workmen had to perform :duties of various intensity for marketing an article of public. utility,. and in that sense they contribute to, production according to the concept of economists". So were the clerks held entitled to bonus for,their duties in the, general business of the concern though, they had nothing to do with the physical act of marketing the commodity it was also emphasised that the other object of granting the bonus was to help the workmen to fill up the gap between their actual wages and the living wage. Thus in dealing with the claim for bonus made by workmen the two fold basis of the formula must always be kept in mind. The working of the formula begins with the figure of gross profits taken from the profit and loss account which are arrived at after,payment of wages and dearness allowance to the employees and other items of expenditure. As a general rule the amount of gross profits thus ascertained is. accepted without submitting the statement of the ' profit and loss 'account to a close scrutiny. If, however, it appears that (1)(1953) 957 entries have, been made on the debit side, deliberately and mala fide to reduce the amount of gross profits, it would be open to the tribunal to examine the question and if it is satisfied that the impugned entries have been made mala fide it may disallow them. This principle has been recognised by the Labour Appellate Tribunal when it observed, for instance, in M/s. J. K. Cotton Manufacturers Ltd., Kanpur vs Their Workmen (1) that if managing agents deliberately divert profits to the selling, agents with a view to deprive labour of their bonus and pay commission to the selling. agents at high rates then certainly the matter must be taken into consideration in the determination of available surplus balance " It would likewise be open to the parties to claim the exclusion of items either on the credit or on the debit side on the ground that the impugned items are. wholly extraneous and entirely unrelated to the trading profits of the year. In considering such a plea the tribunal must resist the temptation of dissecting the balance sheet too minutely or of attempting to reconstruct it in any manner. It is only glaring cases, where the impugned item may be plently and obviously extraneous that a plea for its exclusion should be entertained. Where the employer makes profits in the course of carrying on his trade or business, it would be unreasonable to inquire whether each one of the, items of the said profit is related to the contribution made by labour. In such matters, the tribunal must take an overall, practical and commonsense view. Thus it ma be stated that as a rule the gross profits appearing at the foot of the statement of the profit, and loss account should be taken a,% the basic figure while working out the formula. In, working out the formula the other important fact which should not be ignored is, that the formula proceed 's to deal with the labour 's claim for bonus on the basis that the relevant year for which bonus is claimed is a self sufficient unit and the appropriate accounts have, to. be made on the notional basis in respect of the said, It is substantially because (1)[1954] L.A.C. 716, 745. (Also vide , 421.) 958 of this basic assumption that if an employer receives during the bonus year a refund with respect to the excess profits tax paid by him in a previous year the amount of refund is not included on the credit side. In Model Mills etc. ' Textile Mills, Nagpur vs The Rashtriya Mill Mazdoor Sangh (1) the Labour Appellate Tribunal observed that according to the. formula, the income tax is to be deducted as a prior charge on trading results of the year just as much as the bonus is to be ascertained upon the trading results of the year. The concession made by the income tax authorities in making a refund of the excess profits tax already paid by the employer is intended to aid a concern on account of past losses and so it has nothing to do with the formula. The same principle governs cases where owing to a loss incurred in the previous year or years the employer is entitled to claim allowance for adjustment under section 24 (2) of the Income tax Act during the bonus year; and so it is held that the allowance for adjustment which the employer claims cannot be taken into account in determining the amount of income tax payable on the profits of the bonus year under the formula. In Bennett Coleman and co., Ltd. vs Their Workmen (2) the Labour Appellate Tribunal rejected the contention raised by labour that since under section 24 (2) the employer would not be liable to pay tax during the bonus year no provision for payment of tax should be made in working out the formula. The Labour Appellate Tribunal pointed out that the fact that the employer was not required to pay tax during the bonus year was the result of the adjustment of the previous year 's unabsorbed depreciation and losses against current year 's profit, and that had no relevance in determining the available surplus from the trading profits of the bonus year. The same view has been taken in several other decisions to which the Labour Appellate Tribunal has referred. In our opinion, once it is realised that in working out the formula the bonus year is taken as a unit self sufficient by itself, the decisions of the Labour Appellate Tribunal in regard (1) (1955) I J. 534, 540. (2) (1955) I J. 60. 959 to the refund of excess profits tax and the adjustment of the previous year 's depreciation and losses against the bonus year 's profits must be treated as logical and sound. Having ascertained the amount of gross profits, the first item of deduction relates to depreciation. The propriety of this deduction was not questioned before the Labour Appellate Tribunal which evolved the formula; but the content of the item of depreciation became a matter of controversy subsequent to 1950. After 1948, section 10 (2) (vi) of the Income tax Act has provided for initial and additional depreciation besides the statutory depreciation which was already admissible. In other words, depreciation allowed under the Income tax Act now consists of what may be called the statutory normal depreciation calculated under r. 8 as well as initial depreciation and additional depreciation. The allowance of these depreciations is an exception to the general rule that the income has to be taxed without reference to the diminution in the value of the capital. Under the amended provision of section 10 (2) (vi) of the Income tax Act the employers began to claim that from the gross profits all the depreciations admissible under the Income tax Act should be debited; and this claim was upheld by some tribunals and rejected by others. This conflict of decisions led to confusion; and so a Full Bench of the Labour Appellate Tribunal was constituted to decide this and other points in the case of the U. P. Electric Supply Co., Ltd., etc. Electricity Supply Undertakings vs Their Workmen(1). The Full Bench held that " the depreciation which should be deducted from the gross profits in working the formula is annual depreciation allowable under the provisions of the Income tax Act including the multiple shift depreciation; it also held that the initial depreciation and additional depreciation which were also allowed under the Income tax Act are abnormal additions to the income tax depreciation designed to meet particular contingencies and for a limited period; (1) (1955) II J. 431. 122 960 and so it would not be fair to the workmen that these two depreciations should be rated as prior charges before the available surplus is ascertained ". Apparently some doubt arose as to what exactly was allowed to be deducted under this Full Bench decision; and two of the members of the Full Bench took occasion to clarify the position in Surat Electricity Co. 's Staff Union vs Surat Electricity Co., Ltd. (1). This decision shows that what the Full Bench intended to treat as depreciation for the purpose of the formula was a notional amount of normal depreciation; in order to avoid any future doubt or confusion, the judgment in the case has set out the manner in which this notional normal depreciation has to be worked out. Since this decision was pronounced it is the notional normal depreciation that is deducted from the gross profits in working the formula. It seems to us that the view taken by the Full Bench is wholly consistent with the basic idea of social justice on which the original formula is founded. The relevant provisions of the Income tax Act allowing further depreciation are based on considerations which have no relevance to the original formula; indeed, as the Full Bench has pointed out, if the said two items of depreciations are allowed to be deducted from the gross profits it would in a majority of cases defeat the object of the formula itself. We would accordingly hold that the depreciation which has to be deducted from the gross profits should be the notional normal depreciation as explained in the case of Surat Electric Co., Ltd. (1). The balance obtained after deducting depreciation from the gross profits is then taken as the amount on which calculations have to be made about the income tax payable for the bonus year. This item gives rise to a controversy between the parties. It is urged for the employers that in determining the amount payable by way of income tax on this balance the tribunal should not take into consideration allowances which are made under the relevant provisions of the Income tax Act. There is no doubt that in taxing the employer for the bonus year the Income tax Act would (1)(1957) II L. L. J. 648. 961 make allowance not only for the normal depreciation but also for the initial and additional depreciations; but the argument is that the income tax should be determined nationally without reference to the said allowances. In support of this argument it is further urged that though the employer may obtain credit for the two further depreciations for some years, later on the said allowances will not be made and his liability ' to pay tax would be correspondingly increased. It is but fair, so the argument runs, that the employer should be allowed to create a fund of income tax reserve from which he would be able to bear his tax liability in future as and when it is bound to increase. On the other hand it is contended on behalf of workmen that while determining the amount of tax payable for the bonus year the tribunal cannot ignore the concession given to the employer by the Income tax Act by making the allowance of two further depreciations. What the employer claims is not the amount of tax payable during the bonus year but much more in addition in order to build up a reserve and this notion of building up a tax reserve for meeting future, though certain, increased tax liability is foreign to the basic idea of the formula. For making calculations under the formula the bonus year is taken as a unit and all items specified in the formula should be worked out on that basis. That is why the refund of the excess profits tax received in the bonus year is excluded from consideration and the right of the employer to adjust his previous year 's losses and depreciation against the trading profits of the bonus year is likewise ignored. So too the fact that the employer may have to pay increased taxes in future years must be treated as irrelevant. That in brief is the case for workmen. In our opinion, having regard to the basis of the formula and the manner in which the other items of the formula are required to be worked out, it would not be reasonable to allow the employer to claim under the item of income tax an additional amount is respect of the two further depreciations which are expressly allowed to him under section 10(2)(vi) of the Income tax 962 Act. It is clear that the amount determined under this item would not represent the actual tax which the income tax department will recover from the employer. In that sense it would always be a notional amount ; but in calculating even this notional amount it would be unfair and unjust to ignore the concessions allowed to the employer by section 10(2)(vi). The creation of a fund of income tax reserve may conceivably lead to unnecessary complications. Besides, if on principle the further depreciations allowed by the Income tax Act are treated as inadmissible under the formula and so are excluded from consideration, it would be substantially inconsistent with the object of such exclusion to allow the employer to claim tax in respect of the said amounts of the two depreciations. It is clear that even if the amount of income tax is determined after taking into account the concession given to the employer by section 10(2)(vi) it would work no hardship to the employer, for the simple reason that in future years when these concessions cease to be operative and his liability to pay the tax correspondingly increases, he would be entitled to claim the amount of income tax which would then be payable by him. This method of calculating income tax is thus fair to both the parties and it has besides the merit of being consistent with the basic character of the formula. It would be relevant in this connection to remember that, though in most of the industries workmen continue to be employed from year to year, nationally and on principle, the claim for bonus for a particular year is made on behalf of workmen employed during the said year; and in that sense, the relevant calculations have to be made with the bonus year as a unit. That is why considerations of future tax liability of the employer are foreign to the calculation under the formula. We would, therefore, bold that in calculating the amount of tax payable for the bonus year the tribunals should not take into account the concessions given by the Income tax Act to the employers under the two more depreciations allowed under section 10(2)(vi) of the Income tax Act. This point has been considered by this Court in 963 Sree Meenakshi Mills, Ltd. vs Their Workmen (1) where has upheld the view taken by the Full Bench the Labour Appellate Tribunal in the case of the U. Electric Co., Ltd., etc., Electricity Supply Undertakings (2) and has directed that in determining amount of income tax payable during the bonus yea the further depreciations permissible under the income tax Act should be taken into account. We would only like to add that in that case this Court had occasion to say what exactly the normal depreciation meant; but it is clear that the normal depreciation mentioned in the judgment was not intended to mean anything other than the notional normal depreciation as explained by the Labour Appellate Tribunal in the case of the Surat Electric Co., Ltd. (3 ). The amount income tax thus determined has then to be deduct( as a prior charge. The next step in the working of the formula related to the deduction of an appropriate amount in respect of the return on paid up capital as well as working capital. We have already noticed that the formula provides generally for the payment of interest at 69 per annum on the paid up capital and at 2% on worldling capital. Subsequent decisions show that the tribunals do not regard the said rates as inflexible and they have suitably modified them in the light of the relevant circumstances in each case. We think that this is a correct approach and that it is necessary to fix the rates of interest on the two items of paid up capital and working capital according to the circumstances of each case. In this connection it may be added that ordinarily industrial tribunals awards interest at the rate of 6% per annum on paid up capital. In Workmen of Assam Co., Ltd. vs Assam Co., Ltd. this Court held that interest allowed by the tribunal a 7% on paid up capital and confirmed by the Labour Appellate Tribunal was justified because " an industry connected with agriculture like the tea industry is exposed to greater risks than any other industry such (1) ; (3) (2) (1955) II L.L.J. 431. (4) 964 weather, pests in the plants and gradual deterioration of the soil ". On the other hand, in Ruston and ornsby (India) Ltd. vs Their Workmen (1) the Labour appellate Tribunal allowed only 4% return on the art of paid up capital represented by bonus shares for the year in which such shares were issued and ,)served that ,for subsequent years no distinction between it and other paid up capital represented by paid up shares should be made ". Similarly, in regard reserves or depreciation used as working capital interest has been allowed either at 4% or at 3% or ,Ten at 2% according to the relevant circumstances. in the Mill Owners Association, Bombay vs The Rashtriya Mill Mazdoor Sangh (2) the Labour Appellate Tribunal has observed that " as we have said before, there is no fixed rule as to the rates of such return (on capital) and each case must depend on its individual acts. We have in appropriate cases given as high as % but in case of the mills the Full Bench has considered that the equivalent of 2% would be reasonable nd we propose to retain it at that level for the present ". In Tea and Coffee Workers Union vs Brooke Bond (India) (Private) Ltd. (3) the Industrial Tribunal as considered the previous decisions on the question of the return on working capital and held that, in the case before it, it would be an adequate return on the working capital if 3% interest is allowed because there were no special reasons existing for allowing a higher ate. In dealing with this aspect of the matter it is relevant to point out that no distinction has been made )y tribunals between reserves used as working capital and depreciation fund similarly used. In the Mill Owners Association, Bombay vs The Rashtriya Mill Mazdoor Sangh (2) (page 523) when labour objected to the depreciation fund earning any return even if it was utilised in or about the business of the year, the labour Appellate Tribunal overruled the objection and observed that " no essential difference could be made between the depreciation fund and any other (1) (2) 522. (3)(1958) 965 fund belonging to the company which could be invested so as to earn a return ". It is thus clear that what is material is not the origin of the fund. It is the fact that the fund in the hands of the concern has been used as working capital that justifies the claim for art adequate return on it. We think it is commonsense that if the concern utilises liquid funds available in its hands for the purpose of meeting its working expenses rather than borrow the necessary amounts it is entitled to claim some reasonable return on the funds thus used. It is of course necessary that the employer must show that the amount under the depreciation fund was in fact available and that it has actually been used as working capital during the relevant year. What return should be allowed on such funds must inevitably be a question of fact to be decided by the tribunal in its discretion in each case in the light of the relevant circumstances. It would thus be noticed that in working out these two items under the formula there is no fixed or rigid rule about the rate of interest which can be claimed and awarded. It is also clear that if any fund is used by the employer for the purpose of expanding his business he is not entitled to claim any return on such fund under those items. In the case of the U. P. Electric Supply Co., Ltd. etc. Electricity Supply Undertakings (1) the Full Bench of the Labour Appellate Tribunal held that " considering all the factors presented to them they did not think that a case had been made out for giving a special prior charge in the shape of return on the reserves utilised for expansion ". When the amounts awardable to the employer under these two items are determined they have to be treated as prior charges in the calculation of available surplus under the formula. The original formula referred to replacement, rehabilitation and modernisation of the plant and machinery. Soon after the formula was evolved a dispute arose as to whether the industry was entitled to claim rehabilitation for its buildings as well and it was held that " a claim for rehabilitation for buildings had to (1) (1955) II L.L.J. 431. 966 be treated as a prior charge just like the claim for the rehabilitation of plant and machinery " (1). :This position is not disputed before us, and we think rightly. That takes us to the item of rehabilitation and it is this item which poses a very difficult problem. We have already noticed that the object of providing depreciation of wasting assets in commercial accounting is to recoup the original capital invested in the purchase of such assets; but the amount of depreciation which is allowed under the formula can hardly cover the probable cost of replacement. That is why the formula has recognised the industry 's claim for rehabilitation in addition to the admissible depreciation. Since the Second World War prices of industrial plant and machinery have registered a continuous upward rise and its inevitable consequence has been a proportionate rise in the claim for rehabilitation. In considering the claim for rehabilitation it is first necessary to divide the blocks into plant and machinery on the one hand and other assets like buildings, roads, railway sidings, etc., on the other. Then the cost of these separate blocks has to be ascertained and their probable future life has to be estimated. Once this estimate is made it becomes possible to anticipate approximately the year when the plant or machinery would need replacement; and it is the probable price of such replacement on a future date that ultimately decides the amount to which the employer is entitled by way of replacement cost. This problem can be considered item wise where the industry does not own too many factories and item wise study of the plant and machinery is reasonably possible; but if the industry owns several factories and the number of plants and machines is very large it would be difficult to make a study of the replacement costs item wise, and in such a case the study has to be blockwise. In either case what the tribunal has to estimate is the probable cost of replacement of plant and machinery at the time when such replacement would become due. It would be clear that the decision of this question would inevitably depend upon several uncertain (11) , 522. 967 factors. The estimate about the probable life of the plant and machinery is itself to some extent a matter of guess work and any anticipation, however intelligently made, about the probable trend of prices during the intervening period would be nothing but a guess. That is how, in the determination of this problem, several imponderables face the tribunals. One of the points which raises a controversy in this ' connection is: What level of prices should the tribunal consider in making its calculations about the probable cost of replacement ? Would it be the price level prevailing during the bonus year or that prevailing at the time when the tribunal holds its enquiry ? Prima facie it may appear that it is the price level prevailing in the bonus year that should be treated as relevant; but if the relevance of the evidence about the price level is limited only to the bonus year, it may hinder rather than help the process of a satisfactory determination of the probable cost of replacement. What the tribunal has to do in determining such cost is to project the price level into the future and this can be more satisfactorily done if the price level which has to be projected into the future is determined not only in the light of the prices prevailing during the bonus year but also in the light of subsequent price levels. It seems to us that in order to enable the tribunal to make an estimate in this matter as near actualities or realities as possible it is necessary that the tribunal should be given full discretion to admit all relevant evidence about the trend in price levels. The price level during the bonus year would no doubt be admissible; but that alone should not be taken as the basis for decision. That is the view which the tribunals have taken in a majority of cases in dealing with the question of rehabilitation and we do not think that there is any justification for disturbing the usual practice in that behalf. The problem of determining the probable cost of replacement itself is very difficult; but the difficulty is immeasurably increased when it is remembered that the claim for rehabilitation covers not only cases of 123 968 replacement pure and simple but of rehabilitation and modernisation. In the context rehabilitation is distin guished from ordinary repairs which go into the working expenses of the industry. It is also distinguished from replacement. It is quite conceivable that certain parts of machines which constitute a block may need rehabilitation though the block itself can carry on for a number of years; and this process of rehabilitation is in a sense a continual process. Unlike replacement, its date cannot always be fixed or anticipated. So with modernisation; and all these three items are included in the claim for rehabilitation. That is why we think it is necessary that the tribunals should exercise their discretion in admitting all relevant evidence which would enable them to determine this vexed question satisfactorily. At this stage it is relevant to remember that the claim under this item is confined to rehabilitation, replacement and modernisation. It is common ground that expansion of the plant and machinery is not included in this item; but in several cases it is not easy to distinguish between modernisation of the plant and machinery and its expansion. It is urged that an expert can, if he so chooses, make an attempt to include expansion within what he may describe as modernisation by clever use of technical words and details, and that it is precisely this aspect of the matter which has to be carefully examined by the tribunal. The industry sometimes claims that a plant may become obsolescent because it has become out of date and has to be substituted by a new modern plant. Is the introduction of the new modern plant in such circumstances an item of expansion or mere modern isation ? It is difficult to lay down any general tests which would govern the decision of this question. If it appears fairly on the evidence that the introduction of the modern plant or machine is in substance an item of expansion of the industry, expenses incurred in that behalf have to be excluded. On the other hand, if the employer had to introduce the new plant essentially because the use of the old plant though capable of giving service was uneconomic and other 969 wise wholly inexpedient, it may be a case of modernisation. Similarly, if by the introduction of a modern plant or machine the production capacity of the industry has appreciably increased, it would be relevant for the tribunal to consider in an appropriate case whether it would be possible to apportion expenses on the basis that it is a case of partial modernisation and partial expansion. If, however, the increased production is not of a significant order it may be regarded as incidental to replacement or modernisation and the question of apportionment may not arise. We have set out these considerations in order to emphasise the fact that in dealing with the problem of rehabilitation the tribunal must carefully examine the evidence and consider the employer 's claim in all its aspects before determining the amount which should be allowed by way of rehabilitation as a prior charge in the relevant year. The decision on the question of the probable cost of rehabilitation is always reached by adopting a suitable multiplier. This multiplier is based on the ratio between the cost price of the plant and machinery and the probable price which may have to be paid for its rehabilitation, replacement or modernisation. Since there has been a continuous rise in the prices of industrial plant and machinery the older the plant which needs rehabilitation the higher is the multiplier. That is why there is always a competition between industry and workmen on this point. Industry is sometimes tempted to keep its old pre 1939 block alive with a view to claim a higher multiplier which gives it a larger amount of rehabilitation expenditure; whereas workmen urge that the old pre 1939 block has been nominally kept alive as a device and so press for a lower multiplier which would reduce the claim for rehabilitation. Once a proper multiplier is adopted in respect of each one of the blocks the first step in determining the probable cost of rehabilitation can be easily taken. It then becomes a matter of mere arithmetical calculation. At this stage the divisor steps in. The total amount required for rehabilitation which is determined by the 970 application of a suitable multiplier in respect. of each block has to be divided by a suitable divisor in respect of each block in order to ascertain the annual requirement of the employer in that behalf year by year. In the case of the divisor the employer seeks for a lower divisor whereas workmen claim a higher divisor and this contest has to be decided by the tribunal by reaching a fair conclusion on the evidence before it about the probable future life of the block in question. It would thus be noticed that the adoption of a suitable multiplier and divisor plays a very important part in the decision of the vexed question about the employer 's rehabilitation claim. Before actually awarding an appropriate amount in respect of rehabilitation for the bonus year certain deductions have to be made. The first deduction is made on account of the breakdown value of the plant and machinery which is usually calculated at the rate of 5% of the cost price of the block in question. Then the depreciation and general liquid reserves available to the employer are deducted. The reserves which have already been reasonably earmarked for specific purposes of the industry are, however, not taken into account in this connection. Last of all the rehabilitation amount which may have been allowed to the employer in previous years would also have to be deducted if it appears that the amount was available at the time when it was awarded in the past and that it had not been used for rehabilitation purposes in the meanwhile. These are the broad features of the steps which have to be taken in deciding the employer 's claim for rehabilitation under the working of the formula. " It would thus be clear that the decision of this major item in the working of the formula presents many difficulties; and in the last analysis its decision depends upon several hypothetical and empirical considerations. It is, therefore, not surprising that in the case of Metal Box Co. of India, Ltd. vs Its Workmen (1) the Labour Appellate Tribunal has observed that " It is unfortunately too true that all (1) , 321. 971 our calculations as to rehabilitation may be disproved by subsequent events; it is impossible to say what the trend of world prices would be in the next fifteen years or which circumstances will intervene before that period to upset such calculations one way or the other, and no calculations of this kind are capable of mathematical accuracy. We have to take a commonsense view of these matters and make an allowance ' for rehabilitation to the best of our ability and in accordance with our formula ". It has also been observed by the Labour Appellate Tribunal that if an appropriate multiplier and divisor are determined " they are generally used because the tribunals take the view that the reconsideration of the said multiplier and divisor should not be hastily undertaken and could be justified only on the basis of a substantial change of a stable character extending or likely to extend over a sufficient number of years so as to make a definite and appreciable difference in the cost of replacement ". (Vide: The Mill Owners Association Bombay vs The Rashtriya Mill Mazdoor Sangh (1) In dealing with the employer 's claim for rehabilitation tribunals have always placed the onus of proof on the employer. He has to prove the price of the plant and machinery, its age, the period during which it requires replacement, the cost of replacement, the amount standing in the depreciation and reserve fund, and to what extent the funds at his disposal would meet the cost of replacement. If the employer fails to lead satisfactory evidence on these points tribunals have on occasions totally rejected his claim for rehabilitation. (Vide: Ganesh Flour Mills Co. Ltd., Kanpur vs Ganesh Flour Mills Staff Union, Kanpur (2); Bombay Gas Co. Ltd. vs Their Workmen (3); Dharangadhra Chemical Works Ltd. vs Its Workmen (4)). If the tribunals are satisfied that the employer is deliberately and without a sufficient cause not taking any steps to rehabilitate, replace or modernise his machinery even though an appropriate allowance is made in that behalf from year to year, they may take into (1)(1952) (3)(1955) (2) (4) 972 account this conduct in determining the extent of such allowance in the bonus year in question. Similarly if it appears that the employer has deliberately or mala fide refrained from rehabilitating or replacing his old machinery with a view to claim a higher multiplier in calculating the rehabilitating amount, the tribunals may take his conduct into account in determining the actual allowance of rehabilitation to him. The main difficulty in deciding questions about reha bilitation arises from the fact that satisfactory evidence is not always placed before the tribunals and it is urged that the evidence given by the employers ' experts is interested and the workmen with their limited resources are not able to test the said evidence by adequate or effective cross examination. In such a case the tribunal may, if it so desires and if it is possible, secure the assistance of assessors (vide section 38 of the Industrial Disputes Act). It is therefore necessary that the tribunal should require the employer to give clear and satisfactory evidence about all the relevant facts on which it can make the requisite estimate. The questions which the tribunal has to consider under this item are essentially questions of fact and its final decision on them is bound to be hypothetical, since it would be based on a fair evaluation of several circumstances which are by no means certain and which cannot be predicated with any amount of precision or even definiteness. That is why it is of the utmost importance that all relevant and material evidence should be adduced by the employer and it should be properly tested by cross examination. When that is done the tribunal must do its best to consider the said evidence objectively and reach its final decision in a judicial manner. Once the amount of rehabilitation is thus determined the available surplus for the bonus year is ascertained and the final stage is reached when the tribunal has to give directions for the distribution of the said available surplus. It is not seriously disputed that three parties are entitled to claim a share in this available surplus; labour claims bonus from it, the industry claims a share for the purpose of its expansion 973 and other needs, and share holders claim a share by way of additional return on the capital invested by them. In the case of the Mill Owners Association, Bombay (1) where the formula was evolved, out of the available surplus of Rs. 2.61 crores 2.16 crores was distributed by way of bonus leaving a balance of 0.45 crores with the industry. In the Trichinopoly Mills Ltd. vs National Cotton Mills Workers ' Union (2) the available surplus was found to be Rs. 34,660 and out of it Rs. 30,000 was ordered to be distributed as bonus to the workmen. These two and other similar in stances, however, cannot be pressed into service for the purpose of evolving any general rule as to the ratio or proportion in which the available surplus should be distributed. The ratio of distribution would obviously depend upon several facts: What are the wages paid to the workmen and what is the extent of the gap between the same and a living wage? Has the employer set apart any gratuity fund ? If yes, what is the amount that should be allowed for the bonus year ? What is the extent of the available surplus ? What are the dividends actually paid by the employer and what are the probabilities of the industry entering upon an immediate programme of expansion? What dividends are usually paid by comparable concerns ? What is the general financial position of the employer? Has the employer to meet any urgent liability such as redemption of debenture bonds ? These and similar considerations will naturally determine the actual mode of distribution of the available surplus. In this connection labour 's claim to fill up the gap between the wage actually paid to it and the living wage has an important bearing on the decision of this point. Industry 's claim for paying additional return on capital and for making additional provision for expansion would also have to be considered. The fact that the employer would be entitled to a rebate of income tax on the amount of bonus paid to his workmen has to be taken into account and in many cases it plays a significant part in the final distribution. Therefore, in our opinion once the (1) (2) 974 available surplus is determined, the tribunal should, in the light of all relevant circumstances, proceed to make an award directing the payment of a fair and just amount to labour by way of bonus. If the formula is thus worked reasonably it would in a large majority of cases succeed in achieving its principal object of doing justice both to labour and industry. Before we part with the question of working the formula it is necessary to observe that the practice adopted by some tribunals in giving the amount of bonus a priority in the calculations is not justified. Logically it is only after all the prior charges have been determined and deducted from the gross profits that available surplus can be ascertained; and it is only after the available surplus is ascertained that the question of awarding bonus can be considered. Some tribunals seem to work out nationally the amount of bonus which they think can be awarded and place that amount higher up in the process of making calculations before the income tax payable is determined. The inevitable consequence of this procedure is to make the amount of tax proportionately less. We wish to make it clear that this procedure should not be followed. As we have already pointed out, in directing the distribution of the available surplus the tribunal has to take into account the rebate of income tax to which the employer is entitled on the amount of bonus paid to his workmen but that on principle is different from placing the amount of bonus immediately after depreciation in the working of the formula. It has been urged before us by the respondents that the amount of rehabilitation as well as the amount of depreciation should be deducted from the gross profits before income tax payable is ascertained. In this connection reliance is placed on the fact that in its judgment which evolved the formula the Labour Appellate Tribunal has at one place described rehabilitation as the first charge in priorities. Having regard to the context in which the said statement is made it is clear that all that the Labour Appellate Tribunal wanted to emphasise was that the textile industry 975 with which it was directly concerned in the said case needed rehabilitation very urgently. The final calculations made in the judgment give a clear indication as to how the formula has to be worked out. We are, therefore, satisfied that rehabilitation cannot be given the high priority claimed for it by the respondents, We must now consider whether the tribunal was right in directing that overtime payment should be ' included in the calculation of the bonus which it has directed the appellant to pay. Mr. Kolah contends that the direction to include overtime wages is contrary to the usual practice followed by industrial tribunals and it is also unsound on principle. This dispute arises between the employer and the workmen in this acute form because the total amount of bonus is not determined logically after ascertaining the available surplus. If the said amount is logically determined as indicated by us, then the question as to whether overtime wages should be included or not would really be a matter of dispute between workmen inter se because once the amount of bonus is determined, how it should be distributed between workmen inter se would cease to be a matter of direct concern to the employer. Therefore we think that there would be no occasion for such a dispute between the employer and his workmen if the tribunals follow the logical method of determining the amount of bonus in the manner indicated by us. On principle we do not think it would be fair to the workmen as a whole that overtime should be included in calculating the bonus which each workman should receive. Workmen who do overtime get additional payment for such overwork. If in addition to such payment they are allowed to include the said payment in their wages in calculating bonus to which they are entitled, obviously the gap between their actual wage and the living wage would be filled up to a larger extent than in the case of other workmen who do not receive such additional overtime payment. Besides, if the payment of bonus proceeds on the broad consideration that it is due to the workmen for their contribution to the profits it would be unreasonable to make 124 976 a distinction between workmen and workmen on the ground that some have contributed more to the profit than others; and that is exactly what would follow if overtime workers are allowed to claim a larger amount of bonus than their other colleagues. That is why we think that the tribunal was not justified in directing that the calculations of bonus should be made on the basis that overtime payments constituted a part of the basic wages of the employees. The next point to consider relates to the return on paid up capital to which the appellant is entitled. The tribunal has awarded to the appellant return at the rate of 6% on paid up capital and at 4% on the working capital. The appellant claims a return at a higher rate on paid up capital whereas the respondents contend that the return should be paid on the paid up capital at a lower rate. In support of its claim for a higher return the appellant has relied on the fact that it has consistently paid dividends at a reasonably low rate and it did not seek to make undue profits even during the years of war. In this connection Mr. Kolah has invited our attention to a statement, exhibit C 1, showing the percentage of dividend to paid up capital and invested capital for the eighteen financial years 1936 37 to 1953 54 and he has asked us to contrast the low rates of dividend evidenced by it with dividends paid by other companies as shown by another document exhibit C 12. He has also asked us to take into account the highest and the lowest quotation for the company 's shares in the Bombay Stock Exchange during the period 1949 55. On the other hand Mr. Dudhia has urged that during the relevant year the appellant has capitalised Rs. 35.85 lakhs from the reserve fund and 175.45 lakhs from Premium on Shares Account by issuing one bonus share for every five shares held by the shareholders; and he argues that the tribunal was in error in allowing 6% on the paidup capital during the bonus year. Incidentally Mr. Dudhia also relied, though halfheartedly, on the finding of the tribunal that the appellant had paid an inflated price for the pre 1939 block. It is true that in one place the tribunal has made an observation to 977 this effect ; but it is clear that the said observation is inconsistent with its definite finding recorded earlier in the course of its judgment that it was not prepared to hold that the A. C. C. had inflated the capital invested by the merging companies by taking them over in 1936. Therefore this part of Mr. Dudhia 's argument is invalid. In our opinion, the question as to what return should be allowed to paid up capital in ' a given case must be left to be determined by the tribunal in its discretion having regard to all the relevant facts; and if the tribunal has in its discretion awarded 6% interest on the paid up capital we see no reason to interfere with its decisions It is clear that no question of principle or law is involved in the matter. There is one more point which we must consider before we proceed to deal with the facts in the present case. This point relates to the employer 's claim to treat the amount in the gratuity fund as a prior charge; and this claim has been allowed by the tribunal. It appears that in M/S. Metro Motors vs Their Workmen (1) the Labour Appellate Tribunal observed that it was desirable in all cases to create a separate reserve fund for the payment of gratuity and it directed that the modest fund claimed by the employer for the year in question was a proper deduction from its profits. The question which we have to decide is whether the allowance on this account should be treated as a prior charge in making the calculations under the formula. There can be no doubt that, in a sense, the gratuity fund is created for the benefit of workmen and there should be no difficulty in recognising the appellant 's claim for the deduction of an appropriate amount on this account; but we think on principle it is desirable that no addition should be made to the list of prior charges recognised by the formula. Even so when the available surplus is determined the tribunal ought to take into account the employer 's claim on account of the gratuity fund created for the benefit of his workmen and the amount which the tribunal may regard as a reasonable (1)(1952) II L.L.J. 205. 978 allowance in that behalf should be definitely borne in mind in finally deciding the amount which should be paid to the workmen by way of bonus. This method will meet the employer 's claim adequately without making any addition to the list of priorities specified in the formula. Mr. Dudhia contended that the tribunal should not have allowed Rs. 10 lakhs under this item but we do not think there is any substance in this contention. Incidentally Mr. Dudhia has pointed out that in dealing with the appellant 's claim for a return on working capital the tribunal has made a mistake by including a further sum of 0.66 lakhs as return on investments. Mr. Kolah has conceded that this is a mistake and so the return on the working capital would stand at 26.10 lakhs only. It is now necessary to consider the evidence of Mr. Tongaonkar and decide the most controversial point of fact in dispute between the parties about the appellant 's requirements for rehabilitation. Mr. Tongaonkar holds the Degree of Bachelor of Science of the London University, and he is also a Member of the Institution of Electrical Engineers, London. He joined the appellant in November 1934, but before that he had nearly three years ' practical experience in England in various engineering firms; and on his return to India, he had joined the Dinshaw group of cement factories. He continued to work with the said group until its merger with the appellant in 1936, when he was appointed by the appellant. Mr. Tongaonkar is in charge of the department which deals with the construction of new cement factories, modernisation and extension of the existing cement factories, design and manufacture of cement machinery for A. C. C., and major engineering problems of the A.C.C. Since April 1956 he has been appointed the Controller of Planning and Development of the A. C. C. He visits the A. C. C. factories very frequently and claims to be acquainted with the condition of the plant and machinery at all the A. C. C. factories. There is no doubt that Mr. Tongaonkar is qualified to give evidence on the technical points which are relevant in 979 dealing with the question of rehabilitation. Even so, in appreciating 'his evidence, it would not be unreasonable to bear in mind the fact that he is an officer employed by the appellant, and as such he is likely to be interested in supporting the claim for rehabilitation which the appellant has decided to make. According to Mr. Tongaonkar, the average future life of the plant and machinery existing in 1939 would ' be approximately seven years from 1 8 1954. Similarly, the approximate future life of the three other categories of blocks would be 13, 15 and 20 years respectively. He has stated that in calculating the life of machinery, it is necessary to take into consideration, first the mechanical condition of the machinery, second whether it is efficient or has been rendered obsolete because new machinery of modern design with a considerably better efficiency has come into the market. In other words, the probable useful life of the machinery may be prematurely determined by the emergence of more efficient machinery. In support of this statement he has given some instances where the appellant 's plant or machinery had to be changed mainly for the reason that a new corresponding plant or machinery was more efficient and gave more satisfactory results. However, stated generally,in the opinion of the witness, the average life of a cement plant taken as a whole would be 25 years if it is properly main tained. Mr. Tongaonkar then gave evidence about the rise in prices of plant and machinery and he produced exhibit C 36 which is a statement showing the progressive increase in prices from pre war days up to 1955 56 of major items of machinery, gear boxes, motors and power plant used in cement factories. He has stated that the said statement had been prepared on the basis of actual quotations which he had in his possession. His evidence shows that between 1951 54 there has been a rise of 11%, whereas between 1954 56 there has been a rise of 7% in the prices of the relevant items of machinery. He then sought to corroborate his evidence on this point by the expenditure actually incurred by the appellant while putting into commission 980 a new cement factory at Sindri in about 1955. The calculations made by him in this behalf show that the cost of construction of a new factory is approximately 4.3 times the cost of construction of similar factory in 1939. In regard to the life of buildings, Mr. Tongaonkar stated that first class buildings lived approximately for 40 years provided they are properly maintained and provided they are not in earthquake zone; but he added, that for the main unit of the cement plant it is usual to take the life of buildings at 25 years. He also stated that in many cases the existing buildings have got to be either demolished or considerably modified when the main machinery whose life is 25 years has to be replaced by modern machinery which is of a different design and which would require buildings and foundations of different size and type. Thus, for this special circumstance also, he was not prepared to give the buildings of the appellant an average life longer than 25 years. In regard to the increase in the cost of constructing buildings, he produced two statements, C 6 and C 14. exhibit C 6 shows the increase in prices of building materials since 1938 1954, whereas exhibit C 14 shows the continually increasing amount of expenditure incurred by the appellant for construction of labour quarters, etc. It is on this evidence that Mr. Tongaonkar has adopted the respective multipliers and divisors in arriving at the figure of the amount required for rehabilitation. As we have already pointed out, for the pre 1939 block he has taken 4.28 as the multiplier, whereas for the block purchased between 1940 44 he has taken 2.8 as the multiplier. He has explained that the multiplier of 4.28 is really made up of two multipliers. Certain portion of the plant and equipment which is obtained from abroad is estimated at 60% of the total cost and the expenditure on the remaining items is estimated at 40% of the total cost. The multipliers of these two groups are estimated at 4.8 and 3.5 respectively, and by calculations it has been noticed that the average ratio comes to 4.28. This is the 981 genesis of, and the justification for, the adoption of 4.28 as the multiplier. He has also added that the proportion of 60% and 40% which he had mentioned was based on his experience of building a number of cement factories and of carrying out extension and modernisation of existing cement factories. The multiplier was based, said the witness, on the state, of comparative quotations of plant and machinery received in 1939 and quotations received of similar machinery recently. It would thus be clear that in devising the multiplier and divisor, Mr. Tongaonkar has drawn very largely on his experience and has drawn inferences which he thought were reasonable. Besides in making the relevant calculations he has not dealt with the plant and machinery and the buildings and other assets separately, but has lumped them together under the respective blocks. The approximate cost of the merging companies of their assets as on July 31, 1936, was 5.73 crores of rupees. exhibit C 3 which is a certificate issued by the Chartered Accountants shows that " according to the blocks, the original cost of the block of fixed assets excluding goodwill and purchase of rights and land as at 31st July, 1954, of the appellant under the groups of years of acquisition", amounted to Rs. 19,41,38, 100. Similarly, exhibit C 28 which is also a certificate issued by the Chartered Accountants, shows that the original cost of such portion of fixed assets excluding goodwill and purchase of rights and lands as have been discarded, scrapped or sold as on July 31, 1954, of the appellant companies under the groups of years of acquisition noted in the certificate, amounted to Rs. 1,70,91, 296. The figures supplied by these two certificates are mentioned in cols. 2 and 3 respectively in exhibit C 2. Under the method adopted by Mr. Tongaonkar the cost of discards is shown in the respective years when the portions of blocks were discarded; and the amounts spent on rehabilitation from year to year have gone with the blocks of the said respective years shown in col. 2. The amount of rehabilitation has thus been calculated by the adoption of the multiplier and divisor selected by Mr. Tongaonkar. The question 982 which calls for our decision is whether the multipliers and divisors adopted by Mr. Tongaonkar can be said to be appropriate. As we have already mentioned, it is the multipliers and divisors that play a decisive part in the determination of the employer 's claim for rehabilitation in all bonus proceedings, Mr. Tongaonkar 's evidence has been severely criticised by the respondents and in fact, the tribunal does not appear to have been favourably impressed by it. Before dealing with the criticism made against his evidence, it would be pertinent to observe that the witness has given exhaustive details on the points put to him in examination in chief, and his evidence, read as a whole, does make an imposing reading. But sometimes the wealth of details given by experts is Apt to complicate the narrow points of dispute between the parties and to create doubt and confusion; the large number of technical details expressed in technical language may, in some cases, tend to cloud rather than clarify the points which the tribunal has to consider. We feel inclined to hold that is what has happened to some extent in the present case. But that by itself cannot obviously be said to introduce any infirmity in the evidence given by the expert or affect its credibility. It only means the tribunal has to analyse his statements, examine them carefully in the light of his cross examination and decide how far it would be justified in acting on them. It has been urged before us by the respondents that the claim made by Mr. Tongaonkar in regard to the rehabilitation of the pre 1939 block should be rejected. The contention is that, this block must have been completely replaced before 1953 and no claim for its rehabilitation can be entertained. This argument was based substantially on the assumption that a part of Rs. 997.42 lakhs must have been utilised for the purpose of replacing the said block. Mr. Tongaonkar has stated that prior to 1 8 1954 the total amount spent on modernisation, replacement and rehabilitation and other sundry jobs, but excluding ' expansion, was approximately Rs. 9.97"crores, and in support of this 'statement he produced exhibit C 29, 983 which shows the said expenditure year by year. According to this statement 78 lakhs had been spent on the construction of Rohri Works and Kistna Works, and Rs. 622 13 lakhs had been spent on the expansion during the post war period. This gives the figure of Rs. 700.13 lakhs. Deducting this amount from the total expenditure of Rs. 1697 55 lakhs, the balance of, Rs. 997.42 lakhs is shown as expenditure on modernisation, rehabilitation, replacement and other sundry capital jobs. It is in respect of this amount of Rs. 997.42 lakhs that Mr. Tongaonkar was severely cross examined. In cross examination he stated that he was not in a position to say whether out of the total expenditure of Rs. 997.42 lakhs shown in exhibit C 29 a major portion had been spent on rehabilitation and replacement of the pre 1939 block and 1940 44 block. He admitted that the figures in exhibit C 29 had been prepared by the Accounts Department from the Financial Books so far as year to year total expenditure was concerned and he also stated that it was not possible for him to give details about the said expenditure. These answers indicated that the amount of Rs. 997.42 lakhs had been ascertained mechanically by deducting from the total expenditure of Rs. 1697.55 lakhs incurred on all jobs up to 31 7 1954 the estimated expenditure of Rs. 700.13 lakhs which was treated as expenditure for expansion during the said period. It is on these statements that the respondents placed reliance in support of their argument that the amount of Rs. 997.42 lakhs must have been utilised for completely replacing the pre 1939 block. Thus presented, the argument no doubt appeared very plausible, and so we asked Mr. Kolah to give us a satisfactory explanation about the items of this expenditure. Accordingly Mr. Kolah has filed a statement, exhibit I which gives a rough classification of the total capital expenditure of about Rs. 997 lakhs incurred up to 31 7 1954 on modernisation, replacement, rehabilitation and other sundry and miscellaneous jobs. The several items of this expenditure are broadly indicated under eight heads, the last of which covering an 125 984 amount of Rs. 160 lakhs has in its turn been split up into five separate items by the statement 1(a). There was some dispute before us about the admissibility of some of the said items under cl. 5 of this document 1(a). But Mr. Kolah contends, and it is not disputed by the respondents either, that even if the whole of the disputed item 5 is excluded, the remaining items on exhibit 1 give a fairly satisfactory explanation about the work of rehabilitation, replacement and modernisation on which the bulk of Rs. 997.42 lakhs must have been spent. In view of this statement we must hold that the assumption made by the respondents that the said amount of Rs. 997.42 lakhs must have been utilised for replacing the pre 1939 block is not well founded. It is then contended that there is no justification for keeping the pre 1939 block still alive in view of the estimate made by Mr. Tongaonkar about the life of the cement plant and machinery. The suggestion is that the oldest block is deliberately kept alive in order to enable the appellant to claim a higher multiplier in calculating the rehabilitation amount. It cannot be said that there is no force at all in this criticism. In fact Mr. Tongaonkar himself has admitted that a given portion of this block could have been discarded earlier, but he added, that a part of it had been rehabilitated as a temporary measure in order to carry on. That is why that particular portion of the block had not been discarded so far. According to him the pre 1939 block contains a portion whose useful life is already over, but the appellant would have to carry on with it until finances could be found for modernisation or reconstruction or entire replacement of the said block. In our opinion, this explanation cannot be said to be wholly satisfactory. If the useful life of the whole block had really expired, the appellant would have easily found it possible to replace the said block in due time having regard to its general financial position. The next criticism made against Mr. Tongaonkar 's evidence is that admittedly he has not calculated the average life of the said block. He stated that he had assessed the pre 1939 block by his personal visits to 985 the factory by observing to what extent it had been rehabilitated as a temporary measure and by considering what its present condition was. It is possible that with his knowledge and experience Mr. Tongaonkar may be able to form a proper assessment about the life of the machinery in the manner deposed to by him. But unfortunately, effective cross examination on this point has been stifled to some extent because ' we find that on some material points questions put to the witness were objected to by Mr. Kolah and the objection was upheld by the tribunal. The witness was asked whether he could tell the tribunal with his wide experience, how many years on the average 1939 block had spent prior to 1939. This question was clearly relevant and from the respondents ' point of view it was important. If the witness was able to predicate about the future useful life of the machinery from his examination of the plant, it was suggested to him that it should be possible for him to give an estimate about the life already spent by it by the same process. The object of this question obviously was to show that the machinery in question had lived much longer than its estimated life as deposed to by the witness. This question having been disallowed, any further cross examination to test the claim of the witness that from the inspection and examination of the machinery he can predicate the period of its future useful life became impossible. The witness was further asked to state whether it would be correct to assume that the said pre 1939 block had on an average spent more than 15 years of its life. This question also was disallowed, and the respondents naturally make a serious grievance that they were not given an opportunity to show that Mr. Tongaonkar 's estimate about the life of the plant and machinery was a gross under statement. The respondents have then objected to the inclusion of several items in the approximate cost of rehabilitation mentioned in col. 8 of exhibit C 2. The new additional packing machine in regard to the factory at Banmore as well as the crane storage are, it is urged, not items of rehabilitation, but of expansion. Similar 986 criticism is made in regard to the dust collector plants, coal handling plants, items in regard to the fluidification system, diesel engine shunting locomotive and similar other items. The respondents ' grievance is that by including these items which are really matters of expansion, the amount of approximate cost of rehabilitation has been unduly increased. We are unable to say if the grievance is justified. In regard to the multiplier adopted by Mr. Tongaonkar, the criticism is that it is based on hypothetical considerations determined by him in a subjective manner. It is also pointed out that the failure of the witness to take out the present day replacement cost of individual items of the pre 1939 block has introduced an additional element of uncertainty in the final calculations made by him in regard to the multiplier. No doubt, the witness has stated that he has used the multiplier of 4.8 on a comparative study of the quotations received between 1939 and the present day, but dealing with the machinery blockwise is not a very satisfactory way of determining such a multiplier. In support of this argument, reference is made to the statements made by the witness to the cost of 180 ton per day kiln, if manufactured by the appellant, would be lower than that of a 300 ton a day kiln. The witness then added that the appellant does not manufacture a 180 ton a day kiln, and if such a kiln is imported from abroad its cost would be somewhat higher than that of a 300 ton a day kiln manufactured by the appellant under present day conditions. He was then asked whether he had got a quotation of a 180 ton a day kiln, and he admitted that he had none, and that he had estimated it approximately at Rs. 11 1/2 lakhs. The respondents urged that this estimate about the cost of an imported 180 ton a day kiln is purely notional and is not based on any material at all. This part of the criticism is justified. The next argument urged against the statements prepared by Mr. Tongaonkar is that he appears to have taken into account the prices prevailing in 1956 and has completely ignored the prices as they obtained in the previous years. We have already observed that 987 in deciding the amount of rehabilitation by the adoption of an appropriate multiplier, the tribunal should take into account all relevant facts and these would not be confined to the price level prevailing in any one particular year. When deciding the hypothetical question as to what would be the price in future when the plant and machinery would have to be replaced or rehabilitated, the tribunal has to take an overall picture of prices into account, and the argument is that concentration on the price level of 1956 alone has introduced an infirmity in the calculations made by the witness. There is another infirmity in these calculations which has been criticised by the respondents. Mr. Tongaonkar has lumped together the plant and machinery as well as buildings and other properties belonging to the appellant in col. 2 of exhibit C 2. The more scientific and satisfactory method of dealing with the question of rehabilitation is to treat the plant and machinery separately from the buildings and other assets that need rehabilitation. In fact we asked Mr. Kolah to give us a statement showing the cost of the plant and machinery and the buildings and other assets separately in order to enable us to have a clearer picture about the extent of the rehabilitation needs of the appellant. He has accordingly filed a statement, exhibit F (a). There is yet another point on which Mr. Tongaonkar 's evidence has been criticised by the respondents. It is argued that this evidence shows that under his concept of modernisation several items of expansion can be included. Mr. Tongaonkar has stated that by ' modernisation ' he meant 'a composite scheme comprising replacement of the part of the old machinery by new machinery, installation of additional machinery because the layout of the composite modernisation scheme is different from the previous layout and rehabilitation of the remaining machinery as a short term measure '. By ' rehabilitation ' he ment 'alterations to a machine or machinery, installation for improving its mechanical performance, its technical efficiency or to extend its life by a further span '. This would also 988 include what he compendiously describes as the removal of weak links. According to him expansion can be divided into two groups, viz., Group No. 1 construction of the completely new factory solely for obtaining additional production; and Group No. 2 would cover the specific additional machines which are installed not for modernisation purposes as such, but with the primary object of obtaining additional production. He concedes that in the 'modernisation of an existing factory ' expansion is only a part of the scheme. This means that in the modernisation scheme ' there would be an element of ' expansion '. It would thus be clear that the very broad and wide description of modernisation ' given by the witness would justifiably give rise to an apprehension in the minds of workmen that under the heading of 'modern isation ' items of expansion ' pure and simple are likely to creep in. That is why evidence given by experts in such proceedings needs to be scrutinised carefully, with a view to exclude items of 'expansion ' properly so called from the relevant calculations. Mr. Tongaonkar has stated that when plant or machinery is rehabilitated or replaced it may lead to increase in production. But such an in Crease is purely incidental. But what would be the position where, for instance, a 180 ton a day kiln is substituted by a 300 ton a day kiln by way of rehabilitation or replacement ? The employer is entitled to say that the first category of kilns is not available in the market or that the later category of kilns is more profitable Ind economically more useful. That being so, if the first kiln is discarded and is substituted by the latter, that is an item of rehabilitation or replacement and not of expansion. On the other hand, by the substitution of the latter kiln there would be such an appreciable increase in production that the workmen may be entitled to contend that some apportionment should be made and the rehabilitation part of the machinery should be separated from the expansion part which has crept into the transaction. We confess that it would be very difficult to undertake the task of making any such apportionment. 989 Even so, tribunals may have to consider the workmen 's plea if they are satisfied that the steps taken by the employer by way of rehabilitation have led to a very large increase in production. In this connection the respondents have relied on exhibit H. 0. C 2 which, according to them, shows considerable increase in production, and that, it is urged, is the result of expansion and not of rehabilitation. Mr. Tongaonkar has suggested in his evidence that it is the intention of the employer that decides the character of the transaction. If the employer wants to instal new machinery solely with the object of expanding his business, that is expansion; but if he purchases new machinery for business reasons and not for the purposes of expansion, it would be rehabilitation notwithstanding the fact that the new machinery gives rise to increased production. This approach, in our opinion, gives undue importance to the intention of the employer and we think that, on a proper occasion, the question may have to be considered by the application of some objective tests. In this connection it would be relevant to bear in mind the fact that the steps taken by the appellant for rehabilitating, replacing or modernising its machinery are a part of its plan of expanding its business so as to meet the growing demand for cement in our country. In deciding the question as to whether the claim as disclosed by the statements prepared by Mr. Tongaonkar is inflated or not, the respondents have asked us to consider the estimate made by the appellant 's Chairman in that behalf. In his speech delivered on January 24, 1951, at the Fourteenth Annual General Meeting of the appellant company, the Chairman stated that most of the company 's pre war plant would be due for replacement in the course of the next ten years and he added that " at the present price levels, replacement will cost on an average 2 1/2 times the original cost. This will involve an expenditure of about Rs. 8 crores over and above the provision already made for depreciation ". The contention is that, considered in the light of this estimate, the pre,sent claim for rehabilitation is very much inflated. 990 When Mr. Tongaonkar was asked about this estimate he stated that the Chairman had not consulted him while drafting the annual report or while drafting the portion of the speech in regard to 'rehabilitation ' and he also added that he did not agree with the figures given by the Chairman regarding the replacement cost of plant and machinery in his report dated January 24, 1951. This explanation may not be very satisfactory. But we cannot ignore the fact that when the Chairman made his statement he did not purport to calculate the claim for rehabilitation in terms of the formula and so it would not be fair to test the evidence of the witness in the light of the estimate given by the Chairman in his speech. We have so far considered the broad arguments urged against Mr. Tongaonkar 's evidence. Unfortunately, the tribunal has contented itself merely with the observation that the multiplier of 2.7 would be adequate; and it has given no finding as to the suitable divisor. That is why we must now proceed to adopt a suitable multiplier and divisor for deciding the question of rehabilitation. We have already stated our conclusions in regard to some of the infirmities in the evidence of Mr. Tongaonkar and the statements prepared by him. He has lumped together all assets of the appellant that need rehabilitation. He has taken into account the prices prevailing only in 1956, and in the selection of an average multiplier he has probably been slightly generous to the appellant. His estimate about the life of the plant and machinery has not been allowed to be sufficiently tested in crossexamination and, on the whole, it appears to err a little too much on the side of a conservative estimate ; and if that is so his divisor may need revision; it is also probable that in the items included by him under rehabilitation may have been included some which are more of the character of expansion than rehabilitation, replacement or modernisation. Besides, it is not unlikely that the steps taken by the appellant ostensibly for rehabilitation, replacement and modernisation of the machinery have appreciably increased its production, and that may partly be due to the fact that the 991 general plan of expansion adopted by the appellant has been in operation for some time past. It is in the light of these facts that we have to examine the appellant 's claim for rehabilitation. In doing so, we have taken exhibit C 2, exhibit C 23 and exhibit F (a) as a basis for our calculations. It is somewhat unfortunate that in making its claim for rehabilitation Mr. Tongaonkar did not make calculations separately in respect of plant and machinery as distinct from buildings, roads, bridges and railway sidings. It is true that at our instance a statement exhibit F (a) has been filed before us; but if such a statement had been filed before the tribunal, the respondents would have had a better opportunity of testing the accuracy of the calculations made in it and the basis on which the respective multipliers and divisors are sought to be deduced from it. We would, therefore, like to make it clear that the calculations which we now propose to make in regard to the item of rehabilitation should not be ,taken to be binding on the parties in subsequent years. If, in the light of our decision on the principal points raised before us in the present appeals, the parties decide to settle their disputes about bonus for subsequent years there would be no occasion for the tribunal to deal with them on the merits. If, however, these disputes have to be, settled by the tribunal, it would be open to the parties to lead evidence in support of their respective contentions. The tribunal also would be at liberty to consider the matter afresh and come to its own conclusion on the merits. Let us now proceed to make the relevant calculations. The first step to take is to correct the figures in exhibit C 2 by excluding the cost of buildings, roads, ,bridges and railway sidings from the total cost mentioned in it against the several blocks. This cost has been supplied to us by the appellant in exhibit F (a). This is how the corrections work out. In our calculations all figures are expressed in 'lakhs ': 126 992 Chart I. Period Original cost Less cost of Balance of block buildings etc. (1) (2) (3) (4) Up to 1939 486.89 132.98 353.91 1940 44 59.91 22.38 37.53 1945 47 208.93 68.15 140.78 1948 54 1144.81 333.47 811.34 In exhibit F (a) the appellant has shown the respective average ratios in col. 5 in regard to items of property mentioned in col. 2. We think, in making our calculations, it would on the whole be fair to adopt 3.5 as a suitable multiplier up to 1939, 2 from 1940.47 and 1 from 1948 54 (as in C 2) for replacement by part A.C.C. machinery. We have not disturbed the divisors taken by C 2 though we feel inclined to hold that Mr. Tongaonkar has underestimated the probable life of machinery. The amount of yearly requirement for rehabilitation for the total block minus buildings, etc., would then work out at Rs. 229.39. This does not take into account the available reserves; that aspect is considered later on: Chart II. Period Original cost of Multiplier Total Less Balance Life Yearly break of require down as machi ment in exhibit C 2 nery (in Yrs.) (1) (2) (3) (4) (5) (6) (7) (8) (approx.) UP to 1939 353.91 x3.5 1238.68 65.921172.767 167.54 1940 44 37.53 x2 75.06 4.66 70.40135.41 1945 47 140.78 x2 281.56 11.19 270.371518.02 1948 54 811.34 x1 811.34 42.84 768.502038.42 . . Total 229.39 . . Then we would deal with the buildings, roads, bridges and railway sidings. , These may be given an average life of 30 years for all blocks in order to compensate for cases where they have to be demolished on account of modernisation. According to the previous statements of the appellant the life of factory buildings was about 35 years and residential 993 areas 50 years. Even so we propose to take the average life of 30 years in making our calculations in respect of these blocks. The multipliers may be taken as 2.25 for pre 1939 blocks, 1.5 for 1940 47 blocks, 1 for 1948 54 blocks. The Bombay block has been taken as in exhibit C 2: Chart III. Period Cost Multi Total Less Balancelife Yearly plier break down require valued at 5% ment of cost (1) (2) (3) (4) (5) (6) (7) (8) UP to 1939 132.98 X 2.25 299.20 6.65 292.55 20 144.63 1940 44 22.38 x 1.5 33.57 1.12 32.45 25 1.29 1945 47 68.15 x 1.5 102.22 3.40 98.82 25 3.95 1948 54 333.47 x 1 333.47 16.67 316.80 30 10.56 Bombay office 40.83 50.28 .73 49.55 69 .71 block . . . Total 31.14 . . . Thus the total yearly requirement for rehabilitation of this block would come to 31.14 lakhs. The appellant 's claim for rehabilitation can now be calculated on the basis of exhibit C 23 as corrected in the light of the three charts prepared by us. As, the calculations in the chart show, we would hold that the appellant is entitled to an allowance of 216.10 lakhs for rehabilitation in the relevant year: Chart IV. Replacement of pre 1939 block: Cost of machinery (Chart II) 1172.76 Deduct reserves 311.00 Balance 861.76 divided by 7: 123.11 Add for buildings (Chart III) 14.63 . . . Total 137.74 Replacement cost of 1940 44 block Including buildings etc. (5.41 plus 1.29) . 6.70 do for 1945 47 (18.02 plus 3.95) . 21.97 do for 1948 54 (38.42 plus 10.56) . 48.98 do for Bombay Office . 71 . . . . total . 216.10 994 Having decided that the total claim for rehabilitation admissible to the appellant is 216.10 lakhs for the relevant year, we must now proceed to determine whether on the working of the formula any surplus profit is available. We have made the following calculations in the light of the principles laid down by us in this judgment: Chart V. Total profit excluding Bhupendra factory 428.71 Less notional normal depreciation (p. 428, Pt. 1) 100.22 Less income tax payable @ 7 as. in the Rupee as per Note A below 115.16 Less 6% on paid up capital 76.06 Less 4% on working capital 26.10 . . . Total. 317.54 317.54 Balance. 111.17 Less provision for rehabilitation. 115.88 . . . Balance. 4.71 This is how we have calculated theincome tax payable for the relevant year: Note A. Gross profits 428.71 Less statutory depreciation 165.49 Balance 263.22 Income tax @ 7 as. in the Rupee 115.16 Provision for rehabilitation (vide Chart V): Total from Chart IV. 216.10 Less notional normal depreciation. 100.22 Balance. **115.88 995 We ought to add that in our calculations we have not taken into account the Bhupendra Factory because the relevant material for working out the figures in regard to this factory is not adequate or satisfactory. However from such material as is available it appears that if the profits made by the said factory are included in the calculations and rehabilitation required by it is worked out, it would not materially affect the ' figure of rehabilitation amount determined by us. The result is that there is no available surplus from which the respondents can claim any bonus for the relevant year. It is true that the appellant has already paid the respondents 20.65 lakhs as bonus for the relevant year, and it is likely that it may continue to do so in future ; but that is a matter which is not governed by the formula. In view of the fact that the working of the formula leaves no available surplus the appeal must be allowed and the award made by the tribunal set aside. Since the appellant had come to this Court for the decision of the larger and more important question about the revision of the formula, we would direct that there should be no order as to costs. Appeal allowed. [/INST]The respondents, who were non residents carrying on business at Secunderabad within the territories of the Nizam of Hyderabad, were acting as agents of two firms in Bombay and Madurai, in British India, for the supply of certain goods to the Nizam 's Government. In respect of the Commission due to the respondents by the firms the agreement between the parties was that the amounts were to be paid to the respondents in cash or by cheques at Secunderabad. For these amounts cheques drawn by the firms on the Bombay and Madras branches, respectively, of the Imperial Bank of India, were sent by post at Bombay and Madurai to the respondents at Secunderabad, and when received, they were credited in their books of account, the cheques being sent to their banker there for collecting and crediting to their account. For the assessment year 1945 1946 the Income tax Officer, Berhampur (in British India), assessed these sums as taxable income holding that the amount was received in British 869 India and not at Secunderabad. The Appellate Tribunal found that all the cheques received at Secunderabad by the respondents were treated by them as payment. The respondents claimed that in view of the agreement between the parties that the amount of commission should be paid at Secunderabad, when the cheques were sent by post, the post office was the agent of the debtor and not of the respondents, that the amount must be treated as having been received when the post office delivered the cheques to the respondents, and that, consequently, the amount cannot be treated as having been received in British India. The Income tax authorities relied on the decision in Commissioner of Income tax vs Ogale Glass Works Ltd., [1955] I S.C.R. 185. Held, that in the case of payment by cheques sent by post the determination of the place of payment would depend upon the agreement between the parties or the course of conduct of the parties. If it is shown that the creditor authorised the debtor either expressly or impliedly to send a cheque by post the property in the cheque passes to the creditor as soon as it is posted. But where, as in the present case, the agreement was that the amount was to be paid at Secunderabad, outside British India, when the cheques were received by the respondents there the amount must be deemed to have been received at that place, and, therefore, the amount was not liable to be taxed in British India. Commissioner of Tncome tax vs Ogale Glass Works Ltd., , distinguished. </s>
<s>[INST] Summarize the judgementCriminal Appeal No. 385 of 1991. From the Judgment and Order dated 18.4.1988 of the Andhra Pradesh High Court in Crl. Revision Petition No. 41 of 1987. M.C. Bhandare and Ms. C.K. Sucharita for the Appellants. C.N. Sreekumar and G. Prabhakar (for the State) for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties. The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit of St. Louis Country Missouri, USA. The 1st respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the 1st respondent. 826 2. The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub Court of Tirupati being O.P. No. 87/86. In that petition, the 1st appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1991 the learned sub Judge of Tirupati dismissed the petition. On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta, 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. It is not necessary to refer to the details of the proceedings in the said complaint. Suffice it to say that in that complaint, the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by Missouri Court. By this judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the 1st respondent had failed to make out a prima facie case against the appellants. Against the said decision, the 1st respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision of April 18, 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The Court further held that since the learned Magistrate acted on the photostat copy, he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this decision that the present appeal is filed. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis Country Missouri, USA. In the first instance, the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken ' '. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court. From the record, it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows: ``without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon 'ble court, this respondent sub 827 mits as follows ' '. She had also stated in the replies, among other things, that (i) the petition was not maintainable, (ii) she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court, (iii) the parties were Hindus and governed by Hindu Law, (iv) she was an Indian citizen and was not governed by laws in force in the State of Missouri and , therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the and that it could not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the . Fourthly, it is not disputed that the 1st respondent was neither present nor represented in the Court passed the decree in her absence. In fact, the Court has in terms observed that it had no jurisdiction ``in personam ' ' over the respondent or minor child which was born out of the wed lock and both of them had domiciled in India. Fifthly, in the petition which was filed by the 1st appellant in that Court on October 6, 1980, besides alleging that he had been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd Timber View Road, Kukwapood, in the Country of St. Louis, Missouri, he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with the appellant in the United States and particularly in the State of Missouri. On the other hand, the averments made by him in his petition filed in the court of the Subordinate Judge, Tirupati in 1978 shows that he was a resident of Apartment No. 414, 6440, South Claiborn Avenue, New Orleans, Louisiana, United States and that he was a citizen of India. He had given for the service of all notices and processes in the petition, the address of his counsel Shri PR Ramachandra Rao, Advocate, 16 11 1/3, Malakpet, Hyderabad 500 036. Even according to his averments in the said petition, the 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage. Thereafter she had gone to her parental house at Relangi, Tanuka Taluk, West Godawari District. He was, thereafter, sponsored by his friend Prasad for a placement in the medical service in the United States and had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be emp 828 loyed. Again according to the averments in the said petition, when the 1st respondent joined him in the United States, both of them had stayed together as husband and wife at New Orleans. The 1st respondent left his residence in New Orleans and went first to Jackson, Texas and, thereafter, to Chicago to stay at the residence of his friend, Prasad. Thereafter she left Chicago for India. Thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at New Orleans, Louisiana and never within the jurisdiction of the Circuit Court of St. Louis Country in the State of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect. Under the provisions of the (hereinafter referred to as the ``Act ' ') only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act. Under Section 13 of the Code of Civil Procedure 1908 (hereinafter referred to as the ``Code ' '), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India. As pointed out above, the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last 829 resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage. What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant has further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, as pointed out earlier, he has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been. In the absence of the rules of jurisdiction of that court, we are not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment. Relying on a decision of this Court in Smt. Satya vs Teja Singh, it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. The larger question that we would like to address ourselves to is whether even in such cases, the Courts in this country should recognise the foreign divorce decrees. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of 830 children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons, (b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe 831 rent communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. 832 12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression ``competent court ' ' in Section 41 of the has also to be construed likewise. Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable 833 to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the 834 courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self evident. However, in view of the decision of this Court in Smt. Satya vs Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife 's domicile follows that of her husband and that it is the husband 's domicilliary law which determines the jurisdiction and judges the merits of the case. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case 835 is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable. The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74(1)(iii) of the (Hereinater referred to as the "Act") documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification. Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the Photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression "certified copy" of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act. While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court, we uphold the order of the High Court also on a more substantial and larger ground as stated in paragraph 14 above. Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old. T.N.A. Appeal dismissed. [/INST]The respondents are manufacturers of high strength spirit. They also used to manufacture and bottle military rum under a licence and supply the same to the defence personnel inside and outside the State of U.P. The excise duty on military rum for export was Rs.7 per L.P. Litre while the rate for consumption within the State was Rs.21 per L .P. Litre. An allowance upto 0.5 per cent for wastage during transit by leakage, evaporation etc. was provided. Against a proper permit the respondents supplied rum to the Officer Commanding Rail Road Depot. A.S.C., Pathankot at the distillery premises and the consignments were taken by the consignees under the seal of the railway authorities to their respective destinations. By a notification dated March 26, 1979, issued in super session to earlier notification, the Governor was pleased to direct that with effect from April 1, 1970 duty shall be imposed on country spirit at the rates mentioned in the schedule and that the duty was payable before issue from the distillery or bonded warehouse concerned save in the case of issued under bond. Accordingly a notice was issued to the respondents demanding Rs.4,295.55P on the wastage which was termed as "excess transit wastage" of rum calculated at the maximum rate of Rs.21 per L .P. Litre. The representation against the demand having been rejected, they filed a writ petition before the High Court challenging the validity of the orders and praying for a mandamus commanding the State of U.P. not to realise or adjust any amount of duty towards wastage from the respondents ' advance duty account and restraining them from giving effect to the impugned orders. The High Court allowed the respondents ' writ petition holding that the State of U.P. and the Excise authorities were not entitled to levy 169 excise duty on the wastage of liquor in transit. Hence this appeal by the State. On the question, whether differential duty is leviable. under the Act and the Rules. Allowing the appeal, this Court, HELD: The Act having provided for fixed wastage allow ance also in effect provided that the excess above the allowable wastage will be taxed. It cannot therefore be said that no such charging up of excise duty on the excess wast age in transit could be validly made. [179E] Absolute equality and justice is not attainable in taxing laws. Legislature must be left to decide the State policy within constitutional limitations. [179F] Rules 636 and 814 are of regulatory character and they are precautionary against perpetration of fraud on the excise revenue of the exporting State. A statute has to be construed in the light of the mischief it was designed to remedy. [180D] In the instant case, the military rum was obtained for the purpose of export and the lower export duty was paid and only when the rum did not result in export the question of imposing the differential duty arose. The notion of the excise duty being changed or cancelled on account of what transpires later is not foreign to excise law. [182H] Drawback means the repayment of duties or taxes previ ously charged on commodities, from which they are relieved on exportation. [183B] The system of charging up the duty on the subsequent event of non export cannot, therefore, be said to be irre spective of production or manufacture. [183C] In the instant case, if it is proved to the satisfaction of the appropriate authorities that counter vailing duty had been paid on the entire consignment irrespective of the wastage then the question would arise as to whether the wastage could be ignored altogether by the exporting State as was done by the importing State. [183D] A.B. Abdulkadir vs State of Kerala, ; ; Bimal Chandra Banerjee vs State of Madhya Pradesh, 467; State of Mysore & Ors. vs M/s. D. Cawasji and Co., ; ; M/s. Mohan Meakin Breweries Ltd. vs Excise M/s. Mc Dowell and Co. Ltd. vs Commercial Tax Officer, VII Circle, Hyderabad, ; ; Kalyani Stores vs State of Orissa and Ors., ; ; Excise Commissioner, U.P. vs Ram Kumar, and State of Madhya Pradesh vs Firm Gappulal, ; , referred to. Ajudhia Distillery Rajaka, Sahaspur vs State of U.P. and Anr., [1980] Taxation Law Repons 2262, overruled. </s>
<s>[INST] Summarize the judgementil Appeals Nos. 245 and 202 of 1953. Appeal under Article 132(1) of the Constitution of India from the judgment and order dated the 27th January 1953 of the Calcutta High Court in Matter No. 139 of 1952. Ranadeb Chaudhry, Anil Kumar Das Gupta and Sukumar Ghose, for the appellant. S.M. Bose, Advocate General, ' for West Bengal (B. Sen and P. K. Bose, with him) for the respondent. December 23. The Judgment of the Court was delivered by JAGANNADHADAS J. This is an appeal by leave of the High Court of Calcutta under article 132(1) of the Constitution. The appellant before us was the 1333 Registrar and Accountant General of the High Court at Calcutta on its Original Side. He was appointed to the post by the Chief Justice of the High Court on the 4th March, 1948 and confirmed therein on the 15th of November, 1948. He was dismissed therefrom with effect from the 1st September, 1951, by an order of the Chief Justice dated the 3rd September, 1951. There were various charges against him and Mr. Justice Das Gupta was deputed by order of the Chief Justice dated the 28th May, 1651, to make an ' enquiry and submit a report. Mr. Justice Das Gupta made a full enquiry and submitted his report on the 11th August, 1951, in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of the other charges. The learned Judge expressed his conclusion as follows: "Mr. Bose (the appellant) must be held to be guilty of misconduct and dishonest conduct and (that) he is unfit to hold the office of Registrar of the Original Side of this Court". The Chief Justice issued to the appellant a notice on the 16th August, 1951, intimating that be agreed with the report after careful consideration thereof and asking him to show cause why he should Dot be dismissed from his post. The appellant was given a hearing by the Chief Justice on the 31st August, 1951. The order dated the 3rd September, 1951, of the Chief Justice dismissing the appellant from his office, a copy of which was served on him, runs as follows: "A full and thorough enquiry was held by Mr. Justice K. C. Das Gupta into the charges made against Sri P. K. Bose the Registrar of the Original Side of this Court. Sri P. K. Bose was represented by eminent Counsel and every opportunity was given to him to meet the charges and put forward his explanation and defence. The learned Judge however in a full and very carefully considered report found Sri P. K. Bose guilty of serious charges involving moral turpitude and dishonesty and further he was of opinion that Sri P. K. Bose was by reason thereof unfit to hold the said office of Registrar. I considered this report and the evidence most 1334 anxiously and found myself in entire agreement with the learned Judge. Sri P. K. Bose was, in my view, clearly guilty of the matter comprised in the charges specified by ' Mr. Justice K. C. Das Gupta. I considered that prima facie the conduct of Sri P. K. Bose warranted dismissal and I therefore gave him notice under article 311(2) of the Constitution of India to show cause against the action proposed against him, namely, dismissal. On the 31st august, 1951, Sri P.K. Bose showed cause before me and I heard Sri Sachin Chaudhuri his counsel and Sri P. K. Bose personally. In all the circumstances this is not a case in which I can properly show any leniency. Sri P. K. Bose has abused the trust and confidence reposed in him and has been found guilty of serious malpractices and dishonesty. Conduct such as this of an officer of the status of the Registrar of the Original Side of this Court is unpardonable and must be dealt with severely. I there fore dismiss Sri P. K. Bose from his office as Registrar of the Original Side of the Court, the dismissal to take effect from the 1st September, 1951. Let a copy of this order be served on Sri P. K. Bose". On the 25th January, 1952, the appellant submitted a petition to the Governor of West Bengal for cancellation of the above order. He received intimation dated the 9th July, 1952, that the "Governor declines to interfere on his behalf". Thereupon he filed an application to the Chief Justice for review of the prior order of dismissal. It may be mentioned that it was Chief Justice, Sir Arthur Trevor Harries, who had initiated the proceedings against the appellant and passed the order of dismissal. He retired in June, 1952. The application for review was made to the successor Chief Justice, Shri P. B. Chakravarti, on the 11th September, 1952. This application was rejected on the 16th September, 1952. Thereafter on the 24th November, 1952, i.e., more than an year after the order of dismissal, a writ application was filed on the Original Side of the High Court under article 226 of the Constitution against the Hon 'ble 1335 the Chief Justice of the High Court "for calling upon him to bring up the records of the proceedings relating to his dismissal in order that justice may be done by quashing or otherwise dealing with the said proceedings and the said order dated the 3rd September, 1951, purporting to terminate his services and for directions being given to the Chief Justice to desist from giving effect to or acting in any manner under the said order". On the presentation of the application the learned Judge on the Original Side, Mr. Justice Bose, issued a rule nisi calling upon the Hon 'ble the Chief Justice to show cause why an order in the nature of a writ as asked for should not be made. This order was duly served and on its return the learned Judge made an order referring the hearing of the application to a Special Bench of three Judges as per the rules of the Court. Accordingly the petition was, under the directions of the Chief Justice, heard by three learned Judges of the High Court, who after elaborate hearing and consideration of the points urged on behalf of the appellant dismissed the application. Leave to appeal to this Court was, however, granted by them under article 132(1) on the ground that the case involves substantial questions of law relating to interpretation of the Constitution. The main points that have been urged by the appellant before us, as before the High Court, are that (1)the Chief Justice of the High Court had no power under the law to dismiss him; (2)even if he had the power, he could not delegate the enquiry into the charges, to another Judge but should have enquired into the same himself; and (3)in any case the order of dismissal could not have been passed in the absence of previous consultation with the Public Service Commission of the State as provided under article 320 of the Constitution. On behalf of the respondent, i.e., the Hon 'ble the Chief Justice of the High Court at Calcutta, the learned Advocate General of West Bengal has 1336 appeared before us. In addition to controverting the correctness of the above contentions raised on behalf of the appellant, he strongly urged that (1)no writ could issue from the High Court against its own Chief Justice; (2)the order of the Chief Justice, the validity of which is being challenged, is a purely administrative order against which no application for writ is maintainable; and (3)this was not a case in which having regard to all the circumstances, any application by way of a writ should have been entertained. The points urged on behalf of the appellant may first be taken up. The most important out of them is the one relating to the authority of the Chief Justice to pass the order of dismissal as against the appellant. It is beyond dispute that the Chief Justice is the authority for appointing the appellant. It was in fact the Chief Justice who appointed the appellant and confirmed him. But it is strongly urged that he had not the power to dismiss. This argument is based on the assumption that the appellant falls within the category of public servants who are governed by the Civil Services (Classification, Control and Appeal) Rules, (hereinafter referred to as the Civil Services Rules) of the year 1930 as amended from time to time and that the said rules continue to apply, to an officer holding the post which he did, even after the Government of India Act, 1935, and later the Constitution of India of 1950 successively came into force. I the argument recognises the fact that dismissal is a matter which falls within conditions of service of a public servant as held by the Privy Council in North West Frontier Province vs Suraj Narain Anand(1) and that the power of making rules relating to conditions of service of the staff of the High Courts is vested in the Chief Justice of the Court under section 242(4) taken with section 241 of the Government of India Act, 1935, as also under article 229(2) of the Constitution of India, 1950. But (1) [1948] L.R. 75 I.A. 843. 1337 it is said that no such rules have been framed by the Chief Justice, and that therefore by virtue of section 276 of the Government of India Act, 1935, and article 313 of the Constitution, the Civil Services Rules continued to apply to him, It is necessary to examine the correctness of these assumptions. The Civil Services Rules were framed by the Secretary of State in Council under powers vested in him by section 96 B(2) of the Government of India Act, 1915, as amended in 1919. These rules were framed on the 19th June, 1930, and published on the 21st June, 1930. It is desirable therefore to consider the position relating to the staff of the High Courts before that date. It is not disputed that the said position was governed by the Letters Patent of the High Court. Clause 8 of the Letters Patent of 1865 as amended in 1919, which continues to be operative, as also clause 4 thereof, are relevant for the present purpose. They are as follows: "8. We do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal, from time to time, as occasion may require, and subject to any rules and restrictions which may be prescribed by the Governor General in Council, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice, and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent. And it is Our further will and pleasure and We do hereby for Us, Our heirs and successors give grant, direct, and appoint, that all and every the officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall, from time to time, appoint for each office and place respectively, and as the Governor General in Council shall approve of. Provided always, and it is Our will and pleasure, that all and every the officers and clerks to be appointed as aforesaid shall be resident within the limits of the jurisdiction of the said Court, so long as they shall hold their respective offices; but 1338 this proviso shall not interfere with or prejudice the right of any officer or clerk to avail himself of leave of absence under any rules prescribed by the Governor General in Council, and to absent himself from the said limits during the term of such leave, in accordance with the said rules". We do hereby appoint and ordain, that every clerk and ministerial officer of the said High Court of Judicature at Fort William in Bengal, appointed by virtue of the said Letters Patent of the Fourteenth of May, One thousand eight hundred and sixty two, shall continue to hold and enjoy his office and employment, with the salary thereunto annexed, until he be removed from such office and employment; and he shall be subject to the like power of removal, regulations, and provisions if he were appointed by virtue of these Letters Patent". It will be noticed that clause 8 specifically vests in the Chief Justice the power of appointment, but makes no mention of the power of removal or of making regulations or provisions. But it is obvious from the last portion of clause 4 that such power was taken to be implicit under clause 8 and presumably as arising from the power of appointment. It may be mentioned that under clause 10 of the Charter of the Supreme Court of Calcutta issued in 1774, the said Court also was in specific terms "authorized and empowered from time to time, as occasion may require, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice". The power of removal or of taking other disciplinary action as regards such appointees was not in terms granted. But there is historical evidence to show that the power of appointment conferred under the Charter was always understood as comprising the above powers. Sir Charles Wood, the then Secretary of State for India in paragraph 10 of his dispatch to the Governor General dated the 17th May, 1862, (on the formation of the new High Courts) stated as follows: "The Supreme Court exercises an authority entirely independent of the Government in respect of 1339 its ministerial officers". It is this power and authority along with other judicial power and authority that was succeeded to by the High Courts (on their formation in supersession of the Supreme and Sadar Courts) by virtue of section 9 of the Indian High Courts Act, in the following terms. "Each of the High Courts to be established under the Act shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts . . . abolished under this Act . . " Thus it is clear that both under the Charter of the Supreme Court as well as under the Letters Patent of the High Court, the power of appointment was throughout understood as vesting in the High Court or the Chief Justice, the complete administrative and disciplinary control over its staff, including the power of dismissal. There can be no doubt that this position continued at least until the Government of India Act, 1915. Now, section 106 of the Government of India Act, 1915, in terms continued the above by providing that the jurisdiction of the High Court would "include all such powers and authority over and in relation to the administration of justice including power to appoint clerks and other ministerial officers of the Court as are vested in them by Letters Patent". It follows that the position continued to be the same even under the Government of India Act, 1915, at any rate up to 1930, when the Civil Services Rules came into operation. All the powers under the Letters Patent were, however, subject to alteration by competent legislative authority by virtue of clause 44 of the Letters Patent. Clause 8 of the Letters Patent itself provided that the power of appointment of the Chief Justice was to be "subject to rules and restrictions which may be prescribed by the Governor General in Council". Now, the Civil Services Rules were made by the Secretary of State in Council under section 96 B of the Government of India Act, 1915. It is the case of the appellant that though the 169 1340 Civil Services Rules framed by virtue of delegated power under the Act could not override the specific power of appointment vested in the Chief Justice by virtue of section 106 thereof, they would override the alleged implications of that power such as the power of dismissal and power to frame rules relating to conditions of service in so far as they are specifically provided for under the Civil Services Rules. It is further urged that the said situation continues up to date by virtue of section 276 of the Government of India Act, 1935 and article 313 of the Constitution, Now, the appellant is a person who was appointed in 1948 and dismissed in 1951. It is, therefore, desirable in the first instance to examine the situation under the Government of India Act, 1935 and under the Constitution of 1950 on the assumption that the Civil Services Rules made a change in the prior situation so far as the High Court staff is concerned and applied thereto between 1930 and 1935. Under the Government of India Act, 1935, the position relating to the Civil Services of the Crown in India is contained in a number of general provisions in Chapter 11 of Part X thereof Section 240(1) reiterates what was first statutorily declared by section 96 B of the 1915 Act, viz., that except as expressly provided by the Act every, person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty 's pleasure. Section 241 provides for the recruitment and conditions of service of such persons and prescribes the various authorities who can make the appointments and frame the rules relating to conditions of service. Section 242(4), in so far as it is relevant for the present purpose, provides that section 241 in its application to appointments to and to persons serving on the staff attached to a High Court shall have effect as if, in the case of a High Court, for any reference to the Governor in paragraph (b) of section (1), in paragraph (a) of sub section (2) and in sub section (5), there was substituted a reference to the Chief Justice of the Court. Making the necessary substitutions as prescribed 1341 above, the statutory provisions in the Government of India Act, 1935, relating to recruitment and conditions of service of the staff of the High Court may be read as follows: "(1) Appointments to the Civil Services and civil posts under the Crown in India in relation to the staff attached to the High Court shall be made by the Chief Justice or such person as he may direct. (2)The conditions of service of persons serving. His Majesty in relation to the staff attached to the High Court shall be made by the Chief Justice of the High Court or by some person or persons authorised by him to make the rules for the purpose. Provided that (a)the Governor may in his discretion require that in such cases as he may in his discretion direct no person not already attached to the court shall be appointed to any office connected with the Court save after consultation with the Provincial Public Service Commission; (b)rules made under sub section (2) by a Chief Justice shall,, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor". These sections, while keeping intact the power of ap pointment of the members of the staff of the High Court with the Chief Justice as contained in the Letters Patent, provide, statutorily for the first time and in express terms what was implicit in clause 8 of the Letters Patent, viz., that the power to regulate and frame rules relating to conditions of service governing such staff is also vested in the Chief Justice subject however to two limitations indicated by the provisos mentioned above. The corresponding provisions in the present Constitution relating to the powers of the Chief Justice in relation to the recruitment and service conditions of the staff of the High Court are almost identical and are contained in article 229. They are as follows: "229. (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of 1342 the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State in which the High Court has its principal seat may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2)Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause, shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State in which the Court has its principal seat". It does not appear from the record that any rules have been made by the Chief Justice of the Calcutta High Court, at any rate, in so far as they may be applicable to the Registrar of the Original Side of the High Court. On the assumption, therefore, that the Civil Services Rules applied to the case of a person in his position between 1930 and 1935, it has got to be seen whether they continue to be so applicable. The relevant provisions in this behalf are section 276 of the Government of India Act, 1935, and article 313 of the Constitution. They are as follows: "Section 276: Until other provision is made under the appropriate provisions of this Part of this Act, any rules made under the Government of India Act relating to the Civil Services of, or civil posts under, the Crown in India which were in force immediately before the commencement of Part III of this Act, shall, notwithstanding the repeal of that Act, continue in force so far as consistent with this Act, and shall be deemed to be rules made under the appropriate provisions of this Act". 1343 "Article 313: Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all India service or as service or post under the Union or a State shall continue in force so far as consistent with the provi sions of this Constitution". Now, it has to be observed that the continuance, under section 276 of the Government of India Act, 1935, of the Civil Services Rules, could only be in so far as such continuance may be consistent with the new Act. Further in their application to the High Court staff, the rules are to be deemed to be rules made under the appropriate provisions of the Act. The rules, therefore, must be deemed to be rules made by the Chief Justice consistently with the scheme and the provisions of the Act relating to the High Court staff which specifically vest in him the powers of appointment and of the regulation of conditions of service including the power of dismissal. Such continuance, therefore, can only operate by a process of adaptation implicitly Authorised by the very terms of section 276. It would follow that, in their continued application to the High Court staff, the word "Governor" has to be read as substituted by the word "Chief Justice" wherever necessary in the same way as section 242(4) of the Act requires the provisions of section 241 to be read as though any reference to the Governor therein is substituted by a reference to the Chief Justice of the High Court. The continued application of the Civil Services Rules without such adaptation would result in the anomalous position, that although the 1935 Act specifically vests in the Chief Justice the power of appointment and of framing rules regulating conditions of service including the power of dismissal and hence thereby indicates the Chief Justice as the authority having the power to exercise disciplinary control, be has no such disciplinary control merely because he did not choose to make any fresh rules and was content with the continued appli 1344 cation of the old rules. Now, the relevant provision in the Civil Services Rules which deals with disciplinary action including dismissal is rule 52 thereof. That rule shows that "the Governor General in Council or Local Government of a Governor 's Province may impose any of the penalties specified in rule 49 (which includes dismissal) on any person included in any of the classes I to 5 specified in rule 14 who is serving under the administrative control of the Governor General in Council or the Local Government, as the case may be". This rule, if it originally applied to the High Court staff, must after 1935 be read by substituting "Chief Justice" in the place of "the Local Government" wherever it occurs therein and making other consequential alterations. Thus read, there can be no doubt that as from the commencement of the Government of India Act, 1935, the power of dismissal of a member of the High Court staff including, a person in the position of the appellant, Would vest in the Chief Justice. This would be so even apart from the normal implication of the power of appointment specifically recognised under the Act. It follows that even on the assumption that Civil Services Rules applied between 1930 and 1935 to the High Court staff their continuance after 1935 makes a change in the dismissing authority and the power of dismissal is vested in the Chief Justice. That being the correct position prior to 1950, the Constitution has made no change in this respect and article 313 would also continue rule 52 of the Civil Services Rules as above adapted. It would, therefore, follow that, at any rate, from the time of passing of the Government of India Act, 1935, as also under the Constitu tion, the power of dismissal vests in the Chief Justice notwithstanding that no specific rules have been made in this behalf by the Chief Justice. It must be mentioned, at this stage, that so far as the power of dismissal is concerned, the position under the Constitution of 1950 is not open to any argument or doubt. Article 229(1) which in terms vests the power of appointment in the Chief Justice is equally effective to vest in him the power of dis 1345 missal. This results from section 16 of the General Clauses Act which by virtue of article 367(1) of the Constitution applies to the construction of the word "appointment" in article 229(1). Section 16 of the General Clauses Act clearly provides that the power of "appointment" includes the power "to suspend or dismiss". In view of the clear conclusion we have arrived at as above, we do not consider it necessary to deal with the arguments addressed to us on both sides as to the applicability or otherwise of the Civil Services Rules to the High Court staff, including a person in the position of the appellant, and we express no opinion thereon. The main contention, therefore, of the appellant as to the competency of the Chief Justice to pass the order of dismissal against him fails. The further subordinate objections that have been raised remain to be considered. The first objection that has been urged is that even if the Chief Justice had the power to dismiss, he was not, in exercise of that power, competent to delegate to another Judge the enquiry into the charges but should have made the enquiry himself. This contention proceeds on a misapprehension of the nature of the power. As pointed out in Barnard vs National Dock Labour Board(1) at page 40, it is true that "no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication". But the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise thereof It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise (1) ; , 40. 1846 of such power. As pointed out by the House of Lords in Board of Education vs Rice(1), a functionary who has to decide an administrative matter, of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party "has a fair opportunity to correct or contradict any relevant and prejudicial material". The following passage from the speech of Lord Chancellor in Local Government Board V. Arlidge (2) is apposite and in structive. "My Lords, I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted. The result of its enquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure. In the case of the Local Government Board it is not doubtful what this pro cedure is. The Minister at the head of the Board is directly responsible to Parliament like other Ministers. He is responsible not only for what he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff". In view of the above clear statement of the law the objection to the validity of the dismissal on the ground that the delegation of the enquiry amounts to the delegation of the power itself is without any substance and must be rejected. The second objection that has been taken is that even if the power of dismissal is vested in the Chief Justice, the appellant was entitled to the protection (1) , 182. (2) ,133. 1347 of article 320(3)(c) of the Constitution. It is urged that the dismissal in the absence of consultation with the Public Service Commission of the State was invalid. There can be no doubt that members of the staff in other Government departments of the Union or the State are normally entitled to the protection of the three constitutional safeguards provided in articles 311(1), 311(2) and 320(3) (c). Article 320(3) (e) so far as it is relevant for the present purpose, runs as follows: "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". The phrase "all disciplinary matters affecting a person" is sufficiently comprehensive to include any kind of disciplinary action proposed to be taken in respect of a particular person. The question for consideration, therefore, is whether a person belonging to the staff of a High Court is within the scope of the phrase (Ca person serving under the Government of India or the Government of a State in a civil capacity". The learned Judges of the High Court were of the opinion that article 320(3) can have no application to the present case. In their view the provisions of article 320(3) would be inconsistent with the power vested in the Chief Justice of a High Court under article 229, as regards the appointment of officers and ser vants of a High Court and hence also of dismissal or removal and as regards the framing of rules prescribing conditions of service of such officers or servants. They also point out that the proviso to article 229(1) indicates the requirement that the State Public Service Commission should be consulted only in respect of the specific cases of future appointments and that too if the Governor of the State so requires by rule. They take this and the fact that under the Constitution the provisions relating to High Court staff are taken out of Part XIV relating to the services, as imply 170 1348 ing, that in the exercise of the powers vested in the Chief Justice under article 229, consultation with the State Public Service Commission in respect of any other matter must be taken to have been excluded. This reasoning is not without force. Undoubtedly there is much to be said for the view that article 320(3) taken as a whole is inconsistent with article 229. But it is possible to treat the requirement of prior consultation under article 320(3) (c) which relates to disciplinary action against individual Government employees and which is in the nature of an important constitutional safeguard for individual government employees as standing on a somewhat different footing from that under article 320(3) (a) or (b), which relate to general matters relating to recruitments, appointments, etc. Prior consultation in respect of individual cases may not be considered necessarily inconsistent with the actual exercise of the overriding power of the Chief Justice in such cases. While, therefore, recognising the force of the view taken by the High Court, it appears desirable to consider the requirement under article 320(3)(c) taken by itself with reference to the actual terms thereof, in view of the importance of this provision as a constitutional safeguard in cases to which it applies. A scrutiny of the provisions in Chapter I of Part XIV of the Constitution relating to the services shows that the various articles in this Chapter designate the services to which the articles relate by a variety of terminology. Under article 309, the appropriate Legislature is vested with the power to regulate recruitment and conditions of service "of persons appointed to public services and posts in connection with the affairs of the Union or of any State". Under article 310 "every person who is a member of a civil service of the Union or holds any civil, post under a State" holds office during the pleasure of the President or, as the case may be, of the Governor or of the Rajpramukh of the State. Under article 311 the two constitutional safeguards, viz., (1) of not being liable to be dismissed or removed or reduced in rank until he has been given a reasonable opportunity 1349 of showing cause against the action proposed to be taken in regard to him, and (2) of not being liable to be dismissed or removed by ail authority subordinate to that by which he was appointed, are available to "a person who is a member of a civil service of the Union or of a civil service of a State, or holds a civil post under the Union or a State". Under article 320(3)(c) however, the requirement of con sultation with the appropriate Public Service Commission on disciplinary matters is available to "a person serving under the Government of India or the Government of a State in a civil capacity". A close scrutiny of the terminology so used shows a marked departure in the language of article 320 (3) (c) from that in articles 310 and 311. Officers and members of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in articles 3lO and 311. The salaries of these persons are paid out of the State funds as appears from article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the High Court, are chargeable upon the Consolidated Fund of a State. The item relating to such administrative expenses has to form part of the annual financial statement to be presented to the State Legislative Assembly under article 202 and estimates thereof can form the subject matter of the discussion in the Legislature under article 203(1). They must, therefore, be taken "to hold posts in connection with the affairs of the State and to be members of the civil service of the State". But can it be said that members of the High Court staff are "persons serving under the Government of a State in a civil capacity" which is the phrase used in article 320(3) (c). The use of different terminology in the various articles was not likely to have been accidental. It is to be noticed that even article 320 in its various clauses uses different phrases. Article 320(1) refers to "appoint 1350 ments to the services of the Union and the services of the State" and the proviso to article 320(3) refers to "services and posts in connection with the affairs of the Union and to services and posts in connection with the affairs of the State". It appears, therefore, not unlikely that in using somewhat different phraseology, the intention was to demarcate the staff of the High Courts from the other civil services of the Union or the State. The phrase "persons serving under the Government of India or the Government of a State" seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, who under the Constitution, has the power of appointment and removal and of making rules for the con ditions of services. Articles 53, 77, 154 and 166 of the Constitution show that while the executive power of the Union or the State is vested, respectively, in the President or the Governor and that executive action is to be taken in their respective names, such action is the action of the Government of India or the Government of a State. But the administrative action of the Chief Justice is outside the scope of these articles. It appears therefore that in using the phrase "Government of India and Government of a State" in article 320(3) (c), the Constitution had in view the above mentioned demarcation. A close comparison of the terminology used in the corresponding provisions of the Government of India Act of 1935 also seems to confirm this demarcation. Section 290 (1) of the said Act refers to "every person who is a member of a civil service of the Crown in India or holds any civil post under the Crown in India" while section 266(3)(c) relates to "a person serving His Majesty in a civil capacity in India". A perusal of the main paragraph of sub section (3) of section 266 clearly shows that it has reference to three cate 1351 gories of services (1) Secretary of States services, (2) Federal services under the Governor General, and (3) Provincial Services under the Governor. In the context of this section, the comprehensive phrase "serving His Majesty" seems to have been used as comprising only the above three services and should be exclusive of the staff of the High Court. The fact that different phrases have been used in the relevant sections of the Government of India Act and the Constitution,,, relating to the constitutional safeguards in this behalf appears to be meant to emphasise the differentiation of the services of the High Court from other services, and to place the matter beyond any doubt as regards the non applicability thereto of this constitutional protection. It may be noticed that while the constitutional safeguards under article 311 are available to every person in the civil service, the safeguard in article 320(3)(c) is one capable of being taken away by regulations to be made by the President or Governor. The Constitution itself appears, therefore, to have classed this safeguard on a different footing. This may well have been intended not to apply to the High Courts. Therefore both on the ground that article 320(3)(c) would be contrary to the implication of article 229 and on the ground that the language thereof is not applicable to the High Court staff, we are of the opinion that for the dismissal of the appellant by the Chief Justice, prior consultation with the Public Service Commission was not necessary. We accordingly hold that the appellant was not entitled to the protection under article 320(3)(c). It follows that none of the three contentions raised on behalf of the appellant, i.e., (1) as to the power of the Chief Justice to dismiss him, (2) as to his competence to delegate the enquiry to Mr. Justice Das Gupta, and (3) as to his obligation to consult the State Public Service Commission, have been substantiated. This application must accordingly fail on the merits. This would be enough to dispose of the case against the appellant. The learned Judges of the High Court have also dealt at some length with the question as 1352 to the maintainability of an application for a writ in a case of this kind and of the availability of any remedy by way of a writ against the action of the Chief Justice, whether administrative or judicial. Arguments in this behalf have also been strongly urged before us by the learned Advocate General of West Bengal. In the view, however, that we have taken as to the contentions raised before us regarding the validity of the order of dismissal, we do not feel called upon to enter into the discussion relating to the availability of the writ. We express no opinion on the questions so raised. We consider it, however, desirable to say that our view that the exercise of power of dismissal of a civil servant is the exercise of administrative power may not necessarily preclude the availability of remedy under article 226 of the Constitution in an appropriate case. That is a question on which we express no opinion one way or the other in this case. In the result the appeal must be dismissed with costs. Along with this appeal, the appellant filed an application to this Court for leave under article 136 to appeal against the orders dated the 3rd September, 1951, and 16th September, 1952, dismissing him from service and declining to review it. In view of our judgment just delivered, that application must also be rejected. [/INST]The appellant company executed .a Loan and Note Purchase Agreement with a foreign bank. Under that agreement the appellant was to authorise the creation and issuance of secured notes, Series A and B, and the Notes were to be issued under and secured by a Deed of Trust and Mortgage between the Company and the Bank. The Deed of Trust and Mortgage stated that as the appellant was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to finance such construction and to issue its Notes therefor, and to mortgage and charge its properties to secure the payment of such Notes, it executed the Deed of Trust and Mortgage as Security in accordance with the terms and condi tions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal and the premium, if any, and the interest on the Notes, and of all other monies for the time being and from time to time owing on the security of the indenture and on the Notes and the perform ance by the Company of all of its obligations thereunder. It was also agreed that the Notes shall be secured and shall have the other terms and conditions provided in the agree ment and shall be guaranteed by the President of India pursuant to the terms of the Guarantee Agreement. The Guarantee Agreement state. that the President of India, as the guarantor, unconditionally guaranteed as primary obligor and not as surety merely, the due and .punctual payment from time to time of the principal as well as interest stated m the Agreement. The obligations of the guarantor were abso lute and unconditional under any and all circumstances and were not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof. It was also provided that each and every remedy of the Trustee shall be cumula tive and shall be in addition to any other remedy given therein or under the mortgage or any of the other collateral or now or hereafter existing at law or in equity or by statute. The Guarantee Agreement was executed on the same day as the Deed of Trust and Mortgage between the President of India and the foreign bank as a Trustee. The High Court decided that stamp duty was chargeable on the Trust and Mortgage Deed under article 40(b) of Schedule I to the Act. In appeal to this Court it was contended that it was the Guarantee Agreement which was the principal and primary security and that the Deed of Trust and Mortgage was a collateral or auxillary security and as such stamp duty was payable under article 40(c) and that the Guarantee Agreement was exempt from duty under section 3 and debentures under article 27. Dismissing the Appeal, HELD: (1) It is the real and true meaning of the deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained irrespective of the description given by the parties. [568 E] (2) The Trust and Mortgage Deed was executed before the execution of the Guarantee Agreement though both of them were executed on the same day. It was the Deed of Trust and Mortgage which was the security for the 566 loan though the loan was also guaranteed by the President in terms of the Guarantee Agreement. [568 G H] (3) The. terms and conditions of the Guarantee Agreement cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or the primary security for the loan. The Deed of Trust and Mortgage was clearly the principal or the pri mary security and could not be said to be a collateral agreement. [569 H] (4) The Deed of Trust clearly stated that the terms "Collateral Agreements" shall mean the Guarantee Agreement and the Undertaking. [570 A B] (5) The Guarantee Agreement was not an instrument of sale, mortgage or settlement and did not fall within the purview of section 4(1) of the Act. [571 E.F] (6) There is no justification for the contention that the debentures were the principal instruments and not the Deed of Trust and Mortgage. The secured notes were issued under and secured by the Deed of Trust and Mortgage. The notes were issued in consequence of and on the security of the Deed of Trust and Mortgage. [571 H, 572 A] </s>
<s>[INST] Summarize the judgement: Civil Appeal No. 708 of 1988. From the Judgment and Order dated 20.2. 1987 of t he Bombay High Court in S.A. No. 282 of 1985. Mrs. Shyamla Pappu, K.K. Rai and Mrs. Indira Sawhney f or the Appellant. G.L. Sanghi and A.K. Sanghi for the Respondent. The Judgment of the Court was delivered by OZA, J. This appeal after leave has been filed by the appe l lant 140 wife arising out of a decree under Section 12(1)(d) of t he Hindu Marriage Act (hereinafter referred to as the 'Act '), a decree declaring the marriage a nullity. The respondent husband instituted a petition on 7 th March, 1984 for a declaration that the marriage of t he respondent with the appellant wife was a nullity under su b section (1) sub clause (d) of section 12 of the Act on t he ground that appellant, the wife at the time of marriage wi th the respondent was pregnant by some one other than t he respondent. The appellant wife contested the allegations a nd ultimately the IIIrd Joint Civil Judge, Senior Divisi on Nagput granted a decree in favour of the respondent by h is judgment dated 3rd May, 1985 declaring the marriage to be a nullity. The appellant wife filed a regular civil appeal No. 4 36 of 1985 on 19.7.1985 before the IInd Additional Distri ct Judge, Nagput. Before this appeal could be filed, the r e spondent husband married one Miss Sarita daughter of Laxma n rao Modak on 27.6.1985, and in the appeal filed by t he appellant, the respondent raised a preliminary objecti on contending that after passing of the judgment and decr ee dated 3.5.1985 by the trial court he has married Sari ta daughter of Laxmanrao Modak on 27.6.1985. It was furth er alleged in the application that this marriage was solemnis ed on 27.6.1985 when there was no impediment against the r e spondent husband which could come in his way for contracti ng this marriage as the parties were relegated to the positi on as if they were not married and therefore this marria ge performed on 27.6.1985 of respondent with Sarita was leg al and valid and the consequence of this is that the appe al filed by the appellant was not tenable having been render ed infructuous. The IInd Additional District Judge, Nagpur vi de his order dated 17.8.1985 allowed the objection of t he respondent and dismissed the appeal as infructuous with a direction to the parties to bear their own respective cost section Against this the appellant preferred a second appe al before the High Court. The High Court by its judgment dat ed 20.2.1987 dismissed the appeal holding that as the appe al was filed by the appellant after the re marriage of t he respondent it has become infructuous. The learned Judge al so dismissed the application for maintenance pendent elite a nd aggrieved by this judgment of the High Court after obtaini ng leave this appeal is filed in this Court. It was contended by learned counsel for the appella nt that the language of Sec. 15 clearly goes to show that it refers to a marriage 141 which has been dissolved and it also talks of fight of appeal against the decree. In view of this language used in Sec. 15 it is not possible to distinguish between a decr ee of nullity under Section 11 or 12 and decree of divor ce under Section 13. It was contended that the word 'divorc e ' has been used in this provision in a broader sense indica t ing that where the marriage is dissolved or the relationsh ip is brought to an end by decree of court whether it is by declaring the marriage invalid or dissolving it by a decr ee but result is the same and it was contended that it is because of this that in this Act there is neither any sp e cific definition provided for the term 'divorce ' or a decr ee of divorce. It was also contended that when language of Section 15 refers to a fight of appeal will have to look to the provision providing for an appeal and Sec. 28 of the A ct which provides for appeals against all decrees made by t he court in proceedings under this Act. It was therefore co n tended that the interpretation put by the lower court on t he basis of judgments of some of the High Courts that Sec. 15 will not apply to a decree under Sec. 12 but would on ly apply when there is a decree under Sec. 13 does not appe ar to be the correct view and on this basis it was contended by learned counsel for the appellant that the courts below we re wrong in coming to the conclusion that the appeal had beco me infructuous because the respondent has married a seco nd time. Learned counsel also referred to meaning of the wo rd 'divorce ' in Webster 's Third New International Dictiona ry and Shorter Oxford English Dictionary. Learned counsel in support of her contentions referred to the two decisions of this Court in Chandra Mohini Srivastava vs Avinash Pras ad Srivastava & another; , and Tejinder Kaur vs Gurmit Singh, AIR 1988 SC 839 Although on the basis of the se decisions what was contended was that the provisions of t he Act have to be interpreted broadly. Learned counsel al so placed reliance on the decision in Vathsala vs N. Manohara n, AIR 1969 Madras 405. Learned counsel however, conceded th at there are decisions in Mohanmurari vs Smt. Kusumkumari, A IR 1965 M.P. 194;. Jamboo Prasad Jain vs Smt. Malti Prabha a nd Anr., AIR 1979 Allahabad 260 and Pramod Sharma vs Sm t. Radha, AIR 1976 Punjab 355 where the question of Section 15 in relation to a decree under Sec. 12 has been specifical ly considered and decided against the appellant, but learn ed counsel contended that the scope and language of Sec. 15 coupled with the language of Sec. 28 has not been consider ed by any one of these courts. Learned counsel for the respon d ent on the other hand contended that the language of Sec. 15 refers to "marriage dissolved by decree for divorce" where as in the present case, the mar 142 riage was not dissolved by decree of divorce. The marria ge was declared as nullity under Sections 11 and 12 of the Ac t. Sections 11 and 12 of the Act, according to the learn ed counsel, talk of annulment of marriage "by decree of null i ty" and it was contended that it is because of this that t he various High Courts have taken a view that Sec. 15 will n ot apply to cases where a marriage is annulled by a decree of nullity in accordance with Sections 11 or 12 of the Ac t. Learned counsel however frankly conceded that so far as Se c. 28 is concerned, the language is so wide that an appeal wi ll lie even against a decree under Section 11 or 12 and if an appeal lies under Sec. 28 even against the order or a decr ee passed under Sections 11 or 12, the phrase 'if there is su ch a right of appeal, the time for filing has expired witho ut an appeal having been presented ' are to be given its mea n ing, it would be clear that Sec. 15 also will apply to decrees by which the marriage is either dissolved or a n nulled i.e. decrees which are passed under Sec. 12 or und er Sec. 13. Learned counsel in face of this raised anoth er contention pertaining to the application of the Limitati on Act which we will examine later. In order to understand the meaning of Sec. 15 of the A ct it would be better if we first notice that the words 'decr ee for divorce ' or 'decree for nullity ' has not been defined in any one of the provisions of this Act. 12 clause (1) of the Act reads: "Any marriage solemnized, whether before or after the co m mencement of this Act, shall be voidable and may be annull ed by a decree of nullity on any of the following groun ds namely, Similarly Sec. 13 clause (1) of the Act reads: (1) Any marriage solemnized, whether before or after t he commencement of this Act may, on a petition presented by either the husband or wife, be dissolved by a decree of divorce on the ground that the other party, 143 It is no doubt true that these two sections have differe nt phraseology. In section 12 it is said that the marriage be annulled by a decree of nullity whereas in Section 13, t he phraseology used is "dissolved by decree of divorce" but in substance the meaning of the two may be different under t he circumstances and on the facts of each case but the leg al meaning or the effect is that by intervention of the cou rt the relationship between two spouses has been severed eith er in accordance with the provisions of Section 12 or in a c cordance with the provisions of Section 13. Probably it is because of this reason that the phrase 'decree of nullit y ' and 'decree of divorce ' have not been defined. 28 of the Act reads: "28. Appeal from decrees and orders (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub section (3), be applicable as decre es of the court made in the exercise of its original civ il jurisdiction, and every such appeal shall lie to the Cou rt to which appeals ordinarily lie from the decisions of t he court given in the exercise of its original civil jurisdi c tion. (2) Orders made by the Court in any proceeding under th is Act, under Section 25 or Section 26 shall, subject to t he provisions of sub section (3), be appealable if they are n ot interim orders, and every such appeal shall lie to the cou rt to which appeals ordinarily lie from the decision of t he Court given in exercise of its original civil jurisdiction ; (3) There shall be no appeal under this section on t he subject of costs only. (4) Every appeal under this section shall be preferr ed within a period of thirty days from the date of the decr ee or order. ' ' Under this provision all decrees made by the Court in a ny proceeding under this Act are appealable. Apparently a ny proceeding under this Act will refer to a proceeding inst i tuted under Section 13 or a proceeding instituted und er Sections 11 or 12 as Sections 11 or 12 talks of 'decree f or nullity ' and Section 13 talks of 'decree for divorce ' but in order to provide an appeal against all decrees Section 28 has used a very wide terminology which include decrees und er Sections 11, 12 and 13 and so far as this is concerned it could hardly be contested as the language of Section 28 itself is so clear. It is in this context that we 144 analyse the language of Section 15. It reads: "Divorced persons when may marry again When a marriage h as been dissolved by a decree of divorce and either there is no fight of appeal against the decree or, if there is such a fight of appeal, the time for appealing has expired witho ut an appeal having been presented or an appeal has been pr e sented but has been dismissed, it shall be lawful for eith er party to the marriage to marry again. " Before we examine the phraseology 'dissolved by decree of divorce ' it would be worthwhile to examine the remaini ng part of this provision, especially 'if there is such a fig ht of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been present ed but has been dismissed '. If we give narrow meaning to t he term 'dissolved by decree of divorce ' as contended by t he learned counsel for the respondent, it will mean that if it is a decree under Sec. 13 then either party to the procee d ing have to wait till the period of appeal has expired or if the appeal is filed within limitation till the appeal is disposed of and before that it will not be lawful for eith er party to the marriage to marry again. The phrase 'eith er party to the marriage ' if is co related with the first pa rt of the Section, marriage which has been dissolved by decr ee of divorce will indicate that what was provided in th is Section was that when a relationship of marriage is di s solved by decree of court and either no appeal is filed or if filed, is dismissed then either party to the marria ge which has been dissolved by the process of law by a decr ee are free to marry again. The only words on the basis of which the narrow meaning has been given to this Section by some of the High Courts is on the basis of the Words 'decr ee of divorce ', it could not be doubted that where the marria ge is dissolved under Sections 11, 12 or 13 by grant of a decree of nullity or divorce, the relationship is dissolv ed or in any way is brought to an end and it would be signif i cant that if the language of Section 15 is interpreted in the light of Section 28 which provides for appeal and co n fers a right of appeal on either party to proceedings whi ch culminate into a decree bringing an end to the relationsh ip of marriage then we will have to infer that the Legislatu re so far as decrees under Section 13 are concerned wanted t he right of appeal to survive but in decrees under Section 11 or 12 the Legislature wanted the right of appeal to be subject to the will of the other party. As it is appare nt that if what is contended by the learned counsel for t he respondent and held by some of the High Courts is accept ed that Sec. 15 will not apply to cases when a decree is pass ed under Sec. 11 or 12 it will mean that as 145 soon as a decree is passed the party aggrieved may appe al but the other. party by remarriage would make the appe al infructuous and therefore the right of appeal of one of t he parties to the decree under Sec. 28 will be subject to t he act of the other party in cases where decree is passed und er Sections 11 or 12 but if it were so, the Legislature wou ld have provided a separate provision for appeal when there is a decree under Section 13 and a different provision f or appeal when there is a decree under Sections 11 or 12 as t he right of appeal against a decree under Sec. 11 or 12 cou ld only be a limited right subject to the desire of the oth er party. The Legislature in its wisdom has enacted Sec. 28 conferring a right of appeal which is unqualified, unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under this A ct which will include a decree under Sections 11, 12 or 13 a nd therefore the only interpretation which could be put on t he language of Sec. 15 should be which will be consistent wi th Section 28. This phrase 'marriage has been dissolved by decree of divorce ' will only mean where the relationship of marriage has been brought to an end by the process of cou rt by a decree. It is plain that the word 'divorce ' or 'decree of d i vorce ' have not been defined in this Act. The meaning of t he word 'divorce ' indicated in Shorter Oxford English Dictio n ary reads: "Divorce 1. Legal dissolution of marriage by a court or other competent body, or according to forms locally reco g nized. Complete separation; disunion of things close ly united ME. That which causes divorce 1607. " Similarly the meaning of the word 'divorce ' as indicated in Webster 's Third New International Dictionary reads: "Divorce 1: a legal dissolution in whole or in part of a marriage relation by a court or other body having compete nt authority. In Vathsala 's case the Court had occasion to consider t he effect of an application for setting aside an exparte decr ee which was granted under Sec. 12 and it was contended th at while the application by the husband for setting aside t he exparte decree was pending the wife contracted remarriag e. Will not remarriage have the effect of making the applic a tion to set aside exparte decree infructuous? More or less a similar question is in the present case where it has be en held that by marrying the second time the respondent ma de the appeal filed by the 146 appellant infructuous, and the learned Judge placing rel i ance on the observations made in Chandra Mohini 's case hel d: "That is the principle of Smt. Chandra Mohini vs Avina sh Prasad; , The principle laid down in th at decision has general application. The Supreme Court point ed out that on dissolution of marriage, a spouse can lawful ly marry only when there is no right of appeal against t he decree dissolving the marriage or if there is a right of appeal, the time for filing of an appeal has expired or t he appeal presented has been dismissed. " The question about an appeal to the Supreme Court has als o been considered in a recent decision of this Court in T e jinder Kaur 's case wherein the observations made in Chand ra Mohini 's case have been quoted and it is held that: "In view of this, it was incumbent on the respondent to ha ve enquired about the fate of the appeal. At any rate, the Hi gh Court having dismissed the appeal on 16th July, 1986 t he petitioner could have presented a special leave petiti on within ninety days therefrom under article 133(c) of the Lim i tation Act, 1963 i.e. till 14th September, 1986. Till th at period was over, it was not lawful for either party to mar ry again as provided by section 15. It was incumbent on the respon d ent, as observed in Lila Gupta 's case (ILR 1969) 1 All. 9 2) to have apprised himself as to whether the appeal in t he High Court was still pending; and if not, whether the peri od for filing a special leave petition to this Court had e x pired. We must accordingly overrule the views expressed in Chandra Mohini 's; , and Lila Gupta, cases (I LR 1969(1) All 92). We wish to add that in the subseque nt decision in Lila Gupta the Court while dealing with t he effect of deletion of the proviso observed: The net result is that now since the amendme nt parties whose marriage is dissolved by a decree of divor ce can contract marriage soon thereafter provided of course t he period of appeal has expired. The Court adverted to the word of caution administered by Wanchoo, J. in Chandra Mohini 's case and reiterated: 147 "Even though it may not have been unlawful for t he husband to have marriage immediately after the High Court 's decree for no appeal as of right lies from the decree of t he High Court to this Court, still it was for the respondent to make sure whether an application for special leave had be en filed in this Court and he could not, by marrying immediat e ly after the High Court 's decree, deprive the wife of t he chance of presenting a special leave petition to this Cour t. If a person does so, he takes a risk and could not ask t he Court to revoke the special leave on that ground," It is no doubt true that in these two decisions, this Cou rt was considering the impact of an appeal against a decr ee under Section 13 itself and not a decree under Section 11 or 12 but as indicated earlier if the impact of the phraseolo gy 'fight of appeal ' occurring in Sec. 15 is to be examined in the light of language of Sec. 28 as discussed earlier the re will be no difference in respect of the fight of appe al whether the decree is under Sections 11, 12 or 13. The decisions of the High Court on which reliance is placed by courts below and the learned counsel for t he respondent are: i) Mohanmurari ii) Jam boo Prasad Jain, a nd Pramod Sharrna. In none of these decisions the impact of t he fight of appeal occurring in Sec. 15 in view of the langua ge of Section 28 where the right of appeal is conferred, h as been considered. In our opinion, therefore the view taken by the High Court is not correct. What Section 15 means when it uses the phrase 'has been dissolved by decree of divorce '? It only means where the relationship of marriage has be en brought to an end by intervention of court by a decree, th is decree will include a decree under Sections 11, 12 or 13 a nd therefore the view taken by all the courts below is n ot sustainable. The contention of the learned counsel for t he appellant has to be accepted so far as this question is concerned. Learned counsel for the respondent contended that as Section 28 sub clause (4) of the Act provides for the lim i tation for preferring an appeal in view of Sec. 29 clau se (3). Provisions of will not apply and if th ey do not apply as the trial court disposed of 'the matter by a decree dated 3.5.1985 the period of limitation for appe al could only be upto 3.6.1985 as the period for obtaini ng copies as contemplated under Section 12 clause (2) of t he will not be applicable and therefore even if it is held that under Sec. 15 the respondent had to wa it till the period of limitation for appeal expires 148 as he entered into a marriage on 27.6.1985 it was clear ly after the period of limitation has expired and therefo re this marriage apparently made the appeal filed by the appe l lant infructuous. It is not in dispute that if the peri od for obtaining copy of the judgment and decree is computed as contemplated in Section 12 clause (2) of the Limitation Ac t, the appeal filed by the appellant before the first appella te court was within the time and if Section 12 clause 2 is he ld applicable then this marriage which the respondent perform ed on 27.6.1985 could not be said to be a marriage which he w as entitled to perform in view of language of Section 15 a nd therefore it could not be said that this marriage render ed the appeal filed by the appellant infructuous. Learn ed counsel for the respondent mainly placed reliance on t he language of Sec. 29 clause 3 of the where as learned counsel appearing for the appellant contended th at Sec. 29 clause 3 talks of suit or proceedings and therefo re the phrase 'proceedings ' used in clause 3 of Sec. 29 cou ld only refer to suits or other original proceedings and it will not apply to appeals as is very clear from the defin i tion of 'suit ' as defined in Section 2(L) of the Limitati on Act. It was therefore contended that the provisions of t he will be applicable to appeals under Sec. 28 of the Act. Learned counsel for the appellant placed rel i ance on the decisions in Chander Dev Chadha vs Smt. Ra ni Bala, AIR 1979 Delhi 22; Smt. Sipra Dey vs Ajit Kumar De y, AIR 1988 Calcutta 28 and Kanti bai vs Karnal Singh Thaku r, AIR 1978 M.P. 245. Section 2(L) of the defines the 'suit '. It reads: "suit" does not include an appeal or an application". It clearly enacts that suit does not include an appeal or an application. Sec. 29 of the reads: "29. Savings (1) Nothing in this Act shall affect Section 25 of the . (2) Where any special or local law prescribes for any sui t, appeal or application a period of limitation different fr om the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the peri od prescribed by the Schedule and for the purpose of determi n ing any period of limitation prescribed for any suit, appe al or application by any special or local law, the provisio ns contained in Sections 4 to 24 (inclusive) shall apply on ly insofar as, and to the extent to which, they are not 149 expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time bei ng in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding und er any such law. (4) Sections 25 and 26 and the definition of 'easement ' in Section 2 shall not apply to cases arising in the territ o ries to which the Indian Easement Act, 1882, may for t he time being extend. " Clause (2) of this Section provides that where the limit a tion provided by the special or local law is different fr om the period prescribed by the Schedule, the provisions of Section 3 will apply. In the Hindu Marriage Act, the peri od of appeal is prescribed. In the schedule under the Limit a tion Act, there is no provision providing for an appe al under the Hindu Marriage Act. Thus the limitation prescrib ed under the Hindu Marriage Act is different and is not pr e scribed in the Schedule. Thus the provisions of Section 3 shall apply and therefore it is clear that to an appeal or application the provisions contained in Sections 4 to 24 shall apply, so far and to the extent to which they are n ot expressly excluded by the special or local law and clau se (3) of this Section provides that the provisions of this A ct shall not apply to any suit or other proceedings under a ny marriage law. It is therefore clear that so far as clau se (3) is concerned, the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Act is concerned b ut clause (3) will not govern an appeal. The Schedule in the do not provide for an appeal, under the Hindu Marriage Act but it is only provid ed in clause (4) of Sec. 28 of the Hindu Marriage Act. Thus t he limitation provided in clause (4) of Sec. 28 is differe nt from the Schedule of the . Accordingly to clause (2) of Sec. 29, provisions contained in Sections 4 to 24 will be applicable unless they are not expressly exclu d ed. It is clear that the provisions of the Act do not e x clude operation of provisions of Sections 4 to 24 of t he and therefore it could not be said that the se provisions will not be applicable. It is therefore cle ar that to an appeal under Section 28 of the Hindu Marria ge Act, provisions contained in Section 12 clause (2) will be applicable, therefore the time required for obtaining copi es of the judgment will have to be excluded for computing t he period of limita 150 tion for appeal. A Division Bench of Delhi High Court in Chandra Dev Chadha 's case held as under: "The Hindu Marriage Act is a special law. That this "speci al law" prescribes" for an appeal a period of limitation is also evident. The period of limitation is 30 days. It is a period different from that prescribed in the First Schedu le to the . But when we turn to the Fir st Schedule we find there is no provision in the First Schedu le for an appeal against the decree or order passed under t he Hindu Marriage Act. Now it has been held that the test of a "prescription of a period of limitation different from t he period prescribed by the First Schedule" as laid down in section 29(2), is satisfied even in a ca se where a difference between the special law and Limitati on Act arose by omissions to provide for a limitation to a particular proceeding under the , see, Cana ra Bank, Bombay vs Warden Insurance Co. Ltd. Bombay, AIR 19 (supra) approved by the Supreme Court in Vidyachar an Shukla vs Khubchand, ; (1102). Once the test is satisfied the provisions of Ss, 3, 4 to 24, would at once apply to t he special law. The result is that the court hearing the appe al from the decree or order passed under the Hindu Marriage A ct would under section 3 of the have power to dismi ss the appeal if made after the period of limitation of 30 da ys prescribed thereof by the special law. Similarly under section 5 for sufficient cause it will have the power to condo ne delay. Likewise under section 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, section 12(2) of the is attracted, and the appellants in all the three appeals wi ll be entitled to exclude the time taken by them for obtaini ng certified copy of the decree and order. The appeals ar e, therefore, within time. " Similar is the view taken by the Calcutta High Court in Sm t. Sipra Dey 's case and also the M.P. High Court in Kantibai 's case. It is therefore clear that the contention advanced by the learned counsel for the respondent on the basis of t he also is of no substance. 151 Consequently the appeal is allowed. The judgment pass ed by the High Court as well as by the first appellate court is set aside. We remand the matter back to the first appella te court as that court had disposed of the appeal treating it to have been rendered infructuous. We therefore direct th at the learned lind Additional District Judge, Nagpur befo re whom the appeal was filed, will hear the appeal on meri ts and dispose it of in accordance with law. A suggestion was made by the counsel for the appella nt about some tests and willingness of the appellant for ge t ting those tests performed which could be used as addition al evidence in respect of the paternity of the child born to the appellant which has been made a ground for declarati on of marriage as nullity. Without expressing any opinion, it would be appropriate for the lower appellate court to co n sider the matter if parties approach about additional ev i dence. The appallant shall be entitled to costs of th is appeal. Costs quantified at Rs.2500. R.S.S. Appeal allowed. [/INST]A decree in favour of the respondent husband was grant ed by the Trial Court declaring his marriage with the appella nt to be a nullity under section 12(1)(d) of the Hindu Marria ge Act, 1956 on the ground that the wife at the time of ma r riage was pregnant by some one other than the respondent. In the appeal filed by the appellant, the respondent raised a preliminary objection contending that the appeal was n ot tenable and had been rendered infructuous because he h ad re married before the filing of the appeal. The Appella te Court allowed the preliminary objection and dismissed t he appeal, and the High Court dismissed the second appeal. Before this Court it was contended on behalf of t he appellant that (i) the word 'divorce ' has been used in section 15 in a broader sense and, in view of the langua ge used in that section, it is not possible to distingui sh between a decree of nullity under section 11 or 12 a nd decree of divorce under section 13; (ii) the interpretati on put by the lower courts, on the basis of judgments of so me of the High Courts, that section 15 will not apply to a decree under section 12 but would only apply when there is a decree under section 13, does not appear to be correct as the scope and language of section 15 coupled with the la n guage of section 28, had not been considered by any one of these courts; and (iii) even if it is held that section 15 applies to a decree under section 12, the respondent h ad re married after the period of limitation had expired, as the provisions of the will not apply in vi ew of the section 29(3) of that Act, and therefore the period 138 for obtaining copies of the judgment excluded under secti on 12 clause will not be available to the appellant. Allowing the appeal, it was, HELD: (1) It is no doubt true that section 12 and se c tion 13 have different phraseology. In section 12 it is sa id that the "marriage may be annulled by a decree of nullit y" whereas in section 13, the phraseology used is "dissolved by a decree of divorce". Though in substance the meaning of t he two may be different under the circumstances and on t he facts of each case, but the legal meaning or the effect, is that by intervention of the court the relationship betwe en two spouses has been severed either in accordance with t he provisions of section 12 or in accordance with the prov i sions of section 13. Probably it is because of this reas on that the phrase 'decree of nullity ' and 'decree of divorc e ' have not been defined. [143A B] (2) Under the provisions of section 28 all decrees ma de by the Court in any proceeding under this Act are appea l able. In order to provide an appeal against all decre es section 28 has used a very wide terminology which includ es decrees under sections 11, 12 and 13, and so far as this is concerned it could hardly be contested as the language of section 28 itself is so clear. [143G H] (3) If it is accepted that section 15 will not apply to cases when a decree is passed under section 11 or 12, it will mean that as soon as a decree is passed the par ty aggrieved may appeal but the other party by remarriage wou ld make the appeal infructuous and therefore the right of appeal of one of the parties to the decree under section 28 will be subject to the act of the other party in cases whe re decree is passed under section 11 or 12. But if it were s o, the Legislature would have provided a separate provision f or appeal when there is a decree under section 13 and a diffe r ent provision for appeal when there is a decree under se c tion 11 or 12 as the right of appeal against a decree und er section 11 or 12 could only be a limited right subject to the desire of the other party. [144H; 145A B] (4) The Legislature in its wisdom had enacted section 28 conferring a right of appeal which is unqualified, unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under the Ac t. Hence, the only interpretation which could be put on t he language of section 15 should be that which will be consis t ent with section 28. Therefore, the phrase 'marriage h as been dissolved 139 by a decree of divorce ' in section 15 will only mean whe re the relationship of marriage has been brought to an end by the process of court by a decree, which will include a decree under section 11, 12 or 13. The view taken by t he courts below is accordingly not sustainable. [145C D; 147F ] Chandra Mohini Srivastava vs Avinash Prasad Srivastava Anr.; , ; Tejinder Kaur vs Gurmit Singh, A IR ; Vathsala vs N. Manoharan, AIR (1969) Madr as 405, referred to. Mohanmurari vs Srnt. Kusumkumari, AIR (1965) M.P. 19 4; Jamboo Prasad Jain vs Smt. Malti Prabha, AIR 1979 Allahab ad 260; Pramod Sharma vs Smt. Radha, AIR (1976) Punjab 35 5, overruled. (5) So far as clause (3) of Section 29 of the Limitati on Act is concerned, the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Hindu Marriage Act is concerned, but clause (3) will not govern an appeal. [149E ] (6) To an appeal under section 28 of the Hindu Marria ge Act, provisions contained in section 12 clause (2) of t he will be applicable, and therefore, the ti me required for obtaining copies of the judgment will have to be excluded for computing the period of limitation f or appeal. [149G H] Chander Dev Chadha vs Smt. Rani Bala, AIR (1979) Del hi 22; Smt. Sipra Dey vs Ajit Kumar Dey, AIR (1988) Cal 28 a nd Kantibai vs Kamal Singh Thakur, AIR (1978) M.P. 245, r e ferred to. </s>
<s>[INST] Summarize the judgementl Appeal No. 1041 of 1965. Appeal from the judgment and decree dated August 9, 1962 of the Bombav High Court, Nagpur Bench, in Letters Patent Appeal No. 12 of 1961. section V. Natu and A. G. Ratnaparkhi, for the appellant. S.N. Kherdekar and M.R.K. Pillai, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted under article 133 (1)(a) and (b) of the Constitution is directed against the judgment of the High Court of Judicature at Bombay, Nagpur Bench, in a Letters Patent appeal allowing the appeal and restoring the decree made in favour of the plaintiff Ganpatlal respondent before us and hereinafter called the respondent by the Trial Court as confirmed by the District Court. The facts relevant for the determination of the points raised before us are as follows: The respondent, Ganpatlal, was the owner of Field Survey No. 56, measuring 25 acres 4 gunthas, in Yeotmal District. It appears that the respondent used to lease the land to the defendant Dewaji appellant before us and hereillafter called the appellant on yearly lease. For the year 1950 51 he gave the land to the appellant on the condition that at the end of the year the lease will stand determined and the appellant will hand over possession. On May 7, 1951, the respondent served a notice on the appellant requiting him to vacate the land in suit. The appellant however, continued to remain in possession. Thereupon the respondent filed a suit on September 17, 1951. praying for possession, damages and mesne profits, On November 15, 1951, the Berar Regulation of Agricultural 575 Leases Act, 1951 (Madhya Pradesh No. XXIV of 1951) hereinafter called the 1951 Act came into force, section 16 of which provides as follows: "Except as otherwise provid.ed in this Act, no Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, empowered to determine, decide or dispose of. " One of the pleas which the appellant took was that he had been recorded as a 'protected tenant ' under the 1951 Act and that the Civil Courts had no jurisdiction to eject him in view of 8 of that Act. The Trial Court held that the appellant was not a protected tenant under section 3(3) of the 1951 Act and the Civil Court had , jurisdiction. The appellant then appealed to the District Judge and the Additional District Judge held that the Civil Court had jurisdiction. He observed that "there is nothing in this section (section 16 of the 1951 Act) to suggest that the powers of the Civil Court were in any way curtailed in regard to the question whether a particular person was a tenant or not under section 3 of the Act. Moreover, there is nothing in that Act to show that it was intended to apply to suits which were pending at the date when this Act came into force. " By the time the appeal was heard by the Additional District Judge, section 16 of the 1951 Act had been substituted by sections 16. I6 A and 16 B by the Berar Regulation of Agricultural Leases (Amendment) Act, 1953 hereinafter called the i953 Act. These. sections run as follows: "16(1) Whenever any question arises whether any transaction between a landholder and a person claiming to be his lessee is a lease within the meaning of this Act, such question shall be decided by the Revenue Officer. (2) In deciding the question referred to in subsection (1) the Revenue Officer shall, notwithstanding anything contained in section 92 of the , or in section 49 of the Indian . or in any other law for the time being in force, have power to inquire into and determine the real nature of the transaction and shall be at liberty, notwithstanding anything contained in any law as aforesaid to admit evidence of any oral agreement or a statement or unregistered document with a view to such determination. (3) Any decision of the Revenue Officer under this section shall be binding on the parties to the proceedings and persons claiming through them. 576 16 A (1 ) Whenever any question as is referred to in section 16 arises before a Civil Court in any suit or proceeding, the Court shall, unless such question has already been determined by a Revenue Officer, refer the question to the Revenue Officer for decision and shall stay the suit or proceeding so far as it relates to the decision of such question. (2) The Civil Court shall accept the decision of the Revenue Officer on the question and decide the suit or proceeding before it accordingly. 16 B: Except as otherwise provided in this Act, no Civil Court shah entertain any suit instituted, or application made, to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, empowered to determine, decide or dispose of. " Before the Additional District Judge the appellant relied on these sections and asserted that the determination of the question whether a person is a tenant or not was, under the 1953 Act, a matter entirely within the jurisdiction of the Revenue Courts and the jurisdiction of the Civil Courts had been ousted. The learned Additional District Judge repelled the argument and held that the 1953 Act did not affect pending proceedings. The learned Additional District Judge thereupon dismissed the appeal. The appellant then appealed to the High Court. The appeal first came up for hearing before Vyas, J. By an order dated August 21, 1957, he held that in view of the amendments made by the 1953 Act, "it is not for the Civil Court to ' decide but for the Revenue Officer to determine whether in the year 1951 52 also the defendant was paying to his landlord every week by way of rent one third share in the produce of the garden and was his lessee for that year also." He further observed that "if the answer to this question is in the affrmative, the defendant would be entitled to all the benefits of a protected tenancy, as observed by the learned Chief Justice in Paika vs Rajeshwar(1). ' ' In the result he set aside the judgment and decree passed by the learned Additional District Judge and directed "that the record and proceedings in this case be sent to the Revenue Officer that is, the SubDivisional Officer, Yeotmal, and the said Revenue Officer is directed to decide whether the defendant 's averment is right or otherwise, namely, that even after the expiry of the year 1950 51, that is, even after 31st March, 1951, the defendant used to pay to his landlord, the plaintiff, every week by way of rent one third share F in the produce of the garden. The decision of the Revenue Officer (1) 577 shall be subject to the usual course of appeal and revision, and. when the question which is referred to the Revenue Officer by this judgment is finally decided by the highest Revenue Authority, the finding shall be communicated to this Court. Until such time that this Court receives a finding upon the question mentioned above from the highest Revenue Authority, this appeal shall stand stayed. It shall be disposed of by this Court after the finding of the highest Revenue Authority is received by it." The Revenue Court then remitted the finding. The Commissioner, which was the last Revenue Court, gave a finding confirming the one as given by the Sub Divisional Officer that the appellant was paying rent to the respondent for the year 1951 52. The appeal was then heard by Badkas, J. It was argued before him that Vyas, J., should not have referred the issue to the Revenue Officer for decision under section 16 of the 1951 Act, but Badkas, J., held that it would not be appropriate for him to sit in judgment over the decision given by Vyas, J., and that the reference made by Vyas, J., under section 16 of the 1951 Act had to be accepted. Accepting the finding of ,the Revenue Courts, Badkas, J., held that the respondent was not entitled to eject the appellant. He further held that it was not necessary to decide whether the 1951 Act was retrospective or not as the 1951 Act came into force during the.year in which the defendant held survey numbers in question as lessee. He accordingly allowed the appeal. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of applicability of the 1953 Act being allowed to be raised. Dealing with the merits, the Bench held that "taking the scheme of the Act into account and the fact that there is no section in the Act which makes the Act applicable to pending proceedings, it is at once clear that it was not intended to affect pending proceedings. Pending proceedings must continue unaffected by the provision of the Act and whatever quest.ions arose in those proceedings must be decided by the Civil Courts. " The Bench then accepting the finding of the Civil Courts, held that there was no defence to the suit and the suit must succeed. The Bench also repelled the argument that it was not open to R to consider the entire merits of the Second Appeal as the leave had 578 been given by Badkas, J., and not by Vyas, J. The Bench observed that there was no substance in the contention since the judgment of Vyas, J., was never open to the appeal it being an interlocutory judgment. The learned counsel for the appellant contends that sections 16, 16A and 16B, as substituted by the 1953 Act, had clearly ousted the jurisdiction of the Civil Courts and Vyas, J, was right in sending the case to Revenue Courts for decision on the question whether the appellant was a tenant in the year 1951 52 or not. He stresses the word "whenever" appearing in section 16 and says that this is a wide word and no limitation can be placed on it. In our view there is no substance in this contention. The first point to be noticed in this connection is that the 1953 Act came into force after the Trial Court had decreed the suit and an appeal was pending before the District Judge. It cannot be disputed that if the Legislature intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication. We cannot find any words in sections 16, 16A and 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. It is true that the word "whenever" is wide but section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" alongwith the word "entertain" would have been ' used in section 16B of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals. If sections 16A and 16B do not bar the jurisdiction of the Civil Courts in this case the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951 52. The learned counsel then contends that it was not open to the Letters Patent Bench to decide .this question of the applicability of sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order. It seems to us that the order of Vyas, J, was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal against this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory 'order dated August 21, 1957. At any rate the same point was raised before Badkas, J. Further as held by this Court in Satyadhyan Ghosal vs Sm. Deorajin Devi(1), "an interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from (1) ; 579 the final decree or order." Section 105(2), C.P.C., does not apply in this case, and therefore, the Letters Patent Bench was entitled to go into the validity of the order passed by Vyas, J. The learned counsel then urges that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not. In the result the appeal fails and is dismissed with costs. V.P.S. Appeal dismissed. [/INST]The respondent leased his land to the appellant on yearly lease for the year 1950 51. As the appellant did not vacate at the end of the year the respondent filed a suit for his eviction. Pending the suit, the Bera Regulation of Agricultural Leases Act, 1951, came into force and the appellant contended that he continued to be a tenant for the year 1951 52, that he was a 'protected tenant ', and that the civil court had no jurisdiction to eject him. The trial court rejected the contentions. The appellant appealed and while the appeal was pending the Act was amended by the 1953 Act. Sections 16A and 16B of the Act as amended provided, that whenever any question as to whether a transaction between a landholder and a person claiming to be his lessee was a lease, arose in any suit or proceeding, it should be referred to the revenue officer that the revenue officer 's decision shall be accepted by the civil court; and that no civil court shall entertain any suit to obtain a decision on a matter which the revenue officer was empowered to determine. The appellant contended in the appellate court that the determination of the question whether he was the respondent 's tenant was a matter entirely within the jurisdiction of the revenue courts only. The appellate court held that the 1953 Act did not affect pending proceedings, that the appellant was not the respondent 's tenant for the year 1951 52, and dismissed the appeal. In second appeal, a single Judge of the High Court held that in view of the 1953 amendments, it was for the revenue courts to decide whether the appellant was the respondent 's lessee for the year 1951 52 and referred the matter to the revenue courts. The revenue courts held that the appellant was paying rent to the respondent for the year 1951 52, and remitted the finding to the .High Court. Another Single Judge of the High Court, before whom the matter came up for final disposal, accepted the finding and held that. the respondent was not entitled to eject the appellant. He also rejected the respondent"s contentions that the 1953 amendments were not applicable and that the matter should never have been referred to the revenue courts. The respondent thereupon appealed under Letters Patent. The Bench held that sections 16, 16A and 16B of the Act were not intended to affect pending proceedings, that the civil court could decide the question whether the appellant was the respondent 's tenant in 1951 52, and allowed the appeal accepting the findings of the trial court and the first appellate court that the appellant was not the respondent 's tenant for the year 1951 52. In appeal to this Court. HELD: (1) It was open to the Letters Patent Bench to decide all points decided by the single Judges even though no appeal was filed against the order referring the matter to the revenue courts, as that order 574 was only an interlocutory one to which section 105(2) C.P.C.; was not applicable. [578H; 579A B.] Satyadhyan Ghosal vs Smt. Deorajin Devi, [1960] 3 S.C.R. 590, (2) The intention of the Legislature was not to apply the 1953 Act to pending proceedings and therefore sections 16, 16A and 16B did not bar the jurisdiction of the civil.courts in the present case. The 1953 Act came into force after the trial court decreed the suit and an appeal was pending in the first appellate Court. The words 'suit or proceeding in section 16A do not ordinarily, indicate appllate proceedings and there is nothing in sections 16, 16A or 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. Further, the words used in section 16B are 'entertain ' and not 'entertain and try. '. If the intention was to affect pending proceedings the word 'try. ' would have been in the section along with the word 'entertain '. [578 C El </s>
<s>[INST] Summarize the judgementAppeal No. 407/61. 908 Appeal by special leave from the judgment and order dated August 23, 1960, of the Orissa High Court in O.J.C. No. 103 of 1959. N.O. Chatterjee and P. K. Chatterjee, for the appellant, C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and P. D. Menon, for the respondents. B.M. Patnaik, section N. Andley, Rameshwar Nath and P. L. Vohra, for the Intervener. March 16. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Orissa High Court. The brief facts necessary for present purposes are these. The appellant made an application to the State Government of Orissa in 1949 for grant of a mining lease for manganese ore over an area comprising 5400 acres situated in the district of Keonjhar. The appellant was the first applicant for the lease of the aforesaid area, and subsequently other persons applied for lease of the same area including Messrs. Tata from and Steel Company Limited hereinafter referred to as Tatas), the intervener in the present appeal. The Government of Orissa decided to grant the in favour of Tattas and in January 1956 referred the matter to the Central Government for its approval under r. 32 of the Mineral Concession Rules, 1949 hereinafter referred to as the Rules), which lays down that if more than one application regarding the same, land is received, preference shall be given to the application received first, unless the State Government, for any special reason, and with the prior approval of the Central Government decides to the contrary. The appellant made a representation to the Central Government against the recommendation of the 909 State Government. Eventually, on April 9, 1957, the Central Government turned down the recommendation of the State Government about the grant of the mining lease to Tatas. It also directed that the applications received prior to the application of Tatas should be considered according to the Rules but added that in case the Government of Orissa desired to work the area on a departmental basis, the Central Government would have no objection to consider a proposal for that purpose. Thereafter the State Government rejected the application of the appellant in December 1957 on the ground that the State Government proposed to arrange for the exploitation of the area in the public sector. This was followed by an application for review to the 'Central Government under r. 57 of the Rules. This application was rejected by the Central Government in June 1969. Thereupon the appellant filed a petition under article 226 of the Constitution in the High Court in July 1959. This petition was dismissed by the High Court on the ground that it had no jurisdiction to deal with the matter under article 226 as the final order in the case was passed by the Central Government which was located beyond the territorial jurisdiction of the High Court. The appellant then applied to the High Court for a certificate to appeal to this Court, which was rejected. He then asked for special leave from this Court, which was granted; and that how the matter has come up before us. The main question raised before us is the limit of the jurisdiction of the High Court under article 226 in circumstances like those in the present case. The contention on behalf of the appellant is that as the Central Government bad merely dismissed the review petition, the effective order rejecting the appellant 's application for the mining lease was that of the State Government and therefore the High Court would have jurisdiction to grant a writ 910 under article 226, and that the principle laid down in Election Commission India vs Saka Venkata Subba Rao(l) would not apply. Reliance in this connection has been placed on the decision of this Court in The State of Uttar Pradesh vs Mohammed Nooh(2). It is well settled by a series of decisions of this Court beginning with Saka Venkata Subba Rao 's case(1) that there is two fold limitation on the power of the High Court to grant a writ under article 226. These limitation are firstly that the power is to be exercised throughout the territories in relation to which the High Court exercise jurisdiction, that is to say, the writs issued by the High Court cannot run beyond the territories subject to its jurisdiction, and secondly, that the person or authority to whom the High Court is empowered to issue such writs must be within those territories, which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories. The view taken in this case has been recently reaffirmed by this Court in Lt. Col. Khajoor Singh vs Union of India. (3) Prima facie, therefore, as the final order in this case was passed by the Central Government which is not located within the territories over which the High Court has jurisdiction, the High Court will have no power to grant a writ in this case. Learned counsel for the appellant however relies on the decision in Mohd. Nooh 's case (2) where it was held that it was not correct to say that an order of dismissal passed on April 20, 1948, merged in the order in appeal therefrom passed in May 1949, and the two orders in turn merged in the order passed in revision on April 22, 1,950, or that the original order of dismissal only became final on the passing of the order in revision. It was further held that the order of dismissal was operative on its 1. ; 2. ; 3. ; 911 own strength and therefore no relief under article 226 could be granted against the order of dismissal passed in 1948 as article 226 was not retrospective in operation. It is urged that if the order of dismissal in that case did not merge in the final order of revision which was passed in April 1950, after the Constitution came into force, there was no reason why the order of the State Government should be taken to have merged in the order of the Central Government in this case so as to deprive the appellant of his remedy in the High Court under article 226. We are of opinion that the principle of Mohd. Nooh 's Case(1) cannot apply in the circumstances of the present case. The question there was whether the High Court would have power to issue a writ under article 226 in respect of a dismissal which was effective from 1948, simply because the revision against the order of dismissal was dismissed by the State Government in April 1950 after the Constitution came into force. It was in those circumstances that this Court held that the dismissal having taken place in 1948 could not be the subject matter of an application under article 226 of the Constitution for that would be giving retrospective effect to that Article. The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held (firstly) that the principle of merger applicable to decrees of courts would not apply to orders of departmental tribunals, and (secondly) that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision, and therefore the order of dismissal having been passed before the Constitution would not be open to attack under article 226 of the Constitution. We are of opinion that the facts in Mohd. Nooh 's case (1) were of a special kind and (1) ; 912 the reasoning in that case would not apply to the facts of the present case. Further, in A. Thangal Kunju Musaliar vs M. Venkitachalam Potti (1), though this Court was considering a matter in which the question which is before us was not directly in issue, it had occasion to consider certain decisions of certain High Courts which dealt with oases similar to the present case : (see p. 1213). In those decisions orders had been passed by certain inferior authorities within the territories subject to the jurisdiction of the High Courts concerned, but they had been taken in appeal before superior authorities which were located out. side the territories subject to the jurisdiction of the High Courts concerned. In those circumstances the High Courts had held that the order of the inferior authorities had merged in the orders of the authorities. This Court apparently approved of the view taken by the High Courts in those cases on the ground that a writ against the inferior authority within the territories could not be of any avail to the petitioners concerned in those oases and could give them no relief for the orders of the superior authority outside the jurisdiction would remain outstanding and operative against them. Therefore, as no writs could be issued against the outside authorities, this Court was of the view that the High Courts were right in dismissing the petitions, as any writ against the inferior authority which is within the jurisdiction of the High Court, in view of the orders of the superior authority, would be infructuous. The position in the present case is similar to that envisaged above. The Orissa Government rejected the application of the appellant for grant of the mining lease. The appellant being aggrieved by that order went in review to the Central Government under the Rules and that review petition was dismissed so that in effect the Central (1)[1955] 2 S.C.R. 1196, 913 Government also rejected the application of the ,appellant for grant of the mining lease to him. It is not in dispute that if the Central Government was so minded it could have allowed the review and directed the Orissa Government to grant mining lease to the appellant. Therefore when the Central Government rejected the review petition, it in effect rejected the application of the appellant for the grant of the mining lease to him. This order of the Central Government in effect rejecting the application of the appellant for the grant of the mining lease to him and confirming the rejection of the application of the appellant by the Orissa Government is clearly not amenable to the jurisdiction of the High Court of Orissa under Art 226 in view of the fact that the Central Government is not located within the territories subject to the jurisdiction of the Orissa High Court. It would therefore have been useless for the Orissa High Court to issue a writ against the Orissa Government for the Central Governments order rejecting the review petition and therefore in effect rejecting the application of the appellant for grant of the mining lease would still stand This is made clear by r. 60 of the Rules, which provides that "the order of the Central Government under Rule 59 and subject only to such order, any order of a State Government under these rules, shall be final". Clearly therefore r. 60 provides that where there is a review petition against the order passed in the first instance by the State Government, the order of the Central Government passed in review would prevail and would be the final order dealing with an application for a mining lease under the Rules. Therefore, quite apart from the theoretical question of the merger of the State Government 's order with the Central Government 's order, the terms of r.60 make it perfectly clear that whenever the matter is brought to the Central Government under r. 59, it is the order of the Central Government which is effective and final. In these 914 circumstances we are of opinion that the High Court was right in holding that it had no jurisdiction to issue a writ under article 226 in the present case as the final order in this case was that of the Central Government which was not situate within the territories over which the High Court has jurisdiction. Our attention in this connection was drawn to Shivji Nathubhai vs The Union of India (1). In that case a mining lease had been granted by the State Government to a particular person and there was a review petition against the grant of that mining lease. The order granting the mining lease was set aside on review without notice to the person to whom the lease had been granted. In that connec tion a question arose whether the person to whom the State Government had granted the lease had any interest to enable him to make an application under article 226. It was then pointed out by this Court that under the Rules the order of the State Government would be effective as there was no re quirement that it was not final until confirmation by the Central Government. That case however is of no assistance to the appellant for where there is a review petition and the Central Government passes an order on such petition one way or the other it is the Central Government 's order that prevails and the State Government 's order must in those circumstances merge in the order of the Central Government. The observations in that case on which the appellant relies were made in another connection and can have no bearing on the question before us, where an order has been passed by the Central Government on review and it is that order which is made final by r. 60 and which stands in the way of the appellant. There is therefore no force in this appeal and it is hereby dismissed with costs. Appeal dismissed. [/INST]On August 5, 1947, the appellant booked two consigments by the N. W. Railway from Gujranwala, now in Pakistan, to jagadhari. The consignments were not delivered and, on January 22, 1948, the appellant gave a notice to the railway under section 80 of the Code of Civil Procedure claiming the value of the goods by way of compensation. It was stated in the notice that the cause of action had arisen on August 21 and 30, 1947, when delivery was refused. On December 1, 1948, the railway informed the appellant that the consignments were still lying at Gujranwala and could be despatched on the appellant obtaining the necessary permits from the Pakistan authorities. On December 13, 1949, the appellant bro ught a suit for compensation for non delivery of the goods. The respondent contended that the suit was beyond time as it was not filed within one year from the time "when the goods ought to be delivered" as prescribed by article 31 of the Limitation Act. Held, that the suit was barred by time. The words "when the goods ought to be delivered" in article 31 had to be given their strict grammatical meaning and equitable consi derations were out of place. Under article 31 limitation started on the expiry of the time fixed between the parties for delivery of the goods and in the absence of any such agreement the limitation started after reasonable time had elapsed on the expiry of which the delivery ought to have been made. The reasonable time was to be determined according to the circumstances of each case. The view taken by some High Courts that time began to run from the date when the railway finally refused to deliver was not correct ; where the legislature intended that time should run from ' the date of refusal it had used appropriate words in that connection. The starting point of limitation could not generally be affected by the conduct of the parties or by the correspondence between them, unless it contained an acknowledgment of liability by the carrier or showed something affecting the reasonable time In the present case delivery ought to have been made within five or six months, as is also indicated by the s, 80 notice given 71 by the appellant and the suit was filed more than a year after that expiry of that time. Dominion of India vs Firm Aminchand Bholanath (F. B.) decided by Punjab High Court on May 2, 1956, approved. Jugal Kishore vs The Great Indian Peninsular Rat (1923) I. L. R. 45 All. 43 ; Bengal and North Western Railway Company vs Maharajadhiraj Kameshwar Singh Bahadur, (1933) I. L. R. 12 Pat. 67, 77 ; Jai Narain vs The Governor General of India, A. I. R. ; and Governor General in Council vs section G. Ahmed, A. 1. R. , disapproved. Nagendranath vs Suresh, A. 1. R. and General Accident Fire and Life Insurance Corporation Limited vs Janmahomed Abdul Rahim, A. I. R. , referred to. </s>
<s>[INST] Summarize the judgementON: Civil Appeal No. 3655 of 1989. From the Judgment and Order dated 14.8.1989 of the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench, Bombay in Appeal No. CD(BOM)A. No 322 of 1989 in Order No. 704 of 1989. Anil B. Diwan, section Ganesh, R.K. Krishnamurthy, S.R. Narain and Sandeep Narain for the Appellant. 374 A.K. Ganguli, B. Parthasarthy, K. Swami and P. Parmesh waran for the Respondent. The Judgment of the Court was delivered by RAY, J. This appeal under Section 130 E(b) of the Cus toms Act, 1962 is directed against the judgment and order dated August 14, 1989 passed by the Customs, Excise & Gold (Control) Appellate Tribunal. Bombay in CD(Bom) A. No. 322 of 1989. The most vital question that comes up for consideration in this appeal is whether marble as mentioned in Tariff Item No. 25.15 in Appendix 1 B, Schedule I to the Import (Con trol) Order, 1955 mentioning "Marble, travertine, ecaussine and other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more and Alabaster, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape" is genus within which a11 other kinds of calcareous stones are included or whether marble is a dis tinct or different item which is one of the restricted item in the List of Restricted Items described in Appendix 2, Part B of Import and Export Policy for April 1988 March 1991. The matrix of the case is that the Appellant has been carrying on business as sole proprietor under the name and style of M/s Interior Manufacturers at A 12, Yuwan Apart ments, 413/414, Mount Mary Road, Bandra, Bombay which is a small scale industry engaged in processing of stone slabs. In the course of his manufacturing activity the Appellant utilises and requires as raw material polishable calcareous stones viz. marble, travertine, ecaussine, alabaster and other calcareous stones. All these different types of stones are hard and capable of taking polish. Marble is distin guished from other calcareous rocks, by the fact that it is a metamorphic rock formed from recrystallization of lime stones and has a visibly crystallined nature. In order to import calcareous stones covered by the Open General Licence and with a view to ensuring that the same was not marble, the Appellant took the following precautions: (1) The appellant referred to the Indian Standards Specifi cation for Marble viz. IS: 1130 1969 which defines marble as follows: 375 Para 0.2: "Marbles are metamorphic rocks capable of taking polish, formed from the re crystallization of limestones or dolomit ic limestones and are distinguised from limestone by even visibly crystallined nature and non flaggy stratification". Para 0.7 of the said Specification provides that: "The Sectional Committee responsible for the preparation of this standard has taken into consideration the views of producers, consumers and technologists and has related the standard to the manufacturing and trade practices followed in the country in this field. " (2) The Appellant obtained from the foreign exporters a sample tile of Botticino ', the calcareous rock proposed to be imported and had the same tested by a reputed Geologist, Dr. S.F. Sethna who tested the sample and by his report dated October 13, 1988 confirmed that the same was not marble. His letter dated October 14, 1988 explains now the sample tested was limestone, different from marble. The sample tile tested and attested by Dr. Sethna was submitted to the Customs Department vide their letter dated February 20, 1989. (3) The appellant then referred to an Italian Book MARHI ITALTA wherein the index evidenced the fact that 'Botticino ' varieties were covered under polishable calcareous rocks ' and not under true marbles (re crystallised calcareous rocks). (4) The appellant specifically placed an order for calcare ous stones (other than marble) and asked the Exporter to certify that the said goods were not marble. The exporter Elle Marmi of Italy by a certificate dated December 6, 1988 certified that all the goods were calcareous stone slabs other than marble. (5) The appellant also obtained the certificate dated Decem ber 6, 1988 from one Gianni C. Baigini, a Surveyor regis tered with the Chamber of Commerce, Carrara and a Specialist for stones. Gianni C. Baigini after checking the said con signment loaded in the containers for import by the Appel lant in Italy certified that the slabs loaded in Container Nos. LMCU 051315/8, 050082/3, 05 15 19/2, 05 1520/6 were calcareous stones other than marble since the same were not re crystallised calcareous rocks. 376 The appellant alter taking the aforesaid precautions placed an order with Elle Marmi of Italy for import of 3120.50 sq. of slabs of calcareous stones having a thickness of 2 cms. at a price of Italian Lira 4.22.56.000 i.e. Rs.4,93,000 approximateIy. The said Elle Marmi issued an invoice dated December 2, 1988 for the said purpose. The goods arrived in Bombay by the vessel 'Orient Tri umph ' on or about 19th January, 1989. The appellant filed a Bill of Entry No. 007569 dated 19.1. 1989 for clearance of the goods for home consumption. The goods were declared as slabs of calcareous stones (other than marble) and were imported under OGL Appendix 6, Item 1 of Import and Export Policy for April 1988 March 1991. The goods were inspected by the Assistant Collector (Docks) who observed as follows: "These goods under import do not appear to be marble or granite and are not polished, they are roughly squared and are having smooth edges on all four sides but are having smooth edges on 2 or 3 sides due to sawing. " The sample of the goods was sent by the Assistant Collector (Docks) to the Assistant Collector of Customs (Group I). The Assistant Collector of Customs (Group I) issued a query memo dated February 6, 1989 on the alleged basis that 'calcareous stones are nothing but marble only ' and therefore, governed by Entry 62, Appendix 2, Part B of Import and Export Policy for March 1988 to April 1991. The query was allegedly based upon explanatory notes contained in the "Harmonised Commodi ty Description and Coding System" (HSN) evolved by the International Customs Cooperation Council. The appellant set out the correct position and informed the Department by several letters dated 7th February, 1989, 13th February, 1989, 16th February, 1989 and 20th February, 1989 that the said goods could not be regarded as 'marble ' in terms of the expression 'marble ' appearing in heading 25.15 in Schedule I, Appendix I B Customs Tariff Amendment Act, 1985. The appellant also requested for release of part of the goods pending the technical test of the sample from imported goods. Pending the technical test report, by a letter dated February 17, 1989 the appellant was permitted to clear 50% of the goods upon the appellant submitted 100% ITC bond for the whole backed by a bank 377 guarantee. The balance 50% of the imported consignment was detained. The appellant accordingly cleared 50% of the imported consignment. The appellant, however, paid import duty on the full consignment. The Assistant Collector of Customs (Group 1) sent the sealed samples of the imported goods for testing to the Deputy Director General Petrology Department, Geological Survey of India, Central Region, Nagpur. The sealed cover containing the samples was sent through the appellant 's representative. The appellant also by a letter dated Febru ary 25, 1989 sent a sample of the same consignment for testing to the Geological Survey of India. The appellant addressed further letters dated March 7, 1989, March 8, 1989 to the Customs Department. By a letter dated March 13, 1989 the appellant forwarded to the Customs Department a sealed envelope containing a test report given by the Geological Survey of India, Nagpur on the sample of tile imported goods. The appellant on March 17, 1989 received a letter dated March 13, 1989 from the Geological Survey of India enclosing the test report on the sample of the imported goods submit ted by the appellant to the Geological Survey of India. This test report categorically stated that the sample was "allo chemic (Pelmicritic) limestone. It cannot be termed as a marble. " It is pertinent to mention that the Geological Survey of India had tested two samples from the materials imported by the appellant, one sample forwarded by the Customs Department and the other by the appellant. The report of the Geological Survey of India on the sample forwarded by the Customs Department was set out earlier and sent in a sealed cover to the Customs Department. The Customs Department, however, did not release the goods inspite of the categorical report of the Geological Survey of India and instead issued a show cause notice dated March 17, 1989. The Customs Department inter alia relied upon the opinion based on visual observation received from the Indian Bureau of Mines, Government of India, Udaipur and test reports based on technical test received from the Director of Mines & Geology Department, Udaipur and Geologi cal Survey of India, Nagpur. The test report received by the respondent from the Geological Survey of India, Nagpur was kept back and not disclosed to the appellant. None of the three reports/opinions were disclosed to the appellant at the time of issue of show cause notice. On the basis of these reports/opinions it was alleged in the show cause 378 notice that the imported goods were marble allegedly as per the commercial definition of marble enunciated in the show cause notice. The Department threatened to confiscate the goods and initiate the penal action against the appellant pursuant to Section 112 of the . The appellant by a letter dated March 20, 1989 called upon the Customs De partment to set aside the show cause notice. The Collector of Customs, New Customs House, Ballard Estate, Bombay passed an order that the goods imported are marble and thus require a specific import licence. He also held that these goods are liable for classification as marble and the import of these goods under OGL is not admis sible and therefore in exercise of the powers conferred under Section 111(d) of the , the Collector of Customs ordered the confiscation of the imported goods and further ordered that the Bond be enforced towards a fine of Rs.4,93,199 imposed on the said goods in lieu of confis cation. The Assistant Collector of Customs was directed to enforce the said Bond and the Bank Guarantee for realisation of this amount of fine. However, the importer was given option to clear the said goods for home consumption on payment of fine of Rs.5,00,000 in lieu of confiscation under Section 125 of the , the option to be exercised within 60 days from the date of receipt of the said order. He further held that since the importer contra vened the provisions of section 111(d) of the read with Section 3 of the Import and Export (Control) Act, 1947 rendering the said goods for confiscation, the importer is liable for penal action under provisions of Section 112 of the . Accordingly, the penalty of Rs. 10,00,000 under Section 112 of the said Act was directed to be paid forthwith. Against this order, the appellant filed a writ petition being Writ Petition No. 1398 of 1989 which was dismissed at the admission stage on the ground that it involves disputed questions of fact which were difficult to be decided in a writ jurisdiction. However, the appellant was permitted to clear the goods on payment of redemption fine and furnishing full bank guarantee for the penalty amount. Aggrieved by this order, an appeal being Appeal No. 6 18 of 1989 was filed in the High Court of Bombay. The said appeal was dismissed with liberty to file a departmental appeal by Order dated June 15, 1989. The appellant thereaf ter filed the said appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench, Bombay. The said Appellate Tribunal after hearing the appel lant as well as the Revenue dismissed the appeal and con firmed the order of 379 the Collector of Customs but reduced the penalty amount from Rs. 10,00,000 to Rs.5,00,000. Feeling aggrieved by the said order the appellant filed the instant appeal under Section 130 E(b) of the . The entire controversy relates to the question whether the calcareous stone which has been imported by the appellant falling within the Tariff Item No. 25.15 of Sched ule I, Appendix I B commonly known as I.T. Schedule is marble as mentioned in Entry No. 62 of the List of Restrict ed Items, Annexure 2, Part B of the Import and Export Policy for April 1988 to March 1991 and as such the import of calcareous stone made by the appellant being not covered under OGL, is liable for confiscation and penalty for ille gal import without the specific import licence obtained from the respondent. In Appendix I B, Schedule 1 of ITC Schedule, Entry No. 25.15 of Chapter 25 (Mineral Products) mentions: "Marble travertine, ecaussine and any other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more and Alabaster, whether or not roughly trimmed or merely cut by sawing or otherwise, into blocks, of slabs of a rectangular (including square) shape. " In the said Appendix I B, Schedule I states that each heading number in Column (1) corresponds to the respective Chapter and heading number of the first Schedule to the Customs, Tariff Amendment Act, 1985 as amended on 24.1. 1986 and each entry in Column (2) has the same scope and meaning as the corresponding Chapter and heading of the said first Schedule. It is appropriate to refer to Appendix 6 of the Import and Export Policy for April 1988 to March, 1991 which men tions import of items under Open General Licence. The cate gories of importers, the items allowed to be imported by them under Open General Licence and the conditions governing their importation have been set out therein: Items Category of eligible importers 1. Raw materials components and consumables Actual Users (Non iron and steel items) other than (Industrial) those included in the Appendices 2, 3 Part A, 5 and 8 380 In Appendix II B, in the List of Restricted Items, Entry 6.2, of Import and Export Policy for March 1988 to April 1991 refers to marble/granite/onyx. Mr. Diwan, learned counsel appearing on behalf of the appellant has submitted that for the purpose of understand ing the meaning of 'marble ' occurring in Appendix I B, Schedule I of the Imports (Control) Order, 1955 it is neces sary to refer to Mineral Products, in Chapter 25, Tariff Entry No. 25.15 which refers to Marble, Travertine, Ecaus sine and other calcareous monumental and building stone of an apparent specific gravity of 2.5 or more and Alabaster, whether or not roughly trimmed or merely cut by sawing or otherwise into blocks or slabs of a rectangular (including square) shape. The term 'marble ' does not occur by itself or in isolation but as a inseverable part of a Tariff Entry which deals with five items referred to hereinbelow: (a) Marble (b) Travertine (c) Ecaussine (d) Other calcareous stone (e) Alabaster Each of these five items is a monumental or building stone which is hard and can be cut and sawed into the required sizes and can take polish. The Tariff Entry draws a clear line of distinction between each of these five items and regards them as five distinct products. The basic scheme of the Tariff Entry is important for the purposes of the present appeal. The term 'marble ' has to be given a meaning which fits in and harmonises in the above mentioned statuto ry context, so that 'marble ' continues to remain distinct and different from the said other four items. Thus whatever principle of interpretation or canon of construction is applied it cannot be said that the term 'marble ' include and takes within its fold any or more distinct items or goods mentioned in the said Tariff Entry, thereby rendering a part of the said Entry meaningless. It has, therefore, been submitted on behalf of the appellant that the term 'marble ' has to be interpreted in a manner which is in consonance with the context and which does not militate against it. It is appropriate to refer in this connection the following passage from Maxwell on Interpretation of Statutes, 12th Edition. Page 294 set out hereunder: "The word 'land ' is generally understood as including build ing. but if, after imposing a rate on houses, buildings, 381 works, tenements and hereditaments, an Act exempted 'land ', this word would be restricted to land unburdened with houses, buildings, or works which would otherwise have been unnecessarily enumerated. " It has been secondly submitted on behalf of the appel lant that the general principle of interpretation of tariff entries occurring in a tax statute is that of commercial nomenclature or understanding in the trade. It is also a settled legal position that the said doctrine of commercial nomenclature or trade understanding can and should be de parted from in a case where the statutory context in which the tariff item appears, requires such a departure. If the application of the commercial meaning or trade nomenclature runs counter to the statutory context then the said princi ple of interpretation cannot and should not be applied. Commercial nomenclature or trade understanding is merely a general principle of interpretation, It is well settled that the principles of interpretation are never embodied rules and the same must always yield to the context of the partic ular statute which comes up for interpretation. It has also been submitted in this connection that the trade meaning or commercial nomenclature would be applicable if a particular product description occurs by itself in a Tariff Entry, and there is no competition between that Tariff Entry and any other tariff entry, nor is there any need to reconcile and harmonise that tariff entry with any other. It has been submitted in this respect that the reading of the Tariff Entry No. 25.15 in Appendix I B of Imports (Control) Order, 1955 which refers to Marble, Ecaussine, Travertine and other calcareous monumental or building stones as well as Entry No. 62 in Appendix 2 B of Import and Export Policy, April 1988 March 1991 refer only to marble/granite/onyx as re stricted items of import in such a way that such interpreta tion does not exclude or render redundant any of the items included in Tariff Entry No. 25.15. It has next been con tended that the end use of the particular product is irrele vant and of no consequence for determining its classifica tion. In support of this proposition several decisions have been cited. It has been further submitted that each of the five distinct items referred to in Chapter Heading 25.15 of Appendix I B of Imports (Control) Order, 1955 is a hard stone capable of being cut into the required size and of taking polish. If, therefore, the term marble is to be given the said commercial meaning as relied upon by the Customs Authorities then the inevitable consequence would be that the term 'marble ' in Chapter Heading 25.15 would automati cally include within it the other four items thereby render ing the rest of the Tariff Entry, otiose, redundant and meaningless. On this ground alone, it has been submit 382 ted that the test of commercial meaning or trade understand ing necessarily has to be rejected and the same cannot be applied in the present case. It has also been contended on behalf of the appellant that from the language of the Tariff Entry itself it is only the technical meaning which can be applied for interpreting Chapter Heading 25.15. The expres sions calcareous, travertine, ecaussine, and alabaster are all technical expressions known to the science of Geology which are found defined in dictionaries of Geology. These are not terms of trade or expressions which businessmen use in the ordinary use to describe a product they deal in. Moreover, the reference to the requirement of specific gravity of 2.5 or more is also more or less a technical requirement which evinces that the principle of trade nomen clature or commercial understanding is not applicable to the Tariff Item. Valuable guidance can also be obtained from the notes which are part of the Harmonised System of Nomencla ture (HSN) with which the present Customs Tariff as amended in 1986, has been fully aligned. The HSN Explanatory Notes specifically state that ecaussine, on being fractured, shows a granular surface, similar to granite and is, therefore, known sometimes as Belgian granite, Flanders Granite and Petiti granite. It needs to be understood that, therefore, even though ecaussine may be known in the market as a spe cies of granite and may be dealt with and treated as a type of granite, the same is, nevertheless not classified as granite under Chapter Heading 25.16. This is only because the technical nature of ecaussine has been taken into con sideration and applied by HSN as opposed to the trade nomen clature or commercial understanding. It has also been submitted that the said HSN also con tains specific note regarding serpentine rocks to the effect that the same are sometimes called 'Marble ', but the same is excluded from Chapter Heading 25.15. This clearly shows that according to HSN, Chapter Heading 25.15 must be construed according to its technical meaning. Technically, serpentine does not fall under Heading 25.15 and the same is according ly excluded therefrom by the HSN. If, on the other hand, the commercial meaning is to be applied, then, serpentine would definitely have to be classified under Chapter Heading 25.15 in as much as it is sometimes called marble. The HSN Explan atory notes, therefore, clearly and conclusively establish that Chapter Heading 25.15 must necessarily be construed by its technical meaning and not by applying the commercial nomenclature test. If the commercial nomenclature test is applied, then, as explained hereinabove, two fundamental principles of interpretation are infringed: (a) the princi ple that no part of a statute may be construed as to render it redundant 383 and otiose, and (b) that a tariff item is not to be classi fied on the basis end use in other words an item cannot be considered to be marble merely because it is a hard rock which is capable of being cut and polished and being put to same use as marble. It has, therefore, been submitted that the findings arrived at by the Customs, Excise and Gold (Control) Appellate Tribunal that the calcareous stone slab imported by the appellant is marble as understood in the commercial or trade nomenclature and as such the import of the said slab being without a licence, is subject to the liability of confiscation and imposition of penalty and wholly unwarranted. Mr. Ganguli, learned counsel appearing on behalf of the Revenue has submitted that in interpreting the word 'marble ' as mentioned in Tariff Item No.25.15 in Appendix 1 B, Sched ule 1 to the Import (Control) Order, 1955, the test in commercial and trade parlance has to be applied i.e. how the said product came to be commercially known by the trading people. It is further submitted that it is not a scientific or technical word and as such it does not require to be interpreted in its scientific and technical sense. He fur ther submitted that the general principle of expression of Tariff Entries in a text statute is that of commercial nomenclature or understanding in the trade. The word 'mar ble ' if so interpreted will include calcareous stone of 2.5 or more specific gravity. He has cited certain decisions in support of his above contention. Mr. Ganguli also submitted referring to the said Tariff Entry 25.15 that it includes calcareous stones of specific gravity of 2.5 or more which are capable of polish. Marble is the genus and all other four items of stone mentioned in the said Entry which are of apparent specific gravity of 2.5 are included within marble as they are commercially and in trade parlance known as marble. He further submitted that the ISI specification for marble as referred to in IS: 1130 1969, item No. 0.2 which defines marble as metamorphic rocks can not be applied in the instant case especially in view of the note to the said item that sometimes rocks, such as serpentine are also polished and used in trade as marble. Mr. Ganguli further submits that taking into consideration this note, calcareous stone imported by the appellant falls within marble which is one of the restricted 'items in the list of restricted items as mentioned in Appendix 2, Part B of the Import and Export Policy, April 1988 March 1991. Mr. Ganguli further submitted that the word marble cannot be taken in its Geological or Petrological sense in as much as the whole purpose of put ting the marble stone slabs in the list of restricted items for import is to restrict the outflow of foreign exchange from the country. Mr. Ganguli next submitted that the end use of the product i.e. marble and calcareous 384 stone mentioned in Item No. 25.15 of Appendix 1 B of the Import and Export Policy April 1988 March 1991 has to be taken into consideration in the determination of the other items of stones mentioned in that Entry. Viewed from this angle, the said calcareous stone being capable of polish and used for monumental or building purposes has to be taken to be marble as has been done by the Revenue and it being one of the restricted items, a licence for import of the same is mandatory. It has also been submitted in this connection by Mr. Ganguli that the word 'marble ' has not been defined in the Tariff Act and as such the meaning of the said word has to be given as understood by the trading communities as is known in trade parlance. Mr. Ganguli, therefore submitted that there is no infirmity in the findings and conclusions of the Appellate Tribunal and as such the calcareous stone slabs imported by the appellant being marble, one of the restricted items, the order of confiscation of the said stone slabs and in lieu thereof the imposition of the cus toms duty and the penalty is quite in accordance with law. The sole question to be considered in this appeal is whether the word calcareous monumental or building stones of more than 2.5 or more specific gravity as mentioned in Tariff Item No. 25.15 in Appendix 1 B, Schedule 1, commonly known as ITC Schedule to the Imports (Control) Order, 1955 comes within the purview of the restricted items mentioned in Item 62, Appendix 2, Part B of the Import and Export Policy April 1988 March 1991. In Entry No. 62, the re stricted item is described as 'Marble/granite/onyx '. Marble has not been defined either in the ITC Schedule or in Appen dix 2, Part B of Import and Export Policy dealing with the list of restricted items. It is convenient to refer in this connection to para 64 of the Hand Book of Procedures, April 1988 March 1991 which is in the following terms: "Classification of Items 64. (1) The Schedule I to the Imports (Control) Order, 1955, reproduced in Appendix 1 B to this Book, commonly known as the I.T.C. Schedule,. contains the classification of all the articles that enter into the import trade. (2) With effect from 1st April, 1988 the Schedule 1 to the Imports (Control) Order, 1955 reproduced in Appendix I B to this Book has been revised in alignment with the First Schedule of the Customs Tariff (Amendment) Act, 1985. The Revised ITC Schedule contains 21 Sections subdivided into 99 Chapters. " 385 It is also convenient to refer to the note. to the Appendix 1 B, Schedule I to the Imports (Control) Order, 1955 which is to the following effect: Note: Each heading number in Column (1) corresponds to the respective Chapter and heading number of this first Schedule to the Customs Tariff Amendment Act, 1985 as amend ed on 24.1.1986 and each entry in Column (2) has the same scope and meaning as the corresponding Chapter and heading of the said first Schedule. It is also appropriate to set out hereunder the relevant portion of Appendix 6 of the Import and Export Policy for April 1988 March 1991: Items Categories of eligible Importers Raw materials, components and Actual Users consumables (Non iron and steel items) (Industrial) other than those included in the Appendices 2, 3 Part A, 5 and 8. Section 3(1) of the Imports and Exports (Control) Act, 1947 as amended upto 30th April, 1979 provides that: "The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restrict ing or otherwise controlling in all cases or in specified classes of cases and subject to such exceptions if any, as may be made by or under the order . . . . " Chapter 25 of Schedule I, Appendix i B of the ITC Sched ule mentions mineral products which can be imported under O.G.L. Entry No. 25.15 refers to marble which is as under: "Marble, travertine, ecaussine and other calcareous monumen tal or building stone of an apparent specific gravity of 2.5 or more and Alabaster, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape." 386 Appendix 2, Part B of the Import and Export Policy for April 1988 March 1991 enumerates the restricted items. Item No. 62 deals with marble which is to the following effect 'Marble/granite/onyx '. In the instant case, admittedly the appellant on behalf of his firm which is a small scale industry engaged in processing of stone slabs placed an order for calcareous stone (other than marble) with the exporter Elle Marmi of Italy asking the exporter to certify that the said goods were not marble. The exporter, Elle Marmi of Italy issued a certificate dated December 6, 1988 certifying that all the goods in question were calcareous stone slabs other than marble. The appellant also obtained from the foreign export er a sample tile of 'Botticino ' the calcareous rock proposed to be imported and had the same tested by a reputed Geolo gist, Dr. S.F. Sethna who submitted his report dated October 13, 1988 confirming that the same sample was not marble. It has been stated in the said report that the sample is a limestone and thus differs from the marble in being of sedimentary origin and has not undergone any metamorphism to be considered under metamorphic rocks to be described as a marble. If the rock would have shown any slightest amount of metamorphism the recrystallization of carbonate crystals would make the individual crystals distinctly visible under the microscopic examination. The appellant also referred to an Italian Book MARMI ITALTA wherein the index evidenced the fact that "Botticino" varieties were covered under "Polishable Calcareous Rocks" and not under 'True Marbles ' (Re crystallised Calcareous Rocks). The appellant also while placing order asked the exporter to send a certificate about the calcareous stones for which order was placed for importation. The exporter, Elle Marmi of Italy issued a certificate dated December 6, 1988 certifying that all the rough slabs loaded are 'calcar eous stone slabs other than marble '. The appellant also obtained a certificate from one Gianni C. Baigini, a survey or registered with the Chamber of Commerce, Carrara and a specialist for control of marble, calcareous stones (other than Marble) and Granite. The said expert after checking the said consignment loaded in the containers for import by the appellant in Italy certified that all rough slabs are cal careous stone slabs of good quality. He also certified that these are calcareous stones other than marble because they are not recrystallized calcareous rocks and that the calcar eous stone slabs in the above consignment are not marble. In Indian Standard Specification for Marble, IS: 1130 1969, 387 Entry No. 0.2 marbles have been described as metamorphic rocks capable of taking polish, formed from the re crystal lization of limestones or dolomitic limestones and are distinguished from limestone by even visible crystallined nature and non flaggy stratification. Note to the said Entry states that sometimes rocks, such as serpentine are also polished and used in trade as marble. The Director, Regional Petrology Laboratory where the appellant sent a sample of the rocks ordered of importation, for examination has also forwarded a technical report on study of sample by Dr. H.M. Ramachandra, a Geologist, which states: "The rock is an allochemic (Pelmicritic) limestone, it cannot be termed as a marble. " The Indian Bureau of Mines in its letter dated March 3, 1982 has mentioned that: "Technical Definition: Geologically (petrologically) marble is recrystallised (metamorphosed) limestone. Ordinary limestone is a sedimen tary rock but once it is metamorphosed i.e. once it has undergone recrystallisation, it is turned to marble. So marble is metamorphosed limestone which consist essentially the minerals calcite, dolomite or a combination of the two. " "The specimen has been examined and it is observed that the rock is cryptocrystalline, fine grained, mildly metamor phosed with few bigger grains of calcite. The specimen is hard and compact and is capable of being cut into slabs/ blocks of desired size and can take a good polish." Thus, according to all these reports as well as the ISI specification the slabs of rocks that have been imported by the appellant and claimed to be calcareous stones are not 'marble ' in the scientific and technical sense of the term marble. As we have already stated hereinbefore that Tariff Item No. 25.15 mentions five kinds of rocks such as Marble, Travertine, Ecaussine, Alabaster and other calcareous monu mental or building stone of a specific gravity of 2.5 or more whereas in the List of Restricted Items Item No. 62 only mentions Marble/ granite/onyx are mentioned. In the absence of any definition of the term 'marble ' it is to be decided what is the scope and meaning of the word marble and whether it includes within it the other kinds of 388 calcareous stones such as travertine, ecaussine, alabaster and other calcareous monumental or building stone of a specific gravity of 2.5 or more in order to saddle the importer with the burden of obtaining a licence for import ing the said restricted item. It has been submitted on behalf of the appellant that as the word marble has not been defined and the tariff item refers to calcareous stone of an apparent specific gravity of 2.5 or more, it has to be taken to be used in a technical and scientific sense and as such the same cannot be interpreted in the popular commercial sense or as understood in trade parlance by persons dealing with the ' said stones. In deciding this question the first thing that requires to be noted is that Entry No. 25.15 refers specifically not only to marble but also to other calcareous stones whereas Entry No. 62 refers to the restricted item marble only. It does not refer to any other stones such as ecaussine, tra vertine or other calcareous monumental or building stone of a certain specific gravity. Therefore. on a plain reading of these two Entries it is apparent that travertine, ecaussine and other calcareous monumental or building stones are not intended to be included in 'marble ' as referred to in Entry No. 62 of Appendix 2 as a restricted item. Moreover, the calcareous stone as mentioned in ITC Schedule has to be taken in scientific and technical sense as therein the said stone has been described as of an apparent specific gravity of 2.5 or more. Therefore, the word 'marble ' has to be interpreted, in our considered opinion, in the scientific or technical sense and not in the sense as commercially under stood or as meant in the trade parlance. There is no doubt that the general principle of interpretation of Tariff Entries occurring in a text statute is of a commercial nomenclature and understanding between persons in the trade but it is also a settled legal position that the said doc trine of commercial nomenclature or trade understanding should be departed from in a case where the statutory con tent in which the Tariff Entry appears, requires such a departure. In other words, in cases where the application of commercial meaning or trade nomenclature runs counter to the statutory context in which the said word was used then the said principle of interpretation should not be applied. Trade meaning or commercial nomenclature would be applicable if a particular product description occurs by itself in a Tariff Entry and there is no conflict between the Tariff Entry and any other Entry requiring to reconcile and harmo nise that Tariff Entry with any other Entry. In Union of India vs Delhi Cloth & General Mills, [1963] Supp. (1) SCR 586 the question arose as to how the term "refined oil" 389 occurring in the Tariff was to be construed. There was no competition between that Tariff Entry with any other, nor was there any need to reconcile and harmonise the said entry with any other provision of the tariff. This Court, there fore, considered the term "refined oil" by applying the commercial meaning or trade nomenclature test and held that only deodorised oil can be considered to be refined oil. This Court also referred to the specification of "refined oil" by the Indian Standards Institution and held that: "This specification bY the Indian Standards Institution furnishes very strong and indeed almost incontrovertible support for Dr. Nanji 's (respondent 's) view and the respond ent 's contention that without deodorisation the oil is not "refined oil" as is known to the consumers and the commer cial community." In Dunlop India Ltd. vs Union of India and Ors., [1963] Supp. 1 SCR 586 the question arose whether the product known as V.P. Latex which was imported by the appellant can be considered to be 'rubber raw ' within the meaning of Tariff Entry No. 87 of the Indian Tariff Act, 1934. The choice was between classifying V.P. Latex as 'rubber raw ' and the general residuary entry at the end of the Tariff (a general catch) all entry which was described as "the orphanage of the residuary clause". In these circumstances, this Court applied the commercial meaning or nomenclature test. In the case of Commissioner of Sales Tax, M.P. vs Jas want Singh Charan Singh; , the respondent was a dealer in firewood and charcoal. In a proceeding for assessment of sales tax under the M.P. General Sales Tax Act, the respondent claimed that charcoal was 'coal ' within the meaning of Entry 1 of Part III of the Schedule II to the Act and therefore was taxable at the 'rate of 2%. The Sales Tax Authorities however, held that charcoal was not 'coal ' and was taxable at 4% as it fell under the residuary Entry 1 of Part VI of Schedule II. The Board of Revenue and the High Court held in favour of the respondent relying on the dic tionary meaning of the word 'coal '. The Commissioner of Sales tax appealed. It was held by this Court that in inter preting items in statutes like the Sales Tax Acts resort should be had not to the scientific or technical meaning of the terms used but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, in their commercial sense. Viewed from this angle, both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in 390 these sense as ordinarily understood and would include 'charcoal ' in the term 'coal ' It may be pointed out that this Court has clearly and unequivocally laid down that it is not permissible but in fact it is absolutely necessary to depart from the trade meaning or commercial nomenclature test where the trade or commercial meaning does not fit into the scheme of the commercial statements. This Court referring to the observa tions of Pullock B. in Grenfell vs Inland Revenue Commis sioner, ,248, observed: "that if a statute contains language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words 'popular sense ', that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. " But "if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adapted to the fit ness of the matter of the statute. " The Court has also referred to the observations of Fry, J in Holt & Co. vs Coilyet, , 720. The observation is: "If it is a word which is of a technical or scientic character then it must be construed according to that which is its primary meaning, namely, its technical or scientific meaning." Referring to the above decisions this Court held that: "While construing the word 'coal ' in Entry 1 of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute is being one levying a tax on goods must in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. " 391 This Court in K.V. Varkey vs Agricultural Income Tax and Rural Sales Tax Officer, [1954] 5 STC 384 specifically declined to apply the popular or commercial meaning of 'Tea ' occurring in the sales tax statute holding that the context of the statute required that the technical meaning of 'a product of plant life ' required to be applied and therefore green tea leaves were tea even though they might not be tea was known in the market. In Cannanore Spinning and Weaving Mills Ltd. vs Collec tor of Customs and Central Excise Cochin and Ors., ; this Court held that the word 'hank ' occurring in a Central Excise Notification could not be interpreted accord ing to the well settled commercial meaning of that term which was accepted by all persons in the trade in as much as the said commercial meaning would militate against the statutory context of the said exemption Notification issued in June, 1962. The word 'hank ' as used in the Notification meant a 'coil of yarn ' and nothing more. In Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., ; it has been observed by this Court that it is a well settled principle of construction that where the word has a scientific or technical meaning and also in ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature. It has also been observed that whether the general principle of interpreta tion was applicable or not depended on the statutory con text. If special type of goods is subject matter of a fiscal entry then that entry must be understood in the context of that particular trade, bearing in mind and particular word. The trade meaning is one which is prevalent in that particu lar trade where that goods is known or traded. Where, howev er, there is no evidence either way then the definition given and the meaning flowing from particular statute at particular time would be the decisive test. It has further been observed by this Court in this case that: "Where no definition is provided in the statute itself, as in this case, for ascertaining the correct mean ing of a fiscal entry reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the context and the trade meaning. In this connection reference has been made to the observations of this Court in CST vs M/s. S.N. Brothers, Kanpur, ; 392 In Collector of Customs, Bombay vs Hargovindas & Co., the import policy restricted the import of milk powder. The importer had imported skimmed milk powder and relied upon the principle of commercial nomenclature or trade understanding in order to contend that there was a settled and accepted distinction between milk powder and skimmed milk powder which was specifically recognised and accepted by this Court in Healthways Dairy vs State of Haryana. The Special Bench of the Tribunal negatived that contention and held that: "unlike the central excise tariff the import schedule itself provided a statutory basis of interpretation. The controver sy before us relates to a period during which the Imports (Control) Order, 1955, issued under the Imports and Exports (Control) Act, 1947, had a separate import schedule annexed to it. This import schedule was aligned with the import schedule of the . The import sched ule under the Import (Control) Order itself did not contain any rules of interpretation, section notes and chapter notes. However, a statutory Note at the beginning of the import schedule stated that the scope of various terms and headings in it was to be the same as in the import tariff schedule in the . Thus the elaborate statutory scheme of the customs tariff import schedule got applied to the import schedule as well. It is by now well known that the customs tariff import schedule hardly left any scope to go in for trade parlance or common parlance because it statutorily defined almost everything with the help of rules of interpretation and explanatory notes. In such a scheme, the statutory definitions must prevail over the trade parlance or any other aides to interpretation. " In Collector of Customs, BOmbay vs Swastic Woollens (P) Ltd. and Ors., [1988] Supp. SCC 796 this Court has observed that the expression 'wool wastes ' which has not been defined in the or in the relevant Notifica tion is not an expression of article It may be understood, as in most of financial measures where the expressions are not defined not in a technical or pre conceived basis but on the basis of trade understanding of those who deal with these goods. When no statutory definition is provided in respect of an item in the or the Central Excises Act, the trade understanding, meaning thereby the understanding in the opinion of those who 393 deal with the goods in question, is the safest guide. It has also been observed therein that the Tribunal has not ignored the Technical Committee 's observation nor the Board 's Tariff Advice. On a conspectus of all these decisions mentioned herein before the position thus emerges is that when the expression 'marble ' has not been defined in the as well as in the or in the relevant Notification regarding the restriction on import of Marble in the List of Restricted Articles, it is necessary to decide the signifi cance and true meaning of the word 'marble ' as used in the ITC Schedule as well as in the List of Restricted Items, and the not in its popular sense i.e. people who are dealing with this trade meant the same or what that term is commercially known in trade par lance but it has to be given a meaning in the context in which this word has been used in the ITC Schedule as well as in the List of Restricted items of Import. It is also neces sary to decide whether the word 'marble ' as stated in the ITC Schedule refers to only marble or includes travertine, ecaussine, alabaster and other calcareous monumental or building stones and can be termed as marble in the commer cial sense or in trade nomenclature so as to bring the same within the restricted Item No. 62 of Appendix 2 of the Import and Export Policy for April 1988 March 1991. We have already stated hereinbefore that in the List of Restricted Items under item No. 62 only marble has been mentioned and not the other stones including calcareous stone used for building or monumental purposes which have been left out. Therefore, per se it may be difficult to say that marble includes the other calcareous stones mentioned in the ITC Schedule. It is pertinent to mention in this connection to the Report of Dr. S.F. Sethna of the Department of Geology, St. Xaviers College, Bombay to whom a sample of the said calcareous slab of stone intended to be imported has been sent. Dr. Sethna, a noted Geologist after examination of the sample specifically stated that the sample under investiga tion is a sedimentary rock which does not show any sign of metamorphic recrystallization and thus cannot be considered as a marble. The report sent by the exporters of Italy, Elle Marmi and Andree Muciani dated December 6, 1988 also states that all the rough slabs loaded are calcareous stone slabs other than marble. Furthermore, Gianni C. Baigini, a Survey or registered with the Chamber of Commerce of Carrara and a Specialist for control of Marble, Calcareous Stones (other than marble) and Granite sent a certificate on inspection of the sample that all rough slabs stuffed are calcareous stone slabs of good quality. These are calcareous stones other than marble because they are not recrystallized calcareous rocks. He 394 further certified that the calcareous stone slabs in above consignment are not marble. One Shri S.V. Chaudhary, Direc tor, Regional Petrology Laboratory, Geological Survey of India after examination of the sample sent a report dated March 13, 1989 under the signatures of Dr. H.M. Ramachandra, Geologist to the appellant. The said report states that, 'the rock is a allochemic (Palmicritic) limestone, it cannot be termed as a marble '. In Invoice No. 126 88 a certificate has been given by the exporter to the following effect: "We certify that merchandise is of Italian origin. Contents are true and authentic, prices correct and current and that it is the only invoice for the goods described therein. " In the said invoice the goods has been described as slabs of calcareous stone of 2 Cms thick quantity. Thus it appears from all the aforesaid reports and certificates that the slabs of stone which have been imported from Italy are nothing but calcareous stones and the same cannot be termed as marble. Even according to item No. 0.2 of Indian Standard Specification for Marble (Blocks, Slabs and Tiles) the stone slabs imported by the appellant being not re crystallized and even being not metamorphosed cannot be considered as marble. Of course, the Revenue has tried to contend relying on the Note to the same wherein it has been stated that sometimes rocks, such as serpentine are also polished and used in trade as marble that the slabs of calcareous stone imported are used as marble in trade. In Harmonised System of Nomenclature (H,S.N.) marble has been defined as a hard calcareous stone, homogeneous and finegrained, often crystallie and either opaque or translu cent, Marble is usually variously tinted by the presence of mineral oxides (coloured veined marble, onyx marble, etc.), but there are pure white varieties. The Revenue Authorities sent the sample of the calcareous stone imported by the appellant to the Department of Mines, Indian Bureau Mines. A report has been sent by them to the Superintendent, Central Excise and Customs Division, Udaipur after testing of the sample of March 3, 1989. The said report gives the ' Technical and Commercial definition of marble as: Technical definition: "(Geologically (Petrologically) marble is recrystallised (Metamorphosed) limestone. Ordinary limestone is a sedi 395 mentary rock but once it is metamorphosed i.e. once it has undergone recrystallisation, it is turned to marble. So marble is metamorphosed limestone which consist essentially the minerals calcite, dolomite or a combination of the two. " Commercial Definition: "The usage of the term 'marble ' has a much vider applica tion. In the commercial circle, any limestone which is sufficiently hard and coherent to take a good polish and which can be cut into desired sizes (into blocks) free of cracks can be called marble. " It has also been stated therein that commercial marble refer to a crystalline rock composed of predominantly of one or more of following minerals; calcite, dolomite or serpentine and capable of taking a polish. It has been further stated under the said report that the specimen has been examined and it is observed that the rock is cryptocrystalline, fine grained, mildly metamorphosed with few bigger grains of calcite. The specimen is hard and compact and is capable of being cut into slabs/blocks of desired size and can take a good polish. Keeping above visual observations into view, it has been concluded that the specimen under reference is marble as per commercial definition. The Director of Mines, and Geology Department, Udaipur also sent a report to the Assistant Collector of Customs. It has been stated in the said report that the sample is of a fine grained off white rock. It gives very good effervescence with dilute hydro chloric acid and its hardness indicates that it is a fine grained carbonate rock. It takes good polish and can be used as marble. Regarding the microscopic characters it states that the rock is mainly composed of very fine grained cherty calcitic mass and iron oxides. No polygonal crystals are present. Recrystallization has not taken place. The rock sample has been identified as 'fine grained cherty lime stone '. It has also been stated that technically marble is a product of thermal metamorphism of limestone (impure lime stone) in which recrystallisation takes place and silicate minerals are also produced. Commercially the term 'marble ' has been applied to any stone, other than those known in trade as granite, that has a pleasing appearance and will take a polish. Thus, the term 'marble ' adopted in the trade is based on the general properties and use of the stone. It has been further stated that the definition of marble given in IBM publication 'Marble in India ' 1983, Government of India is as under: 396 "Marble: Petrologically marble is recrystallised (Metamorphosed) limestone. But in commercial parlance the term marble has a much wider application. Commercial marble is any crystalline rock composed predominantly of calcite, dolomite or serpentine that is capable of taking polish. " In Webster Comprehensive Dictionary, International Edition, the word 'Marble ' has been defined as "A compact, granular, partly crystallized limestone, occuring in many colours, valuable for building or ornamental purposes. " In Shorter Oxford English Dictionary, the word 'Marble ' has been defined as "Limestone in a crystalline (or, less strictly, also a granular) state and capable of taking a polish, occurring in many Varieties; much used in sculpture and architecture. " The Appellate Tribunal after considering various reports referred to hereinbefore observed that the term 'marble ' cannot be construed on geological and petrological consider ation, but has to be construed in commercial parlance. It has also been observed that the Tribunal is unable to place reliance on these reports. In Commercial circle any lime stone which is sufficiently hard and coherent to take good polish and which can be cut into desired sizes free of cracks can be called as marble as per the opinion given by the Indian Bureau of Mines. The Tribunal also observed that the Tribunal has found that the specimen could be termed as 'marble ' as per the commercial definition but not technical ly referring to the report of the Director, Mines and Geolo gy Department, Udaipur. It has also been observed by the Tribunal that in the sample re crystallization has not taken place. The Tribunal has also held that it was not necessary to go into any other aspects in term 's of the ISI or techni cal and scientific definition and held that the impugned goods do fall under marble in trade understanding and as such the same comes within the List of Restricted Items in Item No. 62, of Appendix 2. This finding cannot be sustained in as much as all the above reports referred to hereinbefore clearly lay down that any stone to be termed as marble falling within Entry No. 62 of the List of restricted Items in Appendix 2, has to be recrystallised. The Indian Stand ards Institution has also given a similar definition of marble as recrystallization of limestones or dolomitic limestones. Furthermore, Petrologically and Geologically the slabs of stones which have been imported are allochemic (pelmicritic) limestone and it cannot be termed as marble. The Indian Bureau of Mines also observed 397 on testing the sample of rock that it is cryptocrystalline, fine grained, mildly metamorphosed with few bigger grains of calcite and identified the same as very fine grained cherry calcitic limestone. It is apparent from all these reports that the calcare ous stone of specific gravity of 2.5% is not marble techni cally and scientifically. The finding of the Appellate Tribunal is, therefore, not sustainable. it is, of course, well settled that in Taxing Statute the words used are to be understood in the common parlance or commercial parlance but such a trade understanding or commercial nomenclature can be given only in cases where the word in the Tariff Entry has not been used in a scientific or technical sense and where there is no conflict between the words used in the Tariff Entry and any other Entry in the Tariff Schedule. In the instant case, in the Tariff Entry No. 25.15 in the ITC Schedule, Appendix 1 B, Marble, Travertine, Ecaussine, Alabaster and other calcareous stones of an apparent specif ic gravity of 2.5 or more have been mentioned whereas in Entry No. 62 only the word marble has been mentioned as a restricted item for import, the other calcareous stones such as travertine, ecaussine, alabaster etc. have not been mentioned in Entry No. 62. In these circumstances, some significance has to be attached to the omission of the words travertine, ecaussine and other calcareous monumental or building stones of an apparent specific gravity of 2.5 or more and Alabaster from the ITC Schedule in Entry No. 62 of Part B, Appendix 2 of Import and Export Policy for April 1988 March 1991. The only natural meaning that follows from this is that Entry 62 is confined only to marble as it is understood in a petrological or geological sense and as defined by the Indian Standard Institute and not as men tioned in the opinion given by the Indian Bureau of Mines on visual observation and it does not extend to or apply to other calcareous stones mentioned in the ITC Schedule. Moreover, the commercial nomenclature or trade meaning cannot be given to marble in as much as such a meaning if given will render otiose, redundant the terms travertine, ecaussine, alabaster and other calcareous monumental or building stone of an apparent specific gravity of 2.5% or more whether or not roughly trimmed or merely cut by sawing. Moreover, in Appendix 6 i.e. Import of items under Open General Licence, Item No. t refers to Raw Materials, compo nents, and consumables (Non iron and steel items other than those in Appendices 2, 3, Part A, 5 and so the other calcar eous stones excluding marble which is a restricted item of import fall within import items under Open General Licence. Although much stress has been laid on the note to Item No. 0.2 of Indian Standards Specification for Marble (Blocks, Slabs and Tiles) wherein it has been stated that some 398 times rocks, such as serpentine are also polished and used in trade as marble but it cannot be taken into consideration in coming to the finding that marble is the genus and all the other calcareous stones referred to in Tariff Entry No. 25.15 in ITC Schedule, Appendix I B are included in it. Moreover, the onus heavily lays upon the Revenue Authorities to prove by adducing cogent evidence that limestone without Metamorphism and recrystallisation not being opaque or translucent will fall within the category of stone called 'marble ' in Entry No. 62 of Appendix 2 as one of the re stricted items. The appellant before placing the order took considerable precaution in ascertaining from the exporter that the calcareous stone to be imported from Italy is calcareous stone and not marble. Moreover, he referred the sample of the calcareous stone to be imported to the Depart ment of Geology, Bombay and to the Regional Petrology Labo ratory of the Geological Survey of India to ascertain wheth er calcareous stone in question is marble or not in order to enable him to import the same under open general licence. He also asked his exporter to send a certificate whether the calcareous stone for which order is placed is marble or not. The exporter sent a certificate alongwith the report of the expert stating that the slabs of calcareous stones contained in the containers sent by the exporter are calcareous stones and not marble. No tangible evidence has been produced nor even affidavits of persons attached to this trade to the effect that the slabs of calcareous stone imported by the appellant are marble as defined within Entry No. 62 of the List of Restricted Items have been filed. The Revenue has not taken any steps to ascertain whether the calcareous stones imported are marble not by any scientific, geological or petrological test. Considering all these reports we are of the opinion that since the term marble has not been defined in the Imports Control Order as well as in the ITC Schedule, it has to be taken in a scientific and technical sense as well as in the context the word has been used and the slabs of calcareous stones imported by the appellant from Italy cannot be held to be marble as they have not been recrystallised and meta morphosed in the geological and petrological sense of the term. It is pertinent to refer in this connection the fol lowing passage of Maxwell on the Interpretation of Statutes, Twelfth Edition by P. St. J. Langan: "The word "land" is generally understood as including build ings, but if, after imposing a rate of houses, buildings, works, tenements and hereditaments, an Act exempted "land", this word would be restricted to land unburdened with houses, buildings or works which would ,otherwise have been unnecessarily enumerated. " 399 As regards the submission that the end use of a particu lar item has to be taken into consideration in interpreting a product is of no relevance in determining its classifica tion as we have stated hereinbefore that in interpreting a term appearing in the Tariff Item which has not been defined either in the Tariff Schedule or in the Import Control Order, the same is to be interpreted in such a way which is in consonance with the Items specified in the ITC Schedule without leaving out any part of the Items mentioned therein. In other words, a harmonised interpretation has to be given to each of the calcareous stones mentioned in the said Tariff Item in ITC Schedule and nothing should be left out or made redundant in giving the interpretation. The commer cial nomenclature or understanding in the trade which is generally given in tax statute can not be taken recourse to in the instant case in as much as the statutory context in which the Tariff Item appears requires departure in the instant case. In the Tariff. Item the calcareous stones used for monumental or building purposes and of a specific gravi ty of 2,5% or more is used in the scientific or technical sense and as such the commercial nomenclature or understand ing in the trade should not be taken recourse to in inter preting the word 'marble '. The reference to the requirement of gravity of 2.5% or more is also a purely technical crite ria or requirement which shows that the principle of trade nomenclature or commercial understanding is not applicable to that Tariff Item. Moreover, the said Harmonised System of Nomenclature (HSN) contains a specific note regarding ser pentine rocks to the effect that the same are some times called marble, but the same is excluded from Chapter Heading 25.15. This again clearly shows that according to HSN, Chapter Heading 25.15 has to be construed according to its technical meaning. Technically, serpentine does not fall under Heading 25.15 and the same is accordingly excluded therefrom by the HSN. If commercial meaning is to be applied then serpentine would have to be classified under Item 25.15 in as much as is sometimes called marble in the trade. The HSN Explanatory Notes, therefore, establish that Chapter Heading 25.15% must be construed by its technical sense and not by applying a commercial nomenclature test. Considering all these aspects, there is no other alter native but to conclude that the slabs of calcareous stone imported by the appellant are not marble as mentioned in Entry No. 62 of Appendix 2 of the Import and Export Policy for April 1988 March 1991 and so it is covered by open general licence. The imported goods cannot be confiscated by the Government under section 111(d) of the Customs Act, 1961 nor the appellant can be given the option to clear the said goods 400 for home consumption on payment of fine of Rs. Five lakhs in lieu of confiscation under Section 125 of the . The appellant cannot be said to have imported calcare ous stones without an import licence and as such there being no violation of the Import Control Policy the imposition of penalty of Rs. Ten lakhs under section of the is also unwarranted and not sustainable. Before we conclude it is relevant to mention in this connection that even if it is taken for arguments sake that the imported article is marble falling within Entry 62 of Appendix 2, the burden lies on the Customs Department to show that the appellant has acted dishonestly or contuma ciously or with the deliberate or distinct object of breach ing the law. In the present case, the Tribunal has itself specifical ly stated that the appellant has acted on the basis of bona fide behalf that the goods were importable under OGL and that, therefore, the Appellant deserves lenient treatment. It is, therefore, to be considered whether in the light of this specific finding of the Customs, Excise & Gold (Con trol) Appellate Tribunal, the penalty and fine in lieu of confiscation require to be set aside and quashed. Moreover, the quantum of penalty and fine in lieu of confiscation are extremely harsh, excessive and unreasonable bearing in mind the bona fides of the Appellant, as specifically found by the Appellate Tribunal. We refer in this connection the decision in Merck Spares vs Collector of Central Excise & Customs, New Delhi, ; Shama Engine Valves Ltd. Bombay vs Collector of Customs, Bombay,[1984] and Madhusudan Gordhandas & Co. vs Collector of Customs, Bombay, wherein it has been held that in imposing penalty the requi site mens rea has to be established. It has also been ob served in Hindustan Steel Ltd. vs State of Orissa, [1970]1 SCR 753 by this Court that: "The discretion to impose a penalty must be exercised judi cially. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct, or acts in conscious disregard of its obligation; but not, in cases where there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. " 401 In the instant case, even if it is assumed for arguments sake that the stone slabs imported for home consumption are marble still in view of the binding arrived at by the Appel late Tribunal that the said product was imported on a bona fide belief that it was not marble, the imposition of such a heavy fine is not at all warranted and justifiable. In the premises aforesaid, we allow the appeal and set aside the judgment and order passed by the Appellate Tribu nal and direct the Tribunal to release the goods to the appellant forthwith. We also direct the Tribunal to release the personal bond given by the Appellant for a sum of Rs.2,50,000 on the basis of which one container wasreleased as per order of this Court dated October 25, 1989 and also to release the appellant from payment of detention charges and demurrage for retaining the goods. In the facts and circumstances of the case there will be no order as to costs. R.S.S. Appeal allowed. [/INST]The land in dispute was agreed to be sold in favour of the appellant under an agreement. Subsequently, a third party in execution of a decree got the property attached. The sale deed was executed thereafter. A question arose as to the validity of the sale. The High Court held that the sale would be subject to attachment. Allowing the appeal by special leave, the Court, HELD: The agreement for sale creates an obligation attached to the ownership of the property. The attaching creditor is entitled to attach only the right, title and interest of the judgment debtor. Hence, if an agreement for sale is entered into before attachment, the attachment cannot be free from the obligation so incurred, and the attaching creditor will not get any right higher than the judgment debtor had on the date of the attachment. He cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor. [835C, 834F, 835E] Accordingly, though section 64 CPC is intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was entered into before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from the antecedent agreement for sale of the at tached property. [835D E] Paparaju Veeraraghavayya vs Killaru Kamala Devi & Ors., AIR 1935 Mad. 193; Veerappa Thevar & Ors. C.S. Venkataram ma Aiyar & Ors. , AIR 1935 Mad. 872; Angu Pillai vs M.S.M. Kasiviswanathan Chettiar, ; Puma Chandra Basak vs Daulat Ali Mollah, AIR 1973 Cal. 432; Rango Rama chandra vs Gurlingappa 833 Chinnappa, AIR 1941 Bom. 198; Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli, AIR 1943 Bom. 145 and Kochuponchi Varughese vs Quseph Lonan, AIR 1952 Travancore Cochin 467, approved. Mohinder Singh & Anr. vs Nanak Singh & Anr., AIR 1971 Pb. & Haryana 381, overruled. The sale in the instant case would not thus be subject to the attachment. The purchaser would get good title de spite attachment. [833F, 834D] </s>
<s>[INST] Summarize the judgementAppeal No. 154 of 1961. Appeal by special leave from the judgment and order dated October 31, 1960, of the National Industrial Tribunal (Bank Disputes), Bombay, in Reference No. 1 of 1960. WITH Petitions Nos. 70 80 and 82 of 1961. Petitions Under Article 32 of the Constitution of India for enforcement of Fundamental Rights. A.S. R. Chari, V. G. Raw, D. P. Singh, Al. K. Ramamurthi. R. K. Garg and section C. Agarwal, for the appellant and the petition (in Petn. No. 80 of 61). M. C. Setalvad, Attorney General of India, N. V. Phadke, K. H. Bhabha, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondents Nos. 2 17 and 19 34 (In appeal and Petn. No. 80 of 61). J.B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondents NOS. 41 49 (In appeal and Petn. 80 of 1961). Anand Prakash, for Respdts. 35 40 (In Petn. No. 80 of 61). A. V. Viswanatha Sastri, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal, for Intervener No. 2. D.S. Nargolkar and K. R. Choudhri, for Petitioners Nos. 70 and 82 of 61). M. C. Setalvad, Attorney General of India, C.K. Daphtary, Solicitor General of India, H.N. Sanyal Additional Solicitor General of India, J.B Dadachanji, 272 section N. Andley, Rameshwar Nath and P. L. Vohra, for Respdt No. 2 (In Petns. Nos. 70 and 82 of 61). Naunit Lal .for intervener No. 3. M. C. Setalvad Attorney General of India and T. sen, for Intervener No. 1. 1961. August 28. The Judgment of the Court was delivered by AYYANGAR, J. Civil Appeal No. 154 of 1961 has been filed on special leave obtained from this Court Against an order of K. T. Desai, J., functioning as the National Industrial Tribunal (Banks Disputes) Bombay dated October 31, 1960. The point arising for decision in the appeal is as regards the constitutional validity of section 34A of the Banking Companies Act, 1949 which was enacted on August 26, 1960 as an amendment to the parent Act (Act X of 1949). The appellant before this Court is the All India Bank Employees ' Association which is a trade union organization of Bank Employees of several banks operating in India The Punjab National Bank Employees ' Union, which is a trade union with similar objects has been committed to intervene in this appeal in support of the appellant union The three other Writ Petitions are by other Bank Employees ' Unions whose description would be apparent from the cause title and all these cases have been heard together because in the writ petitions also the point raised is identical, viz., the validity of s.34A of the Banking Companies Act, which will be referred to hereafter as the impugned provision. Section 34A whose validity is the matter in dispute in these proceedings runs in the following terms "34A. (1)Notwithstanding anything contained in section 11 of the . or any other law for the time being in force, no banking company 273 shall in any I proceeding under the said Act or in any appeal or other proceeding arising therefrom or connected therewith, be Compelled by any authority before which such proceeding is pending to produce, or give inspection of, any of its books of account or other document or furnish or disclose any statement or information, when the banking company claims, that such document, statement or information is of a confidential nature and. that: the production or inspection of such document or the furnishing or disclosure of such statement or information would involve disclosure of information relating to : (a)any reserves not shown as such in its published balance sheet ; or (b)any particulars not shown therein in respect of provisions made for bad and doubtful debts and other usual or necessary provisions. (2)If, in. any such proceeding in relation to any banking company other than the Reserve Bank of India,, any question arises as to whether any amount out of the reserves or provisions referred to in sub section (1) ,should be taken into account by the authority before which such proceeding is pending, the authority may, if it so thinks fit, refer the question to the Reserve Bank and the Reserve Bank shall after taking into account principles of sound banking and all relevant circumstances concerning the banking company, furnish to the authority a certificate stating that the authority shall not take into account any amount as such reserves and provisions of the banking company or may take them into account only to the extent of the amount specified by it in the certificate, and the certificate of the Reserve Bank on 274 such question shall be final and shall not be called in question in any such proceeding. (3)For the purposes of, this section, "banking, company" shall have the meaning assigned to it in the , Before commencing the examination of the points in controversy and the grounds on which the legality of the above provision is impugned. It would be helpful for a better appreciation of the problem if we set out in very brief outline, the history of the steps which led to the enactment in dispute ' There was a long standing practice in England of Banking Companies, as distinguished from companies carrying on other commercial etc. activities, not to disclose, in their balance sheets and Profit & Loss accounts, bad and doubtful debts and the provision made therefore, as well as, the secret reserves created and held under various items a practice which received judicial recognition by Buckley, L., J. in .Newton vs Birmingham Small Arms Co. Ltd. (1) This practice was followed by several banks in India and questions arose from time to time as to how far the practice was consistent with the statutory provisions as to disclosure contained in the several Companies Acts enacted from time to time. ; We shall, how ever, add that the desirability and; even the legality of this practice has not gone without challenge, though there has been a considerable body of opinion which has held this to be salutary and necessary for the preservation and progress of a credit institution like a bank. We are not now concerned with the desirability or ethics of the practice which is a matter for the consideration of the legislature but as to the steps by which accord was established between the practice and the law. The Indian Companies Act of 1866 drew no distinction between the contents of balance sheet,% of banking companies as distinguished from those of (1) 275 other companies and both were required to disclose a list of debts owing to the concern which were considered bad or doubtful Pro visions on the same lines, i. e., without any, distinction between Banking and other companies, were copied and continued by the Indian Companies Act of 1882. When, however, the Companies Act of 1913 was enacted, Form F ' to the 3rd Schedule to the Act contained a note in respect of the sub heading ' 'book debts ' under the head Property & Assets ' in the balance sheet, reading "distinguishing ill the case of a bank between those considered good and in respect of which the bank is fully: secured and those considered good for which the bank holds no security other than the debtor 's personal security; and distinguishing in all cases between debts considered good, and debts considered doubtful or bad. Debts due b y directors or other officers of the company or any of the either severally or joint with any other persons to be separately stated in all cases. " It would be seen that by reason of this note the obligations imposed upon banks as regards the classification of their; assets and the information to: be disclosed became slightly more detailed than in ' the case of other companies. The practice, 'however, of bankers to which we adverted earlier not to disclose or not to disclose to the full extent bad and doubtful debts but to make, provision for them by setting aside under other heads, sufficient moneys which would operate as secret reserves, so that the credit of the institution would not be affected while its financial stability would remain unimpaired; was continued notwithstanding this, change in the form. The Central Bank of India Limited in its published, balance sheets of the year 1925 adopted the above practice which however, wasn 't obviously in strict conformity with the requirements of From 'F 'to the third schedule read with note. The 276 managing director of the bank was prosecuted by one Shamdasani who was a shareholder of the bank ,or "filing and publishing statements which were false in material particulars" an offence punishable under section 282 of the Indian Companies Act. The Magistrate acquitted the accused on the ground that the balance sheet was in accordance with the usual practice of bankers and that the reserves of the company which were shown under various heads though not as a specific provision for bad and doubtful debts covered the possible losses several times. Ail application for revision was filed before the High Court of Bombay and Fawcett, J. allowed it holding that a declared provision. of the form cannot be allowed to be whittled down by general considerations as to the object of a balance sheet. " This judgment was rendered on February 28, 1927 (vide Shamdasani vs Pochkanwala (1) and very soon thereafter the Government of India intervened by a notification dated March 29, 1927 under section 151 of the companies Act 1913 amending form 'F ' and as amended banks were excluded from the requirement of disclosing the reserve for bad and doubtful debts under the heading, `capital and Liabilities ' in the left hand side of the balance sheet, and in the right hand column "book debts which were bad and doubtful for which provision had been made to the satisfaction of the auditors",, were not required to be shown as part of the property and assets of a Bank. The provisions of the Companies Act of 1913 underwent numerous changes by the amending Act of 1936 which included inter alia one whereby the change effected by the Notification, dated March 29, 1927, in Form `F ' were omitted and Form `F 'was made to retain the note which accompanied it under the Act of 1913 without the exception in favour of banks effected by the Notification. This was possibly unintended, because on the day after the amending Act came into operation, the Central Government published a Notification on January 16, 1937 (1) A.I.R. 1927 Bom. 414 : 277 again under s.151 of the Companies Act restoring the alterations in the balance sheet Form 'F ' as had been effected by the prior Notification ,of March 1927. The validity of this Notification was questioned as being beyond the powers of the Central Government by Shamdasani who filed a complain against the Central Bank of India Limited and its directors charging them with having issued a false balance sheet for the year ending December 31, 1939 a balance sheet which was in conformity with the form as modified by the Notification. The Magistrate upheld the validity of the Notification and quitted the accused. Shamdasani preferred a revision to the High Court and a full Bench of the Bombay High Court held that the Notification was beyond ' the powers of the Central Government, though the order of acquittal was affirmed upholding the plea of the accused that their act was bona fide in that they believed the alteration in the form to be valid (Vide Shamdasani vs The Central Bank of India Ltd.(", Immediately after 'this judgment the Central legislature passed Act XXX of 1943 with retrospective effect validating the Notification and amending the relevant sections of the Companies Act. (sections 132,151, article 107) so as to empower the Government to effect changes in the form of the balance sheet in the manner in which they had done in January ' 1937. The next event in order of date relevant to the present context is the report of the Company, Law Amendment Committee of the United Kingdom presided over by Mr. Justice Cohen where the entire question of undisclosed reserves was fully discussed. The pros and cons of the question were elaborately considered by the Committee and it is sufficient therefore in this connection to a short passage in the report. In paragraph 101 the problem is thus set, out : "The chief matter which has and controversy is the question of undisclosed or, a. (1) I. L. R. 278 the Are, frequently called, secret or inner reserves. An undisclosed reserve is commonly created by using profits to write down more than is necessary such assets as investments,freehold and leasehold property or plant and machinery by creating excessive provisions for bad debts or other contingencies by charging capital expenditure to revenue ; or by undervaluing stock in trade. Normally the object of creating an undisclosed reserve is to enable a company to avoid violent fluctuations in its published profits or its dividends. " The Committee made number of recommendations several of which were adopted in ' the U. K. Companies Act of 1948, and those relevant ' to the point under discussion served to bring the law as to the contents of a balance sheet of a Banking Company unto. line with the practice of sound and well managed banks. In India, special legislation in relation to Banking Companies embodying several of these recommendations was enacted in the shape of the Banking Companies Act 1949 (Act of 1949). Section 29 of the Act laid down the law in regard to requirements of the contents of the balance sheets of banks. The balance sheet and Profit & Loss account were to be in the form set out in the 3rd schedule to that and sub section (3) of that section exempted Banking Companies from the, requirements of conforming to the form of balance sheet and Profit & Loss, account of companies registered under the Indian Companies Act; and the Central Government were empowered by sub section (4) to amend the, form set out in the schedule by Notifications published in the official. , Gazette. In Form 'A ' which provided the model of a balance sheet 'and Profit & Loss account in the case of banks, there was not much change as compared to the requirements of the previous law except that in the Profit & Loss account (Form 'B ' )I the third schedule) the provision for bad and doubtful debts was permitted to be excluded from the 279 income so that the amount of bad and doubtful debts did not figure separately on the income side of the profit & loss account. The income as required to be shown was "income (less provision made during the year for bad and doubtful debts)". This last item was modified by a Notification issued under the power conferred by s.29(4) of the Act in December 1951, so that after amendment .the beading "Income" in the Profit & Loss Account ran: "Income (less provision made during the year for bad and doubtful debts and other usual and necessary provisions"). Thus so far as shareholders of Banks and the general public including the customers of the bank were concerned, banks were relieved from the obligation of disclosing the entirety of their reserves as such and also of the extent of bad or doubtful debts and the provision made therefore. While the law was in this state disputes arose between the employees of banks all over India and the respective banks with regard to wages, conditions of work etc. which were referred by the Central Government in June 1949 to an ad hoc Tribunal with Shri K. C. Sen, a retired Judge of the Bombay High Court as Chairman. The Tribunal passed an award but its validity was successfully challenged in this Court in April 1951 on the ground that all the members of the Tribunal who passed the award were not those who had all inquired into the dispute. Thereafter a fresh Tribunal was appointed in January 1952 with Shri section Panchapages Sastri, a retired Judge of the High Court of Madras as Chairman. The award of this Tribunal was published in April, 1953, but it is not necessary to state its terms. Appeals against the award were preferred to the Labour Appellate Tribunal both by the banks as well as by workmen. The Appellate Tribunal which heard the appeal consisted of three members with Shri Jeejeebhoy as president. The claim of the workers in the appeal before the Appellate Tribunal in great part related to a 280 demand for increased wages and salaries and the main defence of the banks was that they had not the capacity to pay anything beyond what the Sastry Tribunal had granted. The Jeejeebhoy Tribunal set out their difficulties in assessing the plea of incapacity raised by the banks in the context of the provisions of the Banking Companies Act and the form of balance sheet prescribed thereunder in the following terms : "At the very outset there is an initial difficulty in arriving at a correct estimate of the financial position of banks. There are two circumstances which militate against our securing a proper insight into the financial state of banks. We refer in particular to (a) the undisclosed or secret reserves and (b) to the manner in which it is permissible in law for a banking company to exhibit its balance sheet. It is not in dispute that bank do have undisclosed or secret reserves which they acquire in a number of ways, and such undis closed reserves cannot be ascertained from the balance sheet. . . . . . . x x x The other difficulty with which we are confronted at the outset is the manner in which a bank is permitted to present its profit & lose account. On the income side the form originally prescribed by the Banking Companies Act required the banks to declare "Income less provision made during the year for bad and doubtful debts)" ; this has now been altered by an amendment made by the Central Government in exercise of the powers conferred under sub section 4 of section 29 of the Banking Companies Act to read "Income (less provision made during the year for bad and doubtful debts and other usual or necessary provisions)". The effect of this alteration is that the profits as shown for any 281 particular year are first shown not only of bad and doubtful debts but also of 'other usua l or necessary provisions ' before being shown in the balance sheet. . . . It maybe that these other usual or necessary provisions ' have been passed by the Board of Directors, and by the auditors of the concern and may even have been scrutinized by the Reserve Bank of India ; but it is our duty and function to decide the question of the capacity of a bank to pay, and in the absence of important information of this character our estimate of the capacity of a concern to pay must necessarily be incom plete. . . . Banks feel that they now have the form of the Banking Companies Act to shield themselves against an enquiry on the subject ; but insofar as we are concerned we consider these undisclosed reserves and these appropriations. relevant for the purposes of our investigation and in their absence we would have to decide as beat as we could from the other materials before us; and draw such inferences as justified. " It was the contention of the workmen that an Industrial Tribunal had the right in law to compel banks to sis, lose their secret reserves as well as the amount of "the bad and doubtful debts and other necessary provisions" which bad been excluded under the head "income" in the, Profit & Loss Account of banks. This matter was agitated by them before this Court in State Bank of India and others vs Their Workmen (1) being an. appeal against the decision of the Labour Appellate Tribunal. In view, however, of the conclusion reached by this Court on other parts of the case it refrained from pronouncing upon the correctness or otherwise of this claim by the workmen. The diputes between the employees of banks (1)(1959), 2 L.T L. J. 205. 282 and the managements, however, continued with the result that on March 21, 1960 the Central Government in exercise of the powers conferred on it by sub section (1A) of section 10 of the referred the dispute which related to several matters to the National Tribunal constituted by & Notification of Government of the same date, K. T. Desai, J. was the Tribunal so appointed. Most of the major banks in the country were made parties to the reference including the Reserve Bank and State Bank of India. After the Tribunal started functioning and after the parties formulated their respective contentions, applications were filed by the Bank Employees Association on June 9, 1960, for directing the respondent banks to produce before the Tribunal for the purposes of adjudication several documents listed in the applications. Among the items in respect of which production was thus sought were (1) statements showing "the secret reserves in any form" of each bank from 1954 right upto December 31, 1959 ; and (2) statements showing the provision made "for bad and doubtful debts and other usual and necessary provisions" during the years 1954 to 1959 and the total amounts outstanding in such items in each bank in the said years. The banks filed their reply on July 16, 1960. The production of the documents and the information called for on several of the matters including the above two was resisted by the Indian Banks Association (being an association of employers) on the ground that they were by law exempted from disclosure in the interest of the industry and the public and claimed absolute privilege from making the disclosure. It was at this stage that the impugned provision was enacted by Parliament as an amendment to the Banking Companies Act. As several of the banks relied upon the impugned provisions in support of their plea that they could not be compelled to disclose either the quantum of their secret reserves or their nature, or as regards the provision made in 283 the several years for "bad and doubtful debts and for other reasonable and necessary provision", the bank employees association challenged the constitutional validity of section 34A of the Banking Companies Act, which, if valid, could have afforded a sufficient answer to the demand for production of the documents in relation to these matters. This objection was argued before the National Tribunal which upheld the validity of the section. As we have stated earlier, Civil Appeal No. 154 is directed against and challenges the correctness of this decision. The Writ Petitions have been filed by Bank Employees Associations which were not parties to the application for production before the National Tribunal and are intended to support the plea of the appellant in Civil Appeal No. 154 of 1961. The foregoing narrative would show that the Banking Companies Act, as it stood before the amendment now challenged, had brought the law as to the disclosure of secret reserves and the provision for bad and doubtful debts etc. Into accord with the usual practice of Bankers, and had protected these items from being compulsorily disclosed to the shareholders of the respective companies and to the general public. There had been a controversy as to whether the workmen of these establishments were or were not entitled to be placed on a different position from the shareholders because of the bearing of these undisclosed items on the determination of the quantum of their wage etc. and on their conditions of work having financial implications. Parliament had, by the impugned legislation, extended the protection from compulsory disclosure to the workmen as well, but with a safeguard in their cue that the Reserve Bank would determine the amount of reserves etc. which could be taken into account in the course of industrial adjudication. The question before us is, is this attempt at some approximation of the position of the workmen to that of shareholders etc. unconstitutional ? 284 Mr. Chari, learned Counsel for the appellant in Civil Appeal No. 154 addressed to us the main arguments in the case and these were supplemented by learned Counsel appearing for the petitioners in the several writ petitions and also by learned Counsel on behalf of the Interveners both in the appeal as well as in the petitions. Though the arguments before us ranged over a very wide field, the attack on the validity of the legislation was rested on two main grounds : (1) that the impugned legislation contravened the fundamental right guaranteed to "trade unions" by the provi sion contained in sub cl. (c) of el. (1) of article 19; and (2) that it violated the freedom of equality guaranteed by article 14 of the Constitution. We shall consider these two points in that order : First as to the impugned provision being obnoxious to, or in contravention of sub cl.(c) of cl. (1) 'of article 19 'of the ' Constitution. This Article runs, to quote only the relevant words "Article 19. (1) All citizens shall have the right (a). . . . . . . . (b). . . . . . . . (c) to form associations or unions The right is subject to the qualification contained in cl.(4), reading : "(4). Nothing in sub clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause. " It is not the contention of any of the learned Counsel that the right of workmen to form unions or associations which is the right guaranteed by sub cl. (c) of cl. (1) of article 19 on its literal reading has 285 been denied by the impugned legislation. The argument, however, was that it would not be a proper construction of the content of this guaranteed freedom to read the text literally but that the freedom should be so understood as to cover not merely a right to form an union in the sense of getting their union registered so as to function as an union, i.e., of placing no impediments or restrictions on their formation which could not be justified as dictated by public order or morality but that it extended to confer upon unions so formed a right to effectively function as an instrument for agitating and negotiating and by collective bargaining secure, uphold or enforce the demands of workmen in respect of their wages prospects or conditions of work. It was further submitted that unless the guaranteed right comprehended these, the right to form an Union would be most illusory. To understand the implications of learned Counsel 's submission in their proper perspective the several steps in the reasoning might be set out as follows : (1)The Constitution guarantees, by sub cl.(c) of cl. (1) of article 19, to citizens in general and to workers in particular the right to form unions. In this context it was pointed out that the expression `union ' in addition to the word ,association ' found in the Article refers to associations formed by workmen for "trade union" purposes ; the word "union, being specially chosen to designate labour or Trade unions. (2)The right to "form an union" in the sense of forming a body carries with it as a concomitant right a guarantee that such unions shall achieve the object for which they were formed. If this concomitant right were not conceded, the right guaranteed to form an union would be an idle right, an empty shadow lacking all substance. (3)The object for which labour unions axe brought into being and exist is to ensure collective 286 bargaining by labour with the. employers. The necessity for this has arisen from an incapacity stemming from the handicap of poverty and consequent lack of bargaining power in workmen as compared with employers which is the reason d 'etre for the existence of labour organizations. Collective bargaining in order to be effective must be enforceable labour withdrawing its co operation from the employer and there is consequently a fundamental right to strike a right which is thus a natural deduction from the right to form unions guaranteed by sub cl. (c) of cl.(1) of article 19. As strikes, however, produce economic dislocation of varying intensity or magnitude, a system has been devised by which compulsory industrial adjudication is substituted for the right to strike. This is the ratio underlying the provisions of the under which Government is empowered in the event of an industrial dispute which may ultimately lead to a strike or lock out or when such strikes or lock outs occur, to refer the dispute to an impartial Tribunal for adjudication with a provision banning and making illegal strikes or lock outs during the pendency of the adjudication proceedings. The provision of an alternative to a strike in the shape of industrial adjudication is a restriction on the fundamental right to strike and it would be reasonable and valid only if it were an effective substitute. (4)For an adjudication to satisfy the tests of reasonableness and effectiveness two conditions are necessary : (a) that the adjudicator should be enabled to have before him all the materials which are necessary for pronouncing upon the matter in controversy before him ; and (b) that the adjudicator by whom the controversy between the parties should be decided should be an impartial person or body who would render the decision or award after fully hearing the parties, and that no matter in controversy should be the subject of ex parte decision by an interested party or without the disputants having an opportunity to know the, 287 materials on which the decision is reached, as also an opportunity to place their case with reference to such material. (5)In regard to the right of labour unions to function effectively and to achieve the object of their existence as set out earlier, by negotiated settlement or by compulsory adjudication, the only limitations permitted to be imposed by law are those set out in cl.(4) of article 19 and unless, therefore, either the objects of the association or the marmer of achieving them are contrary to, or transgress public order or morality, for which reason alone reasonable restrictions might be imposed upon the guaranteed right, the. freedom guaranteed is absolute. (6)The legislation now impugned withdraws as it were a vital issue in dispute between the parties before the adjudicator, viz:, the capacity of the industry to pay, from his cognisance and vests the power of deciding that issue in the Reserve Bank which is a biased and interested party, the decision itself being rendered ex parte, the trade unions being deprived even of the knowledge of facts which lead to the decision. It was on this line of reasoning that learned Counsel submitted that the impugned enactment violated the freedom guaranteed by sub cl. (c) of el. (1) of article 19. We shall now proceed to consider the soundness and tenability of the steps in the reasoning. It is not necessary to discuss in any detail the first step as sub cl. (c) of el. (1) of article 19 does guarantee to all citizens the right ',to from associations". It matters little whether or not learned Counsel is right in his submission that the expression "union ' in the clause has reference particularly to Trade Unions or whether the term is used in a generic sense to designate any association formed for any legitimate purpose and merely as a variant of the expression "Association" for comprehending every body of persons so formed. It is not controverted 288 that workmen have a right to form "associations or unions" and that any legal impediment in the way of the formation of such unions imposed directly or indirectly which does not satisfy the tests laid down in cl. (4) would be unconstitutional as contravening a right guaranteed by of the Constitution It is the second step in the argument of the learned Counsel, viz., that the right guaranteed to form "an union" carries with it a concomitant right that the achievement of the object for which the union is formed shall not be restricted by legislation unless such restriction were imposed in the interest of public order or morality, that calls for critical examination. We shall be referring a little later to the authorities on which learned Counsel rested his arguments under this head, but before doing so we consider it would be proper to discuss the matter on principle and on the construction of the constitutional provision and then examine how far the authorities support or contradict the conclusion reached. The point for discussion could be formulated thus : When sub cl. (c) of cl. (1) of article 19 guarantees the right to form associations, is a guarantee also implied that the fulfilment of every object of an association so formed is also a protected right, with the result that there is a constitutional guarantee that every association shall effectively achieve the purpose for which it was formed without interference by law except on grounds relevant to the preservation of public order or morality set out in cl. (4) of article 19? Putting aside for the moment the case of Labour Unions to which we shall refer later, if an association were formed, let us say. for carrying on a lawful business such as a joint stock company or a partnership, does the guarantee by sub cl.(c) of the freedom. to form the association, carry with it a further guaranteed right to the company or the partnership to pursue its trade and achieve its profit making object and that the only limitations 289 which the law could impose on the activity of the association or in the way of regulating its business activity would be those based on public order and morality under cl. (4) of article 19? We are clearly of the opinion that this has to be answered in the negative An affirmative answer would be contradictory of the scheme underlying the text and the frame of the several fundamental rights which are guaranteed by Part III and particularly by the scheme of the seven freedoms or groups of freedoms guaranteed by sub cls. ( 'a) to (g) of el. (1) of article 19. The acceptance of any such argument would mean that while in the case of an individual citizen to whom a right to carry on a trade or business or pursue an occupation is guaranteed by sub cl. (g) of cl. (1) of article 19, the validity of a law which imposes any restriction on this guaranteed right would have to be tested by the, criteria laid down by cl. (6) of article 19. if however he associated with another and carried on the same activity say as a partnership, or as a company etc. , he obtains larger rights of a different content and with different characteristics which include the right to have the validity of legislation restricting his activities tested by different standards, viz., those laid down in el. (4) of article 19. This would itself be sufficient to demonstrate that the construction which the learned Counsel for the appellant contends is incorrect, but this position is rendered clearer by the fact that article 19 as contrasted with certain other Articles like articles 26, 29 and 30 grants rights to the citizen as such, and associations can lay claim to the fundamental rights guaranteed by that Article solely on the basis of their being an aggregation of citizens, i.e., in right of the citizens composing the body. As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens: composing it are subject. The resulting position way, be illustrated thus If an association were formed ' for ' the purpose of 290 arrying on business, the right to form it would be Guaranteed by sub cl. (c) of cl. (1) of article 19 subject to any law restricting that right conforming to cl. (4) of article 19. As regards its business activities, however, and the achievement of the objects for which it was brought into existence, its rights would be those guaranteed by sub cl. (g) of cl. (1) of article 19 subject to any relevant law on the matter conforming to el. (6) of article 19 ; while the property which the association acquires or possesses would be protected by sub el. (f) of cl. (1) of article 19 subject to legislation within the limits laid down by cl. (5) of article 19. We consider it unnecessary to multiply examples to further illustrate the point. Applying what we have stated earlier to the case of a labour union the position would be this : while the right to form an union is guaranteed by sub el. (c), the right of the members of the association to meet would be guaranteed by sub el. (b), their right to move from place to place within India by sub cl.(d), their right to discuss their problems and to propagate their views by sub cl. (a), their right to hold property would be that guaranteed by sub cl. (f) and so oneach of these freedoms being subject to such restrictions as might properly be imposed by cls. (2) to (6) of article 19 as might be appropriate in the context. It is one thing to interpret each of the freedoms guaranteed by the several Articles in Part III a fair and liberal sense, it is quite another to read which guaranteed right as involving or including 'Concomitant rights necessary to achieve the object which might be supposed to under lie the grant of each of those rights, for that construction would, by a series of ever expanding concentric circles in the shape of rights. concomitant to concomitant rights and so on, lead to an almost grotesque result. There is no doubt that in the context of the principles underlying the Constitution and the manner in which its Part III has been framed the 291 guarantees embodied in it are to be interpreted in a liberal way so as to subserve the purpose for which the constitution makers intended them and not in any pedantic or narrow sense, but this however does not imply that the Court is at liberty to give an unnatural and artificial meaning to the expressions used based on ideological considerations. Besides it may be pointed out that both under the Trade Unions act as well as under the the expressions `union signifies not merely a union of workers but includes also unions of employers. If the fulfilment of every object for which an union of workmen was formed were held to be a guaranteed right, it would logically follow that a similar content ought to be given to the same freedom when applied to an union of employers which would result in an absurdity. We are pointing this out not as any conclusive answer, but to indicate that the theory of learned Counsel that a right to, form unions guaranteed by sub cl. (c) of ol.(1) of article 19 carries with it a fundamental right in the union so formed to achieve every object for which it was formed with the legal consequence that any legislation not falling within el. (4) of article 19 which might in any way hamper the fulfilment of those objects, should be declared unconstitutional and void under Art, 13 of the Constitution, is not a proposition which could be accepted as correct. Besides the qualification subject to which the right under sub cl. (c) is guaranteed, viz., the contents of el. (4) of article 19 throw considerable light upon the scope of the freedom, for the significance and contents of the grants of the Constitution are beat understood and read in the light of the restrictions imposed. If the right guaranteed included not merely that which. would flow on a literal reading of the Article, but every right which is necessary in order that the association brought into existence fulfils every object for which it is formed, the qualifications therefor, would be not merely those in cl.(4) of Art, 19, but would be. more numerous and 292 very different, restrictions which bore upon and took into account the several fields in which associations or unions of citizens, might legitimately engage themselves. Merely by way of illustration we might point out that learned Counsel admitted that though the freedom guaranteed to workmen to form labour unions carried with it the concomitant right to collective bargaining together with the right to strike, still the provision in the forbidding strikes in the protected industries as well as in the event of a reference of the dispute to adjudication under section 10 of the was conceded to be a reasonable restriction on the right guaranteed by sub cl.(c) of cl.(1) of article 19. It would be seen that if the right to strike were by implication a right guaranteed by sub cl. (c) of cl. (1) of article 19 then the restriction on that right in the interests of the general public, viz., of national economy while perfectly legitimate if tested by the criteria in el. (6) of article 19, might not be capable of being sustained as a reasonable restriction imposed for reasons of morality or public order. On the construction of the Article, therefore, apart from the authorities to which we shall refer presently, we have reached the conclusion that even a very liberal interpretation of sub cl. (c) of cl. (1) of article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise. The right to strike or the right to declare a look out may be controlled or restricted by appropriate industrial legislation, And the validity of such legislation would have to be tested not with reference to the criteria laid down in cl.(4) of article 19 but by totally different considerations. We shall now proceed to consider the authorities, relied ion by the learned Counsel in support of this theory of "Concomitant right" to collective bargaining guaranteed to labour unions. first as regards the decisions of this Court on which learned 293 Counsel relied Romesh Thappar vs The State of Madras(1)Was the earliest case referred to; and learned counsel placed reliance in particular on the following passage in the judgment of the learned Chief Justice : "Turning now to the ' merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. 'Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value : Ex parte Jackson, ; Based on this, learned Counsel submitted that if the phrase "freedom of speech and expression ' in sub cl. (a) of el. (1) of article 19 were given this liberal construction so as to effectuate the object for which the freedom was conferred, a similar construction ought to be adopted of the content of the freedom guaranteed by sub cl. (c) of el. (1) of article 19. We are, however, unable to discern any analogy between the two cases. It is obvious that "freedom of speech" means freedom to speak so as to be heard by others, and therefore to convey one 's ideas to others. Similarly the very idea of freedom of expression necessarily connotes that what one has a right to express may be communicated to others. Unless therefore the freedom guaranteed by sub cl.(a) of el. (1) of article 19 were read as confined to the right to speak to oneself or to express his ideas to himself, which obviously they could not mean, the guaranteed freedom would mean freedom to address others, and of conveying to others one 's ideas by printed word, viz., freedom of circulation. We do not see, therefore, any analogy between the case which was considered by this Court in Romesh Thappar 's (1) case and the one before us. (1) ; In A. 294 The observations in the judgment of Bhagwati, J. in Express New,,?,papers (Private) Ltd. vs Union of India(1) on which Counsel relied, in regard to the content of the 'freedom of speech and expression that they "include within its scope the freedom of the press", for the press with the printed word is merely the mechanism by which the freedom is exercised do Dot really carry the matter any ` further. We were next referred to the observations of Das C. J. in the advisory opinion Re the Kerala Education The question, which was being considered in the passage,relied on, related to the scope and content of cl. (1) of article 30 which guaran tees to all minorities a right to establish and administer educational institutions of their choice. The question debated before this Court was, whether the provision in the Kerala Education Bill which denied recognition by Government to educational institutions run by minorities contravened this freedom guaranteed to them ? Dealing with this Das C. J. said : "Without recognition, therefore, the edu cational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under article 30(1) cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which would effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to ' the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is (1) (2) 1959 S.C.R. 995. 295 in truth and in effect to deprive them of their rights under article 30 (1).19 We do not consider that these observations and this construction of el. (1) of article 30 assist learned Counsel in his submission as regards the theory of concomitant rights flowing from the freedom guaranteed by sub cl. (c) of cl. (1) of article 19. The observations of the learned Chief Justice and the conclusions drawn are in relation to the construction of article 30 and cannot be divorced from ' the context. They do not purport to lay down any general rule of construction for the freedoms guaranteed under the several sub heads of cl. (1) of article 19, and, indeed, what we have pointed out earlier should suffice to indicate the impossibility of upholding any such construction of the freedoms guaranteed by the latter Article. Learned Counsel also referred us to certain passages in two judgments of the Supreme Court of the United States : National Association for the advancement of colored people vs Alabama,(1)and Bates vs Little Rock(2)in which the Court held that, freedom of speech and assembly which were fundamental rights guaranteed by the Constitution would be abrogated or improperly encroached upon by legislation 'which compelled the disclosure to public authorities of the membership rolls. In the two decisions the facts were that the associations in question were for the protection of coloured persons and the requirement of disclosure of the names of members was inserted in the law for the purpose of putting a pressure upon these associations so as to dissuade people from joining them. The argument of learned Counsel before us was based on the dicta in these two decisions that the I right to form an association which followed by reason of the due process ' clause in the 14th amendment carried with it the right to ensure that the associations were able to maintain themselves as associations. In the two (1) 2 Law. Second 1488. (2) 4 Law. Second 480. 296 decisions referred to, the learned Judges of the Supreme Court of the United States were not construing the content of a provision on the lines of article 19(1)(c), for in America, the right of association is not any specifically guaranteed right, but has been derived by judicial interpretation of the due process clause of the 14th Amendment. But apart from this the legislation there impugned was one which directly affected the formation of the association and in that sense may be hit by the terms of sub cl.(c) of cl.(1) of article 19 if statutes with similar purpose were enacted in India. The decisions cited are no authority for the second step in the argument for which they were cited. Learned Counsel also referred us to two other decisions of the Supreme Court of the United States in which the right of employees to self organization, to form, join and assist labour organisations and to bargain collectively through representatives of their own choice and to engage in concerted Activities for the purpose of collective bargaining or other mutual aid has been referred to as "a fundamental right" (vide National Labor Relations Board vs Jones and Laughlin Steel Corporation and ors. , (1) and Amalgamated Utility Workers vs Consolidated Edison Company of New York) (2). We do not consider the inference sought to be drawn well founded. What the learned Judges of the Supreme Court were referring to as a fundamental right was not with reference to a fundamental right as recognized or guaranteed by the Constitution, but in the sense of a right of the unions which enacted law. recognized or respected, and as other decisions of the United states ' Supreme Court show, was subject to regulation by the legislature(3). We have, therefore, reached the conclusion that the right guaranteed. by sub cl.(c) of cl.(1) of article 19 does not carry with it a concomitant right (1) ; ,909. (2) ; , 741. Vide Weaver Constitutional Law and its Administration (1 946) p. 505, referring to Dorchy vs, Kansas ; : "Neither he common law nor the 14th Amendment confers the absolute right to strike. " 297 that the unions formed for protecting the interests of labour shall achieve the purpose for which they were brought into existence, such that any interference, to such achievement by the law of the land would be unconstitutional unless the same could be justified as in the interests of public order or morality. In our opinion, the right guaranteed under sub cl. (c) of el. (1.) of article 19 extends to the formation of an association and insofar as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in cl. (4) of article 19 of the Constitution. In this view it is not necessary to consider the other steps in. the argument of learned Counsel all of which proceed upon the correctness of the step which we have just now disposed of. Nevertheless we consider it proper to deal with the submission that the impugned legislation (a) withdraws an essential part of the dispute between the parties from the jurisdiction of an impartial adjudicator and vests the same in the Reserve Bank of India which is a biased body ; and (b) that the adjudicator is left without proper materials to discharge his duties by withdrawing the, proper materials from his cognizance. A complaint that the impugned provision withdraws the dispute from the adjudication of an impartial arbitrator and leaves it to the decision of another body is an obvious overstatement of the position. The dispute between the parties in relation either to wages, bonus or other amenities or perquisites which involve financial obligations on the part of the employer remain even after the impugned provision was enacted, with the adjudicator and he alone determines the rights of the parties subject to the provisions of the Industrial law or other relevant legislation, and the relief which he could award to the employees remains 298 the same. The adjudicator alone determines ' the capacity of the industry to pay or to bear the enhanced cost. The only result of section 34 A is that in regard to two itmes, viz., secret reserves and the provision made by banks "for bad and doubtful debts and other necessary provisions", the reasonable quantum which would be available for being taken into account by the adjudicator would be estimated and determined by an expert body which is a governmental authority or practically a department of Government, viz., the Reserve Bank of India which is entrusted by law with duty of maintaining the credit structure of the country. From what we have 'stated earlier as the genesis of the legislation now impugned, it would be apparent that Government had to effect a reconciliation between two conflicting interests : one was the need to preserve and maintain the delicate fabric of the credit structure of the country by strengthening the real as well as the apparent credit worthiness of banks operating in the country. It was really this principle which is vital to the economic life of the community that has been responsible for the changes that have been made from 1927 onwards as regards the form of balancesheet and of the Profit & Loss accounts of banking companies as distinguished from other trading and industrial organizations. There was urgent need to protect from disclosure certain of the items of appropriation by banks in order to preserve them as credit institutions. On the other hand, there was the need an equally urgent need for enabling the workers in these institutions not to be denied a proper wage and other emoluments and proper conditions of service. the question was how far information which in the interests of national economy the banks were entitled to withhold from their shareholders and the general public, was to be made available for determining the capacity of the banks to pay their employees. It was in these Circumstances that the impugned legislation was 299 enacted which while preserving industrial adjudication in respect of disputes between the banks and their employees, entrusted the duty of determining the surplus reserve which could be taken into account as part of the assets for determining capacity to pay, to the Reserve Bank. Thus understood there does not appear to be anything unreasonable in the solution which the I impugned legislation has effected. We do not also consider that there is any substance in the complaint that the Reserve Bank of India is a biased body. If it was not the Reserve Bank of India, the only other authority that could be entrusted with the function would be the Finance Ministry of the Government of India and that department would necessarily be guided by the Reserve Bank having regard to the intimate knowledge which the Reserve Bank has of the banking structure of the country as a whole and of the affairs of each bank in particular. In the circumstance therefore it matters little from the point of view of the. present argument whether it is the Finance Ministry that was vested with the power to determine the matters set up in section 34 A or whether it is the Reserve Bank that does so, as under the impugned enactment. Learned Counsel made a further submission that the impugned enactment was a piece of colourable legislation and that the purported objective of securing secrecy from disclosure was really a device adopted for depressing wages and for denying to workmen employed in banks their legitimate rights. It was urged that the preamble to the amending Act sought to make out that the real purpose behind the legislation was the ensuring of secrecy from disclosure of the reserves held by the banks and of the bad and doubtful debts which arose in the course of business and the provision made for these losses and proceeded on the ratio that such disclosure would hurt the credit of the 300 banks which would have repercussions not merely on the individual bank but also on the banking structure of the country as a whole. This, it was submitted, was not the real but only the colourable object and purpose underlying the legislation. In this connection it was stressed that section 21 of the and r. 30 of the Industrial Disputes Rules had made ample provision for securing secrecy to the affairs of every concern in regard to which disclosure would not be in public interest. We are satisfied that this submission has no basis in fact and besides even if made out does not affect the validity of the legislation. As we have pointed out already, the impugned legislation merely carries out to its logical conclusion the effect of the changes in the form of the balance sheet and Profit and Loss accounts of Banks which starting in 1927 culminated in the notification dated December 22, 1951 under section 29 (4) of the Banking Companies Act amending the Forms appended to that Act. If the construction of the "right to form unions" under sub cl. (c) of cl.(1) of article 19 put forward by learned Counsel for impugning the validity of the enactment is negatived, then subject to the point about article 14 which we shall examine presently, legislative competence being conceded there could be no legal objection to its validity. Objections based on colourable legislation have relevance only in situations when the power of the legislature is restricted to particular topics, and an attempt is made to escape legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the real subject matter. No such problem exists in the present case and it is common ground that once the legislation passes the test of the fundamental rights,guaranteed by Part III, legislative competence not being in dispute, its. validity is beyond cavil. The question whether the secrecy assured by section 21 of is or is not sufficient to protect the interests of I the Banks, is a matter of legislative policy and is for Parliament 301 alone and even the fact that the Court could be persuaded that the existing law is sufficient would be no ground for invalidating the 'impugned legislation. When the end which the legislature reeks to achieve, viz ., secrecy is competent, the enquiry as to ultra vires stops. Whether less than what was done might have been enough, whether more drastic provision was made than occasion demanded, whether the same purposes could have been achieved by provisions differently framed or by other means, these are wholly irrelevant considerations for testing the validity of the law. They do not touch or concern the ambit of the power but only the manner of its exercise, and once the provisions of of the Constitution are out of the way, the validity of the legislation is not open to challenge. The next point urged was that the impugned provision was in violation of article 14; though the several learned Counsel who. appeared in support of the case of the workers were not all agreed as to the precise grounds upon which it could be ' held that the impugned provision violated article 14. It was first submitted that the provision was rendered invalid because it vested an arbitrary power in. banks which were parties to a dispute under the , to claim or not to claim the privilege of not producing the documents and that no criterion had been indicated as to the Circumstances in which Banks could decide to make the claim. But this, however, is answered by the provision itself which runs "When the banking company, claims that such document, statement of information is of a confidential nature and: that the production or inspection of such document. would involve disclosure of '. information relating to the matters set not the. matters set out in sub clauses (a) and (b)" 302 It was also submitted that sub cl. (b) of sub section (1) was vague, in that a reference was made to "provision made for bad and doubtful debts and other usual or necessary provisions". We do not see any substance in this point either, because these words are taken from the form under the Banking Companies Act and their meaning is clear in banking circles. In fact, in the application which the employee associations made before the adjudicator to direct the production of information and documents from the banks this phrase was used and it is apparent that even the Bank Employees ' Associations understood it as having a definite connotation. It was next submitted on behalf of some of the interveners that section 34A(1) and (2) violated article 14 in that the classification contained in it was impermissible as not being based on rational grounds. It was said (1) that the protection against a disclosure applied only to adjudications under the industrial Disputes Act and not to other adjudications ; (2) that it applied only to certain banking companies and not to all banking companies; and (3) that by reason of section 34A (2) the provisions of the impugned enactment were applied in a discriminatory manner to all banks other than the Reserve Bank. The first two points cover the same ground and arise out of the fact that the. impugned provision by its 3rd sub section defines a "banking company" referred to in it and to which its provisions apply, as meaning a ""Banking Company" under the . The defines a "Banking Company" in section 2(b) as follows: "Banking Company means a banking company as defined in section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one State and includes the State Bank of India and the Reserve Bank of India. " 303 It would thus be seen that though the Banking Companies Act applied to every banking company it is only those banks whose operations extended beyond one State were brought within the scope, of the definitions of a "banking company" under the . The result of that was that Banking Companies not having branches in more than one State would be an industry so as to be within the but not , 'a banking company" within its definition. In the circumstances learned Counsel is right in his submission that such banking companies as are not within the definition of "a banking company" under the would not be entitled to claim the protection from disclosure conferred on "banking companies" by the impugned provision. This, however, is no ground for holding the legislation invalid. In the first place, the complaint of discrimination is not by the banks who are not on the terms of section 34A entitled to the protection from disclosure of their reserves etc. Secondly it is common ground that 95 % of the banking business in this country is in the hands of Banks which are, within the definition of "banking companies" under section 2(b) (b) of the . Besides, these banks, employ over 80,O0O out of the 90,000 bank employees. In the circumstances and seeing that the injury to the credit structure will only be by the disclosure of the reserves etc., of the banks of this class, there is sufficient rational connection and basis for classification to justify the differentiation. The fact that the legislation does not cover every banking company is therefore no ground for holding the provision to be discriminatory within article 14. The last point about the exclusion, of the Reserve Bank of India from the operation of section 34A (2) has also no substance. in the very nature of things and on the scheme of the provision the Reserve Bank could not but be excluded from sub section (3) of the impugned provision. In determining 304 what reserves could properly be taken into account, the Reserve Bank would be discharging not any quasi judicial but only an administrative function, determining this matter with reference to uniform business principles and it therefore appears to us that. there is no impropriety in its findings being final even in regard to itself. A submission on similar lines about bias was also made in relation to the impact of the impugned provision insofar as it related to the industrial dispute between the State Bank of India and its employees. It was pointed out to us that the Reserve Bank of India owned practically the entirety of the sharecapital of the State Bank of India, with the result that the Reserve Bank was pecuniarily and vitally interested in supporting the State Bank as against the latter 's employees in any industrial dispute and that the element of bias which the situation involved would invalidate the impugned provision. We consider this argument without force. If, as we have held, the impugned provision is valid and does not violate any of the freedoms guaranteed by of the Constitution in regard to the employees of the Reserve Bank, the challenge to the impugned provision cannot obviously be successful in the case of the employees of the State Bank. As we have stated earlier, though the arguments before us ranged on a very wide ground, we have not thought it necessary to deal with all of them because in view of our conclusions on the crucial points in the case the others which were subject of debate before us did not arise for consideration. The appeal fails and is dismissed with costs. The petitions also fail and are dismissed with costs. (one hearing fee) Appeal and Petitions dismissed. [/INST]In execution of a decree obtained on a mortgage a vil lage owned by the mortgagor which was included in the mort gage was sold by the court on the 6th July 1935 and it was purhased by the mortgagee. An application by the mortgagor under 0 .XXI,.r. 90, C.P.C., for setting aside the sale for irregulrities was dismissed, the sale was confirmed and full satisifiction of the decree was recorded, on the 6th March 1943. A few days afterwards the mortgagor and his adopted son made an application under section 19 of the Madras Agricul turists ' Relief Act, 1938, praying for relief under the Act, and, as this application also was dismissed they preferred two appeals, one from the order dismissing this application and the other against the order of 6th March 1943 refusing to set aside the sale. The High Court of Madras held that, as the mortgagor 's village had been sold he did not come within the purview of el. (i)) of the proviso to 6. 3 of the Madras Agriculturists ' Relief Act and so he was entitled to claim relief under the Act and the debt stood discharged under the provision of the Act, but the Bale was not liable to be set aside; and in accordance with this judgment the decree holder was directed to pay the amount for which the property had been sold with interest thereon: ' Held per FAZL ALl and MUKHERJEA JJ. (i)that the conclu sions arrived at by the High Court were self contradictory because if the sale was effective on the date it was held or confirmed, the decree was also satisfied on that date and the judgementdebtors were no longer entitled to invoke the provisions of the Act; (ii) that the High Court was not justified in law in deciding the appeal on the footing that the judgment debtors ceased to be owners of the village from the date of sale and on that account were not hit by cl. (D) of the proviso to section 3 of the Act inasmuch as when an appeal is preferred from an order rejecting an application under O.XXI, r. 90, C.P.C., to set aside an execution sale, the sale does not become absolute until the matter is finally decided by the appellate court. 807 Per CHANDRASEKHARA AIYAR J. After the execution sale in 1935 the only interest which the judgment debtors had in the village was to have the sale set aside under the relevant provisions of the Civil Procedure Code and this interest, not being an interest contemplated by section 3 (ii) (a) & (b) and section 19 (1) of the Act, they were not "agriculturists" and were not entitled to any relief under the Act. Held also, per FAlL ALl and MUKHERJEA JJ. A person does not cease to be a land holder of an estate within the mean ing of cl. (D) to the proviso to section 3 of the Act merely because the estate is placed in the hands of a receiver. Bhawani Kunwar vs Mathura Prasad Singh (I.L.R. 40 Cal. 89) and Chandramani Shaha vs Anarjan Bibi (I.L.R. 61 Cal. 945) referred Judgment of the Madras High Court reversed. </s>
<s>[INST] Summarize the judgementivil Appeal No. 3693 of 1989. 734 From the Judgment and Order dated 23.2. 1989 of Delhi High Court in R.S.A. No. 31 of 1989. K.S. Bindra, R.K. Maheshwari and G.S. Gujananip for the Appellant. Prem Sunder Jha for the Respondent. The Judgment of the Court was delivered by SHARMA, J. This appeal by special leave arises out of a suit filed by the respondent company against the appellant, Municipal Corporation of Delhi, for a mandatory injunction to restore the supply of electricity discontinued during the pendency of the suit. Initially the suit was filed for a prohibitory injunction from disconnecting the electric connection. The plaint was amended following stoppage of the supply of energy. According to the plaintiff 's case, the suit had to be filed as the Delhi Electricity Supply Undertaking was threatening disconnection without disclosing any reason. Subsequently, some officers of the Undertaking made an inspection of the meters and alleged theft of electricity after tampering with the seals affixed on the meters. A First Information Report was lodged with the police. Admittedly no notice was served by the Delhi Elec tricity Supply Undertaking on the plaintiff before severing the electric connection. The learned trial court, however, dismissed the suit and the plaintiff appealed. The First Additional District Judge, Delhi, who heard the appeal decreed the suit on the sole ground of nonservice of notice as required under condition No. 36 in regard to supply of electricity by the appellant. The Delhi High Court dismissed the appellant 's second appeal at the admission stage by a reasoned judgment. The learned counsel for the appellant has contended that in view of the conduct of the plaintiff in stealing electricity, the Court should in its discretion refuse to issue a direction for restoration of the electric supply. We are afraid, it is not possible to agree with the appellant for more reasons than one. The plaintiff is seriously deny ing the allegation of theft and it is not possible to assume the accusation as correct without a full fledged trial on this issue. The case of Jagarnath Singh vs B.S. Ramaswamy; , ; relied upon on behalf of 735 the appellant is clearly distinguishable inasmuch as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for discon nection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement. The learned counsel for the appellant urged that the Delhi Electric Supply Undertak ing will seriously suffer if this view is upheld. We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discon tinuing the supply. It has to be appreciated that the licen see Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim. In the result, the appeal is dismissed but, without costs. P.S.S. Appeal dismissed. [/INST]In a Writ Petition flied before this Court, the peti tioner assailed the order of his compulsory retirement from service made under rule 56(j)(i) of the Fundamental Rules. The petitioner contended that he was efficient, had clear and unblemished record of service and his character roll entries were excellent, and since no review has been made six months before he attained the age of 50 or completed thirty years of service nor he had been retired on the basis of review, he was entitled to continue upto the normal retirement age of 58. On behalf of the respondents, it was contended that the order of retirement was made in public interest after review and that the Committee had concluded after reviewing com plete record of service and considering the quality of work on the whole, that the petitioner was not fit to be retained in public interest. Dismissing the Writ Petition, this Court, HELD: 1.1 Compulsory retirement under rule 56(j)(i) is not a punishment as it does not take away any of the past benefits. Chopping off the dead wood is one of the important considerations for invoking rule 56(j)(i) of the Fundamental Rules. [786G] 1.2 An aggrieved civil servant can challenge an order of compulsory retirement on the ground (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds; or (iii) that it is an arbi trary decision. If the civil servant is able to establish that the order suffered from any of these infirmities, the Court has jurisdiction to quash the same. [786F G] Union of India vs Col. J.N. Sinha & Anr., [1971] 1 SCR 791, referred to. 784 In the instant case, on the basis of the service record, the Committee formed the requisite opinion that the peti tioner had ceased to be useful and, therefore, should be retired prematurely. The petitioner has not placed any satisfactory material to prove that the decision was based on collateral grounds. Once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary. The service record of more than five years shows that the higher officers under whom the petitioner had worked were different and different sets of reviewing offi cers had also made the entries. Therefore, the reports must be taken to have reflected an appropriate and objective assessment of the performance of the petitioner. [786H; 787A B] </s>
<s>[INST] Summarize the judgementAppeals Nos. 19 & 20 of 1963. Appeals from the judgment and decree dated July 31, 1959 of the Patna High Court in Appeals from Original Decree Nos. 30 and 40 of 1953 respectively. section T. Desai and R. C. Prasad for appellant. Sarjoo Prasad and D. Goburdhan, for the respondents Nos.1 to 4 [In C. A. No. 19 of 1963]. Sarjoo Prasad and K. K. Sinha, for respondents Nos. 5 7 and 9 [In C. A. No. 19 of 1963] and 1 3 and 5 [In C. A. No. 20 of 1963]. 2 The Judgment of the Court was delivered by Bachawat, J. One Ramyad Singh was a member of a joint family and has eight annas interest in the joint family properties. He was a Hindu governed by the Mitakshara school of Hindu law. He died issueless, leaving his widow, Mst. Bhagwano Kunwar. The date of his death is in dispute. After his death, Bhagwano Kunwar filed the present suit for partition of the joint family properties claiming eight annas share therein. She contended that Ramyad Singh died in 1939 after the passing of the Hindu Women 's Rights to Property Act, 1937, and she was entitled to maintain the suit for partition. The defendants contended that Ramyad Singh died ill 1936 before the passing of the Act and she was entitled to maintenance only. The trial Court accepted the plaintiff 's contention aid decreed the suit. The defendants filed two separate appeals to the High Court. On December 15, 1958, Bhagwano Kunwar died. The High Court passed orders substituting one Ram Gulam Singh in her place. Later, the High Court recalled these orders, as it was conceded that Ram Gulam Singh was not her legal representative. By a deed dated March 14, 1958, Bhagwano Kunwar had sold lands measuring 1 bigha 5 kathas to the appellant. The High Court allowed the appellant 's application for substitution under 0.22 r. 10 of the Code of Civil Procedure and proceeded to hear the appeals. The High Court accepted the defendants ' contention, reversed the decree passed by the Subordinate Judge, and dismissed the suit. The appellant has now filed these appeals under certificates granted by the High Court. The main point in controversy is, did Ramyad Singh die in 1936 or did he die in 1939? If he died in 1936, Bhagwano Kunwar was not entitled to maintain the suit for partition and the suit was liable to be dismissed. But if he died in 1939, she was entitled to eight annas share in the joint estate and was entitled to maintain the suit for partition under the Hindu Women 's Rights to Property Act, 1937 read with the Bihar Hindu Women 's Rights to Property ,(Extension to Agricultural Land) Act, 1942. Moreover, it is ,conceded by counsel for the respondents that in that event after 1956 she held her eight annas share in the joint estate as full owner by virtue of section 14 of the , and on the strength ,of the sale deed dated March 14, 1958 executed by Mst. Bhagwano Kunwar the appellant was entitled to continue the suit for partition .after her death. There is conflicting oral evidence with regard to the date of ,death of Ramyad Singh. The appellant relied strongly upon an admission made by the main contesting defendants, Janki Singh and Kailashpati Singh, in a plaint signed and verified by them and filed in Title Suit No. 3 of 1948. In that plaint, Janki Singh and Kailashpati Singh claimed partition of the joint family properties, implead 3 ing Bhagwano Kunwar as defendant No. 8 and other members of the joint family as defendants Nos. 1 to 7. In this plaint, Janki Singh and Kailashpati Singh stated: "2. That the properties described in Schedule 1 to 2 in the plaint belong to the joint family. As the said Babu Ramyad Singh died in 1939 the defendant No. 8 also became entitled to life interest in the properties of the joint family. The defendant No. 8 surrendered her life estate to the plaintiffs and the defendants Nos. 1 to 7 and she gave up her possession of the joint family properties. The plaintiffs and the defendants Nos. 1 to 7 have been coming in joint possession of the properties under partition. That the defendant No. 8 is also made a defendant in this suit as she is entitled to maintenance," The plaint contained a clear admission that Ramyad Singh died in 1939. The High Court ruled that Bhagwano Kunwar could not rely on this admission. The High Court said that she could not rely upon the statement that Ramyad Singh died in 1939, as she was not prepared to admit the correctness of the statement that she had surrendered her estate and was entitled to maintenance only. We are unable to accept this line of reasoning. It is true that Bhagwano Kunwar relied only upon the statement that Ramyad Singh died in 1939 and was not prepared to accept the statement that she had surrendered her share to the other members and was entitled to maintenance only. But she tendered the entire plaint, and she did not object to the admissibility or proof of any of the statements made therein. All the statements in the plaint are,. therefore, admissible as evidence. The Court is, however, not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest. In the presented suit, it is common case that Bhagwano Kunwar did not surrender her share in the estate. We must, therefore, reject the statement with regard to the alleged surrender and the consequential allegation that she was entitled to maintenance only. The statement in the plaint as to the date of death of Ramyad Singh must be read as an admission in favour of Bhagwano Kunwar. The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. The observations of Beaumont, C.J. in Ramabai Shriniwas vs Bombay Government(l) lend some countenance to this view. But those observations were commented upon and explained by the Bombay High Court in D. section Mohite vs section I Mohite(2). An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of section 17 of the Indian (1) A.I.R. 196O Bom. (2) A.I.R. 1941 Bom. 4 Evidence Act, 1872, and may be proved against him in other litigations. The High Court also relied on the English law of evidence. In Phipson on Evidence, 10th Edn, article 741, the English law is thus summarised: "Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself." Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski vs Cairns(1), the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the makes no dis tinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. The explanation of Janki Singh and Kailashpati Singh that the plaint was drafted by their lawyer Ramanand Singh at the instance of the panchas including one Ramanand and they signed and verified the plaint without understanding its contents cannot be accepted. There is positive evidence on the record that the plaint was drafted at the instance of Janki Singh and was filed under his instructions. The plaint was signed not only by Janki Singh and Kailashpati Singh but also by their lawyer, Ramanand Singh. Neither Ramanand Singh nor the panch Ramanand was called as a witness. Even in this litigation, Ramanand Singh was acting as a lawyer on behalf of some of the defendants. Kailashpati Singh is a Homeopathic medical practitioner and knows English. The plaint was read over to Janki Singh. Both Janki Singh and Kailashpati Singh signed the plaint after understanding its contents and verified all the statements made in it as true to their knowledge. They then well knew that Ramyad Singh had died in 1939 after the passing of the Hindu Women 's Rights to Property Act. It is not shown that the admission in the plaint as to the date of death of Ramyad Singh is not true or that it was made under some error or misapprehension. This admission must be regarded as a strong (1) 5 piece of evidence in this suit with regard to the date of death of Ramyad Singh. Bhagwano Kunwar and her witnesses, Ram Gulam Singh, Ram Saroop Singh and Sheo Saroop Singh gave evidence in Sep tember, 1952. They all swore that Ramyad Singh died 13 years ago. In agreement with the trial Judge, we accept their testimony. Learned counsel commented on the testimony of Sheo Saroop Singh, who had said that the last earthquake took place 15 to 16 years ago and Ramyad Singh died 2 years 8 months thereafter. The last earthquake took place on January 15, 1934, and counsel, therefore, argued that Ramyad Singh could not have died in 1939. Clearly, there is some confusion in the evidence of Sheo Saroop Singh. He gave evidence in September, 1952, and his statement that the earthquake took place 15 to 16 years ago could not be correct and his further statement that Ramyad Singh died 2 years 8 months after the earthquake was not accurate. He swore positively that Ramyad Singh died 13 years ago. Bhagwano Kunwar said that there were receipts to show that Ramyad Singh died 13 years ago. On her behalf rent receipts for 1339, 1341, 1342, 1343, 1345, 1348, 1356 and 1359 faslis were tendered. The rent receipts are in respect of certain lands held by her as a tenant. The first four rent receipts show that Lip to 1343 fasli corresponding to 1936 the rent used to be paid by her through Ramyad Singh. Payment of the rent for 1345 fasli was made in 1346 fasli corresponding to 1939 through Janki. The rent for the subsequent years was paid through Janki and other persons. The High Court thought that the rent receipts showed that Ramyad Singh died in 1936 and because of his death, rent was subsequently paid through other persons. But the rent receipt for 1344 fasli is not forthcoming, and it is not known who paid the rent for 1344 fasli (1937). Moreover, assuming that Ramyad Singh did not pay rent in 1937 and 1938, it does not follow that he must have died in 1936. Kailashpati Singh, Janki Singh and other witnesses called on behalf of the defendants said that Ramyad Singh had died 16 years ago. In agreement with the trial Court, we do not accept their testimony. Janki Singh and Kailashpati Singh gave false explanations with regard to the admission made by them in the plaint in the previous suit. Moreover, for the purpose of defeating the title of Bhagwano Kumar they set up a compromise decree passed in that suit. The trial Court found that the compromise decree was obtained by them by practising fraud on Mst. Bhagwano Kunwar, and this finding is no longer challenged. We, therefore, hold and find that Ramyad Singh died in 1939. It follows that Bhagwano Kunwar was entitled to eight annas share in the joint family estate, and was entitled to maintain the Suit. The trial Court, therefore, rightly decreed the suit. 6 But in view of the death of Bhagwano Kunwar during the pendency of the appeal in the High Court, the decree passed by the trial Court must be modified. The appellant purchased from Bhagwano Kunwar 1 bigha 5 kathas of land under the deed dated March 14, 1958, and he can claim only the rights of an alienee of a specific property from a co owner on a general partition of the undivided properties. All the parties appearing before us conceded that on such a partition the appellant is entitled to allotment and separate possession of the lands purchased by him under the deed dated March 14, 1958. The deed is not printed in the Paper Book. It will be the duty of the trial Court now to ascertain full particulars of the aforesaid lands. The appeals are allowed with costs in this Court and in the High Court. The decree passed by the High Court is set aside. There will be a decree in favour of the appellant allotting to him the lands purchased by him under the deed dated March 14, 1958 and awarding to him separate possession thereof. The trial Court will draw up a suitable decree after ascertaining the particulars of the aforesaid lands. Y. P. Appeals allowed. [/INST]The first appellant advanced monies to D against mortgages of her property. D was adjudicated an insolvent in 1949 and her properties got vested in the Official Assignee of Madras. The Official Assignee brought the properties to sale which were ultimately purchased by the first respondent. The Trial Court decreed the appellants ' suit for enforcement of the mortgages against the property and awarded interest at the rate of 15 per cent compoundable with yearly rests. In appeal the Division Bench of the High Court found that in the circumstances of the case a rate of 10, per cent compound interest with yearly rests was just. With certificate the appellants came to this Court. Section 3 of the Usurious Loans (Madras Amendment) Act, 1937 fell for consideration. HELD : The net result of the various clauses of section 3 to be that the court must go back to the date of the original transaction and form an opinion as to the rate of interest which would be reasonable after considering (a) the value of the security offered; (b) the financial condition of the debtors including the result of any earlier transaction; (c) the known and probable risks in getting repayment; (d) whether compound interest was provided for and if so the frequency of the Period of calculation of interest for being added to the principal amount of the loan. [725 E G] In the circumstances of the case the Division Bench rightly held that 10 per cent compound interest with yearly rests would meet the justice of the case. The security was not inadequate and the threat of a suit by the brother of the mortgagor was not serious. [726 A B] Venkatarao vs Venkatratnam, A.I.R. 1952 Madras 872 and Sri Balasaraswati vs A. Parameswara Aiyar, A.I.R. 1957 Mad. 122 referred to. There was also no reason to interfere with the scaling down of the rate of interest to 6 per cent from the date of filing of the suit. Although the reasons were not indicated it was fairly clear that the High Court was, using its discretion as regards interest pendente lite. [726 E] </s>
<s>[INST] Summarize the judgementPetitions Nos. 512, 513, 574 & 575, 578 & 579, 581 & 582, 583 & 584, 587 & 588, 605 & 606, 609 & 610 and 1466 and 1467 of 1969. Applications by defendant No. 1 for rejection of plaints and for stay of the hearing of the suits. Original suits Nos. 3 of 1967, 1 and 3 to 9 of 1968. Petitions under article 131 of the Constitution of India. Niren De, Attorney General, V.A. Seyid Muhammad and B.D. Sharma, for respondent No. 1 (in all the suits). D.N. Gupta, for defendant No. 2 fin suits 968 ).Nos. 3 to 8 of D.N. Mukherjee, for defendant No. 2 (in suits Nos. 3 of 1967, 1 and 9 of 1968). D.P. Singh, for the plaintiff (in suits Nos. 3 of 1967, 1, 3, 5 and 6 of 1968). D. Goburdhun, for the plaintiff (in suits Nos. 4 and 7 of 1968). U.P. Singh, for the plaintiff (in suit No. 8 of 1968). R.C. Prasad, for the plaintiff (in suit No. 9 of 1968). The Judgment of the Court was delivered by Mitter, J. This group of applications can be divided into two parts. The object of one group is to get the plaints in nine suits filed in this Court rejected while that of the other group is to stay the hearing of the suits. The suits are all of the same pattern in each of which the State of Bihar figures as the plaintiff. The Union of India is the first defendant in all of them while the second defendant in six is Hindustan Steel Ltd. and in three others the Indian Iron and Steel Company Ltd. The cause of action in all the suits is of the same nature. Briefly stated the plaintiffs case in all the suits is that "due to the negligence or deliberate action of the servants of both defendants there was a short delivery of iron and steel material ordered by the plaintiff to various sites in the State of Bihar in connection with the 524 construction work of the Gandak Project". As the goods were in all cases booked by rail for despatch to the project site, both defendants are sought to be made liable for short delivery, the first defendant as the owner of the railways and the second defendant as the consignor of the goods under contract with the State of Bihar for supply of the material. In each case there is a prayer for a decree for a specific sum of money to be passed either against the first defendant "or alternatively against the second defendant". Normally all suits of this kind are instituted all over India in different courts beginning from the courts of the lowest jurisdiction to the High Courts exercising original jurisdiction. The only distinguishing feature of this series of suits from others of everyday occurrence in different courts is that a State is the plaintiff in each case. In all suits of a similar nature which are filed in courts other than this Court, a notice under section 80 of the Code of Civil Procedure is an essential prerequisite. No such notice has been served in any of these cases. The applications were set down for trial of three issues sought to be raised by way of preliminary issues. They are as follows : 1. Whether the alleged cause or causes of action in this suit are within the scope of article 131 of the Constitution ? 2. Whether this suit is within the scope of article 131 of the Constitution in view of a non State, viz, defendant No. 2, having been made a party to the suit ? 3. Whether the suit is barred by the provisions of section 80 C.P.C. for want of notice to defendant No. 1 ? The question before this Court is, whether the dispute in these cases is within the purview of that article (quoted in the foot note. It must be noted that the article confers jurisdiction on this Court to the exclusion of all other courts in any dispute between the parties mentioned therein. There is however an over riding provision that such jurisdiction is subject to the provisions of the Constitution and our attention was drawn to a few of these provisions where the disputes specified are to be adjudicated upon in entirely different *article 131. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, 525 manner. The most important feature of article 131 is that it makes no mention of any party other than the Government of India or any one or more of the States who can be arrayed as a disputant. The other distinguishing feature is that the Court is not required to adjudicate upon the disputes in exactly the same way as ordinary courts of law are normally called upon to do for upholding the rights of the parties and enforcement of its orders and decisions. The words in the article "if and in sO far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends" are words of limitation on the exercise of that jurisdiction. These words indicate that the disputes should be in respect of legal rights and not disputes of a political character. Moreover this Court is only concerned to give its decision on questions of law or of fact on which the existence or extent of a legal right claimed depends. Once the Court comes to its conclusion on the cases presented by any disputants and gives its adjudication on the facts or the points of law raised, the function of this Court under article 131 is over. article 131 does not prescribe that a suit must be filed in the Supreme Court for the complete adjudication of the dispute envisaged therein or the passing of a decree capable of execution in the ordinary way as decrees of other courts are. It is open to an aggrieved party to present a petition to this Court containing a full statement of the relevant facts and praying for the declaration of its ' rights as against the other disputants. Once that is done, the function of this Court under article 131 is at an end. The framers of the Constitution do not appear to have contemplated the contingency of a party to an adjudication by this Court under article 31 not complying with the declaration made. Our law is not without instances where a court may be called upon to make an adjudication of the rights of the parties to an agreement or an award simpliciter on the basis of such rights without passing a decree. A case in point is section 33 of the Indian Arbitration Act. Further, all adjudications by a court of law even under a decree in a suit need not necessarily be capable of enforcement by way of execution. Section 42 of the now replaced by section 34 of the new Act enables a person entitled to any legal character or to any right as to any property to institute a suit against any person denying or interested to deny his title to such character or right without asking for any further relief subject to the limitations prescribed by the section. We If and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which having been entered into or execucated before the commencement of the construction, continues in operation after such commencement, or which provides that the said jurisdication shall not extend to such a dispute. 526 need not however lay much stress on this aspect of the case as we are only concerned to find out whether the suits can be entertained by this Court. Clauses (a), (b) and (c) of the article specify the parties who can appear as disputants before this Court. Under cl. (a) it is the Government of India and one or more States under cl. (b) it is the Government of India and one or more States on one side and one or more other States on the other, while under cl. (c) the parties can be two or more States without the Government of India being involved in the dispute. The specification of the parties is not of an inclusive kind. The express words of cls. (a), (b) and (c) exclude the idea of a private citizen, a firm or a corporation figuring as a disputant either alone or even along with a State or with the Government of India in the category of a party to the dispute. There is no scope for suggesting that a private citizen, a firm or a corporation can be arrayed as a party by itself on one side and one or more States including the Government of India on the other. Nor is there anything in the article which suggests a claim being made by or preferred against a private party jointly or in the alternative with a State or the Government of India. The framers of the Constitution appear not to have contemplated the case of a dispute in which a private citizen a firm or a corporation is in any way involved as a fit subject for adjudication by this Court under its exclusive original jurisdiction conferred by article 131. Like many of the provisions of our Constitution this article had a fore runner in the Government of India Act, 1935. Section 204 of that Act provided for conferment of original jurisdiction on the Federal Court of India. That section ran as follows : "(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the Federal States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to (a) a dispute to which a State is a party, unless the dispute (i) concerns the interpretation of this Act or of an Order in Council made thereunder, or the extent of the 527 legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or (ii) arises under an agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to make laws for that State; or (iii) arises under an agreement made after the establishment of the Federation, with the approval of His Majesty 's Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State and the Federation or a Province, being an agreement which expressly provides that the said jurisdiction shall extend to such a dispute; (b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend 'to such a dispute. (2) The Federal Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment. " Clause (a) of the proviso. to the section defined the categories of disputes which might be raised before the Federal Court while clause (b) permitted the parties to provide for the exclusion of such jurisdiction in the agreement in respect whereof the dispute arose. It will be noted that the scope of the dispute under subcl. (i) of cl. (a) was limited to the interpretation of the Government of India Act or Order in Council or to the extent of legislative or executive authority vested in the Federation while under sub cl. (ii) the dispute had to relate to the administration in a State of a law of the Federal Legislature or otherwise concerned with some matter relating to the legislative competency of the said legislature. Under sub cl. (iii) the dispute could only be one under an agreement made after the establishment of the Federation between the State and the Federation or a Province subject to the condition therein specified. A dispute of the nature which is raised in this scries of a case was outside the ken of section 204 of the Government of India Act. It may not be out of place to trace the origin of section 204. The proceedings of the Joint Committee on Indian Constitutional Re 528 form, Session 1933 34, Vol. 1, Part II, paragraph 309 read as follows: "A Federal Court is an essential element in a Federal Constitution. It is at once the interpreter and guardian of the Constitution and a tribunal for the determination of disputes between the constituent units of the Federation. The establishment of a Federal Court is part of the White Paper scheme, and we approve generally the proposals with regard to it. We have, however, certain comments to make upon them, which we set out below. " The report of the Joint Committee on Indian Constitutional Reform, Session 1933 34, Vol. 1, Part 1 contained two paragraphs bearing on this matter. Paragraph 322 was a reproduction of paragraph 309 quoted above. Paragraph 324 ran as follows: "324. It is proposed that the Federal Court shall have an original jurisdiction in (i) any matter involving the interpretation of the Constitution Act or the determination of any rights or obligations arising thereunder, where the parties to the dispute are (a) the Federation and either a Province or a State, or (b) two Provinces or two States, or a Province and a State; (ii) any matter involving the interpretation of, or arising under, any agreement entered into after the commencement of the Constitution Act between the Federation and a Federal Unit or between Federal Units, unless the agreement otherwise provides. This jurisdiction is to be an exclusive one, and in our opinion rightly so, since it would be altogether inappropriate if proceedings could be taken by one Unit of the Federation against another in the Courts of either of them. For that reason we think that, where the parties are Units of the Federation or the Federation itself, the jurisdiction ought to include not only the interpretation of the Constitution Act, but also the interpretation of Federal laws, by which we meant any laws enacted by the Federal Legislature. " It is clear from the above that the framers of the Government of India Act, 1935 thought that the Federal Court should 529 be the tribunal for the determination of disputes between the constituent units of the Federation and it sought to lay down the exact nature of the dispute which that Court could be called upon to examine and decide. The Constitutional Proposals of the Sapru Committee show that they had the said report 'and the said proceedings of the Committee in their mind when they advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction both on the original side and the appellate side but maintaining at the same time that it should "act as an interpreter and guardian of the Constitution, and as a tribunal for the determination of disputes between the constituent units of the Federation. " It is also to be noted that under section 204 of the Government of India Act, 1935 the Federal Court 's jurisdiction was limited to the pronouncement of a declaratory judgment. article 109 of the Draft Constitution of India prepared by the Constituent Assembly was in the same terms as article 131 of the Constitution as it came into force in 1950. The proviso to the original article was substituted by the new proviso in the year 1956. as a result of the Seventh Amendment by reason of the abolition of the Part B States and the changes necessitated thereby. Reference was made at the Bar in this connection to the Debates in the Constituent Assembly, Vol. IV, 13th July 1947 to 21st July, 1947. They however do not throw any additional light. So far as the proceedings of the Joint Committee on Indian Constitutional Reform and the report of the Committee on the same are concerned, they make it clear that the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kinds specified between the Federation and the Provinces as the constituent units of the Federation, should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit. Although article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as section 204 of the Government of India Act, and we do not find it necessary to do so, this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up. However, there can 530 be no doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly or jointly with another unit or the Government of India. There is no decision either of the Federal Court of India or of this Court which throws much light on the question before us. Reference was made at the Bar to the case of The United Provinces vs The Governor General in Council(1) where the United Provinces filed a suit against the Governor General in Council for a declaration that certain provisions of the , were ultra vires the then Indian Legislature. A claim was also made that all fines imposed and realised by criminal courts for offences committed within the cantonment areas in the United Provinces ought to be credited to the provincial revenues and that the plaintiffs were entitled to recover and adjust all such sums wrongly credited to Cantonment Funds since 1924. The Governor General in Council contended inter alia that the dispute was not one which was justifiable before the Federal Court. On the question of jurisdiction. Gwyer, C.J. was not inclined to think "that the plaintiffs would in any event have been entitled to the declarations for which they originally asked, in proceedings against the Governor General in Council". According to the learned Chief Justice "their proper course would have been to take proceedings against a name ' Contouring Board, though . such proceedings could not have been brought to this Court. " He was of the view that it was competent for the court to entertain a suit for a declaration "that section 106 of the Act of 1924 was ultra vires," and said that as the dispute between the parties depended upon the validity of the assertion of the Province to have the fines under discussion credited to provincial revenues and not to the Cantonment funds the dispute involved a question of the existence of a legal right. According to him the question might have been raised in proceedings to which a Cantonment Board was a party but "it was convenient to all concerned that it should be disposed of in the proceedings before the court. " The only other Indian case cited at the Bar in this connection was that of the State of Seraikella and others vs Union of India and another(2) where Mahajan, J. expressed the view that section 80 of the Code of Civil Procedure would not affect suits instituted in the Federal Court under section 204 of the Government of India Act. (1) (2) ; 531 Our attention was drawn to some provisions of the American Constitution and of the Constitution Act of Australia and several decisions bearing on the interpretation of provision which are somewhat similar to article 131. But as the similarity is only limited, we do not propose to examine either the provisions referred to or the decisions to which our attention was drawn. In interpreting our Constitution we must not be guided by decisions which do not bear upon provisions identical with those in our Constitution . The Constitution makes special provisions for settlement of certain disputes in a manner different from that laid down in article 131. For instance, article 143 gives an over riding power to the President of India to consult the Supreme Court when he is of the view that the question is of such a nature and of such public importance that it is expedient to do so. Under el. (1) of that Article the President is empowered to obtain the opinion of the Supreme Court upon any question of law or fact which has arisen or is. likely to arise and is of such a nature and of such public importance that the President considers it expedient to obtain such opinion. In such a case the Court after giving such hearing as it thinks fit has to report to the President its opinion thereon. Clause (2) of the article shows that this power of the President over rides the proviso to article 131. article 257 provides for control of the Union over the States in certain cases. Under clause (2) thereof the executive power of the Union also extends to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance. Under cl (4) where such directions are given and "costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given," the Government of India must pay to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State, Again, when there is a dispute or complaint with regard to the use, distribution or control of the waters of, or in, any interState river or river valley cl. (2) of article 262 gives Parliament the power by law to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of such dispute or complaint as is referred to in clause (1 ). Such a law ousts the jurisdiction of the court which would normally be attracted by 532 article 131. article 290 contains a provision somewhat similar to article 257(4) with regard to certain expenses and pensions and makes the same determinable by an arbitrator to be appointed by the Chief Justice of India. Apart from these special provisions a dispute which falls within the ambit of article 131 can only be determined in the forum mentioned therein, namely, the Supreme Court of India, provided there has not been impleaded in any said dispute any private party, be it a citizen or a firm or a corporation along with a State either jointly or in the alternative. A dispute in which such a private party is involved must be brought before a court, other than this Court, having jurisdiction over the matter. It was argued by counsel on behalf of the State of Bihar that so far as the Hindustan Steel Ltd., is concerned it is 'State ' and the suits in which the Government of India along with Hindustan Steel Ltd. have been impleaded are properly filed within article 131 of the Constitution triable by this Court in its original jurisdiction. Reference was made to the case of Rajasthan State Electricity Board vs Mohan Lal(1). There the question arose between certain persons who were permanent employees of the Government of the State of Rajasthan and later placed at the disposal of the State Electricity Board and one of the questions was whether the appellant Board could be held to be 'State ' as defined in article 12. This Court by a majority held that the Board was "other authority" within the meaning of article 12 and therefore was a 'State ' to which appropriate directions could be given under articles 226 and 227 of the Constitution. It will be noted that under article 12 all local or other authorities within the territory of India or under the control of the Government of India are 'States ' for purposes of Part III which defines and deals with the Fundamental Rights enshrined in the Constitution. The expression "the State" has the same meaning in Part IV of the Constitution under article 36. No reason was shown as to why the enlarged definition of 'State ' given in Parts III and IV of the Constitution would be attracted to article 131 of the Constitution and in our opinion a body like the Hindustan Steel Ltd. cannot be considered to be "a State" for the purpose of article 131 of the Constitution. In the result we hold that the suits do not lie in this Court under article 131 of the Constitution and issue No. 2 must be answered in the negative. It is not necessary to give any answer to issue No. 1 nor to issue No. 3. On the view we take the ; 533 plaints must be returned for the purpose of presentation to courts having jurisdiction over the disputes. Let the plaints be returned for presentation to the proper court after endorsing on them the date of presentation of the plaints in this Court and the date on which they were returned. We make no order as to costs of these applications. [/INST]The plaintiff as original owner of the suit properties sold the same to the 1st defendant who. was husband of the 2nd defendant. According to the plaintiff apart 'from the written sale deed there was an oral agreement between him and the 1st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called upon him to do so. The suit was filed for specific performance of the said oral agreement. The 1st defendant died even before he filed his written statement. Before his death he had gifted the suit properties to his wife, the 2nd defendant. In her 'written statement the 2nd defendant denied the agreement pleaded in the point but stated that just before his death her husband had agreed to sell t6 plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500 but due to his illness the sale could not be effected. She reiterated the said offer in her written statement but the plaintiff did not accept it and the suit proceeded on the basis of the agreement pleaded in the plaint. The trial court decreed the suit as prayed for. In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500. Both the parties appealed to this HELD. : (i) The burden of proving the oral agreement was on the plaintiff. The sale deed on the face of it evidenced an outright sale. The stipulation ha it that the purchaser would not mortgage or assign the properties to anyone else during the vendor 's lifetime went against the plaintiff 's case inasmuch as it only gave the vendor a right to preempt. ] 'here was no satisfactory explanation why such an important thing as the agreement to re convey was made orally and not reduced to writing. [923 G,924B] It appeared likely in the present case that neither side had come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be: established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. [925 D E] On the evidence adduced by him the plaintiff had failed to prove the agreement pleaded in the plaint. [925 F] (ii) The High Court was wrong in passing the decree in respect of plaint item No. 1 on the basis of the admission of the 2nd defendant in her written statement. The plaintiff did not at any stage accept the 922 agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement were two totally different agreements. The plaintiff did not plead at any stage that he was ready and willing to. perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. Before a decree for specific performance can be given the plaintiff has to. plead and satisfy the court about his willingness to perform his part of the contract. [925 G926 B] Pt. Prem Raj vs The D.L.F. Housing and Construction (P) Ltd. & Anr., ; , applied. Srinivas Ram Kumar vs Mahabir Prasad & Ors., ; , distinguished. (iii) Since the parties had not laid the true version before the court and the defendant had refiled from the offer made by her in her written statement it was a case in which it was appropriate to direct the parties to bear their own costs throughout. [926 H] </s>
<s>[INST] Summarize the judgement2 of 1960. Petition under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. A. V. Viswanatha Sastry and B. B. L. Iyengar, for the petitioner. G. section Pathak, R. Gopalakrishnan and T. M. Sen, for the respondents. C. K. Daphtary, Solicitor General of India and B.R.L. Iyengar, for the Intervener (D. R. Karigowda). April 28. The Judgment of the Court was delivered by SHAH, J. The petitioners pray for a writ quashing a scheme approved under section 68D(2) of the , by the Government of the State of 744 Mysore and for a writ restraining the respondents, i.e., the State of Mysore, the General Manager, the Mysore Government Road Transport Department and the Regional Transport Authority, Bangalore, from taking action pursuant to the scheme. The petitioners are operators of Stage carriages on certain routes in the sector popularly known as " Anekal area " in the Bangalore District. On January 13, 1959, the General Manager, Mysore Government Road Transport Department, who will hereinafter be referred to as the 2nd respondent, pub lished a scheme in exercise of the powers conferred by section 68C of the , for the exclusion of private operators on certain routes and reservation of those routes for the State transport undertaking in the Anekal area. The Chief Minister of the Mysore State gave the operators affected by the scheme an opportunity of making oral representations and on perusing the written objections and considering the oral representations, approved the scheme as framed by the 2nd respondent. On April 23, 1959, the scheme was published in the Mysore State Government gazette ' On June 23, 1959, renewal applications submitted by petitioners 1 to 3 for permits to ply Stage carriages on certain routes covered by the scheme were rejected by the Transport Authority and the 2nd respondent was given permanent permits operative as from June 24, 1959, for plying buses on those routes. In Writ Petition No. 463 of 1959 challenging the validity of the permanent permits granted to the 2nd respondent, the High Court of Mysore held that the issue of permits to the 2nd respondent before the expiry of six weeks from the date Of the application was illegal. To petitioners 1 to 3 and certain other operators renewal permits operative till March 31, 1961, were thereafter issued by the third respondent. The 2nd respondent applied for fresh permits in pursuance of the scheme approved on April 15, 1959, for plying Stage carriages on routes specified in the scheme and notices thereof returnable on January 5, 1960, were served upon the operators likely to be affected thereby. On January 4, 1960, the five petitioners 745 applied to this court under article 32 of the Constitution for quashing the scheme and for incidental reliefs. The petitioners claim that they have a fundamental right to carry on the business of plying stage carriages and the scheme framed by the 2nd respondent and approved by the State of Mysore unlawfully deprives them of their fundamental right to carry on the business of plying stage carriages in the Anekal area. The diverse grounds on which the writ is claimed by the petitioners need not be Bet out, because, at the hearing of the petition, counsel for the petitioners has restricted his argument to the following four heads: (1) that the scheme violates the equal protection clause of the Constitution, because only fourteen out of a total of thirty one routes on which stage carriages were plied for public transport in the Anekal area were covered by the scheme and that even from among the operators on the fourteen routes notified, two operators were left out, thereby making a flagrant discrimination between the operators even on those fourteen routes; (2) that by Chapter IVA of the , Parliament had merely attempted to regulate the procedure for entry by the States into the business of motor transport in the State, and in the absence of legislation expressly undertaken by the State of Mysore in that behalf, that State was incompetent to enter into the arena of motor transport business to the exclusion of private operators; (3)that the Chief Minister who heard the objections to the scheme was biased against the petitioners and that in any event, the objections raised by the operators were not considered judicially; and (4) that the Chief Minister did not give " genuine consideration " to the objections raised by the operators to the scheme in the light of the conditions prescribed by the Legislature. Re. 1: In column 1 of the scheme " part of Bangalore District, viz,, Bangalore North, Bangalore South, Anekal and Hosakote Taluks " is set out as the area in relation to which the scheme is approved; and in 746 column 3, " the routes (with their starting points, termini, intermediate stations and route length) in which the State transport undertaking will introduce its services to the exclusion of private operators " are those set out in statement 1 appended to the scheme. Statement 1 sets out the description of fourteen routes with their intermediate points, route length, number of buses to be operated and the maximum number of trips to be performed on each route. By column 4 " the number of existing stage carriages on each route with the number of trips and the names of their opera tors " are described " as in statement 2 appended ". Statement 2 sets out the names and places of business of fifty six operators together with the routes operated and the numbers of the stage carriages and trips made by those operators. In the Anekal area, there are thirty one routes, which are served by stage carriages operated by private operators, and by the approval of the scheme, only fourteen of those routes are covered by the scheme ' Section 68C, in so far as it is material, provides that a State transport undertaking, if it is of opinion that it is necessary in the public interest that road transport services in relation to any area or route or portion thereof should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise, it may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other particulars respecting thereto as may be prescribed. Section 68D(1) provides for inviting objections by persons affected by the scheme. Sub section 2 of section 68D authorises the State Government after considering the objections and giving an opportunity to the objectors to approve or modify the scheme; and by sub section 3, the scheme as approved or modified and published by the State Government in the official gazette shall " become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route. " Counsel for the petitioners contended that exercising powers under section 68C, the State transport undertaking may prepare a scheme in respect of an 747 area or a number of routes in that area, but not a scheme for an area which is to apply to some only and not to, all routes on which public transport vehicles in the area operate. In this case, it is unnecessary to decide whether it is open to a State transport undertaking under a scheme framed for a notified area to limit its application to some only of the routes, because on a true reading of the scheme, it is amply clear that the scheme was approved in relation to fourteen notified routes and not in relation to a notified area. ,, The approved scheme is in the form prescribed by the rules, and in the form prescribed, by column 1, the area in relation to which the scheme is approved is required to be set out. But a scheme under section 68C must be one in relation to an area or any route or portion thereof wherein the transport service is to be undertaken by the State transport under taking to the exclusion, either complete or partial, of other operators. Column 1 of the approved scheme undoubtedly describes the area in relation to which the scheme is approved, but by the designation of the area, in the scheme, an intention to exclude either wholly or partially the operators of stage carriages from that area is not evinced either expressly or by implication. By column 3, the scheme expressly directs that the State transport undertaking will introduce its service to the exclusion of private operators on the specified routes. The scheme must therefore be regarded as one for the fourteen notified routes and not in relation to the area described in column 1. Counsel for the petitioners submitted that an order passed on October 22, 1959, by the 3rd respondent the Regional Transport Authority rejecting applications for permits for one of the fourteen routes to an applicant, indicated that in the opinion of the third, respondent, the scheme related to a notified area and not to notified routes. The order states that. " an approved scheme for the exclusive operation in the notified area of Bangalore District " by the second respondent " has come into existence after the notification of the route Bangalore to Nallur, and the major, portion of the route applied for lie in the notified area and as such it was not desirable, to grant any permit 748 to operators to pass through notified area in the intraState route. " The third respondent may have in considering the application assumed that the scheme related to a notified area, but the true interpretation of the scheme cannot be adjudged in the light of that assumption. The other document relied upon is a statement of objections filed by the second respondent on October 24, 1959, resisting the application for stage carriage permits to a private operator on the route Siddalaghatta Bangalore via Nallur. In para. 4 of the statement, it was submitted that " the existing notification dated October 15, 1959, came under the notified area of the department" of the second respondent " and that would overlap certain services of the department". But because in making his defence, the second respondent has referred to the scheme as dealing with " the notified area", the scheme will not necessarily be hold to be one in relation to the notified area. The argument that among the operators on the fourteen routes, two have been selected for special treatment and on that account, the scheme is discriminatory, has, in our judgment, no substance. It is averred in para. 13 of the petition that two persons, Chikkaveerappa operating on route Chikkathirupathi to Bangalore via Surjapur, Domsandra and Agara and Krishna Rao operating on route Bangalore to Chik kathirupathi via Agara and Surjapur are not amongst those who are excluded from operating their vehicles on the notified routes. In the affidavit filed by the State and the second respondent, it is submitted that the plea of the petitioners that the two persons operating stage carriages on specified routes were not amongst those to be excluded is incorrect, and that those two persons had been notified by the Secretary of the third respondent that they were " likely to be affected on giving effect to the approved scheme. " Undoubtedly, route item No. 2 in statement 1 to the scheme is " Bangalore to Surjapur or any portion thereof " and the route operates via Agara and Domsandra, but the record does not disclose that the two named persons are, in plying their stage carriages, entitled to operate on the route specified with right to stop at the named places for picking up passengers. 749 It is not clear on the averments made in the petition that the route on which the stage carriages of the two named persons ply are identical; even if the routes on which the stage carriages of these two operators ply overlap the notified route, in the absence of any evidence to show that they had the right to pick up passengers en route, the discrimination alleged cannot be deemed to have been made out. Re. 2: Article 298 of the Constitution as amended by the Constitution (Seventh Amendment) Act, 1956. recognises the executive power of the Union and of each State as extending to the carrying on of any trade or business. That power of the Union is subject in so, far as the trade or business is not one in respect of which Parliament may make laws, to legislation by the State and the power of each State, in so far as the trade or business is not one with respect to which the State Legislature may make laws, is subject to legislation by Parliament. Like ordinary citizens, the Union and the State Governments may carry on any trade or business subject to restrictions which may be imposed by the Legislatures competent to legislate in respect of the particular trade or business. Under Article 19(6) of the Constitution as amended by the First Amendment Act, 1951, nothing in sub cl. (g) of cl. (1) of article 19 is to affect the operation of any existing law in so far as it related to, or prevent the State from making any law relating to the carrying on by the State or by a Corporation owned or controlled by the State of any industry or business, whether to the exclusion, complete or partial, of citizens or otherwise. The State may therefore carry on any trade or business, and legislation relating to the carrying on of trade or business by ,the State, is not liable to be called in question on the ground that it infringes the fundamental freedom of citizens under article 19(1)(g). The Motor Vehicles Act.1939, was enacted by the Central Legislative Assembly in exercise of its power under the Government of India Act, 1935, to legislate in respect of mechanically 'propelled vehicles. Chapter IVA containing sections 68A to 681 was incorporated into that Act by the Parliament by Act 100 of 1956 whereby special provisions 97 750 relating to the conduct of transport undertakings by the States or Corporations owned or controlled by the State were made. Section 68A defines the expression " State transport undertaking " as meaning among others an undertaking for providing transport service carried on by the Central Government or a State Government or any Road Transport Corporation established under Act 44 of 1950. By section 68B, the provisions of that chapter and the rules and orders made thereunder are to override Chapter IV and other laws in force. Section 68C authorises the State transport undertaking to prepare and publish a scheme of road transport services of a State transport undertaking. Section 68D deals with the lodging of objections to the scheme framed under the preceding section, the of those objections and the publication of the final scheme approved or modified by the State Government. Section 68F deals with the issue of permits to State transport undertakings in respect of a notified area or notified route and provides that the Regional Transport Authority shall issue such permits to the State transport undertaking notwithstanding anything contained in Chapter IV. It also enables the Regional Transport Authority, for giving effect to the approved scheme, to refuse to entertain any application for the renewal of any other permit, to cancel any existing permit, to modify the terms of any existing permit so as to render the permit ineffective beyond a specified date, to reduce the number of vehicles authorised to be used under the permit and to curtail the area or route covered by the permit. Section 68G sets out the principles and method of determining compensation to persons whose existing permits are cancelled. By Chapter IVA, the State transport undertaking which is either a department of the State or a corporation owned or controlled by the State on the approval of a scheme, is entitled, consistently with the scheme, to exclusive right to, carry on motor transport business. The Regional Transport Authority is, bound to grant permit for the routes covered by the,, scheme to the State transport undertaking if that authority applies for the same and the Regional Transport Authority is 751 also bound in giving effect to the approved scheme, to modify the terms of existing permits and to refuse to entertain applications for renewal of permits of private operators. Chapter IVA is not merely regulatory of the procedure for carrying on business of road transport by the State; it enables the State transport undertaking, subject to the provisions of the scheme, to exclude private operators and to acquire a monopoly, partial or complete, in carrying on transport business, in a notified area or on notified routes. The authority of the Parliament to enact laws granting monopolies to the State Government to conduct the business of road transport is not open to serious challenge. Entry No. 21 of List III of the Seventh Schedule authorises the Union Parliament and the State Legislatures concurrently to enact laws in respect of commercial and industrial monopolies, combines and trusts. The argument of the petitioners that the authority conferred by entry No. 21 in List III is restricted to legislation to control of monopolies and not to grant or creation of commercial or industrial monopolies has little substance. The expression " commercial and industrial monopolies " is wide enough to include grant or monopolies to the State and Citizens as well as control of monopolies, The expression used in a constitutional enactment conferring legislative powers must be construed not in any narrow or restricted sense but in a sense beneficial to the widest possible amplitude of its powers: Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City(1), The United Provinces vs Atiqua Begum(2). Entry No. 26 of List II of the Seventh Schedule which invests the States with exclusive authority to legislate in respect of trade and commerce within the State, subject. to the provisions of entry No. 33 of List III, does not derogate from the authority conferred by entry 21 of List III concurrently to the Parliament and the State Legislatures, to grant or create by law commercial or industrial monopolies. The amplitude of the powers under the entry in the concurrent list expressly dealing with commercial and industrial monopolies cannot be presumed to be restricted by the (1) [1955] 1 S.C.R. 829, 836. (2) 752 generality of the expression " trade and commerce in the State List. If the argument of the petitioners and the intervener that legislation relating to monopoly in respect of trade and industry is within the exclusive competence of the State be accepted, the Union Parliament cannot legislate to create monopolies in the Union Government in respect of any commercial or trading venture even though power to carry on any trade or business under a monopoly is reserved to the Union by the combined operation of article 298, and the law which is protected from the attack that it infringes the fundamental freedom to carry on business by article 19(6). We are therefore of the view that Chapter IVA could competently be enacted by the Parliament under entry No. 21 read with entry No. 35 of the Concurrent List. The plea sought to be founded on the phraseology, used in article 19(6) that the State intending to carry on trade or business must itself enact the law authorising it to carry on trade or business is equally devoid of force. The expression " the State " as defined in article 12 is inclusive of the Government and Parliament of India and the Government and the Legislature of each of the States. Under entry No. 21 of the Concurrent List, the Parliament being competent to legislate for creating, commercial or trading monopolies, there is, nothing in the Constitution which deprives it of the power to create a commercial or trading monopoly in the Constituent States. Article 19(6) is a mere saving provision: its function is not to create a power but to, immunise from attack the exercise of legislative power falling within its ambit. The right of the State to carry on trade or business to the exclusion of others does not &rise by virtue of article 19(6). The right of the State to carry on trade or business is recognised by article 298; authority to exclude competitors in the field of such trade or business is conferred on the State by entrusting power to enact laws under entry 21 of List III of the Seventh Schedule,, and the exercise of that power in the context of fundamental rights is secured from attack by article 19(6), In any event, the expression " law " as, defined in article 13(3)(a) includes any ordinance, order, bye law, 753 rule, regulation, notification custom, etc., and the scheme framed under section 68C may properly be regarded as " law " within the meaning of article 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by article 19(1)(g). Be.3: The plea that the Chief Minister who approved the scheme under section, 68D was biased has no substance. Section 68D of the undoubtedly imposes a duty on the State Government to act judicially in considering the objections and in approving or modifying the scheme proposed by the transports undertaking. Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation and another(1). It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show. that he is biased, his decision will not be liable to be called in question, merely because he is, a limb of the Government. The Chief Minister of the State has filed an affidavit in this case stating that the contention of the petitioners that he was " biased in favour of the scheme was baseless he has also stated that he heard such objections and representation& as were made before him and he had given the fullest opportunity to the objectors to submit their objections individually. The Chief Minister has given. detailed reasons for approving the scheme and has dealt with such of the objections as he says were urged before him. In the last para. of the reasones given, it is stated that the Government have heard all the arguments advanced on behalf of the operators and " after: giving full consideration to them, the Government have come to (1959) Supp. 1 S.C.R.319 754 the conclusion that the scheme is necessary in the interest of the public and is accordingly approved subject to the modifications that it shall come into force on May 1, 1959 ". In the absence of any evidence controverting these averments, the plea of bias must fail. 4: The argument that the Chief Minister did not give genuine consideration " to the objections raised by operators to the scheme in the light of the conditions prescribed has no force. The order of the Chief Minister discusses the questions of law as well as questions of fact. There is no specific reference in the order to certain objections which were raised in the reply filed by the objectors, but we are, on that account, unable to hold that the Chief Minister did not consider those objections. The guarantee conferred by section 68D of the upon persons likely to be affected by the intended scheme is & guarantee of an opportunity to put forth their objections. and to make representations to the State Government against the acceptance of the scheme. This opportunity of making representations and of being heard in support thereof may be regarded as real only if in the consideration of the objections, there is a judicial approach. But the Legislature does not contemplate an appeal to this Court against the order passed by the State Government approving or modifying the scheme. Provided the authority invested with the power to consider the objections gives an opportunity to the objectors to be heard in the matter and deals with the objections in the light of the object intended to be secured by the scheme, the ultimate order passed by that authority is not open to challenge either on the ground that another view may possibly have been taken on the objections or that detailed reasons have not been given for upholding or rejecting the contentions raised by the objectors. In the view taken by us, the contentions raised by the petitioners fail and the petition is therefore dismissed with costs. Petition dismissed. [/INST]These petitions by the holder of Kavalappara Sthanam, his wife, daughters and soil challenged the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955 passed by the Madras Legislature soon after the Privy Council had declared the properties in possession of the Sthanee to be Sthanam properties in which the members of the tarwad had not interest. Section 2 Of the Act, which contained the substantive provision, was as follows: " 2. Notwithstanding any decision of Court, any sthanam in respect of which: (a) there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad, or (b) the members of the tarwad have been receiving main. tenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being, no male member of the tarwad eligible to succeed to the Sthanam, 888 shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which .he provisions of the Madras Marumakkathayam Act, 1932 (Mad. XXII of 1933), shall apply. " The question for decision was whether the impugned Act infringed the fundamental rights of the petitioners guaranteed by articles 4, 19(1)(f) and 31 of the Constitution. Held (per Sinha, C. J., Subba Rao and Shah, JJ.) that the three tests laid down by the Act were contrary to the well settled principles of Marumakkathayam Law with regard to which there could be no scope for doubt and as such not only not germane but extraneous to the object it sought to achieve. They were a device to deprive the sthanam of its properties and vest them in the tarwad and as such directly hit by article 19(1)(f) and could not be saved by article 19(5). Assuming that the Sthanam properties were held in janmam right and as such were estates within the meaning of article 31A, the impugned Act was immune from challenge. That Article, properly construed, envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the estate solely for that purpose and must be limited to it. Although it may not be permissible to refer to the statement of objects and reasons of its amendment for purposes of construction, it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time and purpose underlying the amendment. Aswini Kumar Ghose vs Arabinda Bose, [19531 S.C.R. 1, con sidered. There is no substance in the argument that since the impugned Act seeks to regulate the rights of the Sthanee and the junior members of the tarwad inter se it falls within by cl. (2)(b) of article 31A. That clause has to be read with cl. (1)(a) of the Article and since the impugned Act does not contemplate any agrarian reform or seek to regulate the rights inter se between landlords and tenants or modify or extinguish any of the rights appertaining janmam right, leaving all its characteristics intact, it does not come within the purview of article 31A of the Constitution. Sri Ram Ram Narain vs State of Bombay, [1959] SUPP. 1 S.C.R. 489, and Atma Ram vs State of Punjab, [1959] SUPP. 1 S.C.R. 748, referred to. Fundamental rights have a transcendental position in the Constitution and before an Article embodying a fundamental right can be construed to exclude another every attempt should be made to harmonize them and not until it is found impossible to do so, can one be made to yield to the other. Barring such exceptional cases, any law that infringes any of the fundamental rights must be void. 889 The word 'law ' in article 31(1) must mean a valid law, and such a law must satisfy two tests, (1) that the legislature must be competent to enact it and (2) that it must not infringe any fundamental rights. A law that deprives a citizen of his property must, therefore, be invalid if it infringes article 19(1)(f) of the Constitution. Deep Chand vs State Of U. P., [1959] SUPP. (2) S.C.R. 8, and Basheshway Nath vs Commissioner of Income tax, Delhi, [1959] Supp. 1 S.C.R. 528, referred to. Article 31 Of the Constitution, since its amendment by the Constitution (Fourth Amendment) Act, 1955, is no longer a selfcontained Article providing for a subject different from that dealt with by article 19, but deals with two different subjects, CIS. (2) and (2A) dealing with acquisition and requisition and cl. (1) with deprivation of property by authority of law, and can no longer be construed on the analogy of article 2 1 so as to exclude the operation of article 19. The State of West Bengal vs Subodh Gopal Bose, [1954] S.C.R. 587, A. K. Gopalan vs The State of Madras, ; , referred to. State of Bombay vs Bhanji Munji and Any., [1955] 1 S.C.R. 777, held inapplicable. Nor does article 31(1) deal with police power. Although such power, as understood in America, is no arbitrary power divorced from social control and public good, there can be no need of importing such a doctrine into the Indian Constitution. The word 'law ' used by article 31(1) indicates its limitation and refers back to article 19 and any law made under article 31(1) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public. The Constitution does not confer on the Indian Parliament the same power which the Parliament of England possesses and while it does contemplate a welfare State, that has to be brought about within its frame work of the Constitution itself. The correct approach should, therefore, be first to ascertain the fundamental right and then to see whether the law infringes that right. If ex facie it does so, it has to stand the test of article 19(5). In certain circumstances, however, deprivation of fundamental right to property may also amount to a reasonable restriction under the Article. Narendra Kumar vs The Union of India, [196O] 2 S.C.R. 375, referred to. Individual proprietary rights being ordinarily inviolable unless a clear case is made out for restricting them, there must be a harmonious balancing between the fundamental rights declared by article 19(1) and social control permitted by article 19(5). It is implicit in the nature of restrictions that no inflexible standard can be laid down and each case must be decided on its own facts. But the restrictions must not be arbitrary and must have a reasonable relation to the object sought to be achieved and shall be in the interest of the general public. 890 State of Madras vs V. G. Rao, ; , Henry Webster vs Peter Cooper, ; , and The Citizens ' Savings and Loan Association and Cleaveland, Ohio vs Topeka City, ; , referred to. Although the redress of a real and genuine grievance of a section of the community may be in public interest, it is impossible to hold that the impugned legislation was either justified or in such public interest. Iswari Prosad vs N. R. Sen, A.I.R. 1952 Cal. 273, held in applicable. Marumakkathayam Law is a body of customs and usages that have received judicial recognition, and is fundamentally different from Hindu Law, being a matriarchal system. The family, called tarwad, consists of all the descendants of one common ancestor. It consists of a mother and her male and female children and the children of those female children and so on. Only the senior most male member can attain the sthanam, which is a position of dignity with specific properties attached to it. When he does so and becomes the Sthanee he ceases to have any interest in the tarwad properties. Occasionally a female member also becomes the Sthanee. Like a Hindu widow or an impartible estate holder the Sthanee has an absolute interest in the income of the Sthanam properties or acquisitions therefrom. A member of the tarwad has no right to maintenance from out of the Sthanam properties nor can such property be converted into tarwad property by the grant of such maintenance by custom or otherwise or intermingling of the Sthanam properties with the tarwad properties by the Sthanee. His position approximates to that of a member separated from a Hindu family and there can be no scope for the application of the doctrine of blending. Like the Sthanee who ceases to have any present proprietary interest in the tarwad, the members of the tarwad also can have no present proprietary interest in the sthanam property. They continue to be blood relations with a contingent right of succession to each others ' property that is no more than a spies successions. The right of a subsequently born male member of the tarwad to succeed to the Sthanam and its property is judicially recognised. Case law reviewed. Per Imam and Sarkar, JJ. The impugned Act is protected by article 31A and is not open to question in the ground that it violates articles 14, 19(1)(f) and 31(1) Of the Constitution. There is no basis for the contention that article 31(1)(a) contemplates a law relating to agrarian reform only. The Article makes no mention of any such reform and there can be no doubt that under it a janmam right may be acquired, extinguished or modified whether the land held in such right is agricultural or not. It is not permissible to refer to the objects and reasons stated in the Bills, by which the Acts amending article 31A of the Constitution were introduced, for the construction of the statute and, therefore, the word 'law ' in article 31A(1) cannot be read in relation to sub cl. (a) only as a law intended to achieve agrarian 891 reform on the basis of the supposed object of the Legislature in enacting article 31A. Aswini Kumar Ghose vs Arabinda Bose, ; referred to. It is not correct to say that the impugned Act does not effect any modification of janmam rights and therefore it does not come within article 31A. When the Article speaks of modification of janmam rights, it does not speak of such rights in the abstract but contemplates the modification of such rights held by a person. It would be as much modification of janmam rights, if such rights held by one person are directed to be held by a number of persons jointly, as when the incidents of such rights are altered. Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 S.C.R. 489, and Atma Ram vs State of Punjab, [1959] Supp. 1 S.C.R. 748, relied on. It is not correct to say that the Legislature in giving the provisions of the impugned Act retrospective operation or in providing that they should prevail notwithstanding any decision of the court to the contrary, was acting judicially and not in a legislative capacity and that the Act was on that ground invalid. The rule obtaining in America that legislative action cannot retract on past controversies and reverse decisions of courts and the relevant American decisions can have no application in India. Piare Dusadh 's case, , referred to. </s>
<s>[INST] Summarize the judgementN: CRIMINAL APPEAL No. 253 of 1971. Appeal by Special leave from the Judgment and order dated 11.2.1971 of the Allahabad High Court in Criminal Appeal No. 1285/70. O. P. Rana, For the appellant Shiv Pujan Singh, for the respondent The Judgment of the Court was delivered by 381 GOSWAMI, J. This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal of the High Court of Allahabad. Balram, Ram Khelawan and Rhuddi are three sons of one Ram Charan. The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Balram. Accused Sheo Murat, Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan. Accused Shyam Lal is the son of accused Ram Kishan. Shiv Nath (PW 2) e and Jagan Nath are sons of Bhuddi. Thus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur. In this ancestral house Vishwanath, Kankar, Chhannu, Jagan Nath and accused Ram Kishan along with his mother and married younger sister Bhagwantia resided. All others along with the rest of the four accused lived in a nearby separate house. on March 18, 1969, certain quarrel ensued between Bhagwantia and Kankar 's wife Patia. Vishwanath tried to pacify both the quarrelling women. Since Bhagwantia did not heed to Vishwanath 's words, the latter gave her one or two slaps. Ram Kishan and his brothers were not in the village on that day but learning about this incident on the following day accused Sheo Murat, Ram Kishan, Shobha, Moti Lal and Shyam Lal went to Vishwanath 's place at about 7.00 or 8.00 P.M. What followed may be described in the words of the in jured Vishwanath: "On the next day at 7 or 8 P.M. I was sitting at the door of my osara. My younger brothers, Kankar and Chhannu, were sitting at a short distance from me at the well. Sheonath, my cousin, was also sitting near Kankar and Chhannu. A burning lantern was hanging from a bamboo pole outside the osara; and there was sufficient light from it. Ram Kishan, Shobha, Sheo Murat, Shyam Lal and Moti, accused present in the court, came there, Ram Kishan asked from me as to why I had slapped Bhagwantia and that I should come out and settle up. I stood up and said, "Brother, what will you settle up". At this Ram Kishan instigated his companions saying, "Beat the salas". At once Shobha caught hold of my hand and Sheo Murat dealt knife blows to me. Chhannu, my younger brother, came to save me, whereupon Shyam Lal and Moti caught hold of him and Sheo Murat started giving knife blows to him. On hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them. Chhannu and I fell down on sustaining injuries. Then all the five accused persons ran away with the knife. " What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9). Phool Chand (PW 10) and Sohan (PW 13). The story given by these witnesses remains absolutely unshaken in the scanty cross examination by the defence. Indeed there was little or no cross examination with regard to the incident itself. 10 L522SCI/76 382 Deceased Chhannu had the following external injuries on his person as stated by Dr. U. P. Singh who held the autopsy: (1) Incised stab wound 1/2X1/3", on right side chest, 1" medical to right nipple going into the chest cavity. (2) Incised stab wound 1/2"x 1/4" x 1" to the right of left nipple and 1" below it, going into the chest cavity. (3) Incised stab wound 1/2"x 1/4" abdominal cavity deep, on lower part of right side abdomen. (4) Incised stab wound 1/2"x1/4"on lower part of abdomen, 3" above the joint of hip bones. (S) Incised stab wound 1/2"x1/4" deep, on left hip. (6) Incised stab wound 1/2"x1/4" chest cavity deep, on left side back, 6" below scapula. (7) Abrasion 1/2"x 1/2" lateral aspect of right elbow. (8) Abrasion 1/2"x1/2" on lateral aspect of right hand. Internal examination revealed that the cartilage of fifth rib had been cut under injury No. (3). There were punctured wounds ill the chest cavity in relation to injury Nos. (1), (2) and (6). Right vertrical of heart had a punctured wound 1/4"x1/4" and the pericardial cavity contained blood. The upper lobe of left lung had a punctured wound 1/2" X 1/4" in relation to injury No. 2. In the opinion of the Doctor death was due to shock and haemorrhage resulting from injuries to heart and lungs. Another Doctor Siddiqui (PW 5) found the following injuries on the person of Vishwanath: (1) Incised wound 1/4"x1/8"x 1 1/2" deep, on front side of lower part of neck, directed downwards, backwards and leftwords. The wound was in the middle of the neck and 1" above the bone. On coughing air passed through the wound. (2) Incised wound 1/2"x1/8"x3" or more than this, abdominal cavity deep, 1 1/2" above and to the left of umbilious. Direction of wound was backwards, slightly upwards and towards centre of abdomen. The injuries were fresh and described by the Doctor as dangerous. All the five accused were charged under section 302/149 IPC for causing the death of Chhannu and also under section 307/149 IPC for attempting to murder Vishwanath. While Sheo Murat was charged under section 149 IPC the other four accused were charged also under section 147 IPC. The Sessions Judge convicted accused Sheo Murat under section 148, 307 and 302 IPC. He was sentenced to death under section 302 IPC, to seven years rigorous imprisonment under section 307 IPC, and to two years rigorous imprisonment under section 148 IPC. Accused Ram Kishan, Shobha, Moti Lal and Shyam Lal (the present respondents) were convicted under section 302/149 IPC, section 307 read with section 149 and section 383 147 IPC. These four accused were sentenced to one year 's rigorous A imprisonment under section 147 IPC, to seven years ' rigorous imprisonment under section 307/149 IPC and to imprisonment for life under section 302/149 IPC. The sentences of all the accused were to run concurrently. The accused appealed to the High Court. There was also a reference under section 374, Criminal Procedure Code, to the High Court for confirmation of the death sentence on Sheo Murat. Both the matters were heard together by the High 1 Court and a common judgment was delivered on February 11, 1971. The High Court maintained conviction and sentence of the accused Sheo Murat under section 307 IPC and also maintained his conviction under section 302 IPC but reduced the sentence to imprisonment for life. The conviction and sentence of Sheo Murat under section 148 IPC were, however, set aside. The conviction and sentence of the four other accused (the present respondents) were set C aside. The State prayed for special leave against the rejection of the reference by reducing the death sentence to imprisonment for life but this Court rejected the same. The State 's special leave application with regard to the respondents ' acquittal was, however, admitted on October 13, 1971 and non bailable warrants were issued against them. We are, therefore, not concerned in this appeal with the conviction of accused Sheo Murat, who was the assailant of the deceased as well as of Vishwanath. We have to consider whether the High Court has committed a grave and palpable error in acquitting the respondents resulting in miscarriage of justice. It is well settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court, even though it has interfered with the conviction by the trial court, where the same is reached after a proper appreciation of the entire evidence. The possibility that it may just be reasonably feasible for this Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal. Even so, we are unable in this case to sustain the order of the High Court for the reasons, which will presently follow. We have already quoted the evidence of Vishwanath which is unerringly corroborated by all the other eye witnesses. Both the trial court as well as the High Court believed the evidence. Indeed the High Court has observed and, in our opinion, rightly that "there is no infirmity in the prosecution case". We then find that the High Court has read the evidence in a rather unusual way which is at once obvious when we peruse the judgment. We are not told wherefrom the High Court could describe the evidence as follows: "After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses". The High Court also observed that "it is not at an clear from the prosecution evidence whether Shohha kept on holding Vishwanath till the very end i.e. 384 till both the knife injuries had been caused to him, or whether he let go his hold as soon as Sheo Murat started the attack". The High Court further observed that "there is nothing in the prosecution evidence to indicate in what order those injuries were caused to Chhannu, and whether or not the injuries on the back were caused first". The High Court further gave unusual importance to the statement of PW 13 when he deposed in cross examination to the following effects: "I cannot remember whether the two persons who had caught hold of Chhannu had held him from the front or from the back or from the side. Further, I do not remember whether they were holding him each with both his arms or whether each of them held him only with one arm. I do not re collect whether Sheo Murat had caused injuries to Chhannu from the front side or from the back side". We are unable to appreciate how the evidence of PW 13, who could not remember certain details, could help the court in coming to any conclusion for the purpose of displacing the clear and unambiguous prosecution evidence. The injuries on the two victims are res, ipso loquiter and tell tale. Accused Shobha caught hold of Vishwanath 's hands and Sheo Murat gave him two stab blows, one on the neck and the other on the abdomen. When deceased Chhannu advanced in order to save Vishwanath he was caught by accused Shyam Lal and Moti Lal and Sheo Murat gave as many as six stab injuries in quick succession. None of these stab wounds are on any part of the hands or arms which would have necessarily been caused if the victims were not caught hold of by a person or persons while they were attacked with a knife. It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab in juries by raising their hands. And in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms. This would clearly go to show that the story that Vishwanath was caught by Shobha and Chhannu was caught by Moti Lal and Shyam Lal, as deposed to by the PWs, stands corroborated by the medical evidence. The High Court completely ignored this most relevant and important aspect in the prosecution case but felt satisfied to acquit the accused on the sole ground that there was no evidence to show whether Shobha caught Vishwanath all the time when the two blows were given and also whether Moti Lal and Shyam Lal were catching hold of deceased Chhannu during the entire period of the assault. The High Court particularly felt in that direction because PW 13 being an independent witness could not re collect certain things to which we have already referred to above. The injuries would clearly show that the victims were caught hold of by a Person or persons when these were inflicted upon them. We are clearly of opinion that this is a completely erroneous view of the prosecution evidence adduced in this case resulting in failure of justice. We are further satisfied that if the High Court had not read 385 the evidence by introducing an extraneous gloss for the purpose of its A conclusion it could not have acquitted the accused. It is also evidence that the accused came in a body to challenge Vishwanath for the previous day 's incident. Although the four respondents were unarmed, Sheo Murat had a knife with him. There is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons. He only replied to the challenge by saying "Brother, what will you settle up" ? At this Ram Kishan instigated the other accused persons saying "beat the salas". At once accused Shobha caught held of Vishwanath 's hands and Sheo Murat stabbed him twice with his knife. Assunung the respondents had no earlier knowledge about Sheo Murat 's carrying a knife, from this moment they came to know that Sheo Murat had a knife with which he had already stabbed Vishwanath. What did they then do when deceased Chhannu came to the aid of Vishwanath to save him from further assault ? Now Moti Lal and Shyam Lal caught hold of Chhannu and Sheo Murat inflicted several stab blows in quick succession. It is, therefore, clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault. Sheo Murat has been convicted under section 302 IPC. We may only give these two accused Moti Lal and Shyam Lal benefit of doubt with regard to participation with Sheo Murat in the common intention to cause death of Chhannu. It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when Sheo Murat was inflicting the stab wounds. There is no escape from the conclusion on this evidence that Moti Lal and Shyam Lal shared at least the common intention. with Sheo Murat to cause grievous hurt under section 326 IPC. A clear case has been established against both the accused persons under section 326/34 IPC. They are, therefore, convicted under section 326/34 IPC and sentenced to four years ' rigorous imprisonment. With regard to accused Ram Kishan he merely instigated by saying "beat the salas". He is the person who started the affair by challenging Vishwanath and also instigating the other accused persons to beat. From this alone it is not possible to attribute to him any common intention to cause more than simple assault. He is, therefore, found guilty only under section 323/109 IPC. He is, therefore, convicted under section 323/109 IPC and sentenced to rigorous imprisonment for one year. Accused Shobha, who caught hold of Vishwanath to facilitate the two stab injuries on him by Sheo Murat, is also guilty under section 326/34 IPC. We are prepared to give him the benefit of doubt only with regard to section 307 IPC but the evidence clearly establishes the case under section 326/34 lPC. He is accordingly convicted under section 326/34 IPC and sentenced to four years ' rigorous imprisonment. 386 We should observe that no prejudice is caused to the accused by alteration of the conviction to section 326/34 although they had been originally charged under section 302/149 and section 307/149 IPC on the particular facts of the prosecution case which clearly pointed to participation by the respective accused in the two attacks and which they had to meet in the trial. Since the respondents are detained in jail in pursuance of the non bailable warrants issued by this Court on October 13, 1971, at the time of granting special leave, they will be entitled to the benefit of section 438, Criminal Procedure Codes, and that period shall be set off against the sentences which we have passed in this apepal. In the result the judgment of the High Court is set aside, the appeal is allowed and the four accused stand convicted and sentenced as aforesaid subject to the observations mentioned above. S.R. Appeal allowed. [/INST]Nine accused were charged with offences of murder and causing hurt. The trial Court acquitted two and convicted the others under sections 325 and 147, I.P.C. on appeal by the State, the High Court convicted the two appellants also under section 302 read with 8. 34. I.P.C. Partly allowing their appeal to this Court, ^ HELD: The High Court has not examined the liability of the accused with due regard to the facts and circumstances of the case. Instead of giving a categorical finding, the High Court stated at one place in its judgment that the appellants must be taken to have had the knowledge that the injury which they intended to cause to the victim was "likely to result" in his death, and in an other place, that the appellant were guilty of an offence under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim that their act must in all probability cause death or such bodily injury as is likely to cause death. " But the evidence on record shows that the appellants did not have the common intention of giving a beating to the deceased when they reached his house but were only bent upon settling scores with his son. It was only when the deceased asked another witness to get ready a bullock cart for making a complaint about the beating of his son that the appellants inflicted injuries on him. But there was nothing to show that their intention was to inflict any fatal injury. Only one of the injuries was a forceful blow on the head of the deceased and it resulted on his death. But the other injuries were on the back of the neck, knees and right elbow of the deceased and not on any vital part of the body. Therefore, the appellants had only the common intention of causing Grievous hurt. Since there was no reliable evidence to show which of the two appellants gave the fatal blow, the appellants could only be convicted of an offence under section 325 read with section 34, I.P.C. [431F; 432C D, P G; 433E 434C] </s>
<s>[INST] Summarize the judgementminal Appeal No. 203 of 1966. Appeal by special leave from the judgment and order dated April 5, 1966 of the Patna High Court in Criminal Appeal No. 602 of 1963. D. P. Singh, for the appellant. Nur ud din Ahmed and D. Goburdhun, for the respondents. The Judgment of the Court was delivered by Bachawat, J. The prosecution case was that Bhaiya Ramanuj Pratap Deo was the proprietor of village Phatpani and owned and possessed bakasht and gairmazura lands therein including plot No. 1311 and the mahua trees standing thereon. On April 10, 1962 at 3 p.m. his employee PW 33 Bindeshwari Singh was in charge of collection of mahua fruits in plot No. 1311 and the victims Ram Swarup Singh and Ramdhari Singh were supervising the collection. PW 1 Dhaneshwari, PW 2 Deokalia, PW 3 Dewal, PW 4 Rajmatia, PW 6 Udal Singh, PW 7 Border Singh, PW 8 Meghan Chamar, PW 9 Ram Dihal Kharwar, PW 10 Ram Torai Kharwar, PW 11 Manan Singh and PW 13 Jhagar Kharwar were collecting mahua fruits when suddenly accused Mathua Pandey, Kundal Pandey and Muneshwardhar Dubey armed with garassas, Chandradeo Pandey, Dayanand Pandey and Nasir Mian armed with bhalas and Bife Bhogta, Thegu Bhogta, Nageshwardhar Dubey and Uma Shankar Dubey armed with lathis surrounded Ramswarup and Ramdhari and assaulted them with their weapons. Dewal also was assaulted by Bife and Thegu and suffered minor injuries. Ramdhari died on the spot. Ramswarup died while preparations were being made to carry him to the hospital. Bindeshwari lodged the first information report at 8 p.m. on the same date. On April 14, 1962 'accused Mathu gave a report 360 at Nagaruntari hospital. He said that on April 10, 1962 at 3 p.m. while he was returning home, he was assaulted with lathis, garassas and bhalas by the employees of the Bhaiya Saheb. The following injuries were found on the dead body of Ram swarup Singh : "(1) abrasion 1 1/2"x 1 1/4" with ecchymosis on anterior aspect of right knee joint,, (2) another abrasion 1/2" x 1/4 " with ecchymosis on anterior aspect of right leg, (3) a small abrasion with ecchymosis on anterior aspect of left knee joint, (4) an incised wound 4" x 1" x scalp on anterior aspect of the left side of the head, (5) a lacerated wound 31" X 1/3" X scalp with ecchymosis on right side of head and ' (6) a penetrating wound with clean cut margins 2 1/2" X 1" X abdominal cavity placed transversely on right hypochondrium just right to mid line with stomach and loop of large bowel bulging out of it. " On opening the abdominal wall it was found that the peritoneum was con gested and the stomach was perforated on its anterior wall. Injuries 1, 2, 3 and 5 were caused by hard and blunt substance such as lathi. Injury No. 4 was caused by sharp cutting weapon such as garassa. Injury No. 6 on the abdominal cavity was caused by some sharp pointed weapon with sharp cutting margin such as bhala. The death was due to shock and internal haemorrhage caused by the abdominal wounds. The following injuries were found on the dead body of Ramdhari Singh : "(1) the helix of left ear was cut; (2) a lacerated wound 1/2" x 1/10" x 1/10" with ecchymosis on the outer part of the left eye brow, (3) a punctured wound with clean cut margins 2 1/2"X I" X 1 1/2" on left thigh below its middle, (4) a punctured wound with clean cut margin 1" X 1/4" X 1" on posterior aspect of the left thigh in its middle, and (5) a penetrating wound with clean cut margins 2 1/4" x 3/4" x abdominal cavity on right side of the abdomen. The loops of intestines were bulging out of this opening. Injury No. 2 was caused by hard and blunt substance such as lathi. The other injuries were caused by a sharp pointed weapon with sharp cutting edge such as bhala. Death was due to shock and internal haemorrhage caused by injury No. 5 the abdominal wound. The trial court convicted the accused respondents Mathu, Chandradeo, Kundal, Dayanand, Bife, Thegu, Nasir, Munesh wardhar, Nageshwardhar, Umashankardhar under section 302 read with section 149 of the Indian Penal Code for the murders of Ram dhari and Ramswarup and sentenced them to rigorous imprison ment for life each. Bife, Thegu, Nageshwardhar and Umashan kardhar were convicted under section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for six months each. The remaining respondents were convicted under section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for one year 361 each. Bife and Thegu were convicted under section 323 of the Indian Penal Code for causing hurt to Dewal and sentenced to rigorous imprisonment for six months each. The sentences of each respondent were to run concurrently. The trial court held that (1) Bhaiya Saheb was in possession of plot No. 1311; (2) while Ramswarup and Ramdhari were collecting mahua on the plot, the respondents armed with bhalas, garassas and lathis inflicted fatal injuries on them with a view to forcibly prevent them from collecting the mahua, (3) Thegu and Bife assaulted Dewal with lathis, (4) the accused persons knew that there was likelihood of murders being committed in prosecution of the common object, and (5) the assailants inflicted the injuries on Ramswarup and Ramdhari with the intention of murdering them. The respondents filed an appeal in the High Court of Patna. The High Court allowed the appeal and set aside all the convictions and sentences. The High Court, found that (1) respondent Chandradeo was the thikadar of plot No. 1311 and was in possession of the mahua trees standing thereon, (2) on the date of the occurrence,, the members of the prosecution party including Ramdhari and Ramswarup committed theft on the fruits of the mahua trees, and the respondents had the right of private defence of property against the theft; (3) Ramswarup carrying a tangi and Ramdhari carrying a danta caused severe injuries to respondent Mathu on his head, leg, and that while doing so they were not defending themselves; Mathu became unconscious. He regained consciousness on April 14, 1962. (4) the theft of mahua fruits was committed under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. Accordingly, the respondents ' right of private defence of property extended under section 103 of the Indian Penal Code to voluntarily causing death to Ramdhari and Ramswarup subject to the restrictions mentioned in section 99; (5) the person or persons who caused the two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence. These findings are based on adequate evidence and are not shown to be perverse. In this appeal under article 136 of the Constitution from an order of acquittal passed by the High Court, we are not inclined to interfere with the above findings. The question is whether in these circumstances the High Court rightly acquitted the appellants. , The fatal wounds on the abdominal cavities of Ramdhari and Ramswarup were caused by bhalas. The prosecution case was that Chandradeo, Dayanand and Nasir were armed with bhalas. The High Court rightly held that the prosecution failed to established that Chandradeo was armed with a bhala. The prosecution witnesses said generally that all the respondents surrounded Ram 362 dhari and Ramswarup and. assaulted them. The prosecution case has been found to be false in material respects. It is not possible to record the finding that Chandradeo, Dayanand and Nasir were armed with bhalas. Some of the respondents were armed with bhalas but it is not possible to say which of them were so armed and which of them inflicted the fatal wounds on Ramdhari and Ramswarup. Accordingly we cannot convict any of the respondents under section 302. The only question is whether they can be convicted under section 302 read with either section 149 or section 34. In order to attract the provisions of section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any Person. Section 141 must be read with sections 96 to 106 dealing with the right of private defence. Under section 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or supposed right" in the fourth clause of section 141. In Kapildeo Singh vs The King(1) the High Court had affirmed the appellant 's conviction and sentence under section 147 and section 304 read with section 149, without considering the question as to who was actually in possession of the plot at the time of the occurrence. The High Court observed that the question of possession was immaterial and that the appellants party were members of an unlawful assembly, "as both sides were determined to vindicate their rights by show of force or use of force. " The Federal Court set aside the conviction and sentence. It held that the High Court judge stated the law too loosely "if by the use of the word 'vindicate ' he meant to include even cases in which a party is forced to maintain or defend his rights". The assembly could not be designated as an unlawful assembly if its object was to defend property by the use of force within the limits prescribed by law. The charges against the respondents were that they "were members of an unlawful assembly in prosecution of the common object of which, viz., in forcibly preventing Ramdhari Singh and Ramswarup Singh from collecting mahua from Barmania field of village Phatnapi and if necessary in causing the murder of the said two persons, for the purpose, "that some of them caused the murders of Ramdhari and Ramswarup and that thereby all of them committed offences under section 302 read with section 149. We have found that respondent Chandradeo was in possession of plot (1) 363 No. 1311 and the mahua trees standing thereon. The object of the respondent 's party was to prevent the commission of theft of the mhua fruits in exercise of their right of private defence of property. This object was not unlawful. Nor is it possible to say that their common object was to kill Ramdhari and Ramswarup. Those who killed them exceeded the right of private defence and may be individually held responsible for the murders. But the murders were not committed in prosecution of the common object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object. The accused respondents cannot be made constructively responsible for the murders under section 302 read with section 149. In Kishori Prasad & Ors. vs State of Bihar(1) the High Court convicted the appellants under section 326/149 of the Indian Penal Code though the appellant Hirdaynarain was in lawful possession of the western portion of plot No. 67 and the attempt by the prorecution party to cultivate the same was high handed. This Court set aside the conviction and sentence. Ramaswami J. observed "In a case where the accused person could invoke the right of private defence it is manifest that no charge of rioting under section 147 or section 148, Indian Penal Code can be established for the common object to commit an offence attributed in the charge under section 147 or section 148, Indian Penal Code is not made out. If any accused person had exceeded the right of private defence in causing the death of Chitanu Rai or in injuring Gorakh Prasad it is open to the prosecution to prove the individual assault and the particular accused person concerned may be convicted for the individual assault either under section 304, Indian Penal Code or of the lesser offence under section 326, Indian Penal Code. The difficulty in the present case is that the High Court has not analysed the evidence given by the parties and given a finding whether any or which of the appellants are guilty of causing the death of Chitanu Rai or of assaulting Gorakh Prasad. As we have already said, none of the appellants can be convicted of the charge of rioting under section 148 or of the constructive offence under section 326/149, Indian Penal Code. " We accordingly hold that the respondents cannot be convicted under section 302 read with section 149, Indian Penal Code. Nor is it possible to convict them under section 302 read with section 34. The High 'Court rightly found that the respondents wanted to prevent the (1) Cr. No. 191 of 1966 decd. on 5 12 1968. 364 collection of mahua fruits and that a common intention of all of them to murder Ramdhri and Ramswarup was not established. The case of Gurudittamal vs State of U.P.(1) is distinguish able. In that case the Court found that (1) the accused persons who were in possession of a field had exceeded the right of private defence of property by murdering four persons who were peacefully harvesting the crops standing on the field and (2) each of the four appellants killed one member of the prosecution party and each of them individually committed an offence under section 302 (see paragraph 6 and end of paragraph 14). In these circumstances, the Court upheld their conviction and sentence under section 302. The Court also found that the appellants had the common intention to kill the victims and could be convicted under section 302 read with section 34 (see paragraph 12 and 9). In the present case, none of the respondents can be convicted under section 302. As a common intention to murder Ramdhari or Ramswarup is not established, they cannot be convicted under section 302 read with section 34. In the result, the appeal is dismissed. R.K.P.S. Appeal dismissed. (1) A.I.R. 1965 S.C. 257. [/INST]The State of Bihar filed a number of suits in this Court under article 131 of the Constitution in connection with the delayed delivery of iron and steel materials for its Gandak project. In six of the suits the defendants were: The Union of India (Defendant No. 1 ) and Hindustan Steel Ltd. (Defendant No. 2). In six other suits the defendants were: The Union of India (Defendant No. 1) and The Indian Iron & Steel Co. Ltd. (Defendant No. 2). The prayers in all the suits were that decrees for specific sums of money be passed either against the Union of India or the second defendant. Identical preliminary issues were set down for consideration in all the suits, namely: (1) whether the cause or causes of action in this suit are within the scope of article 131 of the Constitution? (2) Whether the suit is within the scope of article 131 of the Constitution in view of a non State viz. defendant No. 2, having been made a party to the suit ? (3) Whether the suit is barred by the provisions of section 80 C.P.C. for want of notice to defendant No. 1. HELD: (i) The specification of the parties in article 131 is not of the inclusive kind. The express words in cls. (a), (b) and (c) of the Article exclude the idea of a private citizen, a firm or a corporation figuring as a disputant either alone or even along with a State or with the Government of India in the category of a party to the dispute. The contents of the corresponding section, of the Government of India Act, 1935 namely section 204, and the legislative history culminating in the adoption of article 131 of the Constitution support the conclusion that so far as the parties to a dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly Or jointly with another unit or the Government of India. For other types of controversies or disputes special provision has been made in the sonstitution e.g. in article 143 257, 262 and 290 A dispute in which a private party, is involved must be brought before a court other than this Court having jurisdiction over the matter. [52.6 D F; 530 B; 531 C, F, H; 532 C] The United Provinces vs The Governor General in Council, and State of Seraikella and Others vs Union of India and another, [151] S.C.R. 474, referred to. The enlarged definition of 'State ' given in Parts III and IV of the Constitution is not attracted to article 131 of the Constitution and a body like the Hindustan Steel Ltd. could not be considered to be "a State" for the purpose of article 131 of the Constitution. [532 G] Rajasthan State Electricity Board vs Mohan Lal, ; , distinguished. 523 In view of the above finding on issue No. 2 the suits did not lie in this Court under article 131 of the Constitution and the plaints must be returned; it was accordingly unnecessary to decide issues Nos. 1 and 3. [532 H] Article 131 does not prescribe that a suit must be filed in the Supreme Court for the complete adjudication of the dispute envisaged therein or the passing of a decree capable of execution in the ordinary way as decrees of other courts are. Once this Court has given a declaration of its rights to the aggrieved party the function of the Court under article 131 is over. [525 C F] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 158 of 1951. Appeal from the judgment and decree dated 24th March, 1948, of the High Court of Punjab at Simla (Teja Singh and Khosla JJ.) in Regular First Appeal No. 133 of 1945 arising out of judgment and decree dated 25th November, 1944, of the Court of the Senior Subordinate Judge, Kangra, at Dharmsala in Suit No. 86 of 1,943. Daryadatta Chawla for the appellant. Gurbachan Singh (Jindra Lat, with him) for the respond ent. 1952. May 16. The Judgment of the Court was delivered by FAZL ALl J. This is an appeal against the judgment and decree of the High Court of Punjab at Simla reversing the judgment and decree of the Senior Subordinate Judge of Kangra in a suit instituted by the appellant for a declara tion that he was the sole lawful heir of one Musammat Ram Piari, whom he alleged to be his wife, and as such was entitled to the properties left by her, and for possession of those properties. The suit was instituted against 2 persons, namely, Parvin Kumari, who was alleged to be the daughter of the plaintiff by Ram Piari, and Shrimati Raj Kumari, who were respectively impleaded as defendants Nos. 1 and 2. The case of the plaintiff as set out in the plaint was that he was married to Ram Piari, the daughter of an employ ee of Raj Kumari (defendant No. 2) about 22 years before the institution of the suit, that after marriage she lived with him at Hoshiarpur and gave birth to a daughter, Parvin Kumari (defendant No. 1), on the 4th March, 1929, and that Ram Piari died in 828 April, 1941, leaving both movable and immovable properties which she had acquired in her own name with the aid of his money and which had been taken possession of by Raj Kumari. He further alleged that he was a Rajput by caste belonging to tehsil Garhshankar in the district of Hoshiarpur, and was governed by custom in matters of succession, and, according to that custom, he, as the husband of the deceased Ram Piari, was entitled to the movable and immovable properties left by her to the exclusion of Parvin Kumari, her daughter. The suit was contested by both Parvin Kumari and Raj Kumari, and both of them denied that the appellant had been married to Ram Piari. Their case was that the proper ties in suit were acquired by Raj Kumari with her own money for Ram Piari, that the latter had made a will bequeathing them to her daughter, Parvin Kumari, that the appellant was not governed by custom, and that in any event the alleged custom could not apply to the personal and self . acquired property of Ram Piari, As regards 2 cars which were also included in the list of properties claimed in the plaint, the case of Raj Kumari was that they belonged to her and that the deceased was only a benamidar. The trial court decreed the plaintiff 's suit with re spect to all the properties excepting the 2 cars which were held to belong to Raj Kumari. The court held that Ram Piari was the legally married Wife of the appellant, that he was governed by customary law applicable to Rajputs of Hoshiar pur district in matters of succession, and that according to that customary law he was the preferential heir to the estate of Ram Piari. The court further held that the will of Ram Piari was invalid as she had no power under the customary law to make a will. Both the defendants appealed to the High Court against the judgment of the trial court, and the appeal was ulti mately allowed and the plaintiffs suit was dismissed. The High Court held that though there 829 was evidence of long cohabitation of the plaintiff and Ram Piari giving rise to a presumption of marriage, yet that presumption had been completely rebutted and the proper conclusion to be arrived at on the evidence on record was that the plaintiff had not been able to prove that Ram Piari was his lawfully wedded wife. As to custom, the findings of the High Court were as follows : (1) that the appellant belonged to an agricultural tribe of Hoshiarpur district and was therefore governed by the custom prevailing among the Rajputs of that district; (2) that there was no local or general custom allowing the plaintiff to succeed in preference to the daughter to the property left by Ram Piari which had been given to her by a stranger, namely, Raj Kumari, and (3) that the parties were governed by Hindu law under which Parvin Kumari being the daughter of Ram Piari was entitled to succeed to the properties left by the latter in preference to the plaintiff. Against the decision of the High Court, the plaintiff has now preferred this appeal, after obtaining a certificate from the High Court under sections 109 and 110 of the Code of Civil Procedure. The first question which arises in this appeal is wheth er the plaintiff has succeeded in proving that Ram Piari was his legally wedded wife. The plaintiff was admittedly em ployed as a copyist in the District Judge 's court at Hoshi arpur and was living in that town. His case was that he gained the acquaintance of Raj Kumari (defendant No. 2), a wealthy lady of Kangra district who owned a tea estate in tehsil Palampur and occasionally visited Hoshiarpur, and through her good offices was married to Ram Piari, who was the daughter of one Chandar Bit, an employee of Raj Kumari working in her tea estate. After marriage, Ram Piari lived with the plaintiff at Hoshiarpur as his lawfully wedded wife, and a daughter, Parvin Kumari, (also called Usha Rani) was born to 830 them on the 4th March, 1929. Raj Kumari had great attachment to wards Ram Piari and often used to pay visits to Hoshiar pur to meet her. In the year 1934 35 (no date is mentioned in the plaint; but this year is mentioned in the plain tiff 's evidence), Raj Kumari took Ram Piari from the plain tiff 's house with belongings of every description on the pretext of taking her out for recreation. Ram Piari did not like going round with Raj Kumari and though she wanted to come back to the plaintiff she had not the courage to diso bey Raj Kumari, and in fact Ram Piari and ' Raj Kumari in wardly hated one another during the last years of the for mer 's life. In the year 1941, Ram Piari died at Mayo Hospi tal at Lahore, leaving the properties in dispute which had been acquired by her by good management with the plaintiff 's own money. As against this version of the. plaintiff, the case of Raj Kumari was that Ram Piari had been enticed away by a motor driver sometime in 1921, that she returned to Holta estate after about 11 years with Parvin Kumari who was then about 3 years old, and after her return both she and her daughter remained with her (Raj Kumari) till Ram Piari died in 1941. Raj Kumari, being a widow, felt very lonely and so brought up Ram Piari as a companion and all the properties in dispute had been acquired by her with her own money for the benefit of Ram Piari Parvin Kumari had been educated and brought up at her expense, and it was entirely false that she and Ram Piari inwardly hated each other, the truth being that they liked and were attached to each other. The evidence adduced by the plaintiff to prove that Ram Piari was his lawfully wedded wife consists partly of the evidence of a number of witnesses and partly of circumstan tial evidence. The direct evidence of marriage is furnished by Babu Ram, P. W. 7, Anant Ram, P.W. 11, Babu, P.W. 12, and Asa Ram, P.W. 13. Babu Ram claims to be the family priest and alleges to have officiated as priest at the time of the plaintiff 's marriage, Anant Ram and Asa Ram are 831 jaswal Rajputs residing in village Bham, which is near the plaintiff 's village, Ajnoha, and Babu is a barber. These four persons have said that they accompanied the marriage party and that the marriage of the plaintiff with Ram Piari was celebrated in their presence. The evidence of the other witnesses and the circumstantial evidence upon which reli ance has been placed by the plaintiff have been summarized by the learned Subordinate Judge in his judgment in these words : "P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshi arpur. P.W. 4 Doctor Shadi Lal is a leading Medical Practi tioner of Hoshiarpur. P.W. 9 Lala Sham Lal and P.W. 10 Lala Har Narain have been co employees with the plaintiff in the same office; though these persons (except P.W. 9) have no social relations with the plaintiff and his family, yet they have been seeing Ram Piari living with plaintiff as his wife. She was proclaimed as such by the plaintiff and both of them were treated as husband and wife by the people of the Mohalla and by the brotherhood in the village of plain tiff. Exhibits P 18 and P 19 show that defendant No. 2 has been addressing Ram Piari, care of plaintiff in 1932 and has been receiving correspondence, care of the plaintiff which shows that she approved of the plaintiff 's alliance with Ram Piari . Paras Ram, a younger brother of Ram Piari, lived in the house of Gokal Chand and it is in evidence that he used to address the plaintiff as jija a common name for sister 's husband. From 1930 to 1934 Paras Ram read in the D.A.V. High School at Hoshiarpur and Exhibits P.W. 6/1 to 6 are copies of entries in the registers of the school regard ing applications which were given by Gokal Chand, plaintiff, for admission of his ward Paras Ram, son of Chandar Bit who was described as his sala (wife 's brother). P.W. 6 Lala Bishan Das, teacher, has filed these copies. His sister 's house was adjacent to the house of the plaintiff and he had occasions to see Ram Piari living and being treated as wife by the plaintiff during those years. " 108 832 Upon the evidence to which reference has been made, the trial court came.to the conclusion that Ram Piari was the legally married wife of the appellant. The learned judges of the High Court however found the evidence of the 4 witnesses who claimed to have been present at the marriage of the plaintiff to be quite uncon vincing, and they pointed out that the case of the plaintiff being that his marriage had been performed with great pomp and show, it was surprising that the evidence relating to it should be confined to 4 persons one of whom appeared to be a hired witness ' and the other 3 were interested persons. As to the evidence of the 4 persons who claim to have been present at the plaintiff 's marriage, we find ourselves in agreement with the view taken by the High Court. The evidence of the other witnesses undoubtedly establishes the fact that for some years the plaintiff and Ram Piari lived together as husband and wife and were treated as such, that Paras Ram, brother of Ram Piari, addressed the plaintiff as jija (a common name for sister 's husband), and that the plaintiff acted as Paras Ram 's guardian when the latter was admitted to D.A.V. School and was described as his brother in law in some of the entries in the school register. The learned Judges of the High Court considered that the evi dence of certain witnesses who deposed to some of the facts on which the lower court relied, did not strictly comply with the requirements of section 50 of the Indian Evidence Act,firstly because the witnesses had no special means of knowledge on the subject of relationship between the plain tiff and Ram Piari, and secondly because what section 50 made relevant was not mere opinion but opinion "expressed by conduct" of persons who as members of the family or other wise, had special means of knowledge. It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari 833 lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari. In the first place, the plaintiff has not examined any of his near relations such as his brother, or collaterals living in Ajnoha, or any co villagers, whose presence at the marriage would have been far more probable than the presence of the witnesses examined by him. He has also not examined any of the witnesses residing in or round about Holta estate in spite of the fact that his own case is that the marriage was celebrated with great pomp and show. was suggested in the courts below that since defendant No. 2 is an influen tial person, no local witnesses would be available to sup port the plaintiff 's case, but the High Court has very fully dealt with this aspect and pointed out firstly that Raj Kumari had litigation with a number of persons belonging to Palampur and such persons would not be under her influence, and secondly that no gold reason has been shown why Raj Kumari, who is alleged to have brought about the marriage between the plaintiff and Ram Hari, should take a completely hostile attitude towards him. Then again, neither the parents nor any of the relations of Ram Piari have been examined to support the plaintiff. On the other hand, Ram Hari 's own mother, Ganga, has deposed that the former was never married to the plaintiff, and the statement made by Ram Piari in her will, which is a very valuable piece of evidence, is to the same effect. It is also in credible that in spite of the love which Ram Piari is said to have had for the plaintiff, she left him 834 and went away to live with Raj Kumari, and that during the long period when Ram Piari was away, the plaintiff should never have visited her or made enquiries about her and his alleged daughter, Parvin Kumari. This is all the more strange, since it is stated by the plaintiff that Ram Piari continued to love him and that she and Raj Kumari inwardly hated each other. Parvin Kumari says in her deposition that she had never seen her father and that when she reached the age of discretion she found herself living at Palampur. The conduct of the plaintiff in showing such complete indiffer ence to his wife and daughter as is disclosed in his evi dence is most unnatural, and no less unnatural is his con duct in instituting a suit to deprive her of properties which had come into her hands not by reason of anything done by him but as a result of the generosity shown towards her by a stranger. The plaintiff 's case that the properties in dispute were acquired by Ram Piari with the aid of his money is wholly untrue, and it has been rightly found by both the courts that they were acquired for her by Raj Kumari. The plaintiff 's witnesses have tried to exaggerate his means to support his case, but the truth appears to be that he had hardly any means of his own beyond the somewhat meagre salary which he used to draw as a court typist. Several of the witnesses including an Advocate and Ram Piari 's own mother have deposed that Ram Piari had eloped with a driver and had remained away from Holta estate for a number of years. Even the Subordinate Judge has not reject ed the story of elopement, and though there is no reliable evidence as to when and how she met the plaintiff, the possibility of her having lived with him for some years even though they were not legally married, cannot be ruled out. The plaintiff claims to be a Rajput of high caste, and it appears to us rather unusual that he should not marry in his own tribe but should take in marriage a Gurkha girl who was born of very poor parents and belonged to a place far away from where he himself lived. 835 The fact that Paras Ram lived with the plaintiff for some time and addressed the latter as jija, and that the plaintiff described himself as guardian and brother in law of Paras Ram, is as consistent with the defence version as with the plaintiff 'section If Paras Ram 's parents had been in affluent circumstances so as to be able to maintain and educate him, the case would have been different, but there is evidence to show that Chandar Bir was very poor and both his wife and daughter had to work as servants of Raj Kumari to earn their living. In our opinion, the conclusion arrived at by the High Court has not been shown by the plaintiff to be incorrect, and whatever the true facts may be, we are compelled to hold that in the present state of evidence the plaintiff has not succeeded in establishing that Ram Piari was his legally wedded wife. In the view we have taken, it is not necessary to deal with the question whether succession to the properties in dispute will be governed by customary law or by Hindu law, but since it was argued before us at very great length, we think that we might state the contentions of the parties and the difficulties which in our opinion arise in dealing with those contentions on the material before us. Before doing so, however, we wish to set out briefly certain gener al principles which we think should be kept in view in dealing with questions of customary law. They may be summa rized as follows : (1) It should be recognized that many of the agricul tural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of ' the . (2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by custom ary law must prove that he is so governed and must also prove the existence of the 836 custom set up by him. See Daya Ram vs Sohel Singh and Others (1), Abdul Hussein Khan vs Bibi Song Dero C). (3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invar iability as to show that it has, by common consent, been submitted to as the established governing rule of a particu lar locality. See Mr. Subhani vs Nawab(3). (4) A custom may be proved by general evidence as to its existence by members of the tribe or family who would natu rally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj i am or Manual of Customary Law. See Abroad Khan vs Mt. Channi Bibi(4). (5) No statutory presumption attaches to the contents of a Riwaj i am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj i am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj i am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See Beg vs Allah Ditta (5), Saleh (1) 110 P.R. (1906) 390 at 410 (4) A.I.R. 1925 P.C. 267 at 271. (2) LR. 45 I.A. 10. (5) A.I.R. 1916 P.C. 129 at 131. (3) A.I.R. 1941 P.C. 21 at 32. 837 Mohammad vs Zawar Hussain(1);Mt. Subhani vs Nawab(2). (6) When the question of custom applicable to an agri culturist is raised, it is open *to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See Muhammad Hayat Khan vs Sandhe Khan and Others(3), Muzaffar Muhammad vs Imam Din(4). (7) The opinions expressed by the compiler of a Riwaj i am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the compiler 's remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicabil ity of the custom and any special sense in which the expo nents of the custom expressed themselves in regard to it, such remarks should be given due weight. See Narain Singh vs Mt. Basant Kaur(5), Mt. Chinto vs Thelur (6); Khedam Hussain vs Mohammad Hussain(7). Bearing these principles in mind, the difficulty which appears to us to beset the case of the plaintiff may be briefly stated as follows : The basis of the plaintiff 's case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he Had sold most, if not (1)A.I.R.1944 P.C.18. (5) A.I.R. 1935 Lab. 419 at 421, 422. (2) A.I.R. 1941 P.C. 21 at 25. (6) A.I.R. 1985 Lah. (5)55 P.R. (1906) 270 at 274. (7) A.I.R. 1941 Lah. 73 at 79 (4) I.L.R. , 125. 838 all, of his property in the village to which he belonged, that his ancestors were bankers or sahukars, that his father was a clerk of a lawyer practising in Hoshiarpur district and that he himself was a clerk in the District Judge 's court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that he maintained connection with them. In our opinion. the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom would depend. Again, though according to the answer to question 11 in the Riwaj i am of Hoshiarpur district, the general custom governing the Rajputs of that district would seem to be that a marriage within the tribe only is lawful, the plaintiff did not marry a Rajput of his district but is said to have married a Gurkha woman, about whose caste and char acter the evidence is conflicting, and whose family was admittedly not governed by the "Riwaj iam" upon which the plaintiff relies. If both the husband and the wife are shown to belong to the same tribe and to be governed by the same custom, then the difficulty in deciding what would be the rule of succession on the death of the wife in regard to the wife 's self acquired property may not be very great. But even if it be assumed that Ram Piari was lawfully married to the plaintiff, the serious question to be decided would be whether succession to the property which Ram Piari received as gift from a stranger and which she owned in her own right, would be governed by the custom governing her hus band 's family and not her own. Such marriage as is said to have been contracted by the plaintiff being evidently an event of rare occurrence, the rule of succession set up by him cannot be said to derive its force from long usage. As we have pointed out, a custom in order to be binding must derive its force from the fact that by long usage it has obtained the force of law; and if an Occasion never arose to apply the rule of succession 839 invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would be wanting. When the matter is further probed, it appears that the plaintiff relies not only on custom but partly on custom 'and partly on the rule of Hindu law, namely, that the law which governs the husband will govern the wife also. Whether the latter rule can be extended to a case like the present is a question of some difficulty, on which, as at present advised, we would reserve our opinion. In the cir cumstances. we prefer to leave the issue of custom undecid ed. and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plain tiff 's marriage with Ram Piari has not been clearly estab lished. The appeal therefore fails and it is dismissed. but in the circumstances of the case and particularly since the appellant has appealed in forma pauperis, we direct that the parties will bear their own costs in all the courts. Appeal dismissed. [/INST]One S was employed by the appellant as a secretary and one of the terms of employment was that the appointment may be terminated on one month 's notice on either side. The appel lant was thoroughly dissatisfied with the work of S and dis approved of her conduct in joining the union. Purporting to act under the contract, the appellant terminated the services of S and gave her one month 's pay in lieu of notice. No enquiry was held by the appellant before terminating the services of section The industrial tribunal held that the termination of services amounted to a dismissal for misconduct and since no enquiry was held it was illegal and unjustified and it passed an order for the reinstatement of section The appellant contended that as the termination was strictly in accordance with the terms of the contract it could not be challenged before an industrial tribunal, that even if no enquiry was held the order of discharge was justified as the evidence led before the tribunal established the misconduct of S and that at the highest it was a case for awarding compensation and not for reinstatement: Held, that the discharge amounted to punishment for alleged misconduct and was unjustified in the absence of a proper enquiry. Even where the discharge was in exercise of the power under the contract it was competent for the tribunal to enquire whether the discharge had been effected in the bona fide exercise of that power. If the tribunal found that the purported exercise of the power was in fact the result of the misconduct alleged then it would be justified in dealing with the dispute on the basis that the order of discharge was in effect an order of dismissal. Western India Automobile Association vs Industrial Tribunal, Bombay, , followed. 458 Held, further, that in the circumstances of the present case compensation and not reinstatement was the appropriate relief that should have been awarded. The normal rule was that in cases of wrongful dismissal the dismissed employee was entitled to reinstatement but there could be cases where it would not be expedient to follow the normal rule. In the present case the appellant 's office was a small one and S occupied a position of some confidence. The appellant was dissatisfied with the work of S and had lost confidence in her. In such a case it would not be fair either to the employer or the employee to direct reinstatement. </s>
<s>[INST] Summarize the judgementivil Appeal Nos. 931/77 & 200/78. Appeals by Certificate from the Judgment and Decree dated 1.4.76 and from the Judgment and Decree dated 19.6.1975 of the Andhra Pradesh High Court in A.S. NO. 71/73 and Appeal No. 259 of 1972. B. Kanta Rao for the Appellants. C. Sitaramiah, and B. Parthasarthi for the Respondents. The Judgment of the Court was delivered by: K.RAMASWAMY, J. Civil Appeal Nos. 931 of 1977 and 200 of 1978 relate to the same dispute though arose from two suits and separate judgements. The Bench that heard Civil appeal No. 931 of 1977 directed on January 24, 1991 to list Civil Appeal No. 200 of 1978 for common disposal. Civil Appeal No. 200 of 1978 arose out of O.S. No 118 of 1968 on the file of the Court of Add. Subordinate Judge. Guntur and Appeal No. 259 at 1972 dated June 19, 1975 of the A.P. High Court. The suit for possession and mesne profits was laid by the descendants of Nori Lakshmipathi Somayaajulu of Vatticherukuru, Guntur Taluq and District, for short `N.L.S. '. The dispute relates to the tank known as `Nori Lakshmipathi Somayajulu 's Western Tank ' ``Vooracheruva ' ' (Village Tank). It consists of 100 acres of which roughly 30 acres is covered by water spread area marked A ' Schedule `B ' Schedule consists of 70 acres (silted up area). The tank was dug in Fasli 1190 (1700 A.D.) Zamindar, Raja Mainikya Rao made a grant of the land for digging the tank and its preservation, maintenance and repairs. It is the descendants ' case that it is a private tank enjoyed by the `grantee ', N.L.S. as owner and thereafter the descendants and perfected the title by prescription. It was found as a fact by the High Court and the descendants are unable to persuade us from the evidence to differ from the findings that the tank is a ``public tank ' ' dug by 541 the village. The descendants ' plea and evidence adduced in support thereof that it is their private tank, was negated by both the courts. The Trial Court found that the tank is a `public trust ', the appellants would be hereditary trustees and could be removed only by taking action under section 77 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1966 for short `the Endowments Act '. It also held that the descendants acquired title by adverse possession. Accordingly the suit for possession was decreed relegating to file a separate application for meesne profits. On appeal the High Court reversed the decree and held that the tank is a public tank and the tank and the lands stood vested in the Gram Panchayat under A.P. Gram Panchayat Act 2 of 1964 for short `the Act '. Since the Gram panchayat was in possession from July 7, 1965, though dispossessed the descendants forcibly and as the suit is not under section 6 of the but one based on title, it called for no interference. It dismissed the suit. This Court granted leave to appeal under Article 136. Civil Appeal No. 931 of 1977 arose out of the suit for possession in O.S. No. 57 of 1966 on the file of the court of Subordinate Judge at Guntur filed by the Gram Panchayat against the descendants. The suit was dismissed by the Trial Court and was confirmed by the High Court in A.S. No. 71 of 1973 and the High Court granted leave under article 133 on Dec. 10. 1976. The pleadings are the same as in the other suit. In addition the descendants further pleaded in the written statement that the Gram Panchayat unlawfully took possession of the tank on July 7, 1965. They also acquired title by grant of ryotwari patta under section 3 of the A.P. Inams (Abolition and Conversion into Ryotwari) Act (Act XXXVII of 1956), for short `the Inams Act '. The Gram Panchayat had no manner of right to interfere with their possession and enjoyment. They also pleaded and adduced evidence that they were leasing out the fishery rights and grass and trees grown on the land. The income was being utilized for the repairs of tank. The Trial Court and the High Court found that the lands were endowed to N.L.S. for the maintenance of the tank and the descendants obtained ryotwari patta under Inams Act and are entitled to remain in possession and enjoyment as owners subject to maintain the tank. Accordingly the suit was dismissed. On appeal in A.S. No. 71 of 1973 by judgment dated April 1, 1976 the High Court confirmed the decree on further finding that by operation of section 14 of the Inams Act, Civil Suit was barred. Thus both the appeals are before this Court. 542 In Civil Appeal No. 200 of 1978, Shri Seetharamaiah learned Senior Counsel for the descendants N.L.S. have no exclusive personal right title or interest in the tank and the appurtenant total land of 100 acres. In view of the entries of the Inams Fair Register for short `I.F.R., ' it is a public trust and not a public tank. Unless recourse is had to remove them from trusteeship under section 77 of the Endowments Act, the appellants cannot be dispossessed. Since admittedly N.L.S. and the descendants were enjoying the property till date of dispossession, presumption of the continuance of the enjoyment anterior thereto as owners could be drawn. The High Court thereby committed error of law in holding that the lands stood vested in the Gram Panchayat under the Act and that it is a public tank. In Civil Appeal No. 931 of 1977, it was further contended that since the grant of Ryotwari patta under the Inams Act had became final section 14 thereof bars the jurisdiction of the Civil Court to entertain the suit. Shri B.Kanta Rao, learned counsel for the Gram Panchayat contended that the finding of the High Court that the tank and the appurtenant land, namely, the plaint schedule property, as `public tank ', is based on evidence that the tank was dug by the villagers and that they have been using for their drinking purposes and the cattle is a finding of fact. By operation of sections 85 and 64 of the Act, the land and the tank stood vested in the Gram Panchayat. Entries in the I.F.R. establishes that the grant of the land was for preservation, maintenance and repairs of the tank. Therefore, the grant should be in favour of the institution, namely, the tank. The pattas obtained by the descendants should be for the benefit of the tank, though granted in individual names. By operation of section 85 of the Act, the descendants acquired no personal title to the property. Ryotwari patta is only for the purpose of land revenue. The Gram Panchayat acquired absolute right title and interest in the land. The Civil Suit is not a bar on the facts in this case. Before appreciating the diverse contentions, the facts emerged from the findings in both the appeals could be gathered thus. Admittedly the Zamindar. Raja Manikya Rao granted 100 acres of land in Inam village to dig the tank and the grant was for its preservation and maintenance, the grant was in favour of N.L.S. In 1700 A.P., i.e. 1190 Fasli, the tank was dug by the villagers and ever since the villagers have been using the fresh water tank for their drinking purposes and of the cattle and perfected their right by prescription. In course of time the tank was silted up and in and around 30 acres the water spread area, fresh water is existing. No. repairs were effected by the descendants. The rest of the land was silted up. Grass and trees have been 543 grown thereon and was being enjoyed. On July 7, 1965, the Gram Panchayat took unilateral possession of the tank and ever since was exercising possession, supervision and control over it. After expiry of three years from the date of dispossession, the descendants filed O.S. No.57 of 1966 for possession based on title. Earlier thereto the Gram Panchayat field the suit for possession. Under the Inams Act, Ryotwari patta under section 3 was granted to the descendants in individual capacity and on appeal the Revenue Divisional Officer, Guntur confirmed the same. It became final as it was not challenged by filing any writ petition. Both the suits now stood dismissed. The counsel on other side have taken us through the evidence and we have carefully scanned the evidence. From these facts the first question emerges is whether the tank and the appurtenant land stood vested in Gram panchayat. Section 64 of the Act reads thus: ``Vesting of common property or income in Gram Panchayat Any property or income which by custom belongs to or has been administered for the benefit of the villagers is common, or the holders in common of village land generally or of land of a particular description or of lands under a particular source of irrigation, shall vest in the Gram Panchayat and be administered by it for the benefit of the villagers or holders aforesaid ' '. Section 85 reads thus: ``Vesting of water works in Gram Panchayat (1) All public water courses, springs, reservoirs, tanks, cisterns, fountains, wells, ponds an other water works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Gram Panchayat or otherwise for the use or benefit of the public, and also any adjacent land, not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its control ' '. Provided that nothing in this sub section shall apply to any work which is, or is connected with, a work of irrigation or 544 to any adjacent land appertaining to any such work. (2) Subject to such restrictions and control as may be prescribed, the Gram Panchayat shall have the fishery rights in any water work vested in it under sub section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose. (3) The Government may, by notification in the Andhra Pradesh Gazettee, define or limit such control or may assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Gram Panchayat and giving due regard to its objections, if any ' '. (emphasis supplied) A bird 's eye view of the provisions brings out vividly that any property or income which belongs to or has been administered for the benefit of the villagers in common or the holders in any of the village land generally or of land of a particular description or of lands under particular source of irrigation shall vest in the Gram Panchayat and be administered by it for the benefit of the villagers or holders aforesaid. The lands or income use for communal purpose shall either belong to the GRam Panchayat or has been administered by the Gram Panchayat. It is not the case of the Gram Panchayat nor any finding recorded by the courts below to the effect. So section 64 is not attracted, though the villagers acquired prescriptive right to use the water from the tank for their use and of their cattle. All public water courses, springs, reservoirs, tanks cisterns, etc. and other water works either existing on the date of the Act or made thereafter by the Gram Panchayat, or otherwise including those use by the public ripened into prescriptive right for the use and benefit of the public and also adjacent or any appurtenant land not being private property shall vest in the gram Panchayat under section 85(1) and be subject to its control. The proviso is not relevant for the purpose of this case. Under sub s (2), the Gram Panchayat shall have fishery rights therein subject to any restriction or control prescribed by the Govt. by rules. The Gram Panchayat also shall have the right to use the adjacent land appertaining thereto for planting trees and enjoying the usufruct thereof or for like purposes. Sub section (3) gives over riding power to 545 the Govt., by a notification published in the A.P. Gazettee to define or limit the control or supervision by the Gram Panchayat or the Govt. may assume administration of any public source of water supply and public land adjacent and appertaining thereto. The only condition precedent thereto is prior consultation of the Gram Panchayat and to have due regard to any objections. If raised, by the Gram Panchayat and issue notification published in the Gazette resuming the water sources or the land etc. The word `vest ' clothes varied colours from the context and situation in which the word came to be used in a statute or rule. In Chamber 's Mid Century Dictionary at p. 1230 defined ``vesting ' ' in the legal sense `to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right '. In Black 's Law Dictionary, 5th Edition at p. 1401, the word, `vest ', to give an immediate, fixed right of present or future enjoyment, to accure to, to be fixed, to take effect, to clothe with possession, to deliver full possession of land or of an estate, to give seisin to enfeoff. In Stroud 's Judicial Dictionary, 4th Edition, Vol. 5 at p. 2938, the word `vested ' was defined in several senses. At p. 2940 in item 12 it is stated thus `as to the interest acquired by public bodies, created for a particular purpose, in works such as embankments which are vested in them by statue, see Port of London Authority vs Canvey Island Commissioners, in which it was held that the statutory vesting was to construct the sea wall against inundation or damages etc. and did not acquire fee simple. Item 4 at p. 2939, the word `vest ', in the absence of a context, is usually taken to mean vest in interest rather than vest in possession '. In item 8 to `vest ',. ``generally means to give the property in ' '. Thus the word `vest ' bears variable colour taking its content from the context in which it came to be used. Take for instance, the land acquired under the Land Acquisition Act. By operation of sections 16 & 17 thereof, the property so acquired shall vest absolutely in the Government free from all encumbrances. Thereby, absolute right, title and interest is vested in the Government without any limitation divesting the pre existing rights of its owner. Similarly, under section 56 of the , the estate of the insolvent vests in the receiver only for the purpose of its administration and to pay off the debts to the creditors. The receiver acquired no personal interest of his own in the property. The receiver appointed by the court takes possession of the properties in the suit on behalf of the court and administer the property on behalf of the ultimate successful party as an officer of the court and he has no personal interest in the property vested thereunder. In Fruit and Vegetable Merchants Union vs Delhi 546 Improvement Trust, [1957] SCR p. 1 the question was whether the Delhi Improvement Trust was vested of the Nazul land belonging to the Government with absolute right, when the property was entrusted under the scheme for construction of the markets etc. It was held by this court that placing the property at the disposal of the trust did not signify that the Government had divested itself of its title to the property and transferred the same to the trust. The clauses in the agreement show that the Government had created the Trust as its agent not on permanent basis but as a convenient mode of having the scheme of improvement implemented by the Trust subject to the control of the Government. The word `vesting ' in section 85 would signify that the water courses and tanks, lands etc. used by the public to such an extent as to give a prescriptive right to their use, are vested in the Gram Panchayat, and placed them under the control and supervision of the Gram Panchayat. It confers no absolute or full title. It was open to the Government, even after vesting, to place restrictions upon the Gram Panchayat in the matter or enjoyment and use of such tanks, and appurtenant lands etc. Sub section (3) of section 85 expressly makes the matter clear. It empowers the Government to assume the administration of any such tank or lands or to define or limit the control which is vested in the Gram Panchayat. Gram Panchayat being a statutory body is bound by the restrictions imposed by sub S3 (3) The assumption of management by the Govt. would be subject to the prescriptive right of the villagers if any. The Division Bench in Gram Panchayat, mandapaka & Ors. V. Distt. Collector Eluru & Ors., AIR 1981 AP 15 considered the meaning of the word `vesting and correctly laid the law in its interpreting section 85 of the Act. Anna Narasimha Rao & Ors. V. Kurra Venkata Narasayya & Ors., [1981] 1 AWR p. 325 relied on by Shri Kanta Rao, though supports his contention that the vesting of the tanks etc. in the Gram panchayat was with absolute eights and the village community rights would over ride against rights of the Government, in our view the law was not correctly laid down. Under A.P. Land Encroachment Act, 1905; Talengana Area Land Revenue Act, relevant Abolition Act like A.P. Estates (Abolition and Conversion into Ryotwari) Act, 1948, Inams Abolition Act etc. give absolute rights of vesting in the State over the forest land, tanks, rivers, mines, poramboke, land, etc. free from all encumbrances and the pre existing rights in the other land stood abolished and will be subject to the grant of Ryotwari patta etc. It is also settled law that grant of Ryotwari patta is not a title but a right coupled with possession to remain in occupation and enjoyment subject to payment of the land revenue to the State. Therefore, we 547 agree with the High Court that the tank is public tank and not a public trust and that under section 85(1) and section 64, the vesting of the tanks, the appurtenant land and the common land is only for the purpose of possession, supervision, control and use thereof for the villagers for common use subject to the over riding title by the Government and its assumption of management should be in terms of sub section (3) of section 85 of the Act and subject to the prescriptive right in the water; water spread tank for common use. Admittedly, N.S.L. or the descendants used the plaint schedule property till July 7, 1965. The question then is what rights the descendants acquired therein. Admittedly within six months from the date of dispossession no suit under section 6 of the was laid. Therefore, though the Gram Panchayat was not justified to take law into its own hand to take unilateral possession without due course of law, since the suit filed by the descendants was based on title the descendants in Civil Appeal No.200 of 1978 have to establish their better title. Their claim was based on the Ryotwari patta granted under section 3 of the Inams Act. Therefore, entries in I.F.R. bear great evidenciary value to ascertain their rights. In Arunachalam Chetty vs Venkatachalpathi Garu Swamigal, AIR 1919 PC. p. 62 at 65 the Judicial Committee of the Privy Council considered the effect of the columns in the I.F.R. and held thus : ``It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free. But it must not be forgotten that the preparation of this Register was a great act of State, and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioners through officials made enquiry on the spot, heard evidence and examined documents, and with regard to each individual property, the government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the board, when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register ' '. 548 Construction of the relevant entries in the I.F.R. is a question of law. Col. 2, the general class to which the land belongs, described as `Dharmadayam ' endowment for a charitable ``institution ' ', Col. 7, description of tenure for the ``preservation and repairs ' ' of Nori Lakshmipathi Somayajulu Western Tanks at Vatticherkuru, Col. 9 tax free, Col. 10, nature of the tenure, permanent, Col. 11, guarantor of the land Raja Manikya Rao in 1190 Fasli (1700 A.D.), Col 13, name of the original grantee `Nori Lakshmipathi Somayajulu ', Col. 21 to be confirmed under usual conditions of service and Col. 22, confirmed. In the survey and settlement record of the year 1906 of the same columns have been repeated. The land in the tank were classified as Village `Poramboke ' and the tank as `village tank '. In the village map also the same remarks were reiterated. Therefore, the entries in the I.F.R. are great acts of the State and coupled with the entries in the survey and settlement record furnishes unimpeachable evidence. On construction of these documents, it would clearly emerge that the original grant was made for the preservation and maintenance of the tank and tax free Inam land was granted for that purpose through it was in the name of the individual granted. We are of the view that the grant was for the preservation and maintenance of the tank. In K.V. Krishna Rao vs Sub Collector, Ongole, ; this court held under the Inam Act that the tank is a charitable institution. Thereby we conclude that the grant was for the institution. Under section 3 of the Inams Act, the enquiry should be whether (1) a particular land is Inam land; (2) Inam land in a Ryotwari, Zamindar or Inam Village; and (3) is held by any institution. In view of the finding that the grant was for the preservation and maintenance of tank, the Inam, land in an inam village was held by the institution, namely, the tank. Ryotwari patta shall, therefore, be in favour of the institution. Undoubtedly the ryotwari patta was granted in favour of the descendants. In Nori Venkatarama Dikshitulu & Ors. vs Ravi Venkatappayya & Ors., [1959] 2 A.W.R.357 in respect of the tope dedicated to the public benefits in the same village, namely Vatticherukuru, one of the question that arose was whether the patta granted in the individuals ' names, would be their individual property or for the endowment. The Division Bench held that though the pattas were obtained in the individuals ' name, the trustees of an institution cannot derive personal advantage from the administration of the trust property. It was held that the grant of patta was for the maintenance of the trust. We approve that the law was correctly laid down. In Krishan Nair Boppudi Punniah & Ors. vs Sri Lakshmi Narasimhaswamy Varu, by its trustees & Ors. , [1963] 1 A.W.R. 214 549 relied on by Shri Sitaramaiah, on the basis of the entries in I.F.R., the finding was that the grant was in favour of the individual burdened with service and not to an institution. Therefore, the ratio therein does not assist us to the facts in this case. Moreover, in view of the stand taken by Shri Sitaramaiah that the lands are not the private property of N.L.S. or his descendants but held by them as trustees, the grant of Ryotwari patta to the individuals by necessary implication, as a corollary, is of no consequence. The question then is whether the enjoyment of the usufruct by the descendants would clothe them with any right as owners of the land. In view of the concurrent finding that descendants did not acquire title by prescription, the passage in Tagore Law Lecture, `Hindu Religious Endowment and Institutions ' at p. 6 relied on by Shri Sitaramaiah to the effect `dedication of tanks and trees ' as private property also renders no assistance to the descendants. Undoubtedly, a presumption of an origin in lawful title could be drawn, as held in Syed Md. Mazaffaralmusavi vs Bibi Jabeda & Ors., AIR (1930) P.C. 1031 that the court has so often readily made presumption in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forth coming. It is not a mere branch of the law of evidence. It was resorted to because of the failure of actual evidence. The matter is one of presumption based upon the policy of law. It was also further held that it is not a presumption to be capriciously made nor is it one which a certain class of possessor is entitled to, de jure. In a case such as the one in question where it was necessary to indicate what particular kind of lawful title was being presumed, the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being presumed without doing violence to the probabilities of the case. It is the completion of a right to which circumstances clearly point where time had obliterated any record of the original commencement. The longer the period within which and the remoter the time when first a grant might be reasonably supposed to have occurred the less force there is an objection that the grant could not have been lawful. In Bhojraj vs Sita Ram & Ors., AIR (1936) P.C. 60 it was further held that the presumption, not to supplement but to contradict the evidence would be out of place. A presumption should be allowed to fill in gaps disclosed in the evidence. But the documentary evidence in the I.F.R. and the survey and settlement records furnish the unerring evidence. Though the original grant was not produced, the grant was for the institution and not to the individuals. Therefore, the colour of title though enabled them to enjoy the usufruct for personal use, once the tank and the appurtenant land was found to be public tank, the descendants acquired no personal right over it. The decision in Bhupathiraju 550 Venkatapathiraju & Ors. vs The President, Taluq Board, Naraspur & Ors., [1913]19.I.C.727(Mad.) (D.B.) relied by Shri Sitaramaiah the finding was that the grant was to the plaintiffs ' family subject to conditions of service. Their right to take the usufruct of the trees therein was held to be for the benefit of the grantee. In that view its ratio cannot be applied to the facts in this case. In M. Srinivasacharyulu & Ors. vs Dinawahi Pratyanga Rao & Ors., one of the contentions raised was that since the produce was being enjoyed by the trustees for over many years for personal use, it must be construed that the trust was for personal benefit of archakas. It was repelled holding that it would be a dangerous proposition to lay down that if the trustees of the religious trusts have for many years being applying the income to their own personal use, the trust deed must be construed in the light of such conduct. The decree of the trial court that the enjoyment was for the institution was upheld. The finding in Civil Appeal No. 931 of 1977, that since the endowment was the dashabandam the descendants are entitled to the Ryotwari patta cannot be upheld. Dashabandam grant of land burdened with the service of a public nature was made at a time when maintenance of water sources and water courses to the benefits of the villagers was left to the villagers. In Ravipati Kotayya & Anr.v. Ramansami Subbaraydu & Ors., it was held that in the case of dashabandam inams situated in Ryotwari villages, the government has the right of resumption on default of service. The lands burdened with dashabandam service which is service of public nature, are inclinable as being against public policy. We, therefore, hold that the descendants, though enjoyed the income from the properties, did not effect the repairs and neglected the maintenance and upkeep of the tank. They rendered the tank disused and abandoned. By operation of s.85 of the Act the lands and tank stood vested in the Gram Panchayat for control, management and supervision. Undoubtedly, a hereditary trustee is entitled to be the Chairman of a Board of Trustees, if any, constituted under the Endowment Act or else be in exclusive possession and management of the public trust registered thereunder until he is removed as per the procedure provided therein. Since the tank always remained a public tank and not being a public trust, the Endowment Act does not apply. therefore, the question of initiating action under section 77 of the Endowment Act for removal of the descendants as trustees does not arise. In the suit of the descendants the High Court did not consider the effect of grant of ryotwari patta under Inams Act and in the suit of the 551 Gram (Village) Panchayat the effect of vesting under s.85 of the Act on the grant of ryotwari patta was not considered. Only section 14 i.e. the bar of civil suit was focussed. Consequently both the suits were dismissed by different division benches. The question is whether the suit is maintainable. All communal lands, porambokes, tanks, etc., in inam villages shall vest in the government under s.2A of Inams Act free from all encumbrances. Section 3 determines the inam lands whether held by the individual or the institution, provides procedure for determination and s.3(4) gives right of appeal. Section 4 converts those lands into ryotwari lands and accords entitlement to grant of ryotwari patta. Section 5 gives power to restitute the lands to the tenants in occupation though were ejected between specified dates. Section 7 gives power to grant ryotwari patta to the tenants to the extent of two thirds share in the land and one third to the land holder. If it was held by the institution, two third share would be to the institution and one third to the tenants. Section 3 grants right of permanent occupancy to the tenants in inam lands held by institutions. Section 9 prescribes procedure for eviction of the tenants having right of permanent occupancy. Section 10 A provides right to ryotwari patta to tenants in Ryotwari or Zamindari village with the right of permanent occupancy, even in the lands, held under customary right etc. Section 12 fastens liability on the ryotwari pattadars to pay land assessment. Section 13 gives exclusive power of jurisdiction to Tehsildar, the Revenue court and the collector to try the suit as per the procedure as of a Civil Court under the Code of Civil Procedure. Section 14 of the Inams Act reads thus: 14. " Bar of jurisdiction of Civil Courts: No suit or other proceedings shall be instituted in any Civil Court to set aside or modify any decision of the Tahsildar, the Revenue Court, or the Collector under this Act, except where such decision is obtained by misrepresentation, fraud or collusion of parties.". Section 14 A and Section 15 provides that: "14 A Revision (1) Notwithstanding anything contained in this Act, the Board of Revenue may, at any time either suo moto or on application made to it, call for and examine the records relating to any proceedings taken by the Tahsildar, the Revenue Court or the Collector under this act for the purpose of satisfying itself as to the regularity of 552 such proceeding or the correctness, legality or propriety of any decision made or order passed therein; and if, in any case, it appears to the Board of revenue that any such decision or order should be modified, annulled, reserved or remitted for consideration, it may pass order accordingly. (2) No order prejudicial to any person shall be passed under sub section (1) unless such person has been given an opportunity of making his representation. Act to override other laws: "Unless otherwise expressly provided in this Act the provision of this act and of any orders and Rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law". The Constitution intends to herald an egalitarian social order by implementing the goals of socio economic justice set down in the Preamble of the Constitution. In that regard the Constitution created positive duties on the State in Part IV towards individuals. The Parliament and the State legislatures made diverse laws to restructure the social order; created rights in favour of the citizens; conferred power and jurisdiction on the hierarchy of Tribunals or the authorities constituted thereunder and given finality to their orders or decisions and divested the jurisdiction of the established civil courts expressly or by necessary implication. The Inam Act is a step in that direction as part of Estate Abolition Act. Therefore, departure in the allocation of the judicial functions would not be viewed with disfavour for creating the new forums and entrusting the duties under the statutes to implement socio economic and fiscal laws. We have to consider, when questioned, why the legislature made this departure. The reason is obvious. The tradition bound civil Courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under C.P.C are not suited to the needed expeditious dispensation. The adjudicatory system provided in the new forums is cheap and rapid. The procedure before the Tribunal is simple and not hide bound by the intricate procedure of pleadings, trial, admissibility of the evidence and proof of facts according to law. Therefore, there is abundant flexibility in the discharge of the functions with greater expedition and inexpensiveness. In order to find out the purpose in creating the Tribunals under 553 the statutes and the meaning of particular provision in social legislation, the Court would adopt the purposive approach to ascertain the social ends envisaged in the Act, to consider scheme of the Act as an integrated whole and practical means by which it was sought to be effectuated to achieve them. Meticulous lexographic analysis of words and phrases and sentences should be subordinate to this purposive approach. The dynamics of the interpretative functioning of the Court is to reflect the contemporary needs and the prevailing values consistent with the constitutional and legislative declaration of the policy envisaged in the statute under consideration. In Denna vs Union of India, ; this Court held that the "Law is a dynamic science, the social utility of which consists in its ability to keep abreast of emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Law is not static. The purpose of Law is to serve the needs of life". The law should, therefore, respond to the clarion call of social imperatives evolve in that process functional approach as means to subserve "social promises" set out in the Preamble, directive principles and the fundamental Rights of the Constitution. It is seen that the Inam 's Act is an integral part of the scheme of the Andhra Pradesh Estates (Aboilition and Conservation into Ryotwari) Act, 26 of 1984 for short 'Estate Abolition Act ' to cover the left over minor Inams. It determined the pre existing rights of the Inamdars and the religious institutions; envisages grant of ryotwari patta afresh to the concerned and seeks to confer permanent occupancy rights on the tenants. It also regulates the relationship between institutions and its tenants. It created appellate and revisional and forums and declared finality to the orders passed by the tribunals and expressly excluded the jurisdiction of the Civil Court, notwithstanding anything contained in any other law or inconsistent therewith the Inams Act shall prevail. The exception engrafted was that a suit would lie to challenge the decision obtained by fraud, misrepresentation and collusion by parties. Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the Court naturally feels inclined to consider whether remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate. In cases where exclusion of the Civil Court 's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question 554 and the adequacy or sufficiency of the remedy provided for by it may be relevant, but cannot be decisive. Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and in conceivable circumstances might become even decisive. The jurisdiction of a Tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact. Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the tribunal has to consider. At the inception of an enquiry by a Tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the Tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be Tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the Tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise had. Except such tribunals of limited jurisdiction when the statute not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly. If it has jurisdiction to do right, it has jurisdiction to do wrong. It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final. The questions to be asked, therefore, are whether the Tribunal has jurisdiction under Inam Act to decide for itself finally; whether the institution or the Inamdar or the tenant is entitled to ryotwari patta under sections 3,4 and 7 and whether the Tribunal is of a limited jurisdiction and its decision on the issue of patta is a collateral fact. The consideration as to exclusion of the jurisdiction of Civil Court is no longer res integra. This Court in bead roll of decisions considered this question in diverse situations. In Kamala Mills Ltd. vs State of Bombay; , the questions arose were whether an assessment made in violation of the Bombay Sales Tax Act could claim the status of an assessment made under that Act, and whether the nature of the transactions was a decision of collateral fact. A Bench of seven Judges of this Court held that if it appears that a statute creates a special right or liability and provides for the determination of the right or liability to be dealt with by tribunals specially constituted in that 555 behalf would be considered whether all questions of said right and liability shall be determined by the tribunals so constituted and it becomes pertinent to enquire whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. It was held that the Court was satisfied that the Act provided all the remedies associated with actions in Civil Courts and the remedy for refund of the tax illegally collected was provided and it was not collateral. Section 20 prohibits such a claim being made before an ordinary Civil Court and held that the civil suit was not maintainable. The leading decision of the Privy Council in Secretary of State vs Mask & C0. , [1940] L.R. 67I.A.222; Raleigh Investment Co. Ltd. vs Governor General in Council, L.R. 74 I.A. 50 and the ratio in Firm and Illuri Subbayya Cheety & Sons vs State of Andhra Pradesh, ; were approved. In Desika Charyulu vs State of A.P. , AIR 1964 SC 807 a Constitution Bench was to consider whether the jurisdiction of the Settlement Officer and the Tribunal created under the Estates Abolition Act to determine whether Shotrium Village was an inam estate was exclusive and the Civil Court 's jurisdiction to try the dispute was barred. Despite the fact that no express exclusion of the Civil Court 's jurisdiction was made under the Act it was held that very provision setting up an hierarchy of judicial tribunals for the determination of the questions on which the applicability of the Act depends was sufficient in most cases to infer that the jurisdiction of the Civil Courts to try the same was barred. Accordingly it was held that the jurisdiction of the Settlement Officer and the Tribunal by necessary implication was exclusive and that the Civil Courts are barred from trying or retrying the question once over. The decisions of the Settlement Officer and of the Tribunal were held final and conclusive. In Dhulabhai & Ors. vs State of M.p. & Anr. ; another Constitution Bench reviewed the entire case law on the question of maintainability of civil suit and laid down seven propositions. Propositions 1 and 2 are relevant, which read thus: "(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court 's jurisdiction must he held to be excluded if there is adequate remedy to do what the Civil Courts normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 556 (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. " It was held therein that the civil suit was not maintainable to call in question of assessment made under the Madhya Bharat Sales Tax Act. In hatti vs Sunder Singh, [1971]2 SCR 163 the tenant had a declaratory relief before the authorities under Delhi land Reforms Act that he was Bhoomidar. When it was challenged in the civil suit as not being binding, this Court held that the civil suit was not maintainable. In Muddada Chayana vs Karam Narayana and Anr. ; , under section 56(1) (c) of the Estates Abolition Act, the dispute whether who the lawful ryot in respect of any holding is, shall be decided by the Settlement Officer. Whether it is liable to be questioned in the Civil Court. Chinnappa Reddy, J., who had intimate knowledge as an Advocate and the Judge on the subject reviewed the law and held that the Act is a self contained code in which provision was also made for the adjudication of various types of disputes arising, after an estate was notified, by specially constituted tribunals. On the general principles it was held that the special tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide dispute entrusted by the statute to them for their adjudication. Dealing with the object of the Act it was held at p. 207 C D that the Act intended to protect ryots and not to leave them in wilderness. When the Act provides machinery in section 56(1)(c) to discover who the lawful ryot of a holding was, it was not for the Court to denude the Act of all meaning and by confining the provision to the bounds of sections 55 and 56(1)(a) and (b) on the ground of contextual interpretation. Interpretation of a statute, contextual or otherwise must further and 557 not frustrate the object of the statute. It was held that the civil suit was not maintainable and approved the Full Bench judgment of 5 judges of the High Court of Andhra Pradesh in T. Munuswami Naidu vs R. Venkata Reddy., AIR 1978 A.P. 200. The same view was reiterated in O. Chenchulakshmamma & Anr. D. Subramanya Reddy; , and held that the order of the Addl. Settlement Officer was final in so far as the dispute between the rival claimants to the ryotwari patta was concerned and not liable to be questioned in any court of law. In A. Bodayya & Anr. L. Ramaswamy (dead) by Lrs. [1984] (Suppl). SCC 391 while reiterating the ratio in both the judgments, Desai, J. Speaking for a Bench of 3 Judges held that under Estate Abolition Act, who the lawful ryot was decided. Self same question directly and substantially raised in the suit cannot be decided by the Civil Court as it had no jurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with it. In Doe vs Bridges, at p. 859 the oft quoted dictum of Lord Tenerden, C.J. reads that: "where an act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner." In Premier Automobiles Ltd. vs Kamlakur Shantaram Wadke and Ors., ; a Bench of three Judges after reviewing the case law held that if a dispute was not industrial dispute, not does it relate to enforcement of any right under the Industrial Dispute Act, the remedy lies only in the civil court. If the dispute arises out of the right or liability under the general common law and not under the Act, the jurisdiction of the civil court is always alternative, leaving it to the election of the suitor to choose his remedy for the relief which is competent to be granted in a particular remedy. If the dispute relates to the enforcement of a right or obligation of the Act,the only remedy available to the suitor is to get an application adjudicated under the Act. In that view, it was held that the civil suit was not maintainable. In State of Tamil Nadu vs Ramalinga Samigal Madam, ; strongly relied on by Shri Kanta Rao, the question therein was whether the jurisdiction of the civil court was ousted to redetermine the nature of the land rendered by the settlement officer under section II of the Estate Abolition Act, Tulzapurkar, J. speaking for the Division Bench proceeded on three fundamental postulates namely that the decision of the Settlement authorities under section 11 of the Act was for (I) 558 revenue purposes '," that is to say for fastening the liability on him to pay the assessment and other dues and to facilitate the recovery of such revenue from him by the Government; and therefore, any decision impliedly rendered on the aspect of nature and character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose". (II) only revision against the order and not an appeal; and (III) that by Madras Amendment, section 64 c was deleted. It was unfortunate that it was not brought to the notice of the court that the purpose of Estate Abolition Act was not solely for the purpose of collecting the revenue to the State. The Act had its birth from a long drawn struggle carried on by the ryots in Madras Presidency for permanent ryotwari settlement of tenures and grant of permanent occupancy rights and the Indian National Congress espoused their rights and passed resolution at Arvadi Session to make a legislation in that regard. The recovery of revenue was only secondary. In Syamala Rao vs Sri Radhakanthaswami Varu a division Bench of the Andhra Pradesh High Court to which one of us (K.R.S.,J) was a member considered the historical background, the purpose of the Act and the scheme envisaged therein in extenso and held that the preamble of the Estate Abolition Act was to repeal the permanent settlements, the acquisition of the rights of the land holders in the Estates and introduction of the ryotwari settlement therein; under section 1(4) by issuance of the notification the prexisting rights shall cease and determined; shall vest in the State free from all encumbrances and declared that all rights and interests created in particular over the State 'shall cease and determine as against the Government ' protected only dispossession of a person in possession of the ryoti land who was considered prima facie entitled to a ryotwari patta. Section 11 envisaged to enquire into "the nature of the land" and whether "ryotwari land immediately before the notified dates" to be properly included or ought to have been properly included in the holding of the ryot". The enquiry under the Act was entrusted to the Revenue Authorities who have intimate knowledge of the nature of the lands and the entries in the revenue records of the holders, etc. Act created hierarchy of the tribunals, namely Asstt. Settlement Officer; Settlement Officer; Director of Settlements and Board of Revenue; provided revisional powers to those authorities and ultimately the order is subject to the decision of the High Court under article 226. In that view it was held that by necessary implication the jurisdiction of the civil court was ousted, the decision of settlement authorities under section 11 was made final and no civil suit was maintainable. The legislature having made the Act to render economic justice to the ryots and 559 excluded the dispute between land holders and the ryots covered under sections 12 to 15 and the ryots inter se under section 56(1)(c), from the jurisdiction of the Civil Court, it would not be the legislative intention to expose the ryots to costly unequal civil litigation with the state of the dispute under section 11. It is not necessary in this case to broach further but suffice to state that unfortunately this historical perspective and the real purpose and proper scope and operation of Estate Abolition Act was not focussed to the notice of this court. In Jyotish Thakur & Ors. vs Tarakant. Jha & Ors. ,[1963] Suppl. 1 SCR 13 section 27 of regulation III of 1872 provides that in respect of transfer of ryoti interest in contravention of the regulation revenue courts shall not take cognizance of such a transfer. It was contended that by necessary implication the civil suit was not maintainable. In that context this Court held that provisions therein were not intended to be exhaustive to bar the relief in Civil Court. In Sri Athmanathawami Devasthanam vs K. Gopalaswami Aiyangar, ; the question was whether the civil suit to recover damages and for ejectment of the ryoti lands belonging to the temple was barred. The findings were that the lands were ryoti lands and that the tenant acquired the occupancy rights, but the lease was granted in excess of 5 years. It was contended that it was a transfer without permission of the Endowment department. While upholding that the lands were ryoti lands and the tenant acquired occupancy rights, this Court disagreeing with the High Court, held that there was no transfer and that the tenant is liable to pay the arrears of rent and the suit was maintainable. In Sri Vedagiri Lakshmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; the contention raised was that section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 was a bar to maintain suit for rendition of accounts and recovery thereof against the ex trustees. This Court repelled the contention and held that the suit for rendition of accounts was not expressly or by necessary implication barred the jurisdiction of the civil court under section 93. In Shree Raja Kandregula Srinivasa Jagannadha Rao Panthulu Bahadur Garu vs State of Andhra Pradesh; , it was conceded that the question whether Kalipathnam village is an Inam estate was to be adjudicated before the tribunals appointed under the Rent Reduction Act. It was contended that the tribunals have no jurisdiction to decide the validity of the notification reducing the rent by operation of section 8(1) thereof. It was held that there was no statutory prohibition to determine the nature of the land contemplated by the Rent Reduction Act. Accordingly the suit was held to be maintainable. In Dr. Rajendra Prakash Sharma vs Gyan Chandra & Ors.,[1980] 3 SCR 207 it was found that under s, 7 of the , no proceedings were taken to 560 declare the suit house as on evacuee property. No notification under sub section (3) of 7 was published in the gazette. Under those circumstances it was held that section 46 did not bar the civil suit. In Anne Besant National Girls High School vs Dy. Director of Public Instruction & Ors. this Court held that the Civil Court has jurisdiction to examine whether action or decision of an administrative authority was ultra vires the relevant rules of Grant in Aid Code and Rule 9 (vii) was held to be ultra vires. Accordingly the suit was held to be maintainable. In Raja Ram Kumar Bhargava(dead) by Lrs. vs Union of India, [1988] 2 SCR 352 two questions were raised, firstly the validity of the assessment and secondly recovery of the tax paid under Excess Profit Tax Act, 1940. On the first question it was held that the suit was not maintainable. On the second question, without going into the technicalities of the maintainability of the suit, this Court granted the relief. In Pabbojan Tea Co., etc. vs The dy. Commissioner Lakhimpur, etc.[1968] 1 SCR 260 the questions were whether the workmen were ordinary unskilled labour or skilled labour; whether the jurisdiction of the authorities under section 20 of the is exclusive and whether the jurisdiction of the Civil Court was barred. This court held that the authorities did not hold any inquiry nor received any evidence for determining that issue. No proper hearing was given to the parties to tender evidence. Section 20 is not a complete Code as there was no provision for appeal or revision against the orders passed under s.20(3). There was no further scrutiny by any higher authority against the imposition of penalty. The Act in terms does not bar the employers from instituting a suit. In those circumstances, it was held that the legislature did not intend to exclude the jurisdiction of the civil court. The ratio in K. Chintamani Dora & Ors. vs G. Annamnaidu & ors. ; also does not assist Gram Panchayat for the reason that the decree therein originally granted became final. Subsequently it was sought to be reopened in a later suit. Under those circumstances the civil suit was held to be maintainable notwithstanding the provisions contained under the Estate Abolition Act. Thus we have no hesitation to hold that the ratio in all these case are clearly distinguishable and render little assistance to the Gram Panchayat. The scope, ambit and operation of the Inams Act was considered by P. Jaganmohan Reddy,J. (as he than was) in D.V. Raju vs B.G. Rao & Anr. and held that the paramount object of the legislature was to protect the tenant in occupation and is sought to be achieved by making effective orders of eviction made by the Civil Court either in execution or otherwise. It further prohibits the institution of any suit or proceeding in a Civil 561 Court under section 14 to set aside or modify any decision of the Tehsildar, Collector or Revenue Court except where such decision has been obtained by misrepresentation, fraud or collusion. Section 15 enjoins that the provisions of the Act and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of absolute jurisdiction on the Tehsilder, Revenue Court or the Collector, as the case may be, notwithstanding any provision of law or any suit or decree of a Civil Court or for that matter even where evictions have taken place in pursuance of such decrees, the evicted tenants can be restored to occupation provided the requirements for the protection of the possession of the tenants are satisfied. In that case the occupant in possession laid proceeding before the Tehsildar for injunction restraining the writ petitioner from ejecting him from the lands. The Tehsildar in exercise of the power under Rule 16 of the Rules granted injuction pending consideration of his right to Ryotwari patta. The order of injunction was challenged firstly on the ground of ultra vires of Rule 16 and secondly on the ground of jurisdiction. While upholding the order on both the grounds the learned Judge held that Tehsildar, Revenue Court and the Collector have exclusive jurisdiction and the civil suit is barred. We respectfully approve it as correct law. The Inams Act did not intend to leave the decisions of the revenue courts under section 3 read with section 7 to retry the issue once over in the Civil Court. Undoubtedly the decision of the division Bench in P. Pedagovindayy vs Subba Rao, is in favour of the contention that the civil suit is maintainable. It is not good law. Thus the glimpse of the object of the Inames Act, scheme, scope and operation thereof clearly manifest that Inames Act is a self contained code, expressly provided rights and liabilities, prescribed procedure; remedies of appeal and revision, excluded the jurisdiction of the civil court, notwithstanding anything contained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law. The jurisdictional findings are an integral scheme to grant or refuse ryotwari patta under section 3, read with s.7 and not collateral findings. It was subject to appeal and revision and certiorari under article 226. The decision of the Revenue Tribunal, are final and conclusive between the parties or persons claiming right, title or interest through them. The trick of pleadings and the camouflage of the reliefs are not decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive. The civil suit except on grounds of fraud, misrepresentation or collusion of the parties is not maintainable. The necessary conclusion would be that the civil suit 562 is not maintainable when the decree directly nullifies the ryotwari patta granted under section 3 of the Inams Act. Under the Gram Panchayat Act the statutory interposition of vesting the tank and the appurtenant land in the Gram Panchayat made it to retain possession, control and supervision over it, though the Gram Panchayat unlawfully took possession. The need to grant decree for possession in favour of the Gram Panchayat is thus redundant. The suit of the descendants normally to be decreed on the finding that ryotwari patta under section 3 of the Inams Act was granted in their favour and that they were unlawfully dispossessed. Since the grant of ryotwari patta, though in the name of individuals, was to maintain the public tank which stood vested under section 85 of the Act in the Gram Panchayat, the descendants are divested of the right and interest acquired therein. Thus the suit of the descendants also is liable to be dismissed. Accordingly, the decrees of dismissal of both the suits are upheld and the appeals dismissed. But in the circumstances, parties are directed to bear their own costs. V.P.R. Appeals dismissed. [/INST]Civil Appeal Nos. 931 of 1977 and 200 of 1978 relate to the same dispute though arose from, two suits and separate judgements. Civil Appeal No. 931 of 1977 arose out of the suit for possession by the Gram Panchayat against the descendants of the grantee of inam. The suit was dismissed by the Trial Court and was confirmed by the High Court and the High Court granted leave under Art.133. Civil Appeal No. 200 of 1978 arose out of the suit for possession and mesne profits which was laid by the descendants of the grantee of inam. The pleadings are the same in both cases. A Zamindar granted 100 acres of land inam to dig, preserve 532 and maintain a tank in favour of the predecessors of the respondents of C.A. No. 931/77. In 1700 A.D.i.e. , 1190 Fasli, the tank was dug by the villagers and ever since, the villagers were using the tank for their drinking purpose and perfected their right by prescription. In course of time the tank was silted up and fresh water existed only in and around 30 acres. The grantee 's descendants respondents did not make any repairs, Grass and trees had been grown in the rest of the area and was being enjoyed. Under section 3 of the A.P.Inams ( Abolition and Conversion into Ryotwari) Act, ( Act XXXVII of 1956) Ryotwari Patta was granted to the respondents in individuals capacity and on appeal the Revenue Divisional Officer confirmed the same and it became final, as it was not challenged any further. On 7.7.1965, the Gram panchayat the appellant in C.A. No. 931/77 took unilateral possession of the tank and ever since , it was exercising possession, supervision and control over it. After the expiry of three year from the date of dispossession, the respoondents filed a suit for possession based on title. Earlier thereto the appellant Gram Panchayat had filed a suit for possession. The Trial Court found that the tank was a 'public trust ', the appellants would be hereditary trustees and could be removed only by taking action under section 77 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1966 and that the respondents had acquired title by adverse possession. Accordingly the suit for possession was decreed relegating the filing of separate application for mesne profit. On appeal, the High Court reversed the decree and held that the tank was a public tank, and the tank and the lands stood vested in the Gram Panchyat under A.P. Gram Panchayat Act,1964. Since, the Gram Panchayat was in possession from July 7, 1966, though dispossessed the respondents forcibly and as the suit was not under section 6 of the , but one based on title, it called for interference and dismissed the suit. This court granted leave to appeal under article 136. 533 The respondents in C.A. No. 931/77 (the appellants in C.A. No. 200/78) contended that in view of the entries of the Inam Fair Register, the tank was a public trust and not a public tank; they could not be dispossessed until recourse made under section 77 of the A.P. Charitable and Religious Institutions and Endowments Act; that under the Gram Panchayat Act, the lands did not vest in the gram Panchayat; and that since the grant of ryotwari patta under the Inams Act had become final, section 14, thereof barred the jurisdiction of the Civil Court to entertain the suit. The appellant Gram Panchayat in C.A. No. 931/77 (the respondents in C.A. No. 200/78) contended that the tank and the appurtenant land was correctly held as public tank by the High Court that by operation of sections 85 and 64 of the Gram Panchayat Act, the land and the tank stood vested in the Panchayat, that the entries in the Inam Fair Register established that the grant of land was for preservation, maintenance and repairs of the tank and therefore, the grant should be in favour of the institution, i. e., the tank and the respondents thereby did not acquire any title, that ryotwari patta was only for the purpose of land revenue; that the Gram Panchayat acquired absolute right, title and interest in the land; and the suit was not a bar in the facts of the case. Dismissing both appeals, this Court HELD: 1.01. Any property or income, which belongs to or has been administered for the benefit of the villagers in common or the holders in any of the village land generally or of land of a particular description or of lands under particular source of irrigation shall vest in Gram Panchayat and be administered by it for the benefit of the villagers or holders. The lands or income used for communal purpose shall either belong to the Gram Panchayat or has been administered by the Gram Panchayat. It is not the case of the Gram Panchayat nor any finding recorded by the courts below to that effect. section 64 is not attracted though the villagers acquired prescriptive right to use the water from the tank for their use and of their cattle. [554D F] 1.02. All public water courses, springs, reservoirs, tanks, cisterns, etc. and other water works either existing on the date of the Act or made thereafter by the Gram Panchayat, or otherwise including those used by the public ripened into prescriptive right for the use and benefit of the public and also adjacent or any appurtenant land not being private property shall vest in the Gram Panchayat under section 85(1) and be subject to its control. [554F G] 534 2.01. The word`vesting ' in section 85 would signify that the water courses and tanks, lands etc. used by the public to such an extent as to give a prescripvtive right to their use, are vested in the Gram Panchayat, and placed them under the control and supervision of the Gram Panchayat. It confers no absolute or full title. It was open to the Government, even after vesting, to place restriction upon the Gram Panchayat in the matter of enjoyment and use of such tanks, and appurtenant lands etc. The assumption of management by the Government would be subject to the prescriptive right of the villagers, if any. The vesting of the tanks etc. in the Gram Panchayat was with absolute rights and the village community rights would over ride against rights of the Government. [546C F] 2.02. The tank is a public tank and not a public trust and that under section 85(1) and section 64, the vesting of the tanks, the appurtenant land and the common land is only for the purpose of possession, supervision, control and use thereof for the villagers for common use subject to the over riding title by the Government and its assumption of management should be in terms of sub section (3) of section 85 of the Act and subject to the prescriptive right in the water, water spread tank for common use. [547A B] Gram Panchayat, Mandapaka & Ors. V. Distt. Collecctor, Eluru & Ors. , approved. Anna Narasimha Rao & Ors. vs Kurra Venkata Narasayya & Ors., , OVER RULED. 3.01. Under A.P. Land Encroachment Act, 1905; Talengana Area Land Revenue Act, relevant Abolition Acts like A.P. Estates (Abolition and Conversion into Ryotwari) Act, 1948, Inams Abolition Act etc. give absolute rights or vesting in the State over the forest land, tanks, rivers, mines, poramboke, land, etc. free from all encumbrances and the preexisting rights in the other land stood abolished and will be subject to the grant of Ryotwari Patta etc. [546F H] 3.02 Grant of Ryotwari patta is not a title but a right coupled with possession to remain in occupation and enjoyment, subject to payment of the land revenue to the State. [546H] 3.03. The entries in the Inam Fair Register are great acts of the State and coupled with the entries in the survey and settlement record 535 furnishes unimpeachable evidence. On construction of these documents, it would clearly emerge that the original grant was made for the preservation and maintenance of the tank and tax free Inam land was granted for that purpose, though it was in the name of the individual grantee. The grant was for the preservation and maintenance of the tank. [548C D] 3.04. The grant was for the institution. Under section 3 of the Inams Act, the enquiry should be, whether (1) a particular land is Inam land; (2) Inam land in a Ryotwari, Zamindar or Inam Village; and (3) is held by any institution. In view of the finding that the grant was for the preservation and maintenance of tank, the Inam land in an inam village was held by the institution, namely, the tank. Ryotwari patta shall, therefore, be in favour of the institution. Undoubtedly the ryotwari patta was granted in favour of the descendants. [548D F] 3.05. The pattas were obtained in the individuals name, the trustees of an institution cannot derive personal advantage from the administration of the trust property. The grant of patta was for the maintenance of the trust. [548G] 3.06. The descendants, though enjoyed the income from the properties, did not effect the repairs and neglected the maintenance and upkeep of the tank. They rendered the tank disused and abandoned. By operation of section 85 of the Act the lands and tank stood vested in the Gram Panchayat for control, management and supervision. [550E F] 3.07. A hereditary trustee is entitled to be the Chairman of a Board of Trustees, if any, constituted under the Endowment Act or else be in exclusive possession and management of the public trust registered thereunder until he is removed as per the procedure provided therein. Since the tank always remained a public tank and not being a public trust, the Endowment Act does not apply. Therefore, the question of initiating action under section 77 of the Endowment Act for removal of the descendants as trustees does not arise. [550F G] Arunachalam Chetty vs Venkatachalpathi Garu Swamigal, AIR 1919 P.C. 62 at P. 65; Syed Md. Mazaffaral Musavi vs Bibi Jabeda & Ors., AIR 1930 Pc 1031; Bhojraj vs Sita Ram & Ors, AIR 1936 P.C. 60; M. Srinivasacharyulu & Ors. V. Dinawahi Pratyanga Rao & Ors., ; Ravipati Kotayya & Anr. vs Ramaswamy Subbaraydu & Ors., , referred to. 536 K.V. Krishna Rao vs Sub Colletor, Ongole, ; , followed. Nori Venkatarama Dikshitulu & Ors. vs Ravi Venkatappayya & Ors., , approved. Krishan Nair Boppudu Punniah & Ors. vs Sri Lakshmi Narasimhaswamy Varu, ; Bhupathiraju Venkatapathiraju & Ors. V. The President Taluq Board, Narsapur & Ors.; [1913] 19 1.C. 727 (Mad.) (D.B.), distinguished. Tagore Law Lecture, ``Hindu Religious Endowments and Institutions at p. 6, distinguished. In the laws made to restructure the social order creating rights in favour of the citizens and conferring power and jurisdiction on the hierarchy of Tribunals or the authorities constituted thereunder and giving finality to their orders or decisions and divested the jurisdiction of the established civil courts expressly or by necessary implication Departure in the allocation of the judicial functions would not be viewed with disfavor for creating the new forums and entrusting the duties under the statutes to implement socio economic and fiscal laws. Courts have to consider, when questioned, why the legislature made the departure. The reason is obvious. The tradition bound civil courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under C.P.C. are not suited to the needed expeditious dispensation. The adjudicatory system provided in the new forums is cheap and rapid,. The procedure before the Tribunal is simple and not hide bound by the intricate procedure of pleadings, trial, admissibility of the evidence and proof of facts according to law. Therefore, there is abundant flexibility in the discharge of the functions with greater expedition and inexpensiveness. {552D H] 4.02. In order to find out the purpose in creating the Tribunals under the statues and the meaning of particular provisions in social legislation, the Court would adopt the purposive approach to ascertain the socials ends envisaged in the Act, to consider scheme of the Act as an integrated whole and practical means by which it was sought to be effectuated to achieve them. Meticulous lexographic analysis of words and phrases and sentences should be subordinate to this purposive approach. The dynamics of the interpretative functioning of the Court is to reflect the contemporary needs and the prevailing values consistent with the constitutional and legislative declaration of the policy envisa 537 ged in the statute under consideration. [552H 553B] 4.03. The law should, therefore, respond to the clarion call of social imperatives evolve in that process functional approach as means to subserve ``social promises ' ' set out in the Preamble, Directive Principles and the Fundamental Rights of the Constitution. [553d] 4.04. Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the court naturally feels inclined to consider whether remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate. In cases where exclusion of the civil court 's jurisdiction is expressly provided for, the consideration as to the scheme of the statue in question and the adequacy of sufficiency of the remedy provided for by it may be relevant, but cannot be decisive. Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and inconceivable circumstances might become even decisive. [553G 554B] 4.05. The jurisdiction of a Tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact. Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the Tribunal has to consider. At the inception of an enquiry by a Tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the Tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be Tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the Tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have except such tribunals of limited jurisdiction when the statue not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly. If it has jurisdiction to do right, it has jurisdiction to do wrong. It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final. [554B F] 4.06. The Inams Act did not intend to leave the decisions of the revenue courts under section 3 read with section 7 to retry the issue once over in the civil court. [561D E] 538 4.07. The glimpse of the object of the Inams Act, scheme, scope and operation thereof clearly manifest that Inams Act is a self contained code, expressly provided rights and liabilities; prescribed procedure; remedies; of appeal and revision, excluded the jurisdiction of the civil court, notwithstanding anything contained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law. The jurisdictional findings are an integral scheme to grant or refuse ryotwari pattta under section 3, read with section 7 and not collateral findings. It was subject to appeal and revision and certiorari under Art 226. The decision of the Revenue Tribunal, are final and conclusive between the parties or persons claiming right, title or interest through them. The trick of pleadings and the camouflage of the reliefs are not decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive. The civil suit except on grounds of fraud, misrepresentation or collusion of the parties is not maintainable. The necessary conclusion would be that the civil suit is not maintainable when the decree directly nullifies the ryotwari patta granted under section 3 of the Inams Act. [561E 562A] Deena vs Union of India, [1984] ISCR, referred to. Kamala Mills Ltd. vs State of Bombay, ; ; Secretary of State vs Mask & Co., [1940] L.R. 67 I.A. 222; Raleigh Investment Co. Ltd. V. Governor General in Council, L.R. 74 I.A. 50; Firm and Illuri Subbayya Chetty & Sons vs State of Andhra Pradesh; , ; Deesika Charyulu vs State of A.p., AIR 1964 SC 807; Dhulabhai & Ors vs State of M.P. & Anr., ; ; Hati vs Sunder Singh, ; ; Muddada Chayana vs Karam Narayana and Anr. ; , ; T. Munuswami Naidu vs R. Venkata Reddy, AIR 1978 A.P. 200; O. Chenchulakshmamma & Anr. vs D. Subramanya Reddy; , ; A. Bodayya & Anr. V. L. Ramaswamy(dead) by Lrs., ; Doe vs Bridges, at p. 359; Premier Automobiles Ltd. vs Kamlakar Shantaram Wadke and Ors., ; ; State of Tamil Nadu vs Ramalinga Samigal Madam, ; ; Syamala Rao vs Sri Radhakanthaswami Varu, ; Jyotish Tahakur & Ors. vs Tarakant Jha & Ors., [1963] Suppl. 1 SCR 13; Sri Athmanathaswami Devasthanam vs K. Gopalaswami Aiyangar, {1964] 3 SCR 763; Sri VEdagiri Lakshmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; ; Shree Raja Kandragula Srinivasa Jagannadha Rao Panthulu Bahadur Garu vs State of Andhra Pradesh, ; ; Dr. Rajendra Prakash Sharma vs Gyan Chandra & Ors., ; ; Anne Basant National Girls High School vs Dy. 539 Director of Public Instruction & Ors., ; Raja Ram Kumar Bhargava (dead) by Lrs. vs Union of India, [1988] 2 SCR 352; Pabbojan Tea Co., Ltd., etc. vs the Dy. Commissioner, Lakhimpur, etc. ; , and K. Chintamani Dora & Ors. vs G. Annamnaidu & Ors., ; , distinguished. D.V. Raju vs B.G. Rao & Anr., , approved. P.pedagovindayy vs Subba Rao, , over ruled. The word `vest ' clothes varied colours from the context and situation in which the word came to be used in a statue of rule. [545B C] 5.02. The word [vest '], means, to give an immediate, fixed right of present or future enjoyment, to accrue to, to be fixed, to take effect, to clothe with possession, to deliver full possession of land or of an estate, to give seisin to enfeoff. [545C D] 5.03. The word, `vest ', in the absence of a context, is usually taken to mean, `vest ' in interest rather than vest in possesion '.[545E F] 5.04. `Vest '. ``generally means to give the property in ' '. [545E F] 5.05. The word, `vested ' was defined, `as to the interest acquired by public bodies, created for a particular purpose, in works, such as embankments, whcih are `vested ' in them by statute. ' {545D E] 5.06. ``Vesting ' ' in the legal sense means, to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right '. [545C] Chamber 's Mid Century Dictionary at P. 1230; Blacks Law Dictionary, 5th Edition at P. 1401; Stroud 's Judicial Dictionary, 4th Edition Vol, 5 at P. 2938, Item 12, at P 2940, Item 4 at P. 2939; Port of London Authority vs Canvey Island Commissioners, {1932] 1 Ch. 446; Fruit and Vegetable Merchants Union vs Delhi Improvement Trust, ; , referred to. Under the Gram Panchayat Act the statutory interposition of vesting the tank and the appurtenant land in the Gram Panchayat made it to retain possession, control and supervision over it, though the Gram Panchayat unlawfully took possession. The need to grant decree for possession in favour of the Gram Panchayat is thus redundant. The suit 540 of the descendants normally to be decreed on the finding that ryotwari patta under section 3 of the Inams Act was granted in their favour and that they were unlawfully dispossessed. Since the grant of ryotwari patta, though in the name of individuals, was to maintain the public tank whcih stood vested under section 85 of the Act in the Gram panchayat, the descendants are divested of the right and interest acquired therein. Thus the suit of the descendants also is liable to be dismissed. [562A C] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 1755 of 1980. Appeal by Special Leave from the Judgment and order dated 8 8 1980 of the Allahabad High Court in Civil Misc. Writ Petition No. 4376/69. S.N. Kackar, R.B. Mehrotra and Pramod Swarup for the Appellants. O. P. Rana and Mrs. Shobha Dikshit for Respondent No. 1. Yogeshwar Prasad, Mrs. Rani Chhabra, P.K. Pillai and R.N. Trivedi for Respondent No. 2. The Judgment of the Court was delivered by KOSHAL, J. This appeal by special leave is directed against a judgement dated the 8th August 1980 of a Division Bench of the Allahabad High Court dismissing a petition instituted by the 18 appellants under article 226 of the Constitution of India in which the reliefs prayed for were (a) that the order dated the 19th July, 1969 (hereinafter referred to as the impugned order) passed by the Deputy Secretary (Judicial), Government of Uttar Pradesh, 1008 rejecting all the objections filed by the appellants to a scheme (hereinafter called the impugned scheme) published on the 21st January 1961 in the Government Gazette of Uttar Pradesh under section 68C of the (for brevity, the Act) be set aside as illegal. and (b) that the notification published in the said Gazette dated the 7th November, 1970 and approving the impugned scheme (for short, the 1970 notification) be quashed. The notification dated the 21st January 1961 declared that the State Government was of the opinion that "for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services on the routes mentioned at item No. 2 of the annexed schemes should be run and operated by the State transport undertaking to the complete exclusion of other persons" and the impugned scheme was being published on that account under section 68C of the Act read with rule 4(1) of the Uttar Pradesh State Transport Services (Development) Rules, 1958 (for short, the rules). The impugned scheme envisaged the plying of buses on the route Gorakhpur Khajni Gola via Dhuriapur and Malhanpur exclusively by the State transport undertaking (hereinafter described as the S.T.U.) and invited all persons whose interest was affected by it to file objections thereto within 30 days of its publication in the Official Gazette. The impugned scheme was later on modified by different notifications and three allied routes were brought within its purview. Supplementary objections to the scheme as amended were put forward by persons interested. Shri S.K. Bhargava, Deputy Secretary (Judicial) to the U.P. Government rejected all the objections and approved the scheme through the impugned order, in pursuance of which The 1970 notification was published in the Government Gazette. On behalf of the 18 appellants (out of whom appellants Nos. 1 to 17 are transport operators who were plying their buses on the routes covered by the impugned scheme while appellant No. 18 is the Motor operators Association, Gorakhpur) the following grounds were put forward before the High Court in support of the prayers made: (i) The impugned scheme was vitiated by mala fides inasmuch as it was the outcome of action taken by Shri Hanumant Singh Negi, Deputy Transport Commissioner, U.P., who had 1009 threatened Shri Bajrangi Lal, Pairokar for one of the petitioners, namely, Shri Kashi Prasad Gupta, that the disputed route would be nationalised in case the latter pursued in the Supreme Court the matter which had earlier been decided against him by the High Court. (ii) The impugned order did not deal at all with objections of a personal nature which had been filed by the appellants and which, inter alia, indicated that the scheme would operate to the great disadvantage of the appellants all of whom were plying buses on the disputed route and had invested huge sums of money for that purpose. (iii) The impugned order did not record specific findings on any of the objections of a "personal nature" and was liable to be quashed for that reason alone. (iv) It was incumbent on the author of the impugned order to compare the services rendered by the appellants with those to be rendered by the S.T.U. That not having been done, the impugned order and the 1970 notification were both vitiated. The High Court went at length into the question of mala fides and rejected the contention of the appellants in that behalf mainly on the ground that it was not Shri Hanumant Singh Negi who had initiated the nationalisation of the disputed route but that it was the State Government under whose decision the impugned scheme was formulated. In support of ground (ii) reliance on behalf of the appellants was placed before the High Court mainly on Gullapalli Nageswara Rao and Others vs Andhra Pradesh State Road Transport Corporation and Another, which was decided by a Bench of five Judges of this Court. The crucial question before the Court in that case was whether the authority deciding the objections under section 680 of the Act was bound to act judicially. Subba Rao, J. (as he then was), who answered the question in the affirmative on behalf of the majority consisting of himself, Das, C.J., and Bhagwati, ., dealt at length with the provisions of sections 68C and 68D of the act and while concluding that the matter partook the character of a dispute between two parties, observed: "The citizen may object to the scheme on public grounds or on personal grounds. He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from 1010 the scheme for various reasons. There is, therefore, a proposal and an opposition and the third party, the State Government is to decide that lis and prima facie it must do so judicially. The position is put beyond any doubt by the provisions in the Act and the Rules which expressly require that the State Government must decide the dispute according to the procedure prescribed by the Act and the Rules framed thereunder, viz., after considering the objections and after hearing both the parties. It therefore appears to us that this is an obvious case where the Act imposes a duty on the Stale Government to decide the act judicially in approving or modifying the scheme proposed by the transport undertaking. The scheme propounded may exclude persons from a route or routes and the affected party is given a remedy to apply to the Government and the Government is enjoined to decide the dispute between the contesting parties. The statute clearly, therefore, imposes a duty upon the Government to act judicially. Even if the grounds of attack against the scheme are confined only to the purposes mentioned in section 68C we cannot agree with this contention the position will not be different, for, even in that case there is a dispute between the State transport undertaking and the person excluded in respect of the scheme, though the objections are limited to the purposes of the scheme. In either view the said two provisions, sections 68C and 68D, comply with the three criteria of a judicial act laid down by this Court. " (emphasis supplied) Emphasis before The High Court was laid on the under lined portions of the above observations. On the other hand, attention of the Court was invited to Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others. on behalf of the State for the proposition that the objections to the impugned scheme had to be related to the four purposes indicated in section 68C of the Act. After giving consideration to the matter the High Court held: "There can be no quarrel with the proposition that an objection of a personal nature can be filed but it should be for the purposes of showing that the four purposes indicated in section 68C cannot be achieved. In other words objections of the nature that the petitioners will suffer hardship and there will be financial loss to the petitioner or that the petitioners have 1011 invested large amount cannot per se be sufficient to nullify a scheme of the nature referred to above unless they have a material bearing on the purposes indicated in section 68C of the Act. When a scheme is framed for nationalisation of a route, whether wholly or partly, the necessary consequence will be that the persons who have invested their money in purchasing vehicles will be displaced and that there will be loss in their earnings. If this could have been the ground for rejecting or modifying a scheme, no scheme could be taken up. A bare perusal of section 68C indicates that the purpose of the scheme is to provide an efficient, adequate, economical and properly coordinated road transport service which is necessary in public interest, and such a scheme will be liable to be approved under the provisions of the Act. The objections of personal nature in the instant case in our opinion fail to establish that the four purposes which are sought to be achieved by the scheme will not be achieved and for that reason the scheme should either be rejected or modified. " Ground (iii) was repelled by the High Court with a remark that even if objections of a personal nature were covered by section 68C the impugned order was not liable to be quashed merely on the ground that its author did not record specific findings thereon. Support for this view was sought from a Full Bench decision of the same Court reported as Khuda Dad Khan vs State of U.P. and others The last ground of attack against the impugned order and the 1970 notification also did not find favour with the High Court as, according to it, in Capital Multi Purpose Co operative Society Bhopal and others vs The State of M.P. & others (supra), the Supreme Court had taken the view that it was not necessary for the concerned authority to compare the services rendered by the private operators with those to be expected from the S.T.U. It was in these premises that the High Court passed the judgment under appeal. Out of the grounds put forward before the High Court on behalf of the appellants, two, namely, those listed at serial Nos. (i) and (ii) above were not pressed before us by their learned counsel, Shri section N. Kacker, who, however, argued the point covered by ground (iv) with great force and also challenged the finding recorded by the High Court in relation to ground (iii). In order to determine 1012 the questions raised before us and canvassed by learned counsel for the parties it is necessary to undertake an analytical study of sections 68A to 68E contained in Chapter IVA which was added to the Act by Central Act 100 of 1956. Section 68A contains two definitions According to it "(a) 'road transport service ' means a service of motor vehicles carrying passengers or goods or both by road for hire or reward; "(b) 'State transport undertaking ' means any undertaking providing road transport service, where such undertaking is carried on by, (i) the Central Government or a State Government; (ii) any Road Transport Corporation established under section 3 of the ; (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments. " Section 68B gives over riding effect to the provisions of Chapter IVA. Contents of sections 68C and 68D are reproduced below: "68C. Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport under taking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct." "68D. (1) on the publication of any scheme in the Official Gazette and in not less than one newspaper in regional language circulating in the area or route which is proposed to be covered by such scheme 1013 (i) any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme; (ii) any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government; and (iii) any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may, within thirty days from the date of its publication in the official Gazette, file objections to it before the State Government. "(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme. "(3) The scheme as approved or modified under sub section (2) shall then be published in the official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: "Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme unless it has been published in the official Gazette with the previous approval of the Central Government. " Sub section (1) of section 68E gives to the S.T.U. power to cancel or modify at any time any scheme published under sub section (3) of section 68D and provides that "the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be cancelled or modified as if the proposal were a separate scheme." Sub section (2) of section 68E confers on the Stale Government the power to modify a scheme published under sub section (3) of section 68D after giving the S.T.U. and any other person likely to be affected by the proposed modification an opportunity of being heard in respect thereof. 6. A bare reading of the sections noted above makes it clear that they provide for nationalisation of road transport services. However, such nationalisation, in view of the provisions of section 68C, 1014 is not nationalisation or nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects. A break up of the section brings out the following essential features. (a) The S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise. (b) The necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing an efficient, adequate, economical and properly coordinated road transport service. Unless a scheme conforms to these two conditions it will fall outside the ambit of section 68C. Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of 30 days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government. An important feature of sub section (2) of the section is that (every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety), as held in Malik Ram v State Of Rajasthan (981). The procedure provided in section 68D is thus designed to (a) enable parties affected by the scheme, to point out flaws therein, (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether. This brings us to the main point of controversy in the case, that is, the nature of objections which parties affected by a scheme may prefer to it. Section 68D does not specify the type of objections 1015 envisaged by it but Then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C. In the opinion forming the basis of the scheme does not suffer from errors such as may render it obnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable. Objections may thus be made to show : (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such ser vices shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical, or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination. Objections falling outside the seven categories above set out would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. To this conclusion there is no challenge from either side, but then it has been vehemently contended on behalf of the appellants that a comparison of the road transport services operating on the route covered by a scheme with those envisaged by the scheme itself may be necessary in order to find out if the scheme conforms to the provisions of section 68C and this contention is controverted by learned counsel for the respondents on the strength of Capital Multi Purpose Co operative Society Bhopal and Others vs The State of M.P. & Others, wherein Wanchoo, J., speaking for a Bench of this Court which consisted of himself, Bachawat and Ramaswami, JJ., observed: 1016 "We are further of opinion that there is no question of consideration of comparative merits of the State Transport Undertaking and the private operators in the context of Chapter IV A. As we have said already Chapter IV A was enacted for nationalisation of road transport services in accordance with the amendment made in article 19(6) of the Constitution. The nationalised road transport under that Chapter can only be run by the State Transport Undertaking as defined in section 68 A(b) of the Act. In view of that fact, if nationalisation has to come as envisaged by the amendment of the Constitution, the only body which can run the nationalised service is the State Transport Undertaking, and in those circumstances we fail to see any necessity for comparison between a State Transport Undertaking on the one hand and individual operators on the other. "Apart from this general consideration, we are further of opinion that ordinarily no question of comparative merits based on past record between a State Transport Undertaking and individual operators can arise. Section 68 C provides the State Transport Undertaking has to run an efficient, adequate, economical and properly coordinated road transport service, and for doing that it does not take up just one route and put one transport vehicle on it. It takes up a large number of routes and puts a large number of transport vehicles on them in order to run an integrated service whether for passengers or for goods, or for both. In these circumstances it is difficult to see how one can compare such an undertaking with individual private operators who are running one transport vehicle or so on individual routes. Secondly, it would be unusual for the State Transport Undertaking to be running transport vehicles on individual routes before it produces a scheme for nationalisation of the type provided for in Chapter IV A, though it may be conceded that this may not be quite impossible, for some State transport undertaking might have entered into competition with private operators and might have obtained permits under Chapter V; (see for instance Parbani Transport Co operative Society Ltd. vs The Regional Transport Authority, ; Even so, when the State transport undertaking takes action under Chapter IV A of the Act there can in our opinion be no question of comparison between a State transport undertaking running an integrated service and individual operators running one transport vehicle or more on individual routes. We are therefore of opinion that 1017 the authority cannot be said to have gone wrong in not asking for past records of the Corporation in the present case for purposes of such comparison. It is true that section ' 68 C requires that the scheme should be in public interest. But unless the scheme is shown not to be efficient, adequate, economical and properly coordinated, it will in our opinion generally follow that it is in the public interest. We do not think therefore that the comparative merits of the Corporation as against individual operators require to be judged under Chapter IV A in the public interest." A careful study of these observations would show that they were meant to exclude from consideration a comparison between the S.T.U. and private operators for the purpose of finding out which of them should be preferred on the basis of their past performance and not to declare irrelevant a comparison between the service envisaged by the scheme and pre existing services for the purpose of determining whether the scheme as framed provides for the operation of a service which would be efficient, adequate, economical and properly coordinated. Normally, as pointed out by Wanchoo, J., a S.T.U. takes up a large number of routes and puts a large number of vehicles on them in order to run an integrated service while private operators cater to individual routes and may not, therefore, be in a position to provide what is described in section 68C as "a properly coordinated service". That does not mean, however, that. all schemes, howsoever framed, would in the very nature of things provide for services which conform to the quality insisted upon by section 68C. As stated above, objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate, economical or properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated" are not absolute but more or less comparative terms. A service consisting of only one round trip per day may be adequate if the traffic on the concerned route is lean. On the other hand, a hundred round trips may not be adequate for a route burdened with heavy traffic. If a private operator is running 10 buses either way and is sought to be replaced by the S.T.U. under a scheme which makes provision only for five round trips per day the proposed road transport service cannot be considered adequate if the number of round trips required to fully cope with the traffic is more than five. Efficiency of the service covered by a scheme may similarly have to be determined in comparison to that which pertains to the pre existing services. Economics and proper coordination of the service proposed in a scheme may again be 1018 matters for which a comparison with the pre existing services is called for. In order to find out, therefore, if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison, would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the S.T.U. If such a comparison as we have held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by Wanchoo, J., in the observations above quoted, which, on the other hand, make it clear that the proposed scheme may certainly be shown (in whatever way it is possible) not to fulfil the criteria of efficiency, adequacy, economy and proper coordination. The comparison ruled out by him was not between the merits of the rival services but between the expectations from their operators in view of their respective past records including these relating to other areas and routes. The High Court thus erred in arriving at the conclusion that The Capital Multi Purpose case eschewed all comparison and its finding in that behalf, in so far as it runs counter to the opinion expressed by us above, is set aside. We may in passing refer to what are called objections of a "personal" nature. These may be of two types: (1) those challenging the scheme on the ground that it harms an existing operator and, (2) those which indicate the details of the services afforded by an existing operator for the purpose of showing that the service envisaged by the scheme would in comparison not be efficient, adequate, etc. Objections of the second type, as we have just above concluded, would be admissible for the reasons stated. Those of the first type, however, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible. This proposition may appear at first sight to run counter to those observations of Subba Rao, J., in Gullappalli 's case (supra) which we have extracted above but this is not really so. Those observations were made in the course of consideration by this Court of the sole question whether the State Government, in deciding objections under section 68D, acted judicially or purely in an administrative capacity. The answer to that question, according to Subba Rao, J., depended on whether the matter before the State Government amounted to a lis; and it 1019 was in that connection that he said that the citizen may object to the scheme on public grounds or on personal grounds and also that the Court did not agree with the contention that the grounds of objection against the scheme were confined only to those mentioned in section 68C. The Court was not called upon to decide as to whether the scheme of sections 68C and 68D embraced objections of a "personal" nature or not and it was only incidentally that reference thereto was made. We conclude that Gullapalli 's case (supra) is no authority for the proposition that "personal" objection not confined to the scope of the requirements of section 68C are admissible under section 68D. 9. Referring to ground (iii) pressed in the High Court on behalf of the appellants, Shri Kacker made a serious grouse of the fact that the impugned order did not so much as mentioned those objections made by the appellants which called for a comparing of the type held by us to be permissible and he contended that the impugned order was bad on that account. In reply learned counsel for the respondents argued that at the hearing before the State Government no such objections were pressed. Our attention has been drawn by Mr. Kacker to paragraphs 14, 20(a), 21, 26, 43, 49? 51, 61, 63, 64, 73 and 75 of the statement of objections forming annexure to the petition under Article 226 of the Constitution before the High Court. A perusal of those paragraphs makes it abundantly clear that quite a few of the objections were such as were related to the purposes mentioned in section 68C and called for a comparison of the proposed service with the existing one. That some of these objections were pressed before the State Government is apparent from the written arguments which were submitted to Shri section K. Bhargava who is the author of the impugned order and which were appended to the petition under Article 226 or the Constitution of India before the High Court in the form of Annexure J. The stand of the respondents to the contrary is thus not well founded. But then we further find that in the impugned order its author has devoted five paragraphs to the objections which called for comparison of both the types above discussed. In paragraphs 24 to 27 the impugned order rightly rejects the objections which were based on a comparison of the S.T.U. with the private operators in relation to their respective past performances, and in doing so relies correctly on The Capital Multi purpose case. It proceeds then (in paragraph 28) to take note of the further opinion expressed in the same case from which it follows that a scheme may nevertheless be shown not to be in public interest by demonstrating 1020 that it does not provide for a service which would be efficient, adequate, economical and properly coordinated; but then dismisses the matter with the remark that the appellants had not been able "to show anything substantial which may justify this inference that the proposed scheme in respect of the routes in question would not be efficient, adequate, economical and properly coordinated", a remark which is obviously meant to dispose of those objections to the scheme which called for a comparison of the service envisaged by it with that already available. The cryptic remark no doubt neither lists the objections disposed of by it nor discusses the relevant evidence but the reason for the absence of a discussion in this behalf appears to be that no such evidence had been produced before the State Government. And if that be so, much fault cannot he found with the brevity of the contents of paragraph 28. However, Mr. Kacker made another grouse in this connection, namely, that the State Government refused to summon witnesses and to enforce the production of documents at the request of the appellants and that in doing so it had acted illegally and by thus shutting out evidence had really denied to the appellants any real opportunity of being heard. We find that when the case was at the evidence stage before the State Government, the appellants submitted two applications requesting that witnesses, one of whom, namely, the Secretary, Legislative Assembly, U.P. was to bring the proceedings of that Assembly, relating to the speech of the Chief Minister delivered on the 13th July 1967 in relation to the budget of the Transport Department, be summoned through letters of request and examined. The applications were rejected by Shri S.K. Bhargava through an order dated the 20th March 1969, the relevant part of which runs thus: . "It is nat necessary to issue letters of request as prayed for. The objectors can only examine those witnesses whom they themselves brought. It is also not necessary to send for any record as prayed. No further reasons appear in the order for a rejection of the prayer made for issuing letters of request but it seems that while making the order Shri Bhargava had in mind the provisions of sub rules (2) and (4) of rule 7 of the Rules and of the absence from the Act and the Rules of any express provision conferring on the State Government the right to issue process for enforcing the attendance of witnesses and the production of documents. The said two sub rules may be reproduced: 1021 "(2) The said officer shall fix the date, time and place for the hearing of the objections and issue notices thereof to the objector, and the representatives of the State transport undertaking, calling upon them to appear before him in person, or through a duly authorised agent or counsel and to produce their oral and documentary evidence on the date fixed for hearing." "(4) Subject to the provisions of sub rule (7) the objector and the State transport undertaking shall produce their evidence and witnesses, necessary and relevant to the inquiry, on the first date fixed for the hearing. " The contention raised on behalf of the respondents is that the power the exercise of which the appellants sought by their applications had not been conferred by the Act or the Rules on the State Government and that, therefore, the order passed by Shri Bhargava was correct. We find substance in this contention. It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged. Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute. This view finds support from Nehru Mot Transport Co operative Society Limited vs The State of Rajasthan, in which also the argument raised was that there could be no effective hearing without a provision or coercive process compelling attendance of witnesses and production of documents. It was pointed out in that case that the Rajasthan Rules did not provide for compelling the attendance of witnesses and that it was enough if the authority took evidence of witnesses whom the objector produced before it. It was also remarked that the authority might 1022 help the objector to secure their attendance by issue of summonses, though in the absence of any provision in the law, the witnesses might or might not appear in answer thereto. But then the question arises whether an order of the State Government rejecting a prayer for issuance of summons or letters of request would be illegal. This question was answered in the negative by Wanchoo, J., in the Capital Multi purpose case (supra) with the following observations: "Further, reliance in this connection is placed on the observation of this Court in Nehru Motor Transport Co operative Society 's case (supra) that the authority might help the objectors by issuing summonses. This observation in our opinion does not mean, in the absence of any provision in the Act or the Rules, that the authority was bound to summon witnesses even though the persons summoned were not bound to obey the summonses as there was no provision in law for issue of such summonses. The use of the words 'by issue of summonses ' in the circumstances of that case was by oversight, for issue of summonses presumes that there is authority to issue them and the person to whom they are issued is bound to obey. But in the absence of such power all that the authority can do is to issue letters merely requesting persons to appear and it is open to those persons to appear or not. In this situation if an authority decides not to issue such letters it cannot be said that there was no effective hearing. " These observations have our concurrence and we do not find that any right of the appellants was infringed when their applications for summoning witnesses and production of documents were rejected. Here we may briefly advert to another aspect of the matter to which our attention was drawn on behalf of the respondents. Sub rule (5) of rule 5 of the Rules states "A person filing an objection and desiring to be heard shall also submit along with the memorandum of objections, a list of documents and witnesses with their names and addresses and a brief summary of the nature and type of evidence which each such witness is likely to give." No compliance with this rule was made by the appellants when the two applications just above considered were filed. The sub rule serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record 1023 but which is either irrelevant or otherwise inadmissible. The two applications, therefore, suffered from a serious flaw by reason of which alone they merited dismissal unless the summary insisted upon by sub rule (5) was supplied before they were disposed of. 10. In the result the appeal must fail in spite of the fact that we have accepted one main contention raised by Mr. Kacker, namely, that objections involving comparison of the pre existing services with those proposed in a scheme are relatable to the ingredients of section 68C and are, therefore, admissible under section 68D of the Act. Accordingly it is dismissed but with no order as to costs. S.R. Appeal dismissed. [/INST]The Central Secretariat Service (Amendment) Rules 1979 which inserted sub rule (2a) below sub rule (2) of Rule 12 of the Rules provided for the holding of a limited departmental competitive examination, including a statement of the conditions of eligibility and indicating how the selection would take place on such examination. The next higher category in the Central Secretariat Service above the Section officers ' Grade consists of Grade I posts. Recruitment to the Grade I posts are made under Rule 12 of the Central Secretariat Service Rules. For the purpose of such promotion a select list is prepared. Pursuant to an office Memorandum issued by the Department on 20th July, 1974, 15%, and 7%, of the promotion posts stand reserved for Scheduled Caste and Scheduled Tribes candidates respectively. The petitioners were permanent Section officers in the Central Secretariat Service and officiating as Under Secretaries in different Ministries. They alongwith several other officials were included in the field of selection for the purpose of drawing up the select list for the year 1977 for promotion to Grade I posts. Twenty seven vacancies reserved for members of the Scheduled Castes and Scheduled Tribes, remained unfilled because no candidate belonging to those categories was found suitable. For the purpose of filling those reserved vacancies, the Government of India decided to hold a limited departmental competitive examination confined to members of the Scheduled Castes and Scheduled Tribes. The petitioners argued that (i) the reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes by the office Memorandum dated 20th July, 1974 was invalid (ii) the newly enacted sub rule (2a) of Rule 12, in the Central Secretariat Service Rules and the related regulations were invalid and the rule operated prospectively only and could not affect the 27 vacancies to be filled in the select list of 1977. The Respondents took a preliminary objection that it was not a contention raised in the writ petitions and should not be allowed to be raised for the first time by way of oral submission. Dismissing the petition. ^ HELD: 1. The entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination. No relief has been sought for quashing the office Memorandum dated 20th July, 1974. No ground has been taken in the writ petitions assailing the validity of the office Memorandum. The Courts should 1185 ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment. It is not that justice should be available to only those who approach the court confined in a straight jacket; but there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. [1189D F] If undue laxity and a too easy informality is permitted to enter the proceedings of a court, it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness. [1189 F G] Oral submission raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice held it entitled, of adequately preparing its response. [1189G H] Whether or not reserved vacancies should be dereserved is a matter falling primarily within the administrative discretion of the Government. There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies. If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the office memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year. Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies. Dereservation as a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies. The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution. [1190G F] 3. Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed. It is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year. [1190 G H, 1191B] 4. The question of holding the examination arises only, as sub rule (2a) of rule 12 declares that when the reserved vacancies cannot be filled because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled if that is possible. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. There is no requirement in law that the select list pertaining to a particular year must be finalized within that year. [1191 E G, 1192 B] It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes 1186 were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. The select list for 1977, which included already ninety one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty seven reserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the select list was not declared final, no officer could claim any right. [1192B E] 6. It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules. The record indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission. [1192 GH, 1193A] General Manager, Southern Railway vs Rangachari, ; M. R. Balaji vs State of Mysore [1963] Supply. 1 S.C.R. 434 State of Kerala vs N. M. Thomas. , affirmed. </s>
<s>[INST] Summarize the judgementN: Criminal Appeal No. 646 of 1992. From the Judgment and Order dated 3.4.92 of the Gujarat High Court in Crl. A. No. 161 of 1992. T.U.Mehta, N.N. Keshwani, Ashok D. Shah, R.N. Keshwani and S.K. Gupta for the Appellant. Anip Sachthey and Badri Nath for the Respondent. The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. On 4th September, 1992 this Court had directed issue of notice on the Special Leave Petition as well as on application for bail returnable in four weeks and it was indicated that the matter will be heard and finally decided on that date. However, there is no appearance on behalf of the State today. Leave granted. The matter is being disposed of. This is an appeal by Special Leave against the judgment of the Division Bench of the Gujarat High Court dated 3rd April, 1992. Four accused persons were tried by Special Judge, Ahmedabad. Out of the said four accused only one of the accused person, namely accused No. 2, a Food Inspector has been convicted of offences punishable under Section 161 of the Indian Penal Code and Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act, 1947. The three other accused were acquitted by the learned Special Judge. The State tiled the appeal against the acquittal of the three acquitted accused whereas accused No. 2 filed an appeal against his conviction and sentence. The High Court dismissed the appeal of the State against the acquittal of accused No.1, 3 and 4 and at the same time dismissed the appeal of accused No. 2. Accused No. 2 has come up to this Court by way of a Special Leave Petition against the aforesaid decision of the Division Bench. The prosecution case is that the complainant Mohanlal Chhatramal Samnani is running a shop and inter alia dealing in Kimam opposite Maninagar Railway Station, Ahmedabad. On 7th January, 1984, the Chief Inspector in the Health Department (accused No.1) and accused No. 2 (appellant herein) and accused No. 4, who were working under him as Food Inspectors, had approached the complainant at his shop and stated that they had been inspecting the food articles for adulteration and took a bottle of Kimam and opened it for sample and the complainant told them that it may be taken in sealed condition but they refused to do so and stated that the sample would not be passed and the complainant would be put to difficulties. This was stated by accused No. 1 who further stated that the complainant should be practical. The complainant enquired as to what was meant by being practical and the accused No. 2 (appellant) replied that "being practical" means "money". The complainant then enquired as to the amount and he was told Rs. 5,000.00. The complainant was not willing to make such payment. However, he was pressurised. The complainant stated that he did not have that much money and, therefore, he was asked to pay whatever the amount he could pay immediately and the complainant opened his `galla ' and gave Rs. 600.00 to accused No. 1. The next day, on 8th January, 1984, accused No. 4 had come to his shop and enquired whether the money had been arranged but the complainant replied that it could not be done. However, under pressure he gave Rs. 500.00 to accused No. 4 and asked for more time for making arrangement for more amount. Thereafter, after about 15 days accused Nos. 2 & 4 had come to his shop demanding illegal gratification and the complainant requested for four days time. After four days again the accused Nos. 2 & 4 came to his shop and the complainant again stated that the money could not be arranged and he may be given two days time. After great difficulties, on complainant making a promise that he would pay the amount with 100% certainty, and on this final promise, accused Nos. 2 & 4 asked the complainant to keep the money ready on 30th January, 1984 at 3.00 p.m. On 30th January, 1984 the complainant approached the office of the Anti Corruption Bureau and gave his complainant. Two Panchas were called by the A.C.B. In the presence of those two Panchas, the numbers of 40 currency notes of Rs. 100.00 each were noted done in two batchs of 20 each. Each of these currency notes was treated with anthracene powder and a demonstration was made and shown to thc complainant and the Panchas. One bundle of Rs. 2000.00 was to be given to accused No. I and another bundle was to be given to accused Nos. 2 & 4. Panch No. 1 was to remain with the complainant and Panch No. 2 was to remain with the raiding party. After making this preliminary panchnama raided party went to Maninagar and the complainant and Panch No. 1 went to the shop at about 6.30 p.m. and the others waited outside a little away. After about an hour accused No. 2 came to the shop and the complainant asked accused No. 2 to come and sit but the accused No. 2 replied that he was in a hurry and asked the complainant to come with him where another Inspector was waiting near the Post Office. Therefore, the complainant went with accused No. 2 and Panch No. 1 followed them. Accused No. 3 and Jinto (absconding accused) were waiting and accused No. 2 introduced them to the complainant and asked the complainant as to what he had done about the money which was earlier talked about. The complainant replied that he had brought the money. The accused No. 2 demanded the same and the complainant took out the bundle of currency notes from one of his pockets and gave it to accused No. 2 who accepted it by his right hand and asked the complainant as to how much it was and the complainant replied that it was Rs. 2,000.00 and accused No. 2 asked as to for how many persons it was and the complainant replied that it was for three persons. The accused No. 2 asked accused No. 3 to count the same and while Modi, accused No.3, was counting the same, the complainant gave the signal and the raiding party which had followed them immediately came there alongwith Panch No. 2. All of them wont to the shop of the complainant where Modi was asked to give currency notes to the Panchas and exercise of ultra violet Iamp was undertaken and in the ordinary light, hands of each of the three Food Inspectors did not indicate any light change. Thereafter, under ultra violet light, hands of all were seen and the hands of Panch No. 2 and the members of the raiding party did not show any change on their hands. The hands of accused No.2 (appellant) were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue colour and white sparkle. So also was the position with regard to the right hand fingers and thumb of Jinto and his clothes, namely the right hand pocket of the pant, so also the fingers and thumb of both the hands of accused No.3, Modi, and the left hand pocket and the woollen cap of Modi showed white sparkle and the light blue colour. The numbers of currency notes were compared with the numbers which were recorded in the preliminary panchnama and they were found to tally. The currency notes also showed the anthracene powder in the ultra violet light. The complainant 's hands were also seen and they also showed the anthracene powder in ultra violet light so also both his inside pockets of the coat. Thereafter, the complainant and the Panchas went to the residence of accused No.1. The complainant alongwith Panch No.1 went to the first floor of the flat of accused No.1. Accused No.1 opened the door and asked these people to come inside and made them sit. The complainant offered money to accused No.1. He, however, refused to accept the same and, therefore, they came Out and no raid was made. As stated earlier all the accused were tried by the learned Special Judge and accused Nos. 1, 3, & 4 were acquitted and ultimately the appeal of the State against their acquittal was dismissed by the High Court. The High Court dismissed the appeal of accused No.2 also after noticing (i) that the Panchas did not recognize any of the accused persons; (ii) that there is no corroboration to what had happened in the meetings preceding the raid on 30th January, 1984; (iii) that the evidence of the complainant was disinterested and did not require any corroboration; and (iv) that the hands of accused No.2 were seen in ultra violet light and four fingers and thumb of the right hand showed the light blue colour and white sparkle. The High Court had acquitted accused Nos. 3 & 4 in spite of the fact that their fingers have also showed light blue colour and white sparkle in ultra violet light but the High Court was not prepared to rely on that circumstance alone with the uncorroborated testimony of the complainant. Since according to the High Court no demand had been made by accused Nos. 3 and 4 from the complainant for any bribe. It will be noticed that not only the two Panchas could not recognize any of the accused persons but there is no corroboration to the various statements of the complainant vis a vis accused Nos. 1 to 4 by the police officials who constituted the raiding party either. The raiding party including the police officials reached the spot at a time when they could neither hear the talk, if any, between the accused No. 2 and the complainant nor could see the alleged acceptance of money by accused No.2 and passing it on to accused No.3. We are thus left with the sole testimony of the complainant and the test of seeing anthracene powder on the hands and fingers of accused No.2. The High Court had acquitted accused No.3 and did not find it safe to convict him on the sole testimony of the complainant supported by the test of seeing anthracene powder on the hands and fingers of accused No.3. in ultra violet light. But on the same evidence the High Court upheld the conviction of accused No.2 relying on the same evidence which was rejected vis a vis accused No.3. The High Court felt that the complainant was totally dis interested in the success of the raid and could not be called interested person and thus felt no need for corroboration of his statement. The fact remains that the High Court totally ignored the statement of the complainant made during cross examination on behalf of accused No.2. In his cross examination the complainant stated; "It is true that accused No.2 used to carry out raids on and often on Pan gallas. It is true that I had felt that he is harassing businessmen selling Pan and Masalas. It is true that is why we thought of teaching him a lesson. It is true that in my statement before police, I have not stated that when accused No.1 asked as to why have you come, then I told that I am Kimamwala of Maninagar and according to talk with Shantilal, I have come to give money. " It is clear that it is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No.2 for harassing the businessmen selling Pan Masalas and, therefore, it could not be said that the complainant was not interested in success or otherwise of the raid. In fact the High Court acquitted accused No.3, though the evidence against him was the same as it was against accused No.2. When the High Court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No.3 we also find it unsafe to rely on the pise dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding party for upholding the conviction of accused No.2, appellant before us. The result is that the appeal succeeds, the conviction and sentence of the appellant is set aside and the appellant is acquitted. N.V.K. Appeal allowed. [/INST]This Court, by its order dated 20.11.1986, while disposing of Writ Petition (Crl.) No. 1061 of 1982, gave comprehensive directions for rehabilitation of Adivasis/landholders affected by the Rihand Super Thermal Power Project to be set up by the National Thermal Power Corporation Limited (NTPC), and appointed a Board of Commissioners to supervise the implementation of the said directions. Since then this Court was monitoring the project. Disposing of the proceedings and the monitoring process so far as the NTPC was concerned, this Court, HELD: In order to ensure that the rights of the oustees are determined in their respective holdings and they are properly and adequately compensated, the NTPC shall take, in collaboration with the State Government, the following measures to rehabilitate the evictees who were in actual physical possession of the lands/houses etc. : (i) The NTPC shall submit a list of the evictees claimants to the District Judge, Sonebhadra who shall be the final authority to finalise the list. (ii) One plot of land measuring 60 ' x 40 ' to each of the evictee families be distributed for housing purposes through the district administration. (iii) Shifting allowance of Rs. 1500 and in addition a lumpsum rent of Rs. 3000 towards housing be given to each of the evictee families. 858 (iv) Free transportation shall be provided for shifting. (v) Monthly subsistence allowance equivalent to loss of net income from the acquired land to be determined by the District Judge Sonebhadra subject to a maximum of Rs. 750 for a period of 10 years. The said payment shall not be linked with employment or any other compensation. (vi) Unskilled and semi skilled posts in the project shall be reserved for the evictees. (vii) The NTPC shall give preference to the oustees in employment in class III and IV posts under its establishment. (viii) The evictees be offered employment through the contractors employed by the NTPC. (ix) Jobs of contractors under the administration of the NTPC be offered to the evictees. (x) The shops and other business premises within the NTPC campus be offered to the evictees. (xi) The NTPC shall operate for the benefit of the evictees selfgenerating employment schemes such as carpentry training (free tools to be provided after completion of training) carpet weaving training, sericulture, masonary training, dairy farming, poultry farming and basket weaving training etc. (xii) The NTPC shall provide facilities in the rehabilitative area such as pucca roads, pucca drainage system, handpumps, wells, portable water supply, primary school, adult education classes, health centre, Panchayat Bhavan, sports centres, electricity connections, bank and sulabh Sauchalaya complex etc. The Deputy Commissioner Sonebhadra shall supervise and ensure that the rehabilitation measures are fully complied with. (xiii) As regards compensation for crops and land, the provisional compensation at the rate of Rs. 850 per acre per year for crops and Rs. 10,000 per acre for the land be paid to the oustees. [pp.861B H; 862A H; 863A B] 859 The District Judge Sonebhadra shall be the authority to determine the compensation. The orders passed by the District Judge shall be treated as orders under section 17 of the Indian Forest Act, as amended by U.P. Act 25 of 1965. [p.863B,F] </s>
<s>[INST] Summarize the judgementecial Leave Petition (C) No. 8566 of 1988. From the Judgment and Order dated 9.10.1987 of the Andhra Pradesh High Court in W.P. No. 306 of 1983. R. Mohan for the Petitioner. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition is for leave to appeal under Article 136 of the Constitution from the judgment and order of the High Court of Andhra Pradesh dated 9th October, 1987. The question that was urged before the High Court and the question which is sought to be raised in this petition is whether the respondent Pradesh Rayons Ltd. which is manufacturing Rayon Grade Pulp, a base material for manufacturing of synthetics or manmade fabrics is an industry as mentioned in Schedule I of the Water (Prevention and Control of Pollution) cess Act, 1977 for the purposes of levy of Water Cess under the Act. The water (Prevention and Control Of Pollution) Act, 1974 was passed by the Parliament to "provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith". For the aforesaid purposes, the Act contemplated creation of State Boards at State level and the Central Board at the national level. Thereafter, the being Act 36 of 1977 was passed (hereinafter called 'the Act '). The preamble to the said Act states that the said Act was "to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities, with a view to augment the resources of the Central Board and the State PG NO 383 Boards for the prevention and control of water pollution constituted under the ". Therefore, the said Act was passed only for the purpose of providing for levy and collection of cess on water consumed by persons carrying on certain industries with a view to augment the resources of the Central Board and the State Boards. Section 2(c) stipulates A `specified industry ' means any industry specified in Schedule T. Section 3 provides as follows: "3. Levy and collection of cess. (1) There shall be levied and collected a cess for the purposes of the and utilisation thereunder. (2) The cess under sub section ( I) shall be payable by (a) every person carrying on any specified industry; and (b) every local authority, and shall be calculated on the basis of the water consumed by such person or local authority, as the case may be, for any of the purposes specified in column (1) of Schedule II, at such rate, not exceeding the rate specified in the corresponding entry in column (2) thereof, as the Central Government may, by notification in the Official Gazette, from time to time, specify. " Therefore, this section provides for levy and collection of cess from the specified industries. Specified industry is one which is mentioned in Schedule I which is as follows: "1. Ferrous metallurgical industry. Non ferrous metallurgical industry. Mining industry. Ore processing industry. Petroleum industry. Petro chemical industry. Chemical industry. Ceramic industry. PG NO 384 9. Cement industry. Textile industry 11. Paper industry. Fertilizer industry. Coal (including coke) industry. Power (thermal and diesel) generating industry. Processing of animal or vegetable products industry. " Therefore, the short question, is, whether the industry run by the respondent herein for manufacturing Rayon Grade Pulp, a base material for manufacture of synthetics or man made fabrics is one of the industries mentioned in Schedule I hereinbefore. In this case, the respondent company was registered as company in 1975. The supply of energy to the company commenced on August 22, 1981 and the production began from September 1, 1981. The company manufactures rayon grade pulp of 26250 tonnes per annum. The Company was served with a notice on 12th August, 1981 to furnish the quantum of water consumed for assessment under the Act. Based on the returns filed by the respondent as required under section S of the Act, assessment of water cess was made by an order dated 31st December 1981. Aggrieved by the said order the respondent filed an appeal before the Appellate Committee constituted under the Act. The Appellate committee by its order dated 30th November, 1982 conformed the orders of the assessment passed by the petitioner. Before the Appellate Committee various contentions were urged and only one of such contention survives now and is agitated before us, namely, that the Rayon Industry is nOt included in Schedule I of the said Act. The Appellate Committee by its order said as follows: "We are unable to agree with the arguments advanced by the learned counsel. The appellant industry is manufacturing Rayon Grade Pulp which comes under the category of textile industry as it involves the production of Rayon Grade Pulp. a base material for manufacture of synthetic of man made fibres. ' ' PG NO 385 From the aforesaid, it appears that the Appellate Committee was of the view that the respondent herein was manufacturing Rayon Grade Pulp which comes under the category of Textile mentioned in Schedule I of the Act. Textile industry is item No. 10 in the aforesaid Schedule. Aggrieved by the decision of the Appellate Committee, the respondent herein filed writ petition challenging the constitutional validity of the Act as well as the levy of cess on water on the ground that it was not one of the industries mentioned in the Schedule. The High Court by its order dated 9th October, 1987 rejected the contention relating to the constitutional validity but upheld the contention that the respondent 's industry was not an industry which is mentioned in Schedule I and as such was not liable to pay cess. It is the propriety or the correctness of that decision which is sought to be canvassed before us by this petition. It must, therefore, be made clear that we are not concerned with the correctness or otherwise of the decision of the High Court about the constitutional validity of the Act in question. That is not at issue before us since the petitioner, Andhra Pradesh State Board for Prevention and Control of Water Pollution has not challenged that finding. The only question is whether the respondent is an industry as mentioned in the aforesaid schedule. The High Court in the impugned judgment has held that Rayon Grade Pulp is not covered by any of the items specified in the said Schedule. We are of the opinion that the High Court was right. Before us it was sought to be canvassed that Rayon Grade Pulp is covered either by Item No. 7 which is chemical industry or 13y item No. 10 which is textile industry or item No. I1 which is paper industry. We are unable to accept the contention. It has to be borne in mind that this Act with which we are concerned is an Act imposing liability for cess. The Act is fiscal in nature. The Act must, therefore, be strictly construed in order to find out whether a liability is fastened on a particular industry. The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to its natural construction of words. See the observations in Re Micklethwait, ; , 456. Also see the observations in Tenant vs Smith, ; and Lord Halsbury 's observations at page 154. See also the observations of Lord Simonds in St. Aubyn vs AG, ; at 485. Justice Rowlatt of England said a long time ago, that in a taxing ACt one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption at to tax. Nothing is to be read in, nothing is to be implied. One has to look fairly at the language used. See the observations in Cape Brandy Syndicate vs IRC, [1921]J 1 KB PG NO 386 64 at 71. This Court has also reiterated the same view in Gursahai Saigal vs C.I.T. Punjab, ; ; S.L. T. Madras vs V. MR. P. Firm, Muar, [1965] I SCR 815. and Controller of Estate Duty Gujarat vs Kantilal Trikamlal, ; The question as to what is covered must be found out from the language according to its natural meaning fairly and squarely read. See the observations in IRC vs Duke of Westminster, [1936] AC I at 24, and of this Court in A V Fernandez vs The State of Kerala, ; Justice Krishna Iyer of this Court in Martand Dairy & Farm vs Union of India, has observed that taxing consideration may stem from administrative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrian, interpretation must prevail. In this case where the question is whether a particular industry is an industry as covered in Schedule I of the Act, it has to be judged normally by what that industry produces mainly. Every industry carries out multifarious activities to reach its goal through various multifarious methods. Whether a particular industry falls within the realm of taxation, must be judged by the predominant purpose and process and not by any ancillary or incidental process carried on by a particular industry in running its business. Chemical process would be involved to a certain extent, more or less in all industries, but an industry would be known as a chemical industry if it carries out predominantly chemical activities and is involved in chemical endeavours. We fail to see that Rayon Grade Pulp could be considered even remotely connected as such with chemical industry or textile industry or paper industry. In all preparations, there is certain chemical process but that does not make all industries chemical industries. The expression "chemical" means, according to Collins English Dictionary. any substance used in or resulting from a reaction involving changes to atoms or molecules or used in chemistry. The Concise Oxford Dictionary, 8th Edition page 170 defines "chemical ' ' as made by or relating to, chemistry. Broadly and literally, in our opinion, it can be said that the Rayon Grade Pulp is neither chemical industry nor textile industry nor paper industry. We find it difficult on a broad and literal construction to bring the industry of the respondent into any of these categories. In other words, to find out the intention of the legislation, if possible it should be PG NO 387 found out from the language used in case of doubt. The purpose of legislation should be sought for to clarify the ambiguity only, if any. The fairest and most rational method, says Blackstone, to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. See Commentaries on the Laws of England by Blackstone (facsimile of 1st edition of 1765, University of Chicago Press, 1979 Vol. 1 p. 59.). The words are generally to be understood `in their usual and most known signification ', although terms of art `must be taken according to the acceptation of the learning in each art, trade and science. If words happen still to be dubious, we may establish their meaning from the context, which includes the preamble to the statute and laws made by the same legislator on the same subject. Words are always to be understood as having regard to the subject matter of the legislation. See Cross Statutory Interpretation, 2nd Edition page 21. This Court in Lt Col. Prithi Pal Singh Bedi etc. vs Union of India & Ors., [1983] I S.C.R. 393 at page 404 of the report reiterated that the dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. Therefore, the first question to be posed is whether there is any ambiguity in the language used. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. Bearing the aforesaid principle in mind, we find that there is no absurdity in the literal meaning. The purpose of the Act is to realise money from those whose activities lead to pollution and who must bear the expenses of the maintenance and running of the State Board. It is a fiscal provision and must, therefore, not only be literally construed but also be strictly construed. Having regard to the literal expression used and bearing in mind the purpose for the legislation, we arrive at a result that certain PG NO 388 industries have to pay the expenses of the maintenance and functioning of the State Boards. Considering the principle broadly and from commonsense point of view, we find nothing to warrant the conclusion that Rayon Grade Pulp is included in either of the industries as canvassed on behalf of the petitioner here and as held by the High Court in the judgment under appeal. In this case, we must also note that neither the water Pollution Board nor any authorities under the Act nor the High Court proceeded on any evidence how these expressions are used in the particular industry or understood in the trade generally. In other words, no principle of understanding in "common parlance" is involved in the instance case. In that view of the matter, we are of the opinion that the contention sought for by the petitioner is of no substance. Our attention, however, was drawn to the decision of a learned single Judge of the High Court of Kerala in M/s. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., Mavoor vs The Appellate Committee for Water Cess, Trivandrum and others, A.I.R. 1983 Kerala 110. There, the learned single Judge of the Kerala High Court held that industry manufacturing rayon grade pulp is chemical industry. The High Court has observed that the product of the Pulp Division of a rayon silk manufacturing company is rayon grade pulp, extracted from bamboo or wood. The High Court noted that the pulp produced in the Pulp Division of the company is the raw material for the Staple Fibre Division. The High Court further observed that the pulp in question is a chemical used as chemical raw material, in the form known as chemical cellulose, for preparation of fibres. The High Court noted that for the scientist cellulose is a carbohydrate an organic compound, a saccharide and for the layman also it is a chemical like salt and sugar. Manufacture of pulp from wood or bamboo involves consumption of large quantities of water which get polluted in the process; and "chemical industry ' ' in the context in which it is used in Schedule I of the Act, can therefore, include an industry manufacturing rayon grade pulp. We are unable, with respect, to accept the circuitous process of reasoning of the Kerala High Court. As mentioned hereinbefore, looked at from this circuitous method every industry would be chemical industry. It could not have been the intention to include all industries because every industry has to go to certain chemical process more or less and, therefore, it could not be so construed. Such expression should, therefore, be construed reasonably, strictly and from a commonsense point of view. The High PG NO 389 Court of Kerala has set out in the said judgment the company 's case in that case which also produced Rayon Grade Pulp and the manufacturing process consisted only of isolating cellulose present in bamboo and wood by removal of "lignin" and other contents, and that the resultant product is not chemical cellulose. It explained the process as under: "The actual process of manufacture of Rayon grade pulp is by feeding the raw materials on the conveyors leading to the chippers, where they are chipped into small pieces in uniform sizes. The raw materials are washed by a continuous stream of water before they are fed into chippers for removal of their adhering mud and dirt. The chips are then conveyed into Digesters, where they are subjected to acid pre hydrolysis, using dilute sulphuric acid solution. The spent liquor is then drained out, and the chips washed to remove the acid. The chips are again cooked using a solution containing cooking chemicals at high temperature of above 160C. After the chips are thus cooked the pressure is released, and the material is collected in a blow tank, from where the chipped pulp is sent to "Knotter Screen" for removal of uncooked particles. The pulp is washed in a series of washers in a counter current manner. The washed pulp is bleached in a multi staged Bleaching Plant, and converted into sheets in a continuous machine. The pulp sheets so obtained are sent to other factories for their conversion into Staple Fibre. " The said High Court also relied on a passage from the "Book of Popular Science" Grolier, 1969, Vol. 7, p. 55 which reads as follows: "Just what is a chemical, after all? Presumably it is a pure chemical substance (an element or compound) and not a mixture. Thus sulphuric acid is a chemical . But common salt and sugar, with which all of us are familiar, are also pure chemical substances . The truly chemical industries, which manufacture chemicals, are seldom well known to the public. This is because we, as consumers, do not ordinarily make use of chemicals in their pure form. Instead they are converted into products that reach the consumer only after a number of operations . " (Emphasis supplied) PG NO 390 As mentioned hereinbefore, the expression should be understood not in technical sense but from broad commonsense point of view to find out what it truly means by those who deal with them. Bearing the aforesaid perspective in mind, we are unable to agree with the view of the Kerala High Court expressed in the aforesaid judgment. In that conspectus of the Kerala High Court everything would be included in the process of chemical. In the aforesaid view of the matter we are of the opinion that the High Court of Andhra Pradesh in the impugned judgment was right and the High Court of Kerala in the judgment referred to hereinbefore was not right. In the aforesaid view of the matter this petition fails and is accordingly dismissed. [/INST]The respondent, Andhra Pradesh Rayons Ltd., manufacturing Rayon Grade Pulp, a base material for the manufacture of synthetics or man made fabrics, was assessed by the petitioner under the provisions of which provided for levy and collection of Water cess from the specified industries enumerated in Schedule I of the Act. On appeal, the Appellate late Committee confirmed the order of assessment on the ground that the respondent was manufacturing Rayon Grade Pulp which came under the category of Textile industry. The respondent filed a writ in the High Court challenging the levy Inter alia on the ground that it was not one of the industries mentioned in the Schedule. The High Court upheld this contention. Before this Court, it was sought to be canvessed by the petitioner that Rayon Grade Pulp was covered either by Item No. 7 of the Schedule, which was chemical industry, or item No. 10 which was textile industry, or item No.11 which was paper industry. Dismissing the petition, it was, PG NO 380 PG NO 381 HELD: (I) The Act being fiscal in nature must be strictly construed. The question as to what is covered must be found out from the language according to its natural meaning, fairly and squarely read. [385F; 386B] (2) In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax, there is no presumption as to tax. Nothing is to be read in, nothing is to be implied. [385H] (3) Whether a particular industry is an industry covered in Schedule I has to be judged normally by what that industry produces mainly, its predominant purpose and process, and not by any ancillary or incidental process carried on by it. [386D] (4) Chemical process would be involved to a certain extent, more or less in all industries, but an industry would be known as a chemical industry if it carries out predominantly chemical activities and is involved in chemical endeavours. [386E] (5) Taxing consideration may stem from administrative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrian, interpretation must prevail. [386C] (6) One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should accept literal construction if it does not lead to an absurdity. [387E] (7) There is no absurdity in the literal meaning. Broadly and literally it can be said that the Rayon Grade Pulp is neither chemical industry nor textile industry nor paper industry. [387G;386H] In Re Micklethwait., [1885] II EX 452. 456; Tenant vs Smith; , ; St. Aubyan vs AG., [1951] 2 All E.R. 473; Cape Brandy Syndicate vs IRC. , at 71; Gursahai Saigal vs C.I.T. Punjab, ; ; C.I.T. Madras vs MR. P. Firm, Muar, ; ; Controller of Estate Duty, Gujarat vs Kantilal Trikamlal, ; ; IRC vs Duke of Westminster, at 24; AV Fernandez vs The State of Kerala, ; ; Martand Dairy & Farm vs Union of India, [1975] Supp. SCR 265; Lt Col. Prithi Pal Singh Bedi vs Union of India, , referred to. PG NO 382 M/s. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. Mavoor vs The Appellate Committee for Water Cess, Trivandrum, A.I.R. 1983 Kerala 110. overruled. </s>
<s>[INST] Summarize the judgementAppeal No. 328 of 1959. Appeal by special leave from the judgment and order dated 23rd February, 1956, of the Bombay High Court in Income tax Reference No. 34 of 1955. K. N. Rajagopala Ayyangar and D. Gupta, for the appellant. Rameshwar Nath, section N. Andley, J. B. Dadachanji and P. L. Vohra, for the respondent. December 1. The Judgment of the Court was delivered by HIDAYATULLAH, J. The Commissioner of Incometax has filed this appeal, with special leave, against the judgment and order of the High Court of Bombay, by which the High Court answered two questions referred to it in favour of the respondents, Messrs. Dwarkadas Khetan & Co., Bombay. These questions were: "(1) Whether the instrument of partnership dated 27 3 1946 created a deed of partnership? (2). If the answer to question No. 1 is in the affirmative, whether the fact that on 1 1 1946 there was no firm in existence would be fatal to the application for registration of the firm under Section 26A of the Indian Income tax Act or whether the firm could be registered with effect from 26 3 1946 if it is held that the firm was genuine?" Prior to January 1, 1945, there was a firm called Dwarkadas Khetan & Co. On that date, the firm ceased to exist, because the other partners had previously withdrawn, and it came to be the sole proprietary concern of Dwarkadas Khetan. On February 12, 1946, Dwarkadas Khetan obtained the selling agency of Seksaria Cotton Mills, Ltd. On March 27, 1946, he entered into a partnership, with three others 823 by an instrument of partnership executed that day. Those three others were Viswanath Purumul, Govindram Khetan and Kantilal Kasherdeo. Dwarkadas Khetan 's share in the partnership was 7 annas in the rupee, while the remaining 9 annas ' share was divided equally among the three others. Though Kantilal Kasherdeo was a minor, he was admitted as a full partner and not merely to the benefits of the partner ship, as required by section 30 of the Indian Partnership Act. To the instrument of partnership, Kantilal Kasherdeo was also a signatory, though immediately after his signature there was the signature of one Kasherdeo Rungta, the natural guardian of the minor. In the instrument, Kantilal Kasherdeo was described as a full partner entitled not only to a share in the profits but also liable to bear all the losses including loss of capital. It was also provided that all the four partners were to attend to the business, and if consent was needed, all the partners including the minor had to give their consent in writing. The minor was also entitled to manage the affairs of the firm, including inspection of the account books, and was given the right to vote, if a decision on votes had to be taken. In short, no distinction was made between the adult partners and the minor, and to all intents and purposes, the minor was a full partner, even though under the partnership law he could only be admitted to the benefits of the partnership and not as a partner. The deed of partnership was produced before the Registrar of Firms showing the names of the four partner,%. The Registrar of Firms granted a registration certificate, and in the certificate, Kantilal Kasherdeo was shown as a full partner and not as one entitled merely to the benefits of the,, partnership. Banks were also informed about the four partners, and. it does not appear that to them intimation was sent that one of the named partners was a minor. Though the partnership came into existence on March 27, 1946, the firm was stated to have started retrospectively from January 1, 1946. It may be pointed out that the firm has the calendar year as its account year, and the matter before us refers to the account year, 1946 corresponding to the assessment year, 1947 48. 824 For purposes of that year, registration of the firm was sought under section 26A of the Indian Income tax Act. The Income tax Officer refused to accord registration on the ground that a minor had been admitted as a partner contrary to law, and that the deed could not, therefore, be registered. The appeal to the Appellate Assistant Commissioner also failed, the Commissioner holding that registration could only be of a legal or valid document and not of a document which was invalid in law. An appeal was then taken to the Tribunal, and it was contended that the document must be construed as showing only that the minor was admitted not as a full partner but to the benefits of the partnership. The Accountant Member hold that the order of the Appellate Assistant Commissioner was correct, giving two reasons. The first was that the construction sought to be placed upon the document was not open, and the second, that since retrospective operation was given to the firm even though no firm existed from January 1, 1946, registration could not be granted. The Judicial Member differed from the Accountant Member, holding, as was contended, that the document must be construed as showing merely that the minor had been admitted to the benefits of the partnership. The appeal was then placed before the President, who agreed with the conclusion of the Accountant Member, with the result that the refusal to register the firm under section 26A by the authorities was upheld. Two questions were then posed for the decision of the High Court. The High Court differed from the Tribunal, and answered both the questions in favour of the assessee. In so far as the second question is concerned, the matter is now settled by the decision of this Court in B. C. Mitter & Sons vs Commissioner of Income tax (1). But, in our opinion, the decision of the High Court on the first question was not correct, and the correct answer does not leave the second quest ion open at all. There is a distinct cleavage of opinion among the High Courts on this point. The Bombay, Madras and (1) 825 Patna High Courts have held that where a minor is admitted as a full partner by adult partners, the document can be registered after interpreting it to mean that the minor has been admitted to the benefits of partnership and not as a full partner. The Calcutta, Allahabad and Punjab High Courts have taken a contrary view. The Bombay case is the one which is under appeal, and the Patna High Court followed that decision and the two earlier decisions of the Madras High Court. The Madras High Court decisions are of the same Divisional Bench, and were pronounced on the same day. The leading case in support of the respondents is the Madras decision reported in Jakka Devayya and Sons vs Commissioner of Income tax (1), and that case alone needs to be considered, because all the reasons on which the cases on this side have proceeded are given there. In that case, there were three partners, one of whom was a minor. They formed a Hindu undivided family; later, a deed of partnership was executed in which the minor was represented by his father in law. It was held that the fact that the minor was included as a partner did not make the partnership as between the two adult partners invalid, and that the minor must be deemed to have been admitted to the benefits of the partnership by the two adults. The learned Judges referred to the provision of section 2 (6 B) of the Income tax Act, where it is provided: " "Partner" includes any person who being a minor has been admitted to the benefits of partnership;", and observed that in view of this definition and the fact that a minor could be admitted to the benefits of partnership under section 30, the document was not invalid, but must be read as giving to the minor the rights laid down by the Partnership Act. They also observed that too rigid a construction need not be put upon the deed, and referred to Lindley on Partnership, 11th Edn., p. 87 and A. Khorasany vs C. Acha and Others (2). The other cases which we need not examine are Vincent and Others vs Commissioner of (1) (2) Ran. 826 Income tax and Sahai Brothers vs Commissioner of Income tax On the other hand, there is a decision of the Calcutta High Court reported in Hoosen Kassam Dada vs Commissioner of Income tax, Bengal (3), in which Costello and Panckridge, JJ. have held that under section 26A of the Income tax Act and the Rules, the Income tax Officer is only. empowered to register a partnership which is specified in the instrument of partnership and of which registration is asked for. The learned Judges, therefore, hold that it is not open to the Department to 'register partnership different from that which is formed by the instrument. In Hardutt Ray Gajadhar Ram vs Commissioner of Income tax(4) Malik, C. J. and Seth, J. hold that where a minor is admitted as a full partner with equal rights and obligations with adults, the deed is invalid. It is pointed out that the English law on the subject is different. In that case, however, there was one other ground for invalidating the deed, because the minor had been adopted into another family and his natural father who had signed as his guardian in the deed could not do so, as he had ceased to be the natural guardian. The decision, however, supports the case of the Commissioner. In Banka Mal Lajja Ram & Co. vs Commissioner of Income tax (5), it is held that a minor cannot be a partner, and that the partnership which admits a minor as full partner cannot be registered. It is true that in that case the High Court did not consider the question whether the partnership should have. been taken to be a valid partnership consisting of the adult partners, because no such question was referred. The decision, however, is against a claim for registration of such a document. In our opinion, the Calcutta vie ' is preferable to the view taken by the Madras High Court. The error in the Madras view is in using the definition to show that a deed including a minor as a competent partner (1)[1952] (3)[1937] (2)[1950] (4)[1950] (5)[1953] 827 is valid. What the definition does is to apply to a minor admitted to the benefits of partnership all the 2 provisions of the Income tax Act applicable to partners. The definition cannot be read to mean that in every case where a minor has, contrary to law, been admitted as a full partner, the deed is to be regarded as valid, because, under the law, a minor can be admitted to the benefits of partnership. The Rules which have been framed under section 26A quite clearly show that a minor who is admitted to the benefits of partnership need not sign the application for registration. The law requires all partners to sign the application, and if the definition were to be carried to the extreme, even a minor who is admitted to the benefits of partnership would be competent to sign such an application. The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of Partnership must be considered, apart from the definition in the Income tax Act. Section 30 of the Indian Partnership Act clearly lays down that a minor cannot become a partner, though with the consent of the adult partners, he may be admitted to the benefits of partnership. Any document which goes beyond this section cannot be regarded as valid for the purpose of registration. Registration can only be granted of a document between persons who are parties to it and on the covenants set out in it. If the Income tax Authorities register the partnership as between the adults only contrary to the terms of the document, in substance a new contract is made out. It is not open to the Income tax authorities to register a document which is different from the one actually executed and asked to be registered. In our opinion, the Madras view cannot be accepted. The judgment under appeal has followed the Madras view, and, in our opinion, it falls into the same error in which the Madras High Court had fallen earlier. The answer to the first question should, therefore, have been in favour ;of the Department. The answer given by the High Court is vacated, and 828 the question will now be answered in the negative. As already stated, there is no need to answer the second question, which does not arise. The appeal is allowed with costs here and in the High Court. Appeal allowed. [/INST]The appellants, a Hindu undivided family, carrying on business in the former State of Mysore, were assessed under the Mysore Income tax Act for the year of assessment 1949 50 corresponding to the year of account July 1, 1948, to June 30, 1949. The Indian Income tax Act came into force in that area in April 1, 1950, and on December 26, 1950, notice under section 22(2) of that Act was served upon the appellants to submit their return for the assessment year 1950 51. On September 8, 1952, the appellants submitted their return stating that they had no assessable income for that year. The Income Tax Officer passed on that return an order, "no proceeding", and closed the assessment. When the appellants submitted their return for the next assessment year, their books of account disclosed an opening cash credit balance of Rs. 1,87,000 and odd on July 1. 1949. They failed to produce the books of account of the previous years, and the Income tax Officer held that Rs. 1,37,000 out of the said opening balance represented income from an undisclosed source. The appellants submitted a fresh return for the assessment year 1950 51 purporting to do so under section 22(3) of the Indian Incometax Act. Pursuant to the direction of the Appellate Assistant Commissioner, the Income Tax Officer on October 15, 1957, served on the appellants a notice under section 34 of the Act and thereupon the appellants moved the High Court under article 226 for an order quashing the said notice and the proceeding as without jurisdiction. The High Court dismissed the petition. Held, that it was not correct to say that the issue of the notice for reassessment was without jurisdiction as the assessment was yet pending. Under section 23(1) of the Indian Income tax Act, it is open to the Income tax Officer, if he is satisfied as to correctness of the return filed by the assessee, to assess the income and determine the sum payable on the basis of the return without requiring the assessee either to be present or to Produce evidence. The order 'no proceeding recorded on the. return must, therefore, mean that the Income Tax Officer bad accepted the previous return and assessed the income as nil. A revised return under section 22(3) filed by the assessee may be 912 entertained only before the order of assessment and not thereafter. Lodging of such a return after the assessment is no bar to reassessment under section 34(1) of the Act. It could not be said, having regard to the provisions of section 13(1) of the Finance Act (XXV of 1950) and cl. 5(1) of Part. B States (Taxation Concessions) Order 1950, issued by the Central Government under section 60A of the Indian Income tax Act, that for the assessment year 1950 51 the appellants were assessable under the Mysore Income tax Act and not under the Indian Income tax Act. </s>
<s>[INST] Summarize the judgemention No. 91 of 1964. Petition under article 32 of the Constitution of India for the enforcement of fundamental rights and Civil Appeal No. 358 of 1966. Appeal by special leave from the judgment and order dated September 9, 1963 of the Allahabad High Court in Civil Writ Petition No. 1885 of 1962. J.P. Goyal and Raghunath Singh, for the petitioner (in W.P. No. 91 of 1964). A.K. Sen, J. P. Goyal and Raghunath Singh, for the appel lants (in C.A. No. 358/66). B.Sen and section P. Nayar, for respondent No. 1 (in W.P. No. 91 of 1964) and respondents Nos. 3 and 4 (in C.A. No. 358 of 1966). N.N. Sharma, for respondent No. 2 (in W.P. No. 91/64) and respondents Nos. 16 and 17 (in C.A. No. 358/66). 843 The Judgment of the Court was delivered by Bbargava, J. This writ petition and the appeal challenge the validity of the Hindi Sahitya Sammelan Act No. 13 of 1962 (hereinafter referred to as "the Act"). The facts leading up to the passing of this enactment are that, in the year 1910, some eminent educationists assembled at Banaras and founded an Association for the development of Hindi and its propagation throughout the country. This Association was named as the Hindi Sahitya Sammelan. On the 8th January, 1914, it was registered as a Society under the No. 21 of 1860, with Head Office at Allahabad, under the name of Hindi Sahitya Sammelan. The rules and bye laws of the Society laid down the objects of this Association and the manner of its working. It had three classes of members, viz., special members (Vishisht Sadasya), permanent members (Sthayi Sadasya), and ordinary members (Sadharan Sadasya). Under the bye laws, apart from the original members constituting the Society, further mem bers could be admitted under these three classifications on being elected by the working committee of the Society. Under the Rules and bye laws of the Society, other bodies could be constituted for carrying on activities of the Society. These included a Governing Body, a Working Committee, a Hindi University Council, Literary Council (Sahitya Samiti), Library Committee, Parchar Samiti and Rashtriaya Bhasha Prachar Samiti. Through the agencies of these various Committees, the Society carried on the work of development and propagation of Hindi, of spreading the use of Devnagri scrip, of holding examinations, and of confer ring Degrees for proficiency in Hindi. The Society owned landed properties and buildings at Allahabad as well as at some other places such as Warding, and was holding considerable funds for carrying on its activities. The Society worked very successfully for a number of years. It appears that in the year 1950, some differences arose between the members of the Society, and attempt was made to alter the constitution, of the Society. while one section wanted the alterations, another section was opposed to it. This resulted in litigation. Three different suits were instituted in the civil Courts at Allahabad in this connection and injunctions were sought by one party against the other. Ultimately, the Court appointed a Receiver. In view of these circumstances, the U.P. Legislature passed an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36 of 1956, under which a statutory body was created under the name of Hindi Sahitya Sammelan, and the word "Sammelan" was defined as referring to the Hindi Sahitya Sammelan constitu ted under the Act. Under that Act. Under that Act, the mana 844 gement and properties of the original Hindi Sahitya Sammelan, which was a registered Society, were to be taken over by the new statutory Sammelan. That Act was, however, declared void by the Allahabad High Court on the ground that Act had made the original Sammelan cease to exist and provided for the constitution of a new Sammelan under its terms in which the members of the original Sammelan had no say, so that Act infringed the right of the members of the original Sammelan of forming an association guaranteed by article 19 (1) (c) of the Constitution. It was further held that Act was not saved under article 19(4) of the Constitution. Thereafter, the present Act, now challenged in this writ petition and the appeal, was passed by Parliament under Entry 63 of List I of the Seventh Schedule to the Constitution. The Act itself, in section 2, contained the necessary declaration to give legislative competence to Parliament under that Entry. The Act first contained in section 2 a declaration in the following words : "Whereas the objects of the institution known as the Hindi Sahitya Sammelan which has its head office at Allahabad are such as to make the instituation one of national importance, it is hereby declared that the institution known as the Hindi Sahitya Sammelan is an institution of national importance. " Having declared this institution as an institution of national importance, th. , Act proceeded to define "Sammelan" as meaning the institution known as the Hindi Sahitya Sammelan incorporated under this Act, while the word "Society" was defined to mean "the Hindi Sahitya Sammelan which has its head office at Allahabad and is registered under the ." Under section 4(1) of the Act, the Sannnelan was constituted which was to consist of the first members of the Sammelan and all persons who may hereafter become members thereof in accordance with the rules made in that behalf. This statutory Sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan, and under sub section (2) of section 4, it was to have perpetual succession and a common seal with power, subject to the provision of the. Act, to acquire, hold and dispose of property and to contract and to sue and be sued by that name. The Head Office of the Sammelan was to be at Allahabad. Under subs.(4) of section the first members of the Sammelan were to consist of persons who, immediately before the appointed day. (a) were special members (Vishisht Sadasya) of the Society; 8 45 (b) (were. life members (Sthayi Sadasya) of the Society. (c) had been Presidents of the Society; or (d) were awarded the Mangla Prasad Paritoshik by the Society. This sub section (4) of section 4 was amended retrospectively with effect from the date that the Act came into force by the Hindi Sahitya Sammelan (Amendment) Act No. 1 of 1963, and the first members of the Sammelan were, under this amendment, declared to be (a) all persons who, immediately before the appointed day, were members of the Society; (b) all persons who, before that day, had been Presidents of the Society; and (c) all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society. It is not necessary to give in detail the other provisions of the Act, except that it may be mentioned that the Act provided for vesting of all property, movable or immovable, or, belonging to the Society in the Sammelan, transferring all rights and Liabilities of the Society to the Sammelan, converting reference to the Society in any law to the Sammelan, and other similar necessary provisions. The Act itself did not make any provision for the future membership of the Sammelan; but, under section 12(1) (a), the first Governing Body of the Sammelan was directed to make rules in respect of matters relating to membership, including qualifications and disqualifications For membership of the Sammelan. The first Governing Body was to be constituted under section 8 and was to consist of a Chairman, a Secretary and 13 other members. This Governing Body was to be constituted by a notification in the Official Gazette by the Central Government. The thirteen members were to be chosen as follows : (i) one member to represent the Ministry of the Central Government dealing with education; (ii)one member to represent the Ministry of the Central Government dealing with finance; (iii)not more than three members from among the former Presidents of the Society; and (iv)the remaining number from among persons who are, in the opinion of the Central Govern 846 ment, eminent in the field of Hindi language or Hindi literature. It was this first Governing Body which was to make rules on all matters relating to membership of the Sammelan under section 12 (1 )(a) of the Act. These rules were not have effect until they were approved by the Central. Government and were published by the first Governing Body in such manner as the Central Government may, by order, direct. A copy of the rules was also to be laid before each House of Parliament. Counsel for respondent No. 1 placed before us a copy of the rules which, according to him, have been made by the first Governing Body with the approval of the Government and have been published as required. The Rules come into force on 1st of February, 1971. The petition under article 32, and the petition under article 226, out of which the civil appeal arises, were both moved much earlier and long before these Rules were framed. These petitions challenged the validity of the Act, without taking into account the actual Rules framed, mainly on the ground that he Act had interfered with the right of the petitioners to form association Linder article 19(1)(c) of the Constitution and was not protected by article 19(4). In the petition before the Allahabad High Court, the Court held that, since all the members of the Society had also become members of the Sammelan under the Act, there was no infringement of the right to form association, so that the Act could not be declared invalid on that ground. The writ petition in this Court has been filed by only one member of the Society, while the petition in the High Court and the appeal against the judgment of the High Court, which is before us, were filed by the original Hindi Sahitya Sammelan as one party and 72 members of that Sammelan joining as other petitioning parties. 'In the civil appeal, thus, the grievance that the Act ha$ infringed the fundamental right has been put forward both by the Society itself as well as by 72 of its members, including members of the Working Committee and the Governing Body of the society. They have all come up to this Court against the decision of the High Court in this appeal by special leave. In the counter affidavits filed on behalf of the respondents in the writ petition before the High Court as well as in the writ petition in this Court, the position taken up was that the Act, in fact, does not deprive the Society and its members of any rights which they had under the constitution of the Society and did not interfere with their right of association inasmuch as all the members of the Society have been included as members of the Sammelan under the Act. The High Court, in fact, dismissed the writ petition on accepting this submission put forward on behalf of the respondents. In the arguments before us, learned counsel for 847 respondent No. 1, however, took UP a different position and urged that the Act keeps the Society in tact as it was, where a new Sammelan is constituted under the Act for the purpose of managing the institution which has been declared as an institution of national importance. He put this aspect of the case in the forefront, but, in the alternative, he also argued the case on the basis of the position taken up in the counter affidavits in the High Court and in this Court as mentioned above. We consider it convenient to first deal with the case as was specifically put forward in the counter affidavits. In these counter affidavits, the position taken up is that, having declared the old Hindi Sahitya Sammelan, which was a Society registered under the , as an insti tution of national importance, Parliament has proceeded to legislate in respect of it under Entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going on inter se between the members of the Society. It was for this purpose that a first Governing Body was constituted to take over the management temporarily. The Act was designed to reconstitute the Sammelan in such manner that it could work successfully and without difficulties and, in making provision for this purpose, all members of the old Society were included as members of the Sammelan, so that their right of forming association may not be taken away from them. The Society was never dissolved; instead of the Society remaining a body registered under the , it was converted into a statutory Sammelan under the Act. It, however, appears on examination of the provisions of the Act that the Sammelan under the Act is composed not only of persons, who were members of the Society, but of others who have been given the right to be members of the Sammelan without the consent of the preexisting members. Under section 4(4) itself, as retrospectively amended in 1963, apart from persons, who were members of the Society, others, who have been made members of the Sammelan, are all persons who, before that day, had been Presidents of the Society and all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society. These members have been added without any option being available to the existing members of the Society to elect or refuse to elect them as members which was the right they possessed under the constitution of the Society itself. Further, under section 12 (1) (a), very wide powers were given to the first Governor Body to make rules in respect of matters relating to membership, including qualifications and disqualifications for membership of the Sammelan. Under this power, the rules framed could make 10 L1100 SupCI71 848 provision for admission of persons as members whom the original members of the Society may never have liked to admit in their Society. The number of such new members could even be so large as to leave the original members in a small minority with the result that those members could become totally ineffective in the Society. Even in the Rules actually framed, there is provision for admission of members under various classes. In addition to the persons mentioned in section 4(4) of the Act, Rule 6 proVides for membership of persons who may become Sabhapatis of the Sammelan for any annual session subsequent to the Act coming into force, and persons who may be awarded Mangala Prasad Paritoshik subsequent to the Act coming into force. Under Rules 7, 8, and 9, new Vishisht Sadasyas, Sthayi Sadasyas, and Sadharan Sadasyas can be admitted to the membership of the Sammelan on payment of Rs. 1,000/ or Rs. 300/ , as the case may be. This admission to membership, according to the Rules, will be made by the new Karya Samiti to be elected under the Rules and not by the Working Committee of the original members of the Association. Further, under section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceeding 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the, Central Government from among educations of repute and eminent Hindi scholars. These 7 nominees are to be chosen by the Central Government and on becoming, members of the Governing Body, under Rule. 11 they become members of the Sammelan. Under Rule 10, educational institutions can also be admitted as Sanstha Sadasyas of the Sammelan by the new Karya Samiti and, thereupon, a representative of each of such institution has right to participate in ' proceedings of the Sammelan, exercising all the rights of a member. It will, thus, be seen that the Sammelan, which has come into existence under the Act, is not identical with the Sammelan which was registered as a Society under% the . Certain persons have been added as members by the Act and by the Rules. Admission of future members is no longer at the choice of the original members who ' had formed the Asso ciation,Persons, in whose admission as members the members of the, Society, had no hand, can become members and get the right of associating with them in the Sammelan, without the original members having any right to obecti. this is clear interference with the right to form an association which had been exercised by the members of the Society by forming the Society with its constitution, under which they were members and future members could only come in as a result of their choice by being elected by their Working Committee. We are unable to agree with the High Court that the new Sammelan, as constituted under the Act, 849 is identical with the Society and that all the rights of forming an association, which were being exercised by members of the Society, have been kept in tact under the Act. It was argued that the right guaranteed by Article 19 (1 (c) is only to form an association and, consequently, any regulation of the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by this Court that, after an Association has been formed and the right under article 19 (1) (c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire. Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership, they had no say. Such alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders. The right to form an association, in our opinion, necessarily, implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily, admit in the Associate on. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which. takes away the membership of those who have voluntarily Joined it, will be a law violating the right to form an association. If we were to accept the submission that the right guaranteed by article 19 ( 1 ) (c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership, either chosen by the founders or regulated by rules made by the Association itself, the right would be meaningless because, as soon as an Association is formed, a law may be passed interfering with its composition. , so that the Association formed may not be able to function at all. The right can be effective only if it is held to include within it the right to continue the, Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court though not in plain words, in the case of O. K. Ghosh and Another vs E. X. Joseph("). The Court, in that case. was considering the validity of Rule 4 (B) of the Central Civil Service,,, (Conduct) Rules, 1955, which laid down that: (1)[1963] Supp 3 S.C.R. 789. 850 "No Government servant shall join or continue to be a member of any Service Association of Government servants (a)which has not, within a period of six months from its formation, obtained the recognition of the Government under the Rules prescribed in that behalf; or (b)recognition in respect of which has been refused or withdrawn by the Government under the said Rules. " This Court held: "It is not disputed that the fundamental rights guaranteed by article 19 can be claimed by Government servants. article 33 which confers power on the Parliament to modify the rights in their application to the Armed Forces, clearly brings out the fact that all citizens including Government servants, are entitled to Claim the rights guaranteed by article 19. Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co employees are entitled to form Associations or Unions. It is clear that Rule 4 B imposes a restriction on this right. It virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said citation is withdrawn or if, after the Association is formed, no recognition is Aaccorded to it within six months. In other words, the right to form an Association is conditioned by the existence of the recognition of the said Association by the Government. If the Association obtains the recognition and continues to enjoy it, Government servants can become members of the said Association; if the Association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be the members of the said Association. That is the plain effect of the impugned rule. " The Court in the above passage, thus, accepted the principle that the Government servants, who may have formed an Association. could not, be compelled to resign from it by imposition of a condition of recognition of this Association by the Government and that if the Government servants are required to cease to be members that would be a violation of the right under article 19 (1) (c). The Court, of course, in that case, further proceeded 'to examine whether such a restriction on the right could be justified under 851 article 19(4) or not. That case, thus, supports our view that the right to form an Association includes the right to its continuance and any law altering the composition of the Association compulsorily will be a breach of the right to form the Association. This Court had also proceeded on the same basis in the case of State of Madras vs V. G. Row(1). Though this aspect was not clearly brought out in the judgment, the point, which came up for consideration, was decided on the basis that persons forming, an Association had a right under article 19 (1) (c) to see that the composition of the Association continues as voluntarily agreed to by them. That decision was given in an appeal from a judgment of the High Court of Madras reported in V. G. Row,v. The State of Madras(2). In the High Court, this principle was clearly formulated by Rajamannar, C.J., in the following words : "The word "form" therefore, must refer not only to the initial commencement of the association, but also to the continuance of the association as such. " The Act, insofar as it interferes with the composition of them Society in constituting the Sammelan, therefore, violates the right of the original members of the Society to form an association guaranteed under article 19(1) (c). Article 19(4), on the face of it, cannot be called in aid to claim validity for the Act. Under article 19(4), reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. It has not been contended on behalf of the respondent, nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Act was. in the interests of the sovereignty and integrity of India, or in, the interests of public order or morality. Not being protected under article 19(4), if must be held that the provision contained, in the Act for reconstituting the Society into the Sammelan is, void. Once that section is declared void, the whole Act becomes. ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the Act. In view of this position emerging in the course of argu ments, Mr. B. Sen put forward an entirely different and alter native case before us which we have mentioned earlier. position he took up was that the Act nowhere specifically lays. down that the Society small stand dissolved, while it does constitute a new Sammelan. According to him, therefore, it should (1) ; (2) A.I.R. 1951 Mad. 852 be inferred that, while the Society still continues to exist in its original form, the law has brought into existence a new Sammelan to which all the functions, properties, etc. of the Society have passed under the Act. There are three reasons why this alternative submission cannot be accepted as ensuring the validity ,of the Act. The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and indepedent body in the form of a new Sammelan. Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will ,arise of the Legislative competence of Parliament to pass such :a law. Constitution of Societies is under List 11 of the Seventh Schedule. Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan, Allahabad was an institution of national importance. The institution that was declared was the Society itself. It was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance There can, of course, be cases where a Society may be running a college, a school or some other like institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such In the present case, what section 2 of the Act did was to declare the Society itself as an institution of national importance, and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to, be put forward, the Act keeps that Society in tact, but deprives it of all its functions and properties and transfers them to 'a newly constituted body, viz., the Sammelan, as defined under the Aet. This Sammelan is itself a body corporate, and that Sammelan has never been declared as an institution of national importance. The only institutaion that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance. The third reason why this submission must be rejected, is that, if we were to hold that Parliament pased this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene article 19(1)(f) of the Constitution. On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them to the new Sammelan. This Sammelan is a new, separate and distinct legal entity from the Society. The Society is, thus ' deprived of all its properties by the Act. Such a law depriving the Society of its properties al 8 5 3 together cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property. The property, under section 5 of the , vested in the Governing Body of the Society. The members of the Governing Body, therefore had the right to hold the property under article 19(1)(f) and they having been deprived of that property have rightly approached the Courts for redress of their grievance. In this connection counsel for the respondents relied on decision of this Court in The Board of Trustees, Ayurvedic and Unnanii Tibia College, Delhi vs The State of Delhi and Another(1), where the Board of Trustees of the Ayurvedic and Unani Tibbit College, Delhi was dissolved by the Tibbia College Act, 1952, and the property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act. The Court held that there was no violation of the fundamental rights guaranteed by article 19(1)(f) or article 31 That decision, however, proceeded on the basis that the property of the original Society registered under the had vested in the Board of Trustees which had been dissolved and the property, thereafter, did not vest in the members of the Society in view of the provisions of the Act of 1860. In these circumstances, it was held that no one could complain that his right to property under article 31 or his right to hold the property under article 19 (1) (f) had been violated by the impugned Act. In the present case, the applicability of article 19(1)(f) is being considered by us on the assumption that the old Society still exists as it was and, yet all its properties have been transferred to the Sammelan. If the Society still exists, so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act. This total deprivation of property, instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest. It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess. The remedy, however, could not lie in depriving the Society of its property altogether. Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their (1) [1962] Suppl. I S.C.R. 156. 854 right to hold the property, the law cannot be justified as a reasonable restriction under article 19(5). Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid. As a result, the petition and the appeal are both allowed with costs. The Act is declared to be invalid, so that there will be restraint on the concerned bodies, including the Union Government, from taking or continuing any action under the Act. There will be one hearing fee. R.K.P.S. Petition and Appeal allowed. [/INST]The Hindi Sahitya Sammelan (hereinafter referred to as the Society) was a registered society founded for the development and propagation of Hindi. After a number of years of its successful working differences arose between its members and this resulted in litigation. in 1956 the Uttar Pradesh legislature passed the U.P. Sahitya Sammelan Act, under which a statutory body was created under the name of Hindi Sahitya Sammelan. This act was declared void by the Allahabad High Court as violating the freedom of association guaranteed under article 19(1)(c) of the Constitution. Thereafter, Parliament enacted the Hindi Sahitya Sammelan Act, 1962legislating under entry 63, list I of the Seventh Schedule declaringthat "the institution known as the Hindi Sahitya Sammelan is an institution of national importance". By the Act a statutory sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan. Under section 4(1) of the Act the Sammelan was to consist of the first members of the Society and all persons who might become members thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. The Act provided, for vesting in the Sammelan of all property movable or immovable, of or belonging to the society. Petitions under Article 226 in the High Court and under Article 32 in this Court were filed challenging the constitutionality of the Act mainly on the ground that the Act interfered with the right of the petitioners to form association under Article 19(1) (c) of the Constitution. The High Court held that since all the members of the society had also become members of the Sammelan under the Act, there was no infringement of the right to form association. In the appeal and in the petition under Article 32, the respondent contended that having declared the old Hindi Sabitya Sammelan, which was a society registered under the as an institution of national importance, Parliament has proceeded to legislate in respect of it under entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going inter be between the members of the society; it was for this purpose that a first Governing Body was constituted to take over the management temporarily; the Act was designed to reconstitute the Sammelan in such a manner that it could worm successfully and without difficulties; and in making provisions for this purpose all members of the old society were included as members of the Sammelan 8 4 1 so that their right to form association may not be taken away from them Alternatively the respondent took up the position that the Act no where specifically laid down that the society shall stand dissolved while it constituted a new Sammelan and therefore, it should be inferred that while the society still continued to exist in its original form the law has brought into existence a new Sammelan to which all the functions and the properties etc. of the society have been passed. Allowing the petition and the appeal. HELD : Under section 12(1) (a) very wide powers are given to the first governing body to make rules in respect of matters relating to membership including qualifications and disqualifications for membership of the Sammelan. Under this power the rules framed could make provisions for admission of persons as members whom the original members of society may never have liked to admit in their Society. The number of such new members could even be so large as to leave the original members in a small minority with the result that those members. could become totally ineffective in the society. Thus the Sammelan which has come into existence, is not identical with the Sammelan which was a registered society under the ., This is clear interference with the right to form a society which has been exercised by the members of the Society by forming the Society with its constitution under which they were members. The Act does not merely regulate the admi nistration of the affairs of the Society; what it does is to alter the composition of the society itself. The result of this change in composition is that the members, who voluntarily formed the society are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. The right to form association necessarily implies that the persons forming the society have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out or any law which takes away the membership of those who have voluntarily joined. it will be a law violating the right to form association. [847 H; 849 C E] The right guaranteed by Article 19(1)(c) cannot be confined to the initial stage of forming an association. if it were to be so confined, the right would be meaningless because as soon as an association is formed, a law may be passed interfering with its composition so that the association formed may not be able to function at all. The right can be effective only if it is held to include within, it the right to continue the association with its composition as voluntarily agreed upon by the persons forming the association. And, Article 19(4), on the face of it, cannot be called in aid to claim lidity for the Act. Therefore the provisioncontained in the Act for reconstituting the society into the Sammelan is void. The whole Act becomes ineffective in as much as the formation of the new Sammelan is the very basis for all the other provisions in the Act. [849 F H; 851 E] O.K. Ghosh and Another vs E. X. Joseph, [1963] SUppl. 3 S.C.R. 789; State of Madras vs V. G. Row, ; and V. G. Row vs The State of Madras, A.I.R. 1951 Mad. 147, referred to. The alternative submission cannot be accepted as ensuring the validity of the Act. First, the specific case taken by the respondent has been, that the Actreconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan. Secondly, even if it be acceptedthat a new Sammelan has been constituted, the question of 842 legislative competence of Parliament to pass such a law will arise. The Sammelan is itself a body corporate and that Sammelan has never been declared as an institution of national importance. The only institution that was so declared was the society which, of course, earlier carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which at no stage has been declared as an institution of national importance. Thirdly, if it were to be held that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19(1)(f) of the Constitution. The Sammelan is a new, separate and distinct legal entity from the Society. The Society is thus deprived of all its properties by the Act and such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the society to hold the property. The applicability of Article 19(1(f) is on the assumption that the old Society still exists as it was and yet its properties have been transferred to the Sammelan. If the Society still exists, so does its Governing Body in whom the property of the Society vested. The Act thus deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society of its property cannot clearly be justified as a reasonable restriction in public interest. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as reasonable restriction under Article 19(5). [852 B H; 853 E 854 A] The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi vs The State of Delhi & Anr. [1962] Suppl. I S.C.R. 156; referred to. </s>
<s>[INST] Summarize the judgementivil Appeal No. 870 of 1975. From the Judgment and Order dated 24.1.1975 of the Bombay High Court in Special Civil Application No. 963 of 1973. V.V. Vaze, V.N. Patil and A.S. Bhasme for the Appellant. V.M. Tarkunde, V.N. Ganpule, Ms. Punam Kumari, Suman B. Rastogi, Ms. J. Wad and A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by SHARMA, J. This appeal by special leave is directed against the decision of the Bombay High Court on a writ petition filed by the respondent No. 1, hereinafter referred to as the respondent. The application of the respondent for permitting construction on the land in question described as plots No. 29 and 30 in the town of Nasik was rejected by the Nasik Municipal Council, which led to the filing of the writ case. In 1955 the respondent purchased the land in question from one Patwardhan and in 1957 obtained permission to construct a building thereon. However, no construction was made and in March, 1962, a notification under section 4 of the Land Acquisition Act was issued for the purpose of estab lishing a Tonga Stand. The respondent made a fresh applica tion for permission to make construction. He was told not to do so on the ground that the land was reserved for road widening under a Town Planning Scheme which was being imple mented. He however started construction work and when pre vented from so doing, filed a writ application in the High Court which was later withdrawn. Subsequently he filed a suit in the civil court inter alia claiming damages. Soon thereafter a resolution was passed by the Municipal Council on February 13, 1967 whereby a decision was taken to accord permission to the respondent as asked for. The suit was thereafter withdrawn. The aforesaid development came to the notice of the State Government, and the Municipal Council was asked to explain the circumstances, and a high.power Committee was appointed to examine the entire matter. The aforesaid reso lution was thereafter rescinded by the Municipal Council, and the respondent filed a fresh application for permission to construct, which was kept in abeyance by the Council on the ground that the matter was under consideration by the Committee. 536 Another writ petition being Special Civil Application No. 993 of 1969 was thereupon filed by the respondent in the High Court in 1969. While this case was pending, the Commit tee submitted its report and a fresh resolution was passed on 29.6.1970, a copy whereof is Ext. 'O ', inter alia, decid ing to re plan the Scheme with respect to the area in ques tion, in accordance with the recommendation of the Commit tee. Consequently the matter was re opened and objections from the affected persons were invited and the respondent filed his objection petition. However these facts were not placed before the High Court in Special Civil Application No. 993 of 1969 and, without taking them in consideration, the case was disposed of by the judgment contained in Ext. 'A ' dated 18.4.1972. Without going into the merits of the matter, the High Court directed that; "The petitioner 's application to Respondent No. 1 dated July 18, 1968, for construction permission shall be disposed of by Respondent No. 1 in accordance with law". The Municipal Council by its order dated the 21st of November, 1972 rejected the respond ent 's application on the basis of the resolution dated the 29th of June, 1970, Ext. '0 ', stating that the plots in question were required for road widening, and the Town Planning Scheme was being modified accordingly. This order was challenged before the High Court by a writ application out of which the present appeal arises. On behalf of the respondent it was urged before the High Court in support of the writ petition that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment, Ext. 'A ' in S.C.A. No. 993 of 1969 which was binding on the parties by reason of rule of res judica ta. It was contended on behalf of the State of Maharashtra and the Municipal Council that the plea of res judicata was not available mainly for the reason that no final decision was arrived at in the earlier case. It was pointed out that tlie 1970 Resolution, Ext. 'O ', was not even brought to the notice of the court by any party, and the High Court without considering the merits of the respondent 's prayer merely directed the Municipal Council to reconsider his application dated the 18th of July, 1968 and dispose it of in accordance with law. The High Court was not impressed by this reply and allowed the writ application on the basis of the principle of constructive res judicata. It has been observed that it was for the State or the Municipal Council to have relied upon the 1970 Resolution and since this was not done, their answer based upon the said resolution cannot now be enter tained. By the impugned judgment it has also been said that having regard to the circumstances in which the earlier judgment Ext. 'A ' was delivered, the same must be interpret ed as issuing a peremptory direction to accord permission for construction without further consideration of the prayer on merits. 537 4. Mr. V.M. Tarkunde, the learned counsel for the re spondent, while supporting the above view of the High Court has contended that the resolution of 13.2.1967 was passed by way of a compromise between the parties, and acting upon the same the respondent withdrew his suit which he had earlier filed in the civil court, and, therefore, the Municipal Council cannot be permitted to wriggle out of the situation. He also relied upon an affidavit which has been filed re cently and suggested that if the present circumstances are taken into consideration the conclusion would be that the disputed land is not required either for widening the road or for any other public purpose, and the authorities have been acting mala fide at the behest of the respondents No. 4 and 5. So far the 1970 Resolution is concerned, it is urged that the same should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court in the earlier case. Mr. Patil, the learned counsel for the appellant, has reiterated the stand taken in the High Court that the judgment Ext. 'A ' did not decide any issue, and cannot be interpreted as a direction commanding the Municipal Council to allow the proposed construction. He said that at the present stage it is not possible to finally decide the question as to whether the objections to the proposed scheme raised by the respondent have any substance or not. They were invited by 1970 Resolution to place their case and to present their point of view before the Municipal Council. It is stated on behalf of the Municipal Council that the plots in question are urgently needed for providing parking space for vehicles. Having regard to the sequence of events in this case, we are unable to accept the contention that the Resolution dated 13.2.1967 was the result of a binding compromise between the parties. The fact that the respondent has with drawn his suit for damages could not by itself indicate that the Municipality was bound by the said Resolution. The Municipality was equally answerable to State Government which restrained the respondent from proceeding with the construction and appointed a high power Committee to go into the entire matter. The Committee gave a report stating that the land in question would be needed for the proper circula tion of traffic. Equally we find that there is no scope for application of the principles of res judicata. We agree with the appellants that by the judgment Ext. 'A ' the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by reconsidering and disposing of the application of the respondent in accordance with law. Besides, the question as to whether a particular Scheme 538 framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken. A particular scheme may serve the public purpose at a given point of time but due to change of cir cumstances it may become essential to modify or substitute it by another scheme. The requirements of the community do not remain static; they indeed, go on varying with the evolving process of social life. Accordingly, there must be creative response from the public authority, and the public scheme must be varied to meet the changing needs of the public. At the best for the respondent, it can be assumed that in 1967 when the resolution in his favour was passed, the acquisition of the land was not so urgently essential so as to call for his dispossession. But for that reason it cannot be held that the plots became immune from being utilised for any other public purpose for ever. The State or a body like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situation from time to time and take necessary decision periodically. We, therefore, hold that the Resolu tion dated 13.2.1967 was not binding on the Municipal Coun cil so as to disable it to take a different decision later. So far the plea of mala fides is concerned, the High Court has not recorded any finding; and we do not find any material to support the respondent 's allegation. For the reasons mentioned above, the impugned judg ment of the High Court is set aside and the writ petition of the respondent filed in the High Court is dismissed. The respondent may even now avail the opportunity given by the 1970 Resolution, and press his objections promptly and in that case the Municipal Council may dispose of the same in accordance with law. The appeal is accordingly allowed, but the parties shall bear their own costs. P.S.S. Appeal allowed. [/INST]The respondent was permitted by the Municipal Council to construct a building on the disputed land. Later, the site was reserved under section 4 of the Land Acquisition Act for a town planning scheme. When the respondent was prevented from proceeding with the construction he filed a suit for dam ages. The Municipal Council, however, by a resolution passed on February 13, 1967 decided to accord permission. The suit was thereafter withdrawn. The State Government appointed a high power committee to examine the entire matter. The aforesaid resolution was rescinded by the Municipal Council. The respondent made a fresh application in July, 1968 which was kept in abeyance. He thereupon filed a writ peti tion before the High Court in 1969. During the pendency of the case, the Municipal Council passed a resolution on June 29, 1970 deciding to replan the scheme with respect to the area in question in accordance with the recommendations of the high power committee. The High Court by its judgment dated April 18, 1972 directed the Municipal Council to dispose of the application in accordance with law. The latter, however, by its order dated November 21, 1972 rejected it on the basis of the 1970 resolution. In the writ application challenging the said order it was contended for the respondent that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment which was binding on the par ties by reason of rule of res judicata. For the State it was contended that no final decision was arrived at in the earlier case. The High Court allowed the writ application on the basis of constructive res judicata. In the appeal by special leave it was contended for the appellants 534 that the previous judgment could not be interpreted as a direction commanding the Municipal Council to allow the proposed construction, and that the plots were urgently needed for providing parking space for vehicles. For the respondent it was contended that the resolution of February 13, 1967 was passed by way of a compromise between the parties and acting thereupon he withdrew his suit. it was, therefore, binding on the Municipal Council, that the 1970 resolution should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court. Allowing the appeal, this Court. HELD: 1. The resolution dated February 13, 1967 was not binding on the Municipal Council so as to disable it to take a different decision later. It was not the result of a compromise between the parties. [538D; 537E F] 2.1 At the best for the respondent, it could be assumed that when the said resolution in his favour was passed the acquisition of the land was not so urgently essential so as to call for his dispossession. But for that reason it could not be said that the plots had become immune from being utilised for any other public purpose for ever. [538B C] 2.2 The question as to whether a particular scheme framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken. Such a scheme may serve the public purpose at a given point of time but due to change of circumstances it may become essential to modify or substitute it by anoth er scheme. The requirements of the community do not remain static, they indeed, go on varying with the evolving process of social life. Accordingly, the State or a body.like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situa tion from time to time and vary the scheme periodically to meet the changing needs of the public. In the instant case, the high power committee appointed by the State had given a report stating that the land in question would he needed for the proper circulation of traffic. [537H; 538; 537F G] 3. There was no scope for application of the principle of res judicata. By the judgment dated April 18, 1972, the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by recon sidering and disposing of the application of the respondent in accordance with law. [537G H] 535 </s>
<s>[INST] Summarize the judgementvil Appeal No. 4115 and 4116 of 1985. From the Judgment and Order dated 12.4.1985 of the Allahabad High Court in Civil Misc. Writ Petn. No. 3441 of 1984. J.P. Goyal, Rajesh for the Appellants in C.A. No. 41 15 of 1985. Anil Dev Singh, Mrs. section Dikshit and Sudhir Kulshreshta for the Appellants in C.A. No. 4116 of 1985. R. Ramachandran for the Respondents. The Judgment of the Court was delivered by DUTT, J. These two appeals by special leave, one pre ferred by the State of U.P. and the other by the Cane Super visors of the Cane Development Department, U.P., are direct ed against the judgment of 975 the Allahabad High Court directing the State Government to merge the posts of Ganna Gram Sewaks and Ganna Supervisors into the cadre of Ganna Sahayak in the pay scale of Rs.400 615 with effect from 1 7 1979. In the hierarchy of field officers in the Cane Develop ment Department, U.P., the post of Ganna Gram Sewak is at the bottom. The next higher post is the post of Cane Super visor. Under the Cane Development (Fourth Class) Service Rules, 1972 framed under Article 309 of the Constitution of India, the posts of Ganna Gram Sewaks are filled by direct recruitment and the minimum qualification prescribed there for by Rule 9(3) of the said Rules is that a candidate for recruitment in the post of Ganna Gram Sewak must have passed the High School Examination from the Board of High Schools and Intermediate Education, U.P. or an equivalent examina tion and he must know Hindi in Devnagri script. Under the Uttar Pradesh Ganna Paryavekshak (III) Service Rules, 1978, also framed under Article 309 of the Constitution of India, 50 per cent of the posts of Cane Supervisors are to be filled by direct recruitment and the remaining 50 per cent by promotion on the basis of seniority from amongst perma nent Ganna Gram Sewaks of the concerned region. The basic qualification for the post of Cane Supervisor is Intermedi ate (Agriculture) or equivalent or High School with two years Diploma in Agriculture. The duties that are to be performed by the Ganna Gram Sewaks are preparation of progress report, survey of the cane areas and development programmes. The Cane Supervisors are responsible for plant protection, inputs godown and nurseries in the areas of Ganna Gram Sewaks. The State of U.P. appointed a Second Pay Commission in the year 1979. The Ganna Gram Sewaks submitted a representa tion to the Commission demanding that since their qualifica tions were similar to those of Cane Supervisors and they performed the same kind of duties, they should get the same pay scale as that of the Cane Supervisors. It appears that on the suggestion of the Pay Commission, the State Govern ment appointed a Task Force Committee. The Task Force Com mittee in its report recommended the merger of the posts of Ganna Gram Sewaks and Cane Supervisors into one group to be designated as Ganna Sahayaks and allotted an equal field of operation. It was observed that the merger being effected would satisfy the demand of the Ganna Gram Sewaks for the equalisation of their pay scale with that of the Cane Super visors. The said recommendation was made by the Task Force Committee on the ground that there was no special difference between these two categories of posts in regard to 976 the duties performed by the members of each category. The Second Pay Commission, however, did not accept the recommen dation made by the Task Force Committee for the merger of these two categories of posts .into one category, namely, Ganna Sahayak. After taking into consideration the minimum academic qualification and the nature of duties for each category, the Second Pay Commission, inter alia, recommended the revision of the pay scales as follows: CANE DEVELOPMENT DEPARTMENT section No. Name of Post Pay Scale Existing Proposed 46. Cane Supervisor/ 230 385 400 615 Seed Asstt. Ordinary Ordinary Grade Grade 250 425 510 675 (Selection After Grade) After 10 years of service Selection Grade ( 15% Selection Grade on the post of Supervisor) 47. Ganna Gram Sewak 185 265 325 495 Ordinary Ordinary Grade Grade 200 320 400 540 Selection After 15 years Grade of service Selection Grade on 15% posts. The recommendation of the Second Pay Commission was considered by the Review Committee and, thereafter, by the Cabinet Sub Committee. There is a dispute between the par ties as to whether the Cabinet Sub Committee had accepted the recommendation made by the Task Force Committee. Be that as it may, the State Govern 977 ment accepted the recommendations of the Second Pay Commis sion only with a slight modification that instead of a pay scale of Rs.325 495 for Ganna Gram Sewaks, it would be Rs.330 495. One of the Ganna Gram Sewaks, Shri Vyas Muni Mishra, the respondent No. 1, filed a writ petition before the Allahabad High Court praying for a writ of mandamus directing the State Government to merge the posts of Ganna Gram Sewaks and Cane Supervisors into one cadre of 'Ganna Sahayak '. The High Court took the view that although the minimum educational qualifications required were High School for Ganna Gram Sewaks and Intermediate in Agriculture for Cane Supervisors, since 1975 the minimum qualification for both Ganna Gram Sewaks and Cane Supervisors became Intermediate in Agricul ture. Further, the High Court was of the view that the nature of duties performed by the members of these two categories of posts was the same. Accordingly, relying upon the principle of equal pay for equal work, as contained in Article 39(d) of the Constitution, the High Court allowed the writ petition and directed the State Government to merge the posts of Ganna Gram Sewak and that of Cane Supervisor into one post as Ganna Sahayak in the pay scale of Rs.400 615 with effect from July 1, 1979. The State of U.P. and the Cane Supervisors being aggrieved by the judgment of the High Court have preferred the above appeals. At the outset it may be said that the High Court exceed ed its jurisdiction in directing the merger of the two posts. It may be that the Task Force Committee and the Review Committee had recommended for the merger, but it was for the State Government to consider whether such merger should be made or not. The State Government after considera tion of the relevant reports and recommendations accepted the recommendation of the Second Pay Commission only with regard to the revision of the pay scale of the Ganna Gram Sewaks with the slight modification by an increase of Rs. 5 at the initial stage of the recommended pay scale. The question whether two posts should be merged into one or not is absolutely within the jurisdiction and authority of the Executive Government. However much the High Court was influ enced by the principle of equal pay for equal work for both men and women as contained in Article 39(d) of the Constitu tion, the High Court was not justified in exceeding its jurisdiction for giving effect to the said doctrine. The principle of equal pay for equal work requires on the face of it that the work to be performed by two groups of persons must be 978 equal. It has been already noticed that the duties that had to be performed by the Ganna Gram Sewaks are preparation of progress report, survey of the cane areas and development programmes. On the other hand, the Cane Supervisors are responsible for plant protection, inputs godown and nurser ies in the areas of Ganna Gram Sewaks. Thus the nature of duties that are performed by the members of these two cate gories of posts is different. It has been observed by the Second Pay Commission that the Department has so fixed the duties of the two functionaries that both of them now func tion more or less independently. The High Court did not discuss in detail as to whether the Ganna Gram Sewaks and the Cane Supervisors perform the same duties. The High Court has only referred to an observation in the report of the Task Force Committee that there were not much differences in the duties performed by these two categories of officers. As has been stated already, the Second Pay Commission did not accept the recommendation of the Task Force Committee for the merger of the two posts into one. It is true that the Cane Supervisors are not doing any supervision of the work of the Ganna Gram Sewaks, but in view of the nature of duties performed by both, as mentioned above, it is diffi cult to hold that both perform the same kind of duties. We have also looked into the reports of the Task Force Commit tee and the Review Committee. In our opinion, these two Committees have not properly dealt with the nature of duties performed by the Ganna Gram Sewaks and Cane Supervisors, although both these Committees have recommended the merger of the two posts. As soon as, therefore, it is held that the two groups of persons do not perform the same kind of du ties, the question of equal pay for equal work does not arise. In directing merger of the two posts, the High Court has greatly relied upon the fact that although the minimum educational qualification for Ganna Gram Sewaks was High School, since 1975 the minimum educational qualification for the Ganna Gram Sewaks has been Intermediate in Agriculture. In other words, according to the High Court the minimum educational qualification required for both these posts is Intermediate in Agriculture. We have already referred to the Rules framed under Article 309 of the Constitution under which the minimum qualification for the posts of Ganna Gram Sewaks has been prescribed as High School or equivalent examination and for the Cane Supervisors as Intermediate (Agriculture) or equivalent or High School with two years ' Diploma in Agriculture. The minimum qualifications, as prescribed, have not yet been changed by the amendment of the said Rules. In entertaining the view that the minimum qualification for the Ganna Gram Sewaks has been since 1975 Intermediate in 979 Agriculture, the High Court has placed reliance upon a letter dated March 10, 1975 addressed by the Cane Commis sioner, U.P,, to the Deputy Secretary, Cane Development Department, Government of U.P. In that letter, it was recom mended that the minimum educational qualification for the Ganna Gram Sewaks should be Intermediate in accordance with the proposal of the Ganna Gram Sewaks ' Union, U.P. It was, accordingly, requested by the Cane Commissioner in the said letter that the Government might consider the minimum quali fication as recommended. It is the case of the State of U.P. that the said letter was issued in connection with 600 new posts of Ganna Gram Sewaks to be created under non statutory bodies, namely, Sakkar Nidhi and Ganna Board. It is contend ed that these 600 posts have nothing to do with the posts of Ganna Gram Sewaks under the Cane Development Department of the State of U.P. In our opinion, the High Court should not have placed any reliance upon any such recommendation made by the Cane Commissioner, when, under the Rules framed under Article 309 of the Constitution, the minimum qualification required for the Ganna Gram Sewaks is High School or equiva lent. So long as the Rules are amended and the minimum qualification is not enhanced to Intermediate in Agricul ture, the Cane Development Department of the Government cannot prescribe or insist on a minimum qualification of Intermediate in Agriculture. The Second Pay Commission could not also equate the posts of Ganna Gram Sewaks with that of Cane Supervisors on the ground that the minimum qualifica tion for the two posts are different. The High Court was, therefore. not justified in relying upon the said letter of the Cane Commissioner in preference to the Rules framed under Article 309 of the Constitution. In our view, there fore, not only the nature of duties attached to each post is different, but also the minimum qualification required for each post is also different. As stated earlier, the posts of Ganna Gram Sewaks are filled by direct recruitment. So far as .the posts of Cane Supervisors are concerned, 50 per cent of the same are filled by promotion from the posts of Ganna Gram Sewaks and the remaining 50 per cent are filled by direct recruitment. Thus, the post of Cane Supervisor is a promotional post vis a vis the post of Ganna Gram Sewak. In our view where, as in the instant case, of the two posts, one being the promotional post and the other being the feeder post, it will be beyond the jurisdiction of the Court to implement the principle of equal pay for equal work inasmuch as such implementation will practically result in the amalgmation of the two posts leading to great administrative difficulties. Article 39(d) of the Constitution lays down the Directive Principle of 980 equal pay for equal work for both men and women. The direc tive principles contained in Part IV of the Constitution are not enforceable in any court of law. It is a constitutional goal that has to be achieved at the instance of the State. Merger or bifurcation of a cadre is an executive act and normally the Court does not deal with it. It is for the State to consider whether two groups of persons working under two distinct posts perform the same kind of duties or not and whether in implementing the directive principle, as contained in Article 39(d) of the Constitution, it is neces sary to merge these two posts into one cadre or post. If the State Government is of the view that it is necessary that there should be a merger of the two posts into one post, the State Government has to take steps in that regard by framing proper rules with regard to seniority, promotions, etc. But, when two groups of persons are in the same or similar posts performing same kind of work, either in the same or in the different Government departments, the Court may in suitable cases direct equal pay by way of removing unreasonable discrimination and treating the two groups, similarly situ ated, equally. In the facts and circumstances of the instant case, we are of the view that the High Court was not justi fied in directing a merger of the two posts, namely, the posts of Ganna Gram Sewaks and Cane Supervisors. For the reasons aforesaid, the impugned judgment of the High Court is set aside and the writ petition is dismissed. Both these appeals are allowed. There is, however, no order as to costs. This judgment, however, will not prevent the State of U.P. from considering the merger of these two posts and the consequent equalisation of pay. P.S.S, Appeals allowed. [/INST]On the death of R, a Hindu jat, in April or May, 1920, the widow of his pre deceased son, H, took possession of the properties and on August 24, 1920, obtained a mutation of the settlement records showing her as the owner of the lands in the place of R. A gift of half of the properties by H to her daughter K 949 gave rise to disputes between them and the collaterals but the matter was settled on H executing a document on February 6, 1932, whereby, inter alia, she agreed that the lands would belong to her for her life and after her death to her daughter for the latter 's life and that none of them would be entitled to sell or mortgage the lands. The document, however, was not registered. In 1939 H made a gift of the entire lands to K who obtained a mutation of the settlement records showing her as the owner of the lands, and in 1945 a suit was filed by the collaterals challenging the transaction as not binding on them as the reversionary heirs of R. Under the general custom governing the parties as admitted by them a widow of a pre deceased son was entitled only to maintenance when there were collaterals, and as H was in possession of the properties since 1920 it was said by her and K that she had, at the date of the gift, acquired an absolute title by adverse possession. It was contended for the plaintiffs, interalia, that the agreement of February, 1932, though not admissible in evidence to prove that H and K had only life estates in the lands, was admissible to show the nature of H 's possession and that it showed that her possession was not adverse. Held, that the document dated February 6, 1932, was in admissible in evidence, in view Of section 49 of the Indian , as H had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession, and therefore, to give effect to the agreement contained in it. Varatha Pillai vs jeevarathnammal, (1918) L.R. 46 I. A. 285, distinguished, </s>
<s>[INST] Summarize the judgementCivil Appeal No. 2598 of 1987. 370 From the Judgment and order dated 26.5.1987 of the Karnataka A High Court in W.A. No. 615 of 1987. Dr. Y.S. Chitale and K.J. John for the Appellant. S.S. Javali, Ranjit Kumar and Dev Dass for the Respondents. The Judgment of the Court was delivered by Dutt, J. Special leave is granted. As elaborate submissions have been made at the preliminary hearing of the special leave petition on the merits of the case by both the parties, we proceed to dispose of the appeal on merits. This appeal involves the question as to the eligibility of the appellant for admission in the First Year MBBS Course of the Mysore University. The appellant passed the B.Sc. Examination of the Mysore University with Botany, Chemistry and Zoology securing 54.7% marks in the aggregate. She also passed the PUC in the year 1979 with Physics, Chemistry and Biology as optional subjects and obtained 43.1% marks in the aggregate. She sought for admission in a private Medical College or Institute. On her query, the second respondent, who is the Principal of the Institute, by his latter dated February 26, 1986 con firmed that the appellant was eligible for admission to MBBS Course. The relevant portion of the letter, as quoted in the special leave petition, is extracted below: "With reference to your telegram, I wish to write that candidates passing B.Sc. degree examination with Physics, Chemistry and Biology or Chemistry, Biology and Zoology as optional subjects, are eligible, provided such of these candidates who have passed with Chemistry, Biology and Zoology should have passed Physics as optional subject in II year PUC or equivalent examination (Pre degree or Intermediate) or the additional Physics examination of any University or Institution recognised by the State Government. The candidate should have obtained 50% marks in the optional subjects in the B.Sc. degree examination. " It is the case of the appellant that on the basis of the said letter, she joined the Institute in February, 1986. However, by Memo dated 371 September 19, 1986 the second respondent intimated the appellant that her admission had not been approved by the University of Mysore. The relevant portion of the letter of the Registrar of the University of Mysore, as quoted in the said Memo, is given below: "She has secured 54% in B.Sc., but secured 43% in PUC. Hence she is not eligible. Her admission may be cancelled. " The appellant moved the Karnataka High Court by filing a writ petition under Article 226 of the Constitution of India challenging the validity of the cancellation of her admission in the First Year MBBS Course and praying for an order directing the respondents to allow her to continue as a student of the First Year MBBS Course. A learned Single Judge of the High Court by his judgment dated April 8, 1987 rejected the writ petition on the ground that the appellant not having obtained 50% marks in the aggregate in Physics, Chemistry and Biology in the PUC examination, was not eligible for admission to the MBBS Course. On appeal by the appellant, the Division Bench of the High Court also took the same view and dismissed the appeal. Hence the present appeal by special leave. The Mysore University to which the Institute or College is affiliated has framed regulations regarding admission to MBBS Course for the academic year 1985 86. The relevant provisions of the said regulations are extracted below: " 1. ADMlSSlONS ELIGIBIL1TY: (a) The candidate shall have passed the Two Year PUC Examination conducted by the PUC Board, Karnataka State with Physics, Chemistry and Biology as optional subjects or any other examinations recognised as equivalent by the Mysore University and/or shall have passed the competitive examination conducted by the Karnataka Government for this purpose. or B.Sc. Examination of an Indian University provided that 372 he has passed the B.Sc. Examination with not less than two of the following subjects: Physics, Chemistry, Biology (Botany, Zoology) and further that he has passed the earlier qualifying examinations with the following subjects: Physics, Chemistry, Biology and English. Provided that the candidate should have secured not less than 50% of the total marks in Physics, Chemistry, Biology subjects taken together at the qualifying and/or competitive examination. Provided further that in respect of candidates belonging to Scheduled Caste/Scheduled Tribe the minimum marks required for admission shall be 40% in lieu of 50% for general candidats. (b) The candidate should have completed 17 years on the 31st December of the year of admission. " Under Regulation l(a), a candidate having passed the Two Year PUC or equivalent examination with Physics, Chemistry and Biology as optional subjects or B.Sc. Examination of an Indian University with Physics, Chemistry, Biology will be eligible for admission in the First Year MBBS Course subject to this that the candidate should have secured not less than 50% of the total marks in Physics, Chemistry and Biology taken together at the qualifying and/or competitive examination. It follows, therefore, that a candidate has to secure 50% of the total marks in Physics, Chemistry and Biology taken together in the PUC or an equivalent examination, which is a condition precedent to her eligibility for admission in the First Year MBBS Course. The High Court has rightly observed that as the appellant did not secure 50% of the total marks in Physics, Chemistry and Biology in the PUC Examination, she was not eligible for admission in the First Year MBBS Course also rightly overruling the contention of the appellant that the marks obtained by her in Physics in the PUC Course should be added to the marks obtained by her in the B.Sc. Examination so that it would work out to 50% of the tot. marks in Physics, Chemistry and Biology. Under Regulation 1(a), a candidate after passing B.Sc. Exami 373 nation and seeking admission in the seats reserved for B.Sc. candidates has to secure 50% of the total marks in Physics, Chemistry and Biology in the PUC Examination. It is true that the appellant has obtained 54% marks in the B.Sc. Examination, but she had failed to obtain 50% marks in the aggregate in the PUC Examination in Physics, Chemistry and Biology. In the circumstances, she was not eligible for admission ill the First Year MBBS Course. We are afraid, the Karnataka Medical Colleges (Selection of Candidates for Admission to 1 MBBS) Rules, 1985, hereinafter referred to as 'the said Rules ', are not applicable to seats in Private Colleges other than Government seats, which is apparent from Sub rule (2) of rule 1. Sub rule (2) of rule 1 provides as follows: "R.1(2) These rules shall be applicable to the selection of candidates made on or after the date of commencement of these rules, for admission to the I year MBBS Course in the State of Karnataka in respect of all the seats in Government Colleges and the Government seats in the Private Colleges, as indicated in the Schedule to these Rules. " Dr. Chitale, learned Counsel appearing on behalf of the appellant, has placed much reliance upon the Government Order dated August 1, 1984 annexing a copy of the said Rules. The relevant portion of the Government Order is as follows: "O R D E R Accordingly, after considering the matter, Government of Karnataka hereby direct that Rules for selection of candidates for admission on to I M.B.B.S. Course in the Government and Private Medical Colleges for the academic year 1985 86 and onwards shall be as in Annexure to this order." In the Government order, no doubt, Private Medical Colleges have been mentioned, but it does not follow that the said Rules would apply to all candidates in the Private Medical Colleges. Sub rule (2) of rule 1 of the said Rules, which has been extracted above, clearly shows that the said Rules would apply to only Government seats in the Private Colleges and, as such, in the Government order Private Colleges have been mentioned. There is, therefore, no substance in the contention made on behalf of the appellant that the said Rules would also be applicable to the appellant. 374 Even assuming that the said Rules are applicable to the case of A the appellant, still the appellant will not be eligible for admission in the First Year MBBS Course in view of sub rule (5) of rule 3 of the said Rules, which provides, inter alia, that a person who does not belong to any of the Scheduled Castes or Scheduled Tribes, he has to obtain 50% of marks in PUC or equivalent examination in Physics, Chemistry and Biology as optional subjects. Thus, the appellant was not eligible for admission in the First Year MBBS Course of Mysore University. The High Court was, therefore, right in overruling the contention of the appellant that she was eligible for admission in the First Year MBBS Course. Now the question is whether the appellant should be allowed to continue her studies in the MBBS Course. By virtue of the interim order of the High Court, the appellant completed the First Year MBBS Course and by virtue of the interim order passed by this Court, the appellant appeared in the First Year MBBS Examination. It has been strenuously urged by the learned Counsel appearing on behalf of the University that as the appellant was not eligible for admission and was illegally admitted by the Institute in violation of the eligibility rules of the University, the appellant should not be allowed to continue her studies in the MBBS Course under the University. In support of that contention, much reliance has been placed by the learned Counsel on a decision of this Court in A.P. Christians Medical Educational Society vs Government of Andhra Pradesh, ; What happened in that case was that the appellant Society without being affiliated to the University and despite strong protests and warnings of the University admitted students to the Medical College in the First Year MBBS Course in total disregard of the provisions of the A.P. Education Act, the Osmania University Act and the regulations of the Osmania University. Some students, who were admitted to the Medical College, filed a writ petition before this Court. While dismissing the writ petition of the students, this Court observed as follows: "Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the student. Any direction of the nature sought by Shri Venu gopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations 375 made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws. " It was further observed by this Court as follows: "We regret that the students who have been admitted into the college have not only lost the money which they must have spent to gain admission into the college, but have also lost one or two years of precious time virtually jeopardising their future careers. But that is a situation which they have brought upon themselves as they sought and obtained admission in the college despite the warnings issued by the University from time to time. " It appears from the observations extracted above that the students were themselves to blame, for they had clear knowledge that the College was not affiliated to the University and in spite of the warning of the University they sought for the admission in the College in the First Year MBBS Course and were admitted. In that context this Court made the above observations. We may refer to a later decision of this Court in Rajendra Prasad Mathur vs Karnataka University, ; In that case, the condition for eligibility for admission to B.E. Degree Course of the Karnataka University was that the students seeking admission should have passed the two year pre University Examination of the pre University Education Board, Bangalore, or an examination held by any other Board or University recognised as equivalent to it. The appellants, in that case, were admitted to certain private Engineering Colleges for the B.E. Degree Course upon payment of capitation fees, although they were not eligible for admission as the Higher Secondary Examination held by the Secondary Education Board, Rajasthan, passed by some of the appellants and the first B.Sc. Examination of Rajasthan and Udaipur University passed by the remaining appellants, were not recognised as equivalent to the two year pre University Education Board, Bangalore. While dismissing the appeals of the students on the ground that they were not eligible for admission in the engineering colleges, Bhagwati, C.J. who delivered the judgment of the Court, observed as follows: "We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High 376 Court. But the question still remains whether we should allow the appellants to continue their studies in the respective Engineering Colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective Engineering Colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the Engineering Degree Course and they had no legitimate claim to such admission. But it must be noted that the blame for their wrongful admission must lie more upon the Engineering Colleges which granted admission than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary Education Board, Rajasthan nor the first year B.Sc. examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre University Examination of the Pre University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year B.Sc. examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission. The fault lies with the Engineering Colleges which admitted the appellants because the Principal of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges. We would, therefore, notwithstanding the view taken by us in this judgment allow the appellants to continue their studies in the respective Engineering Colleges in which they were granted admission. But we do feel that against the erring Engineering Colleges the Karnataka University should take appropriate action because the managements of these Engineering Colleges have not only admitted students ineligible for admission but thereby deprived an equal number of eligible students from getting admission to the 377 Engineering Degree Course. We also endorse the directions given by the learned Judge in the penultimate paragraph of his judgment with a view to preventing admission of ineligible students. " This Court was, therefore, of the view that as the students were innocent and were admitted to the Colleges for the sake of capitation fee in some cases, they should not be penalised and should be allowed to continue their studies in the respective Engineering Colleges in which they were granted admission. The facts of the instant case are, more or less, similar to the Rajendra Prasad Mathur 's case (supra). It has been already noticed that on the appellant s query ' the Principal of the Institute by his letter dated February 26, 1986 informed her that she was eligible for admission in the First Year MBBS Course. It was, inter alia, stated in the letter that the candidate should have obtained 5()% marks in the optional subjects in the B.Sc. Examination. There is no dispute that the appellant had obtained 50% marks in those subjects in the B.Sc. Examination. The appellant was, therefore. quite innocent and she was quite justified in relying upon the information supplied to her by none else than the Principal of the Institute in the said letter in regard to the eligibility of the admission in the First Year MBBS Course. In the circumstances, we do not think that we shall be justified in penalising the appellant by not allowing her to continue her studies in the MBBS Course. Prima facie it was the fault of the Principal of the Institute but, in our view, the statement that was made by him in his said letter to the appellant as to the eligibility of the appellant for admission in the MBBS Course, was on a bona fide interpretation of the regulations framed by the Mysore University for admission to MBBS Course for the academic year 1985 86, which to some extent suffer from ambiguity. The regulations should have been more clear and specific. Be that as it may, following the decision of this Court in Rajendra Prasad Mathur 's case (supra) while we dismiss the appeal. we direct that the appellant shall be allowed to prosecute her studies in the MBBS Course, and that her result for the First Year MBBS Examination be declared within two weeks from date. There will, however, be no order as to costs. H.L.C. Appeal allowed. [/INST]% The appellants had joined the government service as clerks cum typists before the bifurcation, in May, 1960, of the State of Bombay into Maharashtra and Gujarat States. The Subordinate Secretariat Service then consisted of four grades (i) Clerk cum typist, (ii) Junior Assistant, (iii) Senior Assistant, and (iv) Superintendent. On the formation of Gujarat State, Government business in the secretariat was divided into nine separate Departments so far as the Subordinate service was concerned. Later, by a government Resolution, a common cadre of Superintendents for all the departments was created, and promotion to the post of the Superintendent was directed to be made out of a common list of senior assistants, and by another resolution, the grades of the senior assistants and junior assistants were merged into one post termed as Assistant, and a common seniority list of the Assistants was prepared. In October, 1974, by another Resolution, a common cadre of the clerks cum typists was created and promotion to the post of Assistant was provided therefrom. This October Resolution of the government was challenged before the High Court by two writ petitions. In the meantime, the Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977, were framed, which were to come into operation with retrospective effect from May, 1960. Rule 4 of the Rules laid down the principle for determining seniority by providing that seniority among promotees Assistants inter se shall be fixed on the basis of their length of service in the joint cadre of clerk cum typist for all Departments of the Secretariat as a whole. The High Court passed an order, dismissing the two writ petitions. The order of the High Court is appealed against by Special Leave in this Court, mainly on the ground that the retrospective operation of the Rules regarding seniority takes away the vested rights of the appellants of their prospects of promotions. Dismissing the appeal, the Court, 612 ^ HELD: A Common cadre was created for increasing efficiency A and in the interests of discipline. After the formation of the common cadre, general feeling of dissatisfaction owing to disparity of seniority was generated. The 1977 rules were introduced to ease that situation. The scheme of the Rule regarding seniority protected the rank then held by every member of the service notwithstanding the alteration of seniority on the new basis. To that extent, the 1977 rules were not retrospective. [615B C] There was no challenge to the creation of the common cadre. Secondly, the rules of seniority are a matter for the employer to frame, and even though the prospects of promotion were likely to be prejudiced by the introduction of some new set of rules to regulate seniority, if the rules were made bona fide to meet the exigencies of the service, no entertainable grievance could be made, and the appellants have no grievance to make. [615E FI Mervyn vs Collector of Customs, Bombay and others, [1966] 3 S.C.R.600; Roshan Lal Tandan vs Union of India, [1968]1 S.C.R.185 and State of Jammu & Kashmir vs Triloki Nath Khosa & others, [1974] I S.C.R. 771, relied upon. </s>
<s>[INST] Summarize the judgementCivil Appeal No. 105 of 1990. From the Judgment and Order dated 10.3. 1988 of the Rajasthan High Court in S.B. Civil Second Appeal No. 327 of 1976. C.M. Lodha, H.M. Singh and R.S. Yadav for the Appellant. S.K. Ghose, M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent. The Judgment of the Court was delivered by R.M. SAHAI, J. Is Estoppel a good defence to 'archaic ', Atam Prakash vs State of Haryana, ; , right of Pre emption which is a 'weak right ', Bishen Singh vs Khazan Singh; , , and can be defeated by any 'legitimate ' method Radha Kishan vs Sridhar, ; Barring High Court of Rajasthan and erstwhile, Mewar State Jethmal vs Sajanumal, [1947] Mewar Law Reports, 36, most of the other high courts, namely, Allahabad, Naunihal Singh vs Ram Ratan, , Oudh, Ram Rathi vs Mr. Dhiraji, [1947] Oudh 81, Ajmer 352 Gopinath vs R.S. Nand Kishore, AIR 1952 Ajmer 26, Bhopal, Abdul Karim vs Babu Lal, AIR 1953 Bhopal, and Lahore Kanshi Ram Sharma & Anr. vs Lahori Ram & Anr., have answered the issue in the affirmative. The Privy Coun cil, [1929] PC AIR 259, too, applied this principle to non suit a pre emptor who knew that the property was in the market for long but offered to purchase, only. one out of many blocs. It had: "Assuming that the prior completed purchase by the appellant would under other circumstances, have given him the right of pre emption in respect of the blocks in suit, he must be taken by his conduct to have waived this right, and that it would be inequitable to allow him now to re assert it." Even in Muslim Law which is the genesis of this right, as it was unknown to Hindu Law and was brought in wake of Mohamme dan Rule, it is settled that the right of pre emption is lost by estoppel and acquiescence. Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. Present case is a glaring example of it. True no notice was given by the seller but the trial court and appellate court concurred that the pre emptor not only came to know of the sale immediately but he assisted the purchaser appellant in raising construction which went on for five months. Having thus persuaded, rather misled, the purchaser by his own conduct that he acquiesced in his ownership he somersaulted to grab the property with con structions by staking his own claim and attempting to unset tle the legal effect of his own conduct by taking recourse to law. To curb and control such unwarranted conduct the courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or im plied to avoid injustice. Legal approach of the High Court, thus, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act (In brevity 'the Act ') was given by the seller and pre emptor should have had occasion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a 353 weapon of defence. In the Privy Council decision, referred earlier, the court was concerned with Oudh Laws Act (18 of 1876) which too had an identical provision for giving notice by seller. No notice was given but since pre emptor knew that the property was for sale and he had even obtained details of lots he was precluded from basing his claim on pre emption. Exception, to this universal rule or its non availabili ty, is not due to absence of any provision in the Act ex cluding its operation but welfare of society or social and general well being. Protection was, consequently, sought not on the rationale adopted by the High Court that in absence of notice under Section 8 of the Act estoppel could not arise but under cover of public policy. Reliance was placed on Shalimar Tar Products vs H.C. Sharma, ; , a decision on waiver, and Equitable Life Assurance Society of the United States vs Reed, 14 Appeal Cases 587, which laid down that there could be no estoppel against statute. Equi ty, usually, follows law. Therefore that which is statutori ly illegal and void cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy. What then is the nature of right conferred by Section 9 of the Act? In Bishen Singh vs Khazan Singh, ; this Court while approving the classic judgment of Mahmood, J. in Gobind Dayal vs Inayatullah, ILR 7 All 775 (FB). 'that the right of pre emption was simply a right of substitution ' observed that, 'courts have not looked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property. In Radha Kishan vs Shridhar, AIR 1960 SC 1369 this Court again while repelling the claim that the vendor and vendee by accepting price and transferring pos session without registration of sale deed adopted subterfuge to defeat the right of pre emption observed that, 'there were no equities in favour of a pre emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre emption by all lawful means '. Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy. The distinction be tween validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. The provision in the Act requiring a vendor to serve the notice on persons having right of pre emption is condition of validity of transfer, and therefore a pre emptor could waive it. Failure to serve notice as 354 required under the Act does not render the sale made by vendor in favour of vendee ultra vires. The test to deter mine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct. The Act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre emptor who may be interested in getting himself substituted. The Act does not debar the pre emptor from giving up this right. Rather in case of its non exercise within two months, may be for the financial reasons. the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right. expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. Even otherwise on facts found that the respondent knew of the sale deed. assisted the appellant in raising the construction and after the construction was completed in the month of June he gave the notice in month of July for exer cise of the right and filed the suit in January would itself demonstrate that the conduct of the respondent was inequita ble and the courts in this country which are primarily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appellant and invoke a right which has been called a weak and inequitable right. In the result this appeal succeeds and is allowed. The order of the High Court is set aside and that of the First Appellate Court is restored. The appellant shall be entitled to his costs. G.N. Appeal allowed. [/INST]The appellant purchased certain properties by way of registered sale deeds. She constructed therein a godown and a two storeyed building with the knowledge and assistance of the respondent, who did not say anything about the common passage and had never expressed his intention to pre empt the sales. Soon after the construction was over, the respondent sent a notice to the appellant claiming his right to pre empt the sale. The appellant gave a reply to the notice. However, respondent filed a suit for preemption in relation to the said properties. The appellant pleaded that the respondent was estopped from claiming the pre emption. Principle of waiver was also pleaded. The Trial Court dis missed the suit of the respondent, and he preferred an appeal before the District Judge which was also dismissed. Respondent preferred a regular second appeal before the High Court. The High Court allowed the appeal holding that the principles of estoppel and waiver had no application against the pre emptor to preempt the suit, and set aside the orders of the Courts below. Aggrieved against the High Court 's order the appellant has preferred this appeal, by special leave. Allowing the appeal, this Court, HELD: 1.1 Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on 350 spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. [162D E] 1.2 Legal approach of the High Court, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act was given by the seller and pre emptor should have had occassion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a weapon of defence. [162G H] 2. There can be no estoppel against statute. Equity usually follows law. Therefore, that which is illegal cannot be enforced by resorting to rule of estoppel. Such an exten sion may be against public policy. The distinction between validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. [163D & F G] Shalimar Tar Products Ltd. vs H.C. Sharma, ; ; Equitable Life Assurance Society of the United States vs Reed, 14 AC 587; Bishan Singh vs Khazan Singh, ; and Radha Kishan vs Shridhar, AIR 1960 SC 1369, referred to. The provision in the Pre emption Act requiring a vendor to serve notice on persons having right of pre emp tion is condition of validity of transfer, and therefore a pre emptor could waive it. Failure to serve notice as re quired under the Act does not render the sale made by vendor in favour of vendee ultra vires. The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. The Act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre emptor who may be interested in getting himself substituted. It does not debar the pre emptor from giving up this right. Rather in case of its non exercise within two months, may be for financial reasons, the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy. [163H; 164A C] Jethmal vs Sajanumal, [1947] Mewar Law Reports 36, over ruled. 351 Atam Prakash vs State of Haryana, ; ; Bishan Singh vs Khazan Singh, ; ; Radha Kishan vs Sridhar, ; ; Naunihal Singh vs Ram Ratan, ILR 39 All. 127; Ram Rathi vs Mt. Dhiraji, [1947] Oudh 81; Gopinath vs R.S. Nand Kishore, AIR 1952 Ajmer 26; Abdul Karim vs Babulal, AIR 1953 Bhopal 26 and Kanshi Ram Sharma vs Lahori Ram, , approved. Pateshwari Partab Narain Singh vs Sitaram, AIR 1929 PC 259, referred to. 4. In the instant case, the fact that the respondent knew of the sale deed, assisted the appellant in raising the construction and after the construction was completed in the month of June he gave notice in the month of July for exer cise of the right and filed the suit in January, would itself demonstrate that the conduct of the respondent was inequitable and the courts in this country which are pri marily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appel lant and invoke a right which has been called a weak and inequitable right. [164D E] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 98 of 1962. Appeal from the judgment and decree dated March 7, 1957, of the Bombay High Court in First Appeals Nos. 897 of 1951 and 66 of 1952. section section Shukla for the appellant. G. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondents Nos. 1, 3 and 7. A.V. Viswanatha Sastri and Sardar Baliadur, for respondent No. 2. 522 1963. May 2. The judgment of the Court was delivered by WANCHOO J. This is an appeal on a certificate granted by the Bombay High Court and arises out of a suit filed by the appellant as a Hindu reversioner to recover possession of properties alienated by a Hindu widow. The property in suit was the self acquired property of one Ganpatrao jairam who died in 1894 leaving behind two widows, Annapurnabai and Sarswatibai. Ganpatrao had executed a will by which property in village Dahisar was given to Annapurnabai and property in village Nagaon was given to Sarswatibai. The will further provided that a dwelling house together with structures and open land situate at Thana would remain with his two wives who would enjoy the same. There were other dispositions in the will with which we are however not concerned now. Annapurnabai was also authorised to make an adoption on the advice of the executors appointed under the will; but the adopted son was to have no right or connection with the movable and immovable property devised to Annapurnabai during her life time and was to take the property devised to her only after her death. The adopted son was also to take the immovable property bequeathed to Saraswatibai after her death. It may be added that no son was adopted by Annapurnabai and this aspect of the matter therefore need not be considered further. Annapurnabai died on September 17, 1915, and she had executed a will before her death. After Annapurnabai 's death, Saraswatibai began to manage the property. It may be added that Sarswatibai had adopted a son, but this was saidto beagainst the provision in the will of herhusband which specifically directed that she could only adopt if Annapumabai died without making an adoption from amongst the family on the advice of the executors. There was therefore 523 litigation in connection with the adoption between Saraswatibai and Balkrishna Waman, one of the legatees under the will of Ganpatrao, which ended in favour of Balkrishna Waman. Saraswatibai died in 1943. The case of the appellant was that the will of Ganpatrao merely gave widow 's estate to Annapurnabai and Saraswatibai. Consequently Annapurnabai could not dispose of the property given to her by will and the bequests made by her were not binding on the appellant as the next reversioner. It was also alleged that the will made by Annapurnabai was vitiated by the exercise of undue influence brought to bear on her by Balkrishna Waman, who was the husband of her niece. Saraswatibai also made certain alienations and the appellant contended that the sale by Saraswatibai was due to the undue influence exercised on her by Balkrishna Waman, and in any case there was no legal necessity for transfer and therefore the transfer was not binding on the appellant. The main defendant in the suit was Ganesh, a son of Balkrishna Waman. In addition there were twelve other defendants who were alienees in possession of the property and were joined in the suit as the appellant prayed for recovery of possession from them also. The suit was resisted by the main defendant Ganesh for two main reasons. It was first contended that the appellant was an undischarged insolvent at the time succession opened in 1943 and therefore whatever property might come to him as a reversioner vested in the official receiver. Therefore, the appellant had no right to bring a suit to recover possession even after his absolute discharge because the property never vested in him. Secondly, it was contended that by his will Ganpatrao had granted an absolute estate to the two widows and therefore 524 Annapurnabai had full right to make a will with respect to the property given to her and Sarswatibai had the right to make alienations if she thought fit. Besides these two main defences, it was also contended that the appellant was not the nearest reversioner and the alienations made by Sarswatibai were for legal necessity. The same defence was raised by the other defendants. In addition the alienees from Sarswatibai contended that they were bona fide pur chasers for value without notice of the defect in their vendor 's title and therefore the alienations made in their favour could not be set aside. They further pleaded that they had made substantial improvements on the properties purchased by them. On these pleadings as many as eighteen issues were framed by the trial court. Two of these issues covered the two main defences which were raised, namely, (1) Is the plaintiff entitled to maintain the suit due to his insolvency as alleged by the defendants? (3) Had Annapurnabai no authority to will away the properties in her possession? The trial court held that the plaintiff was entitled to maintain the suit. The third issue obviously raised the question whether the bequest to Annapurnabai was that of widow 's estate or an absolute bequest, and the trial court held in that connection that the bequest to Annapurnabai was that of widow 's estate and therefore she had no right to will away the properties in her possession. The trial court also gave findings on the remaining issues and finally declared that the alienations made by Saraswatibai on March 29, 1930 and April 16, 1935 were not for legal necesssity and therefore were not binding on the appellant and the defendants of the suit were directed to deliver 525 possession of the suit properties to the appellant. Inquiry as to mesne profits was also directed and Rd finally the trial court ordered that notice be given to the receiver in the insolvency application No. 48 of 1939 to consider if he wanted the property to be made available for distribution amongst creditors in the aforementioned application. The defendants then went in appeal to the High Court and two separate appeals were filed one by original defendant No. 3 and the other by original defendant No. I and some others. The two appeals were heard together by the High Court and the two principal questions which arose, according to the High Court, were as to (i) the effect of the dispositions made by Ganpatrao under his will, and (ii) the right of the plaintiff to maintain the suit when he was, at the date when the succession opened, an undischarged insolvent, These two questions, it will be seen, correspond to the two issues raised by the trial court, which we have set out above. The High Court first considered the right of the plaintiff to maintain the suit and held that the plaintiff had no right to maintain the suit, as he was an undischarged insolvent at the time the succession opened and he could not maintain the suit even after his absolute discharge. The High Court further held that the disposition in favour of Annapurnabai of the property in Dahisar amounted to conferment of absolute estate on her and further that the disposition in favour of Saraswatibai of the property in Nagaon amounted to conferment of absolute estate on her. On these findings the High Court dismissed the suit. Thereupon the appellant applied for a. certificate which was granted; and that is how the matter has come up before us. 526 The first question that falls for consideration is whether the appellant can maintain the suit. It is necessary in that connection to see what the facts are with respect to the insolvency of the appellant. The appellant had filed an insolvency application in 1939 and was adjudged insolvent on March 11, 1940 and two years time was granted to him to apply for discharge. The appellant applied for discharge on July 6, 1942 and he was granted an absolute discharge in January, 1944. The succession to the estate of Ganpatrao had however opened on May 4, 1943 when the appellant was still an undischarged insolvent. Consequently, the case of the defendants respondents was that under section 28 (4) of the Provincial Insolvency Act, No. 5 of 1920, (hereinafter referred to as the Act), the property which devolved on the insolvent after the date of the order of adjudication and before his discharge forthwith vested in the court or receiver. It is further urged that the property having vested in the court or receiver it must remain so vested even after the absolute discharge of the appellant for the order of absolute discharge merely absolved the insolvent from liability from payment of debts other than those mentioned in section 44 of the Act. Therefore when the suit was brought in 1947 after the discharge the appellant had no title in the property as the title still vested in the court or receiver, and consequently the appellant could not maintain the suit for ejectment against those in possession of the property as he had no title on which he could base his right to sue for ejectment. The question therefore that arises for determination is whether an insolvent on whom property devolves when he is an undischarged insolvent can maintain a suit for the recovery of the property after his absolute discharge. The decision of that depends on what effect the order of absolute discharge has on the insolvent 's title to the property 527 which develoved on him when he was still an undischarged insolvent. It is to this narrow question, (namely, whether a suit brought by an insolvent after his absolute discharge with respect to property which devolved on him when he was an undischarged insolvent can be maintained by him), that we address ourselves hereafter. In view of this narrow question it is in our opinion unnecessary to consider those cases on some of which the High Court has relied which deal with the, right of the insolvent to maintain a suit while he is still an insolvent. What we say hereafter will only apply to a case where the suit is brought by an insolvent after his absolute discharge, though the right to property which is in suit devolved on him when he was an undischarged insolvent. It will be necessary in this connection to consider briefly the scheme of the Act, to decide exactly what the consequences are when an absolute discharge is granted to an insolvent. Section 6 of the Act defines what are acts of insolvency. Section 7 gives power to a debtor or a creditor to make an application for insolvency, if the debtor has committed an act of insolvency. Section 9 deals with applications made by creditors and section 10 by debtors. Section 19 provides for the procedure for hearing an insolvency petition. Sections 20 and 21 provide for interim proceedings against the debtor and appointment of an interim receiver. Section 25 provides for dismissal of the petition on grounds mentioned therein Section 27 gives power to the court to make an order of adjudication and the Court also has to fix a time therein within which the debtor shall apply for his discharge. Section 28 with which we are mainly concerned lays down the effect of an order of adjudication. Sub section (2) thereof provides that on the making of an order of adjudication, the whole of the property 528 of the insolvent shall vest in the court or in a receiver and shall become divisible among the creditors Under sub section (7) this vesting will relate back to and take effect from the date of the presentation of the petition on which the order of adjudication is made. Sub section (4) which is also material lays down that "all property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the court or receiver, and the provisions of sub section (2) shall apply in respect thereof." This sub section undoubtedly vests in) the court or receiver any property which the insolvent acquires after the order of adjudication and before his discharge or which devolves on him in any manner, and such vesting takes place forthwith Section 33 provides for the making of a schedule of creditors after the order of adjudication and section 34 lays down what debts are provable under the Act. Section 56 provides for the appointment of a receiver and section 59 lays down the duties and powers of the receiver Scction 61 provides for priority of debts and section 62 for calculation of dividends. Section 64 lays down that when the receiver has realised all the property of the insolvent or so much thereof as can, in the opinion of the court, be realised without needlessly protracting the receivership, he shall declare a final dividend. But before doing so, the receiver has to give notice to persons whose claims as creditors have been notified but not proved, that if they do not prove their claims within the time limited by the notice, he will proceed to make a final dividend without regard to their claims. After the expiration of such time, the property of the insolvent shall be divided amongst the creditors entered in the schedule without regard to the claims of any other persons. Then comes section 67 which lays down that " 'the insol vent shall be entitled to any surplus remaining after payment in full of his creditors with interest as 529 provided by this Act, and of the expenses of the proceedings taken thereunder. " It is clear from this scheme of the Act that the entire property of the insolvent belonging to him on the date the petition for insolvency is made vests in the receiver under section 28 (2). Further under section 28 (4) if any property is acquired by the insolvent or devolves on him after the order of adjudication and before he is discharged, that property also vests in the court or receiver forthwith. The receiver has to administer the property so vested in him and he has the power to sell the property and do various other acts provided in section 59 for the purpose of the administration of the property. Generally speaking the receiver sells the property which vests in him and then distributes the money amongst the creditors who have proved their debts. But before the receiver declares the final dividend he has to give one more opportunity under section 64 to creditors who might not have proved their debts at the earlier stage, to come and prove their debts. This will generally happen when all the property of the insolvent has been disposed of by the receiver, though section 64 contemplates that the final dividend may be declared even if some property has not been disposed of when in the opinion of the court it will needlessly protract the receivership. Section 67 then finally provides that if any surplus is left in the hands of the receiver after payment in full to the creditors with interest and of the expenses of the proceedings under the Act, the surplus is to be paid to the insolvent. As we have said already, the final dividend is generally declared after all the property of the insolvent is disposed of but there may be cases when a final dividend may be declared without the disposition of all the property of the insolvent if in the opinion of the court that would result in needlessly protracting the receivership. But it is clear that under section 67 if there is 530 any surplus remaining in the hands of the receiver that surplus has to go to the insolvent. Though this is the general scheme of the Act with reference to administration of property which vests in the receiver after an order of adjudication, there are two exceptions which may be noticed. Section 35 provides that where, in the opinion of the court, a debtor ought not to have been adjudged insolvent, or where it is proved to the satisfaction of the court that the debts of the insolvent have been paid in full, the court shall, on the application of the debtor, or of any other person interested, by order in writing, annul the adjudication. Section 37 then provides that "where an adjudication is annulled, all sales and dispositions of property and payments duly made, and all acts therefore done, by the court or receiver, shall be valid ; but, subject as aforesaid, the property of the debtor who was adjudged insolvent shall vest in such person as the court may appoint, or, in default 'of such appoint ment, shall revert to the debtor to the extent of his right or interest therein on such conditions (if any) as the court may, by order in writing, declare. " Special stress has been laid on behalf of the respondents on the provision in section 37 which specifically lays down that the property of the debtor in case of annulment shall vest in such person as the court may appoint or in default of such appointment shall revert to the debtor, thus divesting the court or the receiver of the property which had vested in them under section 28 (2) or section 28 (4). The second exception is to be found in section 38 which allows compositions and schemes of arrangement. Section 39 then provides that if the court approves the composition or the scheme of arrangement, the terms shall be embodied in the order of the court and the order of adjudication shall be annulled and the provisions of section 37 shall apply to such annulment. 531 Lastly, we come to what happens where the estate of the insolvent has been administered in the usual way which we have set out already. Section 41 authorises the debtor to apply for an order of discharge. On such an application the court has to consider the objection, if any, made by any creditor and also the report of the receiver in case a receiver has been appointed and thereafter the court may (a) grant or refuse an absolute order of discharge ; or (b) suspend the operation of the order for a specified time ; or (c) grant an order of discharge subject.to any conditions with respect to any earnings or income which may afterwards become due to the insolvent, or with respect to his after acquired property. Section 42 then lays down in what circumstances the court, shall refuse to grant an absolute order of discharge ; and we may refer to only cl. (a) of section 42 (1) in that connection which gives power to the court to refuse to grant an absolute order of discharge if it finds that the insolvent 's assets are not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities, unless the in solvent satisfies the court that the fact that the assets are not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities has arisen from circumstances for which he cannot justly be held responsible. Section 43 provides that if the debtor does not apply for discharge within the period fixed by the court, or does not appear on the day fixed for hearing his application for discharge, the court may annul the order of adjudication or make such other order as it may think fit, and if the adjudication is so annulled, the provisions 532 of section 37 shall apply. Section 44 then provides for the effect of the order of discharge. Sub section (1) thereof mentions the debts from which the insolvent will not be released on an order of discharge. Subsection (2) then provides that "save as otherwise provided by sub section (I.), an order of discharge shall release the insolvent from all debts provable under this Act. " Stress is laid on behalf of the respondents on this provision and it is urged that though sub section (2) provides that the insolvent shall be released from all debts provable under the Act, it does not provide for revesting any property in the insolvent on an order of discharge. It is thus clear from the above analysis of the provisions of the Act that if there is no annulment of the adjudication and no sanction of a composition or scheme of arrangement resulting in an order of annulment, insolvency proceedings terminate generally after the administration of the properties is complete and a discharge is granted. The discharge may be absolute in which case the consequences mentioned in section 44 (2) apply. On the other hand discharge may be conditional in which case also the consequences of section 44 (2) apply subject to the conditions attached to the discharge in accordance with sub section 41 (2) (c). Further in considering whether an absolute order of discharge should be granted or not. the court has to consider whether the in solvent 's assets are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities. Further before granting a discharge the court has to consider the report of the receiver if one is appointed. It is therefore reasonable to think that generally speaking an order of discharge will only be made after the court has considered the report of the receiver and has also considered that the assets of the insolvent ; are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities. It is also not unreasonable 533 to think in view of all the provisions that no order of discharge will generally be made till all the assets of the insolvent are realised, (see section 64), though, as we have already pointed out, it is possible to declare a final dividend even though all the property of the insolvent has not been realised if in the opinion of the court such realisation would needlessly protract the receivership. In such a case however the court would generally pass an order protecting the interests of the creditors with respect to the property which has not been realised before the order of discharge. Finally there is section 67, which provides that if there is any surplus remaining after payment in full of his creditors with interest and of the expenses of the proceedings taken under the Act, it shall go to the insolvent. The key to the solution of the narrow question posed before us is in our opinion to be found in section 67. It is true that section 44 when it provides for the consequences of an order of discharge does not lay down that any property of the insolvent remaining undisposed of will revest in him and to that extent it is in contrast to section 37, which provides for the effect of an order of annulment and in effect lays down that all sales and dispositions of property made by the receiver shall be valid, but if any property remains undisposed of it shall vest in such person as the court may appoint or in default of any appointment shall revert to the debtor insolvent. The reason why section 44 has not provided specifically for the reversion of undisposed property to the insolvent obviously is that the scheme of the Act does not contemplate where there is no annulment that any property which vested in the receiver would remain undisposed of. It as section 74 shows the final dividend is generally declared when he receiver has realised all the property of the insolvent there would be no property left unadministered usually when an order of discharge comes to be passed. It is however urged on behalf of the respondents 534 that there is nothing in sections 41 and 42 to suggest that a discharge can only be granted after a final dividend is declared and therefore there may be cases where administration by the receiver may still go on after discharge has been ordered. This argument, in our opinion, is not quite correct, for cl. (a) to section 42 (1) definitely requires the court to consider whether the assets are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities, and this the Court generally speaking can only find out after all the property has been realised and final dividend has been declared. But, as we have pointed out, it is possible to declare a final dividend and thereafter to get an order of discharge even though some property may not have been disposed of where in the opinion of the court the realisation of such property would needlessly protract the receivership. Therefore it may be possible in some cases that all the property of the insolvent may not be disposed of before an order of discharge is made. But in such a case the court will generally pass orders with respect to the property not disposed of when granting ' an order of discharge. It is true that the Act does not contemplate that an insolvent might get an order of discharge and yet retain part of his property free from the liability to pay debts provable under the Act, in case all the debts have not been paid off But it is here that we have to look to the effect of section 67 of the Act. That section lays down that the insolvent shall be entitled to any surplus remaining after payment in full of his creditors with interest as provided ' by the Act and of the expenses of the proceedings taken thereunder. Now, often this surplus would be in the form of money. But take a case where an insolvent has come into property by devolution after he became insolvent and before his discharge; and suppose that the property which was devolved on him is worth a few lacs while his debts are only a few thousands. In such a case the receiver would not proceed to sell all the property; he would only sell so much of the 535 property as would satisfy the debts in full and meet the expenses of the proceedings in insolvency; the rest of the property whether movable or immovable would not be converted into money. It seems to us that it would not be wrong in such a case to call such property whether movable or immovable which remains after payment in full to the creditors with interest and of the expenses of the proceedings in insolvency as "surplus". To this surplus the insolvent is entitled. In such a case therefore it would be proper to hold that if any property remains undisposed of in the shape of surplus that vests back in the insolvent, just as surplus in the shape of money would. It is true that cases may arise where what devolves on the insolvent after the order of adjudication and before his discharge may not be easily realisable or may be a matter of dispute which may lead to litigation lasting for many years. In such a case the receiver would be entitled to declare a final dividend if the court is of opinion that the property which has de ' volved on the insolvent is subject of protracted litigation and it cannot be realised without needlessly protracting the receivership. Such property would also in our opinion be surplus to which the insolvent would be entitled under section 67 subject to his complying in full with the provisions of that section i.e. paying his creditors in full with interest and meeting the expenses of the proceedings taken under the Act. A third class of cases may arise where the court may not come to know of the property which devolves on the insolvent and grants a discharge in ignorance of such devolution, may be because the insolvent did not bring it to the notice of the court. In such a case also in principle we see no difficulty in holding that the property which vested in the receiver under section 28 (4) and which remained undisposed of by him before the discharge of the insolvent would still be surplus to which the insolvent would be entitled, though he may not be permitted to make full use of 536 it until he complies with the conditions in section 67, namely, until payment in full is made to his creditors and the expenses of the proceedings in insolvency are met by him out of the property so remaining undisposed of. Though therefore there is no specific provision in terms in section 44 (2) with respect to property that may remain undisposed of by the receiver or by the court like the provision in section 37 on an order of annulment, it seems to us that section 67 by necessary implication provides the answer to a case like the present. All the property which remains undisposed of at the time of discharge must be treated as surplus to which the insolvent is entitled. The insolvent will thus get title to all such property and the vesting in the receiver whether under section 28 (2) or section 28(4) would come to an end on an order of discharge subject always to the insolvent complying in full with the conditions of section 67 in case they have not been complied with before his discharge, for he is entitled only to the surplus after the creditors have been paid in full and the expenses of all proceedings in insol vency have been met Any other view of the effect of discharge would result in this startling position that though the insolvent is freed from his debts under section 44 (2) and is a freeman for all purposes the property which was his and which vested in the receiver under section 28 (4) will never come back to him and will always remain vested either in the court or the receiver. We have no doubt that the Act did not contemplate such a situation. We have already indicated the reason why section 44 does not provide for revesting of property in the insolvent in contrast to the provision therefor in section 37. Generally speaking it is not expected that there would be any property left to revest in the insolvent after the administration in insolvency is over. We have therefore to look to section 67 which provides that the insolvent is entitled to any surplus remaining after payment in full of his creditors and after meeting the expenses of the proceedings taken under the Act; and it is that 537 section which gives title to the insolvent in the property which remains undisposed of for any reason before his discharge subject to the conditions of that section being fulfilled even after the discharge. just as the Act does not contemplate that an insolvent would get an order of discharge and yet retain part of his property without meeting the debts provable under the Act in full, it is to our mind equally clear that the Act does not contemplate that after an insolvent has been discharged his undisposed of property, if any, should for ever remain in the possession of the court or receiver, even though in a particular case the creditors may have been paid in full out of the property disposed of ' and all the expenses of the proceedings under the Act have been met. In such a case it seems to us that it is section 67 which must come to the aid of the insolvent and the property which remains undisposed of must be treated as surplus and he gets title to it. Where however the insolvent has been discharged without fully meeting the conditions of section 67, he would in our opinion be still entitled to the surplus, even if it be in the shape of undisposed property, subject to his fulfilling the conditions of section 67. It may be added that there is nothing in the Act which takes away the right of the insolvent to sue in courts after he has been granted a discharge, for he then becomes a free man. In such a situation we are of opinion that he would certainly be entitled to sue in court for recovery of his undisposed of property, if it is in the possession of a third party, after his discharge and such property cannot for ever remain vested in the court or receiver. All that justice requires is that in case the conditions of section 67 have not been fulfilled such property should be subject to those conditions, namely, that he should be liable to discharge his creditors in full. with interest and to meet the expenses of all proceedings taken under the Act. Subject to these conditions the insolvent in our opinion would be entitled to undisposed of property on discharge and would be 538 free to deal with it as any other person and, if necessary, to file a suit to recover it. It remains now to consider some of the cases which were cited at the bar. We have already pointed out that it is unnecessary to consider those cases which deal with the right of the insolvent to file a suit while he is still undischarged, though even on this point there seems to be difference of opinion in various High Courts as to the power of the insolvent; nor is it necessary to refer to the rule in Cohen vs Mitchel (1), which has found statutory expression in section 47 of the Bankruptcy Act, 1914, (4 & 5 Geo.5, ch. 59). Section 47 of the English Bank ruptcy Act deals with transactions by a bankrupt with any person dealing with him bona fide and for value, in respect of property, whether real or personal, acquired by the bankrupt after the adjudication, and provides that all such transactions shall be valid if completed before intervention by the trustee (i. e. the receiver). In England, therefore intervention by the trustee (i.e. the receiver) is required before completion of the transaction and if the trustee does not intervene the transactions arc generally speaking good. That position of law however does not apply in India because of section 28 (4), which specifically lays down that all the property which is acquired by or devolves on an insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the court or receivers Learned counsel for the parties have not been able to cite any case which deals exactly with a case like the one before us. We may however refer to certain observations of learned judges which may be helpful to show how the position has been understood by some High Courts with respect to surplus and also with respect to what happens to undisposed of property after a (1) , 539 discharge, though there is no discussion on the subject in the cases cited. In Sayad Daud Sayad Mohd. vs Mulna Mohd. Sayad (1), the Bombay High Court was dealing with a case where an insolvent had filed a suit to recover property four days after he had been adjudicated insolvent '. Later the official assignee wanted to join as a new plaintiff when he came to know of the suit; but by that time it appears that limitation had expired, and the question arose whether the suit would be said to have been filed afresh on the date the official assignee intervened. It was held that that was so, for the insolvent could not maintain a suit after he had been adjudicated insolvent and so far as the official assignee was concerned the suit must be held to have been filed on the date he asked for intervention and would therefore be barred by time. It will be seen that the case deals with a suit brought by an undischarged insolvent and not with a suit as in the present case brought by a discharged insolvent. But the learned judges observed that the vesting order for the time being was paramount, even though an insolvent might eventually be entitled to what might remain as surplus after satisfying his creditors, thus showing that what remains as surplus becomes the property of the insolvent. Yellavajjhula Surayya vs Tummalapalli Mangayya (2) is a case more directly in point. In that case the plaintiff was declared an insolvent in 1919. He was still an insolvent in 1929 when certain property devolved on him as reversioner. He was granted an absolute discharge in August 1931. No creditors had come to prove their debts or to take steps between 1919 and 1929; nor did the official receiver take any step prior to 1929 or between 1929 to 1931. After his absolute discharge, the plaintiff instituted a suit for recovering the property. , In that (1) (2) A.I.R. (1941) Mad. 345 540 suit, Varadachariar J. observed and, if we may say so with respect, rightly that the construction of cl. (4) of section 28 was not free from difficulty; but went on to add that there was nothing in the policy of the Insolvency Law to suggest that it was intended to benefit strangers, and in the circumstances the plain ' tiff could maintain the suit, though the learned judge added that nothing that was said in the judge ment would prejudice the right, if any, of the official receiver or of the creditors of the plaintiff to assert such rights and remedies as they might have in law in respect of the suit properties. It will be seen that this case was almost similar to the case before us and the court held that in such circumstances the discharged insolvent could maintain the suit, though the reasoning was only in one sentence, namely, that there was nothing in the policy of the Insolvency Law to suggest that it was intended to benefit strangers. In Rup Narain Singh vs Har Gopal Tewari an insolvent acquired some property after the order of adjudication. It was apparently not brought to the notice of the receiver and was mortgaged by the insolvent while he was still undischarged. Later after his discharge the mortgagee brought a suit to enforce the mortgage. The insolvent mortgagor had transferred part of the property to other persons who were also made parties. These persons raised the defence that as the mortgagor was an undischarged insolvent when he executed the mortgage, it was void. The High Court negatived this contention and relying on section 43 of the Transfer of property Act decreed the suit. In the course of the judgment the High Court however observed that after the order of discharge was passed, the property had been divested from the receiver and revested in the insol vent, though no reason was given for this view. In Dewan Chand vs Manak Chand (2) the facts were that a certain property devolved on an insolvent, (1) I.L.R. (1933) 55 All. (2) A.I.R. (1934) Lab. 809 541 who made a mortgage of it, apparently without bringing it to the notice of the receiver. After the insolvent was discharged, a suit was brought to enforce the mortgage and a question arose whether section 43 of the Transfer of property Act would apply. In that connection the High Court observed that after the insolvent was discharged the property in question must be considered to have revested in the mortgagor on his discharge in the absence of any order to the contrary by the court. We may now notice some cases on which reliance is placed to suggest that undisposed of property can never vest in the insolvent, even after he gets a discharge. In Arjun Das Kundu vs Marchhiya Telinee (1), it was held that "an absolute order of discharge of an insolvent does not release any property acquired by him before such order from the liability to meet his debts provable in insolvency. " That case, however, was only dealing with the effect of section 44 (2) of the Act and it was held that if there was any property which vested in the official receiver either under section 28 (2) or under section 28(4) and that property was not disposed of before the order of discharge, the creditors would still have a right to get their debts discharged by the sale of that property even though they might not have proved the debts at an earlier stage. This case does not in our opinion support the proposition contended for by the respon dents. It only lays down that the property which remains undisposed of would still be subject to the debts provable under the Act, and this is what in our opinion is the effect of section 67 where only the surplus revests in the insolvent. The next case is Kanshi Ram vs Hari Ram (2) there the facts were that a discharge was granted on the re port of the official receiver to the effect that the insolvent 's assets had been completely disposed of. Thereafter it was discovered that some property had (1) I.L.R. (2) A.I.R. (1937) Lah. 542 devolved on the insolvent before his discharge and was not within the knowledge of the receiver. The High Court held that such property was liable to meet the debts which had not been paid in full before the discharge. This case also in our opinion only lays down that any surplus in the hands of the insolvent after his discharge is liable to the debts provable under the Act if they have not been paid in full, and this is in accordance with the provisions of section 67, for the insolvent is only entitled to that property or money as surplus which remains after payment of his debts in full and after meeting all expenses of the proceedings under the Act. The last case to which reference may be made is Parsu vs Balaji (1). In that case also the insolvent had been discharged but his debts had not been paid in full. It was held in those circumstances that any undisposed of property would still be liable to meet the debts provable under the Act. This again in our opinion is in accord with section 67 where the insolvent is only entitled to that surplus which remains after his debts have been paid in full and all the expenses of the proceedings taken under the Act have been met. Therefore, on a careful consideration of the scheme of the Act and on a review of the authorities which have been cited at the bar, we are of opinion that an insolvent is entitled to get back any undisposed of property as surplus when an absolute order of discharge is made in his favour, subject always to the condition that if any of the debts provable under the Act have not been discharged before the order of discharge, the property would remain liable to dis charge those debts and also meet the expenses of all proceedings taken under the Act till they arc fully met. The view of the High Court that the suit is not maintainable is therefore not correct. The order of the trial court by which it held that the suit was maintainable and provided that notice should be (1) I.L.R. 543 given to the receiver in insolvency application No. 48 of 1939 to consider if be wanted the property to be made available for distribution amongst creditors, is correct. Now we come to the second point raised before the High Court, namely, the effect of the will of Ganpatrao. By the first clause of the will, Ganpatrao appointed three executors. The bequest in favour of Annapumabai was in these terms : "The entire immovable property situate at the village of Dahisar, Taluka Kalyan, consisting of lands and tenements etc. is given to my senior wife, Annapoorna. During her life time she shall enjoy, as owner, the income therefrom, in any manner she may like. No one shall have (any) right, title or interest therein. " The bequest in favour of Sarswatibai was in these terms : "The entire immovable property situate at the village of Nagaon, Taluka Kalyan, consisting of lands and tenements etc. is given to my junior wife, Sarswati. During her life time, she shall enjoy, as owner, only the income therefrom in any manner she may like." Then there was another clause which gave them some property jointly, which was in these terms : "The property consisting of a dwelling house and other structures and open space etc. situate at Thana shall remain with my two wives. Hence, they should live amicably and enjoy the same. " The High Court has held that the estate given to Annapurnabai in the lands at village Dahisar and 544 to Sarswatibai in the lands at village Nagaon and the estate given to them, in the house at Thana was an absolute estate subject to defeasance of the estate on their deaths in case a son was adopted by Annapurnabai. It is true that the two clauses with respect to the demise of properties in villages Dahisar and Nagaon to the two widows use the word "owner" ; but we have to read the clauses as a whole together with the surrounding circumstances then prevailing as also in contrast to the other clauses in the will to determine the intention of the testator. Now the clause with respect to village Dahisar is that the property in Dahisar was given to Annapurnabai. and then goes on to say that during her life time she would enjoy as owner the income there from in any manner she liked and no one else would have any right, title or interest therein Reading the clause as a whole it seems to us fairly clear that the intention of the testator was that the property given to Annapurnabai was for her life and she was entitled to enjoy the income therefrom in any manner she liked without any interference by any one. If the testator 's intention had been to give an absolute estate to Annapurnabai, there was no reason why he should have gone on to say in that clause, "during her life time she shall enjoy as owner the income therefrom, in any manner she may like", for that would have been unnecessary in the case of a person who was given an absolute estate. Therefore these words appearing in the second clause are clearly words of, limitation and show on the reading of the whole clause that the intention of the testator was to confer a life estate on Annapurnabai. In the case of the property in village Nagaon, the matter is clearer still, for the testator said that Sarswatibai shall enjoy as owner, only the income during her life time. These are clear words of limitation and show on reading the clause as a whole that the 545 intention of the testator was to confer only life estate on Sarswatibai. As to the clause relating to the dwelling house etc. in Thana, it is remarkable that that clause does not even use the word "given" ; it only says that the dwelling house etc. " 'shall remain with my two wives" i.e. that they will be in possession so long as they live. The further sentence that they should live amicably and enjoy the same, makes in our opinion no difference to the intention of the testator, which is clear from the fact that he wanted these properties to remain with his two wives, i.e. he was only giving them the possession of the property for enjoyment for their lives. In this connection it may be well to contrast the language of some other clauses in the will where the bequest was obviously of an absolute estate. Take the bequest relating to Sirdhon village in favour of Balkrishna Waman Kharkar. It is in these terms : "The entire immovable property situate , 'at Sirdhon village, taluka Panvel, consisting of lands and tenements etc. is given to Chiranjiv Balkrishan Waman Kharkar. He shall en 'JOY the same as owner. Neither my two wives nor others whosoever shall have any right, title or interest etc. whatever therein. " This is a clear bequest of an absolute estate. There is no mention of any income in this clause and also no mention of the life time of the legatee. Obviously, therefore, where the testator was intending to bequeath an absolute estate he used entirely different language from that used in the three clauses with respect to his wives. Contrast again the language relating to the bequest of movable property in favour of the two wives. That clause is in these terms : " Movable property such as ornaments and trinkets and clothes and raiments etc. which 546 may have been given to any party shall remain with the said party and my two wives shall be fully entitled thereto. They shall deal with the same in any manner they like. " The use of the words "fully entitled" clearly indicates the bequest of absolute estate so far as movable property is concerned ; but we find no similar words in the clauses relating to bequests of property in villages Dahisar, Nagaon and Thana. This conclusion as to the nature of the interest bequeathed to the two wives is strengthened by another provision in the will. Under that provision Annapurnabai was authorised to adopt a fit boy from amongst the family, on the advice of the executors. It was also provided that the adopted son shall have no right of any kind whatever to the movable and immovable properties so long as Annapumabai remained alive. But on her death he was to be entitled to these. properties. It was further provided that on the death of Sarswatibai the adopted son would become entitled to the immovable property bequeathed of her. Now if the estate bequeathed to Annapurnabai and Sarswatibai was anabsolute estate it is difficult to see how the testator could provide that on the death of Annapurnabai and saraswatibai the properties bequeathed to them would go to the adopted son. The holder of an absolute estate would be entitled to sell it if she so desired, and therefore there could be no provision in the will that on the deaths of Annapumabai and Sarswatibai, the property bequeathed to them would go to the adopted son. This provision therefore read with the provisions in the three clauses relating to the bequests of properties in Dahisar; Nagaon and Thana clearly shows that the bequest of those properties in favour of the two wives was only a life estate. We cannot therefore agree with the 547 High Court that the estate given to Annapumabai and Sarswatibai whether in Dahisar, Nagaon or Thana was an absolute estate. In our opinion it was life estate only. It may also be added that Ganpatrao died,, in 1894 when it was more usual to give life estate to widows and the terms in the various clauses on the will are in our opinion in consonance with the prevailing practice in those times. In the view that we have taken it follows that the judgment of the High Court must be set aside. However as the High Court has only considered these two questions, the case will have to be remanded so that the High Court may go into the other issues raised and decided by the trial court. Lastly we may refer to another contention on behalf of the respondents. It appears that Shamdas Narayandas and jaigopal Narayandas purchased property in village Dhokali Manpada in Taluka and sub division of Thana, described as lot No. 8 in the first schedule to the 'plaint. It appears that there was one sale deed in favour of these two defendants. Of these defendants, jaigopal_Narayandas died on April 19, 1960, after the decree of the High Court which was given on March 7, 1957, and also after the grant of the certificate by the High Court in May, 1958, and the order admitting the appeal by the High Court in April, 1959. The record was despatched to this Court in 1962. No application was however made to the High Court till August 13, 1962, for substitution of the heirs of jaigopal Narayandas. When the application was made in August 1962, for substitution, the High Court dismissed it on Jannary 9. 1963, on the ground of limitation. There was then a review application filed before the High Court, which was also dismissed on February 12, 1963. Thereafter the petition of appeal was filed in this Court on March 13, 1963. Then on April 3, 1963, an application was made to this 548 Court for substitution of the heirs of Jaigopal Nara a as. The respondents contend that as the heirs of jaigopal Narayandas were not brought on the recordwithin the time allowed by law, the entire appeal abates. We are of opinion that the interests of the various defendants who are in possession of various properties are independent and therefore the whole of the appeal cannot abate because the heirs of certain deceased defendants in possession of one property have not been brought on the record. So far as lot. No. 8 is concerned it was the common progerty of Shamdas Narayandas and jaigopal Narayan as, which they apparently acquired by one sale decd. We are not prepared to condone the delay in bringing the heirs of jaigopal Narayandas on the record and therefore dismiss the application dated April 3, 1963. The effect of this will be that the suit will abate in so far as the property in lot No. 8 is concerned. It is not shown that the interest of the two purchasers who are presumably members of an undivided family were separate and distinct and so there cannot be partial abatement only in regard to the share of the deceased purchaser; but that cannot affect the appeal in so far as the property in other lots is concerned. The High Court on remand will therefore go into the other issues with respect to properties in lots other than lot No. 8. We therefore allow the appeal and remand the case to the High Court for decision on other issues so far as lots (other than lot No. 8) in the first schedule to the plaint are concerned. So far as lot No. 8 is concerned, the appeal abates and is dismissed. In the circumstances we pass no order as to the costs of the appeal with respect to lot No. 8, so far as the costs of the appeal with respect to other lots are concerned, the respondents will pay the costs of the appellant including advocate 's fee of this court & the Court fees also. Appeal allowed. Case remanded. [/INST]The appellant, a Hindu reversioner, brought the suit out of which the appeal arose for recovery of certain properties alienated by two widows having widow 's estates under the will of their husband. The respondents resisted the suit mainly on the grounds that the appellant, who was an undischarged insolvent at the time the succession opened, could not maintain the suit even after his absolute discharge as the properties must be taken to have vested in the official receiver and that under the will of their husband the widows got not a widow 's estate but an absolute estate and had the right to alienate the properties which they did. The trial court found in favour of the appellant and directed delivery of possession of the properties to him. On appeal the High Court took the contrary view on both the points and dismissed the suit. The appellant came up to this Court on the certificate granted by the High Court. Held that the High Court was in error in holding that the appellant could not maintain the suit. There is nothing in the Provincial Insolvency Act that takes away the right of the insolvent to sue in courts after he is granted a discharge for he then becomes a free man. Though there is no specific provision in the Act with respect to the property that may remain undisposed of by the court or by the receiver, the provisions in section 67 by necessary implication read in the light of the general scheme of the Act provides an answer to this and all such property must be treated as surplus to which an insolvent is entitled, after an absolute order of discharge is made in his favour, subject always to the condition that if any debts provable under the Act have not been discharged before such order, 521 the property will remain liable for such discharge as also the expenses of all proceedings under the Act till they are fully met. Cohen vs Mitchel, (I 890) ; Sayad Daud Sayed Mahomed vs Mulna Mahomed Sayad, (1926) 28 Bom. L. R. 334; Yellavajjhula Suraya vs Tummalapali Mangayya, A.I.R. , Rup Narain Singh vs Har Gopal Tewari, 'I. L. R. (1933), 53 All. 503; Diwan Chand vs Manak Chand, A.I.R. (1934) Lah. 809; Arjun Das Kundu vs Marchhiya Tolinee, I.L.R. ; Kanshi Ram vs Hari Ram, A. I .R. and Parsu vs Balaji, I.L.R. (I , discussed. In order to determine the true intention of a testator, the clauses of the will should be read as a whole in the light of the surrounding circumstances as also in contrast to the other clauses and where the testator, as in the instant case, having used the word owner ' in the previous clause, follows up by using the words "during her lifetime enjoy as owner the income in any manner she likes" the latter words clearly limit the bequest and indicate that what is given is no more than a life estate. Where the interests of the various defendants in possession of various properties are independent, the appeal cannot abate as a whole by reason of the heirs of a deceased defendant in possession of a property not having been brought on the record within the prescribed time. </s>
<s>[INST] Summarize the judgementN: Criminal Appeal No. 240 of 1982 From the Judgment and Order dt. 2.3.1982 of the High Court of Kerala at Ernakulam in Crl. R.P. No. 435181. Criminal Appeal No. 661 of 1982 From the Judgment and Order dt. 12.2.1982 of the High Court of Kerala at Ernakulam in O.P. No. 6834/81. G.L. Sanghi, G N Rao, A.S. Nambiar, after Singh for the Appellant in Crl. A. No. 240182 & Respondents in Crl. A. No. 611/82. Govind Mukhoty, Mr. V. Maya Krishnan, A N. Bordiyar for the Respondents in Crl A. No 240/82 and Appellants in Crl. A. No. 661182. D S.M. Rebelo (In person). The Judgment of the Court was delivered by, FAZAL ALI, J. BY Our Order dated February 12, 1985 we disposed of the above mentioned two criminal appeals dismissed criminal appeal No. 66118,2 and allowed criminal appeal No. 240 of 1982. We now proceed to give the reasons for our Order The facts of the case lie within a very narrow compass. The appeal by special leave has been filed by the appellant company contending that the respondent was not entitled in law to get full compensation for one year as was granted by the High Court for premature termination of his services. The detailed facts have been given by the High Court and the criminal court and it is not necessary to repeat the same. However, in older to understand the delicate and difficult points raised by the respondent, it may be necessary to give a short history of the circumstances in which the services of the respondent, who was Master of the ship called 'M.V. Anastasis ', were terminated it is common ground that the respondent was appointed on October 22 l980 for a period of one year. It is not disputed that on December 11, 1980 the said ship touched the harbour and thereafter 1001 proceeded to Beypore, Calicut where the respondent received a A message from the owner of the ship that the ship has been sold as scrap to the appellant company, Steel Industrials Kerala Ltd Consequent upon the sale of the ship, by an order dated 20.12.80 the services of the respondent were terminated. On December 22, 1980, i e, two days later, the respondent wrote a letter to the previous owner intimating that, as directed, he had handed over the ship to the appellant company A little later on 24.12.80, the respondent moved the Magistrate under section 145 of the (hereinafter referred to as the 'Act ') for payment of necessary wages. .The Magistrate after considering all the pros and cons of the matter felt that the respondent was entitled to get compensation at least equivalent to three months ' pay. The respondent was, however, not satisfied with the order of the Magistrate because he claimed a much higher compensation as his services were terminated before completion of one year for which he was appointed. It is true that the salary of the respondent, calculated at the rate of $1800 per month, amounts to a substantial sum of money if he were to get compensation on a full salary basis for the entire period, which actually he had not served We are, however, not concerned with the quantum of the compensation which he could get, but the main point for consideration in this case is to whether or not his claim for compensation for the whole year could be entertained. In one of the letters which he had written to the owner of the ship he had himself admitted that he was entitled to two months ' notice pay plus other emoluments. This would show that the contract between the parties as understood by them was that if the services of the respondent were terminated before completion of the term of one year, he would be entitled to two months ' notice. the Magistrate, however, took a more liberal view in the matter and held that the respondent was entitled to at least three months ' notice and consequently to the emoluments calculated at the rate of $1800 per month, and accordingly ordered payment of three months ' pay This is in accordance with section 143 read with section 148 of the Act. It is manifest that under the contract the respondent was not appointed to any permanent post which was to last until his retirement but his appointment was really a term appointment for a fixed period. The main contention of the respondent before us was that as he did not get any discharge slip under the provisions of the Act, he 1002 was entitled to full wages for the entire term of one year. In this connection, he relied on certain provisions of the Act to which we shall refer here after. It appears that the respondent seems to have presumed that he was equal in status to that of a seaman and, therefore, unless a discharge certificate was given to him he was entitled to compensation for the entire period of the contract. A perusal of the relevant sections, clearly reveals that the statute makes a well knit distinction between a seaman and a master of the ship. This now takes us to an analysis of the relevant provisions of the Act on which reliance has been placed by the respondent. To begin with, sub section (22) of section 3 defines a 'Master ' thus: "master" includes any person (except a pilot or harbour master) having command or charge of a ship;" It is pertinent to note that the definition of 'Master ' does not include a seaman and, therefore, the argument of the respondent that he should be equated with a seaman or treated as such, cannot be accepted and is in fact without any substance. Sub section (42) of section 3 defines a 'seaman ' as every person (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship but for certain specific purposes under sections 178 to 183 it includes a master. An analysis of this sub section shows that a seaman cannot in the ordinary sense of the term be equated with a 'master '. Thus, the second part of sub section (42) on which great reliance was placed by the respondent clearly carves out a separate area where for the purpose of this sub section a seaman might include a master. This limited area is to be found within the four corners of sections 178 to 183. This now brings us to a consideration of 9. 178 which may be extracted thus: "178. Meaning of serving seaman A seaman shall, for the purposes of these provisions, be deemed to be a serving seaman during any period commencing on the date of the agreement with the crew and ending thirty days after the date on which the seaman is finally discharged from such agreement." 1003 There is nothing in this section to indicate that a seaman can m any sense of the term be equated with a 'master '. Even section 179 refers only to a serving seaman and not a Master. The relevant provisions of section 180 may be extracted thus:: "180. Notice lo be given in case of unrepresented seaman (1) If a collector has certified under sub section (2) of section 179, or if a court has reason to believe that a seaman who is a party to any proceeding before the court, is unable to appear therein or is a serving seaman, the Court shall suspend the proceeding and shall give notice thereof to the shipping master :" This section merely provides that if a court has reason to believe that a seaman was a party to any proceeding and does not appear therein, the court shall postpone the proceeding and give notice thereof to the shipping master. In this sub section, the word 'master ' has been used for the first time but the term has been used not to equate a seaman with a master but in quite a different content and subserve a different purpose The other sections also, particularly section 183, merely provide that a serving seaman may refer the question to the shipping master whose certificate shall be conclusive evidence on the question whether a seaman was a serving seaman or not at any particular time or period. There is no clear provision from which it can be inferred either directly or by necessary intendment that a master is also a seaman for the purpose of getting compensation if his services were terminated. Section 89 defines the duties of shipping masters which may be extracted thus: F "It shall be duty of shipping masters (a) to superintend and facilitate the engagement and discharge of seamen in the manner provided in this Act: (b) to provide means for securing the presence on , Board at the proper times of the seamen who are so engaged; (c) to facilitate the making of apprenticeship to the sea service; 1004 ( d) to hear and decide disputes under section 132 between a master, owner or agent of a ship and any of the crew of the ship, (e) to perform such other duties relating to seaman, apprentices and merchant ships as are for the time being committed to them by or under this Act. " The various sub sections of section 89 do not at all govern the terms and conditions of a 'master ' but serve to carve out his duties at various levels or stages. Similarly, section 101 refers only to the question that there should be an agreement with the crew in a prescribed form. There is no reference to the terms and conditions of a master in any of the sub sections. Section 103 is a general section which governs the terms and conditions of a seaman and there is no reference to a master of the ship. Reliance was then placed on section 118, the relevant portion of which may be extracted thus: "118. Discharge before shipping master (1) When a seaman serving in a foreign going ship is, on the termination of his engagement, discharged in India, he shall, whether the agreement with the crew be an agreement for the voyage or a running agreement, be discharged in the manner provided by this Act in the presence of a shipping master. " This sub section taken together with the other sub sections also governs the terms and conditions of a seaman and not those of a master of the ship. Section 119 merely provides that the master shall sign and give to seaman who is discharged, a discharge certificate either on his discharge or on payment of his wages specifying the period of his service and the time and place of his discharge. This section also governs the terms and conditions of a seaman and has nothing to do with the terms and conditions of a master of a ship. Similarly, section 120 relates to the consequences where a seaman is discharged. Some reliance was also placed on sub section (1) of s.125 which may be extracted below: "125. Master to deliver account of wages 1005 (1) The master of every ship shall, before paying off A or discharging a seaman under this Act, deliver at the time and in the manner provided by this Act a full and true account in the form prescribed of the seaman 's wages and of all deductions to be made therefrom on any account whatever " B This again defines the duties of a master in respect of a seaman who is discharged. Section 132 provides the procedure to be followed in case any dispute arises, under the agreement with the crew, between the master, owner or agent of a ship and lays down that the same should be submitted for decision to the shipping master. Section 143, on which some reliance was placed by counsel for the respondent, refers only to the circumstances under which a seaman could be discharged and the consequences ensuing therefrom. D It is apparent from the facts narrated and the analysis of the sections made by us that there is no provision in the Act which equates a seaman with a master of a ship in regard to the terms and conditions or emoluments or mode of discharge. In fact, there is no provision under which a master of a ship can get a discharge certificate. But under section 143 read with section 148 a Master is entitled to three months ' wages in case of discharge or termination in the same manner as a seaman is entitled to three months ' wages. Great reliance was, however, placed by the counsel for the respondent on sub sections (l) and (2) section 148 which provide that a master of a ship would have the same rights, liens and remedies for recovery of his wages as a seaman either under the four corners of the Act or by any law or custom Sub s.(2) may be extracted thus: "(2) The master of a ship and every person lawfully acting as master of a ship by reason of the decease or in G capacity from illness of the master of the ship shall, so far as the case permits, have the same rights, liens and remedies for the recovery of disbursements or liabilities properly made or incurred by him on account of the ship as a master has for the recovery of his wages. " 1006 Hence, it is manifest that since there is no provision in the Act under which a discharge certificate can be given to a master of a ship or even otherwise, he cannot claim the rights and privileges of a seaman. This is obviously so because a master of a ship is an officer of a higher rank than that of a seaman and therefore his terms and conditions are bound to be different from that of a seaman. Reliance was also placed on section 199 of the Act which also deals not with the condition is of service of a master but of the forfeiture of wages of a seaman on apprentice on desertion from a ship. It was contended on behalf of the appellant that the contract between the master of a ship and the owner was in the nature of a contract of personal service and could not be specifically enforced. This view is supported by a decision of this Court in Dr. S.B. Dutt vs University of Delhi(1) where Sarkar, J., observed thus: "The High Court had held that it was not open to the arbitrator "to grant Dr. Dutt a declaration that h was still a professor in the University which no Court could or would give him". The High Court felt that this declaration amounted to specific enforcement of a contract of personal service which was forbidden by section 21 of the Specific Relief Act and therefore disclosed an error on the face of the award. We are in entire agreement with the view expressed by the High Court. There is no doubt that a contract of personal service cannot be specifically enforced." Thus, the appellant rightly pointed out that Annexure I appearing at page 64 of the paperbook in criminal appeal No. 240 of 1982, clearly defines the terms of the appointment of Capt. Rebello, master of the chip. It is true that s 148 provides that a master of a ship shall have the same rights and remedies as a seaman but that is only for a particular purpose. In these circumstances, the High Court has misconstrued the various sections of the Act and by a strange process of reasoning arrived at the conclusion that the respondent was entitled to full (1) ; 1007 compensation of one year 's wages even if his services were terminated before expiry of his actual term but there does not appear to be any warrant for this view. Thus, having regard to the various provisions of the act which we have analysed fully, there can be no doubt that the High Court was not at all legally justified in holding that the respondent was entitled to wages for one year when in fact the ship having been treated as a scrap was no longer required and, therefore, the services of the respondent had to be dispensed with. The respondent himself understood the terms of his appointment (mentioned at page 64 of the paperbook) and has therefore rightly put his claim at two months ' wages if he was discharged before completion of his term. As already indicated, the Magistrate has awarded the compensation for three months ' wages instead of two months ' wages and we entirely agree with his view. The result is that we allow criminal appeal No. 240 of 1982, set aside the judgment of the High Court and restore that of the Magistrate. Criminal appeal No. 661 of l982, is dismissed but in the circumstances of the case there will be no order as to costs. The excess amount which has been withdrawn by the respondent shall be refunded to the appellant within four months from today either in instalments or in one lump sum, failing which it will be open to the appellant to recover the same by way of restitution If the amount is not returned within four months, then the recovery will be made with interest at the rate of 12% per annum S R. C.A. No. 24018 ' allowed. C.A. No. 661182 dismissed. [/INST]The respondent was appointed on October 22,1980 for a period of one year as a "master ' of the ship called 'M V Anastasis" in terms of the appointment order under which he was entitled to two months ' wages, if the was discharged before the completion of his term The said ship on December 11, 1980, touched the harbour and thereafter proceeded to Beypore, Calicut, where the respondent was informed that the ship having been sold as a scrap to the appellant company, Steel Industries, Kerala, he should handover the ship to the company. Consequent upon the sale of the ship, by an order dated 20.12.80 the services of the respondent were terminated. On December 22, 1980 the respondent wrote a letter to the previous owner of the ship of having handed over the ship to the appellant company On 24.12.80 the respondent moved the Magistrate under section 145 of the for payment of necessary wages. The Magistrate after considering all the pros and cons of the matter felt that the respondent was entitled to get compensation at least equivalent to three months ' pay calculated at $1800 per month In appeal the High Court of Kerala increased the compensation equivalent to one year 's wages. Allowing the company 's ' criminal appeal No 240/82 and dismissing o the Master 's appeal No 661/82, the Court ^ HELD: 1 The High Court has misconstrued the various sections of the and by a strange process of reasoning arrived at the conclusion that the respondent was entitled to full compensation of one years wages even if his services were terminated before the expiry of his actual term, when in fact the ship having been treated as a 999 scrap was no longer required and therefore his services had to be dispensed A with and when the respondent himself rightly understood the terms of his appointment and put his claim at two months ' wages only. [1006H; 1007] 2.1 There is no provision in the which equates a seaman with a master of a ship in regard to the terms and conditions or emoluments or mode of discharge or under which a matter of a ship can get a discharge certificate But under section 143 read with section 148 a Master is entitled to three months ' wages. [1005C E] 2.2 A perusal of the relevant section clearly reveals that the statute make a well knit distinction between a 'seaman ' and a Master ' of the ship. The definition of 'Master ' in sub section(22) of section 3 does not include a seaman. Sub section 42 of section 3 clearly shows that a 'seaman ' cannot in the ordinary sense of the term be equated with a 'Master ' but for certain specific purposes under sections 178 to 183 it includes a ;Master In sub section (1) OF section 180, the word 'Master" has been used for the first time but even here the term has been used not to equate a seaman with a master but in quite a different context and subserve a different purpose. [1002B, D, E F, 1003D] 2.3 There is no clear provision from which it can be inferred either directly or by necessary intendment that a master is also a seaman for the purpose of getting compensation if his services were terminated. The various sub sections of section 89 do not at all govern the terms and conditions of a master ' but serve to carve out his duties at various levels or stages. Sections 101, 103, 108, 119, 120, 121. 132, 143 and 199 of the Merchant Shipping Act all these govern the terms and conditions of a service of a seaman and the crew and have nothing to do with the master of A ship. It is true that sub sections I and 2 of section 148 provide that a master of a ship would have the same rights, liens and remedies for recovery of his wages as a seaman either under the four corners of the Act or by any law or custom. But there is no provision in the Act under which a discharge certificate can be given to a master of a ship or even otherwise, a master cannot claim the rights and privileges of a seaman because a master of a ship is an officer of a higher rank than that of a seaman. Therefore, his terms and conditions are bound to be different from that of a seaman. [1003E F, 3. The contract between the master of a ship and the owner is in the nature of a contract of personal service and cannot be specifically enforced. [1006D] Dr. section B. DurJ vs University of Delhi, [l959l S.C.R. 1236 referred to. [The Court directed (i) that the excess amount which has been with. drawn by the respondent shall be refunded to the appellant within four months from 26. 2. 85 either in installment or in one lump sum failing which it will be open to the appellant to recover the same by was of restitution, and (ii) that if the amount is not returned within four months then the recovery will be made with interest at the rate of 12% per annum.] [1007E F] H 1000 </s>
<s>[INST] Summarize the judgementSpecial Leave Petition No. 8862 of 1986 From the Judgment and order dated 26.3.1986 of the Karnataka High Court in C.R.P. 3084 of 1985. Padmanabha Mahale, K.K. Gupta and Mrs. Leelawati Mahale for the Petitioner. The order of the Court was delivered by SEN, J. In this special leave petition the short point involved is whether by reason of sub r. (2) of r. 92 of order XXI of the Code of Civil Procedure, 1908, the deposit required by r. 89 not having been 736 made within thirty days from the date of sale, the application made by the judgment debtor was not maintainable. Sub r. (2) of r. 92 has been amended by section 72 of the Code of Civil Procedure (Amendment) Act, 1976 by adding the words "the deposit required by that rule is made within thirty days from the date of sale", the following ' 'or in cases where the amount deposited under rule 89. within such time as may be fixed by the Court" to prevent any controversy as to the power of the Court to extend the time to make good the deficit. Unfortunately, the words added speak of the deficiency owing to 'any clerical or arithmetical mistake ' on the part of the depositor. The amended r. 92(2) now reads: "92(2). Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be dificient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby. " The failure to deposit the amount entails confirmation of sale under O.XXI, r. 91(1) and thereupon the sale becomes absolute. The limitation prescribed for an application under O.XXI, r. 89 was thirty days from the date of sale under Schedule I, article 166 of the Limitation Act, 1908, now replaced by article 127 of the . The words "may apply to have the sale set aside on his depositing in Court" etc. show that not only the application, but also the deposit, should be made within thirty days from the date of sale. It is not enough to make the application within thirty days. Nor is it enough to make the deposit within thirty days. Both the application and the deposit must be made within thirty days from the date of sale. article 127 of the has now been amended by Act 104 of 1976 and the words 'sixty days ' have now been substituted for the words 'thirty days '. As a result of the amendment, the limitation for an application to set aside a sale in execution of a decree, including any such application by a judgment debtor under O.XXI, r. 89 or r. 90 is therefore sixty days now. Such being the law, there is need for an appropriate amendment of sub r. 737 (2) of r. 92 of the Code. Under O.XXI, r. 89 as it now exists, both the application and the deposit must be made within thirty days of the sale. The failure to make such deposit within the time allowed at once attracts the consequences set forth in sub r. (2) of r. 92. This is an unfortunate state of things and Parliament must enact the necessary change in law. In the present case, the auction was held on July 26, 1985. The decree holder brought to sale in execution of a money decree for Rs.21,948.45p., the property of judgment debtor No. 1 comprised of a house and open site appurtenant thereto. The highest bid of Rs.22,500 offered by the auction purchaser was accepted and the bid was knocked down in his favour. The executing Court fixed the case for confirmation of sale on September 30, 1985. In the meanwhile, judgment debtor No. 1 deposited Rs.22,000 on August 29, 1985 towards payment of the decretal amount together with an application under O.XXI, r. 90 read with section 151 of the Code for setting aside the sale. Again, on September 6, 1985 he made another application purporting to be under O.XXI, r. 89 read with section 151 of the Code and made a deposit of the balance amount. The auction purchaser objected to the entertainment of the application contending inter alia that the deposit required by r. 89 not having been made within thirty days of the date of sale as required by r. 92(2) of the Code, the sale was liable to be confirmed under sub r. (1) thereof. It is undisputed that the judgment debtor has deposited the entire decretal amount together with 5% of the purchase money by way of commission to the petitioner auction purchaser. The Principal Munsif, Dharwar by his order dated October 4, 1985 overruled the objection raised by the petitioner. A learned Single Judge (Kulkarni, J.) by his judgment dated March 26, 1986 declined to interfere with the order of the learned Munsif setting aside the sale. The learned Judge relying upon the decision of the Madras High Court in Thangammal & Ors. vs K. Dhanalakshmi & Anr., AIR 1981 Mad. 254 held that the provisions of O.XXI, rr. 89 and 92(2) of the Code and that of article 127 of the should receive a harmonious construction. In that view, the learned Judge held that the judgment debtor No. 1 having deposited the decretal amount together with 5% of the purchase money and having made the application under O.XXI, r. 89 of the Code within sixty days of the sale i.e. within the period as provided by article 127 of the , the sale was liable to be set aside. The learned Single Judge has brought about the inconsistency between sub r. (2) of r. 92 of O.XXI of the Code and article 127 of the Limitation 738 Act and suggested that steps should be taken to remove this inconsistency. We fully endorse the view expressed by the learned Single Judge. In the result, the special leave petition must fail and is dismissed. A.P.J. Petition dismissed. [/INST]P adopted A in 1914 but on account of the acute differences which arose between them later, he made a second adoption of the first appellant in 1926 on the footing that such an adoption was permitted by special custom in Nattukottai Chetti families. In the partition suit filed by A for himself and on behalf of his minor son, the first respondent, the validity of the second adoption was challenged, but the matter was compromised by a Rajinama under which P was directed to pay the plaintiffs therein Rs. 75,000 each separately in lieu of their right to partition. Under the terms of para 3 of the Rajinama and the hundi executed by P in favour of the first respondent, the amount was to be paid to the order of three persons, viz., the father and mother of the first respondent and C, and the amount itself was to be invested in the name of the first respondent in Chetti firms to the order of P and C who were to be in management. In 1929 P executed a will whereby he made arrangements for certain religious gifts and charities and gave the residue of the property to his wife for her life and thereafter to his second adopted son, the first appellant. On attaining majority in 1943 the first respondent filed two suits. The first was on the footing that the amount of Rs. 75,000 which was given to him under the Rajinama was constituted a trust for his benefit during his minority under the trusteeship of P and C, that the money was wrongfully appropriated by C, contrary to the terms of the Rajinama, and that P as a co trustee with C was equally responsible for C 's breach of trust and that the first respondent was entitled to have the amount paid out of the estate of P in the hands of the appellants. The second suit was for the recovery of the entire properties of P on the ground that the second adoption was invalid and that the will executed by P was ineffective. It was found that the adoption of the first appellant was invalid and that the customary adoption set up by P was made for temporal rather than spiritual purposes, and the question was whether, notwithstanding his description as adopted son in, the will in several places, the intention was that he was to take the property as Persona designata. As regards the terms of para 3 of the 215 Rajinama the language used was ambiguous, whether the power of investment was vested in both P and C, but looking at the subsequent conduct of the parties it was found that it was C who was authorised to collect the amount of the hundi and to arrange for the investment of the same on the responsibility of the father and mother of the first respondent. Held:(1) The question whether a disposition to a person is intended as a Persona designata or by reason of his filling particular legal status which turns out to be invalid, depends on the facts of the case and the terms of the particular document containing the disposition, and in the instant case, in view of the exclusion of the validly adopted son and his heirs from succession and the conduct of the parties for over 14 years in allowing the first appellant to retain the property, taking an overall picture of the various provisions of the will, it was clear that the first appellant was intended by the testator to take the property as persona designata and that the will was therefore effective to convey title to him. Nidhoomoni Debya vs Saroda Pershad Mookerjee, (1876) L.R. 3 I.A. 253 and Fanindra Deb Raikat vs Rajeswar Das, (1884) L.R. 12 I.A. 72, referred to. (2)Trusteeship is a position which is to be imputed to a person on clear and conclusive evidence of transfer of ownership and of the liability attached to such ownership on account of confidence reposed, and on such liability having been accepted by the alleged trustee, and in the present case there was no proof that P became a trustee for the minor 's fund and incurred liability for C 's breach of trust. </s>
<s>[INST] Summarize the judgementAppeal No. 614 of 1966. Appeal by special leave from the judgment and order dated March 24, 1965 of the Andhra Pradesh High Court in Civil Revision Petition No. 966 of 1962. A. V. V. Nair, for the appellant. P. Ram Reddy and B. Parthasarathy, for the respondent. The Judgment of the Court was delivered by Mitter, J. This appeal by special leave is from a common judgment and order of the High Court of Madras disposing of three Revision Applications arising out of O.P. No. 95 of 1948 filed under section 4(3) and (4) of the Andhra Pradesh (Andhra Area) Estates Communal Forest and Private Lands (Prohibition of Alienation) Act, 1947 (hereinafter called the 'Act). The central question in this appeal is, whether certain transfers of lands alleged to be forest lands made by the 6th respondent herein became void and inoperative under section 4 of the Act. The said respondent who was a big landholder granted a patta to his wife, 7th respondent, for Ac. 100 00 of 'land on November 9, 1944. Another patta was similarly granted to the appellant in respect of Ac. 90 00 of land on November 25, 1944 On the same day, respondent No. 6 granted a third patta for Ac. 331 200 00 of land to respondents 2 to 5. The Act came into force on October 25, 1947. On October 15, 1948 Original Petition No. 95 of 1948 was filed in the District Court of Eluru by two ryots for a declaration that the alienations we 're void and did not confer any rights on the alienees. Thereafter the said petition was split into two parts, O.P. 95/1943 being directed against respondents 1 to 6 while O.P. No. 95 (a) of 1948 was directed against the 7th respondent. The petitions were disposed of by an order of the District Judge dated July 18, 1950 holding that lands covered by the pattas were forest lands and all the alienations were void and inoperative. A civil Revision Petition was filed in the High Court of Madras by respondents 1 to 5 against the order of the District Judge. This was numbered as C.R.P. No. 22 of 1951. Respondent No. 7 filed a Miscellaneous Petition No. 9534 of 1950 in the High Court of Madras. By order dated 6th August 1952 both the petitions were dismissed by a single Judge of the Madras High Court. This order was how ever set aside in a Letters Patent Appeal filed by respondents 1 to 5 (No. 261 of 1952) wherein it was held that the petitioners as ryots had no right to maintain the petition but reasonable opportunity should be given to the State to get transposed as the petitioner. The State Government thereafter got itself transposed as the petitioner. The District Court however held that he petition was not maintainable by reason of the repeal of the Act by reason of the passing of a subsequent Act, XXVI of 1948 styled the Madras Estates (Abolition and Conversion into Ryotwari ) Act, 1948, hereinafter referred to as the Act of 1948. Against this the State Government filed a Revision Petition in the High Court of Andhra Pradesh numbering 1555 of 1955. The High Court held that the dismissal of the petition on the ground of repeal of the Act was improper and that the petition should be disposed of on the merits and remitted the matter to the District Judge. By a judgment dated November 30, 1960 the District Judge allowed the petition negativing the contentions of the respondent but holding that the lands were forest lands and transfers thereof were void. The appellant and others filed Civil Revision Petitions in the High Court of Andhra Pradesh which were disposed of and dismissed by a common judgment dated August 24, 1965. Hence this appeal. The points urged before us by learned counsel for the appel lant were: (1) The Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof. It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge. (2) The Act was a temporary Act and all proceedings thereunder came to an end with the repeal of the Act; and (3) A notification 332 by the State Government describing the land as forest land was as essential pre requisite to the application of the Act. The purpose of the Act was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of communal, forest and private lands in estates in the Province of Madras pending the enactment of legislation for acquiring the interests of landholders in such estates and introducing ryotwari settlement therein. No fixed duration of the Act was specified and it is impossible to hold that merely because of the above preamble the Act became a tempo rary Act. The definition of 'forest land ' is given in section 2(b) of the Act reading : "forest land" includes any waste lands containing trees and shrubs, pasture land and any other class of land declared by the State Government to be forest land by notification in the Fort St. George Gazette; Sub section (1) of section 3 prohibited landholders from selling, mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947. Section 4(1) provided that : "Any transaction of the nature prohibited by section 3 which took place, in the case of any communal or forest land, on or after the 31st day of October 1939 . . shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction : This sub section had a proviso with several clauses. Our attention was drawn to clauses (iii), (iv) and (v) of the proviso but in our opinion none of these provisos was applicable to the facts of the case so as to exclude the operation of sub section (1) of section 4. Under sub section (3) of section 4. "If any dispute arises as to the validity of the claim of any person to any land under clauses (i) to (v) of the proviso to sub section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim. " 333 Under sub section (4) the District Judge to whom such application is made was to decide whether the claim to the land was valid or not after giving notice to all persons concerned and where the application was not made by the State Government, to the Government itself, and his decision was to be final. Madras Act XXVI of 1948 was passed on ' April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates. Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of landholders in permanently settled estates, the Act stood repealed. We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was a necessary implication. It does not stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act. Our attention was drawn to section 63 of the later Act which provided that "If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue." In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act. In our opinion section 56(1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us. Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes. Section 8 sub section (f) thereof provides that "Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not a) to (e) (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine. penalty, forfeiture or punishment as aforesaid; and any such investigation legal proceeding or 334 remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed. There is also no force in the contention that unless there was a notification under section 2(b) of the Act declaring a particular land to be forest land, the applicability of the Act would be excluded. The definition of forest land ' in that section is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land. This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government under the Act. Lastly, counsel contended that sub section (1) of section 20 of the later Act as originally enacted applies to forest lands and therefore the later Act became applicable thereto. The original section was however substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally ,came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub section (4) of section 4 was quite competent. Accordingly we dismiss the appeal, but do not think it necessary to make any order for costs relating thereto. R.K.P.S. Appeal dismissed. [/INST]The appellant is a non resident shipping company with its local office in Calcutta. For its assessment to income tax for the years 1952 53 to 1956 57 the appellant filed returns disclosing taxable income computed on the basis of its annual turn over in its Indian trade but did not furnish particulars of its world income. The Income tax Officer computed the taxable business income for each year by application of a special formula which was accepted by the appellant. However, in computing the income, the Income tax Officer only allowed normal depreciation and other trade allowances admissible under the income tax Act 1922 and did not allow any initial depreciation or additional depreciation in respect of the ships of the appellant in any of the assessment years, because the ships acquired by the appellant were not introduced into the Indian business in the years in which they were newly acquired. The, orders of assessment were confirmed by the Appellate Assistant Commissioner but the Tribunal held that in respect of all the four ships, additional depreciation wag 'admissible under section 10(2) (vi a) of the Act, as claimed. The High Court, on a reference, answered the question against the assessee. HELD : Additional depreciation was not admissible to the appellant as an allowance in the computation of the taxable income by the special formula adopted by the Income tax Officer. It was common ground that the, appropriate method for determining the profits was the second method in r. 33. But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances. The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under r. 33, claim that additional depreciation should be allowed. [8 E] The Supreme Court in the present appeal was exercising an advisory jurisdiction and could not decide whether the computation of taxable income by the Incometax Officer by the application of the formula evolved by him was correct. Additional depreciation is a statutory allowance in the determination of taxable profit under section 10 of the Act, and in the case of a non resident where, actual income cannot be determined, and resort is had to r. 33, not when an empirical method is adopted for computation of the taxable income. </s>
<s>[INST] Summarize the judgementCivil Appeal NOS. 64 65 of 1969. (From the Judgment and Decree dated 1 12 61 of the Madhya Pradesh High Court in Misc. First Appeal No. 43 of 1959). section K. Gambhir for the appellant in CA 64 and Respondent in CA 65/69. L. Sanghi, K. John and J. Sinha for the respondent in CA 64 and appellant in CA 65/69. The Judgment of Jaswant Singh and R. section Pathak, JJ. was delivered by Jaswant Singh, J. A. P. Sen, J. gave a dissenting opinion. JASWANT SINGH, J. These two cross appeals by certificates of fitness granted by the High Court of Madhya Pradesh at Jabalpur are directed against the judgment and decree dated December l, 1961 of the said High Court dismissing the Misc. (First) Appeal No. 42 of 1959 preferred by the appellant from the Award dated December 20, 1958 of the II Additional District Judge, Raigarh in Miscellaneous Judicial Case No. 59 of 1958 being a reference under section 18 of the Land Acquisition Act, made at the instance of the appellant in 13 817SCI/78 186 respect of the Award dated August 23, 1957 of the Land Acquisition officer, Raigarh. The facts giving rise to these appeals are: on an undertaking given by him to pay full compensation with interest from the date of possession to the date of payment of compensation as provided in the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ') the District Engineer, South Eastern Railway, Raigarh, took advance possession on January 17, 1957 of five plots of agricultural land admeasuring 3.38 acres and another plot of agricultural land admeasuring 0.14 acres adjoining the railway track situate in village Darogamuda, Tehsil and District Raigarh, a suburb of Raigarh belonging to respondents I and 2 respectively for doubling the railway line between Rourkela and Durg in the South Eastern Railway. Subsequently Notification dated February 8, 1957 under section 4(1) of the Act for acquisition of the aforesaid plots of land was issued and published in the Government Gazette dated February 15, 1957. This was followed on March 21, 1957 by a notification under section 6 of the, Act. Although in the r statements filed by them under section 9(2) of the Act the respondents claimed compensation at the rate of Rs. 32,670/ per acre i.e. at the rate of /12/ per square foot on the ground that the plots of land in question had a great potential value as a building site and Rs. 500/ for improvements and Rs. 100/ as the value of one tree, the Special Land Acuisition officer, Raigarh by his award dated August 23, 1957 awarded compensation at the rate of Rs. 3,327/14/ per acre which roughly worked out at /1/6 per square foot on the basis of the statement of sales furnished by A.S.L.R. (L.A.) prepared by Jujhar Singh N.A.W.I. Not satisfied with the quantum of compensation, the respondents made an application to the Special Land Acquisition officer requesting him to refer the matter to the court under section 18 of the ;1 Act. According to the request of the respondents, the Special Land . Acquisition officer made the aforesaid references to the II Additional District Judge, Raigarh, who by his award dated December 20, 1958 enhanced the rate of compensation to /4/ per square foot and awarded Rs. 36,808/4/ and Rs. 1,524/8/ to respondents l and 2 respectively as compensation. The Additional District Judge also allowed the solatium at the rate of 15% amounting to Rs. 5.521/4/ and Rs. 228/12/ to respondents 1 and 2 respectively. Aggrieved by the said , Award of the II Additional District Judge, the appellant preferred an appeal to the High Court of Madhya Pradesh at Jabalpur which was registered as Miscellaneous (First) Appeal No. 43 of 1959. In the said appeal, the respondents filed cross objections claiming enhancement of compensation by Rs. 84,518.39 P. The High Court by its 187 judgment dated December 1, 1961 dismissed the aforesaid appeal preferred by the appellant but allowed the cross objections filed by the respondents holding the reasonable rate of compensation to be /8/per square foot. Consequently respondent No. 1 was held entitled to Rs. 73,616 8 O as compensation and Rs. 11,042 8 0 as solatium and respondent No. 2 was held entitled to Rs. 3,049 0 0 as compensation and Rs. 457 8 O as solatium. It is against this judgment of the High Court that the present appeals are directed. Appearing for the appellant, Mr. Gambhir while admitting that in an appeal under Article 136 of the Constitution, the Court is only concerned with finding out whether the principles on the basis of which compensation has been computed for acquisition of land under the Act have been rightly applied or not and cannot re appraise the evidence, has urged that the Additional District Judge and the High Court have erred in treating the land in question which was primarily an agricultural land as abadi land overlooking that it had not been declared as such. Mr. Sanghi has on the other hand urged that even according to the findings of the Additional District Judge, who made the spot inspection, as also of the High Court, it is abundantly clear that the land in question was Abadi land and has been rightly treated as such. Mr. Sanghi has further urged that the said site has great potentialities as building site. The question as to whether a land has potential value of a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing, or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof. the instant case, the fact that the land in question has a great potential value as a building site is evident not only from the observations made by the Special Land Acquisition officer himself in his aforesaid award to the effect that the land has assumed semi abadi site hut also from the following observations made in his judgment dated December 20, 1958 by the Additional District Judge who had the advantage of inspecting the site: "The land abuts Raigarh town. It is within Municipal limits and the nazul perimeter extends upto it. To the east of 188 the plot there are some kutcha buildings inhabited by respectable persons. To the North is a Municipal road leading to the railway quarters to the west. To the west beyond the railway quarters, there is further habitation` and the locality is called "Banglapara" within Municipal limits. The plot did have a potential value as a building site and it is further supported by the fact that the plot has been used by the Railway authorities for construction of staff quarters thereon though the land was acquired for doubling the rail way line. " It is also not disputed that the Special Land Acquisition officer did not lead any evidence worth the name to show the price of the comparable sites in question and remained content with the production only of the sale statement made by Jujhar Singh, N.A.W.I. Now the sale statement consisted mostly of sales relating to the year 1951 which is not relevant for the question in hand. Moreover, the sale statement by it self without examining either the vendors or the vendees or the persons attesting the sale deeds is not admissible in evidence and can not be relied upon. The sale deed dated December 14, 1956 in favour of Dr. Das for 4,800 square feet of land out of contigious Khasra No. 256 in lieu of Rs. 2,000/ i.e., at approximately 6 1/2 annas per square foot (which has been relied upon by the Additional District Judge and the High Court) could be taken as a safe guide for determine nation of the compensation. From the material adduced in the case, it appears that Raigarh is a growing town, that instead of utilising the land for doubling the railway track, the railway has built staff quarters thereon, that on three sides of the acquired land, there already existed pucca buildings and on the fourth side, there is a metalled road. It is also in evidence that some lawyers have put up some constructions near the sites in question. Taking all the facts into consideration. it cannot be said that the basis on which the Additional District Judge and the High Court proceeded is wrong or that the quantum of compensation awarded by the High Court is in any way excessive or exorbitant. As neither the interest nor compensation on account of severance was claimed in the High Court either by Dr. Harisingh Thakur or by Tikam Singh Thakur, we do not think they can justifiably put up claims in that behalf. Mr. Sanghi appearing on their behalf has fairly stated that he would not like to press his cross appeal. In the result, we do not find any merit in either of the aforesaid appeals. W. would accordingly dismiss them with costs. SEN J. I have had the advantage of reading the judgment by my learned brother Jaswant Singh. Since the appeal involves an important 189 question affecting valuation which has been overlooked by the High Court, I would like to say a few words of my own. Normally, this Court does not interfere in appeal with the valuation by the High Court in land acquisition cases, unless the judgment cannot be supported, as it stands, either by reason of a wrong application of principles or because some important point in evidence has been overlooked or mis applied: The Special Land Acquisition officer, Bangalore vs Adinarayan Setty(1). With respect, I venture to say that the judgment of the High Court cannot be supported by reason of a wrong application of principles. It overlooked the fact that there was no discernible basis on which the Additional District Judge could have changed the mode of valuation adopted by the Special Land Acquisition officer treating the land acquired to be agricultural land and in awarding compensation upon the basis as if it were a building site. Indeed, there was no atempt on their part to determine the ' 'intrinsic character of the land", namely, whether the land acquired should be classified as agricultural land or not. In the present case, the High Court obviously fell into an error in overlooking the, fact that the acquired land situate in village Darogamuda, admeasuring 3.52 acres, was, on the 8th February, 1957 i.e. On the date of the issue of the notification under section 4(1) of the Act, agricultural land. It was recorded as a raiyati land belonging to the two claimants, Dr. Harisingh Thakur and his brother Vikram Singh Thakur who were ex gaontiyas of village Darogamuda. The land was not recorded as abadi as wrongly assumed by the High Court. Perhaps it was misled by the mis description of the land as abadi in the reference made by the Collector under section 18(1). This is an admitted position between the parties. In response to the notice of admissions and denials of documents served by the claimants, the Collector admitted panchsala khasra for the years 1952 53 to 1953 54 and kistbandi khatouni for the years 1952 53 and 1953 54. The claimant Dr. Harisingh Thakur, AW1 admits during his crossexamination that till the month of December 1956, the lands were actually under his cultivation and he had reaped the crops before delivering possession of the same on the 17th January, 1957 to the District Engineer, South Eastern Railway. He further admits that throughout the land was under cultivation i.e. from the time, of his forefathers. In fact, Jujhar Singh NAW1, Assistant Superintendent Land Records, who was at the relevant time a Revenue Inspector, states that the,. land (1) [1959] Supp. (1) S.C.R. 404. 190 acquired was a paddy field and was surrounded by agricultural lands. That being so, the District Judge, was clearly wrong in treating the land to be abadi and calculating compensation on the footing of its being a building site. In awarding compensation at a flat rate of Rs. 3,327.87 P. per acre, the Special Land Acquisition officer took notice of the fact that the land is situate in village Darogamuda, a suburb of Raigarh, which is a town of great commercial importance, though beyond its nazul perimeter. He also took notice of the fact that the land abuts the railway track and there were agricultural fields on two sides. On the other two sides, there existed kutcha hutments of backward classes and a few railway buildings. The award of compensation at the rate of Rs. 3,327.87 P. per acre was based on average of sales of lands in recent years as prepared by Jujhar Singh, Revenue Inspector NAW 1. The Special Land Acquisition officer accordingly observed: "The average value based on the above noted sales comes to Rs. 3,327/14/ per acre and in my opinion it truly re presents the average market value of lands in this predominantly agricultural locality which has assumed semi abadi site value due to the constructions of houses mostly by low class people besides a few buildings of Railway Department. It is for this reason that the average value per acre comes to as much as Rs. 3,327/14/ per acre else the lands in question would have fetched lower price, available in respect of agricultural lands to which class they really belong and stand assessed as such till today. " While it is no doubt true, as my learned brother Jaswant Singh has rightly observed, that the statement of average of sales, prepared by Jujhar Singh NAW 1, was not admissible in evidence unless the Collector proved the transactions in question, upon which it was based, there is no denying the fact that the acquired land was nothing but agricultural land and the mode of valuation had necessarily to be upon that basis. Now, if the purpose for which the land was acquired, i.e., for the construction of staff quarters in connection with the doubling of the railway line by the South Eastern Railway, has no bearing on the question of valuation, the future possibilities of the land, which admittedly was agricultural land, lying in the vicinity of Raigarh if applied to the most lucrative use, having regard to its the then condition, was very little as a building site. The land was lying undeveloped and undiverted. Unless there was a development scheme, the land could not 191 be valued as a building site. The land could, however, be put to that use if there was such development scheme. At the time of the notification under section 4(1), there was no recent building activity near about the land, which was either under cultivation or lying desolate. But as l have already said, the land could be put to a better use provided it was fully developed as a building site. The claimants were, therefore, entitled to the evaluation of the land as agricultural land with an additional allowance being made for its future potentiality as a building site. I just cannot imagine what could be the utility of the acquired land on a building site, looking to its proximity to the railway track. It would, indeed, be very little. In a reference under 9. 18 of the Act, the burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis. The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him. When the proceedings before the Collector disclose that the award was not reasonably supported by the material before him, or when the basis was the application of a 'multiple ' which could not be justified on any rational ground, the burden can be discharged by a slight evidence. But that is not the case here. The claimants have led no trustworthy evidence. It is equally well settled that where the claimant leads no evidence to show that the conclusions reached in the award were inadequate, or, that it offered unsatisfactory compensation, the award has to be confirmed. Upon a compulsory acquisition of property, the owner is entitled to the value of the property in its actual condition, at the time of expropriation, with all its advantages and with all its possibilities, excluding any advantage due to the carrying out of the claim for the purpose for which the property is acquired. In Vyricharla Narayana Gajapatjiraju vs Revenue Divisional Officer Vizagapatnam(1) the Privy Council state: "For the land is not to be valued merely by reference to the use to which it is being put at the time at which the value has to be determined. but also by reference to the uses to which it is reasonably capable of being put in the future. It is possibilities of the land and not its realized possibilities that must be taken into consideration. " The value of the acquired property, with all its possibilities has to be ll adjudged on the material on record. (1) 66. I.A. 104. 192 The market price must be fixed with reference to the date of the. notification under section 4 irrespective of any trend, if any, for an increase in the value thereof. The basis for determination of the market value of tel land within section 23 (1) (i) of the Act is the value of the land to the owner. Only such transactions would be relevant which can fairly be said to afford a fair criterion of the value of the property as at the date of the notification. That test is clearly not fulfilled in the present case. Clause fifthly in section 24 interdicts the court from considering any prospective increase in value due to acquisition. Market value of the land acquired has to be fixed with reference to the date of notification under section 4 (1) . In Vyricharla Narayana Gajapatiraju vs Revenue Divisional Officer, Vizagapatam (supra) the Privy Council observed that where the owner is a person who could turn the potentiality of the land into account, it is immaterial that the utilization of the same potentiality is also the purpose for which the land is acquired. The Underlying principle is that a speculative rise in price of land due to acquisition should not be an element which should enter into computation. Sometimes the prices shown in sale deeds executed subsequent in point of time are not the actual prices paid. The sales may be. unreal and may not reflect the true value of the land. There always elapses a certain interval between the time when the intention to acquire Ea certain land first becomes known and the actual notification under section 4(1) is issued. Here though the notification under section 4(1) was issued on 8th February, 1957, but the claimants had, in fact, delivered the possession to the District Engineer, South Eastern Railway on the 17th January, 1957, and were indeed, as it appears from the evidence, aware of the fact that the land was being acquired by the South Eastern Railway much earlier, i.e., in December, 1956. In view of this, the prospective rise in value, if any, has to be kept out of consideration. the principles to determine the quantum of compensation are contained in section 23(1) of the Act. The court in fixing the amount has to take into consideration the prevailing market value of the land at The date of the notification under section 4(1) and the said market value has to be determined by reference to the price which a willing seller might have reasonably expected for similar property from a willing purchaser. The underlying principle of fixing the market value with reference to comparable sales is to reduce the element of speculation. In a comparable sale, the features are: (i) it must be within a reasonable time of the date of notification under section 4.(1); (ii) it should be a bona fide transaction; (iii) it should be a sale of the land acquired or of the land adjacent to the acquired; and (iv) it should possess 193 similar advantages. Before such instances of sales can be considered there must be material evidence either by the production of the sale deeds or by examining the parties to the deeds or persons having knowledge of the sales, to prove that the transactions are genuine. In the light of these principles, the three sale deeds relied upon by the High Court, Ext. P 14, Ext. P 15 and Ext. P 17, pertaining to the small portions of the acquired land executed by the claimants, could not obviously be the basis for the determination of the market value of the land. These sale deeds had clearly been brought into existence by the claimants in quick succession, in an attempt to inflate the price of the land, after they became aware of the proposed acquisition. Of these, the land covered by the sale deed Ext. P 14, dated 14th December, 1956 executed by Tikam Singh Thakur, i.e., just a month before the delivery of the possession, shows a sale of a plot measuring 4,800 sq.ft. to Dr. Dhirendra Chandra Das, AW 2, for a price of Rs. 2,000/ . The rate works out to about 42P per sq. It evidently could not afford a fair criterion of the value of the property on the date of the notification under section 4(1). Dr. Das admits that he is in Railway service and when he purchased the land he knew that it was being acquired by the South Eastern Railway. No doubt Dr. Das is a willing friend of Dr. Harisingh Thakur prepared to lend a helping hand but, by no stretch of imagination, could he be treated to be a willing purchaser. in the true sense of the term. Though Dr. Das asserts that he had purchased the land for building a house, he admits that he did not construct upon it because he would have been required to invest considerable money for levelling the land making it fit to be utilised as a building site. This transaction indubitably does not appear to be a real sale and could not furnish any guide for determination of the true market value. I am afraid, the other two sale deeds, Ext. P 15 dated 19th December, 1956 and Ext. P 17 dated 21st February, 1957 executed by Dr. Harisingh Thakur, by which he sold 300 sq. Of the acquired land to Jhallu Dani, AW 13 for Rs. 150/ and 280 sq. ft to Baido, AW 15, for Rs. 200/ were, in fact, fictitious sales effected by him after delivery of possession to the South Eastern Railway. The transactions speak for themselves. Indeed, Ext. P 17 was executed by him after issue of the notification under s.4(1). The first sale was effected by the claimants to show the price of the land to be 50P per sq. They were evidently not satisfied by this and, therefore, brought the other sale deed into existence, a few days after the notification, showing the rate to be about 72P per sq. It is needless to stress that such fictitious and unreal transactions which are but 194 speculative in nature could not be taken into account by the High Court at all. In Raghubans Narain Singh vs The Uttar Pradesh Government (1) this Court quoted with approval the following passage from one of its earlier decision in N. B. Jeajabhoy vs The District Collector, Thana,(2) where it was said: "the question therefore turns upon the facts of each case. In the context of building potentiality many questions will have to be asked and answered: whether there is pres sure on the land for building activity, whether the acquired land is suitable for building purpose, whether the extension of the said activity is towards the land acquired, what is the pace of the progress and how far the said activity has ex tended and within what time, whether buildings have been put up on the lands purchased for building purposes, what is the distance between the built in land and the land acquired and similar other questions will have to be answered. It is the overall picture drawn on the said relevant circumstances that affords the solution. " In Raghubans Narain Singh 's case (supra) there was evidence to the effect that there was a school building near the acquired land, that the land abutted on the road and that some houses had been built on the opposite side of the road. It was nevertheless held by this Court that all this did not constitute evidence of building potentiality. It was pointed out that there should be evidence, on the record, 'of building activity of a substantial nature, being carried on in the neighbourhood of the acquired land, at about the time when the notification was issued '. There is complete absence of such evidence in this case. It is beyond doubt that the acquired land was agricultural land, and had not been diverted for non agricultural purposes. Indeed, the claimant, Dr. Harisingh Thakur had himself admitted the land to be agricultural land. The land is on the outskirts of Raigarh town but that itself does not show that the land had a potential value for building purposes. It was for the claimants to show that at the relevant time there was a tendency of the town to develop in that direction and that prior to the acquisition new buildings had been constructed in the neighbourhood. Topography of the acquired land which abuts the railway track is given by Jujhar Singh, NAW 1, the then Revenue Inspector, who states that actually paddy used to be grown on the land. To the north of this land, there was cultivation. Beyond it, there was a 10 ft. (1) [1967] I S.C.R. 489. (2) C.A. Nos. 313 to 315 of 1965 decided on August 30, 1965. 195 broad pucca road. About three furlongs way from the land was the house of Ambalal. About one and a quarter miles away there was a skin godown. In the east, there were small huts. Beyond them, in the east, at a distance of about half a furlong, there was the house of Jairamvalji. In the west, about a furlong away, there was an old bungalow. At about the same distance, there is the burial ground. In between and all around, there were agricultural fields. That is the total evidence of the case. On this evidence it cannot be said that valuation should be made on the basis of the potentiality of the land as building site. In the absence of comparable sales, the only other alternative to adopt is the capitalised value. Compensation in respect of the agricultural land should be allowed on the basis of 20 years ' purchase. The capitalisation basis cannot, however, be accepted in a case where, as in the instant case there is no evidence of the profits yielded from the land. I would, therefore, for these reasons allow the appeal of the State of Madhya Pradesh. It is with reluctance that I have written this separate opinion. There has never been a public undertaking in this country Governmental, Municipal, city or industrial, but that the land holder has generally secured anything from four to forty times as much for the land as its agricultural price, i.e., many times its real value. This result unfortunately springs from a general tendency of District Judges in hearing a reference under s.18 of the Land Acquisition Act, 1894, to assume that purely agricultural lands, merely by their proximity to a city or town, become endowed with 'special adaptability ' as a building site. While it is not suggested that unfairly low value should be offered, on the other hand the temptation to over generosity must be equally resisted. Such generosity at the public expense reacts against the development and against the prosperity of the country and imposes an unnecessary burden on the taxpayer. Per Curiam In accordance with the opinion of the majority, the appeals are dismissed with casts. N.V.K. Appeals dismissed. [/INST]Agricultural land belonging to the respondents was acquired by the railways for doubling the railway line, compensation payable for the acquired land was fixed at Re. 1/6 per sq. But the respondent claimed Re. /12/ per sq. On the ground that the land had a great potential value as a building site. On reference the Additional District Judge enhanced the rate of compensation to Re. /41 per sq. and allowed solatium at 15%. On appeal the High Court enhanced the compensation to Re. /8/ per sq. on further appeal to this Court it was contended on behalf of the appellants that the courts below had erred in treating the land, which was primarily agricultural land, as abadi land overlooking that it had not been declared as such. [Per Jaswant Singh & Pathak, J. Sen, J. dissenting] Dismissing the appeals. ^ HELD: (1) Taking all the facts into consideration it cannot be said that the basis on which the Additional District Judge and the High Court proceeded was wrong or that the quantum of compensation awarded by the High Court was in any way excessive or exorbitant. [188 F] (2) The question as to whether a land has potential value as a building site or not is primarily one of fact depending upon several factors such as its condition and situation, the user to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing or a prospering town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof. [ 87F F] (3) In the instant case it was clear from the observations of the Special Land Acquisition officer and the Addl. District Judge that the land had great potential value as a building site. Moreover the Spl. Land Acquisition officer did not lead any evidence worth the name to show the price of comparable sites but remained content with the production only of the sale statement prepared by the Revenue Inspector. The sale statement consisted mostly of sales relating to the year 1951 which is not relevant to the question on hand. Without examining the vendors or vendees, the sale statement was not admissible in evidence and could not be relied upon. From the material on record it was clear that Raigarh was a growing town. Instead of utilising the land for doubling the railway track 184 the railway had built staff quarters. On three sides of the land there were pucca buildings and on the fourth side there was a metalled road. [187G H 188C D. [Per Sen, J.(dissenting)] 1. Upon compulsory acquisition of property, the owner is entitled to the value of the property in its actual condition at the time of expropriation with all its advantages and with all its possibilities, excluding any advantage due to the carrying out of the claim for the purpose for which the property is acquired. The value of the acquired property with all its possibilities had to be adjudged on the material on record. [191 F, H] Vyricharla Narayana Gajapatiraju vs Revenue Divisional officer, Vizagapatnam, 66 IA 104, followed. The market price must be fixed with reference to the date of the notification under section 4 irrespective of any trend, for an increase to the value thereof. The basis for determination of the market value of the land within section 23(1)(i) of the Act is the value of the land to the owner. Only such transactions would be relevant which can fairly be said to afford a fair criterion of the value of the ,, property as at the date of the notification. That test is clearly not fulfilled in l? the present case[192A B] 3. In a reference under section 18 of the Act the burden of providing that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis. The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him. When the proceedings before the Collector disclose that the award was not reasonably supported by the material before him or when the basis was the application of a "multiple" which could not be justified on any rational ground, the burden can be discharged by a slight evidence. But that is not the case here. [191C D] 4. In the present case the High Court fell into an error in overlooking the fact that the acquired land was agricultural land. It was recorded as a raiyati land. The land was not recorded as abadi as wrongly assumed by the High Court. The claimants admitted that the land was actually under cultivation. The Revenue Inspector stated that the land was a paddy field and was surrounded by agricultural lands. That being so the District Judge was clearly wrong in treating the land to be abadi and calculating compensation on the footing of its being a building site. [189E 190A] 5. Secondly, the land was lying undeveloped and undiverted. Unless there was a development scheme the land could not be valued as a building site. At the time of the notification under section 4(1) there was no recent building activity near about the land. The land could be put to better use provided it was fully developed as a building site. The claimants were therefore entitled to the valuation of the land as agricultural land with an additional allowance for its future potentiality as a building site. [190H 191B] 6. In fixing the amount of compensation the court has to take into consideration the prevailing market value of the land at the date of the notification unders. 4(1) and such market value has to be determined by reference to the price which a willing seller might have reasonably expected for similar property from 1 a willing purchaser. In a comparable sale the features are: (1) it must be 185 within a reasonable time of the date of notification under section 4(1), (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or of the land adjacent to the land acquired and (4) it should possess similar advantages. [92G 193A] 7. In the instant case the sale deeds relied upon by the High Court could not obviously be the basis for the determination of the market value of the land. These sale deeds had clearly been brought into existence by the claimants in quick succession in an attempt to inflate. the price of the land after they became aware of the proposed acquisition. The transactions which were examined by the High Court were apparently fictitious and unreal and are speculative in nature and could not be taken into account at all. [193B C, 193H 194A] 8. On the evidence produced it could not be said that valuation should be made on the basis of potentiality of the land as building site. There is complete absence of evidence of building activity of a substantial nature being carried on in the neighbourhood of the acquired land at about the time when the notification was issued. The claimants themselves did admit that the land was agricultural land. [195B, 194F C] Raghubans Narain Singh vs The U.P. Govt. , ; N. B. Jeejabhoy vs The District Collector, Thana, C.A. Nos. 313 to 315 of 1965 decided on Aug 1965: referred to. In the absence of comparable sales, the only other alternative to adopt is the capitalised value. Compensation in respect of the agricultural land should be allowed on the basis of 20 years ' purchases. The capitalisation basis cannot, however, be accepted in a case where there is no evidence of the profits yielded from the land. [195C] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 131 of 1988. From the Judgment and order dated 13.3.1986 of the High Court of Karnataka in C.R.P. No. 1821 of 1984. A.S. Nambiar, R.C. Kaushik and A.K. Sharma for the Appelant. S.S. Khanduja and Y.P. Dhingra for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Leave granted. The limited question falling for our deterrnination in this appeal by special leave is whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff. G We may now scan the facts. Pursuant to the High Court of Karnataka confirming an order of eviction passed against him in respect of his business premises, a tenant by name Mr. Sequeira wanted to prefer an appeal to the Supreme Court. For that purpose he met the appellant, who is an advocate practising in the Supreme Court, H 610 on 14.6.197 1 at Mangalore during the latter 's visit to that place and engaged him to file the appeal. The special leave petition came up for hearing on 22.11.1971 and was "dismissed as withdrawn". Mr. Sequeira then filed a suit O.S. No. 255 of 1972 in the Court of the District Munsif, Mangalore against the appellant for damages and compensation. He alleged in the plaint that the appellant had been negligent in rendering professional services and had misconducted himself by filing the appeal after considerable delay and giving misleading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission. He further alleged that as a consequence of the appeal being dismissed, he came to be evicted from his business premises and thereby he had incurred loss of income as he had been unable to secure an alternate place for running his business besides suffering mental agony, worry and loss of reputation. The plaintiff, therefore, claimed that the appellant was liable to compensate him in a sum of Rs.20,000 towards the loss sustained by him but he was however content to restrict the amount to Rs.4,500. In addition he claimed a sum of Rs. 1,500 under three heads of Rs.500 each viz., (I) refund of Rs.500 paid towards court fee and miscellaneous expenses, (2) reimbursement of Rs.500 expended for engaging another advocate to obtain a certified copy of the order of the Supreme Court in the special leave petition and (3) compensation towards wrongful retention of the case file by the appellant and reimbursement of expenses incurred for telephone and postal charges. Thus in all the suit was laid against the appellant for a sum of Rs.6,000 by way of damages and compensation besides costs etc. The appellant entered appearance in the suit and filed a written statement refuting the charges of negligence and mis conduct levelled against him by the plaintiff and also disputing the plaintiff 's right to seek damages or reimbursement of amounts from him under any of the heads set out in the plaint. During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to 611 get impleaded and continue the suit. The learned single judge who allowed the Revision has taken the view that Krishna Behari Sen vs Corporation of Calcutta, ILR 31 Calcutta, 993, sets out the correct ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji vs W.H. Nurse, ILR 44 Madras, 357 and Motilal Satyanarayan and Anr. vs Harnarain Premsukh & Anr., The said order of the learned single judge is urlder challenge in this appeal. Even at the threshold of the judgment we may say that the ratio followed by the High Court is not a correct one. Section 306 of the which corresponds to Section 89 of the Probate and Administration Act, 1881, sets out the rights of Executors and Administrators to continue actions of or against a deceased person. Section 306 which is almost a re production of Section 89 in the earlier Act reads as follows: "306. Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or if granted it would be nugatory . " In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff is concerned, order XXII Rules I and 3(1) govern the matter. They read as under: "1. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 3.(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. " 612 These provisions of law have come up for consideration in a number of cases before several High Courts. The controversy in all the cases either under Section 89 of the Probate and Administration Act 1881 or under Section 306 of the centred round the meaning to be given to the words "other personal injuries not causing the death of the party". Barring the Calcutta High Court and that too in one reported case only and the Rangoon High Court in one decision, other High Courts have uniformly taken the view that the words "personal injuries" do not mean injuries to the body alone but all injuries to a person other than those which cause death and that the relevant words must be read ejusdem generis with the words "defamation and assault" and not with the word "assault" alone. It would suffice for our purpose if we set out the reasons given in the Full Bench decision of the Madras High Court in Rustomji Dorabji vs W.H. Nurse, (supra) and merely give the citations of the other decisions where the same view has been taken. In Rustomji Dorabji vs W.H. Nurse, Coutts Trotter, J. speaking for himself and Ayling, J. set out the law as follows. "We are therefore driven to the conclusion that the Act must be supposed to have envisaged a logically coherent class of causes of action, and that result can only be achieved by construing "personal injuries" as meaning not "injuries to the body" merely, but injuries to the person in Blackstone 's sense, other than those which either cause death or tangible affect the estate of the deceased injured person or cause an accretion to the estate of the deceased wrong doer. In effect, we think that the words which we have to construe are ejusdem generis not merely with the last preceding word "assault", but with the two preceding words "defamation" and "assault". (Emphasis supplied.) Kumaraswamy Sastri, J., the third judge in the Full Bench, in his concurring judgment gave his reasons as under: "If the words were simply "all personal injuries not causing the death of the party" and omitted defamation or assault, it may be argued that personal meant only physical and that causes of action for defamation and other similar injuries survived. The legislature took two types of personal injuries, one physical and the other not, and used them by way of illustration of what it meant to exclude. In this view, the words "other personal injuries not causing the death of 613 the party" must be read with "defamation" and "assault". There has been a conflict of authority on the question referred. In Punjab Singh vs Ramautar Singh, (!) it was held by the Patna High Court that the words "other personal injuries not causing the death of the party ' in Section 89 of the Act are ejusdem generis not only with assault but also with defamation and include malicious prosecution. The same view has been held by the Madras High Court in Gandhiji Mareppa vs Firm of Marwadi Vannajee, (2) and Marwadi Mothiram vs Samnaji, (3) A contrary view was taken in Krishna Behari Sen vs The Corporation of Calcutta, (4) where the learned Judges differed from Justice Henderson, the trial Judge, and held that to use the words other personal injuries not resulting in death in connexion with an action for defamation or malicious prosecution would be straining the language used by the legislature and placing on it an unnatural and forced construction. In Punjab Singh vs Ramautar Singh, (I) Das, J., who was a member of the Calcutta Bar for several years observes that in his experience the case has never been followed subsequently in the Calcutta High Court. I would follow Punjab Singh vs Ramautar Singh, (I) and Marwadi Mothiram vs Samnaji, (2) and hold that a suit for damages for malicious prosecution abates. " Not only has this view been consistently followed by the Madras High Court in subsequent decisions but the same view has been taken by several other High Courts as may be seen from the following citations: Madras High Court, Palaniappa Chettiar vs Rajah of Ramnad, ILR 49 Madras 208; Irulappa vs Madhava, AIR 1951 Madras 733; Arnuchalam vs Subramanian, AIR 1958 Madras 142; Bombay High Court, Gopal vs Ram Chandra, ILR XXVI Bombay 597; Motilal vs Harnarayan, (supra) Nagpur High Court, Maniramlala vs Mt. Chalti Bai & Anr., ILR 1938 Nagpur 280; Baboo vs Subanshi, ILR 1942 Nagpur 650; Baboolal vs Ramlal, AIR 1952 Nagpur 408; Patna High Court, Punjab Singh vs Ramautar Singh, AIR 1920 Patna 841; Jogindra Kaur vs Jagdish Singh, AIR 1964 Patna 548; Madhya Pradesh High Court, Ratanlal vs Baboolal, AIR 1960 Madhya Pradesh 200; 614 Andhra Pradesh High Court, G. Jayaprakash vs State, AIR 1977 Andhra Pradesh 20. As against the preponderant view taken by several High Courts, a Full Bench of the Calcutta High Court alone took a contrary view in Krishna Behari Sen vs Corporation of Calcutta, (supra). Maclean, C.J. speaking for the Bench held that the words. "personal injuries not causing the death of the party" if accorded their natural and ordinary meaning appear to refer to physical injuries to the person which do not cause death. As has been pointed out by Das, J. in Punjab Singh vs Ramautar Singh, (supra) the ratio in Krishna Behari Sen 's, case had not been followed subsequently by the Calcutta High Court itself in any other case. The view taken by the Calcutta High Court found solitary acceptance only in a decision of the Rangoon High Court in D.K. Cassim & Sons. vs Sara Bibi, ILR XIII Rangoon 385. It is therefore clear that the contrary view taken by the Calcutta High Court is against the weight of judicial pronouncements by other High Courts. In a slightly different context the matter came to be considered by this Court in Melepurath Sankunni Ezhuthassan vs Thekittil Geopalankutty Nair, A plaintiff 's suit for damages for defamation was decreed by the Appellate Court but dismissed by the High Court in Second Appeal. There was an appeal to this Court by the plaintiff by special leave and during its pendency the plaintiff died. This Court declined to allow the legal representatives of the plaintiff to come on record and prosecute the appeal on the ground that by reason of the dismissal of the suit by the High Court, the plaintiff stood relegated to his original position and, therefore, the proceedings abated on his death. The decision pointed out that the position would have been different if the plaintiff had a subsisting decree in his favour because then the cause of action would get merged in the decree and the decree would form part of the estate of the deceased which his legal representatives are entitled to uphold. The maxim 'actio personalis cum moritur persona ' has been applied not only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and/or the First Appellate Court as the case may be. This is on the footing that by reason of the dismissal of the suit by the 615 Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court. Vide the decisions in Punjab Singh vs Ramautar Singh, (supra), Irulappa vs Madhva, (supra), Maniramlala vs Mt. Chalti Bai & Anr. (supra), Baboolal vs Ram Lal, (supra) and Melepurath Sankunni Ezhuthassan vs Thekittil Gopalankutty Nair, (supra). In Palaniappa Chettiar vs Rajah of Ramnad (supra), and Motilal vs Harnarayan, (supra) it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji vs W.H. Nurse, (supra) and Ratanlal vs Baboolal, (supra) as well as in those cases where a suit for damages for defamaton, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff 's estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend (vide Gopal vs Ramchandra, (supra) and Melepurath Sankunni vs Thekittil, (supra). Though Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit. We may in this connection only quote the following passage occurring in Melepurath Sankunni 's case (supra). "Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also." Thus it may be seen that there is unanimity of view among many High Courts in the country regarding the interpretation to be given to 616 the words "other personal injuries not causing the death of the party" occurring in Section 306 of the and that the contrary view taken by the Calcutta & Rangoon High Courts in the solitary cases referred to above has not commended itself for acceptance to any of the other High Courts. The preponderant view taken by several High Courts has found acceptance with this Court in its decision in Melepurath Sankunni Ezhuthassan 's case. It is on account of these factors we have expressed our disapproval at the outset itself of the view taken by the High Court in this case. What now falls for consideration is whether the suit filed by the plaintiff was founded on torts or on contract. Mr. Kaushik, learned counsel for the appellant, in all fairness, did not contend that the words "other personal injuries" must be read narrowly i.e., ejusdem generis only with assault and other physical injuries not resulting in the death of the party. His argument however was that the plaintiff 's suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc. and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death. On the other hand, Mr. Khanduja, counsel for the respondents, contended that the suit is not really founded on torts but is founded on contract and there had been a breach of the conditions of engagement by the appeal being withdrawn contrary to instructions, not to speak of the delay in the filing of the appeal. By reason of the breach of the conditions of engagenment, the plaintiff had been evicted and put to loss and, therefore, the suit for damages really pertained to the loss suffered by the estate of the plaintiff and the said loss could well be claimed by the legal representatives after the death of the plaintiff. It was further urged by him that the suit amount consisted of claims under different heads and that while Rs.4,500 had been claimed by way of compensation for the monetary loss sustained by the plaintiff 's estate, the claims relating to Rs.1,500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was not open to the appellant to contend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death. In view of the fact that this aspect of the matter has not been considered by the Trial Court or the High Court, we do not think it proper to express any opinion one way or the other as to whether the suit cause of action is founded on torts or on contract. Since a copy of the plaint has not been furnished by either party we can only refer to the summary of the plaint contained in the order of the District 617 Munsif. The relevant portion reads as follows. A "at a later stage, he filed the petition and withdrew it; the Special Leave Petition was dismissed as withdrawn; defendant did not inform the plaintiff well in time, plaintiff got suspicion over the attitude of the defendant, he engaged another counsel in the Supreme Court and obtained certified copies of the petitioner 's application and order of the Supreme Court on the application filed by the defendant; even after several requests, defendant has not returned the file; defendant incurred Rs.500 to obtain certified copies; on account of the misconduct of the defendant, plaintiff has suffered untold mental worry, agony, and loss of reputation; plaintiff was evicted from the shop premises situated at Hampankatta; he has not been able to secure a similar place for continuing his business; the defendant is liable to pay the plaintiff an amount of Rs.500 being the loss incurred by him to engage the service of another advocate to obtain the certified copies of the petition and application filed by the defendant in the Supreme Court; that apart the defendant is liable to compensate the plaintiff to the extent of another sum of Rs.500 as the defendant has not renurned the records that were entrusted to the defendant by the plaintiff and for the charges incurred by the plaintiff in sending telegrams, or correspondences or for trunk phone calls; for want of suitable place for continuing the business of the plaintiff, the plaintiff has suffered damage or loss of over Rs.20,000 but the plaintiff restricts the claim to Rs.4,500 in this behalf. The plaintiff is entitled to be compensated by the defendant to the extent of Rs.6,000 as stated above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of damage sustained by the plaintiff and the defendant is liable to compensate the plaintiff in this respect as he has not done his duty which he owed towards the plaintiff" (underlining by us) Having regard to the nature of the claim we are not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court have proceeded on the basis that the suit claim is based only on tortious liability though the two Courts have reached different conclusions about the abatement of the suit. The learned counsel for the respondent placed reliance upon the summary of the averments in the plaint set out above and argued that the 618 plaintiff had suffered loss of over Rs.20,000 due to the closure of the business and hence the restricted claim of Rs.4,500 is really towards loss suffered by the estate and not a claim made on the basis of the loss of reputation, mental agony, worry etc. suffered by the plaintiff. He further stated that the claim of Rs.1,500 under three heads of Rs.500 each also related to the loss suffered by the estate of the deceased and hence the suit has to proceed for the entire suit claim. Since no discussion has been made and no finding has been rendered on this question and since we can not render any finding on the basis of the materials on record whether the suit is based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, we think the proper course would be to allow the judgment under appeal to stand even though we do not approve the reasoning of the High Court and dismiss the appeal. We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon. Before concluding the judgment, it would not be out of place for us to refer to some English decisions and to the relevant provisions in the and the regarding the liability of counsel to pay damages to their clients for breach of duty or negligence. In England a distinction was made between barristers and other professional men and for a long time it was in usage that a barrister could not be sued by a client for negligence or breach of duty because a barrister 's services were deemed to be gratuitous and therefore he could not sue or even make a contract for his fees with a client or with a solicitor who represented the client and correspondingly a barrister could not be sued by a client for breach of duty or negligence. The position is summarised by Prof. Winfield in all the editions of his book on Torts from 1937 onwards as under: "The reason for this exemption is that in theory his services are gratitous, and although that, by itself, is not a sufficient ground for preventing a legal duty from arising in other circumstances, the rule with regard to a barrister is inveterate, whatever be its justification. " 619 The assumption, however, suffered a setback when the House of Lords enunciated a general principle in Hedley Byrne & Co. Ltd. vs Heller & Partners, [1963] 2 All E.R. 575. The principle has been enunciated in the speech of Lord Morris of Borth Y Gest as under: "If someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise. By reason of this decision, the Court of Appeals in Rondel vs W., [ and the House of Lords in Rondel vs Worsley, [ 1967]3 All E.R. 993 had to rest the immunity of a barrister from being sued for professional negligence in the conduct of a cause on grounds of public policy. The facts in Rondel 's case were that he was charged for having caused grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for sometime, he was afforded the facility of a "Dock Brief" and he chose a barrister by name, Mr. Worsley to act for him. The case eventually ended in conviction and the conviction was confirmed by the Appellate Court and Rondel underwent the sentence. Nearly six years later he issued a writ against Mr. Worsley claiming damages for alleged professional negligence in the conduct of his duty. The writ was dismissed on the ground that an action against a barrister cannot be maintained on grounds of public policy for alleged negligence on his part in the conduct of the case especially when the action would amount to seeking a review of the correctness of the conviction awarded to Rondel in the earlier proceedings. In Heywood vs Wellers, ; the plaintiff was held entitled to recover damages from the defendant firm of solicitors for the mental distress which she had suffered as a result of the molestation suffered by the plaintiff consequent on the solicitor 's negligent failure to enforce the injunction obtained against one Reginald Marrion. In that case, the plaintiff instructed a firm of solicitors to apply for an injunction to restrain one Reginald Marrion from molesting her. The solicitors obtained an interim injunction on 27th February but when the defendant again molested the plaintiff on 28th April in breach of the injunction, they failed to enforce the injunction by bringing the defendant before the Court. As a result of the failure to enforce the injunction, the plaintiff was again molested by Marrion on 25th May and on 8th November. She suffered mental distress in consequence of the molestation committed on those dates. In an action 620 brought by her against the firm of solicitors, it was held that she was entitled to recover damages as well as the costs incurred by her from the firm of solicitors In Midland Bank Trust Co. Ltd. & Anr. vs Hett, Stubbs & Kemp, a firm of solicitors was sued for damages for their failure to register a formal agreement as a consequence of which the plaintiff could, not enforce his option under the agreement to purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had been conveyed to another. It was held that the solicitors were liable to the plaintiff in tort as they had failed to exercise due care and skill on which they knew the client would place reliance and because of the duty they owed to the client not to injure him by failing to do that which they had undertaken to do. Re Bell 's Indenture Ben & Anr. vs Hickley & ors., [1980] 3 All . R. 425 is yet another case where a solicitor was held liable to replace the misappropriated money of his client as a constructive trustee. What happened in that case was that money was paid into the firm 's client account in the name of express trustees. The express trustees misappropriated the money with the solicitors knowledge. It was held that the solicitor was liable to replace the money as a constructive trustee. In India, the matter is governed by the . In the a legal practitioner has been defined as "an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent. " The preamble to the reads as follows: "An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties. " Section 2 to 5 are important and hence they are extracted below: Section 2: For the purposes of this Act, unless there is anything repugnant in the subject or context, (a) "legal practitioner" means a legal practitioner as defined in section 3 of the ; And 621 (b) a legal practitioner shall not be deemed to "act" if he A only pleads, or to "agree to act" if he agrees only to plead. Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fees to be paid for his professional services. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner. No legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. " reading of these sections would go to show that any legal practitioner who acts or agrees to act for any person may settle with the said person the terms of his engagement and the fee to be paid for his professional services; that the legal practitioner will be entitled under law institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the costs taxed by the Court where there has been no pre settlement of the fee; and that no legal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. Therefore, a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner. As to whether Section 2(B) will afford protection to a legal practitioner from being sued for negligence by a client if he only pleads or agrees to plead is a matter for judicial determination in an appropriate case if an occasion arises for it. For the present we are not expressing any opinion on the matter except to point out that there is a specific provision in the Legal 622 Practitioner 's (Fees) Act setting out that legal Practitioners would also be liable for being sued by their clients if they have been negligent in the performance of their professional duties. The nature of the controversy in this appeal, as we have stated at the outset itself, does not pertain to these questions. In conclusion, since we find that the question whether the suit has abated or not can be answered only after the nature of the suit is determined on the basis of the materials placed and the evidence adduced by the parties, the appeal has to be dismissed. The suit will stand restored to the file of Trial Court for disposal in accordance with law in the light of the guidelines given by us. Accordingly the appeal is dismissed. In the circumstances of the case, the parties are directed to bear their respective costs. S.L. Appeal dismissed. [/INST]% A tenant, Mr. Sequeira, wanted to prefer an appeal to the Supreme Court against an order of the High Court, confirming an order of eviction passed against him in respect of his business premises, and engaged the appellant, an Advocate of the Supreme Court, to file the appeal. The Advocate/Appellant filed a petition for Special Leave in the Supreme Court. The petition came up for hearing on 22.11.1971 and was dismissed as withdrawn. The tenant thereupon filed a suit in the Court of the District Munsiff against the appellant for damages and compensation on the allegations that the appellant had been negligent in rendering professional service and had misconducted himself by filing the appeal after considerable delay, giving misleading information about the filing of the appeal, and withdrawing the appeal instead of canvassing for its admission, and that as a result of the withdrawal of the appeal, he was evicted from his business premises in consequence whereof he had incurred loss of income and business, besides suffering mental agony, worry and loss of reputation. The plaintiff claimed compensation under various heads. The appellant filed a written statement, refuting the charges levelled against him in the plaint and disputing the plaintiff 's right to seek damages. During the pendency of the suit, the plaintiff died and his legal representatives, the respondents in this appeal, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure for their substitution in the suit for prosecuting the suit further. The appellant opposed the petition on the grounds inter alia that the suit abated on the death of the plaintiff as per ahe maxim Actio Personalis cum moritur persona. The Trial Court upheld the objection and dismissed the suit as having abated, but the High Court held otherwise and declared the legal representatives to be entitled to be impleaded and continue the suit. This appeal was filed by special leave against the order of the High Court. Dismissing the appeal, the Court, 607 ^ HElD: The High Court which, in deciding the Revision before it, followed Krishan Behari Sen vs Corporation of Calcutta, I.L.R. 31 Calcutta 993, had not followed the correct ratio. Section 306 of the , which corresponded to section 89 of the Probate and Administration Act, 1881, set out the rights of the Executors and Administrators to continue actions of or against a deceased person. Section 306 was almost a re production of section 89. In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff were concerned, order XXII, Rules I and 3(1) governed the matter. [611C, F] The maxim 'action personalis cum moritur persona ' had been applied not only to those cases where a plaintiff died during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff died during the pendency of an appeal to the Appellate Court, be it the first Appellate Court or the second Appellate Court against the dismissal of the suit by the Trial Court andlor the first Appellate Court, as the case might be. This was on the footing that by reason of the dismissal of the suit by the Trial Court or the first Appellate Court, as the case might be, the plaintiff stood relegated to his original position before the Trial Court [614G H; 615A ] Though section 306 spoke only of executors and administrators. and order XXII, Rule 3, Civil Procedure Code, set out the rights of the legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survived, the Courts had taken the view that the legal representatives stood on par with the executors and administrators regarding their right to seek impleadment to continue the suit. There was unanimity of view among many High Courts regarding the interpretation to be given to the words "other personal injuries not causing the death of the party", occurring in section 306 of the . Preponderant view taken by several High Courts found acceptance with this Court in Melepurath Sankumari Ezhu Thassan vs Thekittl Geopalankutty Nair, A.l. It was on account of these factors, the Court expressed its disapproval of the view taken by the High Court in this case. [615E F, H; 616A B] What now fell for consideration in this case was whether the suit filed by the plaintiff was founded on torts or contract. In view of the fact that this aspect of the matter had not been considered by the Trial Court, the Court did not think it proper to express any opinion one way or the other as to whether the suit cause of action was founded on torts 608 or contract. Having regard to the nature of the claim, the Court was not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court had proceeded on the basis that the suit claim was based only on tortious liability though the two courts had reached different conclusions about abatment of the suit. Since no discussion had been made and no finding, rendered on this question and since the Court could not render any finding on the basis of the materials on record whether the suit was based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, the Court thought the proper course would be to allow the judgment under appeal to stand even though the Court did not approve the reasoning of the High Court. The matter was left upon for the trial Court to decide whether the suit was founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim was founded on torts, the suit would undoubtedly abate. If the action was founded partly on torts and partly on contract, then, such part of the claim as related to torts would stand abated and the other part would survive. If the suit claim was founded entirely on contract, then, the suit had to proceed to trial in its entirety and be adjudicated upon. [616C; 617G H; 618B d] A legal practitioner could not claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner. Whether section 2(b) of the , would afford protection to a legal practitioner from being sued for negligence by a client if he only pleaded or agreed to plead, was a matter for judicial determination in an appropriate case. For the present, the Court did not express any opinion on the matter except pointing out that there was a specific provision in the , saying that the legal practitioners would also be liable to be sued by their clients if they had been negligent in the performance of their professional duties. In conclusion, since the Court found that the question whether the suit had abated or not could be answered only after the nature of the suit was determined on the basis of the materials placed and the evidence adduced by the parties, the appeal had to be dismissed. The suit would stand restored to the file of the trial Court for disposal in accordance with law in the light of the guidelines given by the Court in this Judgment. [621G H;622A C] Krishna Behari Sen vs Corporation of Calcutta, ILR. 31 Calcutta, 993; Rustomji Dorabji vs W.H. Nurse, ILR 44 Madras 357; Motilal 609 Satyanarayan & Anr. vs Harnarain Premsukh & Anr, ; Palaniappa Chettiar vs Rajah of Ramnad, I.L.R. 49 Madras 208; Irulappa vs Madhava, A.I.R. 1951 Madras 733; Arnuchalam vs Subramanian, A.I.R. 1958 Madras 142; Gopal vs Ram Chandra, ILR XXVI Bombay 597; Maniramlala vs Mtz. Chalti Bai & Anr., I.L.R. 1938 Nagpur 280; Baboo vs Subanshi, I.L.R. 1942 Nagpur 650; Baboolal vs Ramlal, A.I.R. 1952 Nagpur 408; Punjab Singh vs Ramautar Singh, A.I.R. 1920 Patna 841; Joginder Kaur vs Jagdish Singh, A.I.R. 1964 Patna 548; Ratanlal vs Baboo lal, A.I.R. 1960 Madhya Pradesh 200; G. Jaya Prakash vs State, A.I.R. 1977 Andhra Pradesh 20; D.K. Cassim & Sons vs Sara Bibi, I.L.R. XIII Rangoon 385; Melepurath Sankunni Ezhuthassan vs Thekittil Geopalakutty Nair, ; Hedley Byrne & Co. Ltd. vs Heller & Partners, ; ; Rondel vs W, ; Rondel vs Worsley, [ 1967] 3 All. E.R. 993; Heywood vs Wellers, [ ; ; Midland Bank Trust Co. Ltd. & Anr vs Hett, Stubles & Kemp, and Re Bell 's Indenture Bell & Anr. vs Hickley & ors. , , referred to. </s>
<s>[INST] Summarize the judgementivil Appeal Nos. 1909 10 of 1989. From the Judgment and Order dated 2.4.1987 of the Del hi High Court in C.C.P. Nos. 82 and 176 of 1986. WITH CIVIL APPEAL NO. 19 11 OF 1989. From the Judgment and Order dated 2.4.1987 of the Del hi High Court in C.C.P. No. 82 of 1986 in C.W. No. 44 of 1975 . K. Parasaran, Attorney General, K.K. Venugopal, F. section Nariman, Gopal Subramaniam, C.V.S. Rao, P. Parmeshwara n, C.S. Vaidyanathan, S.R. Bhat, S.R. Setia, G.D. Gupta, Ash ok K. Mahajan and section Ravinder Bhat for the appearing parties. The Judgment of the Court was delivered by DUTT, J. Special leave granted in all these matter section Heard learned Counsel for the parties. The dispute between the direct recruits and the Emergency 16 Commissioned Officers (ECOs) in the Central Reserve Poli ce Force (CRPF) over the question of seniority has been goi ng on for a long time. The Delhi High Court has, ultimatel y, held in favour of the ECOs and by the impugned judgment, t he High Court has directed the implementation of its decisi on regarding seniority and grant of consequential benefits to the ECOs. As per the judgment of the High Court, the 37 dire ct recruits, who are now holding the posts of Commandants, th at is to say, 22 as Commandants (Selection Grade) and 15 as Commandants (NonSelection Grade), by virtue of the upgrad a tion of 88 posts of Commandants (Non Selection Grade), wi ll have to be reverted. The direct recruits feel aggrieved by the impugned judgment of the High Court and it is contend ed on their behalf that as they were not parties in the co n tempt proceedings in which the impugned judgment of the Hi gh Court has been passed, it is not binding on them, and th at the matter should be remanded to the High Court so as to give them an opportunity of being heard. If these conte n tions of the direct recruits are accepted, there will be further delay. It may be mentioned that this is the second time th at the matter has come to this Court. It is the desire of t he parties that the dispute should be amicably settled an d, pursuant to that desire, the parties including the Union of India had, from time to time, given their respective sugge s tions regarding the terms of settlement. Unfortunately, t he suggestions or the proposed terms of settlement were n ot accepted by one party or the other. The terms that we re suggested by the Union of India were not acceptable to t he ECOs and those of the ECOs were not acceptable to the dire ct recruits. It is gratifying to state that at the last heating, bo th the direct recruits and the ECOs came with an agreed ter ms of settlement. The hearing was adjourned so as to enable t he Union of India to consider the terms of settlement as agre ed to by the direct recruits and the ECOs. Mr. Gopal Subramaniam, the learned Counsel appearing on behalf of the Union of India, states that although the Uni on of India is also of the view that the dispute between t he parties should be resolved amicably, yet the said agre ed terms of settlement were not acceptable to it and it has, in lieu of the same made two alternative suggestions for se t tlement. Copies of the alternative suggestions have be en produced before us by Mr. Subramaniam. Neither of the alte r na 17 tive suggestions is, however, acceptable to the ECOs. We have considered the respective terms of settlement as put forward by the parties including the said two altern a tive suggestions. CRPF is a sensitive police force and the re should not be any dispute and differences among the membe rs of such force. It is the duty of the Government to mainta in peace and harmony in the force by trying to resolve a ny dispute among the members of the force in public interest. After considering the facts and circumstances of t he case including the impugned judgment of the High Court a nd the terms of settlement, as agreed to by the direct recrui ts and the ECOs, and also the alternative suggestions of t he Union of India, we are of the view that the terms of settl e ment, as agreed to by the direct recruits and the ECO s, appear to be fair and reasonable and do not involve a ny additional financial liability of the Union of India f or placing the 35 ECOs in the posts of Commandants (Selecti on Grade) with effect from the date they were promoted as Commandants (Non Selection Grade), as provided in the agre ed terms of settlement. On an examination of the two altern a tive suggestions made on behalf of the Union of India, we are of the view that they do not redress the grievances of the ECOs. In our opinion, while it may be desirable that t he present position of the direct recruits should be protecte d, the giving of such protection should not be to the prejudi ce of the ECOs. In the circumstances, in order to establish peace a nd amity between the contending parties and for ends of ju s tice, we direct that, in modification of the impugned jud g ment of the High Court, the appeals be disposed of in a c cordance with the terms of settlement, as agreed to by t he direct recruits and the ECOs, as follows: 1. The Union of India shall withdraw the order viz. ord er No. F.2/1O/86 Estt (CRPF) PP IV dated 18.6.1986 with immed i ate effect. The order providing for upgradation of 88 pos ts of Assistant Commandant (2nd in command) to the post of Commandants (Non Selection Grade) shall thus stand rescin d ed. The D.P.C. 1986 and all consequential orders regardi ng promotion against upgraded posts shall also stand revoked. To protect the 37 direct recruits who were holdi ng posts of Commandants, the Union of India shall create 37 supernumerary posts of Commandants (22 as Commandant Selec 18 tion Grade and 15 as Commandant Non Selection Grade), whi ch shall be held by the 37 direct recruits who were holding t he said posts on the date of judgment dated 2.9.1985 passed by the High Court of Delhi. The vacancies of 13 posts occurring in the year 19 86 of Commandant (Non Selection Grade) shall be filled afre sh by means of a D.P.C. The D.P.C. shall make promotions in accordance with rules and shall operate upon the revis ed seniority list prepared by the Department pursuant to t he judgment of the High Court dated 2.9.1985 affirmed by th is Court on 21.1.1986. The subsequent vacancies in the years 1987 and 19 88 for the posts of Commandants (Non Selection Grade) shall be filled in accordance with rules and the promotions shall be made through D.P.C. in accordance with law/Rules. The Union of India shall review the D.P.C. of 1985 f or the posts of Commandants and such review shall be complet ed as early as possible. Further, 35 ECOs who have already been promoted as Commandant (Non Selection Grade) till today will hold t he posts of Commandant (Selection Grade), from the date th ey were promoted as Commandant (Non Selection Grade) with t he condition that they will not be paid any salary for the po st of Commandant (Selection Grade) till their turn comes f or promotion to Commandant (Selection Grade) against regul ar vacancies, as per the seniority list. Each party to bear his/its own costs. Y.L. Appeals di s posed of. [/INST]The services of the respondent, an employee of the appellant company, were terminated in accordance with the Standing Orders of the company, approved by the appropriate authorities under the provisions of the , and the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. Standing Order NO. 2(a) defined " employees " as " all persons . employed in the Office or Mains Department or Stores or Power House or Receiving Station of the Company . whose names and ticket numbers are included in the departmental musters ". The Standing Orders also defined the term " workman " and provided that every workman should have a ticket. No ticket had been issued to the respondent by the company, and consequently his ticket number was not included in the departmental muster. The respondent challenged the validity of the order terminating his services by an application made before the High Court under article 226 of the Constitution on the grounds, inter alia, that the Standing Orders in question were confined to those employees only to whom tickets were issued, and that as no ticket was issued to him he was not an employee within the meaning of the Standing Orders which did not therefore apply to him and, consequently, the termination of his services under Standing Order No. 16(1) was illegal: Held, (1) that the words " whose names and ticket numbers are included in the departmental musters " occurring in Standing Order NO. 2 (a) should be read as " whose names and ticket numbers, if any, are included in the departmental musters "; Cortis vs The Kent Water Works Company ; ; ; and Perumal Goundan vs The Thirumalarayapuram jananukoola Dhanasekhara Sangha Nidhi, Mad. 624, applied. (2)that under the Standing Orders, in which a distinction is made between 'employees ' and 'workmen ', while every workman must have a ticket, there may be employees who may have no tickets the possession of which is not an essential characteristic of an employee; and, (3)that the Standing Orders apply to all employees for whose benefit they have been made. 464 Accordingly, the Standing Orders were applicable to the respondent and the termination of his service in accordance with Standing Order No. 16(1) was valid and, therefore, the application made by him to the High Court must fail. </s>
<s>[INST] Summarize the judgement90 of 1956. Petition under article 32 of the Constitution of India for enforcement of Fundamental rights. R. V. section Mani, for the petitioner. N.S. Bindra, K. L. Hathi and R. H. Dhebar, for the respondents. January 12. The Judgment of the Court was delivered by MUDHOLKAR, J. This is a petition under article 32 of the Constitution for issuing an appropriate writ to the respondents not to enforce the provisions of s.1144 of the Criminal Procedure Code or an appropriate writ forbidding respondent No. 4 from proceeding further with the prosecution of the petitioner for offences under sections 143 and 188 of the Indian Penal Code read with section 1 17 thereof, for quashing the proceedings against the petitioner before respondent No. 4 and for the issue of a writ of habeas corpus to respondents 1 to 3 directing them to produce or to cause to be produced the petitioner to be dealt with according to law and to set him at liberty. The facts which have led up to the petition are briefly as follows: There are two unions of textile workers in Nagpur, one known as the Rashtriya Mill Majdoor Sangh and the other as Nagpur Mill Majdoor Sangh. The former is a branch of the Indian National Trade Union Congress. The Rashtriya Mill Majdoor Sangh entered into an agreement with the management of the Empress Mills regarding the closure of Empress Mill No. 1 for rebuilding it and regarding the employment of workers who were employed therein in a third shift. This agreement was opposed by the Nagpur Mill Majdoor Sangh. On January 25, 1956, a group of workers belonging to the Nagpur Mill Majdoor Sangh went in a procession to Gujar 's Wada, Mahal, Nagpur, where the office of the Rashtriya Mill Majdoor Sangh is located. 54 426 It is said that a scuffle took place there between some members of the procession and some workers belonging to Rashtriya Mill Majdoor Sangh. Thereupon an offence under section 452 read with section 147 of the Indian Penal Code was registered by the police on January 27, 1956. A large procession consisting of the workers of the Nagpur Mill Majdoor Sangh was taken out. This procession marched through the city of Nagpur shouting slogans which, according to the District Magistrate, were provocative. On the same night a meeting was held at the Kasturchand Park in which it was alleged that the workers belonging to the Nagpur Mill Majdoor Sangh were instigated by the speakers who addressed the meeting to offer satyagraha in front of the Empress Mill No. 1 and also to take out a procession to the office of the Rashtriya Mill Majdoor Sangh. On January 28,1956, the workers belonging to the Nagpur Mill Majdoor Sangh assembled in large numbers in Mahal Chowk and on Mahal road blocking the traffic on the road. It is said that these persons were squatting on the road and as they refused to budge the District Magistrate passed an order at 4 00 a.m. on January 29, 1956, which came into force immediately and was to remain in force for a period of fifteen days prohibiting, among other things, the assembly of five or more persons in certain areas specified in the order. The petitioner entertained the view that the order promulgated by the District Magistrate under section 144 of the Code of Criminal Procedure was an encroachment on the fundamental rights of the citizens to freedom of speech and expression and to assemble peaceably and without arms, guaranteed under article 19(1)(a) and (b) of the Constitution and, therefore, he held a public meeting outside the area covered by the aforesaid order. It is alleged that at that meeting he criticised the District Magistrate and exhorted the workers to contravene his order and take out processions in the area covered by the order. Thereupon he was arrested by the Nagpur police for having committed the offences already referred to and produced before a magistrate, The magistrate remanded him to 427 jail custody till February 15, 1956. The petitioner 's application for bail was rejected on the ground that the accusation against him related to a Don bailable offence. Thereupon the petitioner moved the High Court at Nagpur for his release on bail but his application was rejected on February 22, 1956. The petitioner then presented a petition before the High Court under section 491 of the Code of Criminal Procedure for a writ of habeas corpus. That petition was dismissed by the High Court on May 9, 1956. The petitioner then moved the High Court for granting a certificate under article 132 of the Constitution. The High Court refused to grant the certificate non the ground that in its opinion the case did not involve any substantial question of law regarding the interpretation of the Constitution and was also not otherwise fit for grant of a certificate. On April 23, 1956, the petitioner presented the present petition before this Court. The petitioner also sought an exparte order for the stay of the proceedings before the respondent No. 4 till the decision on the petition to this Court. This Court admitted the petition but rejected the application for stay. On May 6, 1956, the petitioner took out a notice of motion for securing stay of the proceedings before respondent No. 4. On May 28,1956, this Court ordered that the entire prosecution evidence be recorded but the delivery of the judgment be stayed pending the decision of this petition. After the proceedings were stayed by this Court, the petitioner was released on bail by the trying magistrate. On behalf of the petitioner Mr. Mani has raised the following contentions: (1) That section 144 of the Code of Criminal Procedure in so far as it relates to placing of restrictions on freedom of speech and freedom of assembly confers very wide powers on the District Magistrate and certain other magistrates and thus places unreasonable restrictions on the rights guaranteed under article 19(1)(a) and (b) of the Constitution. (2) The District Magistrate constitutes the whole legal machinery and the only check for control on 428 his powers is by way of a petition to him to modify or rescind the order, that thus the District Magistrate becomes " a judge in his own cause" presumably, what learned counsel means is a judge with regard to his own decision and so the remedy afforded by the section is illusory. Further the remedy by way of a revision application before the High Court against the order of the District Magis trate is also illusory and thus in effect there can be no judicial review of his order in the proper sense of that expression. (3 Section 144 adopts "likelihood" or "tendency" as tests for judging criminality ; the test of determining the criminality in advance is unreasonable. (4) Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order. (5) Even assuming that section 144 of the Code of Criminal Procedure is not ultra vires the Constitution, the order passed by the District Magistrate in this case places restrictions which go far beyond the scope of clauses (2) and (3) of article 19 and thus that order is unconstitutional. Learned counsel also challenged the validity of the order on grounds other than constitutional, but we need not consider them here since it will be open to the petitioner to raise them at the trial. This being a petition under article 32 of the Constitution, the petitioner must restrict himself to those grounds which fall within cl. (1) thereof. We think it desirable to reproduce the whole of section 144. (1)In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the 'State Government ' or the Chief Presidency Magistrate or the District Magistrate to act under this section there is sufficient ground for proceeding under this section and im mediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating 429 the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place. (4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor in office. (5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for doing. (6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the 'State Government ' by notification in the Official Gazette, otherwise directs. " Sub section (1) confers powers not on the executive but on certain Magistrates. This provision has been amended in some States, as for instance, the former Bombay State where power has been conferred on the Commissioner of Police to pass an order thereunder. But we are not concerned with that matter here 430 because that provision is not contained in the law as applicable to the former State of Madhya Pradesh with which alone we are concerned in the matter before us. Under sub section (1) the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Again the subsection requires the Magistrate to make an order in writing and state therein the material facts by reason of which he is making the order thereunder. The sub section further enumerates the particular activities with regard to which the Magistrate is entitled to place restraints. Sub section (2) requires the Magistrate ordinarily to serve a notice on the person against whom the order is directed and empowers him to proceed exparte only where the circumstances do not admit of serving such a notice in due time. Sub section (3) does not require any comment. Sub section (4) enables a Magistrate to rescind or alter an order made under this section and thus enables the person affected, if the order is addressed to a specified individual, or any member of the public, if the order is addressed to the public in general, to seek, by making an application, exemption from compliance with the order or to seek a modification of the order and thus gives him an opportunity to satisfy the Magistrate about his grievances. The Magistrate has to deal with applications of this kind judicially because he is required by sub section (5) to state his reasons for rejecting, wholly or in part, the application made to him. Finally the normal maximum duration of the order is two months from the date of its making. The restraints imposed by the order are thus intended to be of a temporary nature. Looking at the section as a whole it would be clear that, broadly speaking, it is intended to be availed of for preventing disorders, obstructions and annoyances and is intended to secure the public weal. The powers are exercisable by responsible magistrates and these magistrates have to act judicially. Moreover, the 431 restraints permissible under the provision are of a temporary nature and can only be imposed in an emergency. Even so, according to the learned counsel these provisions place unreasonable restrictions on certain fundamental rights of citizens. Firstly, according to learned counsel restrictions on the rights guaranteed by cls. (2) and (3) of article 19 of the Constitution can be placed in the interest of id public order " and not in the interest of the " general public ", which expression, according to him is wider in its ambit than public order and that since section 144 enables a magistrate to pass an order in the interest of the general public the restrictions it authorises are beyond those permissible under cls. (2) and (3) of article 19. It is significant to note that section 144 nowhere uses the expression " general public ". Some of the objects for securing which an order thereunder can be passed are, " to prevent obstruction, annoyance, injury. . . etc. No doubt, the prevention of such activities would be in the ,public interest" but it would be no less in the interest of maintenance of " public order. " Secondly, according to learned counsel, section 144 is an amalgam of a number of things to many of which there is no reference even in el. (2) of article 19. In order to enable the State to avail of the provisions of cls. (2) and (3), he contends, a special law has to be passed and a provision like section 144 can serve no purpose. This contention has only to be mentioned to be rejected. Clauses (2) to (6) of article 19 do not require the making of a law solely for the purpose of placing the restrictions mentioned in them. Thirdly, according to learned counsel sub section (1) of a. 144 does not require the magistrate to make an enquiry as to the circumstances which necessitate the making of an order thereunder. It is true that there is no express mention anywhere in section 144 that the order of the magistrate should be preceded by an enquiry. But we must construe the section as a whole. The latter part of sub section (1) of section 144 specifically mentions that the order of the magistrate should sot out the 432 material facts of the case. It would not be possible for the magistrate to set out the facts unless he makes an enquiry or unless he is satisfied about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct. Clearly, therefore, the section does not confer an arbitrary power on the magistrate in the matter of making an order. It is contended that section 144 of the Code of Criminal Procedure confers very wide powers upon certain magistrates and that in exercise of those powers the magistrates can place very severe restrictions upon the rights of citizens to freedom of speech and expression and to assemble peaceably and without arms. It seems to us, however, that wide though the power appears to be, it can be exercised only in an emergency and for the purpose of preventing obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity or a riot, or " an affray ". These factors condition the exercise of the power and it would consequently be wrong to regard that power as being unlimited or untrammelled. Further, it should be borne in mind that no one has a right to cause " obstruction, annoyance or injury etc., " to anyone. Since the judgment has to be of a magistrate as to whether in the particular circumstances of a case an order, in exercise of these powers, should be made or not, we are entitled to assume that the powers will be exercised legitimately and honestly. The section cannot be struck down on the ground that the magistrate may possibly abuse his powers. It is also true that initially it is the magistrate con cerned who has to form an opinion as to the necessity of making an order. The question ', therefore, is whether the conferral of such a wide power amounts to an infringement of the rights guaranteed under article 19(1)(a) and (b) of the Constitution. The rights guaranteed by sub cl. (a) are not absolute rights but are subject to limitations specified in cl. (2) of article 19 which runs thus: " Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law,, or prevent the 433 State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. " Similarly the rights to which sub cl. (b) relates are subject to the limitations to be found in cl. (3) of article 19, which runs thus: " Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub clause. " The Code of Criminal Procedure was an existing law at the commencement of the Constitution and so, in the context of the grounds on which its validity is challenged before us, what we have to ascertain is whether the conferral thereunder of a power on a magistrate to place restrictions on the rights to which sub section (a) and (b) of article 19 relate is reasonable. It must be borne in mind that the provisions of section 144 are attracted only in an emergency. Thereunder, the initial judge of the emergency is, no doubt, the District Magistrate or the Chief Presidency Magistrate or the sub divisional magistrate or any other magistrate specially empowered by the State Government. But then, the maintenance of law and order being the duty and function of the executive department of the State it is inevitable that the q question of formation of the opinion as to whether there is an emergency or not must necessarily rest, in the first instance, with those persons through whom the executive exercises its functions and discharges its duties. It would be impracticable and even impossible to expect the State Government itself to exercise those duties and func tions in each and every case. The provisions of the section therefore which commit the power in this regard to a magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. We 55 434 may also point out that the satisfaction of the magistrate as to the necessity of promulgating an order under section 144 of the Code of Criminal Procedure is not made entirely subjective by the section. We may also mention that though in an appropriate case a magistrate is empowered to make an order under this section ex parte the law requires that he should, where possible serve a notice on the person or persons against whom the order is directed before passing that order. Then sub section (4) provides that any magistrate may either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section. This clearly shows that even where an ex parte order is made the person or persons affected thereby have a right to challenge the order of the magistrate. Sub section (5) provides that where such a challenge is made, the magistrate shall give an early opportunity to the person concerned of appearing before him and showing cause against the order. The decision of the magistrate in such a proceeding would undoubtedly be a judicial one inasmuch as it will have been arrived at after hearing the party affected by the order. Since the proceeding before the magistrate would be a judicial one, he will have to set aside the order unless he comes to the conclusion that the grounds on which it rests are in law sufficient to warrant it. Further, since the propriety of the order is open to challenge it cannot be said that by reason of the wide amplitude of the power which section 144 confers on certain magistrates it places unreasonable restrictions on certain fundamental rights. Learned counsel, however, says that the right conferred on the aggrieved person to challenge the order of the magistrate is illusory as he would be a judge with regard to his own decision. This argument would equally apply to an application for review made in a civil proceeding and we do not think that it is at all a good one. Again, though no appeal has been provided in the Code against the Magistrate 's order under section 144, the High Court has power under section 435 read with section 439 of the Code to entertain an application for the revision of such an order, The powers of the High Court in 435 dealing with a revision application are wide enough to enable it to quash an order which cannot be supported by the materials upon which it is supposed to be based. We may point out that sub section (1) of section 144 requires a magistrate who makes an order thereunder to state therein the material facts upon which it is based and thus the High Court will have before it relevant material and would be in a position to consider for itself whether that material is adequate or not. As an instance of a case where the High Court interfered with an order of this kind, we may refer to a decision in P. T. Chandra, Editor, Tribune vs Emperor(1). There, the learned judges quite correctly pointed out that the propriety of the order as well as its legality can be considered by the High Court in revision, though in examining the propriety of the order the High Court will give due weight to the opinion of the District Magistrate who is the man on the spot and responsible for the maintenance of public peace in the district. In that case the learned judges set aside an order of the District Magistrate upon the ground that there was no connection between the act prohibited and the danger apprehended to prevent which the order was passed. We would also like to point out that the penalty for infringing an order under section 144 is that provided in section 188, Indian Penal Code. When, therefore, a prosecution is launched thereunder, the validity of the order under section 144, Criminal Procedure Code, could be challenged. We are, therefore, unable to accept Mr. Mani 's contention that the remedy of judicial review is illusory. The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the doctrine adumbrated in Scheneck 's case(2) that previous restraints on the exercise of fundamental rights are permissible only if there be a clear and present danger. It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under article 19 (1) of the Constitution are not absolute rights but, as pointed out in State of Madras (1) A.I.R. 1942 Lah. 171. (2) Scheneck vs U. section, ; 436 vs V. G. Row (1) are subject to the restrictions placed in the subsequent clauses of article 19. There is nothing in the American Constitution corresponding to cls. (2) to (6) of article 19 of our Constitution. The Fourteenth Amendment to the U. section Constitution provides, among other things, that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; that of the Constitution of the United States. Then again, the Supreme Court of the United States has held that the privileges and immunities conferred by the Constitution are subject to social control by resort to the doctrine of police power. It is in the light of this background that the test laid down in Scheneck 's case (2) has to be understood. The language of section 144 is somewhat different. The test laid down in the section is not merely " likelihood " or " tendency ". The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger. Apart from this it is worthy of note that in Scheneck 's case (2) the Supreme Court was concerned with the right of freedom of speech and it observed: "It well may be that the prohibition of law abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a (1) ; (2) ; 437 panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. " Whatever may be the position in the United States it seems to us clear that anticipatory action of the kind permissible under section 144 is not impermissible under cls. (2) and (3) of article 19. Both in el. (2) (as amended in 1951) and in cl. (3) power is given to the legislature to make laws placing reasonable restrictions on the exercise of the rights conferred by these clauses in the interest, among other things, of public order. Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order. We must, therefore, reject the contention. It is no doubt true that since the duty to maintain law and order is cast upon the Magistrate, he must perform that duty and not shirk it by prohibiting or restricting the normal activities of the citizen. But it is difficult to say that an anticipatory action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order. In such circumstances that could be the only mode of discharging the duty. We, therefore, reject the contention that section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order. Coming to the order itself we must consider certain objections of Mr. Mani which are, in effect, that there are three features in the order which make it unconstitutional. In the first place, according to him the order is directed against the entire public though the magistrate has stated clearly that it was promulgated 438 because of the serious turn which an industrial dispute had taken. Mr. Mani contends that it is unreasonable to place restrictions on the movements of the public in general when there is nothing to suggest that members of the public were likely to indulge in activities prejudicial to public order. It is true that there is no suggestion that the general public was involved in the industrial dispute. It is also true that by operation of the order the movements of the members of the public would be restricted in particular areas. But it seems to us that it would be extremely difficult for those who are in charge of law and order to differentiate between members of the public and members of the two textile unions and, therefore, the only practical way in which the particular activities referred to in the order could be restrained or restricted would be by making those restrictions applicable to the public generally. The right of citizens to take out processions or to hold public meetings flows from the right in article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India. If, therefore, any members of the public unconnected with the two textile unions wanted to exercise these rights it was open to them to move the District Magistrate and apply for a modification of the order by granting them an exemption from the restrictions placed by the order. Mr. Mani 's contention, and that is his second ground of attack on the Magistrate 's order, is that the only exception made in the order is with respect to funeral processions and religious processions and, therefore, it would not have been possible to secure the District Magistrate 's permission for going out in procession for some other purpose or for assembling for some other purpose in the area to which the order applied. So far as the customary religious or funeral processions are concerned, the exemption has been granted in the order itself that if anyone wanted to take out a pro cession for some other purpose which was lawful it was open to them under section 144, sub section (4), to apply for an alteration of the order and obtain a special exemption. 439 More omission of the District Magistrate to make the exemption clause of the order more comprehensive would not, in our opinion, vitiate the order on the ground that it places unreasonable restrictions on certain fundamental rights of citizens. The third and last ground on which Mr. Mani challenged the constitutionality of the order was that while the order prohibits the shouting of provocative slogans in public places etc., it does not give any definition of what was meant by the expression "provocative slogans ". Therefore, according to Mr. Mani, this order is vague and must be deemed to be placing unreasonable restrictions on the rights of free speech of citizens. It seems to us that the expression " provocative slogans " has necessarily to be understood in the context in which it has been used in the order and, therefore, it cannot be regarded as vague. We have, therefore, reached the conclusion that the order of the District Magistrate is not unconstitutional either because section 144 is itself violative of fundamental rights recognised in article 19 or on the ground that it is vague and places unreasonable restrictions on those fundamental rights. We, therefore, dismiss this petition. Shortly after this petition was made to this Court, the petitioner presented a special leave petition in which he seeks to challenge the judgment of the Nagpur High Court dated April 9, 1956, dismissing his writ petition to that High Court. The points raised in the Special Leave Petition are similar to those raised in this petition. Since we are dismissing this petition, there can be no question of granting the special leave to the petitioner to appeal against the judgment of the Nagpur High Court. Petition dismissed. [/INST]In a plaint the following reliefs were asked for, viz., (i) that it be declared that the appointment of 'defendant No. 2 as chairman of the board of directors of a company is illegal, invalid and ultra vires and that he has no, right to act as chairman, managing director etc., and (ii) that a receiver be appointed to take charge of the management of the company. The 'plaint bore a court fee stamp of Rs. 10 only but, the objection of the defendants, ad valorem fee was paid Rs. 51,000 which was the valuation of the suit. The suit was dismissed and the plaintiff preferred an appeal giving up the second relief and paying a court fee of Rs. 10 only. The appellate Court ordered payment of ad valorem court fee and non compliance rejected the memorandum of appeal, 0n further appeal: ' 198 Held, (i) that it was o pen to the appellant to give up the second relief in appeal and, as the subject matter of the appeal was of & purely declaratory nature, the memorandum of appeal was properly stamped; (ii)that the first relief was of a purely declaratory nature and did not involve any consequential relief ; (iii)that section 12 of the Court Fees Act did not preclude the Court from considering the correctness of the order of the low er appellate court rejecting the appeal the ground that the memorandum of appeal was not properly stamped. The finality imposed by section 12 of the Court Fees Act deci sions relating to court fee attaches only to decisions concerning valuation simpliciter; it does not attach to decisions relating to the category under which a suit or appeal falls for purposed of court fees. Section 12 of the Court Fees Act when it says that such a decision shall be final between the parties only makes the decision of the court a question of court fee non appealable and places it the same footing as other interlocutory non appealable orders under the Code and does no more than that. If a decision under section 12 is reached by assuming jurisdiction which the court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, when a party thinking that a decision under section 12 is palpably wrong takes the risk of his plaint being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but not from the decision the question of court fee, then it is open to him to challenge the interlocutory order even the question of court fee in the suit or appeal. The word " finality " construed in the limited sense in which it is often used in statutes means that no appeal lies from an order of this character as such and it means no more than that. </s>
<s>[INST] Summarize the judgementAppeals Nos.131 to 304 of 1957. Appeals by special leave from the judgments and order dated October 19, 1955 and January 31, 1956, of the Authority under , Bombay, in Applications Nos. 950 961, 963 967, 970 989, 992, 994 1013, 1015 1016, 1049 1050 and 11510 11511 and 11513 11517 of 1955 respectively. M.C. Setalvad, Attorney General for India, R. Ganapathy Iyer and R. H. Dhebar, for the appellants. Purshottam Tricumdas and G. N. Srivastava, for the respondents in all the appeals except C. A. No. 186 of 1957. 1959 May 8. The Judgment of the Court was delivered by GAJENDRAGADKAR J. This group of 174 appeals by special leave arises from the several applications made against Mr. B. P. Hira, Works Manager, Central Railway Workshop and Factory, Parel, Bombay (hereafter called the appellant) by the employees at the said factory (hereafter called the respondents) under the (IV of 1936) claiming payment of overtime wages since 1948. All these applications were heard by the Payment of Wages Authority, Bombay, as companion matters and they have been disposed of by a common judgment. The main judgment has, however, been delivered by the said Authority in the application filed by Mr. C. M. Pradhan (hereafter called the respondent) which gives rise to Civil Appeal No. 131 of 1957 before us. We would, therefore, deal with this appeal in particular and our decision in this appeal will govern the rest of the appeals in this group. 139 In his application made before the Payment of Wages Authority the respondent alleged that he had been employed in the factory called the Central Railway Workshop and Factory, Parel, Bombay, and that he had not been paid overtime wages due to him from April 1, 1949, to September 30, 1954. The respondent claimed that the delay made by him in filing the present application should be condoned because jointly with his co workers he had been in correspondence with the railway administration in regard to the said payment of overtime wages since, 1948 and that the claim made by him and his colleagues had been finally rejected by the railway administration on August 31, 1954. His case was that he had filed the present application soon thereafter and so the delay made by him ,in making the claim before the Authority should be condoned. The Authority heard the parties on the; question of delay and held that the delay only in respect of the claim for the period after May 1953 should be condoned. In the result the claim for overtime wages for the period prior to May 19, 1953, was rejected on the preliminary ground of delay whereas the claim. for the period subsequent to the said date was considered on the merits. The respondent 's case was that he was entitled to the overtime wages for work on such Sundays when he was not given a holiday within three days prior to or three days subsequent to the Sundays on which he worked. The appellant conceded that the respondent had not been given a holiday within the three days prior to or the three days subsequent to the Sundays on which he had worked as required by section 52 of the Indian . The respondent alleged that he was a worker within the meaning of section 2, sub section (1) of the said (LXIII of 1948) and as such he was entitled to overtime wages under s 59 of the said Act. Alternatively he urged that even if he was not a worker within the meaning of section 2(1) of the said Act, he would nevertheless be entitled to overtime wages under the said section 59 by reason of section 70 of the Bombay Shops and Establishments Act, 1948 (Bom. 79 of 1948) (hereafter called the Act). Thus the claim for 140 overtime wages was made by the respondent on two alternative grounds. The appellant disputed the validity of this claim. It was urged on its behalf that the respondent was not a worker under section 2(1) of the and that section 70 of the Act did not justfy the claim alternatively made by the respondent for overtime wages. The Authority considered the evidence led before it in respect of all the repondents for overtime wages. It appears that these respondents are employed by the appellant in the time office of the Parel Workshop and not in the factory itself. The duties of these timekeepers are to maintain initial records of attendance of workshop staff, to prepare pay sheets for them to maintain their leave accounts, to dispose of final settlement cases of the said staff and to maintain records for statistical information. The Authority held that the time office where the timekeepers work is an integral part of the factory and so it came to the conclusion that the timekeepers are employed in the factory called the Central Railway Workshop and Factory, Parel, Bombay. The Authority then examined the question as to whether the timekeepers are workers within the meaning of section 2(1) of the . Evidence showed that four timekeepers, are required to do the work of progress timekeepers. This work consists in preparing the progress time sheets and operation time sheets of machine shop staff working on various jobs dealing with the production of railway spare parts. The Authority was disposed to take the view that having regard to the nature of the work assigned to the progress time keepers they must be held to be persons employed in work incidental to, or connected with the manufacturing process or the subject of the manufacturing process and as such they are workers within the meaning of section 2(1) of the . In the result, the finding made by the Authority was that timekeepers are employees of the workshop, but are not workers under the ; while the progress time keepers can claim the status of workers under the said Act. 141 The Authority then considered the respondent 's argument that even if he was not a worker under the he was neverthless entitled to claim the benefit of section 59 of the said Act by virtue of section 70 of the Act. The Authority accepted this contention and held that, even if the respondent was not a worker under the , section 70 of the Act entitled him to claim overtime wages under section 59 of the . That is why the Authority ordered that the respondents would be entitled for the period 19 5 1953 to 30 9 1954 to overtime wages at double the ordinary rate for the Sundays on which they worked when they were not given a a holiday on one of the three days immediately preceding or after the said Sunday. The appellant was accordingly directed to file a statement showing the overtime wages to which the several respondents were entitled and orders were passed on each one of the applications directing the appellant to pay the respective amounts to. each one of the respondents. It is against these orders that the appellant has filed the present group of appeals by special leave. The first point which has been urged before us by the learned Attorney General on behalf of the appellant is that the Authority was in error in holding that the progress timekeepers are workers under section 2(1) of the . A worker under section 2(1) means a person employed directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process; and the manufacturing process under section 2(k) means any process for inter alia (1) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal. It is clear that the duties of the progress timekeepers do not fall within the first part of a. 2(k). The Authority has however, 142 held that the said duties can be treated as incidental to, or connected with, the manufacturing process or the subject of manufacturing process; it is the correctness of this finding that is challenged by the appellant. On the other hand, Mr. Purshottam, for the respondents, argues that the Authority was in error in holding that the timekeepers are not workers under section 2 (1). His contention is that the expression "incidental to, or connected with, the manufacturing process " is wide enough to include not only the cases of the progress timekeepers but the cases of all timekeepers as a class. It is true that the finding of the. Authority in respect of the timekeepers is against the respondents; but Mr. Purshottam says that he is entitled to support the final order passed by the Authority on the additional ground that the time. keepers, like the progress timekeepers, are workers under section 2(1) and as such they are entitled to claim overtime wages under section 59 of the . The final decision of the Authority is, however, based on the view that under section 70 of the Act the respondents would be entitled to overtime wages under section 59 of the even if they are not workers under section 2(1). That being so, we think it is necessary first to consider the correctness of this view. If the conclusion of the Authority on the scope and effect of the provisions of section 70 of the Act is correct, then it would be unnecessary to consider whether the timekeepers and the progress timekeepers are workers under section 2(1) of the . We would, therefore, deal with that question first. It appears that there are three statutes which pro. vide for the payment of extra wages for overtime work. The proviso to section 71 (c) of the Indian Railways Act (IX of 1890) lays down that the exempted railway servant specified in it shall be paid for overtime at not less than one and a quarter times his ordinary rate of pay. This provision has been subsequently amended by Act 59 of 1956, which makes the rate for overtime one and one half times the ordinary rate of pay; but it is common ground that we are not 143 concerned with the amended provision in these appeals since the respondents ' claim is for. a period prior to the date of the amendment. It is suggested by the appellant that the respondents are railway servants under section 3 (7) of the said Act, and as such they may be entitled to make a claim for overtime wages under the said proviso; but the respondents have not made, and do not wish to make, a claim under the said provision; and so the question as to the application of the said section need not detain us. If the construction placed on section 70 of the Act by the Authority is correct, the claims of employees who are working in a factory in the State of Bombay would be governed by that provision; this position is not seriously disputed before us. Section 59 of the also deals with the question of extra wages for overtime. It provides for the payment of wages in respect of overtime work at the rate of twice the ordinary rate of wages. This benefit is, however, available only to persons who are workers within the meaning of section 2(1) of the said Act Since we are dealing with the case on the assumption that the respondents are not workers under s ' 2(1) it follows that section 59 by itself would not be applicable to them. The Bombay Shops and Establishments Act, 1948, is the third statute which makes a provision for the payment of extra wages for overtime work. Section 63 of the Act deals with this topic. Section 63(1) provides for the payment of overtime work at the rate of 1 1/2 times the ordinary rate of wages in the case of employees in any establishment other than a residential hotel, restaurant, or eating house, whereas sub section (2) provides for wages for overtime at the rate of twice the ordinary rate of wages in respect of employees in a residential hotel, restaurant or eatinghouse, subject to the other conditions specified in the said section. It is clear that this section does not apply to the respondents because they are employees in a factory and not in any of the establishments enumerated in its two sub sections. 144 The respondents ' case, however, is that by virtue of section 70 of the. Act the provisions of the Factories Act,including a. 59, are extended to the cases of all employees in factories, and so they are entitled to claim wages for overtime under the said section of the . This contention has been upheld by the Authority. It is not disputed by the appellant that the Bombay Legislature was competent to prescribe for the extension of the provisions of the to employees in the factories within the territory of the State of Bombay; and since sanction for this legislation has been duly obtained from the Governor General of India on January 3, 1949(1), no question about any repugnance between the provisions of section 70 and those of the can possibly arise. Thus the validity of the said section is not in dispute; and so the only point which calls for our decision is one of construction: Does section 70 supplement the provisions of the by extending them to all employees in factories like the respondents though they are not workers under section 2(1) of the said Act ? Before dealing with this point it is necessary to refer briefly to the broad features of the Act. The Act no doubt is a piece of beneficent social legislation intended to serve the cause of labour welfare. It has been passed in order to consolidate and amend the law relating to the regulation and conditions of work and employment in shops, commercial establishments, residential hotels, restaurants, eating houses, theaters, other places of public amusements and entertainments and other establishments. Section 2, sub sections (3), (4) and (27) define respectivly the establishment, commercial establishment and shop. The definitions of commercial establishment and shop exclude inter alia factory. Establishment is defend as meaning a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement are entertainment to which the Act applies and includes such other establishment as the State Government may by notification in the official gazette declare (1) Published in the Bombay Government Gazette, Part IV, dated 11 1 1949. 145 to be, an establishment for the purposes of this Act. It would be noticed that the definition of establishment is very wide, and it does not purport to be exhaustive because it expressly empowers the State Government to include within its purview by notification other establishments not specified in it. Section 2, sub section (6) defines an employee as meaning a person wholly or principally employed in, and in connection with, any establishment, and includes an apprentice but does not include a member of the employer 's family. This definition shows that the Act intends to confer the benefit of its provision on all persons who fall within the wide definition of the expression " Employee ". It is necessary at this stage to refer to the definition of "factory" under the Act. Section 2(9) defines a factory as meaning any premises which is a factory within the meaning of cl. (m) of section 2 of the or which is deemed to be a factory under section 85 of the said Act. Now section 2(m) of the defines a factory as meaning any premises including the precincts thereof " (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of the (XXXV of 1952), or a railway running shed; " and section 85 confers authority on the State Government to extend the definition of factory to other places subject to the requirements specified in the said section. It is common ground that the place where the respondents are employed is a factory under section 2(m) of the , and so it satisfies the definition of section 2(9) of the Act. 19 146 The scheme of the Act shows that it deals separately with shops and commercial establishments (ch. 111), residential hotels, restaurants and eating houses (ch., IV) and theaters and other places of public amusement (ch. V). Separate provisions are made to regulate these different establishments having regard to the special needs of each one of them. There are, however, general provisions applicable to and regulating all the establishments alike and these are found in chs. VI to IX. It is significant that with the exception of section 70, no other section of the Act deals with factories. We have already noticed that in defining " commercial establishment " and " shop " respectively the Act has expressly excluded " factories " from the said expressions. It is true that the definition of " establishment " does not expressly exclude factory; but it is plain that factory is treated by the Act as separate and distinct and there can be no doubt that the provisions in the Act which apply to establishment are not intended to, and do not, apply to factories. In other words, though the definition of " establishment " is wide enough, it does not include factory for the purposes of the Act. It is conceivable that a kitchen attached to an establishment like a residential hotel may satisfy the definition of factory; but it seems to us that such an adjunct of an establishment is prima facie not intended by the Act to be treated apart and separately from the main establishment itself, and so it would be taken as a part of the establishment and be governed by the provisions of the Act in relation thereto. The factory where the respondents are employed is not connected with, much less an inseparable adjunct of, any establishment, and so this academic aspect of the matter which was incidentally posed before us by the learned Attorney General need not be pursued any further in the present appeal. The conclusion of the Authority has been challenged by the appellant on the ground that section 70 on which it is based cannot be invoked by the respondents. In support of this argument reliance is placed on section 4 of the Act. Section 4 provides that notwithstanding anything contained in the Act its provisions mentioned 147 in the third column of sch. 11 shall not apply to the establishments, employees and other persons mentioned against them in the second column of the said schedule. The proviso to this section authorises the State Government to add to, omit or alter any of the entries in the said schedule in the manner indicated( by it. It is urged that the establishment of any railway administration is mentioned as sr. No. 5 in sch. II and the entry against it in col. 3 of the said schedule shows that the provisions of the Act are inapplicable to the said establishments. If the establishment in question is exempted from the application of all the provisions of the Act, how can section 70 be said to apply to it? asks the learned Attorney General. It is obvious that section 4 mentions and applies only to establishments and it has no application to factories; and we are dealing with employees in a factory. Indeed as we have already observed, no provision of the Act except section 70 applies to factories and so it would not be legitimate to base any argument on the assumption that section 4 is applicable to the present case. Incidentally the learned Attorney General suggested, though faintly, that the establishments mentioned at sr. 1 to 6 in col. 2 of sch. II are wider than and different from the establishment as defined by section 2(8). We do not think that this suggestion is well founded. There can be no doubt that section 4 grants exemptions to the said establishments from the application of the provisions mentioned in col. 3 of sch. II; and that itself postulates that but for the exemption thus granted the provisions of the Act would have applied to them. Indeed the scheme of sch. 11 shows that whereas all the provisions of the Act are made inapplicable to the establishments and offices enumerated at sr. 1 to 6 including 6(a) to 6(k), in regard to the others which are enumerated at sr. 7 to 55 it is only some provisions of the Act specified in col. 3 that are excluded. In other words, the remaining sections not so specified would apply to them. If that is so, they must be and are establishments under section 2(8) of the Act. 148 In this connection it must be borne in mind thats. 2(8) empowers the State Government to include by notification any office or institution within the definition of establishment; and so the inclusion of any such office or institution in col. 2 of sch. 11 would make it an establishment under the Act, and as such it would be governed by it subject of course to the corresponding entry in col. 3. That is why we think that the suggestion of the learned Attorney General as to the denotation and character of establishments enumerated in sr. 1 to 5 in col. 2 of sch. 11 cannot be accepted. All the offices, establishments and other institutions mentioned in col. 2 of sch. II are and must be held to be establishments under section 2(8). In regard to the argument that the operation of section 4 excludes the application of section 70 we have held that section 4 applies only to establishments and not to factories. But even if section 4 is assumed to be applicable to factories, we do not think it would materially affect the application of section 70. The plain object underlying section 70 and its context emphatically point out that it is intended to operate independently of the other provisions of the Act and in that sense it stands apart from them. It is this aspect of the matter which is clarified by the Legislature by laying down in section 70 that nothing in the Act shall be deemed to apply to any persons employed in the factory. That, however, anticipates the argument on the construction of section, 70. Let us therefore,cite the said section and construe it. Section 70 provides that nothing in this Act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the shall, notwithstanding anything in the said Act, apply to such person. This section consists of two parts. The first part makes it clear that no provision in the Act shall be deemed to apply to the persons specified in it. The Legislature knew that in fact the Act contained no provision which in terms or expressly applies to any such person; but in order to remove any possible doubt it has provided that no provision in the Act shall even by inference or fiction be deemed to apply to them. In other words this clause 149 is intended to clarify the position that though factory has been defined by section 2(9) of the Act, no provision of the Act is intended to be applied to a factory or employees in. Having clarified this position the second part of the section extends the application of the to the said persons. It would have been possible for the Legislature to include in the present statute all the relevant provisions of the and make them applicable to factories as defined by section 2(9); but apparently the Legislature thought that the same object can be achieved by enacting the second part of section 70. This part provides that the provisions of the shall apply to the persons in question notwithstanding anything contained in the said Act. The said Act contains the provision by which workers are defined under section 2(1), and it necessarily involves the consequence that the relevant provision about the payment of overtime wages applies only to workers as defined and not to employees in factories who are not workers. It is in reference to this provision that section 70 has provided that notwithstanding the said provision the relevant provisions of the will apply to persons employed in a factory. The non obstante clause in section 70 thus serves the purpose of clarifying the position that the is made applicable to employees in factories and that they are not governed by any of the provisions of the Act. This conclusion is obviously consistent with the policy of the Act. It has itself made provision for the payment of overtime wages to employees in all establishments by section 63; and it has made applicable inter alia the relevant provisions of the in regard to employees in factories. That is the view which the Authority has taken, and in our opinion its validity or correctness is not open to doubt. In the result the orders passed by the authority are confirmed and the appeals are dismissed with costs in one set. Appeals dismissed. [/INST]These appeals by special leave arose from applications made by the respondents, who were employed as timekeepers in the time office of the Central Railway Workshop and Factory, Parel, Bombay, claiming payment of overtime wages under the (4 of 1936). The case of the respondents was that they were workers within the meaning of section 2(1) of the (LXIII Of 1948) and as such were entitled to overtime wages under section 59 of the said Act. Alternatively, they urged that even if they were not workers within the meaning of section 2(1) of the said Act, they would nevertheless be entitled to overtime wages under the section 59 by reason Of section 70 of the Bombay Shops and Establishments Act, 1948 (Bom. 79 of 1948). The validity of the claim on both the grounds was disputed by the appellant. The Authority under the found that only four of the respondents, who were required to do the work of progress timekeepers, could claim the status of workers within the meaning Of section 2(1) Of the and the rest were merely employees of the workshop, but the Authority accepted the alternative case made by the respond ents and directed the appellant to file a statement showing the overtime wages due to each of the respondents and ordered it to pay the same. Held, that the Authority was right in the view that it took Of section 70 Of the Bombay Shops and Establishments Act, 1948, and its decision must be affirmed. On a proper construction Of section 70 Of the Act it is clear that the first part of the section excludes a factory and its employees from the operation of the Act; but the second part makes the relevant provisions of the applicable to them. The non obstante clause in the section shows that the employees in a factory, although they might not be workers within the meaning Of section 2(1) of the , are entitled to claim overtime wages as provided for by that Act. It is not correct to say that section 4 Of the Bombay Shops and Establishments Act, 1948, has the effect of excluding the operation Of section 70 Of the Act. Section 4 applies only to establishments and not to factories; but even if it applied, to factories 18 138 that cannot materially affect the application Of section 70 which is intended to operate not withstanding the other provisions of the Act. Consistently with its policy, the Act, which provides for overtime wages for employees in all establishments, provides for overtime wages for employees in factories as well by making the relevant provisions of the applicable to them. </s>
<s>[INST] Summarize the judgementit Petition No. 1119 of 1986 etc. (Under Article 32 of the Constitution of India). G. Ramaswamy, A.S.G., N.C. Sikri, N.S. Das Bahl, B.D. Sharma, Ms. Madhu Sikri, B.W. Vaidya, R.B. Misra, Ms. A. Subhashini (not present) and Dalveer Bhandari for the ap pearing parties. The Judgment of the Court was delivered by RANGANATH MISRA, J. The first of these applications under article 32 of the Constitution is on behalf of the Delhi Reserve Trained Pool Telephone Operators (RTPTOs) asking for a direction to the Mahanagar Telephone Nigam Limited to treat all the telephone operators at par after their absorp tion as regular employees. Three letters addressed to the learned Chief Justice of this Court have been treated as writ petitions and are the remaining one under article 32 of the Constitution. The first one (1276/86) is by the Reserve Trained Pool Telephone Operators of Bombay. They claim the self same relief as asked for in the earlier case; the second one (1623/86) is on behalf of the Reserve Trained Pool Operators in the Department of Posts and they have .claimed relief of being placed at par with regular, permanent or temporary employees in the matter of service conditions. The third one (1624/86) is on behalf of substi tute employees and casual labourers in the Department of Posts. They have claimed that substitute employees and casual labourers be paid the same emoluments as regular employees. 331 In an earlier Writ Petition No. 11764 of 1985 filed by the All India Telegraph Engineering Employees Union Class III of Bombay Telephone where the prayer for treating the Reserve Trained Pool Telephone Operators at par with regular staff had also been asked for, this Court made the following order on 1.5. 1986: "The matter is adjourned to 28.7. 1986 to enable the newlyadded respondent No. 3 to file counter affidavit on or before 15.7. Rejoinder, if any, will be filed within one week thereafter. Meanwhile, the respondent will pay to the operators drawn from the Reserve Trained Pool of the Telephone Opera tors from Bombay and Delhi Telephones Rs.4.90 per hour provided that the total salary of the Telephone Operators from the Reserve Trained Pool shall not exceed the salary of regularly appointed Telephone Operators. " On 23.7. 1986, this Court in that Writ Petition further ordered: "The order passed by the Court on 1.5. 1986 shall be final. The wages shall be paid in accordance with the terms contained in that order. We, however, make it clear that if the Dearness Allowance and other allowances are varied hereafter the workers concerned shall get D.A. and other allowances accordingly subject to the limit that the total emoluments would not exceed the salary of regularly appointed Telephone Operators. If the peti tioners have any other grievance they are at liberty to agitate. This order will apply to all RTPA employees who 'are similarly situated. " It is the stand of the respondents that that order of this Court has been implemented with effect from 28.7. After that was done, the RTPTOs of Bombay and Delhi have in their respective Writ Petitions applied for further reliefs as already indicated. According to the petitioners in these two Writ Petitions, the RTPTOs are entitled to be brought on par with the regular staff for grant of other service bene fits as they have been performing the same duties as per formed by regular operators. The two petitions have been opposed by the relevant Ministry by filing counter affidavits where the stand taken is that RTPTOs are a special class by themselves with their own incidents of service and they cannot be treated at par with regular employees. The differences between the two services have been highlighted in the counter affidavits. 332 It is also the stand of the respondents that the order of this Court referred to above dated 28.7.1986 finally dis posed of the major claim raised in the two petitions of the employees of the two Telephone Nigams and fresh action was not appropriate. It is also pointed out that on 10th of February, 1986, there was an agreement of settlement and the present petition was an attempt to reopen the matter. On 31.1. 1989, when Writ Petition No. 1276 of 1986 came up for hearing before this Court, the following order was made: "Learned counsel for the petitioners concedes that the regularisation of 21,000 employees in the Department of Telecommunications has been effected but complains that no such proceeding has taken place in respect of the postal employees. He states that there is pressing need for a parity of service conditions in cluding pay, house rent allowance and other allowances between the temporary employees and the regular employees covered by this catego ry. The learned Additional Solicitor General of India assures us that the scheme will be finalised latest by first week of April, 1989 and that complete position will be placed before the Court at that stage . " The scheme known as Casual Labourers (Grant of Temporary Status in Regularisation) Scheme has been formulated and put into operation from 1.10. 1989 and a copy thereof has been placed for our consideration. We find that the scheme is comprehensive and apart from provision for conferment of temporary status, it also specifies the benefits available on conferment of such status. Counsel for the respondent Nigams have told us that the scheme will be given full effect and other benefits contemplated by the scheme shall be worked out. In these circumstances, no further specific direction is necessary in the two applications relating to the two Nigams of Bombay and Delhi except calling upon the respondents to implement every term of the scheme at an early date. The two remaining writ petitions relate to the Depart ment of Posts. Though an assurance had been held out by the learned Additional Solicitor General that a separate scheme for the postal employees would be prepared and placed before the Court within a time frame, that has not been done. At the hearing, a note containing tentative proposals and a statement as to what has been done by way of improving the conditions of service have, however, been placed before the Court. The statement relating to improvements brought about 333 indicates that after April, 1986, about seven thousand RTPs have been absorbed. Since the RTP category is no more ex panding, only about 2,900 of them remain to be absorbed. We have been told by learned counsel for the Department that equal number of justified and supernumerary posts are being created and the Ministry 's proposal is in the hands of the Ministry of Finance for approval and is expected to be finalised soon. This has to be done within a time frame. and we direct the posts of both the categories to be created by the end of January, 1990, and the process of absorption to be completed by 31.3. With such absorption made, the RTPs will become regular employees. All their claims would, thereafter, be regulated on the basis of entitlement in accordance with extant rules. So far as the claim of earned leave is concerned, we find that Telecommunications Regularisation Rules provide for leave entitlement on pro rate basis one day for every ten days of work. The same benefit would be admissible to the employees of the Department of Posts as we find no reason to adopt a different basis. In National Federation of P & T Employees & Anr. vs Union of India & Anr. , , this Court direct ed: "The Union of India and other respondents are directed to pay wages to the workmen who are employed as casual labourers belonging to the several categories of employees in the Posts and Telegraphs Department at the rates equiva lent to the minimum pay in the pay scales of the regularly employed workers in the corre sponding cadres but without any increments with effect from February 5, 1986 on which date the first of the above two petitions, namely, Writ Petition No. 302 of 1986 was filed. The petitioners are entitled to corre sponding dearness allowance and additional dearness allowance, if any, payable thereon. Whatever other benefits which are now being enjoyed by the casual labourers shall continue to be extended to them . " It has been stated that in compliance with that direc tion the Department has alredy formulated a scheme for absorption of casual labourers and about a thousand justi fied posts are being created with concurrence of the nodal Ministry. As per existing recruitment rules, extra depart mental agents are given preference in the matter of absorp tion as Group 'D ' postmen. Directions have already been issued for their absorption against the vacancies. It has been pointed out 334 again that casual labourers are being paid bonus while substitutes are not entitled under the existing scheme. The other note placed before us at the bearing indicates: 1. Justified (by necessity) posts in Groups 'C ' and 'D ' will be created in the administra tive and operative establishments as per the existing norms for creation of posts in con sultation with the Finance Ministry, 2. On creation of the posts, recruitment will be done following the existing recruitment rules giving preference to extra departmental agents over casual labourers; 3. If on the basis of established norms, casual labourers are in excess, their services shall be dispensed with in accordance with law; and 4. If any casual labourers cannot be re trenched straightaway, they shall be paid wages for three months at the existing rates. This tentative scheme does not take into account the several specific claims advanced by the petitioners in the two writ petitions. These are House Rent Allowance, City Compensatory Allowance, Bonus and Earned Leave. There are also demands for weekly off day, postal holiday and materni ty leave. Weekly off has now been given to RTPs, casual labourers and substitutes under order of this court and the claim does not survive for adjudication. All these three categories in these two writ petitions are also being given three national Holidays. For the remaining postal holidays, the claim has been pressed but we are of the view that until absorption, they may not be granted. It has been agreed before us that the claim of bonus may be left to arbitration or for being dealt with by the Consultative Council. As regards House Rent Allowances, City Compensatory Allowance and Maternity Leave, we see. no justification for treating the employees of the Postal Department differently from those covered under the Regularisation Rules in the Telecommunications Department. Temporary status would be available to the casual labourers in the Postal Department on completion of one year of continuous service with at least 240 days of work (206 days in the case of officers observing five days ' week) and on conferment of temporary status, House Rent Allowance and City Compensatory Allowance shall be 335 admissible. There would be no justification to withhold Maternity Leave as that is an obligation of the employer under the law and the State as an ideal employer fulfilling the Directive Principles of State Policy envisaged in Part IV of the Constitution should provide the same. After ren dering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Grade 'D ' employees of the Department of Posts and would thereby be entitled to such benefits as are admissible to Group 'D ' employees on regular basis. So far as the substitutes are concerned, it has been stated to us that orders have been issued for considering their claims against Group 'D ' vacancies and a copy of the Department 's letter has been produced. We hope and trust that the direction shall be implemented in its true spirit. The claim on behalf of substitutes ordinarily is not enter tainable but we have been told that there are substitutes who work for long periods continuously. We are inclined to agree with counsel for the petitioners that in such cases their claims should have been appropriately considered by the Department. The writ petitions are disposed of with the aforesaid directions without any order as to costs. R.N.J. Petitions dis posed of. [/INST]In these appeals on the question: whether section 15 (as amended) of the Rajasthan Imposition of Ceiling on Agricul tural Holdings Act, 1973 was violative of Article 14 of the Constitution of India. Dismissing the appeals, this Court, HELD: Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was a legislation which was made for the purpose of bringing about agrarian reforms. The provisions of the Act including section 15 (as amended) are protected by Article 31(A)(1)(a) of the Constitution. Therefore, the attack that section 15 of the Act was violative of Article 14 of the Constitution does not survive. The High Court was right in upholding the validity of section 15 of the Act. [247B; C D] Bansidhar vs State of Rajasthan, ; , followed. </s>
<s>[INST] Summarize the judgementAppeal No. 4851 (NT) of 1990. From the Judgment and Order dated 31.1.89 of the Madras High Court in Tax Case No. 900 of 1979, K.N. Shukla, R. Satish for Ms. A. Subhashini for the Appellant. T.A. Ramachandran and Mrs. Janaki Ramachandran for the Respondent. The Judgment of the Court was delivered by B.P. JEEVAN REDDY.J. This appeal is preferred by the assessee against the judgment of the Madras High Court answering the question referred to it under section 256 (1) of the Income tax Act in favour of the Revenue and against the assessee. The question stated, at the instance of the High Court reads: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the assessable capital gain would be only Rs. 1,81,671 computed in the manner set out in paragraph 14 of the order of the tribunal? The assessee is a registered firm. The assessment year concerned is 1973 74, the relevant previous year being the financial year 1972 73. During the said previous year, the assessee sold shares held by him in several companies. From the sale of 'shares in three companies, it secured a gross long term capital gain of Rs. 5,61,508. However, in the sale of shares in six other companies, it sustained a long term capital loss in a sum of Rs. 96,583. The assessee computed the capital gains on the aforesaid transaction of sale of shares in the following manner: Gross long term capital gains Rs. 5,61,508.00 LESS, Deduction under Rs. 5,000.00 Section 80 T (b) Rs. 5,65,508.00 LESS:Deduction under section 80 T (b) (ii) at 50% Rs. 2,78,254.00 449 LESS Loss on sale Rs. 2,76,254.00 of shares Rs. 96,583.00 Profits: Rs. 1,81,671.00 The Income tax Officer did not agree with said mode of computation. He set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions provided by section 80 T to the balance figure of Rs. 4,64,925. His computation was in the following terms: Gross long term capital gain Rs. 5.61,508 LESS: Long term capital loss of the same year Rs. 96,583 Balance of long term capital gains of the year Rs. 4,64,925 LESS: Deduction under section 80 T(b) (ii) at 50% Rs. 2,29,962 Capital gains included in the total income Rs. 2,29,963 Aggrieved by the order of assessment, the assessee preferred an appeal which was dismissed by the Appellate Assistant Commissioner. On further appeal, however, the Tribunal agreed with his mode of computation. Thereupon the Revenue asked for and obtained the said reference. The High Court answered the said question in the negative i.e., in favour of the Revenue, on the following reasoning: the income from capital gains constitutes a separate head of income under the Act. Capital gains are bifurcated into long term capital gains and shurt term capital gains. In this case the Court is concerned only with long term capital gains. Section 70 (2) (ii) prescribes the manner in which the loss from sale of longterm capital asset is to be set off. According to the said provision, the assessee " shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under the similar computation made for the assessment year in respect of any other capital asset not being a short term capital asset". Support for the said proposition was derived from the decision in Commissioner of Income Tax vs 450 Sigappi Achi, The correctness of the view taken by the High Court is questioned in this appeal. Shri T.A. Ramachandran, learned counsel for the appellant submitted that according to the provisions and scheme of the Act, capital gains have to be computed in respect of each asset separately. Section 80 T prescribes different percentages of deduction for different types of capital assets: If the capital asset sold consists of "buildings or land or any rights in buildings or lands", the deduction provided is 35% in addition to the standard deduction of Rs. 5,000 Whereas in the case of any other capital asset, the percentage of deduction provided is 50%, in addition to the standard deduction of Rs. 5,000/ . The deductions have to be worked out separately where the capital assets transferred during a previous year fall in both the categories. Even the proviso to section 80T shows that the gains arising from the transfer of these two types of capital assets must be treated as separate and distrinct. If the capital gains arising from the transfer of both the types of capital assets are clubbed together, it would not be possible to work out the provisions of section 80 T. The correct method, therefore, is to compute the capital gains with respect to each asset transferred separately, in accordance with section 80 T, before setting off the losses. We are afraid the arguments advanced by Mr. Ramachandran travel far beyond the controversy involved herein. This is not a case where the assets transferred by the assessee during the relevant previous year consisted both the types of capital assets. They were of only one type namely shares. From the sale of certain shares the assessee derived profit and from the sale of certain other shares, he suffered loss. The simple question is how to work out and apply the deductions provided by section 80 T in such a case. For answering this question, it is necessary to notice the provisions of section 80 T and section 70, as they stood during the relevant previous year. "80 T. Where the gross total income of an assessee not being a company includes any income chargeable under the head "Capital gains" relating to capital assets other than short term capital assets (such income being, hereinafter , referred to as long term capital gains), there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to, (a)in a case where the gross total income does not exceed ten thousand rupees or where the long term capital gains do not exceed five thousand rupees, the whole of such long term capital gains; 451 (b)in any other case, five thousand rupees as increased by a sum equal to, (i)(thirty five percent) of the amount by which the long term capital gains relating to capital assets, being buildings or lands, or any rights in buildings or lands, exceed five thousand rupees; (ii)(fifty per cent.) of the amount by which the long term capital gains relating to any other capital assets exceed five thousand rupees: Provided that in a case where the long term capital gains relate to buildings or lands, or any rights in buildings or lands, as well as to other assets, the sum referred to in sub clause (ii) of clause (b) shall be taken to be (A)where the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i) is less than five thousend rupees, (fifty percent.) of the amount by which the long term capital gains relating to any other capital assets exceed the difference between five thousand rupees and the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i); and (B)where the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i) is equal to or more than five thousand rupees, (fifty percent.) of the long term capital gains relating to any other capital assets. 70(1) Save as otherwise provided in this Act, where the net result for any assessment year in respect of any source falling under any head of income other than 'Capital gains ' is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head. (2)(i) Where the result of the computation made for any assessment year under sections 48 to 55 in respect of any short term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset. 452 (ii)Where the result of the computation made for any assessment year under sections 48 to 55 in respect of any capital asset other than a short term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset not being a short term capital asset. " The opening words of section 80 T are relevant. If the gross total income of an assessee (not being a company) "includes any income chargeable under the head "capital gains" relating to capital assets (referred to as long term capital gains) there shall be allowed in computing the total income of the assessee a deduction from such income of an amount equal to. . . . . In our Judgment delivered on April 13, 1993 in Civil Appeal No. 3044 of 1983 (Commissioner of Income Tax vs V Venkatachalam) we have held that the deductions provided by section 80 T have to be applied to the "capital gains" arising from sale of long term capital assets. In other words, the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year. The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered. This is precisely the opinion of the High Court, with which view we agree. It is not possible to treat the transfer of each asset separately and apply the deductions separately. If the argument of the learned counsel for the appellant is logically extended it would mean that even the deduction of Rs. 5,000 should be applied in each case separately. Learned counsel, however, did not take that stand. He agreed that the standard deduction of Rs. 5,000 must be applied to the totality of the capital gains. At the same time, he says, the deductions provided in clause (b) should be applied separately to each asset. We have not been able to appreciate the logic behind the contention of the learned counsel. This is not a case where the capital assets transferred consist of two types mentioned in sub clauses (i) and (ii) of clause (b) of section 80 T. They are only of one type namely those falling under sub clause (ii). We need not, therefore, deal with or answer the hypothetical contention raised by the learned counsel. Further as pointed out by the High Court the provision contained in clause (ii) of subsection (2) of section 70, as it stood at the relevant time, supports the conclusion arrived at by us. The learned counsel for the appellant relied upon the decision of this Court in Commissioner of Income Tar (Central), Madras vs Canara Workshops Private 453 Limited, That was a case arising under section 80 E of the Act, as it stood during the assessment years 1966 67 and 1967 68. On the language of section 80 E, it was held that in computing the profits for the purpose of deduction under the said section, each 'priority industry ' must be treated separately. We do not see how the principle of the said decision has any application to the facts of this case, which has to be decided on the language of a different provision namely section 80 T read with section 70 (2) (ii). For the above reasons, we agree with the opinion expressed by the High Court and dismiss this appeal. No order as to costs. N.V.K. Appeal dismissed. [/INST]The appellant assessee was a Registered Firm. The assessment year concerned was 1973 74. During the relevant previous year being the financial year 1972 73, the assessee sold shares it held in several companies; from the sale in three companies it secured a gross long terms capital gain of Rs.5,61,508 However, in the sale of shares in six other companies it sustained a long term capital loss in a sum of Rs. 96,583. The assessee computed the capital gains on these transactions of sale of shares less the deductions under Section 80 T(b) and Section 80T (b) (ii) (1) and showed a profit of Rs. 1,81,671.00 The Income Tax Officer did not agree with the mode of computation indicated by the asssessee; and set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions, provided by Section 80 T to the balance figure and ultimately computed the capital gains included in the total income at Rs. 2,29,963. The assessee aggrieved by the aforesaid assessment preferred an appeal which was dismissed by the Appellate Assistant Commissioner. In further appeal by the assessee the Tribunal agreed with the assessee 's computation. Revenue asked for and obtained a reference which the High Court answered in the negative i.e. in favour of the Revenue. The High Court held that the income from capital gains constituted a separate head of income under the Income Tax Act and that capital gains are bifurcated into long term capital gains and short term capital gains, and 446 447 relying on the decision in Commissioner of income Tax vs Sigappi Achi, held that in the instant case it was concerned only with long term capital gains, and that Section 70 (2) (ii) prescribes the manner in which the loss from sale of long term capital asset is to be set off. In the appeal to this Court it was submitted on behalf of the appellant assessee that according to the provisions and scheme of the Income Tax Act capital gains had to be computed in respect of each asset separately and that Section 80 T prescribes different percentages of deduction for different types of capital assets, and that the correct method, therefore, is to compute the capital gains with respect to each asset transferred saparately, in accordance with Section 80 T before setting off the losses. Dismissing the appeal, this Court, HELD: 1. This is not a case where the assets transferred by the assessee during the relevant previous year consisted of both the types of capital assets, mentioned in sub clauses (i) and (ii) of clause (b) of Section 80 T. They were of only one type namely those failing under sub clause (ii) viz. shares. From the sale of certain shares the assessee derived profit and from the sale of certain other shares, he suffered loss. (450 E) 2. The deductions provided by Section 80 T have to be applied to the " capital gains" arising from sale of long term capital assets. In other words, the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year. The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered. (452 D) 3. It is not possible to treat the transfer of each asset separately and apply the deductions separately. (452 E) Commissioner of Income Tax vs V Venkarachalam, Civil Appeal No. 3044 of 1993, dated April 13,1993, relied on. Commissioner of Income Tax (Central) Madras v, Canara Workshops Private Limited, , distinguished. </s>
<s>[INST] Summarize the judgementit Petition (Civil) No. 824 of 1988. (Under Article 32 of the Constitution of India) V.C. Mahajan, Gaurav Jain, and Ms. Abha Jain for the Petitioner. Anil Dev Singh, I. Makwana, Rathin Das, K.R. Nambiar, Ms. A. Subhashini, A.M. Khanvilkar, A.S. Bhasme, R.K. Mehta, V. Krishnamurthy, S.K. Agnihotri, A.V. Rangam, Mahabir Singh and P.K. Pillai for the Respondents. The Order of the Court was delivered by MISRA, J. This application under article 32 of the Consti tution is at the instance of an advocate by way of a public interest litigation asking for direction to the respondents for making provision of separate schools with vocational training facilities and separate hostels for children of prostitutes. Notice was issued not only to the original respondents but at the instance of the Court also to a11 the States and the Union Territories. Many of them have respond ed and affidavits have been filed by way of return to the rule nisi. Though Mr. Mahajan for the petitioner has pleaded that separate schools and hostels be raised for the children of the prostitutes, we are not inclined to accept the submis sion. Segregating prostitute children by locating separate schools and providing separate hostels, in our opinion, would not be in the interest of such children. It is said that prostitutes do not want to have children and ordinarily when children are born to them it is inspite of their desire not to rear children. But once such children are born to them, it is in the interest of such children and of society at large that the children of prostitutes should be segre gated from their mothers and be allowed to mingle with others and become part of the society. In fact, counsel appearing for several States have stated at the Bar the same way. We, therefore, reject the prayer for locating separate schools and hostels for children of the prostitutes. Children of prostitutes should, however, not be permit ted to live in inferno and the undesirable surroundings of prostitute homes. This 175 is particularly so for young girls whose body and mind are likely to be abused with growing age for being admitted into the profession of their mothers. While we do not accept the plea for separate hostels for prostitute children it is necessary that accommodation in hostels and other reformato ry homes should be adequately available to help segregation of these children from their mothers living in prostitute homes as soon as they are identified. Legislation has been brought to control prostitution. Prostitution has, however, been on the increase and what was once restricted to certain areas of human habitation has now spread into several localities. The problem has, therefore, become one of serious nature and requires considerable and effective attention. We are of the view that instead of disposing of this writ petition with a set of directions, a Committee should be constituted to examine the material aspects of the prob lem and submit a report containing recommendations to the Court on the basis of which further orders can be made. We accordingly direct that a Committee for such purpose shall be set up and it shall examine the matter from various angles of the problem taking into consideration the differ ent laws relevant to the matter and place its report before the Court within eight weeks from now. The Committee shall consist of: 1. Mr. V.C. Mahajan, Senior Advocate, New Delhi. Mr. R.K. Jain, Senior Advocate, New Delhi. Mr. M.N. Shroff, Advocate on Record, He shall act as the New Delhi. convenor. Mr. R.K. Mehta, Advocate on Record, New Delhi. Dr. Deepa Das, Women 's Studies & Development Centre, Chhatra Marg, University of Delhi, Delhi 110 007. 176 6. Sarla Mudgal, Kalyani, 5030, Kalidas Marg, Darya Ganj, New Delhi 110 002. Krishna Mukherji, All Bengal Women 's Union, Research & Development Committee, 89, Elliott Road, Calcutta 700 016. The Union of India in the Ministry of Welfare, Depart ment of Women & Child Development is directed to deposit in this Court a sum of Rs.20,000 for the present within two weeks to meet the expenses. The matter shall be listed on 16th January, 1990 (Tues day) for further orders after the report is received. [/INST]This writ petition has been filed pleading for separate schools and hostels for the children of prostitutes. On behalf of respondents, it was contended that since they are in fact unwanted children of prostitutes it is in the interest of such children and the society at large that they are segregated from their mothers and be allowed to mingle with others and become part of the society. Setting up a Committee consisting of 4 Advocates and 3 Social Workers to look into the matter and directing listing of the matter on receipt of the Committee 's report, this Court. HELD: 1. Children of prostitutes should not be permitted to live in inferno and the undesirable surroundings of prostitute homes. This is particularly so for young girls whose body and mind are likely to be abused with growing age for being admitted into the profession of their mothers. While separate schools and hostels for prostitute children are not desirable, accommodation in hostels and other refor matory homes should be adequately made available to help segregation of these children from their mothers living in prostitute homes as soon as they are identified. [174H; 175A B] 2. The Committee now set up will look into the problems and submit its report within 8 weeks. [175D] [This Court directed the Ministry of Welfare, Deptt. of Women & Child Development functioning under the Union of India to deposit a sum of Rs.20,000 within two weeks to meet the expenses of the Committee]. </s>
<s>[INST] Summarize the judgementAppeal 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. [/INST]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, </s>
<s>[INST] Summarize the judgementivil Appeal No. 65 of 1956. Appeal from the judgment and order dated August 31, 1954, of the Calcutta High Court in Income tax Ref. No. 57 of 1953. N. C. Chatterjee and B. P. Maheshwari, for the appellant. K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent. March 26. The Judgment of the Court was delivered by HIDAYATULLAH, J. Messrs. Howrah Trading Company, Ltd., Calcutta (hereinafter called the assessee) obtained on April 28, 1955, a certificate under section 66A(2) of the Indian Income tax Act from the Calcutta High Court, to appeal to this Court against the judgment dated August 31, 1954, in Income tax Reference No. 57 of 1953. The Divisional Bench (Chakravarti, C. J., and Lahiri, J.) in the judgment under appeal merely followed their earlier judgment delivered the same day in Income tax Reference No. 22 of 1953, since reported as Hindustan Investment Corporation vs Commissioner of Income tax (1). It is the latter judgment which gives the reasons for the decision. The facts of the case have been stated with sufficient fulness, yet briefly, in the statement of the case submitted by the Income tax Appellate Tribunal (Calcutta Bench) and may be conveniently set out in its own words: (1) 57 450 " The applicant had received sums of Rs. 3,831, Rs. 6,606, Rs. 7,954 and Rs. 8,304 in the four assessment years, 1944 45, 1945 46, 1946 47 and 1947 48 as income from dividends. The shares in respect of which this dividend income was received were the property of the Applicant but in the books of the various companies these stood in the names of other persons. It appears that these shares were purchased by the Applicant from other persons under a blank transfer but the transfers had not been registered with the various companies. The Applicant 's claim in these income tax proceedings was that these shares although not registered in the name of the applicant were the property of the applicant. It was further claimed that this dividend income should be grossed up under section 16(2) and credit for the tax deducted should be allowed to the Applicant under section 18(5). " The Income tax Officer did not accept this claim, and the appeals of the assessee were rejected by the Appellate Assistant Commissioner of Income tax, Calcutta, " A " Range and by the Appellate Tribunal. The Tribunal, however, on being moved, referred the following question to the High Court: " Whether in the facts and circumstances of this case, the Applicant (the assessee) was entitled to have this dividend income grossed up under section 16(2) and claim credit for tax deducted at source under section 18(5) of the Income tax Act? " The High Court answered the question in the negative, thus affirming the decisions of the Department and the Appellate Tribunal. The assessee contends that the decision of the High Court is erroneous, and that it is entitled to have the dividend income I grossed up ' under section 16(2) and also to claim credit for tax deducted at source, under s.18(5) of the Income tax Act. The relevant sections are as follows: " 16(2) : For the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been 451 paid, credited or distributed to him, and shall be increased to such amount as would, if income tax (but not super tax) at the rate applicable to the total income of the company without taking into account any rebate allowed or additional income tax charged for the financial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed, were deducted therefrom, be equal to the amount of the dividend: (proviso omitted). 18 (5): Any deduction made and paid to the account of the Central Government in accordance with the provisions of this section and any sum by which a dividend has been increased under sub section (2) of section 16 shall be treated as a payment of incometax or super tax on behalf. . of the shareholder and credit shall be given to him therefor on the production of the certificate furnished under. .section 20 . in the assessment, if any, made for the following year under this Act: (proviso omitted). 49B(1): Where any dividend has been paid, credited or distributed or is deemed to have been paid, credited or distributed to any of the persons specified in section 3 who is a shareholder of a company which is assessed to income tax in the taxable territories or elsewhere, such person shall, if the dividend is included in his total income, be deemed in respect of such dividend himself to have paid income tax (exclusive of super tax) of an amount equal to the sum by which the dividend has been increased under sub section (2) of section 16. " It was contended in the High Court that inasmuch as section 16(2) referred to an I assessee, the assessee company was entitled to have the dividend 'grossed up ' by the addition of income tax paid by the various companies at source and consequently to have the benefit of the credit allowed under the two remaining sections. In the opinion of the High Court, an assessee whose name was not in the register of members of the companies was not entitled to the benefit of these provisions. The learned Judges of the High Court were of the opinion that the word " shareholder " in 452 s.18(5) had the same signification as the word " member " used in the Indian Companies Act; and that the assessee was not qualified to be considered as a shareholder, even though by a blank transfer it had ,purchased the relevant shares. In our opinion, the High Court was right in its conclusion. A company when it pays income tax, does not do so on behalf of the shareholders. It is itself chargeable under the Act, In Cull vs Inland Revenue Commissioners (1), Lord Atkin stated the law (which in substance is also the law in our country) thus: My Lords, it is now clearly established that in the case of a limited company the company itself is chargeable to tax on its profits, and that it pays tax in discharge of its own liability and not as agent for its shareholders. . At one time it was thought that the company, in paying tax, paid on behalf of the shareholder; but this theory is now exploded by decisions in this House, and the position of the shareholders as to tax is as I have stated it. " When the company pays its own income tax and declares a dividend from the balance of its profits, it deducts from such dividend a proportionate part of the amount of the tax paid by it. This principle is explained in another English case, and it is substantially also the law in this country. In Inland Revenue Commissioners vs Blott (2), Viscount Cave stated the law in these words: " Plainly, a company paying income tax on its profits does not pay it as agent for its shareholders. It pays as a tax payer, and if no dividend is declared, the shareholders have no direct concern in the payment. If a dividend is declared, the company is entitled to deduct from such dividend a proportionate part of the amount of the tax previously paid by the company; and, in that case, the payment by the company operates in relief of the shareholder. But no agency, properly so called, is involved. " The share holders, however, get the benefit of the payment of the tax by the company. Though under (1) , 56 ; , 636. (2) , 201. 453 s.16(2) of the Act their dividend is increased by a proportionate amount of tax paid by the company, the payment of the tax by the company is deemed tinder sections 18(5) and 49B(1) to be payment by the shareholders. The rates of income tax applicable to the company are, in most instances, higher than the rates applicable to the individual shareholders, and by this process of 'grossing up ', as it is commonly called, the recipient of the dividend gets some benefit. The position of a shareholder who gets dividend when his name stands in the register of members of the company causes no difficulty whatever. But transfers of shares are common, and they take place either by a fully executed document such as was contemplated by Regulation 18 of Table A of the Indian Companies Act 1913, or by what are known as blank transfers '. In such blank transfers, the name of the transferor is entered, and the transfer deed signed by the transferor is handed over with the share scrip to the trans feree, who, if he so chooses, completes the transfer by entering his name and then applying to the company to register his name in place of the previous holder of the share. The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable. Of course, between the transferor and the transferee, certain equities arise even on the execution and handing over of 'a blank transfer ', and among these equities is the right of the transferee to claim the dividend declared and paid to the transferor who is treated as a trustee on behalf of the transferee. These equities, however, do not touch the company, and no claim by the transferee whose name is not in the register of members can be made against the company, if the tranferor retains the money in his own hands and fails to pay it to him. A glance at the scheme of the Indian Companies Act, 1913, shows that the words " member ", " shareholder " and " holder of a share " have been used interchangeably in that Act. Indeed, the opinion of most of the writers on the subject is also the same. 454 Buckley on the Companies Act, 12th Edition, page 803 has pointed out that the right of a transferee is only to call upon the company to register his name and no more. No rights arise till such registration ,takes place. Section 2(16) of the Indian Companies Act, 1913, defines " share " as " share in the share capital of the company Section 5 deals with the mode of forming incorporated companies, and in the case of companies limited by shares, the liability of the members is limited to the amounts, if any, unpaid on the shares respectively held by them. By section 18, Table A is made applicable to companies, unless by the Articles of any company the terms of Table A have been excluded or modified. Regulation 18 of Table A reads as follows: " The instrument of transfer of any share in the company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain holder of the share until the name of the transferee is entered in the register of members in respect thereof. " The words " holder of a share " are really equal to the word shareholder and the expression " holder of a share denotes, in so far as the company is concerned, only a person who, as a shareholder, has his name entered on the register of members. A similar view of the Companies Clauses Consolidation Act, 1845, was taken in Nanney vs Morgan(1). The learned Lord Justices held that under section 15 of that Act, the transferee bad not the benefit of a legal title till certain things were done, which were indicated by Lopes, L.J., in the following passage: " Therefore the transferor, until the delivery of the deed of transfer to the secretary, is subject to all the liabilities and entitled to all the rights which belong to a shareholder or stockholder, and, in my opinion until the requisite formalities are complied with, he continues the legal proprietor of the stock or shares subject to that proprietorship being divested, which it may be at any moment, by a compliance with the requisite formalities. (1) , 356. 455 The same position obtains in India, though the completion of the transaction by having the name entered in the register of members relates it back to the time when the transfer was first made. See Nagabushanam vs Ramachandra Rao (1). During the period that the transfer exists between the transferor and the transferee without emerging as a binding document upon the company, equities exist between them, but not between the transferee and the company. The transferee can call upon the transferor to attend the meeting, vote according to his directions, sign documents in relation to the issuance of fresh capital, call for emergent meetings and inter alia, also compel the transferor to pay such dividend as he may have received. See E. D. Sassoon & Co. Ltd. vs Patch (2) approved in Mathalone vs Bombay Life Assurance Co. Ltd. (3 ). But these rights though they, no doubt, clothe the transferee with an equitable ownership , are not sufficient to make the transferee a full owner, since the legal interest vis a vis the company still outstands in the transferor; so much so, that the company credits the dividends only to the transferor and also calls upon him to make payment of any unpaid capital, which may be needed. The cases in Black vs Homersham (4) or Wimbush, In re Richards vs Wimbush (5) hardly advance the matter further than this. The position, therefore, under the Indian Com panies Act, 1913, is quite clear that the expression " shareholder " or " holder of a share " in so far as that Act is concerned, denotes no other person except a " member ". The question that arises in the present case is whether by reason of sections 16(2) and 18(5) the assessee, who was a transferee on a blank transfer ' is entitled to the benefits of the grossing up of the dividend income. Learned counsel for the assessee strenuously contends that the assessee being an owner in equity of the shares and thus also of the dividend is entitled to this benefit. He refers to the use of the word I assessee in section 16(2). The Department, on the (1) Mad. 537. (3) ; (2) (4) (1878 79) L. R. (5) 456 other hand, says that the dividend can be increased under section 16(2) and credit allowed under section 18(5) if the assessee is a 'shareholder ', because the benefit of section 18(5) can go only to the shareholder, i. e., a person with his name on the register of members, and not to a person holding an equity against such shareholder. The assessee contends that the word " shareholder " includes even a person who holds a share as a result of a blank transfer, and does not necessarily mean a member of the company, whose name is on the register of members. Authorities on this point are not wanting, and indeed, in the judgment of the Calcutta High Court they have all been referred to. They are all against the assessee. See Shree Shakti Mills Ltd. vs Commissioner of Income tax (1), Jaluram Bhikulal vs Commissioner of Income tax (2), Arvind N. Mafatlal vs Incometax Officer (3) and Bikaner Trading Co. vs Commissioner of Income tax (4). The question that falls for consideration is whether the meaning given to the expression "shareholder" used in section 18(5) of the Act by these cases is correct. No valid reason exists why " shareholder " as used in section 18(5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913. In In re Wala Wynaad Indian Gold Mining Company (5), Chitty, J., observed: " I use now myself the term which is common in the Courts, I a shareholder ', that means the holder of the shares. It is the common term used, and only means the person who holds the shares by having his name on the register. " Learned counsel for the assessee cited a number of authorities in which the ownership of the dividend was in question, and it was held that the transferee whose name was not registered, was entitled to the dividend after transfer had been made. These cases are Commissioners of Inland Revenue vs Sir John Oakley (6), Spence vs Commissioners of Inland Revenue (7) (1) (3) (5) , 854. (2) (4) (6) , (7) 457 and others cited at page 367 in Multipar Syndicate, Ltd. vs Devitt (1). No one can doubt the correctness of the proposition in these cases, but from an equitable right to compel the transferor to give up the dividend to the transferee, to a claim to the dividend by him as a " shareholder " against the company is a wide jump. In so far as the company is concerned, it does not even issue the certificate under section 20 of the Income tax Act in the name of an unregistered transferee but only in the name of the transferor whom it recognises, because his name is borne on its books. Section 20 lays down: " The principal officer of every company shall, at the time of distribution of dividends, furnish to every person receiving a dividend a certificate to the effect that the company has paid or will pay income tax on the profits which are being distributed, and specifying such other particulars as may be prescribed. " The meaning of section 20 as also of section 18(5) is clear if they are read with section 19A, under which information regarding dividends has to be supplied by the company when demanded by the Income tax Officer. It lays down: " The principal officer of every company . shall, on or before the 15th day of June in each year, furnish to the prescribed officer a return in the prescribed form and verified in the prescribed manner of the names and of the addresses, as entered in the register of shareholders maintained by the company, of the shareholders to whom a dividend or aggregate dividends exceeding Such amount as may be prescribed in this behalf has or have been, distributed during the, preceding year and of the amount so distributed to each such shareholder. " (Italics supplied). Section 19A makes it clear, if any doubt existed, that by the term " shareholder " is meant the person whose name and address are entered in the register of " shareholders " maintained by the company. There is but one register maintained by the Company. There (1) 58 458 is no separate register of " shareholders " such as the assessee claims to be but only a register of " members ". This takes us immediately to the register of members, and demonstrates that even for the purpose of the Indian Income tax Act, the words ',member and " shareholder " can be read as synonymous. The words of section 18(5) must accordingly be read in the light in which the word " shareholder " has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a "shareholder" for the purpose of section 18(5) of the Act. That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company. In view of this, we are satisfied that the answer given by the Calcutta High Court on the question posed by the Tribunal was correct. The appeal fails, and is dismissed with costs. Appeal dismissed. [/INST]The respondent in C.A. No.182 of 1993 joined service as Section Officer under the appellant on 83.1971. On 29.12.1976 he was promoted to the post of Sub Divisional Engineer and was confirmed on 13.8.1985. With effect from 21.1.1986, the. respondent was promoted as Executive Engineer (Civil). The service particulars of the respondent in C.A. No.183 of 1993 were identical. The respondents approached the Central Administrative Tribunal to determine their seniority in the cadre of Executive Engineers from the date of eligibility, ie. 1.1.1985 and not from 21.1.1986. The Tribunal allowed the applications of the respondents, against which the present appeals were riled by the Administration. Allowing the appeals, this Court, HELD:1.01. The selection to the post of Executive Engineer was to be done by following the procedure laid down under Rule 8 of the Punjab Service of Engineers, Class I (Buildings and Roads Branch) Rules 1960. Eligibility under Rule 6(b) of the Rules by itself does not give a right to a member of Class 11 service to be promoted to the post of Executive Engineer in Class I service. The promotion has to be made in accordance with the procedure laid down under Rule 8 of the Rules. No member of Class 11 service can claim 122 promotion to the post of Executive Engineer on the ground of eligibility alone. Unless a Class II officer has been selected in accordance with Rule 8 of the Rules he cannot be promoted to the post of Executive Engineer. [125C E] 1.02. The question of assigning seniority in Class I service only arises after a Class 11 officer has been selected and appointed to the said service. The seniority in class I is determined under Rule 12 of the Rules, keeping in view the date of appointment as a result of selection under Rule 8 of the Rules. [125F] 1.03. The respondents in these appeals were appointed to the post of Executive Engineer, as a result of selection held under Rule 8 of the Rules, with effect from January 21, 1986. Their seniority has to be determined in Class I service keeping in view the date of their appointments as January 21, 1986. [125F G] 1.04 The Tribunal grossly erred in directing the Chandigarh Administration to give seniority to the Respondents from the date of their eligibility. The respondents can neither be given the date of appointment as January 1, 1985 nor their seniority fixed from that date. The directions of the Tribunal in this respect are patently violative of the Rules. [125G H] </s>
<s>[INST] Summarize the judgementkes it clear that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and not by the Mithila School. Further, the material on record is not sufficient to lead to the conclusion that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. Throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. In fact Raja Dhrub Singh as found by the High Court, had not appointed his daughter as a putrika to beget a putrika putra for him. It follows that the appellants who claim the estate on the above basis cannot succeed. [62F G, 63F] The applicability of the above rule to Nambuderies of Kerala is however not decided. [62G H] 4 & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 114 119 of 1976. From the Judgment and Decree dated 15 12 1972 of the Patna High Court in F.A. Nos. 130, 85, 86, 87, 131, and 134 of 1966. D. V. Patel, section section Johar and section N. Mishra for the Appellants in CA Nos. 114 119 of 1976. V. M. Tarkunde, U. R. Lalit, K. K. Jain, D. Goburdhan and P. P. Singh for Respondents 5 22 in CA Nos. 114 115/76. L. M. Singhvi (Dr.), U. P. Singh and section section Jha for the Respondents in CA 114 119/76. The Judgment of the Court was delivered by VENKATARAMIAH, J. The above six appeals by certificate and Civil Appeals Nos. 494 496 of 1975 arise out of a common judgment dated December 15, 1972 of the High Court of Judicature at Patna passed in First Appeals Nos. 85 to 87, 130, 131 and 134 of 1966. After the above six appeals and Civil Appeals Nos. 494 496 of 1975 were heard together for sometime, we found that the above six appeals i.e. Civil Appeals Nos. 114 119 of 1976 could be disposed of by a separate judgment. We, therefore, proceeded with the consent of the learned counsel for the parties to hear fully Civil Appeals Nos. 114 119 of 1976. By this common judgment, we propose to dispose of the above six appeals. The further hearing of Civil Appeals Nos. 494 496 of 1975 is deferred. The question which arises for our consideration in the above Civil Appeals Nos. 114 119 of 1976 is whether the appellants and others either claiming under the appellants or alongwith them are entitled to an estate popularly known as 'Bettiah Raj ' which was under the management of the Court of Wards, Bihar. The last male holder of the said estate, Maharaja Harendra Kishore Singh Bahadur died issueless on March 26, 1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer. Maharani Sheo Ratna Kuer who succeeded to the estate of Maharaja Harendra Kishore Singh on his death as his senior widow died on March 24, 1896 and on her death Maharani Janki Kuer became entitled to the possession of the estate. Since it was found that Maharani Janki Kuer was not able to administer the estate, its management was taken over by the Court of Wards, Bihar in the year 1897. Maharani Janki Kuer who was a limited holder of the estate died on November 27, 1954. On her death, disputes arose amongst several persons who were parties to the suits 5 out of which the above appeals arise regarding the title to the 'Bettiah Raj ' estate. The State of Bihar, however, claimed that none of the claimants was the heir of the last male holder and that since there was no heir at law as such at the time when the limited estate of Maharani Janki Kuer came to an end on her death, the entire estate alongwith the net income which the Court of Wards had realized from it became the property of the State of Bihar by virtue of the rule of escheat. We shall refer to the respective submissions of the parties at a later stage. It is not disputed that Raja Ugra Sen, the founder of the 'Bettiah Raj ' was governed by the Benares School of Mitakshara law as his family had migrated from the South Western part of the present State of Uttar Pradesh to the State of Bihar although in the course of the pleadings, there is a suggestion that the family was also being governed by the Mithila School of Mitakshara which was in force in the State of Bihar. The question for decision in the instant case may no doubt ultimately appear to be a simple one but in order to determine the said question, it is necessary to relate the facts which spread over nearly three centuries and refer to a number of Smritis, commentaries and decisions. The major part of the estate of 'Bettiah Raj ' is situated in Champaran District of the State of Bihar. Some of its properties are situated in the State of Uttar Pradesh also. The principality known as 'Bettiah Raj ' was established by Raja Ugrasen in or about the middle of the 17th century. It was then known as Reasut of Sirkar Champaran consisting of four pergunnahs known as Majhwa, Simrown, Babra and Maihsi. It was an impartible estate. Raja Ugrasen was succeeded by his son, Raja Guz Singh in the year 1659. Raja Dalip Singh, son of Raja Guz Singh came to the gaddi in the year 1694 and he was succeeded by his son, Raja Dhrub Singh in the year 1715. Raja Dhrub Singh died in 1762 without a male issue but leaving a daughter by name Benga Babui, who had married one Raghunath Singh, a Bhumihar Brahmin of Gautam gotra. It is said that he had another daughter also, but it is not necessary to investigate into that fact in these cases. On the death of Raja Dhrub Singh who was a Jethoria Brahmin of the Kashyap gotra, his daughter 's son (Benga Babui 's son), Raja Jugal Kishore Singh entered into possession of the estate of 'Bettiah Raj ' and was in possession thereof at the date when the East India Company assumed the Government of the province. On the assumption of the Government of Bengal by the East India Company, Raja Jugal Kishore Singh offered some resistance to their 6 authority and the Company 's troops were despatched to enforce his submission. Raja Jugal Kishore Singh fled into the neighbouring State of Bundelkhand and his estates were seized and placed under the management of the Company 's officers. During the absence of Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who were respectively sons of Prithi Singh and Satrajit Singh, younger brothers of Raja Dalip Singh, found favour with the East India Company. After some negotiations, the Government decided to allot the zamindari of Majhwa and Simrown pergunnahs which formed part of 'Bettiah Raj ' estate to Raja Jugal Kishore Singh and to leave Babra and Maihsi in possession of Srikishen and Abdhoot Singh. On his return, Raja Jugal Kishore Singh accepted the decision of the East India Company which was formally announced on July 24, 1771 in the following terms: "The Committee of Revenue having approved of the reinstatement of Raja Jugal Kishore, we have now granted to him the zamindari of Majhwa and Simrown pergunnahs, and have settled his revenue as follows. " Accordingly, Raja Jugal Kishore Singh executed a kabulyat in accordance with the terms imposed by the Government under the grant and got into possession of pergunnahs Majhwa and Simrown. He was again dispossessed in the following year as he failed to pay the Government revenue. Srikishen and Abdhoot refused to execute a kabulyat for the two other pergunnahs alone and they were also dispossessed. The entire Sirkar thus passed into the possession of the Government and was held by farmers of revenue on temporary settlements until the year 1791. Raja Jugal Kishore Singh received an allowance for main tenance from the Government and died in or about the year 1783 leaving a son, Bir Kishore Singh. Thereafter on October 10, 1789, Mr. Montgomerie, the then Collector, initiated fresh proceedings regarding the settlement of Sirkar Champarun, the estate in question, and on September 22, 1790, the Governor General in Council (Lord Cornwallis) addressed the following letter to the Board of Revenue: "It appearing from our proceedings that the late Raja Jugal Kishore was driven out of the country for acts of rebellion, and upon his being allowed to return into the company 's dominions, that the late President and Council thought proper to divide the zamindari of Champarun, allotting to Jugal Kishore the districts of Majhwa and Simrown, and to Srikishen Singh and Abdhoot Singh those of Maihsi and Babra, we direct that the heirs of the late Raja Jugal Kishore and Srikishen Singh and Abdhoot Singh be respectively restored to the possession and management of the 7 above districts (with the exception of such parts thereof as may belong to other zamindars or taluqdars, being the proprietors of the soil, who are to pay their revenues immediately to the Collector of the district), and that the decennial settlement be concluded with them agreeably to the General Regulations. " All the parties were dissatisfied with the above decision. Bir Kishore Singh who claimed to be entitled to the entire Sirkar Champarun, however, in obedience to the orders of the Governor General took possession of the two pergunnahs Majhwa and Simrown allotted to him and gave in his agreements for the settlement of them and at the same time prayed that he might be put into possession of the other two pergunnahs also. Srikishen and Abdhoot also claimed the entire estate on the ground that Raja Jugal Kishore Singh was not a member of the family and had no title to the estate as "by the Hindu Shastra the female branch is not entitled to a share of the estate, much less the whole. " They accordingly at first refused to give in their kabulyats for the pergunnahs Maihsi and Babra; but on Mr. Montgomerie 's advice they ultimately did so under protest and were placed in possession of those two pergunnahs. Separate dowl settlements of Government revenue on the mahals in pergunnahs Majhwa and Simrown and on those in pergunnahs Maihsi and Babra were made with and accepted by Bir Kishore Singh and by Srikishen and Abdhut respectively. The Sirkar Champarun was thus divided de facto into distinct zamindaris to be held by the grantees at revenues allotted to each of them separately. Then started the first phase of judicial proceedings which even now continue to be devil the estate which Raja Bir Kishore Singh acquired pursuant to the orders of Governor General in Council. On the 6th day of May, 1808, Ganga Prasad Singh, the eldest son of Raja Srikishen Singh, who had died by then, instituted a suit in the Zila Court of Saran claiming upon a plea of title by inheritance to recover from Raja Bir Kishore Singh possession of pergunnahs Majhwa and Simrown and certain salt mahals all of which were formerly part of Sirkar Champarun on the following allegations; that in the year 1762 upon due consideration of right to succession as established in the family, Raja Dhrub Singh had made over while he was still alive the rajgy of the Sirkar of Champarun to his father, Raja Srikishen Singh, son of Prithi Singh and at the same time executed in his favour a deed of conveyance of the rajgy and the milkeut of the estate comprising the whole of the Sirkar aforesaid and gave him entry into the zamindari. He further alleged that when in the year 1763 the British Government was established, the lands comprised in the said Sirkar were attached but that Raja Srikishen Singh continued to receive the malikana and other rights annexed to 8 the zamindari upto 1770 and that in the following year, the settlement of the whole Sirkar was made with him and from the year 1772 to 1790 although the business of the Sirkar was conducted by the Amins and Mootahdars appointed for the purpose and Commissioner appointed temporarily for the collection of the revenue and at other times, his father, Raja Srikishen received the malikana. He then proceeded to state the manner in which, upon the formation of the decennial settlement in 1790, Raja Srikishen was deprived of the possession of the pergunnahs which he claimed to recover and alleged certain fraudulent practices whereby possession had been obtained by Raja Bir Kishore Singh. The suit was transferred from the Zillah Court of Saran to the Provincial Court of Patna. The suit was contested by Raja Bir Kishore Singh. In the course of the written statement, his counsel inter alia pleaded: "The whole of the above statement of plaintiff is both false and fraudulent for the real fact is that the Majhwa, Simrown, Maihsi and Babra pergunnahs forming the Champarun Sirkar were the rajgy, the zamindary, and the milkeut of Raja Dhrub Singh, an ancestor of my client and the said Raja held the sole possession of them without foreign interference or participation. It is necessary to state that he had no son born to him; but Raja Jugal Kishore Singh, the father of my client was his grandson and the issue of a daughter he had by his senior Rani, Raja Dhrub Singh aforesaid having adopted Raja Jugal Kishore Singh, the father of my client, at the time of his birth, conducted the ceremonies of his adoption and marriage in the usual manner, and having after wards given him the tilak he established him upon the rajgy of the whole of the Champarun Sirkar". The Provincial Court dismissed the suit by its judgment dated December 29, 1812 solely on the ground of limitation whereupon Raja Dindayal Singh (the legal representative of the original plaintiff, Raja Ganga Prasad Singh, who died in the meanwhile) filed an appeal before the Sadar Diwani Adalat during the pendency of which Raja Bir Kishore Singh died (in 1816) and was succeeded by his elder son, Raja Anand Kishore Singh. The appeal was dismissed on July 9, 1817. In its elaborate judgment, the Sadar Diwani Adalat rejected the case of the plaintiff in that suit relating to the conveyance of the rajgy by Raja Dhrub Singh in favour of Raja Srikishen Singh holding that the document relied upon was a forgery. The above decision of the Sadar Diwani Adalat was affirmed by the Judicial Committee of the Privy Council in Rajah Dundial Singh & Ors. vs Rajah Anand 9 Kishore Singh(1) by its judgment dated December 5 and 7, 1837. The Judicial Committee affirmed the judgment of the courts below on the sole ground of limitation. Raja Anand Kishore Singh continued on the Gaddi and in 1837, the hereditary title of Maharaja Bahadur was conferred upon him. Upon his death in 1838, without any issue, he was succeeded by his younger brother, Maharaja Bahadur Nawal Kishore Singh. Maharaja Bahadur Nawal Kishore Singh had two sons, Rajendra Kishore Singh and Mahendra Kishore Singh and upon his death in the year 1855, Maharaja Bahadur Rajendra Kishore Singh succeeded to the estate. Maharaja Bahadur Rajendra Kishore Singh died in 1883 and his brother Mahendra Kishore Singh having pre deceased him, he was succeeded by Maharaja Bahadur Harendra Kishore Singh who as stated earlier was the last male holder of the estate and died issueless on March 26, 1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer. So great was the esteem in which Maharaja Harendra Kishore Singh was held by the Government that the Lt. Governor of Bengal came to Bettiah personally to offer his condolence. The occasion was used by Raja Deoki Nandan Singh (one of the great grandsons of Raja Srikishen Singh) to put forward his claim to the Bettiah Raj. On April 11, 1893, he presented a memorial to the Lt. Governor claiming that the late Maharaja was his "Gotra Sapinda". In the memorial, he stated thus: "Raja Dhrub Singh had no issue. Therefore, according to the provisions of the Hindu Law he converted his daughter 's son Jugal Kishore Singh who belonged to the Gautam Gotra to Kashyap Gotra and then adopting him as his son appointed him to be his successor. The Maharaja Bahadur was in the 5th lineal descent from Jugal Kishore Singh, the petitioner is in the 4th lineal descent from Raja Srikishen Singh. That under the provisions of Kulachar law Your Honour 's humble petitioner is the legal heir and successor of the deceased Maharaja and. fully capable of managing the Raj." A reading of the above extract of the memorial shows that the case put forward by Raja Deoki Nandan Singh was directly contrary to the case put forward by his predecessor in the suit of 1808. Whereas in the earlier suit, his predecessor had pleaded that Raja Jugal Kishore Singh was the daughter 's son of Raja Dhrub Singh and was not, therefore a member of the family of Raja Dhrub Singh, Raja Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh having been adopted by 10 Raja Dhrub Singh was a member of the family of Raja Dhrub Singh. In the above said memorial, it was pleaded by the successor of the plaintiff in the suit of 1808 that Raja Jugal Kishore Singh who belonged to Gautam Gotra had been adopted by Raja Dhrub Singh who belonged to Kashyap Gotra and had been appointed by him as his successor. On the death of Maharaja Harendra Kishore Singh, the estate came into the possession of his senior widow, Maharani Sheo Ratna Kuer. Within about two years from the date of the death of Maharaja Harendra Kishore Singh, a suit was instituted in Title Suit No. 139 of 1895 on the file of the Subordinate Judge of Tirhoot by Ram Nandan Singh, fifth in descent from Raja Ganga Prasad Singh (who was the plaintiff in the suit of 1808) against Maharani Sheo Ratna Kuer claiming the estate of Raja Harendra Kishore Singh. The main pleas raised by him in the suit were that the succession to the Bettiah Raj was governed by the custom of male linear primogeniture; that females were excluded from succeeding to the Raj; that Raja Jugal Kishore Singh had been adopted by Raja Dhrub Singh as his son and that he being an agnate was entitled to the possession of the estate of Maharaja Harendra Kishore Singh. Another suit viz. Title Suit No. 108 of 1896 was filed by Girja Nandan Singh whose father Deo Nandan Singh had submitted the memorial to the Lt. Governor of Bengal on April 11, 1893. This Girja Nandan Singh was fourth in descent from Doostdaman Singh, a younger brother of Raja Ganga Prasad Singh and while supporting the stand of the plaintiff, Ram Nandan Singh in the Title Suit No. 139 of 1895 on the point of Raja Jugal Kishore 's adoption by Raja Dhrub Singh and exclusion of females from succession to the Raj, he pleaded that he was entitled to succeed to the Raj by the rule of propinquity, as all the branches of the family were joint in status, there being no custom of male linear primogeniture as put forward in the suit of Ram Nandan Singh i.e. in the Title Suit No. 139 of 1895. Both the suits were contested by Maharani Sheo Ratna Kuer. During the pendency of the two suits, she died and Maharani Janki Kuer, the second widow of Maharaja Harendra Kishore Singh was brought on record as the defendant in both the suits. Title Suit No. 139 of 1895 was decreed by the trial Court but on appeal by Maharani Janki Kuer, the said decree was set aside and the suit was dismissed by the High Court of Judicature at Fort William in Bengal by its judgment dated April 14, 1889. Against the decree of the High Court, Ram Nandan Singh filed an appeal before the Privy Council. The Privy Council affirmed the decree of the High Court in Ram Nandan Singh vs Janki Kuer(1) The Privy 11 Council held that the two pergunnahs Majhwa and Simrown which were granted pursuant to the orders of Lord Cornwallis to Raja Bir Kishore Singh became the separate property of Raja Bir Kishore Singh free from any coparcenery right of succession of the branches of the family then represented by Srikishen and Abdhoot. They held that from the letter of Lord Cornwalis dated September 22, 1790 extracted above, it was clear that Raja Jugal Kishore Singh had been driven out from the country for the acts of rebellion and that the Government was at liberty to divide the Sirkar into two portions and to grant one portion to Raja Bir Kishore Singh and another portion to Srikishen and Abdhoot in direct exercise of sovereign authority. It further held that the grants so made by the Government proceeded from grace and favour alone. It was further held that the estate which was granted in favour of Raja Bir Kishore Singh became his separate and self acquired property though with all the incidents of the family tenure of the old estate as an impartible Raj Consequently, the plaintiff was not entitled to claim it on the basis of the custom of male linear primogeniture. The Privy Council also held that there was no inconsistency between a custom of impartibility and the rights of females to inherit and therefore, Maharani Sheo Ratna Kuer and after her Maharani Janki Kuer could succeed to the estate of their husband, Maharaja Harendra Kishore Singh and remain in possession thereof. The Privy Council, however, declined to decide the question whether Raja Jugal Kishore Singh had been adopted by his maternal grandfather, Raja Dhrub Singh or became his son and a member of his family by some customary mode of affiliation i.e. as Putrika Putra and left the question open in the following terms: "There remains only the issue whether Raja Jugal Kishore was adopted by his maternal grandfather Raja Dhrub Singh, or became his son and a member of his family by some customary mode of affiliation. The determination of this issue against the appellant would be fatal to his case, because in that case he would not be able to prove that he was of the same family as the late Sir Harendra. The learned judges have not found it necessary for the decision of the present case to decide this issue, and their Lordships agree with them in thinking that it is the better course not to do so, because the same issue may hereafter arise for decision between different parties. " The other suit i.e. Title Suit No. 108 of 1896 which was filed by Girja Nandan Singh was dismissed by the trial court and the appeal filed by him before the High Court of Judicature at Fort William in Bengal (Calcutta) was also dismissed on April 14, 1889, the same day on which the High Court had disposed of the appeal in the other suit. 12 A few years later, one Bishun Prakash Narain Singh, fifth in descent from Abdhoot Singh also filed a suit in Title Suit No. 34 of 1905 in the court of the Subordinate Judge of Chapra, claiming title to the estate of Maharaja Harendra Kishore Singh on the footing that his branch of the family was joint in status with Maharaja Harendra Kishore Singh and so he was entitled to succeed to him under the rules of survivorship. That suit failed in all the courts including the Privy Council whose judgment is reported in Rajkumar Babu Bishun Prakash Maraain Singh vs Maharani Janki Kuer & Ors.(1) The genealogy of the family relied on in the above suit which is found at page 858 in 24 Cal. W. N. is given below to facilitate the understanding of the relationship amongst the parties: Raa Ugrasen Singh (died 1659) \| Raja Gaj Singh (died 1694) \| \| \| \| Raja Daleep Singh Pirthi Singh Satrajit Singh (died 1715) (dead) (dead) \| \| \| \| \| Bishun Prakash Raja Dhrub Singh Srikishen Singh Narayan Singh (died 1762) (dead) (Plaintiff) \| \| (Fifth in descent \| \| from Satrajit \| \| Singh) Daughter 's son (Putrika Putra) \| \| Raja Jugal Kishore Ram Nandan Girja Nandan Singh (died 1785) Singh Singh \| (Defendant (Defendant \| No. 2) No. 3) Raja Jugal Kishore (Fifth in (Fourth in Singh (died 1816) descent from descent from \| Srikishen Singh) Srikishen Singh) \| \| \| Maharaja Anand Maharaja Nawal Kishore Singh Kishore Singh (died 1838) (died 1855) \| \| \| Maharaja Rajendra Mahendra Kishore Singh Kishore Singh (died 1883) (died before his \| brother) \| Maharaja Sir Harendra Kishore Singh, who died childless on 26th March, 1893, leaving (1) Rani Sheoratan Koer died (2) Rani Janki Koer Defendant No. 1 13 It should be mentioned here that in none of the suits Title Suit No. 139 of 1895, Title Suit No. 108 of 1896 and Title Suit No. 34 of 1905 referred to above, the question whether Raja Jugal Kishore Singh had become a member of the family of Raja Dhrub Singh either by virtue of adoption or as Putrika Putra (appointed daughter 's son) was decided even though the plaintiff in each of the above suits had raised such a plea. As mentioned earlier after Maharani Janki Kuer succeeded to the estate of Maharaja Harendra Kishore Singh on the death of Maharani Sheo Ratna Kuer, the management of the estate was taken over by the Court of Wards, Bihar in 1897, a declaration being made that Maharani Janki Kuer was incompetent to manage the estate. Since the properties of the estate were spread over both in the State of Bihar and in the State of Uttar Pradesh, the Bihar properties came to be managed by the Court of Wards, Bihar while those in Uttar Pradesh were being managed by the State of Uttar Pradesh through the Collector of Gorakhpur. Maharani Janki Kuer took up her residence at Allahabad where she eventually died childless and intestate on November 27, 1954. Shortly after her death on December 6, 1954, the State of Bihar made an application before the Board of Revenue, Bihar praying that the estate of Maharaja Harendra Kishore Singh which was held by Maharani Janki Kuer as a limited heir and managed by the Court of Wards and the Government of Uttar Pradesh, as stated above should be released from the management of Court of Wards and handed over to the Bihar State Government since the State of Bihar had become entitled to the estate by virtue of the rule of escheat, as there was no heir of the last male holder who could lay claim to it. Upon this application, the Board of Revenue directed the issue of a Notification which was published in the Official Gazette calling upon interested parties to prefer their claims, if any, to the properties comprised in the estate. In pursuance of this Notification about one dozen persons came forward, some of whom claimed to be entitled to the stridhana and personal properties of late Maharani, such as cash, jewellery etc.; some others claimed to be entitled to maintenance allowance out of the estate while some others claimed the entire estate on the footing that the title to the estate had passed to them by succession which opened upon the death of Maharani Janki Kuer. Amongst the persons who thus claimed title to the estate, mention may be made of Bhagwati Prasad Singh of village Baraini, in the District of Mirzapur (Uttar Pradesh) and Suresh Nandan Singh of Sheohar. The Board of Revenue, however, declined to release the estate in favour of any of the claimants and on January 18, 1955 passed an order to the effect that the Court of Wards would retain 14 charge of the properties comprised in the estate until the dispute as to its succession was determined by a competent civil court. Thereafter one Ram Bux Singh instituted a suit being Title Suit No. 3 of 1955 on the file of the Civil Judge at Varanasi claiming title to the estate. That suit was, however, allowed to be withdrawn with the permission of the court. Subsequently came to be instituted Title Suit No. 44 of 1955 on the file of the Subordinate Judge at Patna by Suresh Nandan Singh. On his death, his son, Davendra Nandan Singh and his widow Ram Surat Kuer were brought on record as plaintiffs. That suit was dismissed alongwith two other suits with which alone we are concerned in these appeals reference to which will be made hereafter. Since the plaintiffs in the above suit were also defendants in the said two other suits, the plaintiffs therein filed three First Appeals Nos. 169, 170 and 171 of 1966 before the High Court of Patna against the decrees passed in the three suits. All the aforesaid three appeals were dismissed for non prosecution by the High Court. We are, therefore, not concerned with the claim of the plaintiffs in that suit in these appeals. The two other suits that were filed were Title Suit No. 25 of 1958 and Title Suit No. 5 of 1961. Title Suit No. 25 of 1958 was filed by Ambika Prasad Singh and others claiming the estate on the basis that Raja Jugal Kishore Singh succeeded to the gaddi of Sirkar Champarun as the adopted and affiliated son and successor of Raja Dhrub Singh and not as his daughter 's son as alleged subsequently by some others; that the last male holder of the estate was Maharaja Harendra Kishore Singh, the great grandson of the said Raja Jugal Kishore Singh and that plaintiff No. 1 in the suit, Ambika Prasad Singh being nearest in degree among the reversioners to the last male holder to Maharaja Harendra Kishore Singh as the descendent of Satrajit Singh, the full brother of Raja Dalip Singh was the legal heir to the estate in question. It was pleaded that plaintiffs Nos. 2 and 4 to 8 and 10 to 13 being next in degree to the plaintiff No. 1 and plaintiff No. 14 being the wife of plaintiff No. 7 and plaintiff No. 9 being the mother of plaintiffs Nos. 10 to 13 had also joined the suit in order to avoid multiplicity of suits and conflict of interest. It was also alleged that there was an agreement amongst some of the plaintiffs entered into on September 22, 1955 to claim the estate jointly and that subsequently the said agreement had been repudiated and a fresh family arrangement had been entered into by the plaintiffs which was bonafide settling their claims to the estate. Under the said family arrangement, it had been agreed that the estate in the event of their succeeding in the suit should be distributed amongst 15 them in accordance with the terms contained therein. They claimed that in any event, the plaintiffs in the said suit alone were entitled to the estate and no others. The next suit with which we are concerned in these appeals is Title Suit No. 5 of 1961 which was filed by Radha Krishna Singh and others. The case of the plaintiffs in this suit was that Raja Dhrub Singh died leaving behind him two daughters viz. Benga Babui and Chinga Babui; that Benga Babui was married to Babu Raghunath Singh of Gautam Gotra who was by caste a Bhumihar; that Raja Dhrub Singh had become separated from his other agnatic relations, namely the heirs of Prithvi Singh of village Sheohar and Satrajit Singh of village Madhubani; that on his death which took place in 1762, Raja Jugal Kishore Singh succeeded him as his daughter 's son and that plaintiffs 1 to 8, sons of Bhagwati Prasad Singh who belonged to the family of Raghunath Singh were the nearest heirs of the last male holder, Maharaja Harendra Kishore Singh. In substance, their case was that Raja Jugal Kishore Singh who succeeded to the estate of Raja Dhrub Singh continued to be a member of his natural father 's family and had not become either by adoption or by affiliation a member of the family of Raja Dhrub Singh. It was further alleged that plaintiffs 1 to 8 were men of poor means and could not arrange for money to fight out the litigation and they, therefore, had conveyed one half of their right in the suit estate under a registered sale deed dated December 12, 1958 in favour of plaintiffs 9 to 15. In view of the said deed, according to the plaintiffs in the said suit, plaintiffs 1 to 8 were entitled to one half of the estate and the other half belonged to plaintiffs 9 to 15. On the above basis, Title Suit No. 5 of 1961 was filed by the plaintiffs therein for a declaration of their title. The plaintiffs in Title Suit No. 44 of 1955 were impleaded as defendants in Title Suit No. 25 of 1958 and Title Suit No. 5 of 1961. The plaintiffs in Title Suit No. 25 of 1958 were impleaded as defendants in the other suits. Similarly the plaintiffs in Title Suit. No. 5 of 1961 were impleaded as defendants in the two other suits. The State of Bihar which had preferred its claim on the basis of the rule of escheat was also impleaded as defendant in each of the three suits. The defendants in each of the suits other than the State of Bihar denied the claim of the plaintiffs in that suit. The State of Bihar pleaded in all the three suits that none of the plaintiffs was an heir of the last male holder. The Additional Subordinate Judge, Patna who tried all the three suits together dismissed all of them by his judgment dated February 15, 1966. The principal issues which arose for decision before the trial court were: (1) Was Raja Jugal Kishore Singh the Putrika Putra of Raja Dhrub Singh by appointed daughter and affiliated as such as 16 alleged by the plaintiffs in Title Suit No. 44 of 1955 and Title Suit No. 25 of 1958? (2) Was succession to Bettiah Estate governed by the Mithila or the Benares School of Hindu Law? (3) Was the Bettiah Estate self acquired or the joint property of Raja Jugal Kishore Singh? (4) Was the succession to the Bettiah estate governed by the rule of primogeniture? (5) Whether any of the plaintiffs was the heir of the last male holder; and (6) Has the Bettiah estate vested in the State of Bihar by escheat? At the conclusion of the trial, the trial court held that the custom of taking a son as Putrika Putra had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as the Putrika Putra and, therefore, Raja Jugal Kishore Singh was not the Putrika putra of Raja Dhrub Singh; that the succession to the estate of Maharaja Harendra Kishore Singh was governed by the Benares School of Hindu law; that the estate having been acquired by force of arms was the self acquired property of Raja Jugal Kishore Singh; that the succession of the Bettiah estate was not governed by the rule of primogeniture; that in view of the finding that Raja Jugal Kishore Singh was neither putrika putra nor was he affiliated to of family of Raja Dhrub Singh by adoption in any form, the plaintiffs in Title Suit No. 25 of 1958 and Title Suit No. 44 of 1955 could not claim to be the heirs of the last male holder: that the plaintiffs in Title Suit No. 5 of 1961 had not established that they were the reversioners to the estate and as none of the plaintiffs in the three suits had established that they were entitled to the estate it had vested in the State of Bihar by virtue of the rule of escheat. It is already stated that the three First Appeals Nos. 169 to 171 of 1966 filed on the file of the High Court by the plaintiffs in Title Suit No. 44 of 1955 were dismissed for non prosecution. Aggrieved by the decree of the trial court, the plaintiffs in Title Suit No. 25 of 1958 filed First Appeals Nos. 130, 131 and 134 of 1966 on the file of the High Court of Patna and the plaintiffs in Title Suit No. 5 of 1961 filed First Appeals Nos. 85, 86 and 87 of 1966 on the file of the said Court. The above said six appeals were heard by a Bench of three learned Judges of the High Court viz. G. N. Prasad, J., A. N. Mukherji, J. and Madan Mohan Prasad, J., G. N. Prasad, J. held that the custom of taking a son as Putrika Putra had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra and so Raja Jugal Kishore Singh had 17 not become a member of the family of Raja Dhrub Singh and that the plaintiffs in Title Suit No. 25 of 1958 had not therefore established their claim to the estate. He agreed with the finding of A. N. Mukherji, J. that the plaintiffs in Title Suit No. 5 of 1961 had established their title to the estate. A. N. Mukherji, J. held that the plaintiffs in Title Suit No. 5 of 1961 were entitled to succeed in their action and agreed with the finding of G. N. Prasad, J. that Raja Jugal Kishore Singh had not become a member of the family of Raja Dhrub Singh either as a putrika putra or by adoption for the reasons given by G. N. Prasad, J. Madan Mohan Prasad, J. agreed with the opinions of G. N. Prasad and A. N. Mukherji, JJ. that the institution of putrika putra had become obsolete during the life time of Raja Dhrub Singh and that Raja Jugal Kishore Singh had not been taken as putrika putra or in adoption by Raja Dhrub Singh. He however, did not agree with the opinion expressed by A. N. Mukherji, J. which had the concurrence of G. N. Prasad. J. that the plaintiffs in Title Suit No. 5 of 1961 had established that the plaintiffs 1 to 8 in Title Suit No. 5 of 1961 were the nearest reversioners entitled to the estate. In view of the aforesaid opinions, the appeals filed by the plaintiffs in Title Suit No. 25 of 1958 were dismissed since all the three Judges were unanimously of opinion that Raja Jugal Kishore Singh had not become a member of the family of Raja Dhrub Singh either as putrika putra or by adoption and all the appeals filed by the plaintiffs in Title Suit No. 5 of 1961 were allowed. In the result, Title Suit No. 5 of 1961 was decreed as prayed for Consequently the claim of the State of Bihar was negatived. Aggrieved by the decree passed in the six appeals referred to above, the plaintiffs in Title Suit No. 25 of 1958 applied to the High Court for the issue of a certificate to prefer appeals to this Court. The State of Bihar also made a similar application. It should be mentioned here that in the course of the hearing of the appeals before the High Court, one of the contentions urged by the parties other than the plaintiffs in Title Suit No. 25 of 1958 was that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. vs Moparthi Chenchuramayya, Minor & Ors.(1) was binding on the courts in India and that it was not open to the plaintiffs in Title Suit No. 25 of 1958 to urge that Raja Dhrub Singh could take Raja Jugal Kishore Singh as putrika putra. G. N. Prasad, J. with whom A. N. Mukherji, J. agreed had held relying on the above decision of the Privy Council that the institution of putrika putra had become obsolete during the relevant period. It was contended by the plaintiffs in Title Suit No. 25 of 1958 that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. vs 18 Moparthi Chenchuramayya, Minor & Ors. (supra) was not binding on Indian courts after India became a Republic. The Division Bench which heard the applications for the issue of certificates being of opinion that the case of the plaintiffs in Title Suit No. 25 of 1958 involved a substantial question of law as to the interpretation of the Constitution viz. whether the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. vs Moparthi Chenchuranayya, Minors & Ors.(supra) was binding on the Indian Courts after India became a Republic issued a certificate in favour of the plaintiffs in Title Suit No. 25 of 1958 under Article 132(1) of the Constitution. On the applications filed by the State of Bihar, the High Court issued a certificate under Article 133 of the Constitution certifying that the case involved substantial questions of law of general importance which in the opinion of the High Court needed to be decided by the Supreme Court. On the basis of the above certificates, plaintiffs in Title Suit No. 25 of 1958 filed Civil Appeals Nos. 114 119 of 1976 and the State of Bihar filed Civil Appeals Nos. 494 496 of 1975. After the above appeals were filed the respondents in Civil Appeals Nos. 114 119 of 1976 who had succeeded in the High Court filed a petition before this Court to revoke the certificate issued by the High Court under Article 132(1) of the Constitution. When the above appeals were taken up for hearing alongwith the petition for revocation of the certificate, the appellants in Civil Appeals Nos. 114 119 of 1976 filed a Special Leave Petition under Article 136 of the Constitution requesting this Court to grant them leave to canvass questions other than those relating to the interpretation of the Constitution in support of their case. We have heard the parties on the above Special Leave Petition also. As mentioned earlier, we propose to dispose of by this Judgment Civil Appeals Nos. 114 119 of 1975 and the Special Leave Petition referred to above. At the outset it is to be noted that the appellants in Civil Appeals Nos. 114 119 of 1975 can succeed only if they establish that Raja Jugal Kishore Singh had become the son of Raja Dhrub Singh in a manner known to law. In the instant case even though there was some amount of ambiguity at some early stages of these proceedings in the trial court as to the true case of the appellants, finally they took the position that Raja Jugal Kishore Singh had become the son (putrika putra) of Raja Dhrub Singh as the latter had appointed his daughter i.e. the mother of the former as his putrika for the purpose of begetting a son who would be his (latter 's) putrika putra. The State of Bihar and the other contesting parties claimed that the practice of appointing a daughter to beget a son who would be putrika putra had become obsolete by the time such appointment was alleged to 19 have taken place in this case; that even if such a practice was in vogue, Raja Dhrub Singh had in fact not made any such appointment and lastly the appellants who claimed on the above basis were not the nearest reversioners of the last male holder. From the pleadings relevant for the purpose of these appeals, three questions arise for consideration: (1) Whether the practice of appointing a daughter as putrika for begetting a son who would be putrika putra was in vogue during the life time of Raja Dhrub Singh? (2) If the answer to question No. (1) is in the affirmative, whether Raja Dhrub Singh had in fact appointed his daughter (the mother of Raja Jugal Kishore Singh) as his putrika? and (3) If the answers to questions Nos. (1) and (2) are in the affirmative, whether the appellants were the nearest reversioners to the last male holder Maharaja Harendra Kishore Singh, if he had lived till the date on which the limited estate ceased i.e. till the death of Maharani Janki Kuer which took place on November 27, 1954? From the points formulated above, it is evident that if the appellants in these appeals i.e. plaintiffs in Title Suit No. 25 of 1958 establish that Raja Jugal Kishore Singh was the putrika putra of Raja Dhrub Singh, the plaintiffs in Title Suit No. 5 of 1961 have to fail but if the appellants fail to establish that fact, they fail irrespective of the result of the dispute between the plaintiffs in Title Suit No. 5 of 1961 and the State of Bihar. It is in these circumstances, we proposed to dispose of these and the connected appeals in two parts. In order to determine whether the practice of taking a son as putrika putra was prevalent at the time when Raja Dhrub Singh is alleged to have taken Raja Jugal Kishore Singh as putrika putra, we have to examine the several texts and practices prevailing in India at the relevant point of time. According to Yajnavalkya, the sources of Hindu Dharma are those enumerated in the following text: Shruti smritih sadacharah swasya cha priyamatmanah samyakasankalpajah kamo dharmmoolmidang smrittam. (The sources of Dharma are described to be (1) the Vedas, (2) the Smritis, (3) the practices of good men, (4) what is acceptable to one 's own soul, and (5) the desire produced by a virtuous resolves). While interpreting the Smritis one difficulty which has to be encountered is the uncertainty about their chronology. Another difficulty felt by many jurists while interpreting them is the existence 20 of conflicting texts, sometimes in the same Smriti. This appears to be on account of the successive changes in the views of society, which may have taken place over several centuries. Very often the prevailing practices and customs at a given point of time might be quite different from those obtaining some centuries before that time Maxims which have long ceased to correspond with actual life are reproduced in subsequent treatises, as pointed out by John. D. Mayne, either without comment or with a non natural interpretation. "Extinct usages are detailed without a suggestion that they have become extinct from an idea that it is sacrilegious to omit anything that has once found a place in the Holy Writ. Another inference is also legitimate that while some Smritis modified their rules to provide for later usages and altered conditions of society, other Smritis repeated the previous rules which had become obsolete, side by side with the later rules. (See Mayne 's Treatise on 'Hindu law and Usage ' (1953 Edition) pp 20 21). Etymologically, the word 'putrika ' means a daughter (especially a daughter appointed to raise male issue to be adopted by a father who has no sons), and 'putrika putra ' means a daughter 's son who by agreement or adoption becomes the son of her father (Vide Sanskrit English Dictionary by Sir M. Monier Williams). According to Hemadri, the author of Chaturvarga Chintamani (13th Century), a 'Putrika putra ' can be of four descriptions. The following passage appearing at page 1046 in Volume II, Part (4) of the Collection of Hindu Law Texts Yajnavalkya Smriti with the commentaries of the Mitakshara etc. (translated by J. R. Gharpure) refers to the four kinds of putrika putras: "The putrika putra is of four descriptions. (1) The first is the daughter appointed to be a son. (See Visishtha XVII. 15" Putrikaiveti ) (2) The next is her son. He is called "the son of an appointed daughter", without any special contract. He is, how ever, to be distinguished from the next i.e. the third class. He is not in the place of a son, but in the place of a son 's son and is a daughter 's son. Accordingly he is described as a daughter 's son in the text of Sankha and Likhita: "An appointed daughter is like unto a son, as Prachetasa has declared: her offspring is termed a son of an appointed daughter: he offers funeral oblations to the maternal grand father and to the paternal grandsire. There is no difference between a son 's son and a daughter 's son in respect of benefits conferred." (3) The third description of a son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation as stated by Vasishtha 21 XVII.17. He appertains to his maternal grandfather as an adopted son. (4) The fourth is a child born of a daughter who was given in marriage with a stipulation in this form "the child who shall be born of her, shall perform the obsequies of both." He belongs as a son to both grandfathers. But in the case where she was in thought selected for an appointed daughter, she is so without a compact, and merely by an act of the mind. (Manu Ch. IX 127 and 136), Hemadri quoted in Colebrocke. " It is well known that in the ancient Hindu law, the right of a person to inherit the property of another depended principally on his right to offer pinda and udaka oblations to the other. The first person who was so entitled was the son. As time passed the concept of sonship was modified and by the time of Manu thirteen kinds of sons were known aurasa son who was begotten on a legally wedded wife and twelve others who were known as secondary sons (putra prathinidhis) and Manu omits any reference to putrika putra as such although in another place he observes : Aputroanen vidhina sutang kurvit putrikam Yadpatyam Bhavedasyah Samepoothro bhavedithi (He who has no son may make his daughter in the following manner an appointed daughter (Putrika saying to her husband) `the male child born of her shall be my son '). Another reading of the same sloka gives the second part of the above sloka as `yadupathaya bhavadasthaya thanmasthathu sadhukarma ' (The (male) child born of her shall perform my funeral rites). Yathaivathma thatha puthrah puthren duhithasma Thasyamatmani thishthanthyam kathmanyo dhananghareth Manu IX 130 (A son is even as one 's self, a daughter is equal to a son, how can another (heir) take the estate while (such daughter who is) one 's self lives). Yajnavalkya says that twelve sons including the legitimate son who is procreated on the lawfully wedded wife were recognized by law. Of them, it is said, the legitimate son is considered to be the primary son and others as secondary sons. The relevant text reads thus: Aursodharmmapatnija statsamah putrikasutah Kshetrajah kshetra jatastu sagotrerentaren wa grihe prachanna uttpanno goodhjastu sutah smritah kanin kanyakajato matamah sutomatah 22 Akshatayang kshatayamba jaatah paunarbhavah sutah Dadyanmata pita wa yang sa putro dattako bhaweta Kritashcha tabhyang veekritah kritrimah syataswa yangkritah dattatma tu swayang Datto garbevinah sahodhajah Utasristho grahyate yastu sopividhho bhawetsutah The above text is translated by section section Setlur in his book entitled `A complete Collection of Hindu law Books on Inheritance ' thus : "The legitimate son is one procreated on the lawful wedded wife. Equal to him is the son of an appointed daughter. The son of the wife is one begotten on a wife by a sagotra of her husband, or by some other relative. One, secretly produced in the house, is son of hidden origin. A damsel 's child is one born of an unmarried woman : he is considered as son of his maternal grandsire. A child, begotten on a woman whose first marriage had not been consummated, or on one who had been deflowered before marriage, is called the son of a twice married woman. He whom his father or his mother gives for adoption shall be considered as a son given. A son bought is one who was sold by his father and mother. A son made is one adopted by a man himself. One, who gives himself, is self given. A child accepted, while yet in the womb, is one received with a bride. He who is taken for adoption having been forsaken by his parents, is a deserted son. " `Aurasa ' is the son procreated by a man himself on his wife married according to sacramental forms prescribed by Sastra. `Putrikaputra ' is the son of an appointed daughter. `Kshetraja ' is the son begotten on the wife of a person by another person sagotra or any other. `Gudhaja ' is the son secretly born in a man 's house when it is not certain who the father is. `Kanina ' is the son born on an unmarried girl in her father 's house before her marriage. `Paunarbhava ' is the son of a twice married woman. `Dattaka ' is the son given by his father or mother. `Krita ' is the son bought from his father and mother or from either of them. `Kritrima ' is the son made (adopted) by a person himself with the consent of the adoptee only. `Svayamdatta ' is a person who gives himself to a man as his son. `Sahodhaja ' is the son born of a woman who was pregnant at the time of his marriage. `Apavidha ' is a person who is received by another as his son after he has been abandoned by his parents or either of them. There is one other kind of son called `Nishada ' who is the son of a Brahmin by a Sudra who is not referred to in the above quoted text of Yajnavlkya. While commenting on the above text, Vijnanesvara explains `putrika 23 putra ' in the Mitakshara (composed between 1070 1100 A.D.) as follows : Tatasamah putrikasutah tatsamah aurasasamah putrikayah sutah ataevoursasamah, yathah vashisthah abhratrikang pradasyami tubhyang kanyamalangkritam asyang yo jayate putrah sah me putro bhawedititee athwa putrikaiv sutah putri kasutah sopyoursasamaev pitravayavanamalpatwata matravayavanang bahulyachha, Yathas vashishthah tritiyah putrah putrikaivetyarthah (The son of an appointed daughter (putrika putra) is equal to him: that is equal to the legitimate son. The term signifies`son of a daughter '. Accordingly he is equal to the legitimate son as described by Vasishtha: "This damsel, who has no brother, I will give unto thee, decked with ornaments: the son who may be born of her shall be my son."; Or that term may signify a daughter becoming by special appointment a son. Still she is only similar to a legitimate son; for she derives more from the mother than from the father. Accordingly she is mentioned by Vasishtha as a son, but as third in rank. "The appointed daughter is considered to be the third class of sons.") (Vide section section Setlur on `A complete collection of Hindu Law Books on Inheritance ' p. 30). Proceeding further Vijnanesvara comments on the following text of Yajnavalkya : Pinddonshaharshchekshang poorvabhawe parah parah Among these, the next in order is heir and presents funeral oblations on failure of the preceding) as under : Atekshang poorvoktanang putranang poorvasya poorvasyabhawe uttrah pindadhah shradhdong shaharo veditavyaah (Of these twelve sons abovementioned, on failure of the first, respectively, the next in order, as enumerated, must be considered to be the giver of the funeral oblation or performer of obsequies, and taker of a share or successor to the effects.). Then Vijnanesvara says with reference to what Manu Smritis has stated about the right of the primary and secondary sons to succeed to the estate of a person thus : "Manu, having promised two sets of six sons, declares the first six to be heirs and kinsmen; and the last to be not heirs, but kinsmen : "the true legitimate issue, the son of a wife, a son given, and one made by adoption, a son of concealed origin, and 24 one rejected are the six heirs and kinsmen. The son of an unmarried woman, the son of a pregnant bride, a son bought, a son by a twice married woman, a son self given, and a son by a Sudra woman, are six not heirs but kinsmen. " Thereafter he deals with the right of a woman to inherit the estate of one, who leaves no male issue. He says "that sons, principal and secondary, take the heritage, has been shown. The order of succession among all on failure of them, is next declared. " And then quotes the following text of Yajnavalkya : Patni duhitharaschaiva pithrau bhratarastatha tata suta gotraja bandhuh shisya sabrahmacharinah akshamabhawe poorvasya dhanbhaguttarottarah swaryathsya hyaputrasya sarv varnekshwayan vidhih (The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student: on failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven leaving no male issue. This rule extends to all classes). Commenting on the above text, Vijnanesvara says: Mkhyagaunsutha dhay grihrantitee nirupitam tekshambhawe sarwekshang dayadakrama uchyate, poorvokta dwadash putra yasyang na santi asavaputrah tashyaputrasya swaryatasya purlokang gatasya ghanbhaka ghangrahi akshang patnayadinamanukrantanang madhye poorvasya poorvashyabhawe uttara uttaro ghanbhagiti sambandhah (He, who has no son of any of the twelve descriptions above stated is one having `no male issue '. Of a man, thus leaving no male progeny, and departing for another world, the heir, or successor, is that person, among such as have been here enumerated (the wife and the rest) who is next in order, on failure of the first mentioned respectively. Such is the construction of the sentence). From the foregoing, it is obvious that in the course of the passages extracted above, Vijnanesvara was only commenting upon the relevant text of Yajnavalkya which laid down the practice prevalent in ancient times. He also notices that according to Manu only six of the twelve sons were entitled to succeed to the estate and the remaining six were not heirs but kinsmen. We have not been shown any Commentary of Vijnanesvara that at the time when the Mitakshara was written, all the twelve kinds of sons described by Yajnavalkya were in fact entitled to succeed to the estate of the deceased and that the wife of the deceased succeeded to his estate only when none of the 25 twelve kinds of sons was existing. Certainly that has not been the practice for several centuries. In the absence of a son, grandson or great grandson (aurasa or adopted) the wife succeeds to the estate of her husband. The other kinds of sons including putrika putra are not shown to have preceded the wife. Baudhayana who belonged to the Krishna Yajurveda School and who composed the Baudhayana Dharma Sutra long prior to the Mitakshara refers to the twelve kinds of sons and divides them into two classes one being entitled to share the inheritance and the other to be members of the family only: Aurasang putrikaputrang kshetrajang dattkritrimau goodhhajang chapvidhang cha rikthabhajah prachakchate Kanin cha sahodhang cha kritang pounarbhavang tatha swayangdatang nikshadang cha Gotrabhajah prachakchte In regard to this they quote also (the following verses): They call the legitimate son, the son of an appointed daughter, the son begotten on a wife, the adopted son, the son made, the son born secretly, and the son cast off, entitled to share the inheritance. The spinster 's son, the son taken with a bride, the son bought, the son of a twice married woman, the self given son, and the Nishada (these) they call members of (their father 's family) (Vide West & Buhler on `Hindu Law Inheritance ' at p. 317). That some of the secondary sons were not entitled to succeed according to Baudhayana may be noticed here and this statement does not agree with the Mitakshara 's Commentary that all the principal and secondary sons succeed before the wife. This shows that the statement in the Mitakshara refers partly to historical facts and partly to existing facts. Vishnu Dharmasastra which according to Dr. Jolly belongs to the third century A.D. describes `putrika putra ' as follows: Putrikaputrasthrithayah yastwasyaah putrah sa me putro bhawediti ya pithra datta sa puthrika putrikavidhinaapratipaditapi bhratrivihina puthrikaiv (The third is the son of an appointed daughter. She is called an appointed daughter, who is given away by her father with the words, `The son whom she bears, be mine '. A girl who has no brother is 26 considered an appointed daughter, though she be not given away according to the rule of an appointed daughter) (Vide West & Buhler on `Hindu Law Inheritance ' at p. 338). In this text what needs to be noticed is that a brotherless daughter becomes a putrika even if she is not given according to the prescribed procedure. Vasishtha who according to Dr. Jolly must have composed his Dharma Sutra several centuries before Christ describes `putrika ' as follows : Tritya puthrika, vigyayate, abhratrika pungsah pith rinbhyeti pratichhinang gachhati putratwama Abhrathrikang pradasyami tubhyang kanyamalangkritama Ashyang yo jayate puthrah sa me puthro bhawediti (The third is an appointed daughter. It is known that "the girl who has no brother comes back to the males of her own family, to her father and the rest, returning she becomes their son. " Here follows the verse to be spoken by the father when appointing a daughter, "I shall give thee to the husband, a brotherless damsel, decked with ornaments; the son whom she may bear, he be my son." (Vide West & Buhler on `Hindu Law Inheritance ' at p. 331). In the above text "the girl who has no brother comes back to the males of her own family, to her father and the rest, returning she becomes their son" apparently refers to the following Shloka in Rig Veda : Abhratew punsa aeti pratichi Gartarugiv sanye dhnanama jayew patya ushatee suvasa Uksha hashtreva nirirnite apshah Rig Veda, I, Sukta 124. Stanza 7. (She goes to the West, as (a woman who has) no brother (repairs) to her male (relatives), and as one ascending the hall (of justice) for the recovery of property. (She mounts in the sky to claim her lustre) and like a wife desirous to please her husband, Ushas puts on becoming attire, and smiling as it were, displays her charms). Apararka or Aparaditya was a king who ruled in the twelfth century. His commentary on the Yajnavalkya Smriti is considered to be of paramount authority and is referred to with respect in many of the 27 later Digests. After referring to the primary and secondary sons enumerated by Yajnavalkya, Apararka observes : Puthrapratinidhinang madhye dattakah avang kaliyuge grahyah Athah aev kalou nivarthantha ityanuvrittau shaunkenoktam "dathoursetarekshang thu puthrathwen parigrahah " ithee. (Of the different kinds of substitutes for son, only the Dattaka is valid during the Kaliyuga. Therefore Shaunaka says: "the acceptance of sons other than Datta and Aurasa" is prohibited in the Kaliyuga.) (Vide Ghose on 'Hindu Law ' Vol. II at p. 254.) The verse of Shaunaka quoted by Apararka is found in the verses on Kalivarjya collected and printed at page 1013 of Vol. III of P. V. Kane 's History of Dharmasastra. The 17th verse reads (The acceptance of sons other than datta or aurasa) is one of the acts not to be done in Kaliyuga. We find the following text in 'Parasara Madhava ' which is believed to have been written by Madhavacharya, the prime minister of the Vijayanagara kings in or about the year 1350: Dattavyatiriktanang gounputrarnang rikthbhaktava Pratipadakani wakyani yugantaravikshyarni kalou yuge tekshang putratwen parigrahrnasya smrityantare nikshidhatwata " Dattourasetrekshantu puthrathwen parigrahah devarern sutotpattih wanaprashthashramagrahah kalou yugotwimana dharmana varjyanahurmanikshinah ithee (The texts establishing the right to inherit of the subsidiary sons other than the Dattaka or the adopted son were applicable in past ages (and have no force now) because in another Smriti their being taken as sons is prohibited in the Kali Yuga: 'The acceptance as sons of other than the Dattaka and Aurasa sons, ' the procreation of a son by Niyoga by the husband 's younger brother and adopting the life of the Vanaprastha in old age are prohibited by the wise.) (Vide Ghose on 'Hindu Law ' Vol. II at p. 626). The quotation in the above Commentary is stated to be from Aditya Purana. The Smriti Chandrika of Devannabhatta according to Dr. Julius Jolly is a remarkable book on Hindu Dharmasastra for its originality and for its early date. Though following Mitakshara on most points of importance, it introduces a great deal of new matter as well particularly with regard to the rights of woman over Stridhana, relying upon 28 many Smriti texts not referred to in the Mitakshara. It is believed that the Smriti Chandrika was written in the thirteenth century for the author quotes Apararka (12th century) and he in his turn is quoted by Mitramisra (14th century). In the chapter entitled 'On partition of wealth received through secondary fathers", Smriti Chandrika states: Awang nirupitagournputhranang surwekshang yugantare puthratwen parigrah, Kalou tu dattakasyaikasya "dattourasetarekshang tu putratwen parigrahah: itee, Kaleradou dharmaguptyarthang mahatmabhirdattakourse tarekshang putratwen parigraha nivarrnata, putrika karanmapyasmadev wakyatkalou nivaritama, Dattoursetratwatputrikayah, awang cha kalavoursaputrapouthrayorabhawe dattak aev gounputhro bhawati nanya ityanusandheyama. (The secondary sons thus enumerated had all been recognised as sons in former ages; but, in the Kali age, adopted son alone is recognized. By the text: "None is to be taken as a son except a son of the body or one who is adopted. " the learned have, in the early period of the Kali age, prohibited the recognition of any other son than the legitimate and the adopted, with the view of maintaining virtue in the world. The appointment of a daughter to raise up a son to her father must also be considered by the same text to be prohibited in the Kali age, such a son not being either one of the body or adopted. The conclusion hence is that, in the Kali age, in default of a legitimate son or grandson, the adopted son alone and none else is recognised as a subsidiary son. (Vide Setlur on 'Hindu Law Books on Inheritance ' at page 272). It is no doubt true that in some earlier decisions to which a detailed reference at this stage is not necessary some statements found in Smriti Chandrika which were directly in conflict with the Mitakshara were not accepted and the Mitakshara was given the preference but still as observed by Mayne there can, however, be little doubt that its general authority is fairly high on points on which it does not come into conflict with the Mitakshara and that it is a work which is referred to throughout India with great respect by Nilakantha, Mitramisra and others. Dattaka Chandrika which is a recognised treatise on the law of adoption declares in paragraphs Nos. 8 and 9 of section 1 thus: "8. A substitute. Now such is of eleven descriptions, the son of the wife and the rest. Thus Manu (ordains): "Sages declare 29 these eleven sons (the son of the wife and the rest) as specified to be substitutes for the real legitimate son; for the sake of preventing a failure of obsequies. " Vrihaspati also. "Of the thirteen sons who have been enumerated, by Manu in their order, the legitimate son and appointed daughter are the cause of lineage. As oil is substituted by the virtuous for liquid butter; so are eleven sons by adoption substituted for the legitimate son and appointed daughter. Of these however in the present age, all are not recognised. For a text recites: "Sons of many descriptions who were made by ancient saints cannot now be adopted by men, by reason of their deficiency of power;" and against those other than the son given, being substitutes, there is a prohibition in a passage of law wherein after having been promised, "The adoption, as sons of those other than the legitimate son and son given," it is subjoined, "These rules sages pronounce to be avoided in the Kali age." (See 'Hindu Law Books ' edited by Whitley Stokes in 1865 at page 630). Dattaka Mimansa written by Nanda Pandita between 1595 1630 states. "64. "Sons of many descriptions who were made by ancient saints cannot now be adopted by men by reason, of their deficiency of power etc.", on account of this text of Vrihaspathi and because, in this passage ("There is no adoption, as sons, of those other than the son given and the legitimate son etc.") other sons, are forbidden by Saunaka, in the Kali or present age, amongst the sons however (who have been mentioned) the son given, and the legitimate son only are admitted. " (See 'Hindu Law Books ' edited by Whitley Stokes in 1865 at page 547). In Bhagwan Singh vs Bhagwan Singh & Ors.(1) a Full Bench of the Allahabad High Court had to consider the authority of Dattaka Chandrika and Dattaka Mimansa as sources of Hindu Law. Since some doubts had been expressed about it by Mandlik, Golapchandra Sarkar and Dr. Jolly who were themselves reputed writers on Hindu Law, after an elaborate discussion about several earlier decisions and treatises on Hindu Law published by that time, the majority of the Full Bench (Edge, C.J., Knox, Blair and Burkitt, JJ.) expressed the 30 view that Dattaka Mimansa was not on questions of adoption an 'infallible guide ' in the Benares School of Hindu Law. But the minority (Banerji and Aikman, JJ.) held that Dattaka Mimansa and Dattaka Chandrika were works of paramount authority on questions relating to adoption in the Benares School also. The Privy Council in the appeal filed against the judgment of the Full Bench observed in Bhagwan Singh & Ors. vs Bhagwan Singh (Minor)(1) & Ors. thus: "Their Lordships have mentioned in the prior adoption cases the views of Knox, J. as to the authority of the two Dattaka treatises just quoted. In the present case the learned Chief Justice Edge takes even more disparaging views of their authority; denying, if their Lordships rightly understand him, that these works have been recognised as any authority at all in the Benares School of Law. If these were anything to show that in the Benares School of Law these works had been excluded or rejected, that would have to be considered. But their authority has been affirmed as part of the general Hindu Law, founded on the Smritis as the source from whence all Schools of Hindu Law derive their precepts. In Doctor Jolly 's Tagore Lecture of 1883, that learned writer says: "The Dattaka Mimansa and Dattaka Chandrika have furnished almost exclusively the scanty basis on which the modern law of adoption has been based. " Both works have been received in courts of law, including this Board, as high authority. In Rangama vs Atchama (4 Moore 's Ind. Ap. 97) Lord Kingsdown says: "They enjoy, as we understand, the highest reputation throughout India." In 12 Moore, p. 437, Sir James Colvile quotes with assent the opinion of Sir William Macnaghten, that both works are respected all over India, that when they differ the Chandrika is adhered to in Bengal and by the Southern jurists, while the Mimansa is held to be an infallible guide in the Provinces of Mithila and Benares. To call it infallible is too strong an expression, and the estimates of Sutherland, and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they become embedded in the general law. " The writings of Sir William Macnaghten, Morley, Colebrooke, Sir Thomas Strange, Babu Shyama Charan Sarkar and J. section Siromani supports the above view. In Rajendra Narain Lahoree vs Saroda Sonduree Dabee,(2) Uma Sunker Moitro vs Kali Komul Mozumdar(3), 31 Lakshmappa vs Ramava(1), Waman Raghupati Bova vs Krishnaji Kashiraj Bova(2), Minakshi vs Ramanada(3), Tulshi Ram vs Behari Lal(4) & Beni Prasad vs Hardai Bibi(5), the Indian High Courts have accepted the authority of Dattaka Mimansa and Dattaka Chandrika. The Privy Council has also taken the same view in the Collector of Madura vs Moottoo Ramalinga Sethupathy(6). In Abhiraj Kuer vs Debendra Singh(7) this Court has dealt with the value to be attached to Dattaka Chandrika and Dattaka Mimansa as follows: "Learned Counsel has emphasised that great authority attaches to all statements of law as regards adoption that are contained in Dattak Mimansa. There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandit 's views to unfavourable criticism. Inspite of all this the Privy Council in Bhagwan Singh vs Bhagwan Singh (1899) L.R. 26 I.A. 153, 161 did recognise that both the Dattak Mimansa and Dattak Chandrika had been received in courts of law including the Privy Council as high authorities and after drawing attention to Lord Kingsdown 's statements as regards these in Rungama vs Atchama (1846) I.A. 1, 97 and Sir James Colvile 's statement in Collector of Madura vs Moottoo Ramlinga Sethupathy (1868) 12 M.I.A. 397, 437, stated thus: "To call it (i.e. Dattak Mimansa) infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law." While saying this mention must also be made of the observations of the Privy Council in Sri Balusu Gurulingaswami vs Shri Balasu Ramalakshmamma (1899) L.R. 26 I.A. 113, 136 decided on the same date (March 11, 1899) but 32 immediately before Bhagwan Singh 's case, was decided, expressing their concurrence with the view that caution was required in accepting the glosses in Dattaka Mimansa and Dattak Chandrika where they deviate from or added to the Smrities. " Even when they are read with care it is not possible to disbelieve the statement of law with which we are concerned since they are in conformity with many other writings discussed above. A careful reading of the texts extracted above leads to an inference that the institution of putrika putra had become obsolete and not recognised by Hindu society for several centuries prior to the time when Smriti Chandrika or Dattaka Chandrika were written and these two. Commentaries belong to a period far behind the life time of Raja Dhrub Singh. Some of the decisions relied on by the parties may now be considered. The decision in Nursingh Narain & Ors. vs Bhuttun Loll & Ors.(1) (compiled by D. Sutherland) was not a case where the claim of a putrika putra as it was understood in Hindu Law was upheld. In that case, the Court had to decide whether a sister 's daughter could become an appointed daughter and her son a putrika putra. The claim was rejected with the following observations: "There is no doubt that, in ancient times, there were many legal substitutes for the sons of the body (Auras). Manu (Chapter 9, V, 180), and Yagnyavalkya (Mitakshara, Chapter I, Section 2) enumerate no less than twelve including the legitimate son of the body; and the latter authority ranks the son of an appointed daughter ("putrika putra") next to the legitimate son, and equal to him. It is contended by the appellant in this case that a sister 's daughter may be adopted under this authority, and become "an appointed daughter", and her son a "putrika putra", but we do not see the slightest resemblance between the two cases. The daughter appointed to raise up issue for her father must, according to the old Hindoo Law books, be a man 's own daughter, the child of his own loins; and it is solely on the ground of this near relationship that the son of the daughter, viz. the "putrika putra" is classed in the same rank with the lawful son of the body. It is true that, in default of an "aurasa" daughter, a daughter of the body, that is, a man could, under the old Hindoo Law, adopt a subsidiary daughter as a substitute for her; but these adoptions were "for the sake of obtaining the heaven procured by 33 the daughter 's son" (vide Dattaka Mimansa, page 138, section 18), and not for the purpose of obtaining a "putrika putra," an adopted son by means of an appointed daughter. .We think, therefore, that the appellant in the present case is not a "putrika putra," that is, he is not the son of an appointed daughter in the proper sense of the term, and has, according to ancient Hindoo Law, no status in the family of Holas Narayan. Taking this view of the case, it is not necessary for us to enter at any great length into the second point. All the great authorities on Hindoo Law admit that, except the Dattaka and Kritrima, no other forms of adoption are allowable in the present age. " The last para of the above quotation is of some significance so far as these appeals are concerned. In Thakoor Jeebnath Singh vs The Court of Wards(1) the plaintiff laid claim to an impartible raj, raj of Ramgarh on the ground that he being the father 's sister 's son of the last holder, Rajah Trilokenath, who died unmarried was entitled to the estate in preference to the defendant who was a distant agnate of the last holder. Ordinarily the plaintiff being a bandhu could not exclude the defendant who was a sagotra sapinda of the last holder. He therefore, put forward the plea that as his mother was the appointed daughter of Maharaj Sidnath Singh, the paternal grandfather of the last holder and he as putrikaputra should be treated as a son of Maharaj Sidnath Singh entitled to succeed to the estate. Two questions arose before the Judicial Committee of the Privy Council in that case as in the present appeals (1) whether the practice of taking a 'putrika putra ' was in vogue and (2) whether the mother of the plaintiff had in fact been an 'appointed daughter '. On the first question, the Privy Council observed that it was not necessary to give a finding but on the other it held that the plaintiff had not shown that his mother was in fact an 'appointed daughter '. Even so after referring to the statements found in the books of Sir Thomas Strange and Sir William Macnaghten, the Privy Council observed that it appeared that the practice of having a 'putrikaputra ' had become obsolete. In that connection, it observed thus: "It is not necessary in this case to decide that this is so, although there certainly does not appear to have arisen in modern times any instance in the courts where this custom had been considered." 34 Absence of cases before courts within living memory in which a claim had been preferred on the basis of affiliation in putrika putra form showed that the said practice had become obsolete. The contention based on the theory that a person could take a son as 'putrika putra ' was rejected by the Madras High Court in the year 1908 in Sri Raja Venkata Narasimha Appa Row Bahadur vs Sri Rajah Saraneni Venkata Purushothama Jaganadha Gopala Row Bahadur & Ors.(1) in the following words: "Mr. Seshagiri Ayyar on behalf of the appellant contended, first, that on a proper construction of the will the testator 's daughter was 'appointed ' by her father to raise a son for him in accordance with a practice which is now generally reputed to be obsolete. We need not determine whether in any event the language of the will could be made to bear this construction; it clearly could be so construed only if there were in existence a living custom to which the words can be referred. It is not such language as could be interpreted as indicating the testator 's intention to revive a dead custom, or create a new kind of heir for himself, unknown to the law of the present day, supposing him to have the power to do either of those things." In Nagindas Bhagwandas vs Bachoo Hurkissaondas(2) while rejecting the contention that the position of an adopted son in the family of the adoptive father was not that of a coparcener, the Privy Council observed: "It was endeavoured to establish that proposition by reference to the place which was assigned by Manu and other early authorities to the twelve then possible sons of a Hindu. As to this contention it is sufficient to say that, whatever may have been the position and rights between themselves of such twelve sons in very remote times, all of those twelve sons, except the legitimately born and the adopted, are long since obsolete." A Division Bench of the Patna High Court in Babui Rita Kuer vs Puran Mal(3) while holding that defendant No. 2 in that case who was alleged to have been appointed as putrika by her father had not in fact been so appointed, observed (but without actually deciding): "However, the case of Thakoor Jeebnath Singh vs Court of Wards (1874 75) 2 I.A. 163, a Privy Council case, is important in this connexion. The whole argument addressed to us is based 35 upon the effect of this custom of adoption of a daughter as putrika. Now the Privy Council have laid it down that all Hindu text writers unanimously concur in holding the appointment of a daughter as a son to raise up issue to a sonless father is now obsolete; and no recent authority can be found within modern times where the custom has received judicial sanction. In the Privy Council case referred to above a grave doubt is thrown upon the validity of such a custom, and it is there distinctly stated that if this custom is ever to be revived, it can only be on the clearest and most conclusive evidence. To a like effect is the case of Sri Rajah Venkata Narasimha Appa Row Bahadur vs Sri Raja Suraneni Venkata Purushothama Jaganadha Gopala Rao Bahadur , where the custom alleged is considered not to be a living custom. Mr. Mayne says at p. 93, Edn. 8, of his treatise on Hindu Law that the usage had become obsolete from time immemorial, and was so decided by the Civil Courts. However, if this custom or usage is relied on in any given case it must be conclusively and undeniably proved. I should be slow indeed to hold, if this obsolete custom can be established, that all the duties and obligations imposed on a Hindu son to discharge the debts of his father under Mitakshara Law would apply or attach to a daughter appointed as a putrika to raise issue to a sonless father the attention of the High Court. The above case is from the State of Bihar itself. If the practice of appointment of a putrika was in vogue, it would not have missed the attention of the High Court It is true that some observations made in Lal Tribhawan Nath Singh vs Deputy Commissioner, Fyzabad & Ors.(1) support the theory that the institution of putrika putra was in vogue even now. Two of the questions involved in that case were whether Sir Pratap Narain Singh was the Putrika putra of Sir Man Singh who was the former holder of an impartible estate, known as taluka Ajudhia and whether the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable. Stuart, A.J.C. who delivered the leading judgment in that case with whom Kanhaiya Lal, A.J.C. agreed held that Sri Pratap Narain Singh was not the putrika putra of Sir Man Singh although the practice of appointing a daughter bear a son to a Hindu was permitted by the Mitakshara and was enforceable. It is seen that the above case had a history. Maharaja Pratap Narain Singh himself had earlier instituted a suit which ultimately ended up in an appeal before the Privy Council in Maharajah 36 Pertab Narain Singh vs Maharanee Sudhao Kooer(1). In that case, his plea was that he (who was also known as Dadwa Sahib) was the son of a daughter of Maharajah Man Singh; that he had been treated by Maharajah Man Singh 'in all respects as his own son ' within the meaning of clause 4 of section 22 of Act I of 1869; that a will made by Maharajah Man Singh on April 22, 1864 had been revoked orally on a subsequent date and that he had become entitled to the estate of Maharajah Man Singh. The Privy Council held that the will had been revoked and Maharajah had died intestate and that Maharajah Pratap Singh was the person who under clause 4 of section 22 of Act I of 1869 was entitled to succeed to the taluk, and that he had made out his claim to a declaratory decree to that effect. The Privy Council further held that the declaration was limited to the taluk and what passed with it but it did not affect the succession to the personal property or property not properly the parcel of the talukdaree estate which was governed by the ordinary law of succession. It is significant that no claim had been preferred by Maharaja Pratap Narain Singh on the ground that he was a putrika putra of Maharaja of Man Singh. He merely claimed that he was a statutory heir under clause 4 of section 22 of Act I of 1869 which was passed at the request of Talukdars including Maharajah Man Singh as can be seen from the decision of the Privy Council in Maharajah Pertab Narain Singh 's case (supra) which observed thus: "So matters stood when the Maharajah, as one of the leading members of the British India Association of Talukdars, went down to Calcutta in order to take part in the discussions and negotiations which resulted in the passing of Act I of 1869. This must have been in the latter half of 1868. Imtiaz Ali, the vakil concerned in the drafting and preparation of this Act on the part of the talukdars, has sworn that clause 4 of the 22nd section originated with the Maharajah; that it was opposed by some of the talukdars, but finally approved of by the Select Committee of the Governor General 's Legislative Council on the bill and passed into law. He also says that he was told by the Maharajah that his object in pressing this clause was to provide for the Dadwa Sahib." (NOTE : 'Maharajah ' referred to above is Maharajah Man Singh and 'Dadwa Sahib ' is Maharajah Pratap Narain Singh). If the practice of appointing a daughter to bear a son was in vogue then Maharajah Man Singh need not have taken the trouble to 37 request the British Government to get Act I of 1869 passed and if Maharajah Pratap Narain Singh was a putrika putra, he would not have refrained from putting forward that case. Moreover the Privy Council also clarified the object of introducing clause 4 of section 22 of Act I of 1869 thus: "Their Lordships are disposed to think that the clause must be construed irrespectively of the spiritual and legal consequences of an adoption under the Hindu Law. They apprehended that a Hindu grandfather could not, in the ordinary and proper sense of the term adopt his grandson as a son. Nor do they suppose that, in passing the clause in question, the Legislature intended to point to the practice (almost, if not wholly, obsolete) of constituting, in the person of a daughter 's son, a "putrika putra", or son of an appointed daughter. Such an act, if it can now be done, would be strong evidence of an intention to bring the grandson within the 4th clause, but is not therefore essential in order to do so. Moreover, it is to be observed that the 4th, like every other clause in the 22nd section, applied to all the talukdars whose names are included in the second or third of the lists prepared under the Act, whether they are Hindus, Mahommedans, or of any other religion; and it is not until all the heirs defined by the ten first clauses are exhausted that, under the 11th clause, the person entitled to succeed becomes determinable by the law of his religion and tribe." Triloki Nath who failed before the Privy Council thereafter filed a review petition before it. That petition was dismissed in Pertab Narain Singh vs Subhao Kooer(1) but he was permitted if he so desired to reopen by suit in India the question whether he had been properly represented in the previous litigation in the Indian Courts. Accordingly a suit was filed in 1879. That ultimately was dismissed by the Privy Council in Perturbarain Singh vs Trilokinath Singh(2) holding that the previous proceedings were binding on Trilokinath Singh. Another suit which had been filed in the meanwhile in the year 1882 for possession of the estate by Trilokinath Singh was also dismissed finally by the Privy Council in Triloki Nath Singh vs Pertab Narain Singh(3) with the following observations: "Their Lordships, therefore, merely declared Pratap Narain Singh 's title to the taluks and whatever descended under Act I of 38 1869. As to other property which was not included in that Act, Pratap Narain would not have been the heir to the Maharaja during the lifetime of the widow. She would have taken the widow 's estate in all property except that which was governed by Act 1 of 1869. " Thus ended the first series of litigation. Now reverting to the case of Lal Tribhawan Nath Singh (supra) it should be stated that the suit out of which the said appeal arose was instituted after the death of Maharaja Pratap Narain Singh in 1906 by Tribhawan Nath Singh, grandson of Ramadhin, the eldest brother of Maharaja Man Singh in the year 1915 for a declaration that he was entitled to the estate as the heir of Maharaja Pratap Narain Singh under clause 11 of section 22 of Act I of 1869 which provided that on the failure of persons referred to in the first ten clauses, the ordinary heirs under personal law of the last holder of the taluk was entitled to succeed. He pleaded that the widows of Maharaja Pratap Narain Singh were disentitled to the estate on the ground of unchastity and that he was the nearest heir living at that time. The above case was filed on the assumption that Maharaja Pratap Singh was the putrika putra of Maharaja Man Singh and hence the plaintiff being an agnate of Maharaja Man Singh was entitled to succeed. (Note: The claim was almost similar to the claim in these appeals). The defendants in that suit denied all allegations of the plaintiff set up in the case and pleaded that one Dukh Haran Nath Singh had been adopted by one of the widows of Maharaja Pratap Narain Singh and that even if they were not entitled to the estate, the estate had to go to the family of Narsingh Narain Singh i.e. the natural family of Maharaja Pratap Narain Singh. The trial court dismissed the suit. In the appeal, the oudh Judicial Commissioner 's Court after specifically recording a finding that Maharaja Pratap Narain Singh was not the putrika putra of Maharaja Man Singh held that the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable. Reliance is now placed before us on the above decision of the Oudh Court to establish that even now it is possible to have a son in the putrika putra form. We have carefully read the two judgments of the two Additional Judicial Commissioners, Stuart and Kanhaiya Lal. We feel that the question whether the practice of taking a son in putrika putra form was in vogue at the relevant time has not been considered in detail in the two judgments. The approach to this question appears to be bit casual even though the judgments on other material issues appear to be quite sound. Since they had held that no ceremony constituting the mother of Maharaja Pratap Narain Singh 39 had been performed, they might not have gone into the question of law in depth. They just proceeded on the basis of some ancient texts including the Mitakshara without devoting attention to the practice having become obsolete. All that Kanhaiya Lal, A.J.C. says on the above question at page 259 is "The case with which a son could be obtained by adoption has had the effect in course of time of rendering affiliation in the form of putrika putra more or less uncommon, but it has by no means become obsolete, for the Mitakshara gives the putrika putra the second or predominant position after the legitimate son and treats him in every respect as his substitute. " The learned Additional Judicial Commissioner treats, we feel inappropriately, the institution of an illatom son in law in vogue in Malabar or Khanadamad recognised in Punjab as but relics of the institution of putrika putra. We have dealt with elsewhere in this judgment some of the text books referred to by the learned Additional Judicial Commissioner. It is to be noticed that the Oudh Court did not refer to any specific case where a claim based on the putrika putra title had been upheld. The following remark made by Stuart, A.J.C. at page 230 is significant: "What reason then could he have had to be the only person in Oudh known to history who employed a practice by which he set aside his daughter to bear him a male heir?" We feel for the reasons given by us elsewhere in this judgment that the view expressed by the Oudh Court on the question of prevalence of putrika putra form of affiliation cannot be accepted as correct. We shall now advert to some of the digests, lectures and treatises on 'Hindu Law '. In Colebrooke 's Digest of Hindu Law (1874 Edition) Volume II, page 416, preface to the first edition of which was written in 1796, it was observed thus: "Among the twelve descriptions of some begotten in lawful wedlock and the rest, any others but the son of the body and the son given are forbidden in the Cali age. Thus the Aditya purana, premising "the filiation of any but a son lawfully begotten or given in adoption by his parents", proceeds: "These parts of ancient law were abrogated by wise legislators, as the cases arose at the beginning of the Cali age. . . In the like manner sufficient reasons may be assigned or the prohibition of appointing a daughter and so forth. Again, by the term "powers" in the text of Vrihaspati is meant, not only devotion, but the consequence of it, namely, command over the senses. 40 Among these twelve descriptions of sons, we must only now admit the rules concerning a son given in adoption and one legally begotten. The law concerning the rest has been inserted, to complete that part of the Book, as well as for the use of those who, not having seen such prohibitory texts, admit the filiation of other sons. Thus, in the country of O 'dry (O 'risa), it is still the practice with some people to raise up issue on the wife of a brother." Sir F. W. Macnaghten who was a judge of the Supreme Court of Judicature at Fort William in Bengal writes in his book entitled Considerations on the Hindu Law, as it is current in Bengal ' (1824 Edition) at page 129: "Vrihaspati speaks "of the thirteen sons, who have been enumerated by Meru in their order". And with reference to this we find in the Dattaca Chandrika, 'of these however, in the present lage, all are not recognized. For a text recites, 'sons of many descriptions, who were made by the ancient Saints, cannot now be adopted by men, by reason of their deficiency of power; ' and against those, other than the son given, being substitutes, there is a prohibition in a passage of law, wherein, after having been premised "The adoption, as sons of these other than the legitimate son, and the son given," it is subjoined. 'This rule, sages pronounce to be avoided in the Kali age. ' "Upon the words, "in a passage of law" there is the following note; This passage, which is frequently cited, is attributed to the Aditya purana, and in its complete state is thus, 'The adoption, as sons of those other than the legitimate son, and son given; the procreation of issue by a brother in law; the assuming the state of an anchoret; these rules, sages pronounce to be avoided in the Kali age. '" Sir Thomas Strange, a former Chief Justice of Madras observes in his book on 'Hindu Law ' (published in 1830) Volume I at pages 74 75 as under: ". . whence the different sorts of sons enumerated by different authorities, all resolving themselves, with Menu, into twelve; that is, the legally begotten, and eleven subsidiary ones, reckoning the son of the appointed daughter (putrika putra) as the same in effect with the one legally begotten, and therefore not to be separately accounted; all formerly, in their turn and order, capable of succession, for the double purpose of obsequies, and of inheritance; six (reckoning, with Menu, the legally begotton, 41 and the son of the appointed daughter as one), deriving their pretensions from birth, six, from distinct adoptions; the first of the twelve, namely, the issue male of the body lawfully begotten, being the principal one of the whole as the son given in adoption was always the preferable one, among those obtainable expressly in this mode. And now, these two, the son by birth, emphatically so called, (Aurasa), and (Dattaca) the son by adoption, meaning always the son given, are, generally speaking, the only subsisting ones, allowed to be capable of answering the purpose of sons, the rest, and all concerning them, being parts of ancient law, understood to have been abrogated, as the cases arose, at the beginning of the present, the Cali age. " Sir Ernest John Trevelyan, a former Judge of the High Court of Calcutta in his book entitled "Hindu Law as administered in British India" (Third Edition) states at page 107 thus: "In ancient times the Hindu law recognised the following descriptions of sons as legitimate sons, viz. 1. Aurasa,. . . 2. Kshetraja,. . . 3. Putrika putra, or son of an appointed daughter. In ancient times a man could appoint his daughter to raise up issue to him. The practice is obsolete. Shastri Golap Chunder Sarkar, without giving any instances of its application, contends that there is no reason why it should not be now applied. (to) 13. . . . Of these the only sons that are now recognized by Hindu law are the Aurasa son and the Dattaka son. According to the Mithila school a Kritrima son can be taken in adoption. Adoption in this form is based upon, recent works, and is not referable to the ancient practice of taking Kritrima sons." Dr. Jullius Jolly in his Tagore Law lectures delivered in 1883 entitled "Outlines of an History of the Hindu Law of Partition, Inheritance and Adoption" states in his Lecture VII at page 144 thus: "The early history of the Law of Adoption may be traced in those enumerations of subsidiary or secondary sons, which occupy such a prominent place in the Indian Law books. Nearly all these substitutes for real sons are now long since obsolete, but they are deserving of attention, not only from a historical, but from a practical point of view, because the rules regarding 42 them, being earlier in time, have in a measure formed the basis on which adoption in the proper sense of the term has been framed by the writers of the medieval and modern Indian Digests. " That the enumeration of twelve or thirteen and even fifteen kinds of sons in ancient Smritis owes its origin to the tendency of ancient writers to deal with exhaustively all possible sons a man could conceive of irrespective of the fact that all of them might not have received legal sanction in the contemporary society is obvious from the inclusion in the list of fifteen sons of a son called Yatrakvachanotpadita (son produced in any other manner than the sons previously enumerated). Referring to such a son, Dr. Jolly observes at page 146 thus: "Beginning with the son procreated anywhere, who comes in as the last of all, I may observe that the only other text in which this kind of son is referred to occurs in the Vishnusmriti; coming in, as it does, at the end of the whole list, the term Yatrakvachanotpadita seems to mean produced in any other manner than the sons previously enumerated," and may owe its origin to the systematizing spirit of a later age which wished to exhaust all sorts of sonship that might occur anyhow. " After referring to the relevant texts of Apararka, Smriti Chandrika, Battaka Chandrika, Madhava, Visvesvara Bhatta, Vivada Chintamani, Dayabhaga, Dattaka Mimansa, Nirnaya Sindhu of Kamalakara Vyavahara Mayukha of Nilkantha and the Dharma Sindhu of Kasi Natha, Shri Rajkumar Sarvadhikari states in 'the Principles of the Hindu Law of Inheritance ' (Tagore Law Lectures, 1880) at pages 407 409 as follows: "This catena of texts will prove to you that the practice of affiliating different kinds of sons has become obsolete at the present day. The only exception is the dattaka, or the son given by his parents. It may be said that the Mitakshara, the Dayabhaga, and the Vivada Chintamani the leading authorities in the Benares, the Bengal, and the Mithila Schools seem still to countenance the practice. That these schools do not recognise such a custom is proved beyond question by the other text writers of these schools, who have followed the lead of Vijnanesvara, Jimutavahana and Vachaspati Misra. The authority of Visvesvara Bhatta, Madhava, Kamalakara, Nanda Pandita, and Jagannatha is quite enough to 43 show that the ancient practice of affiliating different kinds of sons has fallen into desuetude in this age. The dictum of Jagannatha of the Bengal School establishes beyond question the fact that the practice of affiliating daughters in default of male issue, and the other forms of adoption enumerated by Manu, has become wholly obsolete in the present age. The same may be said also of the Benares School, Visvesvara Bhatta, Madhava, Nirnaya Sindhu, and Dharma Sindhu give plain and unequivocal answers on this point "the practice is forbidden in the present age". The authority of Visvesvara Bhatta is highly respected in the Mithila School. The words of Madhava and Kamalakara carry universal weight. The Dattaka Mimansa and the Dattaka Chandrika, the two standard treatises on adoption, are the reigning authorities in all the schools; and we have seen that both of them strongly denounce the practice. The Smriti Chandrika and the Vyavahara Mayukha have forbidden the practice in the Dravira and the Maharashtra Schools. It is plain, therefore, that the adopted son is the only secondary son recognised in the present age. It may reasonably be asked, however, "how is it, if the practice of affiliating secondary sons be obsolete in the present age, that Vijnanesvara, Vachaspati Misra, and Jimutavahana devote such a large space in their treatises in discussing the rights of subsidiary sons?" The question may be answered in the words of Jagannatha: "They did so to complete that part of the book. They did so simply to show the nature of the practice as it existed in former ages. They merely gave a historical review of the subject, and did not enjoin the practice in the present age. The fact is, the practice was still lingering in some parts of the country when the authors of the Mitakshara, Chintamani, and the Dayabhaga promulgated their laws. The discussion of the rights of secondary sons, then was, in the language of Jagannatha, for the benefit of those who "not having seen the prohibitory texts still admitted the filiation of the subsidiary sons". We can by no means admit that the practice universally prevailed at the time of Vijnanesvara, Vachaspati Misra, and Jimutavahana. 44 It was strongly denounced by Vrihaspati and others. But it is not improbable that the custom was at its last gasp at the time of Vijnanesvara. Aprarka, Devandara, and Madhava, coming after the author of the Mitakshara, abolished it altogether. The custom might have partly revived in some parts of India at the time of Vachaspati Misra and Jimutavahana, and that might have been partly the reason of their discussing the nature of the custom in their works. Apart from the question whether such a practice prevailed at the time of Vijnanesvara, Vachaspati Misra, and Jimutavahana, there is not the shadow of a doubt that the practice is obsolete at the present days. Our authority for making this statement is the opinion of Devananda, Kamalakara, Nanda Pandita, Nilakantha and Jagannatha. The last four authors are the most recent authorities on the subject, and their evidence as to the non existence of the custom at the present day cannot be questioned. Their words authoritatively settle the point that the custom has been entirely abrogated in the present age." After quoting the text of Vrihaspati: Anekdhaah kritah puthra rikshibhiryeapratanah na shakyantedhuna karttoo shaktihinairidantanaih (Sons of many descriptions who were made by ancient saints cannot now be adopted by men, by reason of their deficiency of power). Jogendra Smarta Siromani observes in his Commentary on the 'Hindu Law ' (1885 edition) at page 112 thus: "All the secondary sons, with the exception of the Dattaka, have not only become obsolete, but according to the Shastras, they are not sons at all in the present age. " At page 148 in the same book, he further observes: "The Kritrima form of adoption prevails only in Mithila, Nanda Pandita recognizes it as legal notwithstanding the text of Adita Purana which declares that in the present age all the secondary sons have become obsolete with the exception of the Dattaka (see Mimansa, section II, para 65)." John D. Mayne, the author of 'Mayne 's Treatise on Hindu Law and Usage ' (11th Edition) states at page 114: "The truth is that there were only two kinds of sons, the aurasa and the adopted son. The list of twelve or thirteen sons 45 was obviously due to the systematising habit of Sanskrit writers. " In 'Mulla 's Principles of Hindu Law ' (14th Edition), it is stated at page 115 thus: "The daughter 's son occupies a peculiar position in the Hindu law. He is a bhinna gotra sapinda or bandhu, but he comes in before parents and other more remote gotraja sapindas. The reason is that according to the old practice it was competent to a Hindu who had no son to appoint a daughter to raise up issue to him. Such a daughter, no doubt was the lawful wife of her husband, but her son, called putrika putra, becomes the son of her father. Such a son was equal to an aurasa or legitimate son, and took his rank, according to several authorities, as the highest among the secondary sons. Although the practice of appointing a daughter to raise up issue for her father became obsolete, the daughter 's son continued to occupy the place that was assigned to him in the order of inheritance and even now he takes a place practically next after the male issue, the widow and the daughters being simply interposed during their respective lives. " The portion underlined in the above extract is quoted with approval by the Privy Council in Ghanta Chinna Ramasubbayya & Anr. vs Moparthi Chenchuramayya Minor & Ors. (supra). N. R. Raghavachariar on 'Hindu Law Principles & Precedents ' (5th Edition) writes at page 78: "But with the settlement of the society to peace and order and the recognition and enforcement by some superior power of the mutual rights of the people, the idea of family relationship received a better refinement and definition, and all the sons excepting the Aurasa, the Dattaka and the son by a permanently and exclusively kept concubine (Dasiputra) have become obsolete. But the Putrika putra form of adoption, perfectly natural and consistent with the feelings of affection which a Hindu has towards his daughter 's son, is still prevalent in Malabar, though in other parts of India it has become obsolete". We find a detailed discussion of the aurasa and eleven or twelve kinds of subsidiary sons mentioned by ancient smriti writers in 'History of Dharmasastra ' (Vol. III) by P. V. Kane at pages 643 to 661. At page 657, the learned author writes 46 "In modern times the courts generally recognize only two kinds of sons, viz. aurasa and dattaka, the other kinds of sons being held to be long since obsolete. Vide Nagindas vs Bachoo (43 I.A. 56 at p. 67). But two more kinds of sons have been recognized in modern times in certain provinces only, viz. the kritrima in Mithila (modern Tirhoot) and the putrikaputra among the Nambudri brahmanas of Malabar, both of which will be dealt with below. " At page 659 in the same book, Shri P. V. Kane says: "The putrikaputra is no longer recognised anywhere in India except among the Nambudri brahmanas of Malabar. " All the above digests, lectures and treatises support the view that the practice of appointing a daughter as a putrika and of treating her son as putrika putra had become obsolete several centuries ago. Whereas passages in the text books referred to above point out that the practice of appointing a daughter to raise an issue had become obsolete, we find the following passage in 'A Treatise on Hindu Law ' by Golapchandra Sarkar Sastri (Third Edition) at pages 124 125 striking a slightly different note: "Putrika putra: It is most natural that a person destitude of male issue, should desire to give a grandson by daughter the position of male issue. The appointed daughter 's son is not regarded by Manu as a secondary son, but is deemed by him as a kind of real son. This form of adoption appears to prevail in the North Western Provinces, and neighbouring district. The Talukdars of Oudh submitted a petition to Government for recognising the appointed daughter 's son; and accordingly in the Oudh Estates Act "son of a daughter treated in all respects as one 's own son" is declared to be heir, in default of male issue. This sort of affiliation appears to be most desirable and perfectly consistent with Hindu feelings and sentiments; there is no reason why it should not be held valid, when actually made by a Hindu. The Dattaka Mimansa appears to have been written on purpose to invalidate the affiliation of a daughter 's son, for the benefit of agnate relations. " We do not think that the above passage in any way supports the case of the appellants. The author of the above book appears to make a special plea for reintroducing the institution of putrika putra. He does not refer to any prevailing practice of affiliation of a putrika putra 47 in accordance with Hindu Sastras. The reference to the passing of the Oudh Estates Act instead of supporting the case of the appellants weakens it. We have dealt with this point in detail while dealing with the case of Lal Tribhawan Nath Singh (supra). Sir E. J. Trevelyan also does not approve of this statement of Golapchandra Sarkar Sastri. Jogendra Chunder Ghose in his book entitled 'The Principles of Hindu Law ' (1903 Edition) observes at pages 77 78: "It remains to record the changes in the Hindu Law brought about by the ingenuity of the Judges and lawyers of our modern Courts. The position of the son, grandson, and great grandson remains unchanged. The Putrika and the Putrika Putra are not recognized in spite of all the Rishis and all the Commentators. The daughter takes after the widow according to the text of Yajnavalkya, but she is given a life interest against all authority, and for reasons invented by the Bengal lawyers. The daughter 's sons come next, and they are declared to take per capita against all the Rishis and all the Commentators who have dealt with that question. " From the above passage it is clear that the institutions of putrika and putrika putra have become obsolete. But the tirade against Bengal lawyers is uncharitable. They are not responsible for the change. In fact it is Hindu society which brought about such a change. We shall presently deal with the reasons which were responsible for such a change. In the course of the arguments learned counsel for the appellants strongly contended that there was no justification to deny the right to a Hindu to take a son in the putrika putra form when it had been sanctioned by Yajnavalkya in his Smriti and by Vijnanesvara in his Commentary, the Mitakshara. It was contended that merely because there were no instances where the said practice was followed in the immediate past, it could not be held that it had ceased to be a part of Hindu law. It is seen from the several texts of commentaries extracted in the course of this judgment that the practice of taking a son in putrika putra form had become obsolete in modern times and there are good reasons in support of that view. Before dealing with such reasons, we should keep in our view one of the statements of Vrihaspati which says thus: Dharmapi loka vikrikshatang na kuryata loka virudhang nacharet (Even if a rule is propounded by the Smritis, it should not be practised if it is rejected by the people or is opposed to their will). A 48 rule of interpretation lays down that if there is a clear usage to the contrary, the Shastra has to yield. If there is divergence of opinion amongst the Smritis, a Judge should consult the prevailing practice among the people while deciding a case. There is another injunction of Vrihaspati which is very salutary: Kewalang shastramashritya nakartvyo hi nirnayah yukti hine vicharetu dharma hanih prajayate (The decision (in a case) should not be given by merely relying on the Sastras, for in the case of a decision devoid of reasoning loss of dharma results). We shall now examine the reason for the abandonment of the practice of appointing a daughter to raise a son by the Hindu society. Originally according to a vedic text cited by Lakshmidhara, a daughter was like a son, and a daughter 's son was like a son 's son. Manu prescribed that he who had no son might make his daughter in the following manner an appointed daughter (putrika) saying to her husband 'The (male) child born of her, shall perform my funeral rites ' Aputronena vidihina sutang kurvit putrikam yadapatyang bhawedasyah tanmasyata swadhakarang According to Manu 'A son is even as one 's self, daughter is equal to a son, how can another (heir) take the estate, while (such daughter who is) one 's self, lives. The daughter 's son shall take the whole estate of his maternal grand father who leaves no male issue. Between a son 's son and the son of a daughter, there is no difference according to law. But if, after a daughter has been appointed, a son be born (to her father) the division (of the inheritance) must in that (case) be equal, for there is no right of primogeniture for a woman". Apastamba declared 'The daughter may take the inheritance of a sonless man '. Yajnavalkya said 'The son of a putrika is equal to him (the son). Narada stated 'in failure of a son, the daughter succeeds because she continues the lineage just like a son '. From the above texts, it is obvious that in ancient times, the daughter and the daughter 's son were given preference over even the widow of a person in the matter of succession. It is said that ancient 49 commentators like Medha thi thi and Haradatta had declared that the widow was no heir and not withstanding some texts in her favour, her right was not fully recognised till Yajnavalkya stated that the widow would succeed to the estate of a sonless person. In Yajnavalkya Smriti, the order of succession to a male was indicated in the following order: (1) son, grandson, great grandson (2) putrika putra (3) other subsidiary or secondary sons, (4) widow and (5) daughter. After daughter, it was not expressly stated that daughter 's son would succeed, but the parents were shown as the successors. Vijnanesvara, however, interpreted the word (cha), which meant 'also ' in (Duhitaraschaiva) in the text of Yajnavalkya laying down the compact series of heirs as referring to daughter 's son. The relevant text of Yajnavalkya has been quoted above. Vijnaneswara interpreted the word 'cha ' referred to above as follows: Cha shavdadaduhitrabhave douhitre dhanbhaka yathah vishnuh aputhra pouthra santhane douhithra dhanmanpuyuh, poorvekshantu swadhaakare pouthra douhithraka mata" itee. manurapi akrita wakrita wapi yang vindeta sadhrisha sutang pouthri maathamahasthen dadynat pindang haredhanmiti (By the import of the particle, 'also ', the daughter 's son succeeds to the estate on failure of daughters. Thus Vishnu says "If a man leaves neither son, nor son 's son, nor wife, nor female issue, the daughter 's son shall take his wealth. For in regard to the obsequies of the ancestors, daughter 's sons are considered as son 's son. Manu likewise declares 'By that male child, whom a daughter whether formally appointed or not shall produce from a husband of an equal class, the maternal grandfather becomes the grandsire of a son 's son: let that son give the funeral oblation and possess the inheritance.) It may be noticed that but for the above interpretation of the word 'cha ' a daughter 's son would have come in as an heir after all agnates as the daughter 's son is only a cognate (Bandhu). As a result of the above interpretation, the daughter 's son was promoted in rank next only to his maternal grand mother and his mother whose interest in the estate was only a limited one. Viewed from this situation, the reason for abandoning the practice of appointing a daughter as putrika and treating her son as putrika putra becomes clear. When a person had two or more daughters, the appointment of one of them would give her primacy over the wife and the other daughters (not so appointed) and her son (appointed daughter 's son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i.e. the other sons of the appointed daughter). Whereas in the case of plurality of sons all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded. It is 50 probably to prevent this kind of inequality which would arise among the daughters and daughter 's sons, the practice of appointing a single daughter as a putrika to raise an issue must have been abandoned when people were satisfied that their religious feelings were satisfied by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of the daughter 's sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders. In Ghanta Chinna Ramasubbayya & Anr. vs Moparthi Chenchuramayya, Minor & Ors. (supra), the Privy Council after quoting with approval a passage in D.F. Mulla 's Book on Hindu Law (p. 40, 9th Edition) where it had been stated that although the practice of appointing daughter to raise up issue had become obsolete, the daughter 's son continued to occupy the place that was assigned to him in the order of inheritance observed thus: "The daughter 's son owes much to Vignaneshwara for his place in the scheme of the law of inheritance for, in the subjoined important text of Yajnavalkya, which forms the entire basis of the Mitakshara law of succession the daughter 's son is not expressly mentioned. "The wife, and the daughters also, both parents, brothers likewise and their sons, cognates, a pupil and a fellow student: on failure of the first among these, the next in order is indeed heir to the estate of one, who departed for heaven leaving no male issue. This rule extends to all persons and classes," Colebrook, Mit. ii section 1, vs 2. By interpreting the particle "also" in the above text, Vignaneshwara gave the daughter 's son a place in the law of inheritance. "By the import of particle 'also ' (sects. 1 and 2) the daughter 's son succeeds to the estate on failure of daughters. Thus Vishnu says 'if a male leave neither son, nor son 's son nor (wife nor female) issue the daughter 's son shall take his wealth for in regard to obsequies daughter 's sons are considered as son 's sons. '", Colebrook, Mit. ii, section 2, vs 6. It is interesting to note the remark of Mandlik on the above interpretation by Vignaneshwara. He says: "After the word daughter 's son in the above text occurs the particle (Chaiva) 'also ', to give some sense to which Vignaneshwara introduces here, the daughter 's son in conformity with a text of Vishnu, 'the wealth of him ' who has neither sons nor grandsons goes to daughter 's son, for . . '," Compare Manu ch. IX; vs 136. (Mandlik 's translation, p. 221). By the above ingenious exposition, the famous compiler of the Mitakshara shaped the law into conformity with the needs of the day without appearing to make any change and 51 thus gave the daughter 's son his present place in the law of inheritance". Dr. Nares Chandra Sen Gupta in his Tagore Law Lectures, 1950 on 'Evolution of Ancient Indian Law ' also subscribes to the view that the institutions of putrika and putrika putra had become obsolete several centuries ago and observes at pages 146 148 thus: "In later Smritis, the Putrika has lost all her importance. For already the daughter as such is mentioned by them as heir, irrespective of her being a Putrika, after the sons and the widow. Manu too, while he begins by giving the formula by which a girl could be made a Putrika, in the immediately following slokas, says that a daughter and a daughter 's son as such inherit to a sonless person. In Yajnavalkya the Putrika is barely mentioned, but the inheritance of the daughter after the widow is well settled. Obsolesence of Putrika Now if a daughter and her son inherit as such and if every daughter 's son, and not merely the Putrika 's son inherits and, as in Baudhayana, offers oblations to the maternal grand father as such, all practical utility of Putrika disappears, and the institution naturally ceases to exist. The obsolescence of this custom in the time of Manu and Visnu and others appears from the absence of further details about this institution in any of these Smritis. Manu, indeed, true to its character as an encyclopedaeic digest of all texts gives us several texts relating to the Putrika, which belong to different strata of the history of law. It is singular, however, that in his enumeration of the twelve kinds of secondary sons (IX, 159,160) he omits any reference to the Putrika or her son. In another place (IX, 123 et seq.) however he deals with the Putrika 's son, but his treatment of the subject is mixed up with that of the daughter 's son generally. As already pointed out, he lays down the law that a Putrika is made by a contract at the time of marriage (IX, 127), but, immediately after that, he follows with a text laying down that a daughter 's son as such inherits to a sonless person and offers pindas both to the father and the maternal grand father (IX, 132). This he emphasizes by saying that the son 's son and the daughter 's son (not Putrika 's son alone) are equal in all respects (IX, 133, 136, 139). In IX, 140 he lays down the order in which the Putrika 's son offers pindas to his maternal ancestors, while in IX, 135 he says that on the Putrika dying sonless, her husband inherits to her, thus indicating 52 that a true husband wife relation for spiritual and legal purposes now exists between her and her husband. If we remember that the present text of the Manusamhita was essentially a compilation of all the texts of law which were current at the date of compilation in the name of Manu and that accordingly many texts are incorporated in it which had long become obsolete at that date, we shall be able to assess these texts at their proper value. It will then be seen that these texts, so far as the Putrika 's son goes, do not lay down anything which was not already laid down by Gautama, Vasistha and Baudhayana. The other texts, however, which give to the son of the daughter "akrita va krita va 'pi" "whether appointed or not" the same status as a Putrika 's son, belong to a later stratum already indicated in Vishnu. These texts practically nullify the provisions about Putrika putra who had evidently ceased to be an institution of any practical utility, so much so that he finds no place in Manu 's enumeration of the twelve secondary sons. Later Smritis, beyond occasionally mentioning the Putrikaputra among the twelve kinds of sons do not speak of them at all. The zeal upon the obsolescence of the Putrika along with the various other kinds of secondary sons, except the Dattaka, was set by the text of the Adityapurana which gives an index expurgatorius of laws forbidden in the Kali Age and mentions among others the recognition of sons other than Aurasa and Dattaka. This text, as the Smritichandrika, Parasara, Madhava and others observe, makes the institution of Putrika void in the Kali Age. From the historical point of view we can only look upon this as a record of the contemporary fact, that this practice had gone out of vogue. " We are broadly in agreement with the following passage occurring in Mayne 's Hindu Law (1953 Edition) at pages 181 182 which while dealing with the reason for putrika putra losing importance and the emergence of the adopted son as the only other son recognised by modern law states: "Apart from the exceptional kshetraja son, the prominence of the putrika putra or the son of an appointed daughter is an indication of the prevailing usage which was all in his favour. His equality in status with the aurasa son both for spiritual and temporal purposes was established from the earliest times and he had to offer pindas both to his father and to his maternal grandfather and he took the estate of his own father if he left no other son. In many respects therefore, he was like the son of two fathers and 53 it must have been increasingly felt that his father should not be deprived of the continuance of his own line. The son of the appointed daughter, in offering pindas to his mother, had to recite the gotra of his maternal grandfather, as in the putrikakarana marriage the gift of the girl was not complete. For religious purpose, this anomalous position of a son of two fathers must have been found to be unsatisfactory and, as a consequence, there was the repeated injunction not to marry brotherless maidens, which would make it difficult to secure suitable bridegrooms if the institution of putrikaputra was insisted upon. There was also the injustice to his uterine brothers who were excluded by their appointed brother from the enjoyment of their maternal grandfather 's property. Besides, the daughters other than the appointed daughter appear to have come into their own by the time of the Arthasastra of Kautilya. This must have led to the gradual recognition as heirs to the maternal grandfather of sons of daughters without any appointment, while at the same time the putrikaputra 's duty to offer pinda to the maternal ancestors was imposed also on the daughter 's son. But as the daughter 's son was only a bhinnagotra sapinda, it became necessary that an adoption of a son should be made whenever a continuation of the direct line was desired either for spiritual or temporal purposes. All these reasons must have powerfully operated to bring the adopted son into a new prominence. Accordingly, Manu provided for the identity of the adopted son with the family into which he was adopted. " Now that the practice of appointment of a daughter as putrika has become obsolete, all daughters and their sons stand in the same position. This perhaps is the reason as to why such practice was given up. It was in the alternative contended that when once it was established that at the time of the ancient Smritis, a Hindu had the right to appoint a daughter for the purpose of raising a son for him that right would continue to be in existence until it was taken away by a competent legislature a law making body as we understand today. It is also argued that the theory of a practice once recognized by law becoming obsolete was unknown. In support of the above submission, strong reliance was placed on the decision of the High Court of Madras in Pudiava Nadar vs Pavanasa Nadar & Ors.(1) In that case, the question before the High Court was whether the rule of Hindu law which excluded a congenitally blind person from inheritance had 54 become obsolete or not. The case was referred to a Full Bench as there was an earlier ruling of that Court in Surayya vs Subbamma(1) which had taken the view that the said rule had become obsolete and doubts had been entertained about the correctness of that view. In Surayya 's case (supra) Sadasiva Ayyar, J. observed: "I need not say that a rule becomes obsolete when the reason of the rule disappears through change of circumstances and environments in the society which was governed by that rule", while Napier, J. who agreed with him said that owing to improved methods of education there was no reason why such a disqualification should still continue and that it was open to the Court to enunciate that rule by declaring it to be obsolete. Schwabe, C.J. who presided over the Full Bench which decided Pudiava Nadar 's case (supra) after observing: "The next question is whether, assuming a blind man 's exclusion to have been the law at the date of the Mitakshara, it has since become obsolete. This, in my judgment, is a question of fact. A law does not cease to be operative because it is out of keeping with the times. A law does not become obsolete because it is an anachronism or because it is antiquated or because the reason why it originally became the law, would be no reason for the introduction of such law at the present time. " proceeded to state "In considering whether the custom has become obsolete in the sense of its having ceased to exist, the fact that it is an anachronism may be a proper matter to be taken into consideration, if there were evidence both ways, in weighing that evidence but otherwise it is of no importance. In this case, in my judgment, the evidence is all in favour of the custom having continued. There is no oral evidence before the Court and no statement of any text writer or any judgment to which our attention has been called that this custom has become obsolete in the sense of its having been discontinued. " Oldfield, J. agreed with the Chief Justice. Courts Trotter, J., the third Judge delivered a separate but concurring judgment in which he observed thus: "To my mind, before allowing a mandate such as I conceive this to be, to be disregarded, it must either be proved by evidence to be actually disregarded in practice at the present time and as I have already said there is no such evidence in this case or it must be shown by an examination of the smritis and commentaries 55 to have been obsolete at the time they were written, and that the authors thereof merely repeated parrot like the words of Manu and the Mitakshara as a maxim dignified by antiquity but not corresponding to the practice obtaining at the time either of the Mitakshara or of their own compilations. If it could be shown that commentators earlier than the Mitakshara had used language meaning or implying that the rule in this respect was obsolete, that might be a legitimate ground for the conclusion that the Mitakshara was merely repeating the words of Manu without inquiring whether the rule survived in force when the Mitakshara was written. If a commentator later than the Mitakshara used similar language, that might lead to a legitimate inference that, though in force at the date of the Mitakshara, the rule had subsequently become obsolete." Ultimately the Full Bench held that the rule which excluded a congenitally blind person from inheritance had not been shown to have become obsolete and that in the twentieth century any amendment to that rule could only be done by a legislature. It is stated that the ratio of this decision has been dissented from in two subsequent decisions of the Madras High Court in Amritammal vs Valli Mayil Ammal(1) and in Kesava vs Govindan(2). We are not concerned with the said subsequent opinions. But the fact remains that both Schwabe, C.J. and Coutts Trotter, J. who decided the Pudiava Nadar 's case (supra) did not state that a rule of Hindu law could not become unenforceable on the ground that it had become obsolete. The rule of desuetude or obsolescence has been applied by this Court while interpreting Hindu law texts. In Shiromani & Ors. vs Hem Kumar & Ors.(3) one of the questions which arose for consideration was whether the practice of allowing a larger share of property to the eldest son which was known as 'Jethansi ' or 'Jeshtbhagam ' had become obsolete and therefore unenforceable. The claim of a party to such larger share was negatived by this Court by applying the principle that the rule though founded in the Sastras had become obsolete. In doing so, this Court relied on a passage in the Mitakshara, which when rendered into English read thus: "Unequal division though found in the sastras (e.g. Manu IX, 105, 112, 116, 117, Yaj. 114) should not be practised because it has come to be condemned by (or has become hateful to) the people, since there is the prohibition (in Yaj. I. 156) that an 56 action, though prescribed in the sastras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven. For example, though Yaj. I. 109 prescribes the offering of a big ox or a goat to a learned brahmana guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a cow 'one should sacrifice a barren cow called anubandhya for Mitra and Varuna ', still it is not done because people condemn it. And it has been said "just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after giving a special share (to the eldest son) does not now exist". There is another instance where an ancient rule regarding a form of marriage has been held to have become obsolete by courts. Gandhava form of marriage had been permitted and recognised in ancient times. Apart from Manu and some other Smritis recognising it, we have the following sloka in Kalidasa 's Abhijnana Sakuntalam: Gandhaverven vivahen bahwayo rajarshi kanyakah shruyante parirnitashtah pithrivischabhinanditah (Many daughters of royal sages are heard to have been married by the ceremony called Gandharva, and (even) their fathers have approved them). But in Bhaoni vs Maharaj Singh(1) and Lalit Mohan vs Shyamapada Das(2) it was held that the Gandharva form of marriage could not be recognized as valid marriage as it had become obsolete. While interpreting the ancient texts of Smritis and Commentaries on Hindu Dharmasastra, we should bear in mind the dynamic role played by learned commentators who were like Roman Juris Consults. The commentators tried to interpret the texts so as to bring them in conformity with the prevailing conditions in the contemporary society. That such was the role of a commentator is clear even from the Mitakshara itself at least in two places first, on the point of allotment of a larger share at a partition to the eldest son which is discussed above and secondly on the question of right of inheritance of all agnates. The second point is elucidated by the Privy Council 57 in the following passage in Atmaram Abhimanji vs Bajirao Janrao & Ors.(1) "It was however, recognized in course of time that the rule enunciated in the ancient texts, giving the right of inheritance to all agnates, however remote, and placing the cognates after them, was not in conformity with the feelings of the people; and Vijnaneswara, when writing his commentary Mitakshara on the Smriti of Yajnavalkya, probably found that a usage had grown up restricting the samanodaka relationships to the fourteenth degree. He accordingly refrained from endorsing the all embracing rule of Yajnavalkya, and while mentioning it in the verse dealing with the subject, he gave prominence to the restricted scope of the word, and supported it by citing Vrihad Manu. It must be remembered that the commentators, while professing to interpret the law as laid down in the Smritis, introduced changes in order to bring it into harmony with the usage followed by the people governed by the law; and that it is the opinion of the commentators which prevails in the provinces where their authority is recognized. As observed by this Board in Collector of Madura vs Moottoo Ramalinga Shathupathy (1868) 12 Moo. I.A. 397, 436, the duty of a judge "is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For under the Hindoo system of law, clear proof of usage will outweigh the written text of law." Indeed, the Mitakshara "subordinates in more than one place the language of texts to custom and approved usage": Bhyah Ram Singh vs Bhyah Ugur Singh (1870)13 Moo. I.A. 373, 390. It is, therefore, clear that in the event of a conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted. " The importance of the role of the commentators is explained by P.B. Gajendragadkar, J. (as he then was) in his article entitled "The Historical Background and Theoretic basis of Hindu Law ' in the 'Cultural Heritage of India ' (Vol. II) at page 427 published by the Ramakrishna Mission Institute of Culture thus: "In due course of time, when the distance between the letter of the Smritis and the prevailing customs threatened to get wider, commentators appeared on the scene, and by adopting ingenious interpretations of the same ancient texts, they achieved 58 the laudable object of bringing the provisions of the law into line with popular usages and customs. The part played by Vijnanesvara in this connection deserves special mention. The fiction of interpretation is seen in the three systems of jurisprudence known to us, the Roman, the English, and the Hindu system. But as Mr. Sankararama Sastri points out, there is an interesting distinction among the three systems on this point. Whereas the authority of the English case law is derived from the Bench, that of the Roman Responsa Prudentium and the Sanskrit commentary is derived from the Bar. While in England the development of law is left entirely to the exigencies of disputes actually arising for adjudication, in India and at Rome, it was possible for the jurist to evolve and homogeneous body of Laws without reference to actually contested cases. In this connection, it may be interesting to refer to the observations of Bentham that a legal fiction is a "willful falsehood having for its object the stealing of legislative power by and for hands which could not and durst not openly claim it and but for the delusion thus produced could not exercise it. Nevertheless, the legal fiction of interpretation has played a very progressive part in the development of Hindu Law. It is because this process was arrested during the British rule in this country that Hindu Law came to be fossilized, as judges relied mainly on the commentators without taking into account the changing customs and usages in the Hindu community. " It was next contended by the learned counsel for the appellants that the rule against the appointment of a daughter by a Hindu to beget an issue for himself in Kali age enunciated by Saunaka and others should be treated as only directory and if any person appointed a daughter for that purpose in contravention of that rule still her son would become putrika putra of the person so appointing, with all the privileges of a putrika putra. In support of the above contention, reliance was placed on the decision of the Privy Council in Sri Balusu Gurulingaswami vs Sri Balusu Ramalakshmamma & Ors.(1) in which it had been held that the adoption of an only son though prohibited, having taken place in fact was not null and void under Hindu law. In that case, the Privy Council was faced with divergent opinions of the Indian High Courts on the interpretation of the relevant texts and was also probably moved by the creation of a number of titles which had been done on the basis of the opinions of some High Courts which had taken the view that the textual prohibition was only directory and not mandatory by applying a rule of interpretation expound 59 ed by Jamini, the author of 'Purva Mimansa ' that all texts, supported by the assigning of a reason were to be deemed not as vidhi but as arthavada or recommendatory. The Privy Council had to reconcile in that case a number of inconsistent commentaries and judicial decisions. Ultimately it upheld the adoption with the following observations which were made with a lot of reservation: "But what says authority? Private commentators are at variance with one another; judicial tribunals are at variance with one another; and it has come to this, that in one of the five great divisions of India the practice is established as a legal custom, and of the four High Courts which preside over the other four great divisions, two adopt one of the constructions and two the other. So far as mere official authority goes there is as much in favour of the law of free choice as of the law of restriction. The final judicial authority rests with the Queen in Council. In advising Her Majesty their Lordships have to weigh the several judicial ulterances. They find three leading ones in favour of the restrictive construction. The earliest of them (in Bengal, 1868) is grounded on a palpably unsound principle, and loses its weight. The second in time (Bombay, 1875) is grounded in part on the first, and to that extent shares its infirmity, and in part on texts of the Mitakshara, which are found to be misleading. So that it, too, loses its weight. The third (Bengal, 1878) is grounded partly on the first, and to that extent shares its infirmity; but it rests in great measure on more solid ground, namely, an examination of commentators and of decided cases. It fails, however, to meet the difficulty of distinguishing between the injunction not to adopt an only son and other prohibitive injunctions concerning adoptions which are received as only recommendatory; the only discoverable grounds of distinction being the texts of the Mitakshara, which are misleading, and the greater amount of religious peril incurred by parting with an only son, which is a very uncertain and unsafe subject of comparison. The judicial reasoning, then, in favour of the restrictive construction is far from convincing. That the earliest Madras decision rested in part on a misapprehension of previous authority has been pointed out; and the Madras reports do not supply and close examination of the old texts, or any additional strength to the reasoning on them. The Allahabad Courts have bestowed the greatest care on the examination of those texts, and the main lines of their arguments, not necessarily all the by ways of them, command their Lordships ' assent. Upon their own examination of the Smritis, their Lordships find them by 60 no means equally balanced between the two constructions, but with a decided preponderance in favour of that which treats the disputed injunctions as only monitory and as leaving individual freedom of choice. They find themselves able to say with as much confidence as is consistent with the consciousness that able and learned men think otherwise, that the High Courts of Allahabad and Madras have rightly interpreted the law and rightly decided the cases under appeal." Proceeding further, the Privy Council observed: "A Court of Justice, which only declares the law and does not make it, cannot, as the Legislature can, declare it with a reservation of titles acquired under a different view of it. But their Lordships are placed in the position of being forced to differ with one set of Courts or the other. And so far as the fear of disturbance can affect the question, if it can rightly affect it at all, it inclines in favour of the law which gives freedom of choice. People may be disturbed at finding themselves deprived of a power which they believed themselves to possess and may want to use. But they can hardly be disturbed at being told that they possess a power which they did not suspect and need not exercise unless they choose. And so with titles. If these appeals were allowed, every adoption made in the North West Provinces and in Madras under the views of the law as there laid down may be invalidated, and those cases must be numerous. Whereas, in Bengal and Bombay the law now pronounced will only tend to invalidate those titles which have been acquired by the setting aside of completed adoptions of only sons, and such cases are probably very few. Whether they demand statutory protection is a matter for the legislature, and not for their Lordships to consider. It is a matter of some satisfaction to their Lordships that their interpretation of the law results in that course which causes the least amount of disturbance. " In these appeals we are not faced with the situation with which the Privy Council was confronted. No judicial decision of any court where a title had been upheld on the basis of putrika putra form of adoption has been brought to our notice. If really such a practice was prevailing in recent centuries, persons with only daughters and no sons being not uncommon there should have arisen a number of cases. We may remember that the Privy Council while deciding the case of Thakoor Jeebnath Singh (supra) observed that it was not necessary to decide the validity of the practice of appointment of a daughter to raise an issue 'although there certainly does not appear to have arisen 61 in modern times any instance in the courts where this custom has been considered '. The only case where such a title was set but not established was the case of Lal Tribhuwan Nath Singh (supra) which has been dealt with separately by us. Moreover we are not concerned in this case with the eligibility of a person being taken in adoption but the existence of the very institution of putrika putra itself. When we have the predominant opinion of commentators supporting its non existence in the last few centuries extending to a period prior to the life time of Raja Dhrub Singh and there are good reasons for the Hindu society abandoning it, it would be inappropriate to resurrect the said practice by placing reliance on the above argument of the learned counsel, which in the circumstances appears to be highly tenuous. At this stage, it should be stated that the High Court after considering in detail the evidence on record came to the conclusion that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu law and not by the Mithila School (See para 64 of the judgment of G.N. Prasad, J. and paras 229 and 230 of Madan Mohan Prasad, J.). No ground was made out by the learned counsel for the appellants in these appeals to take a different view. We hold that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and there is no occasion to apply principles of the Mithila School of Hindu law to the present case. The question whether the family was governed by the Benaras School or by the Mithila School became relevant before the High Court as an attempt was made by the appellants herein relying on some commentaries which were considered as having local application to show that the practice of appointment of a daughter to raise an issue was in vogue amongst those governed by the Mithila School. The said commentaries on which reliance was placed by the appellants have been dealt with in detail by Madan Mohan Prasad, J. in paragraphs 204 to 215 of his judgment. Summarizing his views on them, Madan Mohan Prasad, J. Observes at paragraphs 214 and 215 of his judgment thus: "214. It will thus appear that of all the other writers of Mithila School mentioned earlier, Pandit Amarit Nath Jha is the only one who has unequivocally said that during the Kali age these four kinds of sons, viz. Aurasa, Dattaka, Kritrima and Putrika putra, can be made and recognised. It will, however, appear that he has taken no note of Saunaka and Adityapuran. Even though he has referred to Nanda Pandit and discarded the Kshetraj on account of the interpretation by Nanda Pandit, he 62 has not referred to the prohibition of Saunaka and the acceptance thereof by Nanda Pandit and naturally, therefore, he has given no reasons for differing with Nanda Pandit and the several other commentators who have been discussed earlier and who accepted the prohibition of Saunaka so as to include the Putrika Putra. 215. The learned author of this book is a product of the 19th century. Whether the custom of Putrika Putra obtain in Mithila is a question which cannot be answered merely on the basis of the precept of this writer that even during the Kali age such sons should be made. It may be recalled that the Privy Council in the case of Thakur Jeebnath said that for more than a century not a single case of adoption in the form of Putrika Putra was brought to their Lordship 's notice. Barring the few cases of Narsing Narain, Thakur Jeebnath and Babui Rita Kuer no other case was brought to our notice even today where the custom of Putrika Putra had been alleged or decided. Be that as it may, nobody has claimed any authority for Pandit Amrit Nath Jha, except with respect to the Mithila School. His authority will, therefore, lend support, if at all, to the case of the plaintiffs of Title Suit No. 25 of 1958, only if they are abloe to establish that the Bettiah Raj family was governed by the Mithila School of Hindu law. I may state here that the conclusion which I have arrived at on this question is that the evidence in this case does not prove that the aforesaid family was governed by the Mithila School; on the other hand it is clear that it was governed by the Benares School of Hindu Law and in view of that the authority of Pandit Amrit Nath Jha is of no avail to the plaintiffs. " We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. On a consideration of the entire matter, we hold that throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of Kerala. We should also record that the High Court has taken the view on a careful analysis and consideration of the entire material before it that Raja Dhrub Singh had in fact not appointed his daughter as a putrika to beget a putrika putra for him. Apart from the 63 evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G.N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G.N. Prasad, J, which reads thus: "73. All these statements reveal a strange state of affairs. Ambika (plaintiff No. 1) thought the plea with regard to the Kritrim form of adoption to be correct, but Kamleshwari (plaintiff No. 6) thought it to be incorrect. Ambika had no knowledge of any plea of Dattak form of adoption having been set up on his behalf. Kamleshwari not only characterised that plea to be wrong but even disclaimed to have any such plea having been taken on his behalf. In other words, the plea of Dattak form of adoption was taken without the knowledge or authority of either of the two deposing plaintiffs, namely Ambika (D.W. 15) and Kamleshwari (D.W. 27), and it was evidently done at the initiative of the Karpardaz of the legal adviser of the plaintiffs of the title suit No. 25, who obviously could have no personal knowledge of the real facts, although, however, the plea of Dattak form of adoption was also given up at a later stage. The multiplicity of the various pleas cannot be lost sight of while dealing with the surviving plea of Putrika Putra form of adoption, particularly when this also was not taken in the first instance. It seems to me that the entire case of adoption put forward on behalf of the plaintiffs of Title Suit No. 25 is the product of imagination of their legal advisers, having little relation with true facts." After giving our anxious consideration to all aspects of the case, we hold that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete long before the life time of Raja Dhrub Singh and Raja Jugal Kishore Singh could not, therefore, in law be considered as putrika putra of Raja Dhrub Singh. It follows that the appellants who claim the estate on the above basis cannot succeed. In view of the foregoing, it is not necessary for us to go into the question whether the decisions of the Privy Council rendered prior to the abolition of its jurisdiction over India were binding on the Indian Courts, which is precisely the question formulated in the certificate issued by the High Court. For the foregoing reasons, the appeals (Civil Appeals Nos. 114 119 of 1976) alongwith the Special Leave Petition therefore fail and are dismissed. In the circumstances of the case, we absolve the appellants from the liability to pay costs in all the courts. S.R. Appeals dismissed. [/INST]Section 68F(1D) of the provides that no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme. Respondent No. 2 was a private operator operating a Stage carriage route. Its permit was due to expire on October 9, 1974 and it applied for its renewal. The application was notified on June 5, 1974 under section 57(3) of the . Objections to the renewal application were filed by the appellant Corporation on June 25, 1974 which also simultaneously applied for the grant of a permit to itself. The Regional Transport Authority fixed December 21, 1974 for hearing and the case was adjourned. In the meanwhile, respondent No. 2 filed a Writ Petition and challenged the validity of Rule 155A of the Motor Vehicles Rules and obtained stay of the hearing of the matter which was pending before the Regional Transport Authority. The validity of the said rule was upheld by the High Court and the writ petition was dismissed. A draft scheme of road transport service of the appellant corporation was published on June 4, 1976 under section 68C of the Act and that scheme overlapped a section of the route operated by respondent No. 2. The Regional Transport Authority rejected the application of respondent No. 2 on October 30, 1976 and granted a permit to the appellant, which order was confirmed by the State Transport Appellate Tribunal. The High Court, however in revision took the view that the matter fell within the purview of sub section (1D) of section 68, but held on a reading of the decision in Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr. ; , that the case fell within the purview of the "rider" to proposition No. 2 set out in that judgment with reference to the proviso to section (1D) of section 68F of the Act and allowed the revision petitions. Allowing the appeals to this Court, ^ HELD: (i) By virtue of the clear provision of sub section (1D) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the scheme under section 68C, and the date of publication of the approved or modified scheme, in favour of any person in any class of road transport service. [72E] 70 (ii) The High Court clearly went wrong in thinking that the case fell within the purview of the proviso to sub section (1D) and it consequently erred in taking into consideration the so called rider to proposition 2 mentioned in the judgment in Cheran 's case. [72F] (iii) The proviso would have been applicable only if the period of operation of the permit of the respondent had expired after the publication of the scheme prepared under section 68C; but that was not so in this case. [72F] In the instant case, it was respondent No. 2 who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order. </s>
<s>[INST] Summarize the judgementON: Civil Appeal No. 1557 of 1986 From the Judgment and Order dated 3.4.1986 of the Bombay High Court in Interim Petition No. 11 of 1986. K. Parasaran, Attorney General, B. Datta, Additional Solicitor General, S.S. Shroff, S.A. Shroff, R.K. Joshi, Mrs. P.S. Shroff. Anil K. Sharma and Mohan Parasaran for the Appellant. F.S. Nariman, S.N. Thakkar, Ravinder Narain, Gulam Vahamwati, section Sukumaran, D.N. Mishra, Adittiya Narain, Mrs. A.K. Verma and Miss Lira Goswami for the Respondent. The Judgment of the Court was delivered by 1031 THAKKAR, J. Was the High Court 'right ' in granting the restraint order earlier, and 'wrong ' in vacating the said order later '? By the order in question the Respondent, Western Company of North America (Western Company), was restrained from pro ceeding further with an action instituted by it in a USA Court against the appellant. Oil and Natural Gas Commission (ONGC). The said action was targeted at seeking a judgment from the concerned court in U.S.A. on the basis of an arbi tral award rendered by an Umpire in arbitration proceedings held in London but governed by the Indian , 194.0, which was the law of choice of the parties as per the arbitration clause contained in the drilling contract en tered into between the parties. The Western Company has moved the USA Court for a judgment in terms of the award not withstanding the fact that: 1) ONGC had already initiated proceedings in an Indian Court to set aside the award and the said proceeding was as yet pending in the Indian Court. 2) The said award was not as yet enforceable in India as a domestic award inasmuch as a Judgment in accordance with the Indian law had yet to be procured in an Indian Court, by the Western Company. The events culminating in the order under appeal may be briefly and broadly recounted. The appellant, ONGC and the Respondent Western Company, had entered into a drilling contract. The contract provided for any differences arising out of the agreement being referred to arbitration. The arbitration proceedings were to be governed by the Indian read with the relevant rules. A dispute had arisen between the parties. It was referred to two Arbitrators and an Umpire was also appointed. The Arbitra tors entered on the reference in London which was the agreed venue for hearing as per the Arbitration Clause contained in the contract. On October 1, 1985 the Arbitrators informed the Umpire that they were unable to agree on the matters outstanding in the reference. Consequently the Umpire en tered upon the arbitration and straightaway proceeded to declare his non speaking award (styled as interim award) on October 17, 1985 without affording any hearing to the par ties on the matters outstanding in the reference. The Umpire did not afford a hearing subsequent to his entering upon the arbitration presumably because even when the matter was within the domain of the Arbitrators (and not of the 1032 Umpire), and the Arbitrators were seized of the matter, the Umpire used to remain present at the hearings conducted by the Arbitrators. Having been present throughout the proceed ings whilst the Arbitrators were in charge of the same, the Umpire presumably considered it unnecessary to hear the parties or their counsel after he Was seized of the matter and it came within his domain in the wake of the disagree ment between the two Arbitrators. And the Umpire straight away proceeded to declare the interim award on October 17, 1985. Thereafter, on November 5, 1985, the Respondent, Western Company, requested the Umpire to authorise one Shri D.C. Singhania to file the award dated October 17, 1985 in the appropriate Court in India. The Umpire accordingly authorised the said Shri Singhania in this behalf. And pursuant to the said authority the award rendered by the Umpire was lodged in the Bombay High Court on November 22, 1985. Subsequently, on November 28, 1985 the Umpire rendered a supplementary award relating to costs which has been termed as 'final ' award. About a month after the lodging of the award in the High Court of Bombay by the Umpire at the instance of the Respondent, Western Company, the latter lodged a plaint in the U.S. District Court, inter alia, seeking an order (1) confirming the two awards dated October 17, 1985 and November 28, 1985 rendered by the Umpire (2) a Judgment against the ONGC. (Appellant herein) in the amount of $ 256,815.45 by way of interest until the date of he Judgment and costs etc. On January 20, 1986, appellant ONGC on its part insti tuted an Arbitration Petition No. 10 of 1986 under Sections 30 & 33 of the Indian for setting aside the awards rendered by the Umpire. Inter alia the challenge was rooted in the following. reasoning. While as per the Indian which admittedly governed the arbitration proceedings the Umpire would come on the scene only provided and only when the Arbitrators gave him notice in writing that they were unable to agree, and the Umpire would enter upon the reference in lieu of the Arbitrators only subsequent thereto, in the present case the Umpire had neither held any proceedings nor had afforded any opportuni ty of being heard to the ONGC after entering upon the refer ence. The appellant, ONGC, also prayed for an interim order restraining the Western Company from proceeding further with the action instituted in the U.S. Court. The learned Single Judge granted an ex parte interim restraint order on January 20, 1986 but vacated the same after hearing the parties by his impugned order giving rise to the present appeal by Special Leave. Interim Order No. 11 of 1986 passed on April 3, 1986 in Arbitration Petition No. 10 of 1986. 1033 In order to confine the dialogue strictly within the brackets of the scope of the problem, four points deserve to be made at the outset before adverting to the impugned order rendered by the High Court. 1) We are not concerned with the merits of the main dispute between the parties which was the subject matter of arbitration and which per tains to the charges payable for a jack up drilling unit and related services provided by Western Company to ONGC. The equipment was utilised beyond the period stipulated in the contract. In regard to the employment of the equipment beyond the contractual period West ern Company claimed payment at US $ 41,600 per operating day which was the rate stipulated for the user of the equipment for the stipu lated time frame. The ONGC on the other hand has contended that in the context of the correspondence between the parties pertaining to the employment of the equipment beyond the stipulated period the Western Company is entitled to claim only US $ 18,500 per day. The dispute concerns the claim for pay ment for the user of the equipment for the extended period (136 days and 16 hours). We are however not concerned with the merits of the claim giving rise to the dispute and differences which was referred to the Arbitra tors. 2) We are not concerned with the merits of the contentions raised in the petition instituted by ONGC in the High Court of Bombay in order to challenge the arbitral award rendered by the Umpire except to the limited extent of examining whether ONGC has a prima facie case. 3) We are not concerned with the question as to how an arbitral award which is not a domes tic award in India can be enforced in a Court in India in the context of the Indian legisla tion enacted in that behalf namely the Foreign Awards (Recognition and Enforcement) Act, 1961. The said Act was enacted in order to give effect to an international convention known as New York Convention to which India has acceded. The provisions of the said Act would be attracted only if a foreign award is sought to be enforced in an Indian Court. We are not concerned with such a situation. The award which is the subject matter of contro versy in the present case is admittedly a domestic award for the purposes of the Indian Courts, governed by 1034 the provisions of the Indian of 1940. When the Western Company seeks to enforce the award in question in the US Court they do so on the premise that it is a foreign award in the US Court. In considering the question as regards the proceeding initiated by the Western Company in the US Court, there is no occasion to invoke the provisions of the aforesaid Act. The provisions of the said Act can be invoked only when an award which is not a domestic award in India is sought to be enforced in India. Such is not the situation in the present case. We are therefore not at all concerned with the provisions of the said Act. 4) We are not directly concerned with the law governing the enforcement of the foreign award in an USA Court. We would be undertaking an inappropriate exercise in being drawn into a discussion in depth as regards the law govern ing enforcement of foreign awards in USA, the procedure to be followed, or as to the inter pretation of the relevant provisions as made by the US Court. So also it would be inappro priate to speculate on the view that is likely to be taken by the American Court or to antic ipate its interpretation or its verdict in regard to the relevant matters at that end. The order under appeal may now be subjected to scrutiny. The High Court has vacated the interim order granted by it earlier on the following grounds: 1) That it was open to the Western Company to enforce the award in the US Court and that accordingly it would not be appropriate to grant the injuction restraining them from enforcing the same at that end. 2) That it was open to the ONGC to contend before the US Court that the petition for setting aside the award which was sought to be enforced in the US Court was already pending in the Indian Court. 3) That the proceeding in the US Court cannot be said to be vexatious or oppressive. The High Court has examined the question as to whether the 1035 action instituted by the Western Company against ONGC was maintainable in the context of the New York Convention in the light of the relevant Articles of the Convention and has come to the conclusion that an action to enforce the award in question as a foreign award in the US Court was quite in order. The view is expressed that the mere fact that a petition to set aside the award had already been instituted in the Indian Court and was pending in the Indian Court at the time of the institution of the action in the US Court was a matter of no consequence, for the purposes of consid eration of the question as to whether or not Western Company should be restrained from proceeding further with the action in the US Court. Now, there cannot be any doubt that the Western Company can institute an action in the US Court for the enforcement of the award in question notwithstanding the fact that the application for setting aside the award had already been instituted and was already pending before the Indian Court. So also there would not be any doubt or dis pute about the proposition that the ONGC can approach the US Court for seeking a stay of the proceedings initiated by the Western Company for procuring a judgment in terms of the award in question. But merely on this ground the relief claimed by ONGC cannot be refused. To say that the Court in America has the jurisdiction to entertain the action and to say that the American Court can be approached for staying the action is tantamount to virtually cold shouldering the substantial questions raised by ONGC and ' seeking an escap ist over simplification of the matter. The points urged by the ONGC are of considerable importance and deserve to be accorded serious consideration. Prominence deserves to be accorded to the following factors which appear to be of great significance: 1) It is not in dispute that the arbitration clause contained in the contract which has given rise to the disputes and differences between the parties in terms provides that: "The arbitration proceedings shall be held in accordance with the provisions of the Indian and the rules made thereunder as amended from time to time." (Vide clause 14 of the Contract) 2) There is also an agreement between the parties that the validity and interpretation thereof shall be "governed by the laws of India" (vide clause 18 of the contract) 1036 3) Under the Indian Law, having regard to the scheme of the of 1940, an arbitral award as such is not enforceable or executable. It is only after the award is filed in the Indian Court and is made a rule of the Court by virtue of a judgment and decree in terms of the award that life in the sense of enforceability is infused in the lifeless award. (Vide Sections 141 and 172of the ) The situation which emerges is somewhat an incongrous one. The arbitral award rendered by the Umpire may itself be set aside and become non existant if the ONGC is able to Successfully assail it in the petition under section 30/33 for setting aside the award in question in ' India. The High Court does not hold that the petition is prima facie liable to fail. We do not wish to express any opinion on the merits of the petition as in our opinion it would be improper to do so and might occasion prejudice one way or the other. We are however not prepared to assume for the purpose of the present discussion that the petition is liable to fail. The question is wide open. The final decision of the Court cannot and need not be anticipated. In the light of the foregoing discussion, the following submissions, pressed into service by the appellant, ONGC, require to be examined. (1) The award sought to be enforced in the USA Court may itself be set aside by the Indian Court and in that 1. 14(1)&(2): "14.(1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbi tration and award. 2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbi tration and award and of the costs and charges of filing, the award cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. x x x" 2.17. Judgment in terms of award Where the Court sees no causc to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceeded to pronounce judg ment according to the award, and upon the judgment so pro nounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award. " 1037 event, an anomalous situation would be created. (2) Since the validity of the award in ques tion and its enforceability have to be deter mined by an Indian Court, which alone has jurisdiction under the Indian of 1940, the American Court would have no jurisdiction in this behalf. (3) The enforceability of the award must be determined in the context of the Indian Law as the arbitration proceedings are admittedly subject to the Indian Law and are governed by the Indian of 1940. (4) If the award in question is permitted to be enforced in USA without its being affirmed by a Court in India or a USA Court, it would not be in conformity with law, justice or equity. There is considerable force in the argument advanced in the context of the possibility of the award rendered by the Umpire being set aside by the Indian Court. In that event an extremely anomalous situation would arise inasmuch as the successful party (Western Company) may well have recovered the amount awarded as per the award from the assets of the losing party in the USA after procuring a judgment in terms of the award from USA Court. It would result in an irrevers ible damage being done to the losing party (ONGC) for the Court in the USA would have enforced a non existent award under which nothing could have been recovered. It would result in the valuable Court time of the USA Court being invested in a non issue and the said Court would have acted on and enforced an award which did not exist in the eye of law. The U.S.A. Court would have done something which it would not have done if the Western Company had waited during the pendency of the proceedings in the Indian Court. The parties would also be obliged to spend large amounts by way of costs incurred for engaging counsel and for incidental matters. The losing party in that event would be obliged to initiate fresh proceedings in the USA Court for restitution of the amount already recovered from it, pursuant to the judgment rendered by the USA Court in enforcing the award which is set aside by the Indian Court. Both the sides would have to incur huge expenditure in connection with the at tendent legal proceedings for engaging counsel and for incidental matters once again. All this would happen if the restraint order as prayed by the losing party is not grant ed. And all this can be avoided if it is granted. 1038 Equally forceful is the plea urged in the context of the argument that the concerned Court in India alone would have jurisdiction to determine the question regarding enforce ability or otherwise of the award in question, for, admit tedly, the arbitration proceedings are governed by the Indian of 1940. And that a proceeding under the Indian for affirming the award and making it a rule of the Court or for setting aside can be instituted only in an Indian Court. The expression "Court" as defined by Section 2(e)1 of the leaves no room for doubt on this score. Thus the Indian Court alone has the jurisdiction to pronounce on the validity or en forceability of the award in question. But the successful party (Western Company) has invoked the jurisdiction of the USA Court to seek affirmation of the award. In fact reliefs Nos. 1 and 2 claimed by the Western Company in the USA Court are in the following terms. 1) An order confirming the interim award dated October 17, 1985. 2) An order confirming the final award dated November 28, 1985. Thus, while as per the contract, parties are governed by the Indian and the Indian Courts have the exclu sive jurisdiction to affirm or set aside the award under the said Act, the Western Company is seeking to violate the very arbitration clause on the basis of which the award have been obtained by seeking confirmation of the award in the New York Court under the American Law. Will it not amount to an improper use of the forum in America in violation of the stipulation to be governed by the Indian law which by neces sary implication means a stipulation to exclude the USA Court to seek an affirmation and to seek it only under the Indian from an Indian Court? If the re straint order is not granted, serious prejudice would be occasioned and a party violating the very arbitration clause on the basis of which the award has come into existence will have secured an order enforcing the order from a foreign court in violation of that very clause. When this aspect was pointed out to the learned counsel for the Western Company in the context of another facet of this very question namely the possibility of the Indian Court taking one view and the American 1. "2(e) "Court" means a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of suit, but does not, except for the purpose of arbitration proceed ings under section 21 include a Small Cause Court. " 1039 Court taking a contrary view, counsel stated that though the Western Company had made a prayer for confirmation of the award, the New York Court had no jurisdiction under the Convention to confirm or set aside the award. It is not appropriate on the part of this Court to anticipate the decision of the New York Court. If the Western Company is aware of the legal position and is sure of the legal posi tion that the New York Court has no jurisdiction to confirm the award, pray why has the Western Company prayed for the said relief in the New York Court? We cannot proceed on the basis of the assertion made on behalf of the Western Company that the New York Court has no such jurisdiction. For ought we know the prayer made by the Western Company may well be granted and the legal position propounded by the counsel before us may not prevail with the New York Court. Surely, the Western Company itself is not going to contend before the New York Court that even though it has sought this relief the Court has no jurisdiction to grant it. In any case, the Western Company could have amended the plaint lodged in the New York Court by deleting this prayer which it has not done so far. Be that as it may, as the matter presently stands the appellant has invoked the jurisdiction of the New York Court to pronounce on the same question which is required to be pronounced upon by the Indian Court notwithstanding the fact that only an Indian Court has the jurisdiction to pronounce upon this vital question in view of the stipulation contained in the arbitration agreement itself. The appellant has invoked the jurisdiction of the New York Court in a matter which it could not have invited the New York Court to decide. The Western Company has also invoked the jurisdiction of a Court other than the Court which as per the arbitration agreement has the jurisdiction in the matter. And there is a likelihood of conflicting decisions on the very vital issue resulting in legal chaos. The apprehension about legal chaos is more than well found ed. Assuming that the American Court decides that it has jurisdiction to confirm the award and confirms the award, whereas the Indian Court forms the opinion that the award is invalid and sets it aside, what will happen? The Western Company would have recovered the amount as per the award in question by obtaining a judgment in the American Court upon the award being confirmed by the said Court. And the losing party, ONGC, would be helpless to recover the amount not withstanding the fact that the award has been set aside by the Indian Court, for, the amount would then not be recover able under the American law in the American Court, the latter having held the award to be valid. The questions posed to the counsel for the Western Company in this behalf and his answers relevant to the material extent, in his own words, along with the questions deserve to be quoted: 1040 QUESTIONS ANSWERS It is an award under Indian law Yes: this is precisely what regardless of the fact that it the convention contemplates was rendered by the umpire while The N.Y.proceedings is not sitting in London. Since law in a parallel proceeding but India does not make it enforce an independent concurrent able on mere filing of the award one permissible under US but only on it being made a rule Law and under article 1 of the (subject to its being corrected N.Y. Convention acceded to varied annulled or modified) by the U.S. the N.Y. Court should a parallel proceeding be will take into considerati permitted for its enforcement on the pendency of the pro outside India before it has bec ceedings in India; but it ome enforceable in India? Parti is for that Court to so c ularly when the Indian Court is exercise its discretion already seized of the matter and under article VI parties are bound by Indian law? Western company has prayed for: 1. An order confirming the The proceedings in New York Iterim award dated and Bombay do not involve October 17,1985. "the very matters which wi ll" have to be death with Now these are the very matters by the Bombay High Court" which will have to be dealt with The Bombay Court will not by the Bombay High Court in the have to consider whether to matter arising out of the filing issue an order of enforcem of the award The award may be ent against assets of ONGC, confirmed (or set aside) decree as will the New York Court. may be passed (or refused). Can Moreover, the New York Co these very matters be permitted urt will not have to deci to be agitated in the parallel de, as the Bombay Court proceedings under "American Law" will, whether to set aside when parties have in express terms the award. While the co agreed to be goverend by the law mplaint in the New York in India? And what will happen if case does make a prayer the Indian Court and the American to confirm (as well as Court take conflicting views ? enforce) the awards, the Which view will prevail? Will New York Court is without jurisdiction under the convention to confirm or set aside an award; it is only competent 1041 there not be legal chaos? to "recognised and enforce" foreign awards, as stated in paragraph 13 of the New York complaint. Thus, whatever the prayer for relief, the Bombay Court alone will decide the issues of confirmation/set aside,and there will not be any conflicting jurisdiction. There is no question as to which Court decision would prevail in the event of a conflicting result: the Indian Court judgment setting aside the awards. In that event ONGC could take the Indian Court decision to a court in the United States to have it recognized and enforced so as to recover any monies that Western may have obtained pursuant to an American Court order. The possibility of conflicting act comes in parallel pro ceedings such as these does not mean that one court must assert exclusive jurisdiction in order to prevent "legal chaos". The submission that while the validity of the award is required to be tested in the context of the Indian Law if the Western Company is permitted to pursue the matter in the American Court, the matter would be decided under a law other than the Indian Law, by the American Court. Admitted ly, Western Company has prayed for confirmation of the award. The American Court may still proceed to confirm the award. And in doing so the American Court would take into account the American law and not the Indian law or the Indian of 1940. And the American Court would be doing so at the behest and the instance of Western Compa ny which has in terms agreed that the arbitration proceed ings. will be governed by the Indian of 1940. Not only the matter will be decided by a Court other than the Court agreed upon between the parties but it will 1042 be decided by a Court under a law other than the law agreed upon. Should or should not such an unaesthetic situation be foreclosed? The last submission is also quite impressive. If the Western Company is right in the posture assumed by it in this Court at the time of the hearing that the American Court has no jurisdiction to confirm the award in view of the New York Convention is correct, the resultant position would be this: The award rendered by the Umpire, the validi ty of which is not tested either by an American Court or an Indian Court will have been enforced by an American Court. It will be an extremely uphill task to persuade the Court to hold that a foreign award can be enforced on the mere making of it without it being open to challenge in either the country of its origin or the country where it was sought to be enforced. And that its validity may perhaps be tested for academic purposes in the country of origin after the award is enforced and for seeking restitution later on if possible and if there are assets which can be proceeded against in the country where the award has been enforced. It is essen tial to emphasise at this juncture and in this context that under the Indian law, an arbitral award is unenforceable until it is made a rule of the Court and a judgment and consequential decree are passed in terms of the award. Till an award is transformed into a judgment and decree under Section 17 of the , it is altogether lifeless from the point of view of its enforceability. Life is in fused into the award in the sense of its becoming enforce able only after it is made a rule of the Court upon the judgment and decree in terms of the award being passed. The American Court would have therefore enforced an award which is a lifeless award in the country of its origin and under the law of the country of its origin which law governs the award by choice and consent. We are of the opinion that the appellant, ONGC, should not be obliged to face such a situation as would arise in the light of the aforesaid discussion in the facts and circumstances of the present case. To drive the appellant in a tight comer and oblige it to be placed in such an inex tricable situation as would arise if the Western Company is permitted to go ahead with the proceedings in the American Court would be oppressive to the ONGC. It would be neither just nor fair on the part of the Indian Court to deny relief to the ONGC when it is likely to be placed in such an awk ward situation if the relief is refused. It would be diffi cult to conceive of a more appropriate case for granting such relief. The reasons which have been just now articulat ed are good and sufficient for granting the relief and accordingly it appears unnecessary to examine the meaning and content of the relevant arti 1043 cles of the New York Convention for the purposes of the present appeal. All the same we will briefly indicate the questions which were debated in the context of the Conven tion since considerable debate has centred around the inter pretation and scope of some of the articles of the Conven tion. Article V(1)(e) provides that recognition and enforce ment of the award will be refused if the award "has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which or under the law of which that award was made. " It was contended on behalf of Western Company that the legislative history of the New York Convention discloses that under the Geneva Protocol given effect to by the Arbitration (Proto col and Convention) Act, 1937 it was provided that an award would not be enforced if it was not considered as 'final ' and it was not 'final ' if it is proved that any proceedings for the purpose of contesting the validity of the award were pending. This provision aroused a great deal of controversy as it was felt that the requirement of the Geneva Convention that the award has become final in the country in which it has been made was considered to be burdensome and inadequate and that the New York Convention has accordingly changed the format and the word "final" was replaced by the word "bind ing" in article V(1)(e) .In these premises it was argued that for the purposes of the Convention the award should be considered as binding if no further recourse to another arbitral tribunal was open and that the possibility of recourse to a Court of law should not prevent the award from being binding. On the other hand it was contended on behalf of ONGC that an award should be treated as binding only when it has become enforceable in the country of origin. It was argued that the word "binding" was used in the sense of an award from which the parties could not wriggle out. So far as the present matter is concerned it is unnecessary to examine this aspect at length or in depth for we are not resting our decision on the question as to whether the American Court is likely to refuse enforcement or not. As we indicated at the outset, it would be improper for us to anticipate the decision of the American Court on this as pect. We are inclined to rest our decision on the reasoning which we have indicated a short while ago. We would there 1. "V(1)(d) Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. " 1044 fore consider it appropriate to refrain from getting drawn into an academic debate on this issue. We however consider that it is desirable to bring into focus certain aspects of the matter in the context of the debate on this point. The significance of the expression "not yet become binding on the parties" employed in Article V(1)(e) cannot be lost sight of. The expression postulates that the Convention has visualised an award which becomes binding at a point of time later than the making of the award. In other words the provision has in its contemplation the fact that an award in some cases may become binding on the mere making of it and in some cases may become binding only at a later stage. If this was not so there was no point in using the expression "not yet become binding". The award which is sought to be enforced as foreign award will have thus to be tested with reference to the key words contained in Article V(1)(e) of the Convention and the question will have to be answered whether the award has become binding on the parties or has not yet become binding on the parties. It is evident that the test has to be applied in the context of the law of the country governing the arbitration proceedings or the country under the law of which the award was made. This conclusion is reinforced by the views expressed by Albert Jan Van den Berg in his treatise The New York Arbitration Convention of 1958 Towards a Uniform Judicial Interpretation at page 341 as under: "Most of the authors are also of the opinion that the moment at which an award becomes binding within the meaning of Article V(1)(e) is to be determined under the law governing the award. However, they also differ at which moment this should be assumed under that law. ' He has also referred to a judgment rendered by the Italian Supreme Court which supports this proposition. Says the author: "Furthermore, whilst declaring that the Con vention has eliminated the "double Exequatur", the Italian Supreme Court held that the Court of Appeal has correctly ascertained that the award in question, made in the United States, had become binding under the relevant law of the United States." (Corte di Cassazione (Sez. 1), April 1, 1980 No. 2448, Lanificio Waiter Banci S.a.S. vs Bobbie Brooks Inc. (Italy No. 40) affirming Corte di Appello of Florence, October 8, 1977 (Italy No. 29). 1045 The author has also adverted to this dimension of the matter at pages 338 to 340 of his treatise in the following pas sage: "Furthermore, the Courts have unanimously held that the party against whom the enforcement is sought has to prove that the award has not become binding. It still happens in some cases that a respondent merely asserts that the award has not become binding. In these cases the courts have invariably held that the respondent should furnish proof to this ef fect. The above interpretation of the term "binding" is also almost unanimously affirmed by the authors. To this extent there exists a uni formity of interpretation. The uniformity of the interpretation begins to waver, however, when it comes to the question at which moment an award can be considered to have become binding under Article V(1)(e). Although in no case has it been held hitherto that the award in question was to be consid ered as not having become binding, the various reasonings are diverse. If this situation continues, it may occur that an award will not be considered as binding by one court, whilst the same award would have been considered as binding by another court. In finding the answer to the question at which moment the award can be considered binding, the prevailing judicial interpretation seems to be that this question is to be determined under the law applicable to the award. The law applicable to the award is according to Arti cle V(1)(e), the law of the country in which, or under the law of which, that award was made (the country of origin). Several courts appear to search under the applicable law for the moment at which the award can be considered to be inchoate for enforcement in the country of origin. Others attempt to find an equivalent of the term "binding" under the arbitration law of the country of origin. Before the Court of Appeal of Naples, the Italian respondent had resisted to request for enforcement of an award made in London, alleg ing that the award should have been declared. enforceable in England. The Court rejected the 1046 defence, reasoning that the legal effect of the award was not to be determined under Italian law, according to which an award becomes binding only upon an enforcement order of the Pretore, but should be assessed under English law according to which the leave for enforcement is not necessary in order to confer binding force upon the award. Another example is the Court of First Instance of Strasbourg before which the French respond ent had asserted that the enforcement of an award made in F.R. Germany could not be grant ed because a leave for enforcement had not been issued by a German Court. Whilst observ ing that the Convention has abolished the "double exequatur", the Court reasoned that the award had become binding when it had been deposited with the German Court. The latter is indeed a prerequisite for the binding force (verbhindliehkeit) of an award under German law. The binding force of an award under German law was also considered by the Court of Appeal of Basle. The Court referred to the Report of the Swiss Federal Council (Conseil federal) accom panying the implementation of the Convention in Switzerland, in which it is stated that "an award is binding within the meaning of Article V(1)(e) when the award complies with the conditions required for being capable for being declared enforceable in the country in which it was made." The Court held that the award was binding on the ground that a decla ration of enforceability of the award had been issued by the Court of First Instance of Hamburg. This decision might create the impression that in order to be binding under Article V(1)(e), an award made in F.R. Germany must have been declared enforceable by a German Court. Howev er, the Swiss Consell federal merely meant to say that "binding" should be understood as "ready for enforcement" and not as "enforced". If the Court had followed this interpretation, it would probably have reached the same con clusion as the above mentioned Court of First Instance of Strasbourg which considered the award to be binding under German law once it had been deposited with the German Court. Nevertheless, both courts have in common that they considered the ques 1047 tion at which moment an award becomes binding within the meaning of Article V(1)(e) under the law applicable to the award. Following propositions emerge from the passage quoted hereinabove. (1) That the enforceability must be determined as per the law applicable to the award. (2) French, German and Italian Courts have taken the view that the enforceability as per the law of the country which governs the award is essential pre condition for asserting that it has become binding under Article V(1)(e). The aforesaid passages and the propositions emerging therefrom thus buttress and reinforce the view which has been expressed by us. It was next contended on behalf of Western Company that in the five cases decided under the New York Convention involving parallel proceedings, in no case did a Court decide that an injunction such as sought by ONGC was neces sary. In two of these five cases, Norsolor vs Pabalk (France), and Fertilizer Corporation of India vs IDI Manage ment (US) the Courts, concerned about the possibility of conflicting results, ordered a stay of their enforcement proceeding; in the FCI case the court did so only upon the providing of a guarantee to secure the amount of the award at issue. In the other three cases, the court declined to exercise their discretion to stay an enforcement proceeding (Gutaverken (Sweden), Southern Pacific Properties vs Egypt (The Netherlands), and St. Gobain (France). The Court in SPP did so only because the respondent refused to provide secu rity, thus demonstrating its bad faith. In SPP there was in fact a conflicting result when the Dutch Court entered an enforcement order on the very same day as a French Court annulled the award. Such is the argument. We are afraid that this argument loses sight of the fact that in the present matter we are not concerned with the question as to whether a foreign court should adjourn the decision on the enforce ment of the award under Article VI. 1 We are not enforcing any foreign award and the question 1. "Article VI If an application for the setting aside or suspension of the award has been made to a competent author ity referred to in Article V(1)(e) the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. " 1048 is not whether or not a decision on enforcement should be adjourned. It is the American Court which will have to address itself to that question if an occasion arises. The decisions relied upon by the counsel for the Western Company have relevance from the perspective of the problem faced by a Court enforcing a foreign award before which a prayer for adjournment of the. decision is made. In so far as we are concerned, the question is whether the Western Company should be restrained by us from proceeding with the action instituted in the American Court. We are therefore not persuaded by the aforesaid submission urged by learned counsel for the Western Company. In the result we are of the opinion that the facts of this case are eminently suitable for granting a restraint order as prayed by ONGC. It is no doubt true that this Court sparingly exercises the jurisdiction to restrain a party from proceeding further with an action in a foreign court. We have the utmost respect for the American Court. The question however is whether on the facts and circumstances of this case it would not be unjust and unreasonable not to restrain the Western Company from proceeding further with the action in the American Court in the facts and circum stances outlined earlier. We would be extremely slow to grant such a restraint order but in the facts and circum stances of this matter we are convinced that this is one of those rare cases where we would be failing in our duty if we hesitate in granting the restraint order, for, to oblige the ONGC to face the aforesaid proceedings in the American Court would be opperssive in the facts and circumstances discussed earlier. But before we pass an appropriate order in this behalf, we must deal with the plea that the High Court does not have the jurisdiction to grant such a restraint order even if the proceeding in the foreign court is considered to be oppressive. Counsel for the Respondent has placed reli ance on Cotton Corporation of India vs United Industrial Bank, ; in support of this plea. In Cotton Corporation 's case, the question before the Court was wheth er in the context of Section 41(b) of the Specific Relief Act, the Court was justified in granting the injunction. The said provision runs thus: "41. An injunction cannot be granted: ( a ) . . . . . . . . . . (b) to restrain any person from instituting or prosecuting 1049 any proceeding in a court not subordinate to that from which the injuction is sought; . . . . . . . . . " (Emphasis added) This provision, in our opinion, will be attracted only in a fact situation where an injuction is sought to restrain a party from instituting or prosecuting any action in a Court in India which is either of ordinate jurisdiction or is higher to the Court from which the injuction is sought in the hierarchy of Courts in India. There is nothing in Cotton Corporation 's case which supports the proposition that the High Court has no jurisdiction to grant an injunction or a restraint order in exercise of its inherent powers in a situation like the one in the present case. In fact this Court had granted such a restraint order in V/O Tractoroex port, Moscow vs M/s Tarapore & Company and Anr., ; and had restrained a party from proceeding with an arbitration proceedings in a foreign country (in Moscow). As we have pointed out earlier, it would be unfair to refuse the restraint order in a case like the present. one for the action in the foreign Court would be oppressive in the facts and circumstances of the case. And in such a situation the Courts have undoubted jurisdiction to grant such a restraint order whenever the circumstances of the case make it neces sary or expedient to do so or the ends of justice so re quire. The following passage extracted from paragraph 1039 of Halsbury 's Laws of England Vol. 24 at, page 579 supports this point of view: "With regard to foreign proceedings the court will restrain a person within its jurisdiction from instituting or prosecuting proceedings in a foreign court whenever the circumstances of the case make such an inter position necessary or expedient. In a proper case the court in this country may restrain person who has actually recovered judgment in a foreign court from proceeding to enforce that judgment. The jurisdiction is discretionary and the court will give credit to foreign courts for doing justice in their own jurisdiction. " It was because this position was fully realized that it was argued on behalf of the Respondent that the action in the U.S.A. Court could not be considered as being oppressive to the ONGC. We have already dealt with this aspect and reached a conclusion adverse to Western Company. There is thus no merit in the submission that the High 1050 Court of Bombay has no jurisdiction in this behalf. It was also urged that the ONGC had suppressed the fact that it had appeared in the U.S.A. Court and had succeeded in persuading the U.S.A. Court to vacate the seizure order obtained by the Western Company and had thereby disentitled itself to seek an equitable order. In our opinion in the first place there was no deliberate suppression, and in any case it was not necessary to apprise the Court about the said development. It would therefore not be proper to refuse relief to the ONGC on this account. We are therefore unable to accede to this submission either. Before we conclude we consider it necessary to place on record the fact that it is perhaps on account of some under standing gap that it is observed by the High Court in its judgment: "It was also not disputed that an award could be enforced in the USA without the Respondents obtaining a decree in terms of the award from this Court. " The learned Additional Solicitor General has solemnly stated before us that no such concession was made by him. The learned counsel for the Western Company, with the fairness expected of him, has confirmed that the learned Additional Solicitor General had not made any such concession. Whilst nothing turns on it, we are adverting to this aspect for the sake of fairness to the learned Additional Solicitor Gener al. And now we come to the conclusion. While we are inclined to grant the restraint order as prayed, we are of the opin ion that fairness demands that we do not make it uncondi tional but make it conditional to the extent indicated hereafter. There are good and valid reasons for making the restraint order conditional in the sense that ONGC should be required to pay the charges payable in respect of the user of the rig belonging to the Western Company at the undisput ed rate regardless of the outcome of the petition instituted by the ONGC in the High Court for setting aside the award rendered by the Umpire. India has acceded to the New York Convention. One of the objects of the New York Convention was to evolve consensus amongst the covenanting nations in regard to the execution of foreign arbitral awards in the concerned Nations. The necessity for such a consensus was presumably felt with the end in view to facilitate interna tional trade and commerce by removing technical and legal bottle necks which directly or indi 1051 rectly impede the smooth flow of the river of international commerce. Since India has acceded to this Convention it would be reasonable to assume that India also subscribes to the philosophy and ideology of the New York Convention as regards the necessity for evolving a suitable formula to overcome this problem. The Court dealing with the matters arising out of arbitration agreements of the nature envi sioned by the New York Convention must therefore adopt an approach informed by the spirit underlying the Convention. It is no doubt true that if the arbitral award is set aside by the Indian Court, no amount would be recoverable under the said award. That however does not mean that the liabili ty to pay the undisputed amount which has already been incurred by ONGC disappears. It would not be fair on the part of ONGC to withhold the amount which in any case is admittedly due and payable. The Western Company can accept the amount without prejudice to its rights and contentions to claim a larger amount. No prejudice will be occasioned to ONGC by making the payment of the admitted amount regardless of the fact that the Western Company is claiming a larger amount. And in any case, ONGC which seeks an equitable relief cannot be heard to say that it is not prepared to act in a just and equitable manner regardless of the niceties and nuances of legal arguments. These are the reasons which make us take the view that the restraint order deserves to be made conditional on the ONGC paying the undisputed dues at an early date subject to final adjustment in the light of final determination of the dispute. We accordingly allow this appeal and direct as under: The appeal is allowed. The order passed by the Bomby High Court on April 3, 1986 is set aside. The order passed by the Bombay High Court on January 20, 1986 is restored subject to the conditions engrafted hereafter. II The appellant ONGC shall pay to the Respondent Western Company, in the manner indicated hereinafter, the amount payable at the undisputed rate of $ 18,500 per day for the period as computed by the Umpire in his award amounting to $ 2,528,339 along with interest at 12% till the date of pay ment. 1052 III The said amount will be paid to the Respondent, Western Company, by wire transfer to their Bank Account No. 144 0 33008 at Manufacturers Hanover Trust Company, New York, U.S.A. within four weeks of the Respondent filing an under taking (without prejudice to their rights and contentions) in this Court in the terms indicated hereinbelow, namely, (a) to accept the said amount subject to the final outcome of Arbitration Petition No. 10 of 1986 pending in the High Court of Bombay or the appeal, if any, arising from the order passed by the High Court in the said matter and (b) further provided the Respondent files an undertaking in this Court to treat the said payment by way of protanto satisfac tion in respect of (i) the Award in question, in case it stands confirmed or (ii) a fresh award, if any, that may be passed in future in connection with the original cause of action or (iii) in respect of the original claim giving rise to the arbitration proceedings in question. IV In case the Respondent, Western Company, files undertak ings in this Court as contemplated in Clause III hereinabove and yet the appellant ONGC fails to make the payment in the manner indicated in Clause II hereinabove within four weeks of the date of filing of the said undertakings the order of stay granted as per Clause I hereinabove shall stand vacat ed. V The learned Single Judge before whom the Arbitration Petition No. 10 of 1986 is pending shall refer the matter to a Division Bench having regard to the fact that (1) it raises important and complex questions and (2) that it is desirable that the matter is expeditiously disposed of and a Letters Patent Appeal is avoided and (3) that the matter concerns a commercial transaction of international charac ter. The learned Chief Justice of Bombay High Court may constitute a Division Bench to hear this matter with a request to the Division Bench to dispose of the same expedi tiously. 1053 VII The Division Bench constituted by the Chief Justice will afford reasonable opportunity to the parties to file their statements of claims, affidavits etc. and shall post the matter for directions within two weeks of the statements, affidavits etc. being filed. The Division Bench will direct that the matter is posted for hearing at the earliest and will hear the matter from day to day and dispose it of expeditiously, preferably within six months (excluding the time granted at the joint request of the parties or at the instance of the Respondent) of the commencement of the arguments. VIII There will be no order regarding costs. IX Parties will be at liberty to apply to this Court for further directions from time to time in case of necessity. N.P.V. Appeal Allowed. [/INST]A drilling contract was entered into by the appellant and the respondent which provided that in the case of dif ferences arising out of the aforesaid contract, the matter shall be referred to arbitration, that the arbitration proceedings shall be held in accordance with the provisions of the Indian , and that the validity and interpretation thereof shall be governed by the laws of India. The agreed venue for hearing was London. A dispute arose between the parties and it was referred to Arbitration. Consequent upon the inability of the two Arbitrators to agree on the matters outstanding in the reference, the Umpire entered upon the arbitration and straight away rendered his interim award, without affording any hearing to the parties and the same was lodged in the 1025 High Court at the instance of the respondent. Subsequently, the Umpire rendered a final award relating to costs. About a mouth after the lodging of the award in the High Court, the respondent filed a plaint in the U.S. District Court seeking an order confirming the interim and final awards and a judgment against the appellant for the payment of a sum of $ 256,815.45 by way of interest until the date of judgment and costs etc. The appellant, however, instituted a Petition under Sections 30 and 33 of the for setting aside the aforesaid awards and for an interim order restraining the respondent from proceeding further with the action instituted in the U.S. Court. A Single Judge of the High Court granted exparte interim restraint order but vacated the same after hearing the parties. The High Court held that the action to enforce the award as a foreign award in the U.S. Court was quite in order and that the mere fact that a petition to set aside the award had already been instituted in the Indian Court and was pending at the time of the institution of the action in the U.S. Court was a matter of no consequence for the purposes of consideration of the question as to whether or not the respondent should be restrained from proceeding further with the action in the U.S. Court, that it was open to the respondent to enforce the award in the U.S. Court and, therefore, it would not be appropriate to grant the injunction restraining enforcement, and that it was open to the appellant to contend before the U.S. Court that the petition for setting aside the award cannot be said to be vexatious or oppressive. In the appeal to this Court it was submitted on behalf of the appellant that the award sought to be enforced in the U.S. Court may itself be set aside by the Indian Court and in that event, an extremely anomalous situation would be created, that since the validity of the award in question and its enforceability have to be determined by an Indian Court which alone has jurisdiction under the Indian Arbitra tion Act of 1940, the American Court would have no jurisdic tion in this behalf, that the enforceability of the award must be determined in the context of the Indian Law as the Arbitration proceedings are subject to the Indian Law and are governed by the Indian of 1940, and that if the award in question is permitted to be enforced in U.S. Court without its being confirmed by a court in India or U.S. Court it would not be in conformity with law, justice or equity. 1026 On behalf of the respondent it was contended that the action in the U.S.A. Court could not be considered as being oppressive to the appellant and that even if it is so, the High Court has no jurisdiction to grant such a restraint order, and that the appellant had suppressed the fact that it had appeared in the USA Court and succeed in pursuading the USA Court to vacate the seizure order obtained by the respondent and thereby disentitled itself to seek any equi table order. Allowing the appeal, this Court, HELD: 1. I Under the Indian law, an arbitral award is unenforceable until it is made a rule of the Court, and a judgment and consequential decree are passed ' in terms of the award. Till an award is transformed into a judgment and decree under Section 17 of the Indian , it is altogether lifeless, from the point of enforceability. Life is infused into the award in the sense of its becoming enforceable only after it is made a rule of the Court upon the judgment and decree in terms of the award being passed. [1042D E] 1.2 In the instant case, the arbitration proceedings are governed by the Indian of 1940 and a pro ceeding under the Act for affirming the award and making it a rule of the Court or for setting it aside can be institut ed only in an Indian Court. The expression "Court" as de fined by Section 2(e) of the Act leaves no room for doubt on this score and the Indian Court alone has the jurisdiction to pronounce on the validity or enforceability of the award. [1038A B] 2.1 Article V(1)(e) of the New York Convention provides that recognition and enforcement of the award will be re fused if the award "has not yet become binding on the par ties or has been set aside or suspended by a competent authority of the country in which or under the law of which that award was made." [1043A B] 2.2 The significance of the expression "not yet become binding on the parties" employed in Article V(1)(e) cannot be lost sight of. The expression postulates that the Conven tion has visualised a time later than the making of the award. [1044A B] 2.3 The award which is sought to be enforced as foreign award will have to be tested with reference to the key words contained in Article V(1)(e) of the Convention and the question will have to be answered whether the award has become binding on the parties or has not yet become binding on the parties. The test has to be applied in the 1027 context of the law of the country governing the arbitration proceedings or the country. under the law of which the award has been made. [1044C D] 2.4 The enforceability must be determined as per the law applicable to the award. French, German and Italian Courts have taken the view that the enforceability as per the law of the country which governs the award is the essential pre condition for asserting that it has become binding under Article V(1)(e). [1047B C] 2.5 India has acceded to the New York Convention. One of the Objects of the New York Convention was to evolve consen sus amongst the covenanting nations in regard to the execu tion of foreign arbitral awards in the concerned Nations. The necessity for such a consensus was felt with the end in view to facilitate international trade and commerce by removing technical and legal bottle necks which directly or indirectly impede the smooth flow of the river of interna tional commerce. Since India has acceded to this Convention it would be reasonable to assume that India also subscribes to the philosophy and ideology of the New York Convention as regards the necessity for evolving a suitable formula to overcome this problem. The Court dealing with the matters arising out of arbitration agreements of the nature envi sioned by the New York Convention must, therefore, adopt an approach informed by the spirit underlying the Convention. [1050G H; 1051A B] 3. Section 41 (b) of the Specific Relief Act will be attracted only in a fact situation where an injunction is sought to restrain a party from instituting or prosecuting any action in a Court in India which is either of co ordi nate jurisdiction or is higher to the Court from which the injunction is sought in the hierarchy of Courts in India. [1049B C] 4.1 There cannot be any doubt that the respondent can institute an action in the U.S. Court for the enforcement of the award in question notwithstanding the fact that the application for setting aside the award had already been instituted and was already pending before the Indian Court and that the appellant can approach the U.S. Court for seeking a stay of the proceedings initiated by the respond ent for procuring a judgment in terms of the award in ques tion. Merely on this ground the relief claimed by the appel lant cannot be refused. [1035B D] 4.2 As per the contract, while the parties are governed by the Indian and the Indian Courts have the exclusive jurisdiction to affirm or set aside the award under the said act, the respondent is seeking to violate the very arbitration clause on the basis of 1028 which the award has been obtained by seeking confirmation of the award in the New York Court under the American Law. This amounts to an improper use of the forum in American in violation of the stipulation to be governed by the Indian law which by necessary implication means a stipulation to exclude the USA Court to seek an affirmation and to seek it only under the Indian from an Indian Court. If the restraint order is not granted, serious prejudice would be occasioned and a party violating the very arbitra tion clause on the basis of which the award has come into existence will have secured an order enforcing the order from a foreign court in violation of the very clause. [1038D G] 5.1 The respondent has prayed for confirmation of award. The American Court may still proceed to confirm the award, and in doing so it would take into account the American law and not the Indian law or the Indian of 1940. The American Court will be doing so at the behest and at the instance of the respondent which has in terms agreed that the arbitration proceedings will be governed by the Indian of 1940. Not only the matter will be decided by a court other than the court agreed upon between the parties but it will be decided by a court under a law other than the law agreed upon. Such an unesthetic situation should not be allowed. Even though it was conceded by the respondent that the American Court has no jurisdiction to confirm the award in view of the New York Convention, in the event of the award rendered by the Umpire, the validity of which is not tested either by an American Court or an Indian Court, being enforced by an American Court, it will be an extremely uphill task to pursuade the Court to hold that a foreign award can be enforced on the mere making of it without it being open to challenge in either the country of its origin or the country where it was sought to be enforced. [1041H; 1042A, B C] 5.2 In the event of the award rendered by the Umpire being set aside by the Indian Court, an extremely anomolous situation would arise inasmuch as the successful party may well have recovered the amount awarded as per the award from the assets of the losing party in the USA after procuring a judgment in terms of the award from the USA Court, which would result in an irreversible the damage being done to the losing party for the Court in USA would have enforced a non existing award under which nothing could have been recovered. It would also result in the valuable court time in the USA being invested in a nonissue and the said Court would have acted on and enforced an award which did not exist in the eye of law. The USA Court would have done something which could not have been done if the respondent company 1029 had waited during the pendency of the proceedings in the Indian Court. The losing party in that event would be obliged to initiate fresh proceedings in the USA Court for the amount already recovered from it, pursuant to the judg ment rendered by the USA Court in enforcing the award which is set aside by the Indian Court. All this would happen if the restraint order as prayed by the losing party is not granted and this can be avoided if it is granted. [1037D H] 5.3 The American Court would have enforced an award which is a lifeless award in the country of its origin and under the law of the country of its origin which law governs the award by choice and consent. [1042E F] 6. I It would neither be just nor fair on the part of the Indian Court to deny relief to the appellant when it is likely to be placed in such an awkward situation if the relief is refused. It would be difficult to conceive of a more appropriate case for granting such relief. [1042G H] 6.2 The facts of this case are eminently suitable for granting a restraint order. No doubt, this Court sparingly exercises the jurisdiction to restrain a party from proceed ing further with an action in a foreign court. However, the question is whether on the facts and circumstances of this case it would not be unjust and unreasonable not to restrain the respondent from proceeding further with the action in the American Court. This is one of those rare cases where the Court would be failing in its duty if it hesitated in granting the restraint order, for, to oblige the appellant to face the aforesaid proceedings in the American Court would be oppressive in the facts and circumstances of the case. [1048C F] 6.3 It would be unfair to refuse the restraint order in a case like the present one for the action in the foreign court would be oppressive in the facts and circumstances of the case and in such a situation the courts have undoubted jurisdiction to grant such a restraint order, whenever the circumstances of the case make it necessary or expedient to do so or the ends of justice so require. [1049D E] 6.4 There was no deliberate suppression by the appel lant, and it would, therefore, not be proper to refuse relief to the appellant on this account. [1050B C] 6.5 While this Court is inclined to grant the restraint order, fairness demands that it should not be unconditional. There are good and valid reasons for making the restraint order conditional in the sense 1030 that the appellant should be required to pay the charges payable in respect of the user of rig belonging to the respondent Company at the undisputed rate regardless of the outcome of the petition instituted by it the High Court for setting aside the award rendered by the Umpire. [1050E G]. 6.6 It is no doubt true that if the arbitral award is set aside by the Indian Court no amount would be recoverable under the said award. That, however, does not mean that the liability to pay the undisputed amount which has already been incurred by the appellant disappears. It would not be fair on the part of the appellant to withhold the amount which in any case is admittedly due and payable. The re spondent can accept the amount without prejudice to its rights and contentious, to claim a larger amount. No preju dice will he occasioned to the appellant by making the payment of the admitted amount regardless of the fact that the respondent is claiming a larger amount. In any case the appellant which seeks an equitable relief cannot be heard to say that it is not prepared to act in a manner just and equitable regardless of the niceties and nuances Of legal arguments. [1051B E] [The order passed by the High Court on April 3, 1986 set aside, and the earlier order passed by it on January 20, 1986 restored subject to certain conditions imposed by the Court.] Cotton Corporation of India vs United Industrial Bank, ; ;V/O Tractoroexport, Moscow vs M/s Tarapore England Vol. 24 page 579 para 1039 referred to. </s>
<s>[INST] Summarize the judgementAppeal No. 151 of 1963. Appeal by special leave from the judgment and decree dated February 17, 1959 of the Madras High Court in Second Appeal No. 252 of 1957. section T. Desai and R. Ganapathy Iyer, for the appellants. R. Gopalakrishnan, for the respondents Nos. 1 6. February 3, 1964. The Judgment of the Court was delivered by MUDHOLKAR J. This is an appeal by special leave from the judgment of the High Court of Madras reversing the decisions of the courts below and granting a number of reliefs to the plaintiffs respondents. The main point which arises for consideration in this appeal is whether the plaintiffs respondents are the lessees of the appellants who were defendants 4 and 5 in the trial court or only their licensees. In order to appreciate the point certain facts need to be stated. The appellants are the owners of a private market situate in Madras known as Zam Bazar Market. There are about 500 odd stalls in that market and meat, fish, vegetables, etc., are sold in that market. The practice of the appellants has been to farm out to contractors the right to collect dues from the users of the stalls. Defendants 1 to 3 to the suit were the contractors appointed by the appellants for collecting rent at the time of the institution of the suit. Two of these persons died and their legal representatives have not been impleaded in appeal as they have no interest in the subject matter of litigation. The third has been transposed as respondent No. 7 to this appeal. They were, however, alive when the special leave petition was filed and were shown as appellants 1 to 3, but two of them were struck out from the record after their death and the third trans posed as Respondent No. 7. Though the building in which the market is located is owned by the appellants it cannot 645 be used as a market for the purpose of sale of meat or any other article of human consumption without the permission of the municipal council under section 303 of the Madras City Municipal Act, 1919 (hereafter referred to as the Act). Before such a permission is granted the owner has to obtain a licence from the Municipal Commissioner and undertake to comply with the terms of the licence. The licence granted to him would be for one year at a time but he would be eligible for renewal at the expiry of the period. Section 306 of the Act confers power on the Commissioner to require the owner, occupier or farmer of a private market for the We of any animal or article of food to do a number of things, for example to keep it in a clean and proper state, to remove all filth and rubbish therefrom, etc. Breach of any condition of the licence or of any order made by the Commissioner would result, under section 307, in suspension of the licence and thereafter it would not be lawful for any such person to keep open any such market. Section 308 of the Act confers powers on the Commissioner to make. regulations for markets for various purposes such as fixing the days and hours on and during which any market may be held or kept for use, requiring that in the market building separate areas be set apart for different classes of articles. requiring every market building to be kept in a clean and proper state by removing filth and rubbish therefrom and requiring the provision of proper ventilation in the market building and of passages of sufficient width between the stalls therein for the convenient use of the building. We are told that regulations have been made by the Commissioner in pursuance of the powers conferred upon him by section 308 of the Act. Thus as a result of the Act as well as the regulations made thereunder a number of duties appear to have been placed upon the owners of private markets. It would also appear that failure to comply with any of the requirements of the statute or the regulations would bring on the consequence of suspension or even cancellation of the licence. We are mentioning all this because it will have some bearing upon the interpretation of the documents on which the plaintiffs have relied in support of the contention that the relationship between them and the appellants is that of tenants and landlord. 646 The suit out of which this appeal arises came to be filed because disputes arose between the plaintiffs and the defendants 1 to 3 who became the contractors for collection of rent as from February 9, 1956. These disputes were with regard to extra carcass fees and extra fees for Sunday Gutha which were claimed by the contractors. The respondents further alleged that the relationship between them and the appellants was, as already stated, that of lessees and lessors while according to the appellants, the respondents were only their licensees. The respondents further challenged the extra levies made by the contractors, i.e., the original defendants 1 to 3 who are no longer in the picture. The reliefs sought by the respondents were for an injunction against the appellants and the defendants 1 to 3 restraining them from realising the extra levies and for further restraining them from interfering with their possession over their respective stalls as long as they continued to pay their dues. The First Additional City Civil Court Judge before whom the suit had been filed found in the respondents ' favour that the extra fees sought to be levied by the contractor were sanctioned neither by the provisions of the Municipal Act nor by usage but upon the finding that the respondents were bare licensees dismissed their suit. The appellate bench of the City Civil Court before whom the respondents had preferred an appeal affirmed the lower court 's decision. The High Court reversed the decision of the courts below and in the decree passed by it pursuant to its judgment granted a number of reliefs to the respondents. Here we are concerned only with reliefs (ii) (e), (f) and (g) since the appellants are not interested in the other reliefs. Those reliefs are : "(ii) that the respondents defendants, in particular defendants 1 to 3 (respondents 1 to 3) be and hereby are restrained from in any manner interfering with the appellants plaintiffs 1 to 4, 6 and 7 carrying on their trade peacefully in their respective stalls at Zam Bazar Market, Rovapettah, Madras and imposing any restrictions or limitations upon their absolute right to carry on business as mentioned hereunder 647 (e) Interfering with the possession and enjoyment of the respective stalls by the appellants plaintiffs 1 to 4, 6 and 7 so long as they pay the rents fixed for each stall; (f) increasing the rents fixed for the appellants plaintiffs ' 1 to 4, 6 and 7 stalls under the written agreements between the said plaintiffs and defendants 4 and 5; (g) evicting of the appellants plaintiffs 1 to 4, 6 and 7 or disturbing the plaintiffs and their articles in their stalls by defendants 1 to 3." Further we are concerned in this case only with the relationship between the meat vendors occupying and using some of the stalls in the market (as the plaintiffs respondents belong to this category) and the appellants landlords. What relationship subsists or subsisted between the appellants and other stall holders vending other commodities is not a matter which can be regarded as relevant for the purpose of deciding the dispute between the appellants and the respondents. It is common ground that under the licence granted by the Municipal Corporation, the market is to remain open between 4 A.m. and II P.m. and that at the end of the day the stall holders have all to leave the place which has then to be swept and disinfected and that the gates of the market have to be locked. None of the stall holders or their servants is allowed to stay in the market after closing time. In point of fact this market used to be opened at 5 A.M. and closed, at 10 P.m. by which time all the stall holders had to go away. It is also common ground that the stalls are open stalls and one stall is separated from the other only by a low brick wall and thus there can be no question of a stall holder being able to lock up his stall before leaving the market at the end of the day. The stall holders were required to remove the carcasses brought by them for sale by the time the market closed. Meat being an article liable to speedy decay the stall holders generally used to finish their 648 business of vending during the afternoon itself and remove the carcasses. They, however, used to leave in their stalls wooden blocks for chopping meat, weighing scales, meat choppers and other implements used by them in connection with their business. These used to be left either in boxes or almirahs kept in the stall and locked up therein. It is also an admitted fact that some of the stall holders have been carrying on business uninterruptedly in their stalls for as long as forty years while some of them have not been in occupation for more than five years. It is in evidence that these stall holders have been executing fresh agreements governing their use and occupation of stalls and payment of what is styled in the agreements as rent whenever a new contractor was engaged by the appellants for collecting rents. The next thing to be mentioned is that the agreements referred to the money or charges payable by the stall holders to the landlords as 'rent ' and not as 'fee. It has, however, to be noted that the dues payable accrue from day to day. Thus in exhibit A 1 the rent of Re. 1 / is stid to be payable every day by 1.00 P.m. In all these agreements there is a condition that in case there is default in payment of rent for three days the stall holder was liable to be evicted by being given 24 hours ' notice. A further condition in the agreements is that a stall holder may be required by the landlord to vacate the stall after giving him 30 days ' notice. There is a provision also regarding repairs in these agreements. The liability for the annual repairs is placed by the agreement upon the landlord and these repairs are ordinarily to be carried out in the month of June every year. Where, however, repairs became necessary on account of the carelessness of a stall holder they were to be carried out at the expense of that stall holder. It may be also mentioned that these agreements are obtained by the contractors from the stall holders in favour of the landlord and bear the signatures only of the stall holder,. It was contended before us by Mr. R. Gopalakrishnan that in order to ascertain the relationship between the appellants and the respondents we must look at the agree 649 ments alone and that it was not open to us to look into extraneous matters such as the surrounding circumstances. It is claimed on behalf of the respondents that the lease in their favour is of a permanent nature. But if that were so, the absence of a registered instrument would stand in their way and they would not be permitted to prove the existence of that lease by parol evidence. From the fact, however, that with every change in the contractor a fresh agreement was executed by the stall holders it would be legitimate to infer that whatever the nature of the right conferred by the agreement upon the stall holders, it could not be said to be one which entitled them to permanent occupation of the stalls. It could either be a licence as contended for by the appellant or a tenancy from month to month. In either case there would be no necessity for the execution of a written agreement signed by both the parties. Here, the agreements in question are in writing, though they have been signed by the stall holders alone. All the same, oral evidence to prove their terms would be excluded by section 92 of the Evidence Act. To that extent Mr. Gopalakrishnan is right. Though that is so, under the 6th proviso to that section the surrounding circumstances can be taken into consideration for ascertaining the meaning of the word 'rent ' used in the agreements. Indeed, the very circumstance that rent is to fall due every day and in default of payment of rent for three days the stall holder is liable to be evicted by being given only 24 hours ' notice it would not be easy to say that this 'rent ' is payable in respect of a lease. On the other hand, what is called rent may well be only a fee payable under a licence. At any rate this circumstance shows that there is ambiguity in the document and on this ground also surrounding circumstances could be looked into for ascertaining the real relationship between the parties. Indeed, the City Civil Court has gone into the surrounding circumstances and it is largely on the view it took of them that it found in favour of the appellants. The High Court, however, has based itself upon the agreements themselves. To start with it pointed out and, in our opinion rightly that the use of the word 'rent ' in, exhibit A 1 did not carry the respondents ' case far. The reasons. 650 given by it for coming to the conclusion that the transaction was a lease, are briefly as follows : (1) Notice was required to be given to the stallholder before he could be asked to vacate even on the ground of non payment of rent; (2) the annual repairs were to be carried out by the landlord only in the month of June; (3) the stall holder was liable to carry out the repairs at his own expense when they are occasioned by his carelessness; (4) even if the landlord wanted the stalls for his own purpose he could obtain possession not immediately but only after giving 30 days ' notice to the stall holder; (5) the possession of the stalls by the respondents had been continuous and unbroken by virtue of the terms of the agreement and that the terms of the original agreement were not shown to have been substituted by fresh agreements executed by the respondents. The High Court, therefore, held that from the general tenor ,of the documents it is fairly clear that as between the appellants and the respondents the terms created only a tenancy in respect of the stalls and not a mere licence or permissive occupation. After saying that if the occupation of the stall holders was only permissive the condition as to payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repairs that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days ' notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant, it observed : "As a matter of fact, there is no evidence whatsoever to show that any of these plaintiffs were at any time turned out of their possession of their 651 stalls at the will of the landlords or for default of any of the terms and conditions stipulated in the agreements. The specific provision for 30 days ' notice for vacating and delivering possession seems to be conclusive of the fact that the plaintiffs were to occupy the stalls as permanent tenants and not as mere licensees. The terms of the agreements further disclose that the plaintiffs were to be in exclusive possession of these stalls for the purpose of their trade as long as they comply with the terms and until there was a notice of termination of their tenancy in respect of the shops held by them. The very tenor of the agreements, the intention behind the terms contained in the agreements and the measure of control established by the terms of the agreements, all point only to the fact that the plaintiffs were to be in undisturbed and exclusive possession of the stalls as long as they paid the rent and until there was a valid termination of their right to hold the stalls as such tenants. " While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence. In England it has been held that a contractual licence may be revocable or irrevocable according to the express or implied terms of the contract between the parties. It has further been held that if the licensee under a revocable licence has brought property on to the land, he is entitled to notice of revocation and to a reasonable time for removing his property, and in which to make arrangements to carry on his business elsewhere. (See Halsbury 's Laws of England 3rd edn. 23, p. 431). Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, section 62(c) of the itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or 652 acquired on condition that it shall become void on the performance or non performance of a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under section 62. It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Court 's finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (lbid p. 427). Here the terms of the document evidencing the agreement between the parties are not clear and so the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. Again, as already stated, the documents relied upon being merely agreements executed unilaterally by the stall holders in favour of the landlords they cannot be said to be formal agreements between the parties. We must, therefore, look at the surrounding circumstances. One of those circumstances is whether actual possession of the stalls can be said to have continued with the landlords or whether it had passed on to the stall holders. Even if it had passed to a person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in Errington vs Errington and Woods(1) and Cobb vs Lane(1). These decisions reiterate the view which was taken in two earlier decisions: Close vs Theatrical Properties Ltd. and Westby & Co. Ltd.,(1) and Smith & Son vs The Assessment Committee for the Parish of Lambeth(1). Mr. section T. Desai appearing for the appellants also relied on the decision of the High Court of (1) (2) (3) [1936] 3 All. E.R.483. (4) at 330. 653 Andhra Pradesh in Vurum Subba Rao vs The Eluru Municipal Council (1) as laying down the same proposition. That was a case in which the High Court held that stall holders in the municipal market who were liable to pay what was called rent to the municipality were not lessees but merely licensees. The fact, therefore, that a stall holder has ,exclusive possession of the stall is not conclusive evidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (See Associated Hotels of India Ltd. vs R. N. Kapoor(2). In the case before us, however, while it is true that each stall holder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11 00 P.m. at his pleasure. He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the Market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords, is on the landlords, would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall holders. The right which the stall holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties (1) I.L.R. at pp. 520 4. (2) ; 654 could not be effectively carried out by the landlord by parting with possession in favour of the stall holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall holders adopted an unreasonable attitude,. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could, in such circumstances, the landlords have ever intended to part with possession in favour of the stall holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent ' was used loosely for 'fee. Upon this view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respondents inso far as it relates to reliefs (ii) (e), (f) and (g) grantedby the High Court against the appellants are concerned. So far as the remaining reliefs granted by the High Court are concerned, its decree will stand. In the result we allow the appeal to the extent indicated above but in the particular circumstances of the case we order costs throughout will be borne, by the parties as incurred. Appeal partly allowed. [/INST]in disputes regarding extra fees in respect of meet stalls in a private market owned by the appellants, the respondents stall holders filed a suit alleging that the relationship between them and the appellants was that of lessees and lessors; while according to the appellants, the respondents 643 were only their licensees. The stall holders have been executing agreements, signed by the stall holders alone, in which the payment is styled as rent. Though the building in which the market is located is owned by the appellants it could not be used as a market for the sale of meat or comestibles without the permission of the municipal council, and a number of duties have been imposed upon the owners including that of closing the market and that market functioned only within 'he stated hours. The City Civil Court Judge finding that the respondents were bare licensees dismissed their suit. His decision was affirmed in appeal. On a further appeal the High Court reversed the findings of the Courts below holding that from the general tenor of the document the terms created only a tenancy in respect of the stalls and not a mere licence or permissive occupation saying that if the occupation of the stall holders was only permissive the condition as to the payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repairs that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant. On appeal by special leave: Held: (i) While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence, and the mere necessity of giving such a notice would not indicate that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties, which has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (ii)The fact that a person has exclusive possession is not conclusive evidenceof his being a lessee. If, however, exclusive possession to which a personis entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. Associated Hotels of India Ltd. vs R. N. Kapur, ; , Errington vs Errington and Woods, [1952] 1 K. B. 290, Cobb. vs Lane, , Clove vs Theatrical Proprietors Ltd. and Westby & Co. Ltd. Smith & Son vs The Assessment Committee for the Parish of Lambeth, and vutrum Subba Rao vs The Eluru Municipal Council, I.L.R. [1956] A.P. 515, referred to. (iii) In view of the duties cast upon the landlord and the circumstances of the present case the intention of the parties was to bring into existence merely a licence and not a lease and the word 'rent ' was used loosely for 'fee '. </s>
<s>[INST] Summarize the judgementAppeal No. 215 of 1961. Appeal by special leave from the judgment and decree dated January 22, 1958 of the Bombay High Court at Rajkot in Civil First Appeal No. 93 of 1956. R. H. Dhebar, for the appellant. H. K. Puri and Bishamber Lal, for the respondents Nos. The Judgment of the Court was delivered by Shelat, J. In 1947 and prior thereto the respondent carried on business as an exporter of fish in the State of Junagadh in the name and style of Ayub lqbal and Company. In 1947 the Customs authorities of the, State of Junagadh seized two motor trucks, a station wagon and other goods belonging to the respondent on the grounds, (a) that the respondent had not paid import duties on the said trucks, (b) that they were used for smuggling goods in the State and (c) that some of the goods were smuggled goods. The action was taken under the Junagadh State Sea Customs Act, II of S.Y. 1998 then in vogue in the State. The respondent filed an appeal against tbis order to the Home Member of the State as provided in the said Act. Pending the appeal, the State of Junagadh merged in the United States of Saurashtra which ultimately was converted into the State of Saurashtra. The State of Saurashtra thereafter merged with the former State of Bombay and on bifurcation of the Bombay State became part of the State of Gujarat. In the meantime the appeal was transferred to the Revenue Tribunal which was constituted by the State of Saurashtra and which was the competent forum to hear such appeals. On February 6, 1952, the Revenue Tribunal set aside the said order of confiscation of the Customs authority and directed the return of the said vehicles to the respondent. On March I '), 1952, the respondent applied for the return of 'the said vehicles but was informed that they had been disposed of under an order of a Magistrate passed under section 523 of the Code of Criminal Procedure and that the sale proceeds viz., Rs. 2213/8/ were handed over to a creditor of the respondent under an attachment order passed in his favour. On February 5, 1954, the respondent filed 940 the present suit for the return of the said vehicles or in the alternative for their value viz., Rs. 31786/8/ on the ground that pursuant to the said order of the Tribunal, which in the absence of any proceedings against it had become final, the State Government was bound to hand over the said vehicles. In its written statement the State Government denied the respondent 's claim 'Lind took up diverse pleas. It is not necessary to go into the details of these pleas except to say that the State Government did not raise any contention therein 'that it was not liable for any tortious act committed in respect of the said goods and vehicle s by any one of its servants. On these pleadings the trial court raised various issues. No issue with regard to the absence of liability for the tortious act of any servant of the Government was or could be raised in the aforesaid state of pleadings. The evidence led by the State and in particular of the police officer Trambaklal Naranji showed (a) that the said vehicles were seized in 1947 by the Customs Officer of the State of Junagadli, (b) that somehow they were kept in an open space opposite to the police station at Veraval, (c) that they remained totally uncared for from 1947 to October, 1951 with the result that the greater part of the machinery of the vehicles, tyres and even some wheels were pilfered away leaving only the skeletons of the vehicles, (d) that no entries were made in any of the registers maintained at the police station to show as to how these vehicles came to be kept in the said open space or whether the customs authority had handed over the said vehicles to the police for safe custody, (e) that in October, 1951, witness Trambaklal who was then incharge of the police station reported to his superior officers the fact of these vehicles lying in the said open space as uncared and unclaimed vehicles, (f) that on October 3, 1951, directions were given to him to apply to the Magistrate for disposal of the said Vehicles as unclaimed property under section 523, (g) that on October 21, 1951, the police recorded a Panchanama as regards the condition of the said vehicles, and (h) that on October 29. 1951 pursuant to the said directions, the police officer made an application which mentioned the fact that these vehicles were seized by the Port Commissioner in 1947 from Memon Mahomed Haji Hasam of Veraval, the respondent. It is clear that in spite of the police authorities being aware that the said vehicles were seized from the respondent, his name having been mentioned in the said application, no notice was served upon him of the said application which, as aforesaid, was made on the footing that the said vehicles were unclaimed property. The only notice which was issued by the Magistrate was a public notice which was ordered to be pasted at a public place. Clearly, the respondent was right when he said that he was not aware of the said proceedings or the order passed by the Magistrate therein. It appears from the Rojkam of the Magistrate 's court that on February 9 41 5, 1952, the said vehicles were auctioned in the condition in which they were and only Rs. 2,000 and odd were realised from that auction. The trial court found that the customs officer was competent to seize the said vehicles on a suspicion that a custom offence tinder the said Act had been committed. It held, however, that after the Tribunal had set aside his order and directed the return of the said property to the respondent it was the duty of the State Government to return the said property and on failure to do so the respondent had a cause of action and the suit was maintainable. On these findings, the trial court passed a decree against the State Government for Rs. 26797/8/ . The State Government thereupon filed an appeal in the High Court of Bombay at Rajkot taking a number of grounds in its memorandum of appeal. In the memorandum of appeal the State Government inter alia raised the following grounds : "The learned Civil Judge ought to have decided that the State is not liable for any acts tortious or otherwise of its servants and of the customs or the police authorities". The High Court held that no such plea having been taken in its written statement nor any issue having been raised in the trial court, the State Government was not entitled to raise the contention for the first time in the appeal. The High Court confirmed the said decree except for a slight reduction in the decretal amount from Rs. 26797/8/ to Rs. 25532/10/ . The High Court found (1) that the said vehicles were sold on February 5, 1952 while the appeal before the Revenue Tribunal was still pending, (2) that the said vehicles were sold at the instance of the police officer under section 523 on the footing that they were unclaimed property, (3) that such an assumption was wrong as the vehicles were lying with the authorities while the appeal was still pending and when the issue, whether the said vehicles were liable to confiscation, was not finally decided, (4) that the said vehicles could not be sold by auction because they were liable to be returned in the event of the Tribunal holding that the said seizure and confiscation were illegal and directing the vehicles to be returned to the owner. The High Court hold (a) that the Junagadh Customs Act which applied to the instant case provided an appeal against an order of seizure and confiscation, (b) that there being a provision for appeal in the said Act there was a statutory duty on the State to see that the property which was seized was kept intact till the appeal was disposed of, (c) that there was an implied obligation to see that the said property was not tampered with during the pendency of the appeal in which the order of confiscation was under scrutiny, (d) that the breach of the said obligation gave a cause of action to the respondent, and (e) that 942 the cause of action on which the said suit was grounded was the respondent 's right to the return of the said property and that the relief claimed on that cause of action was the return of the said property or in the alternative the value thereof and not damages for any negligence either of the State Government or of any of its servants. It is against this judgment and decree of the High Court that this appeal by special leave is directed. It is clear that both the trial court and the High Court concurrently found that the said vehicles were seized by the customs authority, that between 1947 and October, 1951 when they were disposed off they were lying uncared for in an open space, that they were disposed of at the instance of the Police as unclaimed property, that when they were sold most of the valuable parts were missing and lastly that they were sold while the appeal against the order of seizure and confiscation was still pending. Mr. Dhebar 's contention was that since they were seized by a ,competent officer the seizure was lawful and that the utmost that ,could be alleged in the circumstances was that one or the other servants of the State Government was guilty of negligence. Fe ,contended that the State Government was not liable for any tor tious act of any of its servants. Before we proceed to consider this contention it is necessary to examine some of the provisions of the said Act which both the parties conceded was the relevant law applicable to the present ,case. Section 150 lays down various offences under the Act and the respective penalties therefor. Clause (8) of section 150 provides that if any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from the Junagadli 'State contrary to such prohibition or restriction, or if any attempt is made so to import or export any such goods, or if any such goods are found in any package produced to any officer of Customs as containing no such goods etc., such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty as set out therein. Section 160 provides that a thing liable to confiscation under this Act may be seized in 'any place by an officer of Customs or other person duly employed for the prevention of smuggling. Section 163 provides that when a thing is seized the officer making such seizure shall on demand of the person in charge of the goods so seized give him a statement in writing of the reasons for such seizure. Section 166 provides for adjudication of confiscation and penalties. Section 172 providas for an appeal from a subordinate Customs officer to the Chief Customs authority and section 175 provides a revision by the Ruler of the Junagadh State. The power of revision under section 175 includes the power to reverse or modify the decision or, order in the exercise of His Highness 's extraordinary revisional jurisdiction. 943 It would appear from these provisions that the seizure of the said vehicles was carried out with jurisdiction and the order of confiscation was also made, apart from the question as to its merits, by a competent officer with jurisdiction. It is also possible to contend that as the said vehicles were sold pursuant to a judicial order no liability can be attached on the State Government for their disposal by public auction. But between their seizure and the auction there was a duty implicit from the provisions of the Act to take reasonable care of the property seized. This is so because .the order of confiscation was not final and was subject to an appeal and a revision before the Home Member and later on before the Revenue Tribunal after Junagadh merged in the State of Saurashtra in 1948 49. The appellant State was aware that the order of seizure and confiscation was not final being subject to an appeal and was liable to be set aside either in appeal or in revision. It was also aware that if the said order was set aside, the property would have to be returned to the owner thereof in the same state in which it was seized except as to normal depreciation. In spite of this clear position, while the appeal was still pending before the Revenue Tribunal and without waiting for its disposal, it allowed its police authorities to have it disposed of as unclaimed property. The State Government was fully aware, firstly, by reason of the pendency of the appeal and secondly because the application under section 523 expressly mentioned the person from whom the said vehicles were seized, that the vehicles were and could not be said to be unclaimed property. In the circumstances, the State Government was during the pendency of the appeal under a statutory duty to take reasonable care of the said vehicles which on the said appeal being decided against it were liable to be returned to their owner. The contention that the order of disposal was a judicial order or that the respondent could have filed a revision application against that order and have it set aside would be beside the point. There being a statutory obligation under the Act to return the property once the order of seizure and confiscation was held to be wrong, the respondent could rely on that obligation and claim the return of the said vehicles. On behalf of the respondent, the contention urged was that though the seizure might be lawful and under the authority of the Statute, the State Government was from the time that the said goods were seized until the decision of the appeal, in a position of a bailee and was, therefore, bound to take reasonable care of the said vehicles. That no such reasonable care was taken and the vehicles remained totally uncared for is not in dispute. Mr. Dhebar 's reply was that there was no bailment nor can such bailment be inferred as section 148 of the Contract Act requires that a bailment can arise only under a contract between the parties. That contention is not sustainable. Bailment is dealt with by the Contract Act only 944 in cases where it arises from a contract but it is not correct to say that there cannot be a bailment without an enforceable contract. As stated in "Possession in the Common Law" by Pollock and Wright, p. 163, "Upon the whole, it is conceived that in general any person is to be considered as a bailee who otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an understanding with the other person either to keep and return or deliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person". 'Bailment is a relationship sui generis and unless it is sought to increase or diminish the burdens imposed upon the bailee by the very fact of the bailment, it is not necessary to incorporate it into the law of contract and to prove a consideration"(1). There can, therefore, be bailment and the relationship of a bailee in respect of specific property without there being an enforceable contract. Nor is consent indispensable for such a relationship to arise. A finder of goods of another has been held to be a bailee in certain circumstances. On the facts of the present case, the State Government no doubt seized the said vehicles pursuant to the power under the Customs Act. But the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed. The order of the Customs Officer was not final as it was subject to an appeal and if the appellate authority found that there was no good ground for the exercise of that power, 'the property could no longer be retained and had under the Act to be returned to the owner. That being the position and the property being liable to be returned there was not only a statutory obligation to return but until the order of confiscation became final an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like circumstances is expected to take. Just as a finder of property has to return it when its owner is found and demands it, so the State Government was bound to return the said vehicles once it was found that the seizure and confiscation were not sustainable. There being thus a legal obligation to preserve the property intact and also the obligation to take reasonable care of it so as to enable the Government to return it in the same condition in which it was seized, the position of the State Government until the order became final would be that of a bailee. If that is the correct position once the Revenue Tribunal set aside the order of the Customs Officer and the Government became liable to return the goods the owner (1) "Law of constract "by Chesire and Fi foot,pp./73,74. 94 5 had the right either to demand the property seized or its value, if, in the meantime the State Government had precluded itself from returning the property either by its own act or that of its agents or servants. This was precisely the cause of action on which the respondent 's suit was grounded. The fact that an order for its disposal was passed by a Magistrate would not in an ,, way interfere with or wipe away the right of the owner to demand the return of the property or the obligation of the Government to return it. The order of disposal in any event was obtained on a false representation that the property was an unclaimed pro perty. Even if the Government cannot be said to be in the position of a bailee, it was in any case bound to return the said property by reason of its statutory obligation or to pay its value if it had disabled itself from returning it either by its own act or by any act of its agents and servants. In these circumstances, it is difficult to apperciate how the contention that the State Government is not liable for any tortious act of its servants can possibly arise. The decisions in State of Rajasthan vs Mst. Vidh yawati(l) and Kasturilal Jain vs The State of U.P.(2) to which ,Mr. Dhebar drew our attention have no relevance in view of the pleadings of the parties and the cause of action on which the respondent 's suit was based. In our view, the High Court was right in conferming the decree passed by the trial court on the basis that there was an obligation on the State Government either to return the said vehicles or in the alternative to pay their value. The appeal is dismissed with costs. G.C. Appeal dismissed. ( 1) [1962] Suppl. 2 S.C.R. 989. [/INST]Two trucks and a station wagon belonging to the respondent were seized by the customs authorities of the State of Junagarh under the provisions of the Junagarh State Sea Customs Act of S.Y. 1998. The Junagrah State was merged into the United States of Saurashtra and after further changes became part of the present Gujarat State. The respondent 's appeal against the aforesaid seizure of his goods succeeded before the Revenue Tribunal which ordered the return of the said vehicles to the respondent. When however he applied for the return of the vehicles he was informed that they had been disposed of under an order of a Magistrate under section 523 of the Code of Criminal Procedure, and that the sale proceeds had been paid to a creditor of the 'respondent under an attachment order. The respondent thereupon filed a suit for the recovery of the value of the vehicles. It appeared in the evidence that the vehicles were kept for several in an. open place outside the police station at Veraval so that most of their parts were pilfered away and only the skeletons of the vehicles were left. Finally on the report of the officer incharge of the aforesaid police station they were sold it an auction as unclaimed property after obtaining the order of a Magistrate. The trial court on the above evidevice decreed the respondent 's suit and the High Court upheld the decree though partly reducing the amount. The State appealed to this Court It wits contended on behalf of the appellant that the sale was under a judicial order and therefore there was no liability to pay; at the most one or the other officers of the Government could be held guilty of negligence. It was further contended on behalf of the State that it could not be treated as a bailee because a bailment could arise only under a contract. HELD : (i) The State Government no doubt seized the said vehicles pursuant to the power tinder the Customs Act. But the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed. The order of the Customs Officer was not final as it was subject to appeal and if the authority found that there was no good ground for the exercise of that power the property Could no longer be retained and had under the Act to be returned to the owner. Thus there was a clear obligation to return the vehicle to the owner if the appeal went his favour. [944E] There was also an implied legal obligation to preserve tile property intact and to take reasonable care of it so is to enable it to be returned 93 9 in the same condition in which it was seized. The position of the State Government until the order became final was therefore that of a bailee. There can be bailment and the 'relationship of a bailor and bailee in respect of specific property without there being an enforceable contract. Nor is consent indispensable for such a relationship to arise. Even a finder of goods of another becomes a bailee in certain circumstances. 1.944A D; F H] The High Court was right in confirming the decree passed by the trial court on the basis that there was an obligation on the State Government either to return the said vehicles or in the alternative to pay their value. [945 E] State of Rajasthan vs Mst. Vidhyawati, [1962] Supp. 2 S.C.R. 989 and Kasturilal Jain vs State of U.P. ; , held inapplicable. </s>
<s>[INST] Summarize the judgementTax Reference Case No. 4 of 1978. Tax Reference Under Section 257 of the Income Tax Act, 1961 made by the Income Tax Appellate Tribunal, Bombay (Bench 'C '). D. V. Patel, T. A. Ramachandran & Miss A. Subhashini for the Appellant. The Judgment of the Court was delivered by PATHAKJ, J. The Judgment of the Court was delivered by PATHAKJ. J. In this tax reference made under section 257 of the income Tax Act, 1961, we are called upon to express our opinion on the following question of law: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in confirming the order of the Appellate Assistant Commissioner that the loss suffered by the assessee was not a loss incurred in a speculative transaction within the meaning of Sec. 43 (5) of the Income tax Act, 1961 ?" The assessee, M/s Shantilal Pvt. Ltd., Bombay, is a private limited company. In the assessment proceedings for the assessment year 1971 72 it claimed a sum of Rs. 1,50,000 paid by it as damages to M/s Medical Service Centre as a business loss. During the previous year relevant to the said assessment year the assessee had contracted to sell 200 Kilograms of Folic Acid USP at the rate of Rs. 440 per Kilogram to M/s. Medical Service Centre and the delivery was to be effected on or before November 1, 1969, within about three months of the date of entering into the contract. The 472 case of the assessee is that as the price of the commodity rose very sharply to as high as Rs. 2,000 per Kilogram during the period when the delivery was to be effected, the assessee was unable to fulfil the contract, giving rise to a dispute in regard to the payment of compensation between the parties. The dispute was referred to arbitration and by an award dated August 25,1970 the arbitrator directed the assessee to pay Rs. 1,50,000 as compensation to M/s. Medical Service Centre. A consent decree in terms of the award was made by the High Court. In the assessment proceedings, the Income Tax officer rejected the claim of the assessee that the payment of compensation was a business loss. He found that the transaction was a speculative transactions as defined by Sub section (5) of section 43. Income Tax Act, 1961. The Appellate Assistant Commissioner allowed the assessee 's appeal on the view that the payment made by it represented a settlement of damages on breach of the contract, which was distinct from a settlement of the contract. Accordingly, he found that the loss must be regarded as a business loss and not as a speculation loss. The Income Tax officer 's appeal was dismissed by the Income Tax Appellate Tribunal by its order dated February 18, 1976. The Commissioner of Income Tax applied in reference for a decision on the question of law set out earlier, and in view of an apparent conflict between different High Courts on the point the Tribunal has made this reference. There is no doubt that the arbitration award granting compensation to M/s. Medical Service Centre proceeds on the footing that there was a breach of contract. The Tribunal took the view that the award of damages for breach of a contract did not bring the transaction within the definition of "speculative transaction" set forth in sub section (5) of section 43, Income Tax Act, 1961. In this, the Tribunal found support in the view expressed by the Calcutta High Court in Commissioner of Income Tax, West Bengal vs Pioneer Trading Company Private Ltd.,(1) Daulatram Rawatmull vs Commissioner of Income Tax (Central), Calcutta(2) and by the Mysore High Court in Bhandari Rajmal Kushalroj vs Commissioner of Income tax, Mysore,(9) which they preferred to the view expressed by the Madras High Court in R. Chinnaswami Chettiar vs Commissioner of Income 473 Tax, Madras.,(1) P.L. KN. Meenakshi Achi vs Commissioner of Income Tax, Madras(a) and A. Muthukumara Pillai vs Commis sioner of Income Tax, Madras.(3) on cereful consideration of the matter we are of opinion that the Tribunal is right. Sub section (5) of section 43 defines "speculative transaction" to mean: "a transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips . " Is a contract for purchase or sale of any commodity settled when no actual delivery or transfer of the commodity is effected, and instead compensation is awarded under and arbitration award as damages for breach of the contract ? A contract can be said to be settled if instead of effecting the delivery or transfer of the commodity envisaged by the contract the promisee, in terms of section 63 of the Contract Act, accepts instead of it any satisfaction which he thinks fit. It is quite another matter where instead of such acceptance the parties raise a dispute an d no agreement can be reached for a discharge of the contract. There is a breach of the contract and by virtue of section 73 of the Contract Act the party suffering by such breach becomes entitled to receive from the party who broke the contract compensation for any loss or damage caused to him thereby. There is no reason why the sense conveyed by the law relating to contracts should not be imported into the definition of "speculative transaction". The award of damages for breach of a contract is not the same thing as a party to the contract accepting satisfaction of the contract otherwise than in accordance with the original terms thereof. It may be that in a general sense the layman would understand that the contract must be regarded as settled when damages are paid by way of compensation for its breach. What is really settled by the award of such damages and their acceptance by the aggrieved party is the dispute between the parties. The law, however, speaks of a settlement of the contract, and a contract is settled when it is either performed or the promisee dispenses with or remits, wholly or in part, the performance of the promise made to him or accepts instead of it any satisfaction which he thinks fit. We are concerned with the sense of the law, and it is 474 that sense which must prevail in sub section (5) of section 43. Accordingly, we hold that a transaction cannot be described as a "speculative transaction" within the meaning of sub section (5) of section 43, Income Tax Act, 1961 where there is a breach of the contract and on a dispute between the parties damages are awarded as compensation by an arbitration award. We are unable to endorse the view to the contrary taken by the Madras High Court in R. Chinnaswami Chettiar(supra) and approve of the view taken by the Calcutta High Court in Pioneer Trading Company Private Ltd. (supra) and by the Mysore High Court in Bhandari Rajmal Kushalra; (supra). The decisions of the Madras High Court in P. L. K. N. Meenakshi Achi (supra) and A. Muthukumara Pillai (supra) are not apposite and are not concerned with the point before us. Our attention was invited by learned counsel for the Revenue to the decision of this Court in Devenport o. P. Ltd. vs Commissioner of Income Tax, West Bengal II(1) but this point did not arise there either. Accordingly, we answer the question referred in the affirmative, in favour of the assessee and against the Revenue. There is no order as to costs. H.S.K. Question answered in affirmative. [/INST]The respondent assessee claimed that a sum of Rs. 1,50,000 paid by them as compensation for being unable to fulfil a contract was a business loss. The Income tax officer rejected the claim on the ground that the transaction was a speculative transaction as defined by sub section (5) of section 43 of the Income tax Act, 1961. The Appellate Assistant Commissioner held that the loss was a business loss and not a speculative loss on the view that the payment made represented a settlement of damages on breach of the contract, which was distinct from a settlement of the contract. The Income Tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner. On the request of the Commissioner of Income tax the Appellate Tribunal has referred the question whether the loss suffered by the assessee was not a loss in a speculative transaction within the meaning of section 43(5) of the Income tax Act, 1961. Answering the question in the affirmative, ^ HELD: A transaction cannot be described as a "speculative trans action" within the meaning of sub section (5) of section 43 where there is a breach of the contract and on a dispute between the parties damages are awarded as compensation by an arbitration award. [474 A B] Sub section (5) of section 43 speaks of the settlement of a contract. A contract can be said to be settled if instead of effecting the delivery or transfer of the commodity envisaged by the contract the promisee, in terms of section 63 of the Contract Act, accepts instead of it any satisfaction which he thinks fit. It is quite another matter where instead of such acceptance the parties raise a dispute and no agreement can be reached for a discharge of the contract. There is a breach of the contract and by virtue of section 73 of the Contract Act the party suffering by such breach becomes entitled to receive from the party who broke the contract compensation for any loss or damage caused to him thereby. There is no reason why the sense conveyed by the law relating to contracts should not be imported into the definition of "speculative transaction" What 471 is really settled by the award of such damages and their acceptance by the aggrieved party is the dispute between the parties. [473 A, C G] Commissioner of Income Tax, West Bengal vs Pioneer Trading Company Private Ltd., ; Bhandari Rajmal Kushiraj vs Commissioner of Income Tax, Mysore, approved. R. Chinnaswami Chettiar vs Commissioner of Income Tax, Madras, overruled. P.L. KN. Meenakshi Achi vs Commissioner of Income Tax, Madras, ; A. Muthukumara Pillai vs Commissioner of Income Tax, Madras, and Devenport & Co. P. Ltd. vs Commissioner of Income Tax, West Bengal 11, not relevant to the point raised. </s>
<s>[INST] Summarize the judgementN: Criminal Appeal No. 273 of 1979. Appeal by special leave from the Judgment and Order dated the 14th August, 1978 of the Punjab & Haryana High Court in Criminal Appeal No. 234 of 1978) WRIT PETITIONS NOS. 564, 165, 179, 168, 434, 89, 754, 756 & 976 of 1979. (Under Article 32 of the Constitution of India) AND Special Leave Petition (Criminal) No. 1732 of 1979 R.K. Jain, R.P. Singh, Shiv Kumar Sharma Suman, Kapoor and Sukumar Sahu for the Petitioner in W.P. 564/79. Dr. Y.S. Chitale, Mukul Mudgal and A.K. Ganguli for the Petitioner in W.P. No. 165 of 1979. Vimal Dave and Miss Kailash Mehta for the Petitioner in W.P. 179 of 1979. 168 & 89 of 1979; Jail Petitions. 162 H.K. Puri, A.C. for the Appellant in Crl. Appeal. S.S. Khanduja and Lalit Kumar Gupta for the Petitioner in W.P. No. 434 of 1979. L.N. Gupta for the Petitioner in S.L.P. L.M. Singhvi and S.K. Jain for the Petitioner in WP. 754/79. Harbans Singh for the Petitioner in W.P. 756/79 N.D. Garg for Mr. S.K. Bisaria and T.L. Garg for the Petitioner in WP. 976 of 1979. Soli J. Sorabjee, Sol. in WP. 564 & 165 U.R. Lalit, in WP. 564; for U.O.I., R.N. Sachthey, for U.O.I., Gujarat, Haryana States, M.L. Shroff for Gujarat, Haryana & Maharashtra, Miss A. Subhashini, and Mr. K.N. Bhatt, for U.O.I. for Respondent No. 1 in WPs. 554, 179, R. 2 in WPs. 434 & 754, R.1 in WP. 165, R. 3 in WP. 756, R. 2 in WPs. 564 & 165. R in 168 & 89, RR 1 & 2 in WP. 756 and RR 1 and 3 in WP. 754 of 1979. D.P. Singh Chauhan, Addl. Advocate General, U.P. and O.P. Rana for R. 2 in WP. R.S. Sodhi and Hardev Singh for R. 1 in WP. 434 & Respondent in Crl. A. 273 of 1979. R.S. Sodhi for Respondent No. 3 in WP. 434/79. R.L. Kohli and R.C. Kohli for the compalinant in WP. 754/79. D.P. Mukherjee for the Intervener No. 1. Dr. LM Singhvi for the Intervener No. 2. Intervener No. 3 in person. V.J. Francis for the intervener No. 4. R.K. Garg and R.K. Jain for the intervener No. 5. FOR THE ADVOCATES GENERAL: 1. Andhra Pradesh : P. Ramachandra Reddy, Advocate General A.P. Rao and G. Narayana 163 2. Gujarat : D.V. Patel, (Maharashtra) 3. Maharashtra : R.N. Sachthey, (Gujarat) M.N. Shroff Gujarat & Maharashtra 4. Jammu & : Altaf Ahmed Kashmir 5. Madhya : S.K. Gambhir Pradesh 6. Punjab : R.S. Sodhi and Hardev Singh 7. Orissa : G.B. Patnaik, Advocate General and R.K. Mehta 8. Tamil Nadu : A.V. Rangam 9. West Bengal : Sukumar Ghosh and G.S. Chatterjee The following Judgments were delivered: SARKARIA, J. This reference to the Constitution Bench raises a question in regard to the constitutional validity of death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in sub section (3) of Section 354 of the Code of Criminal Procedure, 1973. The reference has arisen in these circumstances: Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and dismissed his appeal. Bachan Singh 's appeal by special leave, came up for hearing before a Bench of this Court (consisting of Sarkaria and Kailasam, JJ.). The only question for consideration in the appeal was, whether the facts found by the Courts below would be "special reasons" for awarding the death sentence as required under Section 354(3) of the Code of Criminal Procedure 1973. Shri H.K. Puri, appearing as Amicus Curiae on behalf of the appellant, Bachan Singh, in Criminal Appeal No. 273 of 1979. 164 contended that in view of the ratio of Rajendra Prasad vs State of U.P.,(1) the Courts below were not competent to impose the extreme penalty of death on the appellant. It was submitted that neither the circumstance that the appellant was previously convicted for murder and committed these murder after he had served out the life sentence in the earlier case, not the fact that these three murders were extremely heinous and inhuman, constitutes a "special reason" for imposing the death sentence within the meaning of Section 354(3) of the Code of Criminal Procedure 1973. Reliance for this argument was placed on Rajendra Prasad (ibid) which according to the counsel, was on facts very similar, if not identical, to that case. Kailasam, J. was of opinion that the majority view in Rajendra Prasad taken by V.R. Krishna Iyer, J, who spoke for himself and D.A. Desai, J., was contrary to the judgment of the Constitution Bench in Jagmohan Singh vs State of Uttar Pradesh(2), inter alia, on these aspects: (i) In Rajendra Prasad, V.R. Krishna Iyer, J. observed : "The main focus of our judgment is on this poignant gap in 'human rights jurisprudence ' within the limits of the Penal Code, impregnated by the Constitution. To put it pithily, a world order voicing the worth of the human person, a cultural legacy charged with compassion, an interpretative liberation from colonial callousness to life and liberty, a concern for social justice as setting the sights of individual justice, interest with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19 and 21. " According to Kailasam, J., the challenge to the award of the death sentence as violative of Articles 19, 14 and 21, was repelled by the Constitution Bench in Jagmohan 's case. (ii) In Jagmohan 's case, the Constitution Bench held: "The impossibility of laying down standards (in the matter of sentencing) is at the very core of criminal law as administered in India which invests the judges with a 165 very wide discretion in the matter of fixing the degree of punishment and that this discretion in the matter of sentence in liable to be corrected by superior Courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused." In Rajendra Prasad, the majority decision characterised the above observations in Jagmohan as: "incidental observations without concentration on the sentencing criteria", and said that they are not the ratio of the decision, adding. "Judgments are not Bible for every line to be venerated." (iii) In Rajendra Prasad, the plurality observed: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6). " This view again, according to Kailasam, J., is inconsistent with the law laid down by the Constitution Bench in Jagmohan, wherein it was held that deprivation of life is constitutionally permissible if that is done according to "procedure established by law". (iv) In Rajendra Prasad, the majority has further opined: "The only correct approach is to read into Section 302. I.P.C. and Section 354(3) Cr. P.C., the human rights and humane trends in the Constitution. So examined, the rights to life and the fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled. " Against the above, Kailasam, J. commented : 'The only change after the Constitution Bench delivered its judgment is the introduction of Section 354(3) which requires special reasons to be given if the Court is to award the death sentence. If without the restriction of stating sufficient reasons death sentence could be constitutionally awarded under the I.P.C. and Cr. P.C. as it stood before the amendment, it is difficult to perceive how by requiring special reasons to 166 be given the amended section would be unconstitutional unless the "sentencing sector is made most restrictive and least vagarious". (v) In Rajendra Prasad, the majority has held that: "Such extraordinary grounds alone constitutionally qualify as special reasons as leave on option to the Court but to execute the offender if State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement, however, gruesome the killing or pathetic the situation, unless the inherent testimony coming from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable, like a bloodthirsty tiger, he has to quit his terrestrial tenancy. " According to Kailasam, J., what is extracted above, runs directly counter to and cannot be reconciled with the following observations in Jagmohan 's case: "But some (murders) at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country, society is liable to be recked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society A very responsible body (Law Commission) has come to the conclusion after considering all the relevant factors. On the conclusions thus offered to us, it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest." (vi) Kailasam, J. was further of the opinion that it is equally beyond the functions of a Court to evolve "working rules for imposition of death sentence bearing the markings of enlightened flexibility and social sensibility" or to make law "by cross fertilisation 167 from sociology, history, cultural anthropology and current national perils and developmental goals and, above all, constitutional currents". This function, in his view, belongs only to Parliament. The Court must administer the law as it stands. (vii) The learned Judge has further expressed that the view taken by V.R. Krishna Iyer, J. in Rajendra Prasad that " 'special reasons ' necessary for imposing death penalty must relate not to the crime as such, but to the criminal" is not warranted by the law as it stands today. Without expressing his own opinion on the various questions raised in that case including the one with regard to the scope, amplification and application of Section 354 (3) of the Code of Criminal Procedure, 1974, Sarkaria, J., in agreement with Kailasam, J., directed the records of the case to be submitted to the Hon 'ble the Chief Justice, for constituting a large Bench "to resolve the doubts, difficulties and inconsistencies pointed out by Kailasam, J." In the meanwhile, several persons convicted of murders and sentenced to death, filed writ petitions (namely, Writ Petitions 564, 165, 179, 434, 89, 754, 756 and 976 of 1979) under Article 32 of the Constitution directly challenging the constitutional validity of the death penalty provided in Section 302 of the Indian Penal Code for the offence of murder, and the sentencing procedure provided in Section 354 (3) of the Code of Criminal Procedure, 1974. That is how, the matter has now come up before this larger Bench of five Judges. At the outset, Shri R.K. Garg submitted with some vehemance and persistence, that Jagmohan 's case needs reconsideration by a larger Bench if not by the Full Court. Reconsideration of Jagmohan, according to the learned counsel, is necessitated because of subsequent events and changes in law. Firstly, it is pointed out that when Jagmohan was decided in 1972, the then extant Code of Criminal Procedure, 1898 left the choice between death and life imprisonment as punishment for murder entirely to the discretion of the Court. This position has since undergone a complete change and under Section 354 (3) of the Code of Criminal Procedure, 1973, death sentence has ceased to be the normal penalty for murder. Secondly, 168 it is argued, the seven Judge decision of this Court in Maneka Gandhi vs Union of India(1) has given a new interpretative dimension of the provisions of Articles 21, 19 and 14 and their inter relationship, and according to this new interpretation every law of punitive detention both in its procedural and substantive aspects must pass the test of all the three Articles. It is stressed that an argument founded on this expansive interpretation of these Articles was not available when Jagmohan was decided. Thirdly, it is submitted that India has since acceded to the international Covenant of Civil and Political Rights adopted by the General Assembly of the United Nations, which came into force in December 16, 1976. By virtue of this Covenant. India and the other 47 countries who are a party to it, stand committed to a policy for abolition of the 'death penalty '. Dr. L.M. Singhvi submitted that the question of death penalty cannot be foreclosed for ever on the abstract doctrine of stare decisis by a previous decision of this Court. It is emphasised that the very nature of the problem is such that it must be the subject of review from time to time so as to be in tune with the evolving standards of decency in a maturing society. The learned Solicitor General, Shri Soli Sorabji opposed the request of Shri Garg for referring the matter to a larger Bench because such a course would only mean avoidable delay in disposal of the matter. At the same time, the learned counsel made it clear that since the constitutionality of the death penalty for murder was now sought to be challenged on additional arguments based on subsequent events and changes in law, he would have no objection on the ground of stare decisis, to a fresh consideration of the whole problem by this very Bench. In view of the concession made by Shri Sorabji, we proceeded to hear the counsel for the parties at length, and to deal afresh with the constitutional questions concerning death penalty raised in these writ petitions. We have heard the arguments of Shri R.K. Garg. appearing for the writ petitioners in Writ Petition No. 564/79 for more than three weeks and also those of Dr. L.M. Singhvi, Dr. Chitaley and 169 S/Shri Mukhoty, Dave and R.K. Jain, appearing for interveners or for the other writ petitioners. We have also heard the arguments of Shri Soli Sorabji, Solicitor General, appearing for the Union of India and Shri Patel appearing for the State of Maharashtra and the other counsel appearing for the respondents. The principal questions that fall to be considered in this case are: (I) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional. (II) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354 (3) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life. We will first take up Question No. (I) relating to the constitutional validity of Section 302, Penal Code. Question No. (I): Before dealing with the contentions canvassed, it will be useful to have a short survey of the legislative history of the provisions of the Penal Code which permit the imposition of death penalty for certain offences. The Indian Penal Code was drafted by the First Indian Law Commission presided over by Mr. Macaulay. The draft underwent further revision at the hands of well known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian Penal Code was 170 passed by the then Legislature on October 6, 1860 and was enacted as Act No XLV of 1860. Section 53 of the Penal Code enumerates punishments to which offenders are liable under the provisions of this Code. Clause Firstly of the Section mentions 'Death ' as one of such punishments. Regarding 'death ' as a punishment, the authors of the Code say: "We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed." Accordingly, under the Code, death is the punishment that must be awarded for murder by a person under sentence of imprisonment for life (Section 303). This apart, the Penal Code prescribes 'death ' as an alternative punishment to which the offenders may be sentenced, for the following seven offences: (1) Waging war against the Government of India. (section 121) (2) Abetting mutiny actually committed. (section 132) (3) Giving or fabricating false evidence upon which an innocent person suffers death. (section 194) (4) Murder which may be punished with death or life imprisonment. (section 302) (5) Abetment of suicide of a minor or insane, or intoxicated person. (section 305) (6) Dacoity accompanied with murder. (section 396) (7) Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (section 307) In the instant cases, the impugned provision of the Indian Penal Code is Section 302 which says: "Whoever commits murder shall be punished with death, or imprisonment for life, and also be liable to fine." The related provisions are contained in Sections 299 and 300. Section 299 defines 'culpable homicide '. Section 300 defines 'murder '. Its material part runs as follows: "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 171 Secondly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused, or Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits, such act without any excuse for incurring the risk of causing death or such injury as aforesaid. " The first contention of Shri Garg is that the provision of death penalty in Section 302, Penal Code offends Article 19 of the Constitution. It is submitted that the right to live is basic to the enjoyment of all the six freedoms guaranteed in clauses (a) to (e) and (g) of Article 19 (1) of the Constitution and death penalty puts an end to all these freedoms: that since death penalty serves no social purpose and its value as a deterrent remains unproven and it defiles the dignity of the individual so solemnly vouchsafed in the Preamble of the Constitution, its imposition must be regarded as an 'unreasonable restriction ' amounting to total prohibition, on the six freedoms guaranteed in Article 19 (1). Article 19, as in force today, reads as under: "19 (1). All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) . . . . ; 172 (g) to practice any profession, or to carry on any occupation, trade or business. (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause. (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause. (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right con 173 ferred by the said sub clause, and in particular, nothing in the said sub clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. " It will be seen that the first part of the Article declares the rights in clause (1) comprising of six sub clauses namely, (a) to (e) and (g). The second part of the Article in its five clauses (2) to (6) specifies the limits upto which the abridgement of the rights declared in one or more of the sub clauses of clause (1), may be permitted. Broadly speaking, Article 19 is intended to protect the rights to the freedoms specifically enumerated in the six sub clauses of clause (1) against State action, other than in the legitimate exercise of its power to regulate these rights in the public interest relating to heads specified in clauses (2) to (6). The six fundamental freedoms guaranteed under Article 19 (1) are not absolute rights. Firstly, they are subject to inherent restraints stemming from the reciprocal obligation of one member of a civil society to so use his rights as not to infringe or injure similar rights of another. This is on the principle sic utere tuo ut alienum non laedas. Secondly, under clauses (2) to (6) these rights have been expressly made subject to the power of the State to impose reasonable restrictions, which may even extend to prohibition, on the exercise of those rights. The power, if properly exercised, is itself a safeguard of the freedoms guaranteed in clause (1). The conferment of this power is founded on the fundamental truth that uncontrolled liberty entirely freed from restraint, degenerates into a licence, leading to anarchy and chaos; that libertine pursuit of liberty, absolutely free, and free for all, may mean liberticide for all. "Liberty has, therefore," as 174 Justice Patanjali Sastri put it, "to be limited in order to be effectively possessed." It is important to note that whereas Article 21 expressly deals with the right to life and personal liberty, Article 19 does not. The right to life is not one of the rights mentioned in Article 19 (1). The first point under Question (1) to be considered is whether Article 19 is at all applicable for judging the validity of the impugned provision in Section 302, Penal Code. As rightly pointed out by Shri Soli Sorabji, the condition precedent for the applicability of Article 19 is that the activity which the impugned law prohibits and penalises, must be within the purview and protection of Article 19 (1). Thus considered, can any one say that he has a legal right or fundamental freedom under Article 19 (1) to practise the profession of a hired assassin or to form associations or unions or engage in a conspiracy with the object of committing murders or dacoities. The argument that the provisions of the Penal Code, prescribing death sentence as an alternative penalty for murder have to be tested on the ground of Article 19, appears to proceed on the fallacy that the freedoms guaranteed by Article 19 (1) are absolute freedoms and they cannot be curtailed by law imposing reasonable restrictions, which may amount to total prohibition. Such an argument was advanced before the Constitution Bench in The State of Bombay vs R.M.D. Chamarbaugwala.(1) In that case the constitutional validity of certain provisions of the Bombay Lotteries and Prize Competition Control Act, 1952, as amended by Bombay Act No. XXX of 1952, was challenged on the ground, inter alia, that it infringes the fundamental rights of the promoters of such competitions under Article 19 (1) (g), to carry on their trade or business and that the restrictions imposed by the said Act cannot possibly be supported as reasonable restrictions in the interest of the general public permissible under Article 19 (b). It was contended that the words "trade" or "business" or "commerce" in sub clause (g) of Article 19 (a) should be read in their widest amplitude as any activity which is undertaken or carried on with a view to earning profit since there is nothing in Article 19 (1) (g) which may qualify or cut down the meaning of the critical words; that there is no justification for excluding from the meaning 175 of those words activities which may be looked upon with disfavour by the State or the Court as injurious to public morality or public interest. Speaking for the Constitution Bench, S.R. Das, C.J. repelled this contention, in these terms: "On this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be protected as fundamental rights until they are restricted by law. Thus there will be a guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, or house breaking, or selling obscene pictures, of trafficking in women and so on until the law curbs or stops such activities. This appears to us to be completely unrealistic and incongruous. We have no doubt that there are certain activities which can under no circumstance be regarded as trade or business or commerce although the usual forms and instruments are employed therein. To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words. " This approach to the problem still holds the field. The observations in Chamarbaugwala, extracted above, were recently quoted with approval by V.R. Krishna Iyer., J., while delivering the judgment of the Bench in Fatehchand Himmatlal & Ors. vs State of Maharashtra(1). In A.K. Gopalan vs The State of Madras (2), all the six learned Judges constituting the Bench held that punitive detention or imprisonment awarded as punishment after conviction for an offence under the Indian Penal Code is outside the scope of Article 19, although this conclusion was reached by them by adopting more or less different approaches to the problem. It was contended on behalf of A.K. Gopalan that since the preventive detention order results in the detention of the detenu in a cell, his rights specified in clauses (a) to (e) and (g) of Article 19 (1) have been infringed. 176 Kania, C J. rejected this argument, inter alia, on these grounds: (i) Argument would have been equally applicable to a case of punitive detention, and its acceptance would lead to absurd results. "In spite of the saving clauses (2) to (6), permitting abridgement of the rights connected with each other, punitive detention under several sections of the Penal Code, e.g. for theft, cheating, forgery and even ordinary assault, will be illegal, (because the reasonable restrictions in the interest of "public order" mentioned in clauses (2) to (4) of the Article would not cover these offences and many other crimes under the Penal Code which injure specific individuals and do not affect the community or the public at large). Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, such result is clearly not the outcome of the Constitution." (The underlined words within brackets supplied.) (At page 100 of the Report) (ii) Judged by the test of direct and indirect effect on the rights referred to in article 19 (1), the Penal Code is not a law imposing restrictions on these rights. The test is that "the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses. If there is a legislation directly attempting to control a citizen 's freedom of speech or expression or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub clauses is abridged, the question of the application of Article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's life." (Pages 100 101). 177 (iii)"The contents and subject matter of articles 19 and 21 are thus not the same. " (Page 105). "Article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty." "Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty. Personal liberty would primarily mean liberty of the physical body. The rights given under article 19 (1) do not directly come under that description. In that Article only certain phases of liberty are dealt with". (Page 106) "In my opinion therefore, Article 19 should be read as a separate complete Article". (Page 107). Patanjali Sastri, J., also, opined "that lawful deprivation of personal liberty on conviction and sentence for committing a crime, or by a lawful order of preventive detention is "not within the purview of Article 19 at all, but is dealt with by the succeeding Articles 20 and 21." (Page 192). In tune with Kania, C.J., the learned Judge observed: "A construction which would bring within Article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision. If imprisonment were to be regarded as a 'restriction ' of the right mentioned in article 19 (1) (d), it would equally be a restriction on the rights mentioned by the other sub clauses of clause (1), with the result that all penal laws providing for imprisonment as a mode of punishment would have to run the gauntlet of clauses (2) to (6) before their validity could be accepted. For instance, the law which imprisons for theft would on that view, fall to be justified under clause (2) as a law sanctioning restriction of freedom of speech and expression." (Page 192). "Article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons citizens and non citizens alike. Thus, the two Articles do not operate in a coterminous field." (Page 193). "(Personal liberty) was used in Article 21 as a sense which excludes the freedoms dealt in Article 19 . ." Rejecting the argument of the Attorney General, the learned Judge held that clauses (4) to (7) of Article 22 do not form a complete 178 Code and that "the language of Article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons." (Page 207). Mahajan, J., however, adopted a different approach. In his judgment, "an examination of the provisions of Article 22 clearly suggests that the intention was to make it self contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be examined or controlled either by the provisions of Article 21 or by the provisions of Article 19(5)." (Page 229). Mukerjee, J. explained the relative scope of the Articles in this group, thus: "To me it seems that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality. On the other hand, Articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exercised. In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law." (Page 255). "The only proper way of avoiding these anomalies is to interpret the two provisions (articles 19 and 21) as applying to different subjects. It is also unnecessary to enter into a discussion on the question. as to whether article 22 by itself is a self contained Code with regard to the law of Preventive Detention." (Page 257). S.R. Das, J., also, rejected the argument that the whole of the Indian Penal Code is a law imposing reasonable restriction on the rights conferred by Article 19 (1), with these observations (at Page 303) : "To say that every crime undermines the security of the State and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn 179 attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a). There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech for beyond what is permissible under clause (2) of article 19. Likewise, a detention on lawful conviction impairs each of the other personal rights mentioned in sub clauses (3) to (6). The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub clauses (b) to (e) and (g) is a law imposing reasonable restriction on those several rights has not even the merit of plausibility. There can be no doubt that a detention as a result of lawful conviction must necessarily impair the fundamental personal rights guaranteed by article 19 (1) far beyond what is permissible under clauses (2) to (6) of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed." (ii) Das, J. then gave an additional reason as to why validity of punitive detention or of the sections of the Penal Code under which the sentence was passed, cannot be challenged on the ground of article 19, thus : "Because the freedom of his person having been lawfully taken away, the convict ceases to be entitled to exercise . any of the . rights protected by clause (1) of article 19." (iii) The learned Judge also held that "article 19 protects some of the important attributes of personal liberty as independent rights and the expression 'personal liberty ' has been used in article 21 as a compendious term including within its meaning all the varieties of rights which go to make up the personal liberties of men." (Page 299). Fazal Ali, J. dissented from the majority. In his opinion: "It cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an 180 offence will come under article 20 and 21 and also under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 19 (1) (d)." (Page 148). Fazal Ali, J. held that since preventive detention, unlike punitive detention, directly infringes the right under Article 19(1)(d), it must pass the test of clause (5). According to the learned Judge, only those laws are required to be tested on the anvil of Article 19 which directly restrict any of the rights guaranteed in Article 19(1). Applying this test (of direct and indirect effect) to the provisions of the Indian Penal Code, the learned Judge pointed out that the Code "does not primarily or necessarily impose restrictions on the freedom of movement, and it is not correct to say that it is a law imposing restrictions on the right to move freely. Its primary object is to punish crime and not to restrict movement. The punishment may consist in imprisonment or a pecuniary penalty. If it consists in a pecuniary penalty, it obviously involves no restriction on movement, but if it consists in imprisonment, there is a restriction on movement. This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable. The punishment is correlated with the violation of some other person 's right and not with the right of movement possessed by the offender himself. In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words "law imposing restriction on the right to move freely." (Pages 145 146). In applying the above test, which was the same as adopted by Kania, C.J., Fazal Ali, J. reached a conclusion contrary to that reached by the Chief Justice, on the following reasoning ; "Punitive detention is however essentially different from preventive detention. A person is punitively detained only after trial for committing a crime and after his guilt has been established in a competent court of justice. A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law 181 under which he has been prosecuted. The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19(1)(d) has been violated. But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way." (Page 146) We have copiously extracted from the judgments in A.K. Gopalan 's case, to show that all the propositions propounded, arguments and reasons employed or approaches adopted by the learned Judges in that case, in reaching the conclusion that the Indian Penal Code, particularly those of its provisions which do not have a direct impact on the rights conferred by Article 19(1), is not a law imposing restrictions on those rights, have not been overruled or rendered bad by the subsequent pronouncements of this Court in Bank Nationalizaton(1) case or in Maneka Gandhi 's case. For instance, the proposition laid down by Kania, C.J., Fazal Ali, Patanjali Sastri, and S.R. Das, J.J. that the Indian Penal Code particularly those of its provisions which cannot be justified on the ground on reasonableness with reference to any of the specified heads, such as "public order" in clauses (2), (3) and (4), is not a law imposing restrictions on any of the rights conferred by Article 19(1), still holds the field. Indeed, the reasoning, explicit, or implicit in the judgments of Kania, C.J., Patanjali Sastri and S.R. Das JJ. that such a construction which treats every section of the Indian Penal Code as a law imposing 'restriction ' on the rights in Article 19(1), will lead to absurdity is unassailable. There are several offences under the Penal Code, such as theft, cheating, ordinary assault, which do not violate or effect 'public order, ' 'but only law and order '. These offences injure only specific individuals as distinguished from the public at large. It is by now settled that 'public order ' means 'even tempo of the life of the community. ' That being so, even all murders do not disturb or affect 'public order '. Some murders may be of purely private significance and the injury or harm resulting therefrom affects only specific individuals and, consequently, such murders may not be covered by "public order" within the contemplation of clauses (2), (3) and (4) of article 19. Such murders do not lead to public disorder but to disorder simpliciter. Yet, no rational being can say (1) ; 182 that punishment of such murders is not in the general public interest. It may be noted that general public interest is not specified as a head in clauses (2) to (4) on which restriction on the rights mentioned in clause (1) of the Article may be justified. It is true, as was pointed out by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia 's(1) case, and in several other decisions that followed it, that the real distinction between the areas of 'law and order ' and 'public order ' lies not merely in the nature or quality of the act, but in the degree and extent. Violent crimes similar in nature, but committed in different contexts and circumstances might cause different reactions. A murder committed in given circumstances may cause only a slight tremor, the wave length of which does not extent beyond the parameters of law and order. Another murder committed in different context and circumstances may unleash a tidal wave of such intensity, gravity and magnitude, that its impact throws out of gear the even flow of life. Nonetheless the fact remains that for such murders which do not affect "public order", even the provision for life imprisonment in Section 302, Indian Penal Code, as as alternative punishment, would not be justifiable under clauses (2), (3) and (4) as a reasonable restriction in the interest of 'Public Order '. Such a construction must, therefore, be avoided. Thus construed, Article 19 will be attracted only to such laws, the provisions of which are capable of being tested under clauses (2) to (5) of Article 19. This proposition was recently (1975) reiterated in Hardhan Saha & Anr. vs State of West Bengal(2). In accord with this line of reasoning in A.K. Gopalan 's case, a Constitution Bench of this Court in Hardhan Saha 's case restated the principle for the applicability of Article 19 by drawing a distinction between a law of preventive detention and a law providing punishment for commission of crimes, thus : "Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the nation. It is not possible to think that a person who is detained will yet be free to move (1) ; (2) ; at p. 784. 183 for assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose a person is convicted of an offence of cheating and prosecuted (and imprisoned) after trial, it is not open to say that the imprisonment should be tested with reference to Article 19 for its reasonableness. A law which attracts Article 19 therefore must be such as is capable of being tested to be reasonable under clauses (2) to 5 of Article 19." (emphasis and parenthesis supplied.) The last sentence which has been underlined by us, appears to lend implicit approval to the rule of construction adopted by the majority of the learned Judges in A.K. Gopalan 's case, whereby they excluded from the purview of Article 19 certain provisions of the Indian Penal Code providing punishment for certain offences which could not be tested on the specific grounds embodied in clauses (2) to (5) of that Article. This proposition enunciated in A.K. Gopalan 's case is only a product of the application of the basic canon that a construction which would lead to absurdity, should be eschewed. In R.C. Cooper vs Union of India (popularly known as Bank Nationalization case), the majority adopted the two fold test for determining as to when a law violated fundamental rights, namely: "(1) It is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim. (2) It is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. The direct operation of the act upon the rights forms the real test. " In Maneka Gandhi vs Union of India (ibid), Bhagwati, J. explained the scope of the same test by saying that a law or and order made thereunder will be hit by article 19, if the direct and inevitable consequence of such law or order is to abridge or take away any one or more of the freedoms guaranteed by Article 19(1). If the effect and operation of the statute by itself, upon a person 's fundamental rights is remote or dependent upon "factors which may or may not come into play", then such statute is not ultra vires on the ground of its being violative of that fundamental right. Bhag 184 wati J. described this proposition as "the doctrine of intended and real effect" while Chandrachud, J. (as he then was) called it "the test of proximate effect and operation of the statute. " The question is, whether R.C. Cooper & Maneka Gandhi have given a complete go by to the 'test of direct and indirect effect, sometimes described as form and object test ' or 'pith and substance rule ', which was adopted by Kania, C.J. and Fazal Ali, J. in A.K. Gopalan 's case. In our opinion, the answer to this question cannot be in the affirmative. In the first place, there is nothing much in the name. As Varadachariar, J. put it in Subrahmanyan Chettiar 's(1) case, such rules of interpretation were evolved only as a matter of reasonableness and common sense and out of the necessity of satisfactorily solving conflicts from the inevitable overlapping of subjects in any distribution of powers. By the same yardstick of common sense, the 'pith and substance rule ' was applied to resolve the question of the constitutionality of a law assailed on the ground of its being violative of a fundamental right. Secondly, a survey of the decisions of this Court since A.K. Gopalan, shows that the criterion of directness which is the essence of the test of direct and indirect effect, has never been totally abandoned. Only the mode of its application has been modified and its scope amplified by judicial activism to maintain its efficacy for solving new constitutional problems in tune with evolving concepts of rights and obligations in a strident democracy. The test of direct and indirect effect adopted in A.K. Gopalan was approved by the Full Court in Ram Singh vs State of Delhi.(2) Therein, Patanjali Sastri, J. quoted with approval the passages (i) and (ii) (which we have extracted earlier) from the judgment of Kania, C. J. Although Mahajan and Bose, JJ. differed on the merits, there was no dissent on this point among all the learned Judges. The first decision, which, though purporting to follow Kania, C. J 'section enunciation in A.K. Gopalan, imperceptibly added another dimension to the test of directness, was Express Newspapers (Private) Ltd. & Anr. vs The Union of India & Ors.(3) In that case, the cons (1) (2) ; (3) 185 titutional validity of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and the legality of the decision of the Wage Board, constituted thereunder, were challenged. The impugned Act, which had for its object the regulation of the conditions of service of working journalists and other persons employed in newspaper establishments, provided, inter alia, for the payment of gratuity to a working journalist who had been in continuous service for a certain period. It also regulated hours of work and leave and provided for retrenchment compensation. Section 9 (1) laid down the principles that the Wage Board was to follow in fixing the rates of wages of working journalists. One of the contentions of the petitioners in that case was that impugned Act violated their fundamental rights under Articles 19 (1) (a), 19 (1) (g), 14 and 32 of the Constitution and that the decision of the Wage Board fixing the rates and scales of wages which imposed too heavy a financial burden on the industry and spelled its total ruin, was illegal and void. It was contended by the learned Attorney General in that case that since the impugned legislation was not a direct legislation on the subject of freedom of speech and expression. article 19 (1)(a) would have no application, the test being not the effect or result of legislation but its subject matter. In support of his contention, he relied upon the observations on this point of Kania, C. J. in A. K. Gopalan. It was further urged that the object of the impugned Act was only to regulate certain conditions of service of working journalists and other persons employed in the newspaper establishments and not to take away or abridge the freedom of speech or expression enjoyed by the petitioners and, therefore, the impugned Act could not come within the prohibition of Article 19 (1) (a) read with Article 32 of the Constitution. On the other hand, the petitioners took their stand on a passage in the decision of the Supreme Court of United States in Minnesota Ex Rel. Olson,(1) which was as under : "With respect to these contentions it is enough to say that in passing upon constitutional questions the Court has regard to substance and not to mere matters of form, and that, in accordance with familiar principles, the statute must be tested by its operation and effect." (1) ; at p. 708. 186 It was further submitted that in all such cases, the Court has to look behind the names, forms and appearances to discover the true character and nature of the legislation. Thus considered, proceeded the argument, the Act by laying a direct and preferential burden on the press, would tend to curtail the circulation, narrow the scope of dissemination of information and fetter the petitioners ' freedom to choose the means of exercising their rights of free speech (which includes the freedom of the press). It was further submitted that those newspaper employers who were marginally situated may not be able to bear the strain and have to disappear after closing down their establishments. N.H. Bhagwati, J. who delivered the unanimous Judgment of the Constitution Bench, after noting that the object of the impugned legislation is to provide for the amelioration of the conditions of the workmen in the newspaper industry, overruled this contention of the employers, thus: "That, however would be a consequence which would be extraneous and not within the contemplation of the legislature. It could therefore hardly be urged that the possible effect of the impact of these measures in conceivable cases would vitiate the legislation as such. All the consequences which have been visualized in the behalf by the petitioners, viz., the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners ' freedom to choose the means of exercising the right, likelihood of the independence of the press being undermined by having to seek government aid; the imposition of penalty on the petitioners ' right to choose the instruments for exercising the freedom or compelling them to seek alternative media, etc., would be remote and depend upon various factors which may or may not come into play. Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation." (emphasis added) The learned Judge further observed that the impugned Act could be "legitimately characterised as a measure which affects the press", but its "intention or the proximate effect and operation" was not such as would take away or abridge the right of freedom of speech and 187 expression guaranteed in Article 19 (1) (a), therefore, it could not be held invalid on that ground. The impugned decision of the Wage Board, however, was held to be ultra vires the Act and contrary to the principles of natural justice. It may be observed at this place that the manner in which the test of direct and indirect effect was applied by N.H. Bhagwati, J., was not very different from the mode in which Fazal Ali, J. applied it to punitive detention as punishment after conviction for an offence under the Indian Penal Code. N.H. Bhagwati, J., did not discard the test adopted by Kania, C.J., in A.K. Gopalan, in its entirety; he merely extended the application of the criterion of directness to the operation and effect of the impugned legislation. Again, in Sakal Papers (P) Ltd. & Ors. vs The Union of India(1) this Court, while considering the constitutional validity of the and Daily Newspaper (Price and Page) Order, 1960, held that the "direct and immediate" effect of the impugned Order would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right under Article 19 (1) (a) and, therefore, the Order was violative of the right of the newspapers guaranteed by Article 19 (1) (a), and as such, invalid. In this case, also, the emphasis had shifted from the object and subject matter of the impugned State action to its direct and immediate effect. In Naresh Shridhar Mirajkar & Ors. vs State of Maharashtra & Anr. ,(2) an order prohibiting the publication of the evidence of a witness in a defamation case, passed by a learned Judge (Tarkunde, J.) of the Bombay High Court, was impugned on the ground that it violated the petitioners ' right to free speech and expression guaranteed by Article 19 (1) (a). Gajendragadkar, C.J., (Wanchoo, Mudholkar, Sikri and Ramaswami, JJ., concurring) repelled this contention with these illuminating observations: "The argument that the impugned order affects the fundamental rights of the petitioners under Article 19 (1), is based on a complete misconception about the true nature and (1) ; (2) ; 188 character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19 (1). What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19 (1)." "It is well settled that in examining the validity of legislation, it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject covered by any particular article of the Constitution, or touches the said article only incidentally or indirectly '. ' "If the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in considering the validity of legislation, it would not be inappropriate to apply the same test to judicial decisions like the one with which we are concerned in the present proceedings. As we have already indicated, the impugned order was directly concerned with giving such protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the petitioners were not able to report what they heard in court, that cannot be said to make the impugned order invalid under Article 19 (1) (a). " 189 We have already mentioned briefly how the test of directness was developed and reached its culmination in Bank Nationalization 's case and Maneka Gandhi 's case. From the above conspectus, it is clear that the test of direct and indirect effect was not scrapped. Indeed, there is no dispute that the test of 'pith and substance ' of the subject matter and of direct and of incidental effect of legislation is a very useful test to determine the question of legislative competence i.e., in ascertaining whether an Act falls under one Entry while incidentally encroaching upon another Entry. Even for determining the validity of a legislation on the ground of infringement of fundamental rights, the subject matter and the object of the legislation are not altogether irrelevant. For instance, if the subject matter of the legilation directly covers any of the fundamental freedoms mentioned in Article 19 (1), it must pass the test of reasonableness under the relevant head in clauses (2) to (6) of that Article. If the legislation does not directly deal with any of the rights in Article 19 (1), that may not conclude the enquiry. It will have to be ascertained further whether by its direct and immediate operation, the impugned legislation abridges any of the rights enumerated in Article 19 (1). In Bennett Coleman,(1) Mathew, J. in his dissenting judgment referred with approval to the test as expounded in Express Newspapers. He further observed that "the 'pith and substance ' test, though not strictly appropriate, must serve a useful purpose in the process of deciding whether the provisions in question which work some interference with the freedom of speech, are essentially regulatory in character". From a survey of the cases noticed above, a comprehensive test which can be formulated, may be re stated as under: Does the impugned law, in its pith and substance, whatever may be its form and object, deal with any of the fundamental rights conferred by Article 19 (1)? If it does, does it abridge or abrogate any of those rights? And even if it does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), is the 190 Direct and inevitable effect of the impugned law such as to abridge or abrogate any of those rights? The mere fact that the impugned law incidentally, remotely or collaterally has the effect of abridging or abrogating those rights, will not satisfy the test. If the answer to the above queries be in the affirmative, the impugned law in order to be valid, must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under clause (1) of Article 19 is merely incidental, indirect, remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be avilable for judging its validity. Now, let us apply this test to the provisions of the Penal Code in question. Section 299 defines 'culpable homicide ' and Section 300 defines culpable homicide amounting to murder. Section 302 prescribes death or imprisonment for life as penalty for murder. It cannot, reasonably or rationally, be contended that any of the rights mentioned in Article 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1). We cannot, of course, say that the object of penal laws is generally such as not to involve any violation of the rights conferred by Article 19(1) because after the decision of this Court in the Bank Nationalization case the theory, that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, stands discredited. But the point of the matter is that, in pith and substance, penal laws do not deal with the subject matter of rights enshrined in Article 19(1). That again is not enough for the purpose of deciding upon the applicability of Article 19 because as the test formulated by us above shows, even if a law does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), if the direct and inevitable effect of the law is such as to abridge or abrogate any of those rights, Article 19(1) shall have been attracted. It would then become necessary to test the validity of even a penal law on the touchstone of that Article. On this latter aspect of the matter, we are of the opinion that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct 191 and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. Considering therefore the test formulated by us in its dual aspect, we are of the opinion that Section 302 of the Penal Code does not have to stand the test of Article 19(1) of the Constitution. This is particularly true of crimes, inherently vicious and pernicious, which under the English Common Law were classified as crimes mala in se as distinguished from crimes mala prohibita crimes mala in se embrace acts immoral or wrong in themselves, such as, murder, rape, arson, burglary, larceny (robbery and dacoity); while crimes mala prohibita embrace things prohibited by statute as infringing on others ' rights, though no moral turpitude attaches to such crimes. Such acts constitute crimes only because they are so prohibited. (See Words and Phrases, Permanent Edition, Vol. 10). While crimes mala in se do not per se, or in operation directly and inevitably impinge on the rights under Article 19(1), cases under the other category of crimes are conceivable where the law relating to them directly restricts or abridges such rights. The illustration given by Shri Sorabji will make the point clear. Suppose, a law is enacted which provides that it shall be an offence to level any criticism, whatever, of the Government established by law and makes a further provision prescribing five years ' imprisonment as punishment for such an offence. Such a law (i.e. its provision defining the offence) will directly and inevitably impinge upon the right guaranteed under clause (a) of Article 19(1). Therefore, to be valid, it must pass the test of reasonableness embodied in clause (2) of the Article. But this cannot be said in regard to the provisions of the Penal Code with which we are concerned. Assuming arguendo, that the provisions of the Penal Code, particularly those providing death penalty as an alternative punishment for murder, have to satisfy the requirements of reasonableness and public interest under Article 19 the golden strand of which according to the ratios of Maneka Gandhi runs through the basic structure of Article 21 also the further questions to be determined, in this connection, will be: On whom will the onus of satisfying the requirements under Article 19, lie ? Will such onus lie on the State or the person challenging its validity ? And what will be the nature of the onus? 192 With regard to onus, no hard and fast rule of universal application in all situations, can be deducted from the decided cases. In some decisions, such as, Saghir Ahmad vs State of Uttar Pradesh(1) and Khyerbari Tea Co. vs State of Assam & Ors. (2) it was laid down by this Court that if the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the sub clauses of clause (1) of Article 19, the onus shifts on the respondent state to show that the legislation comes within the permissible limits imposed by any of the clauses (2) to (6) as may be applicable to the case, and, also to place material before the court in support of that contention. If the State does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses. A contrary trend, however, is discernible in the recent decisions of this Court, which start with the initial presumption in favour of the constitutionality of the statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of article 19. In B. Banerjee vs Anita Pan (3) this Court, speaking through V.R. Krishna Iyer, J., reiterated the ratio of Ram Krishna Dalmia 's case,(4) that : "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attack it to show that there has been a clear transgression of the constitutional principles"; and "that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. " It was emphasised that "Judges act not by hunch but on hard facts properly brought on record and sufficiently strong to rebuff the 193 initial presumption of constitutionality of legislation. Nor is the Court a third Chamber of the House to weigh whether it should draft the clause differently". Referring, inter alia, to the decision of this Court in R.M.D. Chamarbaugwala (ibid), and Seervai 's 'Constitutional Law of India ', Vol. I, page 54, it was recalled, "Some courts have gone to the extent of holding that there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and to doubt the constitutionality of a law is to resolve it in favour of its validity". Similar view was taken by a Bench of seven learned Judges of this Court in Pathumma vs State of Kerala.(1) Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review; a respect for the boundaries of legislative and judicial functions, and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy making. "The job of a Judge is judging and not law making". In Lord Devlin 's words : "Judges are the keepers of the law and the keepers of these boundaries cannot, also, be among out riders. " A similar warning was echoed by the Supreme Court of the United States in Dennis vs United States(2) in these terms : "Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. " 194 In Gregg vs Georgia,(1) one of the principal questions for consideration was, whether capital punishment provided in a statute for certain crimes was a "cruel and unusual" punishment. In that context, the nature of the burden which rests on those who attack the constitutionality of the statute was explained by Stewart, J., thus : "We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people. This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. In a democratic society legislatures, not courts, are constituted to respond to the will and conse quently the moral values of the people. " Even where the burden is on the State to show that the restriction imposed by the impugned statute is reasonable and in public interest, the extent and the manner of discharge of the burden necessarily depends on the subject matter of the legislation, the nature of the inquiry, and the scope and limits of judicial review. (See the observations of Sastri. J. in State of Madras vs V.C. Rao,(2) reiterated in Jagmohan). In the instant case, the State has discharged its burden primarily by producing for the persual of the Court, the 35th Report of the Law Commission, 1967, and the judgments of this Court in Jagmohan Singh and in several subsequent cases, in which it has been recognised that death penalty serves as a deterrent. It is, therefore, for the petitioners to prove and establish that the death sentence for murder is so outmoded, unusual or excessive as to be devoid of any rational nexus with the purpose and object of the legislation. The Law Commission of India, after making an intensive and extensive study of the subject of death penalty in India, published 195 and submitted its 35th Report in 1967 to the Government. After examining, a wealth of evidential material and considering the arguments for and against its retention, that high powered Body summed up its conclusions at page 354 of its Report, as follows : "The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind. It is difficult to rule out the validity of, of the strength behind, many of the arguments for abolition nor does, the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. Having regard, however, to the conditions in India, to the variety of the social up bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. " This Report was also, considered by the Constitution Bench of this Court in Jagmohan. It was the main piece of evidence on the basis of which the challenge to the constitutional validity of Section 302 of the Penal Code, on the ground of its being violative of Article 19, was repelled. Parliament must be presumed to have considered these views of the Law Commission and the judgment of this Court in Jagmohan, and must also have been aware of the principles crystallised by judicial precedents in the matter of sentencing when it took up revision of the Code of Criminal Procedure in 1973, and inserted in it, Section 354(3) which indicates that death penalty can be awarded in exceptional cases for murder and for some other offences under the Penal Code for special reasons to be recorded. Death penalty has been the subject of an age old debate between Abolitionists and Retentionists, although recently the 196 controversy has come in sharp focus. Both the groups are deeply anchored in their antagonistic views. Both firmly and sincerly believe in the rightcousness of their respective stands, with overtones of sentiment and emotion. Both the camps can claim among them eminent thinkers, penologists, sociologists, jurists; judges, legislators, administrators and law enforcement officials. The chief arguments of the Abolitionists, which have been substantially adopted by the learned counsel for the petitioners, are as under : (a) The death penalty is irreversible. Decided upon according to fallible processes of law by fallible human beings, it can be and actually has been inflicted upon people innocent of any crime. (b) There is no convincing evidence to show that death penalty serves any penological purpose : (i) Its deterrent effect remains unproven. It has not been shown that incidence of murder has increased in countries where death penalty has been abolished, after its abolition. (ii) Retribution in the sense of vengeance, is no longer an acceptable end of punishment. (iii)On the contrary, reformation of the criminal and his rehabilitation is the primary purpose of punishment. Imposition of death penalty nullifies that purpose. (c) Execution by whatever means and for whatever offence is a cruel, inhuman and degrading punishment. It is proposed to deal with these arguments, as far as possible, in their serial order. Regarding (a) : It is true that death penalty is irrevocable and a few instances, can be cited, including some from England, of persons who after their conviction and execution for murder, were discovered to be innocent. But this, according to the Retentionists is not a reason for abolition of the death penalty, but an argument for reform of the judicial system and the sentencing procedure. Theore 197 tically, such errors of judgment cannot be absolutely eliminated from any system of justice, devised and worked by human beings, but their incidence can be infinitesimally reduced by providing adequate safeguards and checks. We will presently see, while dealing with the procedural aspect of the problem, that in India, ample safeguards have been provided by law and the Constitution which almost eliminate the chances of an innocent person being convicted and executed for a capital offence. Regarding (b): Whether death penalty serves any penological purpose. Firstly, in most of the countries in the world, including India, a very large segment of the population, including notable penologists judges, jurists, legislators and other enlightened people still believe that death penalty for murder and certain other capital offences does serve as a deterrent, and a greater deterrent than life imprisonment. We will set out very briefly, by way of sample, opinions of some of these distinguished persons. In the first place, we will notice a few decisions of Courts wherein the deterrent value of death penalty has been judicially recognised. In Paras Ram vs State of Punjab,(1) the facts were that Paras Ram, who was a fanatic devotee of the Devi, used to hold Satsangs at which bhajans were sung in praise of the Goddess. Paras Ram ceremonially beheaded his four year old boy at the crescendo of the morning bhajan. He was tried, convicted and sentenced to death for the murder. His death sentence was confirmed by the High Court. He filed a petition for grant of special leave to appeal to this Court under Article 136 of the Constitution. It was contended on behalf of Paras Ram that the very monstrosity of the crime provided proof of his insanity sufficient to exculpate the offender under Section 84, Indian Penal Code, or material for mitigation of the sentence of death. V. R. Krishna Iyer, J., speaking for the Bench, to which one of us (Sarkaria, J.) was a party, refused to grant special leave and summarily dismissed the petition with these observations : 198 "The poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifice, in defiance of the scientific ethos of our cultural heritage and the scientific impact of our technological century, shows up in crimes of primitive horror such as the one we are dealing with now, where a blood curdling butehery of one 's own beloved son was perpetrated, aided by other 'pious ' criminals, to propitiate some blood thirsty diety. Secular India, speaking through the Court, must administer shock therepy to such anti social 'piety ' when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social justice has many facets and Judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants. " (emphasis added) In Jagmohan, also, this Court took due note of the fact that for certain types of murders, death penalty alone is considered an adequate deterrent: "A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot simply be wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval of the society. " Examining whether life imprisonment was an adequate substitute for death penalty, the Court observed: "In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of punishment, and it may be seriously questioned whether that sole alter 199 native will be an adequate substitute for the death penalty." In Ediga Anamma vs State of Andhra Pradesh,(1) V.R. Krishna Iyer, J., speaking for the Bench to which one of us (Sarkaria, J.,) was a party, observed that "deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime." It was further observed that "horrendous features of the crime and the hapless and helpness state of the victim steel the heart of law for the sterner sentence." In Shiv Mohan Singh vs State (Delhi Administration),(2) the same learned Judge, speaking for the Court, reiterated the deterrent effect of death penalty by referring to his earlier judgment in Ediga Annamma 's case, as follows: "In Ediga Annamma this Court, while noticing the social and personel circumstances possessing an extenuating impact, has equally clearly highlighted that in India under present conditions deterrence through death penalty may not be a time barred punishment in some frightful areas of barbarous murder." Again, in Charles Sobraj vs The Superintendent, Central Jail, Tihar, New Delhi,(3) the same learned Judge, speaking for a Bench of three learned Judges of this Court, reiterated that deterrence was one of the vital considerations of punishment. In Trop vs Dulleh,(4) Brennan, J. of the supreme Court of the United States, concurring with the majority, emphasised the deterrent end of punishment, in these words: "Rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution. " 200 In Furman vs Georgia, Stewart, J. took the view that death penalty serves a deterrent as well as retributive purpose. In his view, certain criminal conduct is so atrocious that society 's interest in deterrence and retribution wholly outweighs any considerations of reform or rehablitation of the perpetrator, and that, despite the inconclusive empirical evidence, only penalty of death will provide maximum deterrence. Speaking for the majority, in Gregg vs Georgia, Stewart, J. reiterated his views with regard to the deterrent and retributive effect of death penalty. Now, we may notice by way of specimen, the views of some jurists and scholars of note. Sir James Fitzjames Stephen, the great jurist, who was concerned with the drafting of the Indian Penal Code, also, was a strong exponent of the view that capital punishment has the greatest value as a deterrent for murder and other capital offence. To quote his words: "No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. No one goes to certain inevitable death except by compulsion. Put the matter the other the way. Was there ever yet a criminal who, when sentenced to death and brought out to die, would refuse to offer of commutation of his sentence for the severest secondary punishment? Surely not. Why is this ? It can only be because 'All that a man has will he give for his life '. In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly." Even Marchese De Cesare Bonesana Beccaria, who can be called the father of the modern Abolitionist movement, concedes in his treatise, "Dei Delitti a della Pana" (1764), that capital punishment would be justified in two instances: Firstly, in an execution 201 would prevent a revolution against popularly established Government; and, secondly, if an execution was the only way to deter others from committing a crime. The adoption of double standards for capital punishment in the realm of conscience is considered by some scholars as the biggest infirmity in the Abolitionists ' case. Thorsten Sallin is one of the penologists who has made a scientific study of the subject of capital punishment and complied the views of various scholars of the 19th and 20th centuries. In his book "Capital Punishment", he has made an attempt to assemble the arguments for and against the death penalty. He has also given extracts from the Debates in the British House of Commons in 1956 and, also, in March and April 1966, in the Candian House of Commons. In the last part of his book, the learned Editor summarises his ideas about capital punishment. In his opinion, Retribution seems to be outdated and unworkable. It is neither efficient nor equitably administered. "Justice is a relative concept that changes with the times". A retributive philosophy alone is not now socially acceptable. "In the last analysis, the only utilitarian argument that has being to be given attention is the one that defends capital punishment as a uniquely powerful means of protecting the community." He ends his book with the observation : "I have attempted to show that, as now used, capital punishment performs none of the utilitarian functions claimed by its supporters, nor can it ever be made to serve such functions. It is an archaic custom of primitive origin that has disappeared in most civilized countries and is withering away in the rest. " In his article appearing in "Criminology Review Year Book" (1979) Vol. 1, complied by Sheldon L. Messinger & Egon Bittner(1), Isaac Ehrlich, after surveying the past literature on the relation between capital punishment and capital crimes, has (at pp. 31 33) pointed out the following shortcomings in the thesis of Sellin : "The principal shortcoming of the work by Sellin and others using his methodology is that the approach taken and the methods applied do not permit a systematic examination of the main implications emanating from the general theory of deterrence. The shortcoming is basic, because the implications following from the general deterrence 202 hypothesis are what Sellin was challenging. Yet his work neither develops nor tests the full range of implications following from the theory he attempts to reject; nor does he develop or test a competing theory. In addition, to my knowledge, Sellin never reported in any of his studies the results of any systematic (parametric or non parametric) statistical tests that could justify his strong and unqualified inferences." . . "Another fundamental shortcoming of Sellin 's studies is their failure to account systematically for other factors that are expected by the deterrence hypothesis to affect the frequency of murder in the population, apart from the relevant risk of execution. These are variables such as the probability of apprehension, the conditional probability of conviction given apprehension, the severity of alternative punishments for murder, the distribution of income, the probability of unemployment, and other indicators of differential gains from criminal activities occurring jointly with murder. Since, as I shall argue later, some of these variables are expected to be highly correlated with the conditional probability of execution given conviction of murder, their exclusion from the statistical analysis can seriously bias estimates of the partial deterrent effect of capital punishment. Aware of the problem, Sellin attempted to compare states that are as alike as possible in all other respects. However, his "matching procedure", based on the assumption that neighbouring states can satisfy such pre requisites without any explicit standardization, is simply insufficient for any valid inferences. Pairs of states, such as New York, and Rhode Island, Massachusetts and Maine, or Illinois and Wisconsin all included in his comparisons, differ in their economic and demographic characteristics, in their law enforcement activities, and in the opportunities they provide for the commission of other crimes. Moreover, the direction of the causal relationship between the murder rate and the overall risk of punishment be it the death penalty or any other sanction is not self evident because, for example, states with high murder rates are expected to and, in fact do devote more 203 resources to apprehend, convict and execute offenders than do states with lower rates. Specifically, variations in the legal or practical status of the death penalty occasionally may be the result of, rather than the cause for, changes in the murder rate, and thus may give rise to an apparent positive association between these two variables. The same general point applies in connection with the identification of the effect of any other variable which is a product of law enforcement activity or private protection against crime. For these reasons, the true deterrent effect of a sanction such as the death penalty cannot be readily inferred from simple comparisons of the sort performed by Sellin. " The learned author then (at page 33) arrives at this conclusion : "If investigations indicate that probability and length of imprisonment do impart significant deterrent effects, then failure of the research to demonstrate specifically the deterrent efficacy of capital punishment may be taken more as evidence for shortcomings in the research design and methodology or in the measures of the theoretically relevant variables used than as a reflection on the validity of the deterrence theory itself. " The scholar then stresses another purpose of capital punishment, namely, incapacitation of the offender, which, in fact, is another aspect of its deterrent effect. To quote his words : "There is an additional point worth stressing. Even if punishment by execution or imprisonment does not have any deterrent effect, surely it must exert some incapacitative effect on punished offenders by reducing or eliminating the possibility of recidivism on their part." This eminent social scientist, Prof. Ehrlich(1) whose views we have extracted, has made intensive studies of the deterrent effect of capital punishment. Then, a result of his study was also published 204 in the American Economic Review in June, 1975. He includes a specific test for the presence of a deterrent effect of capital punishment to the results of earlier studies. He has in his study(1) claimed to identify a significant reduction in the murder rate due to the use of capital punishment. A version of his detailed study is said to have been filed with the United States Supreme Court on March 7, 1975 in the case of Fowler vs North Carolina.(2) In 1975, Robert Martinson, a sociologist, published the results of a study he had made in New York regarding the rehabilitation of of prisoners. Among the conclusions he drew: "The prison which makes every effort at rehabilitation succeeds no better than the prison which leaves its inmates to rot. The certainty of punishment rather than the severity, is the most effective crime deterrent. We should make plain that prisons exist to punish people for crimes committed." (Quoted in Encyclopaedia Britannica 1978 Book of the Year, pp. 593 594) Many judges especially in Britain and the United States, where rising crime rates are the source of much public concern have expressed grave doubts about the wisdom of the view that reform ought to take priority in dealing with offenders. "They have argued that the courts must reflect a public abhorrence of crime and that justice demands that some attempt be made to impose punishment fitting to the crime." (Encyclopaedia Britannica, ibid.) Professor Jean Graven, Judge of the Court of Appeal of Geneva, and a distinguished jurist, maintains in his learned analysis, (see the Postscript in reply to A World View of Capital Punishment by James Avery Joyce), of the views of Camus and Koestler, that neither of these two authors has faced up to the really basic objection to the abolitionist 's case. According to Graven, there are two groups of people, which are not covered by the abolitionist 's case and Camus and Koestler have therefore left their cause open to attack at its _______________________ (1) See Lee section Friedman 's article at pages 61 87, Review Year Book, 1979, compiled by Messinger and Bittner. (2) 428 US 904=49 L. Ed. 1212 (1976). 205 weakest point. "The true problem", as Graven sees it, "is the protection of the organized, civilized community", the legitimate defence of society against criminal attacks made upon it by those anti social elements which can be stopped only by being eliminated, in the "last resort". "For such, the death penalty should be preserved, and only for such". Professors Graven 's second challenge is, which the abolitionist must accept, the existing division between civil and military protection. According to him, in doing so, the abolitionist cannot avoid applying double standard and two mutually destructive criteria to their approach to the death penalty. "For if the death penalty is accepted as protective in principle to society, then it should be so in all cases and in all circumstances in troubled times as well as in peaceful times, in respect of the traitor, the spy, the deserter, or the hostage, as well as of the brigand, the "gangster", or the professional killer. We must be logical and just at the same time. In the realm of conscience and of 'principles ', there cannot be two weights and measures. There cannot be a morality for difficult times and another morality for easy times; one standard for military justice and another for civil justice. What then should be done with those individuals who have always been considered proper subjects for elimination? If the capital sentence is objectionable and illegal. If the death penalty must be absolutely repudiated because it 'degrades man, (quoting Camus) then we accept the position. But, in that case, no right to kill exists any longer. the greatest war criminals, those responsible conscious of what they have done and intended to do for the worst crimes of genocide, who gassed, incinerated in ovens or buried in quicklime a million innocent victims, or allowed them to perish in mines and marshes. Society has not the right then to kill even these "Monsters". (Quoted in A World View of Capital Punishment, by James Avery Joyce). J.J. Maclean, a Parliamentarian, articulated his views with regard to the deterrent, value of capital punishment in the Canadian House of Commons in the March April, Debates 1966, as follows: "Whether it (capital punishment) is a greater or lesser deterrent than life imprisonment. This is an argument that cannot be proven on either side but I would not like to 206 have to try to convince any one that capital punishment is not a deterrent. Statistically this cannot be proven because the deterrent effect on both capital punishment and life imprisonment is obscured by the fact that most criminals plan a crime on the basis that they are going to avoid any penalty. I say, the deterrent value is with respect to people who did not commit crimes, who were deterred from becoming murderers by the fact that capital punishment or some other heavy penalty would be meted outto them if caught." (Quoted in Sellin 's Capital Punishment). The Law Commission of India in its 35th Report, after carefully sifting all the materials collected by them, recorded their views regarding the deterrent effect of capital punishment as follows: "In our view capital punishment does act as a deterrent. We have already discussed in detail several aspects of this topic. We state below, very briefly, the main points that have weighed with us in arriving at this conclusion: (a) Basically, every human being dreads death. (b) Death, as a penalty, stands on a totally different level from imprisonment for life or any otber punishment. The difference is one of quality, and not merely of degree. (c) Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Governments, Judges, Members of Parliament and Legislatures and Members of the Bar and police officers are definitely of the view that the deterrent object of capital punishment is achieved in a fair measure in India. (d) As to conduct of prisoners released from jail (after undergoing imprisonment for life), it would be difficult to come to a conclusion, without studies extending over a long period of years. 207 (e) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt. (f) Statisties of other countries are inconclusive on the subject. If they are not regarded as proving the deterrent effect; neither can they be regarded as conclusively disproving it. " Views of the British Royal Commission: The British Royal Commission, after making an exhaustive study of the issue of capital punishment and its deterrent value, in their Report (1949 53), concluded: "The general conclusion which we reach, after careful review of all the evidence we have been able to obtain as to the deterrent effect of capital punishment, may be stated as follows. Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. " We may add that whether or not death penalty in actual practice acts as a deterrent, cannot be statistically proved, either way, because statistics as to how many potentisim murderers were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not altogether impossible, to collect. Such statistics of deterred potential murderers are difficult to unravel as they remain hidden in the innermost recesses of their mind. Retribution in the sense of reprobation whether a totally rejected concept of punishment. Even retribution in the sense of society 's reprobation for the worst of crimes, i.e., murder, is not an altogether outmoded concept. This view is held by many distinguished sociologist, jurists and judges. Lord Justice Denning, Master of the Rolls of the Court of 208 Appeal in England, appearing before the British Royal Commission on Capital Punishment, stated his views on this point as under: "Punishment is the way in which society expresses its denunciation of wrong doing, and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not." That retribution is still socially acceptable function of punishment, was also the view expressed by Stewart, J., in Furman vs Georgia, at page 389, as follows: ". I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instant, in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve ', then there are sown the seeds of anarchy of self help, vigilant justice, and lynch law. " Patrick Devlin, the eminent jurist and judge, in his book, "The Judge", emphasises the retributive aspect of the purpose of punishment and criminal justice, thus: "I affirm that justice means retribution and nothing else. Vindictiveness is the emotional outflow of retribution and justice has no concern with that. But it is concerned with the measurement of deserts. The point was put lucidly and simply by the Vicar of Longton in a letter to The Times, from which with his permission I quote: Firstly, far from pretending that retribution should have no place in our penal system, Mr. Levin should recognize that it is 209 logically impossible to remove it. If it were removed, all punishments should be rendered unjust. What could be more immoral than to inflict imprisonment on a criminal for the sake of deterring others, if he does not deserve it? Or would it be justified to subject him to a compulsory attempt to reform which includes a denial of liberty unless, again he deserves it?. Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one. How these ends of punishment coalesce into one was described by the Law Commission of India, thus: "The retributive object of capital punishment has been the subject matter of sharp attack at the hands of the abolitionists. We appreciate that many persons would regard the instinct of revenge as barbarous. How far it should form part of the penal philosophy in modern times will always remain a matter of controversy. No useful purpose will be served by a discussion as to whether the instinct of retribution is or is not commendable. The fact remains, however, that whenever there is a serious crime, the society feels a sense of disapprobation. If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolution of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment, the law helps the element of retribution merge into the element of deterrence." [Para 265 (18), 35th Report] Earlier in 1949 1953, the British Royal Commission in Para 59 of its Report spoke in a somewhat similar strain: "We think it is reasonable to suppose that the deterrent force of capital punishment operates not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community, over a 210 long period of time, a deep feeling of peculiar abhorrence for the crime of murder. The fact that men are hung for murder is one great reason why murder is considered so dreadful a crime. This widely diffused effect on the moral consciousness of society is impossible to assess, but it must be at least as important as any direct part which the death penalty may play as a deterrent in the calculations of potential murderers. " According to Dr. Ernest Van Den Haag, a New York psychologist and author, and a leading proponent of death penalty, "a very strong symbolic value" attaches to executions. "The motives for the death penalty may indeed include vengeance. Legal vengeance solidifies social solidarity against law breakers and probably is the only alternative to the disruptive private revenge of those who feel harmed." (See The Voice (USA) June 4, 1979) The views of Lloyd George, who was the Prime Minister of England during the First World War, have been referred to in the book "Capital Punishment" (1967) by Thorsten Sellin at page 65, as below: "The first function of capital punishment is to give emphatic expression to society 's peculiar abhorrence of murder. It is important that murder should be regarded with peculiar horror. I believe that capital punishment does, in the present state of society, both express and sustain the sense of moral revulsion for murder. " This view is not without respectable support in the jurisprudential literature of today, despite an opinion to the contrary. (See also the Royal Commission 's Report, 1949 53). In relying, inter alia, upon the evidence before it, including that of Lord Denning, the Royal Commission recognised a strong and widespread demand for retribution. It is a common phenomenon in all the civilized countries that some murders are so shockingly offensive that there is a general outcry from the public for infliction of the ultimate penalty on the criminal. In regard to the retributive aspect of capital punishment, we may cite one recent illustration showing how demand for retribu 211 tion, in the sense of society 's instinctive disapproval of the outrageous conduct of the murderer is indelibly ingrained in contemporary public opinion even in advanced countries. In November 1978, George Moscone (Mayor) and Harvey Milk (Supervising Officer) of San Francisco were cruelly, assassinated by Dan White, a police man. Six months later, on May 22, 1979, a jury of seven men and five women rejected the charge of first degree murder, and in consequence, did not award capital punishment to Dan White for this heinous double murder. Public opinion reacted sharply. Public protest against this decision spontaneously manifested itself in a burst of flame and fury. Thousands of outraged demonstrators rampaged through the Civic Centre, smashing windows, burning police cars, chanting: "We want justice" Writing in 'The Voice ', a local paper from San Franscisco, in its issue of June 4, 1979, Lawrence Mullen, fired at the jury a volley of questions, to which the agitated public would demand answers: "What comment did the jury make on the value of life? Was the tragedy of the execution style murders the central issue, or was the jury only concerned with technicalities, absurdities and loopholes of the law? Was justice considered not revenge but justice? High irony, Dan White 's strong belief in capital punishment has found thousands of new converts. From now on, a lot of people will die because Dan White lives. Are we so insensitive, callous and inhuman that we accept or excuse violence and brutality? Consider White 's defence lawyer, Douglas Schmidt 's reference to that tragic Monday in November: "It was a tragedy. Now it 's behind us." "For those who loved and still miss George Moscone and Harvey Milk, for those who were cast into darkness and cried for justice, for those who still seek answers, the lawyer 's words are a chilling reminder that we must not forget that we must not 'put it behind us '. " The former cop, a law and order and capital punishment advocate driven by his passion, by his lack of reason, to destroy those who he disagreed with, and by doing so 212 demonstrated the greatest human failure the inability to co exist. "Dan White symbolizes the violence and brutality that is undermining civilization. " Dan White 's case and the spontaneous reaction of the public opinion that followed, show that opposition to capital punishment has (to use the words of Raspberry),"(1) much more appeal when the discussion is merely academic than when the community is confronted with a crime, or a series of crimes, so gross, so heinous, so cold blooded that anything short of death seems an inadequate response". The Editor of 'Capital Punishment ', Thorsten Sellin has noted at page 83 of his compilation, the following views of an outstanding Justice of the Ontario Appeal Court: "The irrevocable character of the death penalty is a reason why all possible measures should be taken against injustice not for its abolition. Now a days, with the advent of armed criminals and the substantial increase in armed robberies, criminals of long standing if arrested, must expect long sentences. However, if they run no risk of hanging, when found guilty of murder, they will kill police men and witnesses with the prospect of a future no more unhappy, as one of them put it, than being fed, lodged, and clothed for the rest of their lives. In addition, once in prison, such people who are capable of anything could kill their guards and their fellow inmates with relative impunity. " J.J. Maclean, the Canadian Parliamentarian justifies, from another angle, the right of the State to award capital punishment for murder: "If the State has the right and the duty to defend the community against outside aggression, such as in time of war, and within the country, for instance, in case of treason ______________ (1) Raspberry, Death Sentence, the Washington Post, March 12, 1976, p, 27 cols. 213 crimes against the State, etc., and that to the extent of taking the life of the aggressors and guilty parties, if the citizen wants to protect his own life by killing whoever attacks him without any reason, the State can do the same when a criminal attacks and endangers the life of the community by deciding to eliminate summarily another human being. Capital punishment must be retained to prove the sanctity of that most precious thing which is the gift of life; it embodies the revulsion and horror that we feel for the greatest of crimes. For most people, life is priceless and they will do anything and suffer the worst privations to preserve it, even when life itself does not hold many consolations or bright prospects for the future. As a deterrent, the death penalty is playing its part for which there is no substitute. I suggest that statistics do not prove much, either on one side or the other. There are too many variations, too many changes as regards circumstances, condition between one period and the other, to enable us to make worthy comparisons." (See page 84 of Sellin 's Capital Punishment). Some penologists justify capital penalty and life imprisonment on the 'isolation ' or 'elimination ' theory of crime and punishment. Vernon Rich in his "Law & the administration of justice" (Second Edition, at page 10), says: "The isolation theory of crime and punishment is that the criminal law is a device for identifying persons dangerous to society who are then punished by being isolated from society as a whole, so that they cannot commit other antisocial acts. The isolation theory is used to justify the death penalty and long term imprisonment. Obviously, this theory is effective in preventing criminal acts by those executed or permanently incarcerated. " While the Abolitionists look upon death penalty as something which is per se immoral and inhuman, the Retentionists apprehened that if we surrender even the risk of the last remaining horrifying deterrent by which to frighten the toughts of the underworld, we may 214 easily tip the scales in favour of the anti social hoodlums. They fear that abolition of capital punishment, will result in increase of murders motivated by greed, and in affable "crime passionelle." "It is feared", wrote George A. Floris,(1) "the most devastating effects of the abolition will, however, show themselves in the realm of political murder. An adherent of political extremism is usually convinced that the victory of his cause is just round the corner. So, for him long term imprisonment holds no fear. He is confident that the coming ascendency of his friends will soon liberate him. " To prove this proposition, Floris cites the instance of Von Paper 's Government who in September 1932, reprieved the death sentence passed on two of Hitler 's storm troopers for brutal killing of one of their political opponents. The Retentionists believe that the dismantling of the gallows will almost everywhere enhance the hit and run attacks on political opponents. On this premise, they argue that capital punishment is the most formidable safeguard against terrorism. The argument cannot be rejected out of hand. A number of instances can be cited where abolitionist States feeling the inadequacy of their penological armour to combat politically motivated gangsterism, have retrieved and used their capital weapon which they had once thrown away. Despite their traditional abhorrence of death penalty, the Norwegians executed Major Vedkun Quisling after World War II. The Belgians, too, executed no less than 242 collaborators ' and traitors after the liberation, although in their country, the death penalty was otiose since 1880. In England, death penalty was retained for high treason in the Silverman Bill of 1956. Even at present, for that offence, death penalty is a valid sanction in England. In the aftermath of assassination of Prime Minister Bandernaike in 1959, Ceylon hurriedly reintroduced capital punishment for murder. Owing to similar considerations, Israel sanctioned death penalty for crimes committed against the Jewish people, and executed the notorious Jew baiter, Adolf Eichmann in 1962. Recently, on April 9, 1979, confronted with a wave of violent incidents after the signing of Egypt Israel Peace Treaty. Israel sanctioned the use of death penalty "for acts of inhuman cruelty". ____________ (1) Sunday Tribune, December 8, 1963. 215 In India, very few scientific studies in regard to crime and punishment in general, and capital punishment, in particular, have been made. Counsel for the petitioners referred us to Chapter VI, captioned 'Capital Punishment, in the book, 'Quantum of Punishment in Criminal Law in India, written by Dr. Kripal Singh Chhabra, now on the staff of G.N. University, Amritsar. In this article, which was primarily meant as LL. D. thesis, the learned author concludes: "On the basis of statistics both of India and abroad, U.N.O. findings and other weighty arguments, we can safely conclude that death penalty is not sustainable on merits. Innately it has no reformative element. It has been proved that death penalty as operative carries no deterrent value and crime of murder is governed by factors other than death penalty. Accordingly, I feel that the death penalty should be abolished. " It will be seen, in the first place, that the analysis by Dr. Chhabra in coming to the conclusion, that death penalty is of no penological value, is based on stale, incomplete and inadequate statistics. This is more particularly true of the data relating to India, which does not cover the period subsequent to 1961. Secondly, the approach to the problem adopted by him, like the other Abolitionists referred to by him, is mainly, if not merely, statistical. As already noticed, the proponents of the opposite view of capital punishment, point out that statistics alone are not determinative of the question whether or not death penalty serves any deterent or other penological purpose. Firstly, statistics of deterred potential murderers are hard to obtain. Secondly, the approach adopted by the Abolitionists is oversimplified at the cost of other relevant but imponderable factors, the appreciation of which is essential to assess the true penological value of capital punishment. The number of such factors is infinitude, their character variable duration transient and abstract formulation difficult. Conditions change from country to country and time to time. Due to the inconstancy of social conditions, it is not scientifically possible to assess with any degree of accuracy, as to whether the variation in the incidence of capital crime is attributable to the presence or absence of death penalty in the penal law of that country for such crimes. 216 That is why statistical attempts to assess the true penological value of capital punishment, remain inconclusive. Pursued beyond a certain point, both the Abolitionists and the Retentionists retreat into their own conceptual bunkers firmly entrenched in their respective "faiths". We need not take sides with either of them. There is always a danger in adhering too rigidly to concepts. As Prof. Brett has pointed out "all concepts are abstractions from reality, and that in the process of abstraction something of the reality is bound to be lost ' '(1). We must therefore, view the problem against the perspective of the hard realities of the time and the conditions prevailing in the world, particularly in our own country. A review of the world events of the last seven or eight years, as evident from Encyclopaedia Britannica Year Books and other material referred to by the learned counsel, would show that most countries in the world are in the grip of an ever rising tide of violent crime. Murders for monetary gain or from misdirected political motives, robbery, rape assault are on the increase. India is no exception. The Union of India has produced for our perusal a statement of facts and figures showing the incidence of violent crime, including murder, dacoity and robbery, in the various States of India, during the years 1965 to 1975. Another statement has been furnished showing the number of persons convicted of murder and other capital offences and sentenced to death in some of the States of India during the period 1974 to 1978. This statement however, is incomplete and inadequate. On account of that deficiency and for the general reasons set out above, it cannot, even statistically show conclusively or with any degree of certainty, that capital punishment has no penological worth. But the first statement does bring out clearly the stark reality that the crimes of murder, dacoity and robbery in India are since 1965 increasing. Now, looking around at the world during the last decade, we may recall that in Purman vs Georgia (decided on June 29, 1976), the Supreme Court of the United States held by a majority, that the imposition and carrying out of the death penalty constitutes 'cruel and unusual ' punishment, in violation of the Eighth and Fourteenth ____________ (1) An Enquiry into Criminal Guilt by Prof. Peter Brett, 1963 Edn. Melbourne, page 13. 217 Amendments. Brennan and Marshall, JJ. (differing from the plurality) went to the extent of holding that death penalty was per se unconstitutional as it was a cruel and unusual punishment. In so holding, these learned Justices purported to adopt the contemporary standards of decency prevailing among the enlightened public of the United States. Justice Marshall ruled that "it was morally unacceptable to the people of the United States". This opinion of the learned Justices was sharply rebuffed by the people of the United States through their chosen representatives. Soon after the decision in Furman, bowing to the thrust of public opinion, the Legislatures of not less than 32 States, post haste revised their penal laws and reinstituted death penalty for murder and certain other crimes. Public opinion polls then taken show that approximately 70 per cent of Americans have been in favour of death penalty. (See 'The Voice ', supra). In 1976, a Gallup Poll taken in the Unitted States showed that more than 65 per cent of those polled preferred to have an operative death penalty. Incidently, the rejection by the people of the approach adopted by the two learned Judges in Furman, furnishes proof of the fact that judicial opinion does not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned. Coming back to the review of the world crime situation, during the last decade, Saudi Arabia and some other countries have reinstated death penalty or enacted harsher punishments not only for murder but some other crimes, also. In America, apart from 32 States which reinstated death penalty under revised laws after Furman, the legislatures of some of the remaining 15 States have either reinstituted or are considering to reintroduce death penalty. Currently, a federal legislation for reinstituting or prescribing capital punishment for a larger range of offences of homicide is under consideration of United States ' Congress. According to the report of the Amnesty International, in U.S.A., as on May 1, 1979, death penalty can be imposed for aggravated murder in 35 States. Attempts have been made in other countries, also to reintroduce death penalty. In Britain, in 218 the wake of serious violent incidents of terrorism, a Bill was moved in Parliament to reintroduce capital punishment for murder and certain other offences. It was defeated by a free vote on April 19, 1979. Even so, no less than 243 Members of Parliament had voted in favour of this measure. We have noted that Israel has also recently reinstituted death penalty for certain criminal 'acts of in human cruelty '. In People 's Republic of China, a new legislation was adopted on July 1, 1979 by China 's Parliament, according to Article 43 of which, death penalty can be imposed "for the most heinous crimes". In Argentina, the death penalty was reintroduced in 1976. Similarly, Belgium reintroduced death penalty and increased the number of crimes punishable with death. In France, in 1978 a movement in favour of abolition initiated by the French bishops failed to change the law under which death penalty is a valid sanction for murder and certain other offences. In Japan, death penalty is a legal sanction for 13 crimes. In Greece and Turkey, death penalty can be imposed for murder and other capital offences. In Malaysia and the Republic of Singapore under the Drugs Act of May, 1979, misuse of drugs is also punishable with death. Cuba introduced a new penal code in February 1978, which provides punishment of death by shooting for crimes ranging from some types of murder and robbery to hijacking and rape. In the U.S.S.R. (Russia), as many as 18 offences are punishable with death. In Russia, at present, the following offences committed in peacetime are punishable with death under the RSFSR Criminal Code: "Treason (Article 64); espoinage (Article 65); terrorism (if the offence includes the killing of an official (Article 66); terrorism against representative of foreign State (if the offence includes the killing of such a representative "for the purpose of provoking war or international compli cations") (Article 67); sabotage (Article 68); organizing the commission of any of the above named offences (Article 72); commission of any of the above named offences against other Working People 's State (Article 73); banditry (Article 77); actions disrupting the work of corrective labour institutions (Article 77 1); making or passing counterfeit money or securities (when the offence is committed as a form of business) (Article 87); violation of rules for currency transactions (when committed as a form of business or on 219 a large scale, or by a person previously convicted under this Article) (article 88); stealing of State property on an especially large scale, regardless of the manner of stealing (Article 93 1); intentional homicide with aggravating circumstances (Article 102); rape, when committed by a group of persons or by an especially dangerous recidivist, or resulting in especially grave consequences, or the rape of a minor (Article 117); taking a bribe, with especially aggravating circumstances (Article 173); infringing the life of a policeman or People 's Guard, with aggravating circumstances (Article 191 2); hijacking an aircraft, if the offence results in death or serious physical injuries (Article 213 2); resisting a superior or compelling him to violate official duties, an offence applicable only to military personnel, and carrying the death penalty in peace time if committed in conjunction with intentional homicide of a superior or any other person performing military duties (Article 240)." (Vide, Report of Amnesty International, 1979) Our object in making the above survey is to bring out the hard fact that in spite of the Abolitionist movement, only 18 States (as on 30 May 1979) in the world have abolished the death penalty for all offences, while 8 more have retained it for specific offences committed in time of war, only. (See Amnesty International Report (1979) page 92). This means, most of the countries in the modern world still retain death penalty as a legal sanction for certain specified offences. The countries which retain death penalty in their penal laws, such as, Russia, U.S.A., France, Belgium, Malaysia, China and Japan, etc., cannot, by any standard, be called uncivilized nations or immature societies. Surveyors and students of world events and current trends believe that the reversal of the attitudes towards criminals and their judicial punishments in general, and capital punishment in particular in several countries of the world, is partly due to the fact that milder sanctions or corrective processes, or even the alternative of imprisonment, have been found inadequate and wanting to stem the mounting tide of serious crime. Writing in Encyclopaedia Britannica, 1978 Book of the Year under the caption, 'Changing Attitudes Towards Criminals ', Richard Whittingham sums up the cause that has led to the adoption of this New Hard Line, thus : 220 "Horror Story after horror story of dangerous criminals sent back into society on bail or parole from a penitentiary or (in many cases) release from a mental institution to commit further crimes have forced people to say that enough is enough. The consensus seemed to be that there must be no repetition of such situations as the one described by Chicago Sun Times Columnist Roger Simon in a September 4, 1977, article about a man who had just been convicted of a particularly despicable crime. " Faced with the spectre of rising crime, people and sociologists alike, have started questioning the rehabilitation policy. "In California another study from the Rand Cooperation, suggests that keeping habitual criminals locked up would do more to reduce crime than any rehabilitation efforts. Despite treatment or preventive measures, habitual criminals commonly go back to crime after they are released from prison, the study showed. In addition, the study found that deterrence to crime was in direct proportion to the relative certainty of going to jail, after being caught." According to Encyclopaedia Britannica Year Book 1979, in 1978 also penologists were seriously divided in their views about the end of punishment. Some penologists argued that "It is not possible to punish and reform simultaneously": while "others would prefer to strip punishment of its moral overtones", "While many Legislators and most penologists have supported the idea that reform ought to take priority in dealing with offenders, many Judges especially in Britain and the United States, where rising crime rates are the source of much public concern have expressed grave doubts about the wisdom of this view. They have argued that the courts must reflect a public abhorrence of crime and that justice demands that some attempt be made to impose punishment fitting to the crime". India also, as the statistics furnished by the respondent (Union of India) show, is afflicted by a rising rate of violent crime, particularly murder, armed robbery and dacoity etc., and this has been the cause of much public concern. All attempts made by individual members to move Bills in the Parliament for abolition or restriction of the area of death penalty have ended in failure. At least four of such unsuccessful attempts were made after India won Independence, in 1949, 1958, 1961 and 1978. It may be noted that the last of 221 these cttempts was only to restrict the death penalty to a few types of murders specified in the Bill. Though it was passed by the Rajya Sabha after being recast, it has not been passed by Lok Sabha. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion chanalised through the people 's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware as we shall presently show they were of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235 (2) and 354 (3) in that Code providing for pre sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972 1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the 222 public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19. We will now consider the issue whether the impugned limb of the provision in Section 302, Penal Code contravenes Article 21 of the Constitution. Before dealing with the contention canvassed on the point, it will be proper to notice briefly the principles which should inform the interpretation of Article 21. In Maneka Gandhi 's case, which was a decision by a Bench of seven learned Judges, it was held by Bhagwati, J. in his concurring judgment, that the expression 'personal liberty ' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights under Article 19. It was further observed that Articles 14, 19 and 21 are not to be interpreted in water tight compartments, and consequently, a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to Article 14. The principle of reasonableness pervades all the three Articles, with the result, that the procedure contemplated by Article 21 must be 'right and just and fair ' and not 'arbitrary ' fancifu or 'oppressive ', otherwise, it should be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 reads as under: "No person shall be deprived of his life or personal liberty except according to procedure established by law. " If this Article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows: "No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law." 223 In the converse positive form, the expanded Article will read as below: "A peron may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law." Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code. Entries 1 and 2 in List III Concurrent List of the Seventh Schedule, specifically refer to the Indian Penal Code and the Code of Criminal Procedure as in force at the commencement of the Constitution. Article 72 (1) (c) specifically invests the President with power to suspend, remit or commute the sentence of any person convicted of any offence, and also "in all cases where the sentence is a sentence of death". Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terms, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial Court. Under the successive Criminal Procedure Codes which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under Section 302, Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution. 224 Before we pass on to the main Question No. II, we may dispose of another contention convassed by Dr. L.M. Singhvi. It is pointed out that India, as a member of the International Community, was a participating delegate at the international conference that made the Stockholm Declaration on December 11, 1977, that India has also accepted the International Covenant on Civil and Political Rights adopted by the Central Assembly of the United Nations, which came into force on March 23, 1966, and to which some 47 countries, including India, are a party. This being the position, it is stressed, India stands committed to the abolition of the death penalty. It is contended that the constitutional validity and interpretation of the impugned limb of Section 302, Penal Code, and the sentencing procedure for capital cases provided in Section 354 (3) of the Code of Criminal Procedure, 1973, must be considered in the light of the aforesaid Stockholm Declaration and the International Covenant, which represent the evolving attitudes and standards of decency in a maturing world. Let us examine this contention. The European Convention of Human Rights came into force on September 1, 1953, and 18 countries had signed this Convention on November 4, 1950. India acceded to this Resolution of the Convention on March 27, 1979. The International Covenant on Civil and Political Rights, inter alia, provides: "Article 6 (1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. (2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. It will be seen that clauses (1) and (2) of Article 6 do not abolish or prohibit the imposition of death penalty in all circumstances. All that they require is that, firstly, death penalty shall not be arbitrarily inflicted; secondly, it shall be imposed only for most serious crimes in accordance with a law, which shall not be an ex post facto legislation. Thus, the requirements of these clauses are substantially 225 the same as the guarantees or prohibitions contained in Articles 20 and 21 of our Constitution. India 's commitment therefore does not go beyond what is provided in the Constitution and the Indian Penal Code and the Criminal Procedure Code. The Penal Code prescribes death penalty as an alternative punishment only for heinous crimes which are not more than seven in number. Section 354 (3) of the Criminal Procedure Code, 1973, as we shall presently discuss, in keeping with the spirit of the International Covenant, has further restricted the area of death penalty. India 's penal laws, including the impugned provisions and their application, are thus entirely in accord with its international commitment. It will be pertinent to note that most of the countries including those who have subscribed to this International covenant, retain death penalty for murder and certain other crimes even to the present day in their penal laws. Neither the new interpretative dimensions given to Articles 19 and 21 by this Court in Maneka Gandhi and Charles Sobraj vs The Superintendent Central Jail, Tihar, New Delhi(1) nor the acceptance by India of the International Covenant on Civil and Political Rights, makes any change in the prevailing standards of decency and human dignity by which counsel require us to judge the constitutional validity of the impugned provisions. The International Covenant, as already noticed, does not outlaw capital punishment for murder, altogether. For all the foregoing reasons, we would answer the first main question in the negative. This takes us to Question No. II. Question No.II. Are the provisions of Section 354 (3) of the Code of Criminal Procedure, 1973 unconstitutional ? That is the question. The constitutional validity of section 354 (3) is assailed on these grounds: (i) (a) Section 354 (3) of the Code of Criminal Procedure, 1973, delegates to the Court the duty to legislate the field of 'special reasons ' for choosing between life and death, and ____________________ (1) ; 226 (b) permits imposition of death penalty in an arbitrary and whimsical manner in as much as it does not lay down any rational principies or criteria for invoking this extreme sanction. (Reliance has been placed on Furman vs Georgia (ibid). (ii) If Section 354 (3) is to be saved from the vice of unconstitutionality, the Court should so interpret it and define its scope that the imposition of death penalty comes to be restricted only to those types of grave murders and capital offences which imperil the very existence and security of the State. (Reliance for this argument has been placed on Rajendra Prasad 's case (ibid) ). As against this, the learned Solicitor General submits that the policy of the law in the matter of imposition of death sentence is writ large and clear in Section 354 (3), namely, that life imprisonment is the rule and death sentence an exception; that the correct approach should be to apply this policy to the relevant facts of the particular case, bearing on the question of sentence, and to find out if there are any exceptional reasons justifying imposition of the death penalty, as a departure from the normal rule. It is submitted that conferment of such sentencing discretion on the courts, to be exercised judicially, in no sense, amounts to delegation of the legislative powers by Parliament. Shri Sorabji further submits that there is no inherent impossibility in formulating broad guidelines consistent with the policy indicated by the legislature, for the exercise of the judicial functions under Section 354 (3). He emphasises that only broad guidelines, as distinct from rigid rules, can be laid down by the Court. Since the discretion proceeds the argument is to be exercised judicially after taking into consideration all the aggravating and mitigating circumstances relating to the crime and the criminal in a particular case, and ample safeguards by way of appeal and reference to the superior courts against erroneous or arbitrary exercise of the sentencing discretion have been provided, Section 354 (3) cannot be said to be violative of Articles 14, 19 and 21 or anything else in the Constitution, 227 Before embarking upon a discussion of the arguments advanced on both sides, it is necessary to have a peep into the history and the legislative background of the procedural provisions relating to sentencing in the Code of criminal Procedure. Under the Code of Criminal Procedure, 1898, as it stood before its amendment by Act No. 26 of 1955, even for the seven offences mentioned earlier, which are punishable in the alternative with death, the normal sentence was the death sentence, and if the Court wanted to depart from this rule, it had to give reasons for doing so. This requirement was embodied in subsection (5) of Section 367, which, as it then stood, was as follows: "If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed. The Law Commission in its 35th Report (Vol. I), made the following comments on this provision: ". a considerable body of opinion is in favour of a provision requiring the court to state its reasons for imposing the punishment either of death or of imprisonment for life. Further, this would be good safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt. It would increase the confidence of the people, in the courts, by showing that the discretion is judicially exercised. It would also facilitate the task of the High Court in appeal or in proceedings for confirmation in respect of the sentence (where the sentence awarded is that of death) or in proceedings in revision for enhancement of the sentence (where the sentence awarded is one of imprisonment of life. " In deferance to this recommendation, section 66 of the Code of Criminal Procedure (Amendment) Act, 1955 (XXVI of 1955) deleted old sub section (5) of Section 367 with effect from January 1, 1956, and thereafter, for such capital offences, it was left to the Court, on the facts of each case, to pass, in its discretion, for reason to be 228 recorded, the sentence of death or the lesser sentence. This led to some difference of opinion whether, even after the Amendment of 1955, in case of murder the normal punishment was death or imprisonment for life (See A.I.R. Commentaries on the Code of Criminal Procedure, Vol. 3, page 565, by D.V. Chitaley and section Appu Rao). Overruling its earlier decision, the Bombay High Court in the State vs Vali Mohammad,(1) held that death is not a normal penalty for murder. As against this, the Division Bench of the Madras High Court in Veluchami Thevar,(2) held that death was the normal punishment where there were no extenuating circumstances. The third set of cases held that both the sentences were normal but the discretion as regards sentence was to be exercised in the light of facts and circumstances of the case. This view appears to be in accord with the decision of this Court in Iman Ali & Anr. vs State of Assam.(3) In that case, there was a clear finding by the Court of Session which had been upheld by the High Court, that each of the two appellants therein, committed a cold blooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them. Those persons were shot and killed even though they had not tried to put up any resistence. It was held by this Court (speaking through Bhargava, J.) that in these circumstances where the murders were committed in cold blood with the sole object of committing dacoity, the Sessions Judge had not exercised his discretion judicially in not imposing the death sentence, and the High Court was justified in enhancing the sentence of the appellants from life imprisonment to death. Jagmohan Singh 's case, which we shall notice presently in further detail, proceeds on the hypothesis that even after the deletion of sub section (5) of Section 367 in the Code of 1898, both the alternative sentences provided in Section 302, Penal Code are normal punishment for murder, and the choice of either sentence rests in the discretion of the Court which is to be exercised judicially, after taking into account all the relevant circumstances of the case. __________________ (1) AIR 1959 Bom. 294 (299). (2) A.I.R. 1965 Mad. 48 at p. 49. (3) ; 229 Section 354 (3) of the Code of Criminal Procedure, 1973, marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before Apr. 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now, according to this changed legislative policy which is patent on the face of Section 354 (3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. The Joint Committee of Parliament in its Report, stated the object and reason of making this change, as follows: "A sentence of death is the extreme penalty of law and it is but fair that when a Court awards that sentence in a case where the alternative sentence of imprisonment for life is also available, it should give special reasons in support of the sentence" Accordingly, sub section (3) of Section 354 of the current Code provides: "When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. " In the context, we may also notice Section 235 (2) of the Code of 1973, because it makes not only explicit, what according to the decision in Jagmohan 's case was implicit in the scheme of the Code, but also bifurcates the trial by providing for two hearings, one at the pre conviction stage and another at the pre sentence stage. It requires that: "If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. " 230 The Law Commission on its 48th Report had pointed out this deficiency in the sentencing procedure: "45. It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal or several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender. The aims of sentencing: Themselves obscure become all the more so in the absence of information on which the correctional process is to operate. The public as well so the courts themselves are in the dark about judicial approach in this regard. We are of the view that the taking of evidence as to the circustances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to cooperate in the process." By enacting Section 235 (2) of the New Code, Parliament has accepted that recommendation of the Law Commission. Although sub section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence. "Of course", as was pointed out by this Court in Santa Singh vs State of Punjab,(1) "care would have to be taken by the Court to see that this hearing on the question of sentence is not turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings. " We may also notice Sections 432, 433 and 433A, as they throw light as to whether life imprisonment as currently administered in ______________ (1) A.I.R. 1976 SC. 231 India, can be considered an adequate alternative to the capital sentence even in extremely heinous cases of murder. Sections 432 and 433 of the Code of 1973 continue Sections 401 and 402 of the Code of 1898, with necessary modifications which bring them in tune with Articles 72 and 161 of the Constitution. Section 432 invests the "appropriate Government" (as defined in sub section (7) of that Section) with power to suspend or remit sentences. Section 433 confers on the appropriate Government power to commute sentence, without the consent of the person sentenced. Under clause (a) of the Section, the appropriate Government may commute a sentence of death, for any other punishment provided by the Indian Penal Code. With effect from December 18, 1978, the Code of Criminal Procedure (Amendment) Act, 1978, inserted new Section 433A, which runs as under : "433A. Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. " It may be recalled that in Jagmohan this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. Now, Section 433A restricts the power of remission and commutation conferred on the appropriate Government under Sections 432 and 433, so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to imprisonment for life must serve actual imprisonment for a minimum of 14 years. We may next notice other provisions of the extent Code (corresponding to Sections 374, 375, 376 and 377 of the repealed Code) bearing on capital punishment. Section 366 (i) of the Code requires the Court passing a sentence of death to submit the proceedings to the High Court, and further mandates that such a sentence shall not be executed unless it is confirmed by the High Court. On such a 232 reference for confirmation of death sentence, the High Court is required to proceed in accordance with Sections 367 and 368. Section 367 gives power to the High Court to direct further inquiry to be made or additional evidence to be taken. Section 368 empowers the High Court to confirm the sentence of death or pass any other sentence warranted by law or to annul or alter the conviction or order a new trial or acquit the accused. Section 369 enjoins that in every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such court consists of two or more Judges, be made, passed and signed by at least two of them. Section 370 provides that where any such case is heard before a Bench of Judges and such Judges are equally divided in opinion, the case shall be referred to a third Judge. In this fasciculus of Sections relating to confirmation proceedings in the High Court, the Legislature has provided valuable safeguards of the life and liberty of the subject in cases of capital sentences. These provisions seek to ensure that where in a capital case, the life of the convicted person is at stake, the entire evidential material bearing on the innocence or guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior Court. The High Court has been given very wide powers under these provisions to prevent any possible miscarriage of justice. In State of Maharashtra vs Sindhi, (1) this Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge. Similarly, where on appeal, the High Court reverses an acquittal, and convicts the accused person and sentences him to death, Section 379 of the Code of 1973, gives him a right of appeal to the Supreme Court. Finally, there is Article 136 of the Constitution under which the Supreme Court is empowered, in its discretion, to __________ (1) ; 233 entertain an appeal on behalf of a person whose sentence of death awarded by the Sessions Judge is confirmed by the High Court. In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan 's case. These propositions may be summed up as under : (i) The general legislative policy that underlines the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefor, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where the maximum punishment is the death penalty. (ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facts to each case would make general standards either meaningless 'boiler plate ' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGauthe vs California(1) (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. (iii) The view taken by the plurality in Furman vs Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un _____________________ (1) ; 234 guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in our Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area. (iv) (a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. (b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the judges an unguided and uncontrolled discretion in the matter of awarding capital punishment of imprisonment for life. (v) (a) Relevant facts and circumstances impinging on the nature and circumstances of the crime can be brought before the Court at the preconviction 235 stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facts and circumstances had been specifically provided. Where counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts. (b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr. P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2) Cr. P.C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21." (emphasis added) A study of the propositions set out above, will show that in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan 's case. Of course, two of them require to be adjusted and attuned to the shift in the 236 legislative policy. The first of those propositions is No. (iv) (a) which postulates, that according to the then extant Code of Criminal Procedure both the alternative sentences provided in Section 302, Penal Code are normal sentences, and the Court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" to be recorded for such sentence. The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. In this view we are in accord with the dictum of this Court in Balwant Singh vs State of Punjab (1), wherein the interpretation of Section 354(3) first came up for consideration. After surveying the legislative background, one of us (Untwalia, J,) speaking for the Court, summed up the scope and implications of Section 354 (3), thus : "Under this provision the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case. " While applying proposition (iv) (a), therefore, the Court has to bear _____________________ (1) A.I.R.1976 SC 231=[1976] 2 SCR 684. 237 in mind this fundamental principle of policy embodied in Section 354(3). Another proposition, the application of which, to an extent, is affected by the legislative changes, is No. (v). In portion (a) of that proposition, it is said that circumstances impinging on the nature and circumstances of the crime can be brought on record before the pre conviction stage. In portion (b), it is emphasised that while making choice of the sentence under Section 302, Penal Code, the Court is principally concerned with the circumstances connected with the particular crime under inquiry. Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv) (a) and (v) (b) in Jagmohan, shall have to be recast and may be stated as below : (a) The normal rule is that the offence of muder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence. (b) While considering the question of sentence to be imposed for the offence of murder under Section 302 Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the 238 offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence. The soundness or application of the other propositions in Jagmohan, and the premises on which they rest, are not affected in any way by the legislative changes since effected. On the contrary these changes reinforce the reasons given in Jagmohan, for holding that the impugned provisions of the Penal Code and the Criminal Procedure Code do not offend Articles 14 and 21 of the Constitution. Now, Parliament has in Section 354(3) given a broad and clear guideline which is to serve the purpose of lodestar to the court in the exercise of its sentencing discretion. Parliament has advisedly not restricted this sentencing discretion further, as, in its legislative judgment, it is neither possible nor desirable to do so. Parliament could not but be aware that since the Amending Act 26 of 1955, death penalty has been imposed by courts on an extremely small percentage of persons convicted of murder a fact which demonstrates that courts have generally exercised their discretion in inflicting this extreme penalty with great circumspection, caution and restraint. Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom, thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well recognised principles crystalised by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3). The new Section 235 (2) adds to the number of several other safeguards which were embodied in the Criminal Procedure Code of 1898 and have been re enacted in the Code of 1973. Then, the errors in the exercise of this guided judicial discretion are liable to be corrected by the superior courts. The procedure provided in Criminal Procedure Code for imposing capital punishment for murder and some other capital crimes under the Penal Code cannot, by any reckoning, be said to be unfair unreasonable and unjust, 239 Nor can it be said that this sentencing discretion, with which the courts are invested, amounts to delegation of its power of legislation by Parliament. The argument to that effect is entirely misconceived. We would, therefore, re affirm the view taken by this Court in Jagmohan, and hold that the impgned provisions do not violate Articles 14, 19 and 21 of the Constitution. Now, remains the question whether this Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders. Dr. Chitale contends that the wide observations in Jagmohan as to the impossibility of laying down standards or norms in the matter of segtencing are too sweeping. It is submitted that soon after the decision in Furman, several States in U.S.A. amended their penal statutes and brought them in conformity with the requirements of Furman. Support has also been sought for this argument from Gregg vs Georgia, wherein the Supreme Court of the United States held that the concern expressed in Furman decision that death penalty may not be imposed in an arbitrary or capricious manner could be met by a carefully drafted statute ensuring that the sentencing authority was given adequate guidance and information for determining the appropriate sentence, a bifurcated sentencing proceeding being preferable as a general proposition. If by "laying down standards", it is meant that 'murder ' should be categorised before hand according to the degrees of its culpability and all the aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion, the argument merits rejection. As pointed out in Jagmohan, such "standardisation" is well nigh impossible. Firstly, there is little agreement among penologists and jurists as to what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment for a person convicted of a particular offence. According to Cessare Beccaria, who is supposed to be the intellectual progenitor of today 's fixed sentencing movement 'crimes are only to be measured by the injnry done to society '. But the 20th Century sociologists do not wholly agree 240 with this view. In the opinion of Von Hirsch, the "seriousness of a crime depends both on the harm done (or risked) by the act and degree of the actor 's culpability". But how is the degree of that culpability to be measured. Can any thermometer be devised to measure its degree ? This is a very baffling, difficult and intricate problem. Secondly, criminal cases do not fall into set behavioristic patterns. Even within a single category offence there are infinite, unpredictable and unforceable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts. "Simply in terms of blame worthiness or dessert criminal cases are diferent from one another in ways that legislatures cannot anticipate, and limitations of language prevent the precise description of differences that can be anticipated. "(1) This is particularly true of murder. "There is probably no offence", observed Sir Ernest Growers, Chairman of the Royal Commission, "that varies so widely both in character and in moral guilt as that which falls within the legal definition of murder. " The futility of attempting to lay down exhaustive standards was demonstrated by this Court in Jagmohan by citing the instance of the Model Penal Code which was presented to the American Supreme Court in McGoutha. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single offence category ceases to be judicial. It tends to sacrifice justice at the alter of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that incompassed by the broad contours delineated in Section 354 (3), _____________ (1) Messinger and Bittner 's Crimonology Year Book (Ibid) Albert W, Alcherler 's article at page 421. 241 the Court would not by over leaping its bounds rush to do what Parliament, in its wisdom, varily did not do. We must leave upto the Legislature, the things that are Legislature 'section "The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits". As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. Since substituted judicial 'made to order ' standards, howsoever painstakingly made, do not bear the peoples imprimatur, they may not have the same authenticity and efficacy as the silent zones and green belts designedly marked out and left open by Parliament in its legislative planning for fair play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing. When judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves, the responsibility of setting down social norms of conduct. There is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal pre dilection into the law, sincerely mistaking that changeling for what they perceive to be the community ethic. The perception of 'community ' standards or ethics may vary from Judge to Judge. In this sensitive, highly controversial area of death penalty, with all its complexity, vast implications and manifold ramifications, even all the Judges sitting cloistered in this Court and acting unanimously, cannot assume the role which properly belongs to the chosen representatives of the people in Parliament, particularly when Judges have no divining rod to divine accurately the will of the people. In Furman, the Hon 'ble Judges claimed to articulate the contemporary standards of morality among the American people. But speaking through public referenda, Gallup polls and the state legislatures, the American people sharply rebuffed them. We must draw a lesson from the same. What the learned Chief Justice, who is amongst us in this case has said recently in Gurbaksh Singh Sibbia and others vs State of Punjab(1) in the context of laying down standards in the discre ________________________ (1) Criminal Appeals Nos. 335 etc. of 1977 and 81 and 82 of 1978. 242 tionary area of anticipatory bail, comes in as a timely reminder. In principle, these observations aptly apply to the desirability and feasibility of laying down standards in the area of sentencing discretion, also. Let us therefore, hark to the same: "Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and, therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L.C. said in Hyman and Anr. vs Rose(1). "I desire in the first instance to point out that the discretion given by the section is very wide. Now it seems to me that when the Act is so express to provide a wide discretion. it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained ___________________________ (1) , 243 in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe. I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand." "Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail ', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. " From what has been extracted above, it is clear that this Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in Section 354(3) can be laid down. Before we come to this aspect of the matter, it will be fair to notice briefly the decisions of the Supreme Court of U.S.A. in Gregg vs Georgia and companion cases. Soon after the decision in Furman, the Georgia Legislature amended its statutory scheme. The amended statute retains the death penalty for six categories of crime: murder, kidnapping for ransom or where victim is harmed, armed robbery, rape, treason, and aircraft hijacking. The statutory aggravating circumstances, the existence of any of which may justify the imposition of the extreme penalty of death, as provided in that statute, are: "(1) The offence of murder, rape, armed robbery, or 244 kidnapping was committed by a person with a prior record of conviction for a capital felony, (or the offence of murder was committed by a person who has a substantial history of serious assaultive criminal convictions). (2) The offence of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offence of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree. (3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazaradous to the lives of more than one person. (4) The offender committed the offence of murder for himself or another, for the purpose of receiving money or any other thing of monetary value. (5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty. (6) The offender caused or directed another to committed murder as an agent or employee of another person. (7) The offence of murder, rape, armed robbery, or kidnapping was outrageiously or want only vile horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. (8) The offence of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance or his official duties. (9) The offence of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement. 245 (10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another. " The Supreme Court of Georgia in Arnold vs State(1), held unconstitutional the portion (within brackets) of the first circumstances encompassing persons who have a "substantial history of serious assaultive criminal convictions" but did not set clear and objective standards. The amended statute, also, provided for a bifurcated trial and a pre sentence hearing. It also provides for an automatic appeal of death sentence to the Supreme Court of Georgia, which may or may not affirm the death sentence. The appellate court is also required to include reference to similar cases that the court considered. The defendant (accused) in that case was convicted of two counts of armed robbery and two counts of murder. The accused had committed the murders for the purpose of receiving money and an automobile of one of the victims. After reviewing the trial record, the Georgia Supreme Court affirmed the convictions and the imposition of death sentences for murder, only. The constitutional validity of the amended statutory scheme of Georgia was challenged before the Supreme Court of U.S.A. on the ground that the imposition of the death penalty for the crime of murder under the Georgia statute violated the prohibition against the infliction of cruel and unusual punishment under the Eighth and Fourteenth Amendments. Likewise in the companion case Proffitt vs Florida (2), the Florida Legislature adopted new statutes that authorised the imposition of the death penalty on those convicted of first degree murders. Under the new Florida statutes, if a defendant (accused) is found guilty of first degree murder, a separate presentence hearing is held before the jury, where arguments may be presented and where any evidence deemed relevant to sentencing may be admitted and must include matters relating to eight aggravating and seven mitigating circumstances specified in the statutes, the jury is directed to weigh such circumstances and return an advisory verdict as to the sentence. __________________ (1) , 540, , 391 (1976) (2) ; , (1976). 246 The actual sentence is, however, determined by the trial judge, who is also directed to weigh the statutory aggravating and mitigating circumstances. If a death sentence is imposed, the trial court must set forth in writing its fact findings that sufficient statutory aggravating circumstances exist and are not outweighed by statutory mitigating circumstances. Just as in the Georgia statute, a death sentence is to be automatically reviewed by the Supreme Court of Florida. Under this new statutory scheme, the Florida Court found Proffitt (defendant) guilty of first degree murder and sentenced him to death on the finding that these aggravating circumstances were established : "(1) The murder was premeditated and occurred in the course of a felony (burglary); (2) the defendant had the propensity to commit murder; (3) the murder was especially heinous, atrocious, and cruel ; and (4) the defendant knowingly, through his intentional act, had created a great risk of serious bodily harm and death to many persons. " The trial judge also found specifically that none of the statutory mitigating circumstances existed. The Supreme Court of Florida affirmed the death sentence. Before the Supreme Court of U.S.A. the constitutional validity of the imposition of death penalty for the crime of murder under the Florida statutes was challenged on the same ground as in Gregg vs Georgia. The Supreme Court of U.S.A. in both the aforesaid cases negatived the challenge to the statutes and upheld their validity. It may be recalled that in Furman, that Court had held that if clear, definite and articulate standards channeling the sentencing discretion for imposition of the death penalty are not laid down in a statute, it would violate the Eighth and Fourteenth Amendments. It may be noted that the aggravating circumstance No. (7) is couched in a very wide and elastic language. The expressions "outrageously or wantonly vile", "horrible or inhuman" employed therein are of the widest amplitude and give this aggravating circumstance the character of an omnibus clause. Likewise, 247 in the Florida statute, the scope of the words "especially heinous, atrocious and cruel" was equally large and imprecise. It can be seriously questioned whether these extremely elastic standards really exclude the uncontrolled exercise of sentencing discretion so as to meet the requirements of Furman. In Gregg vs Georgia, the petitioner attacked the seventh statutory aggravating circumstance which authorises imposition of the death penalty if the murder was "outrageously, or wantonly vile, horrible or inhuman" on the ground that it was so broad that capital punishment could be imposed by its application in any murder case. Stewart, J., speaking for himself and for Powell and Stevens, JJ., got over this attack, in three ways: Firstly, by reading down the concerns expressed in Furman. In this connection, Stewart, J. said, all that Furman mandates is that discretion in so grave a matter must be suitably directed "so as to minimize the risk of wholly arbitrary and capricious action. " This was, if we may say so with respect, an admission of the fact that a considerable range of sentencing discretion has perforce to be left with the sentencing body to be exercised by it according to its own good sense and reason, and that no standards howsoever meticulously drafted can totally exclude scope for arbitrary and capricious action. The second reason given to parry this attack was of a general nature. It was observed: "As a general proposition these concerns (expressed in Furman) are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. " The third course adopted to foil the attack was: "It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open ended construction," 248 White, J. with whom the Chief Justice and Rehnquist, J. joined, negatived the change of these standards being vague and incomplete, with these observations: "The argument is considerably overstated The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. As the types of murders for which the death penalty may be imposed became more narrowly defined and are limited to those which are particularly serious or for which the death penalty is particularly appropriate as they are in Georgia by reasons of the aggrvating circumstance requirement, it becomes reasonable to expect that Georgia 's current system would escape the infirmities which invalidated its previous system under Furman. Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed wantonly or freakishly for any given category of crime will be set aside." Similarly, in Proffit vs Florida, it was contended that the enumerated aggravating and mitigating circumstances in the Florida statute are so vague and so broad that virtually "any capital defendant becomes a candidate for the death penalty". In particular, the petitioner attacked the eighth and third statutory aggravating circumstances which authorise the death penalty to be imposed if the crime is "especially heinous, atrocious, or cruel" or if "the defendant knowingly created a great risk of death to many persons". Agreeing with the Supreme Court of Florida, the Supreme Court of U.S.A. recognised that "while it is arguable that all killing are atrocious, still we believe that the Legislature intended something especially heinous, atrocious, of cruel" when it authorised the death penalty for first degree murder. As a consequence, the Court has indicated that the eighth statutory provision is directed only at "the conscienceless or pitiless crime which is unnecessarily tortuous to the victim". 249 It appears to us that in Gregg vs Georgia and the companion cases, the Supreme Court of U.S.A. was obliged to read down the requirements of Furman and to accept these broadly worded, looseended and not all inclusive 'standards ' because in the area of sentencing discretion, if it was to retain its judicial character, exhaustive standardisation or perfect regulation was neither feasible nor desirable. Moreover, over standardisation of the sentencing process tends to defeat its very purpose, and may actually produce opposite results. Messinger and Bittner 's Criminology Year Book (ibid) Albert W. Alcherler 's article at page 421 highlights this danger, by taking, inter alia, the example of the guided discretion capital punishment statutes favoured by the Supreme Court in Gregg vs Georgia and its companion cases, as follows: A defendant convicted of capital murder might wish to make the following speech to the jury about to consider whether capital punishment should be imposed: "I am deeply sorry for my crime which I recognize was about as bad as any that can be imagined. I did, in fact, go to the police station shortly after the killing to surrender and make a full confession. Although I have done some terrible things in my life you may wish to know, before deciding whether I should live or die, that I have also done some good. I once risked my life in combat to save five comrades an action for which I was awarded the Silver Star and for the last 10 years I have personally cared for my invalid mother while supporting 5 younger brothers and sisters. "The mitigating factors listed in today 's capital punishment statutes are sometimes quite general, but none that I have seen in any statute would permit a jury to consider any of the circumstances mentioned in this defendant 's speech (or, for that matter any other evidence of pre crime virtue or past crime remorse). Apparently the Florida statute 's upheld in Proffitt vs Florida would not; yet the Supreme Court plurality, seemingly oblivious to the 250 statutes limitations, declared in a companion case, 'A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed." (Jurek vs Texas.(1) Critically examined, it is clear that the decisions in Gregg vs Georgia and its companion cases demonstrate the truth of what we have said earlier, that it is neither practicable nor desirable to imprison the sentencing discretion of a judge or jury in the straitjacket of exhaustive and rigid standards, Nevertheless, these decisions do show that it is not impossible to lay down broad guidelines as distinguished from ironcased standards, which will minimise the risk of arbitrary imposition of death penalty for murder and some other offences under the Penal Code. This takes us to the question of indicating the broad criteria which should guide the Courts in the matter of sentencing a person convicted of murder under Section 302, Penal Code. Before we embark on this task, it will be proper to remind ourselves, again that "while we have an obligation to ensure that the constitutional bounds are not over reached, we may not act as judges as we might as legislatures. "(2) In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well recognised principles" the Court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those eases. The legislative changes since Jagmohan as we have discussed already do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354 (3) and 235 (2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offences, also. __________________________ (1) ; , 271(1976). (2) Per Stewart. J. in Gregg. vs Georgia. 251 We will first notice some of the aggravating circumstances which, in the absence of any mitigating circumstances, have been regarded as an indication for imposition of the extreme penalty. Pre planned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. In Jagmohan, it was reiterated by this Court that if a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by V.R. Krishna Iyer, J., speaking for the Bench, in Ediga Anamma, in these terms: "The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. " It may be noted that this indicator for imposing the death sentence was crystallised in that case after paying due regard to the shift in legislative policy embodied in Section 354(3) of the Code of Criminal Procedure, 1973, although on the date of that decision (February 11, 1974), this provision had not come into force. In Paras Ram 's case, also, to which a reference has been made earlier, it was emphatically stated that a person who in a fit of anti social piety commits "blood curdling butchery" of his child, fully deserves to be punished with death. In Rajendra Prasad, however, the majority (of 2:1) has completely reversed the view that had been taken in Ediga Anamma, regarding the application of Section 354(3) on this point. According to it, after the enactment of Section 354(3) 'murder most foul ' is not the test. The shocking nature of the crime or the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. "Special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal". With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, 252 depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man '. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water tight compartments. In a sense, to kill is to be cruel and, therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. Drawing upon the penal statutes of the States in U.S.A. framed after Furman vs Georgia, in general, and clauses (2)(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances". "Aggravating circumstances: A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed. (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public 253 servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. " Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other. In Rajendra Prasad, the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6). " Our objection is only to the word "only". While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and society, public order and the interests of the general public, may provide "special reasons" to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its 'ethos '; nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302, Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw vs State of West Bengal, (1) which follows the dictum in Rajendra Prasad (ibid). In several countries which have retained death penalty, preplanned murder for monetary gain, or by an assassin hired for ___________________ (1) 254 monetary reward is, also, considered a capital offence of the first degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of 'murder ' or its further classification. Then, in some decisions, murder by fire arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances" which may form the basis of 'special reasons ' in Section 354(3), circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. Dr. Chitaley has suggested these mitigating factors: "Mitigating circumstances: In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. 255 (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. " We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a 'child ', that is, 'a person who at the date of murder was less than 16 years of age ', cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children. According to some Indian decisions, the post murder remorse, penitance or repentence by the murderer is not a factor which may induce the Court to pass the lesser penalty (e.g. Mominaddi Sardar). But those decisions can no longer be held to be good law in views of the current penological trends and the sentencing policy outlined in Section 235(2) and 354(3). We have already extracted the view of A.W. Alchuler in Cr. Y.E. by Messinger and Bittner (ibid), which are in point. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood thirsty. Hedging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines 256 indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz, that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law 's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. For all the foregoing reasons, we reject the challenge to the constitutionality of the impugned provisions contained in Sections 302, Penal Code, and 354(3) of the Code of Criminal Procedure, 1973. The writ petitions and the connected petitions can now be heard and disposed of, on their individual merits, in the light of the broad guidelines and principles enunciated in this judgment. BHAGWATI, J. These writ petitions challenge the constitutional validity of Section 302 of the Indian Penal Code read with Section 354, sub section (3) of the Code of Criminal Procedure in so far as it provides death sentence as an alternative punishment for the offence of murder. There are several grounds on which the constitutional validity of the death penalty provided in Section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure is assailed before us, but it is not necessary to set them out at this stage, for I propose to deal with them when I examine the arguments advanced on behalf of the parties. Suffice it to state for the present that I find, considerable force in some of these grounds and in my view, the constitutional validity of the death penalty provided as an alternative punishment in section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure cannot be sustained. I am conscious that my learned brethren on the Bench who constitute the majority have taken a different view and upheld the constitutional validity of the death penalty but, with the greatest respect to them and in all humility, I cannot persuade myself to concur with the view taken by them. Mine is unfortunately a solitary dissent and it is therefore, with a certain amount of hesitation that I speak but my initial diffidence is overcome by my deep and abiding faith in the dignity of man and worth of the human person and passionate 257 conviction about the true spiritual nature and dimension of man. I agree with Bernard Shaw that "Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society. .Murder and capital punishment are not opposites that cancel one another but similars that breed their kind. " It was the Father of the nation who said years ago, reaffirming what Prince Satyavan said on capital punishment in Shanti Parva of Mahabharata that "Destruction of individuals can never be a virtuous act" and this sentiment has been echoed by many eminent men such as Leonardo Da Vinci, John Bright, Victor Hugo and Berdyaev. To quote again from Bernard Shaw from Act IV of his play "Caesar and Cleopatra: "And so to the end of history, murder shall breed murder, always in the name of right and honour and peace, until the Gods are tired of blood and create a race that can understand. " I share this sentiment because I regard men as an embodiment of divinity and I am therefore morally against death penalty. But my dissent is based not upon any ground of morality or ethics but is founded on constitutional issues, for as I shall presently show, death penalty does not serve any social purpose or advance any constitutional value and is totally arbitrary and unreasonable so as to be violative of Articles 14, 19 and 21 of the Constitution. Before I proceed to consider the various constitutional issues arising out of the challenge to the validity of the death penalty, I must deal with a preliminary objection raised on behalf of the respondents against our competence to entertain this challenge. The learned counsel appearing on behalf of the respondents urged that the question of constitutional validity of the death penalty stood concluded against the petitioners by the decision of a constitution bench of five Judges of this Court in Jagmohan vs State of U.P.(1) and it could not therefore be allowed to be reagitated before this Bench consisting of the same number of Judges. This Bench, contended the respondents, was bound by the decision in Jagmohan 's case(supra) and the same issue, once decided in Jagmohan 's case (supra), could not be raised again and reconsidered by this Bench. Now it is true that ______________ (1) ; 258 the question of constitutional validity of death penalty was raised in Jagmohan 's case (supra) and this Court by a unanimous judgment held it to be constitutionally valid and, therefore, ordinarily, on the principle of stare decisis, we would hold ourselves bound by the view taken in that case and resist any attempt at reconsideration of the same issue. But there are several weighty considerations which compel us to depart from this precedential rule in the present case. It may be pointed out that the rule of adherence to precedence is not a rigid and inflexible rule of law but it is a rule of practice adopted by the courts for the purpose of ensuring uniformity and stability in the law. Otherwise, every Judge will decide an issue according to his own view and lay down a rule according to his own perception and there will be no certainty and predictability in the law, leading to chaos and confusion and in the process, destroying the rule of law. The labour of the judges would also, as pointed out by Cardozo J. in his lectures of "Nature of Judicial Process" increase" almost to the breaking point if every past decision could be reopened in every case and one could not lay one 's own course of bricks on the secure foundation of the courses laid by others who had gone before him." But this rule of adherence to precedents, though a necessary tool in what Maitland called "the legal smithy", is only a useful servant and cannot be allowed to turn into a tyrannous master. We would do well to recall what Brandies J. said in his dissenting judgment in State of Washington vs Dawson and company,(1) namely; "Stare decisis is ordinarily a wise rule of action. But it is not a universal and inexorable command. " If the Rule of stare decisis were followed blindly and mechanically, it would dwarf and stultify the growth of the law and affect its capacity to adjust itself to the changing needs of the society. That is why Cardozo pointed out in his New York State Bar Address: "That was very well for a time, but now at last the precedents have turned upon us and are engulfing and annihilating us engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty of ends and aims. Some of them tell us that certainty is merely relative and temporary, a writing on the sands to _________ (1) : 68 Lawyers Edu. 219 259 be effected by the advancing tides. Some of them even go so far as to adjure us to give over the vain quest, to purge ourselves of these yearnings for an unattainable ideal, and to be content with an empiricism that is untroubled by strivings for the absolute. With all their diversities of form and doctrine, they are at one at least in their emphasis upon those aspects of truth that are fundamental and ultimate. They exemplify the method approach, the attitude and outlook, the concern about the substance of things, which in all its phases and disguises is the essence of philosophy. " We must therefore rid stare decisis of something of its petrifying rigidity and warn ourselves with Cardozo that "in many instances the principles and rules and concepts of our own creation are merely apercus and glimpses of reality" and remind oursevels "of the need of reformulating them or at times abandoning them altogether when they stand condemned as mischievous in the social consciousness of the hour,. the social consciousness which it is our business as Judges to interpret as best as we can. " The question at issue in the present writ petitions is one of momentous significance namely, whether the state can take the life of an individual under the cover of judicial process and whether such an act of killing by the State is in accord with the constitutional norms and values and if, on an issue like this, a Judge feels strongly that it is not competent to the State to extinguish the flame of life in an individual by employing the instrumentality of the judicial process, it is his bounden duty, in all conscience, to express his dissent, even if such killing by the State is legitimized by a previous decision of the court. There are certain issues which transcend technical considerations of stare decisis and if such an issue is brought before the court, it would be nothing short of abdication of its constitutional duty for the court to consider such issue by taking refuge under the doctrine of stare decisis. The court may refuse to entertain such an issue like the constitutional validity of death penalty because it is satisfied that the previous decision is correct but it cannot decline to consider it on the ground that it is barred by the rule of adherence to precedents. Moreover, in the present case, there are two other supervening circumstances which justify, nay compel, reconsideration of the decision in Jagmohan 's case (supra). The first is the introduction of the new Code of Criminal Procedure in 1973 which by sec 260 tion 354 sub section (3) has made life sentence the rule in case of offences punishable with death or in the alternative imprisonment for life and provided for imposition of sentence of death only in exceptional cases for special reasons. I shall presently refer to this section enacted in the new Code of Criminal Procedure and show how, in view of that provision, the imposition of death penalty has become still more indefensible from the constitutional point of view. But the more important circumstance which has supervened since the decision in Jagmohan 's case (supra) is the new dimension of Articles 14 and 21 unfolded by this Court in Maneka Gandhi vs Union of India.(1) This new dimension of Articles 14 and 21 renders the death penalty provided in section 302 of the Indian Penal Code read with sec. 354 (3) of the Code of Criminal Procedure vulnerable to attack on a ground not available at the time when Jagmohan 's case (supra) was decided. Furthermore, it may also be noted, and this too is a circumstance not entirely without significance, that since Jagmohan 's case (supra) was decided, India has ratified two international instruments on human rights and particularly the International Convenant on Civil and Political Rights. We cannot therefore consider ourselves bound by the view taken in Jagmohan 's case (supra) and I must proceed to consider the issue as regards the constitutional validity of death penalty afresh, without being in any manner inhibited by the decision in Jagmohan 's case (supra). It must be realised that the question of constitutional validity of death penalty is not just a simple question of application of constitutional standards by adopting a mechanistic approach. It is a difficult problem of constitutional interpretation to which it is not possible to give an objectively correct legal anwer. It is not a mere legalistic problem which can be answered definitively by the application of logical reasoning but it is a problem which raises profound social and moral issues and the answer must therefore necessarily depend on the judicial philosophy of the Judge. This would be so in case of any problem of constitutional interpretation but much more so would it be in a case like the present where the constitutional conundrum is enmeshed in complex social and moral issues defying a formalistic judicial attitude. That is the reason why in some countries like the United States and Canada where _________________ (1) [1978] 2 SCR 663. 261 there is power of judicial review, there has been judicial disagreement on the constitutionality of death penalty. On an issue like this, as pointed out by David Pannick in his book on "Judicial Review of the Death Penalty" judicial conclusions emanate from the judicial philosophy of those who sit in judgment and not from the language of the Constitution. " But even so, in their effort to resolve such an issue of great constitutional significance, the Judges must take care to see that they are guided by "objective factors to the maximum possible extent. " The culture and ethos of the nation as gathered from its history, its tradition and its literature would clearly be relevant factors in adjudging the constitutionality of death penalty and so would the ideals and values embodied in the Constitution which lays down the basic frame work of the social and political structure of the country, and which sets out the objectives and goals to be pursued by the people in a common endeavour to secure happiness and welfare of every member of the society. So also standards or norms set by International organisations and bodies have relevance in determining the constitutional validity of death penalty and equally important in construing and applying the equivocal formulae of the Constitution would be the "wealth of non legal learning and experience that encircles and illuminates" the topic of death penalty. "Judicial dispensers", said Krishna Iyer, J. in Dalbir Singh and Others vs State of Punjab(1) "do not behave like cavemen but breathe the fresh air of finer culture. " There is no reason why, in adjudicating upon the constitutional validity of death penalty. Judges should not obtain assistance from the writings of men like Dickens, Tolstoy, Dostoyevsky, Koestter and Camus or from the investigations of social scientists or moral philosophers in deciding the circumstances in which and the reasons why the death penalty could be seen as arbitrary or a denial of equal protection. It is necessary to bear in mind the wise and felicitous words of Judge Learned Hand in his "Spirit of Liberty" that while passing on question of constitutional interpretation, it is as important to a Judge: ". .to have atleast a bowing acquaintance with Acton and Maitland. With Thucydides, Gibbon and Carlyle, with Homer, Dante Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume 262 and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the question before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalisations of universal applicability. " Constitutional law raises, in a legal context, problems of economic, social, moral and political theory and practice to which non lawyers have much to contribute. Non lawyers have not reached unanimity on the answers to the problems posed; nor will they ever do so, But when judges are confronted by issues to which there is no legal answer, there is no reason (other than a desire to maintain a fiction that the law provides the answer) for judicial discretion to be exercised in a vacuum, immune from non legal learning and extra legal dispute. "Quotations from noble minds are not for decoration (in hard constitutional cases) but for adaptation within the framework of the law. " Vide: David Pannick on 'Judicial Review of the Death Penalty. ' The Judges must also consider while deciding an issue of constitutional adjudication as to what would be the moral, social and economic consequences of a decision either way. The consequences of course do not alter the meaning of a constitutional or statutory provision but they certainly help to fix its meaning. With these prefatory observations I shall now proceed to consider the question of constitutional validity of death penalty. I shall presently refer to the constitutional provisions which bear on the question of constitutionality of death penalty, but before I do so, it would be more logical if I first examine what is the international trend of opinion in regard to death penalty. There are quite a large number of countries which have abolished death penalty de jure or in any event, de facto The Addendum to the Report of the Amnesty International on "The Death Penalty" points out that as on 30th May 1979, the following countries have abolished death penalty for all offences : Australia, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Fiji, Finland, Federal Republic of Germany, Honduras, Iceland, Luxembourg, Norway, Portugal, Sweden, Uruguay and Venezuela, and according 263 to this Report, Canada, Italy, Malta, Netherlands, Panama, Peru, Spain and Switzerland have abolished death penalty in time of peace, but retained it for specific offences committed in time of war. The Report also states that Algeria, Belgium, Greece, Guyana, Ivory Coast, Seychelles and Upper Volta have retained the death penalty on their statute book but they did not conduct any executions for the period from 1973 to 30th May 1979. Even in the United States of America there are several States which have abolished death penalty and so also in the United Kingdom, death penalty stands abolished from the year 1965 save and except for offences of treason and certain forms of piracy and offences committed by members of the armed forces during war time. It may be pointed out that an attempt was made in the United Kingdom in December 1975 to reintroduce death penalty for terrorist offences involving murder but it was defeated in the House of Commons and once again a similar motion moved by a conservative member of Parliament that "the sentence of capital punishment should again be available to the courts" was defeated in the House of Commons in a free vote on 19th July 1979. So also death penalty has been abolished either formally or in practice in several other countries such as Argentina, Bolivia, most of the federal States of Mexico and Nicaragua, Israel, Turkey and Australia do not use the death penalty in practice. It will thus be seen that there is a definite trend in most of the countries of Europe and America towards abolition of death penalty. It is significant to note that the United Nations has also taken great interest in the abolition of capital punishment. In the Charter of the United Nations signed in 1945, the founding States emphasized the value of individuals 's life, stating their will to "achieve international co operation. in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." Though the San Francisco Conference did not address itself to the issue of death penalty specifically, the provisions of the charter paved the way for further action by United Nations bodies in the field of human rights, by establishing a Commission on Human Rights and, in effect, charged that body with formulating an International Bill of Human Rights. Meanwhile the Universal Declaration of Human Rights was adopted by the General Assembly in its Resolution 217 A (III) of 10 December 1948. Articles 3 and 5 of the Declaration provided: 264 3. "Everyone has the right to life, liberty and security of person." 5. "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The United Nations ' position on the question of death penalty was expected to be stated more specifically in the International Covenant on Civil and Political Rights, the drafting of which had been under way since the first session of the Commission on Human Rights in 1947. But during the 11 year period of drafting of the relevant provision of the Covenant, two main approaches to the issue of capital punishment became evident: one stressed the need for barring the death penalty and the second placed emphasis on resstricting its application to certain cases. The proponents of the first position suggested either the total abolition of the death penalty or its abolition in time of peace or for political offences. This approach was however regarded as unfeasible, since many countries, including abolitionist ones, felt that the provision for an outright ban on the death penalty would prevent some States from ratifying the Covenant, but at the same time, it was insisted by many countries that the Covenant should not create the impression of supporting or perpetuating death penalty and hence a provision to this effect should be included. The result was that the second approach stressing everyone 's right to life and emphasizing the need for restricting the application of capital punishment with a view to eventual abolition of the death penalty, won greater support and Article 6 of the Covenant as finally adopted by the General Assembly in its resolution 2000(XXX) of 16 December 1966 provided as follows : 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This 265 penalty can only be carried out pursuant to a final judgment rendered by a competent court. When deprivation of life constitutes the crime of genocide, it is understood, that nothing in this article shall authorise any State Party to the present Covenant to derogate in any way from any obligatlon assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. Anyone sentenced to death shall have the right to seek, pardon or commutation of the sentence. Amnesty pardon or commutation of the sentence of death may be granted in all cases. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to the present Covennt. " Article 7 of the Covenant corresponding to Article 5 of the Universal Declaration of Human Rights reaffirmed that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. So deep and profound was the United Nation 's concern with the issue of death penalty that the General Assembly in its resolotion 1396 (XIV) of 20 November, 1959 invited the Economic and Social Council to initiate study of the question of capital punishment, of the laws and practices relating thereto, and of the effects of capital punishment and the abolition thereof on the rate of criminality. Pursuant to this resolution, the Economic and Social Council activised itself on this issue and at its instance a substantive report report was prepared by the noted French jurist Marc Ancel. The report entitled "Capital Punishment" was the first major survey of the problem from an international stand point on the deterrent aspect of the death penalty and in its third chapter, it contained a cautious statement "that the deterrent effect of the death penalty is, to say the least, not demons 266 trated". This view had been expressed not only by abolitionists countries in their replies to the questionaires but also by some retentionist countries. The Ancel report alongwith the Report of the ad hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders which examined it in January 1963 was presented to the Economic and Social Council at its 35th Session when its Resolution 934 (XXXV) of 9th April 1963 was adopted. By this Resolution the Economic and Social Council urged member governments inter alia to keep under review the efficacy of capital punishment as a deterrent to crime in their countries and to conduct research into the subject and to remove this punishment from the criminal law concerning any crime to which it is, in fact, not applied or to which there is no intention to apply it. This Resolution clearly shows that there was no evidence supporting the supposed deterrent effect of the death penalty and that is why the Economic and Social Council suggested further research on the topic. Moreover, the urging of the de facto abolitionist countries by this Resolution to translate the position into de jure terms constituted an implicit acceptance of the principle of abolition. The same year, by Resolution 1918 (XVIII) of 5th December 1963, the General Assembly endorsed this action of the Economic and Social Council and requested the Economic and Social Council to invite the Commission on human Rights to study and make recommendations on the Ancel Report and the comments of the ad hoc Advisory Committee of Experts. The General Assembly also requested the Secretary General to present a report on new developments through the Economic and Social Council. Norval Morris, an American professor of criminal law and criminology, accordingly prepared a Report entitled "Capital Punishment; Developments 1961 1965" and amongst other things, this Report pointed out that there was a steady movement towards legislative abolition of capital punishment and observed with regard to the deterrent effect of death penalty, that: "With respect to the influence of the abolition of capital punishment upon the incidence of murder, all of the available data suggest that where the murder rate is increasing, abolition does not appear to hasten the increase where the rate is decreasing abolition does not appear to interrupt the decrease; where the rate is stable, the presence or absence of capital punishment does not appear to affect it." 267 The Commission on Human Rights considered this Report and adopted a draft General Assembly Resolution which was submitted by the Economic and Social Council to the General Assembly and on 26th November 1968, the General Assembly adopted this draft with certain modifications as its Resolution 2393 (XXIII) inviting member governments to take various measures and requesting the Secretary General to invite member governments "to inform him of their present attitude to possible further restricting the use of the death penalty or to its total abolition" and to submit a report to the Economic and Social Council. The Secretary General accordingly submitted his report to the Economic and Social Council at its 50th session in 1971. This Report contained a finding that "most countries are gradually restricting the number of offences for which the death penalty is to be applied and a few have totally abolished capital offences even in war times". The discussion in the Economic and Social Council led to the adoption of Resolution 1574 (L) of 20th May 1971 which was reaffirmed by General Assembly Resolution 2857 (XXVI) of 20th December 1971. This latter resolution clearly affirmed that: "In order to guarantee fully the right to life, provided for in article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries". (Emphasais supplied) In 1973 the Secretary General submitted to the Economic and Social Council at its 54th session his third report on capital punishment as requested by the Council and at this session, the Council adopted Resolution 1745 (LIV) in which, inter alia, it invited the Secretary General to submit to it periodic updated reports on capital punishment at five year intervals starting from 1975. A fourth report on capital punishment was accordingly submitted in 1975 and a fifth one in 1980. Meanwhile the General Assembly at its 32nd Session adopted Resolution 32/61 on 8th December 1977 and this Resolution re affirmed "the desirability of abolishing this" that is capital "punishment" in all countries. 268 It will thus be seen that the United Nations has gradually shifted from the position of a neutral observer concerned about but not committed on the question of death penalty, to a position favouring the eventual abolition of the death penalty. The objective of the United Nations has been and that is the standard set by the world body that capital punishment should ultimately be abolished in all countries. This normative standard set by the world body must be taken into account in determining whether the death penalty can be regarded as arbitrary, excessive and unreasonable so as to be constitutionally invalid. I will now proceed to consider the relevant provisions of the Constitution bearing on the question of constitutional validity of death penalty. It may be pointed out that our Constitution is a unique document. It is not a mere pedantic legal text but it embodies certain human values cherished principles and spiritual norms and recognises and upholds the dignity of man. It accepts the individual as the focal point of all development and regards his material, moral and spiritual development as the chief concern of its various provisions. It does not treat the individual as a cog in the mighty all powerful machine of the State but places him at the centre of the constitutional scheme and focuses on the fullest development of his personality. The Preamble makes it clear that the Constitution is intended to secure to every citizen social, economic and political justice and equality of status and opportunity and to promote fraternity assuring the dignity of the individual. The Fundamental Rights lay down limitations on the power of the legislature and the executive with a view to protecting the citizen and confer certain basic human rights which are enforceable against the State in a court of law. The Directive Principles of State Policy also emphasise the dignity of the individual and the worth of the human person by obligating the State to take various measures for the purpose of securing and protecting a social order in which justice social, economic and political, shall inform all the institutions of national life. What is the concept of social and economic justice which the founding fathers had in mind is also elaborated in the various Articles setting out the Directive Principles of State Policy. But all these provisions enacted for the purpose of ensuring the dignity of the individual and providing for his material, moral and spiritual development would be Meaningless and ineffectual unless there is rule of law to invest them with life and force. 269 Now if we look at the various constitutional provisions including the Chapters on Fundamental Rights and Directive Principles of State Policy, it is clear that the rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The rule of law excludes arbitrariness; its postulate is 'intelligence without passion ' and 'reason freed from desire '. Wherever we find arbitrariness or unreasonableness there is denial of the rule of law. That is why Aristotle preferred a government of laws rather than of men. 'Law ', in the context of the rule of law, does not mean any law enacted by the legislative authority, howsoever arbitrary or despotic it may be. Otherwise even under a dictatorship it would be possible to say that there is rule of law, because every law made by the dictator howsoever arbitrary and unreasonable has to be obeyed and every action has to be taken in conformity with such law. In such a case too even where the political set up is dictatorial, it is law that governs the relationship between men and men and between men and the State. But still it is not rule of law as understood in modern jurisprudence, because in jurisprudential terms, the law itself in such a case being an emanation from the absolute will of the dictator it is in effect and substance the rule of man and not of law which prevails in such a situation. What is necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framers of the law accountable to the people. Of course, in a country like the United Kingdom, where there is no written constitution imposing fetters on legislative power and providing for judicial review of legislation, it may be difficult to hold a law to be invalid on the ground that it is arbitrary and irrational and hence violative of an essential element of the rule of law and the only remedy if at all would be an appeal to the electorate at the time when a fresh mandate is sought at the election. But the situation is totally different in a country like India which has a written Constitution enacting Pundamental Rights and conferring power on the courts to enforce them not only against the executive but also against the legislature. The Fundamental Rights erect a protective armour for the individual against arbitrary or unreasonable executive or legislative action. There are three Fundamental Rights in the Constitution which are of prime importance and which breathe vitality in the concept 270 of the rule of law. They are Articles 14, 19 and 21 which, in the words of Chandrachud, C.J. in Minverva Mills case(1) constitute a golden triangle. It is now settled law as a result of the decision of this Court in Maneka Gandhi 's case (supra) that Article 14 enacts primarily a guarantee against arbitrariness and inhibits State action whether legislative or executive, which suffers from the vice of arbitrariness. This interpretation placed on Article 14 by the Court in Maneka Gandhi 's case has opened up a new dimension of that Article which transcends the classificatory principle. For a long time in the evolution of the constitutional law of our country, the courts had construed Article 14 to mean only this, namely, that you can classify persons and things for the application of a law but such classification must be based on intelligible differentia having rational relationship to the object sought to be achieved by the law. But the court pointed out in Maneka Gandhi 's case that Article 14 was not to be equated with the principle of classification. It was primarily a guarantee against arbitrariness in State action and the doctrine of classification was evolved only as a subsidiary rule for testing or determining whether a particular State action was arbitrary or not. The Court said "Equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies. One belongs to the rule of law while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14." The Court thus laid down that every State action must be non arbitrary and reasonable; if it is not, the court would strike it down as invalid. This view was reaffirmed by the Court in another outstanding decision in Ramana Dayaram Shetty International Airport Authority of India & Ors. There tenders were invited by the Airport Authority for giving a contract for running a canteen at the Bombay Airport. The invitation for tender included a condition that the applicant must have at least 5 years ' experience as a registered 2nd class hotelier. Several persons tendered. One was a person who had considerable experience in the catering business but he was not a registered 2nd class hotelier as required by the condition in the invitation to tender. Yet his tender was accepted because it was the highest. The contract given to him was challenged and the court held that the action of the Airport Authority was illegal. The court pointed out that a ______________________ (1) ; 271 new form of property consisting of government largesse in the shape of jobs, cotracts licences, quotas, mineral rights and other benefits and services was emerging in the social welfare State that India was and it was necessary to develop new forms of protection in regard to this new kind of property. The court held that in regard to government largesse, the discretion of the government is not unlimited in that the government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. The government action must be based on standards that are not arbitrary or irrational. This requirement was spelt out from the application of Article 14 as a constitutional requirement, and it was held that having regard to the constitutional mandate of Article 14, the Airport Authority was not entitled to act arbitrarily in accepting the tender but was bound to conform to the standards or norms laid down by it. The Court thus reiterated and reaffirmed its commitment against arbitrariness in State action. It can, therefore, now be taken to be well settled that if a law is arbitrary or irrational, it would fall foul of Article 14 and would be liable to be struck down as invalid. Now a law may contravene Article 14 because it enacts provisions which are arbitrary; as for example, they make discriminatory classification which is not founded on intelligible differentia having rational relation to the object sought to be achieved by the law or they arbitrarily select persons or things for discriminatory treatment. But there is also another category of cases where without enactment of specific provisions which are arbitrary, a law may still offend Article 14 because it confers discretion on an authority to select persons or things for application of the law without laying down any policy or principle to guide the exercise of such discretion. Where such unguided and unstructured discretion is conferred on an authority, the law would be violative of Article 14 because it would enable the authority to exercise such discretion arbitrarily and thus discriminate without reason. Unfettered and uncharted discretion conferred on any authority, even if it be the judiciary, throws the door open for arbitrariness, for after all a judge does not cease to be a human being subject to human limitations when he puts on the judicial robe and the nature of the judicial process being what it is, it cannot be entirely free from judicial subjectivism. Cardozo, J. has frankly pointed this out in his lectures on "Nature of the Judicial Process": 272 "There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by. This facet of the judicial process has also been emphasized by Richard B. Brandt in his book on "Judicial Discretion" where he has said : "Much of law is designed to avoid the necessity for the judge to reach what Holmes called his 'can 't helps ', his ultimate convictions or values. The force of precedent, the close applicability of statute law, the separation of powers, legal presumptions, statutes of limitations, rules of pleading and evidence, and above all the pragmatic assessments of fact that point to one result whichever ultimate values be assumed, all enable the judge in most cases to stop short of a resort to his personal standards. When these prove unavailing, as is more likely in the case of courts of last resort at the frontiers of the law, and most likely in a supreme constitutional court, the judge necessarily resorts to his own scheme of values. It may, therefore, be said that the most important thing about a judge is his philosophy; and if it be dangerous for him to have one, it is at all events less dangerous than the self deception of having none. That is why Lord Camden described the discretion of a judge to be "the law of tyrants; it is always unknown; it is different in different men; it is casual and depends on Constitution,Tamper, and Passion. In the best it is often times Caprice, in the worst it is every Vice, Folly and Passion to which human Nature is liable. " Doe d. Hindson vs Kersey (1765) at p. 53 of the pamphlet published in London by J. Wilkes in 1971 entitled "Lord Camden 's Genuine Argument in giving Judgment on the Ejectment between Hindson, and others against Kersey". Megarry J. also points out in his delightful book "Miscellany at Law" that "discretion is indeed a poor substitute for 273 principles, however, great the Judge". Therefore, where discretion is conferred on an authority by a statute, the court always strains to find in the statute the policy or principle laid down by the legislature for the purpose of guiding the exercise of such discretion and, as pointed out by Subba Rao, J. as he then was, the court sometimes even tries to discover the policy or principle in the crevices of the statute in order to save the law from the challenge of Article 14 which would inevitably result in striking down of the law if the discretion conferred were unguided and unfettered. But where after the utmost effort and intense search, no policy or principle to guide the exercise of discretion can be found, the discretion conferred by the law would be unguided and unstructured, like a tumultuous river overflowing its banks and that would render the law open to attack on ground of arbitrariness under Article 14. So also Article 19 strikes against arbitrary legislation in so far as such legislation is violative of one or the other provision of clause (1) of that Article. Sub clauses (a) to (g) of clause (1) of Article 19 enact various Fundamental freedoms; sub clause (1) guarantees freedom of speech and expression, sub clause (b), freedom to assemble peacefully and without arms; sub clause (c), freedom to form associations or unions; sub clause (d), freedom to move freely throughout the territory of India; sub clause (e) to reside and settle in any part of the territory of India and sub clause (g), freedom to practise any profession or to carry on any occupation, trade or business. There was originally sub clause (f) in clause (1) of Article 19 which guaranteed freedom to acquire, hold and dispose of property but that sub clause was deleted by the Constitution (Forty Fourth Amendment) Act 1978. Now the freedoms guaranteed under these various sub clauses of clause (1) of Article 19 are not absolute freedoms but they can be restricted by law, provided such law satisfies the requirement of the applicable provision in one or the other of clauses (2) to (6) of that Article. The common basic requirement of the saving provision enacted in clauses (2) to (6) of Article 19 is that the restriction imposed by the law must be reasonable. If, therefore, any law is enacted by the legislature which violates one or the other provision of clauses (1) of Article 19, it would not be protected by the saving provision enacted in clauses (2) to (6) of that Article, if it is arbitrary or irrational, because in that event the restriction imposed by it would a fortiorari be unreasonable. 274 The third Fundamental Right which strikes against arbitrariness in State action is that embodied in Article 21. This Article is worded in simple language and it guarantees the right to life and personal liberty in the following terms. No person shall be deprived of his life or personal liberty except according to procedure established by law. " This Article also came up for interpretation in Maneka Gandhi 's case (supra). Two questions arose before the Court in that case : one was as to what is the content of the expression "personal liberty" and the other was as to what is the meaning of the expression "except according to procedure established by law". We are not concerned here with the first question and hence I shall not dwell upon it. But so far as second question is concerned, it provoked a decision from the Court which was to mark the beginning of amost astonishing development of the law. It is with this decision that the Court burst forth into un precedented creative activity and gave to the law a new dimenston and a new vitality. Until this decision was given, the view held by this Court was that Article 21 merely embodied a facet of the Diceyian concept of the rule of law that no one can be deprived of his personal liberty by executive action unsupported by law. It was intended to be no more than a protection against executive action which had no authority of law. If there was a law which provided some sort of procedure, it was, enough to deprive a person of his life or personal liberty. Even if, to take an example cited by S.R. Das, J, in his Judgment in A.K. Gopalan vs State of Madras(1) the law provided that the Bishop of Rochester be boiled in old, it would be valid under Article 21. But in Maneka Gandhi 's case (supra) which marks a watershed in the history of development of constitutional law in our country, this Court for the first time took the view that Article 21 affords protection not only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is reasonable fair and just. The concept of reasonableness, it was held, runs through the entire fabric of the Constitution and it is not enough for the law merely to provide some semblance of a procedure but the procedure for depriving a ___________ (1) ; 275 person of his life or personal liberty must be rasonable, fair and just. It is for the court to determine whether in a particular case the procedure is reasonable, fair and just and if it is not, the court will strike down the law as invalid. If therefore a law is enacted by the legislature which deprives a person of the life and 'life ' according to the decision of this Court in Francis Coralie Mullen 's vs Administrator, Union Territory of Delhi and Ors.,(1) would include not merely physical existence but also the use of any faculty or limb as also the right to live with human dignity or any aspect of his personal liberty, it would offend against Article 21 if the procedure prescribed for such deprivation is arbitrary and unreasonable. The word 'procedure ' in Article 21 is wide enough to cover the entire process by which deprivation is effected and that would include not only the adjectival but also the substantive part of the law. Take for example, a law of preventive detention which sets out the grounds on which a person may be preventively detained. If a person is preventively detained on a ground other than those set out in the law, the preventive detention would obviously not be according to the procedure prescribed by the law, because the procedure set out in the law for preventively detaining a person prescribes certain specific grounds on which alone a person can be preventively detained, and if he is detained on any other ground, it would be violative of Article 21. Every facet of the law which deprives a person of his life or personal liberty would therefore have to stand the test of reasonableness, fairness and justness in order to be outside the inhibition of Article 21. It will thus be seen that the rule of law has much greater vitality under our Constitution that it has in other countries like the United Kingdom which has no constitutionally enacted Fundamental Rights. The rule of law has really three basic and fundamental assumptions one is that law making must be essentially in the hands of a democratically elected legislature, subject of course to any power in the executive in an emergent situation to promulgate ordinances effective for a short duration while the legislature is not in session as also to enact delegated legislation in accordance with the guidelines laid down by the legislature; the other is that, even in the hands of a democratically elected legislature, there should not be unfettered legislative power, for, as Jefferson said: "Let no man be trusted with power but tie him down from making mischief by the _____________________ (1) ; 276 chains of the Constitution"; and lastly there must be an independent judicially to protect the citizen against excesses of executive and legislative power. Fortunately, whatever uncharitable and irresponsible critics might say when they find a decision of the court going against the view held by them, we can confidently assert that we have in our country all these three elements essential to the rule of law. It is plain and indisputable that under our Constitution law cannot be arbitrary or irrational and if it is, it would be clearly invalid, whether under Article 14 or Article 19 or Article 21 whichever be applicable. It is in the light of these constitutional provisions that I must consider whether death penalty provided under Section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure is constitutionally valid. Now one thing is certain that the Constitution does not in so many terms prohibit capital panishment. In fact, it recognises death sentence as one of the penalties which may be imposed by law. Article 21 provides inter alia that no one shall be deprived of his life except according to procedure established by law and this clearly postulates that a person may be deprived of his life in accordance with the procedure prescribed by law or in other words, law may provide a procedure, which of course according to the decision of this Court in Maneka Gandhi 's case (supra) must be reasonable, fair and just procedure, for inflicting death penalty on a person depriving him of his life. Clause(c) of Article 72 also recognises the possibility of a sentence of death being imposed on a person convicted of an offence inasmuch as it provides that the President shall have the power to suspend, remit or commute the sentence of any person who is convicted of an offence and sentenced to death. It is therefore not possible to contend that the imposition of death sentence for conviction of an offence is in all cases forbidden by the Constitution. But that does not mean that the infliction of death penalty is blessed by the Constitution or that it has the imprimatur or seal of approval of the Constitution. The Constitution is not a transient document but it is meant to endure for a long time to come and during its life, situations may arise where death penalty may be found to serve a social purpose and its prescription may not be liable to be regarded as arbitrary or unreasonable and therefore to meet such situations, the Constitution had to make a provision and this it did in Article 21 and clause (c) of Article 72 so that, even where death penalty is prescribed by any 277 law and it is otherwise not unconstitutional, it must still comply with the requirement of Article 21 and it would be subject to the clemency power of the President under clause (c) of Article 72. The question would however still remain whether the prescription of death penalty by any particular law is violative of any provision of the Constitution and is therefore rendered unconstitutional. This question has to be answered in the present case with reference to section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure. Now in order to answer this question it is necessary first of all to examine the legislative trend in our country so far as the imposition of death penalty is concerned. A "brief survey of the trend of legislative endeavours" will, as pointed out by Krishna Iyer, J. in Rajendra Prasad vs State of U.P.(1) "serve to indicate whether the people 's consciousness has been protected towards narrowing or widening the scope for infliction of death penalty. " If we look at the legislative history of the relevant provisions of the Indian Penal Code and the Code of Criminal Procedure we find that in our country there has been a gradual shift against the imposition of death penalty. "The legislative development, through several successive amendments had shifted the punitive centre of gravity from life taking to life sentence. " Sub section (5) of section 367 of the Code of Criminal Procedure 1898 as it stood prior to its amendment by Act 26 of 1955 provided : "If the accused is convicted of an offence punishable with death, and the court sentences to any punishment other than death, the court shall in its judgment state the reasons why sentence of death was not passed." This provision laid down that if an accused was convicted of an offence punishable with death, the imposition of death sentence was the rule and the awarding of a lesser sentence was an exception and the court had to state the reasons for not passing the sentence of death. In other words, the discretion was directed positively towards death penalty. But, by the Amending Act 26 of 1955 which came into force with effect from 1st January 1956, this provision was deleted with the result that from and after that date, it was left to the discretion of the court on the facts of each case to pass a sen __________________ (1) ; 278 tence of death or to award a lesser sentence. Where the court found in a given case that, on the facts and circumstances of the case, the death sentence was not called for or there were extenuating circumstances to justify the passing of the lesser sentence, the court would award the lesser sentence and not impose the death penalty. Neither death penalty nor life sentence was the rule under the law as it stood after the abolition of sub section (5) of the section 367 by the Amending Act 26 of 1955 and the court was left "equally free to award either sentence". But then again, there was a further shift against death penalty by reason of the abolitionist pressure and when the new Code of Criminal Procedure 1973 was enacted, section 354 sub section (3) provided ; "When the conviction is for a sentence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, special reasons for such sentence. " The court is now required under this provision to state the reasons for the sentence awarded and in case of sentence of death, special reasons are required to be stated. It will thus be seen that life sentence is now the rule and it is only in exceptional cases, for special reasons, that death sentence can be imposed. The legislature has however not indicated what are the special reasons for which departure can be made from the normal rule and death penalty may be inflicted. The legislature has not given any guidance as to what are those exceptional cases in which, deviating from the normal rule, death sentence may be imposed. This is left entirely to the unguided discretion of the court, a feature, which, in my opinion, has lethal consequences so far as the constitutionality of death penalty is concerned. But one thing is clear that through these legislative changes "the disturbed conscience of the State on the question of legal threat to life by way of death sentence has sought to express itself legislatively", the stream of tendency being towards cautions abolition. It is also interesting to note that a further legislative attempt towards restricting and rationalising death penalty was made in the late seventies. A Bill called Indian Penal Code (Amendment) Bill 1972 for amending section 302 was passed by the Rajya Sabha in 1978 and it was pending in the Lok Sabha at the time when Rajendra 279 Prasad 's case was decided and though it ultimately lapsed with the dissolution of the Lok Sabha, it shows how strongly were the minds of the elected representatives of the people agitated against "homicidal exercise of discretion" which is often an "obsession with retributive justice in disguise". This Bill sought to narrow drastically the judicial discretion to impose death penalty and tried to formulate the guidelines which should control the exercise of judicial exercise in this punitive area. But unfortunately the Bill though passed by the Rajya Sabha could not see its way through the Lok Sabha and was not enacted into law. Otherwise perhaps the charge against the present section of 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure that it does not indicate any policy or principle to guide the exercise of judicial discretion in awarding death penalty, would have been considerably diluted, though even then, I doubt very much whether that section could have survived the attack against its constitutionally on the ground that it still leaves the door open for arbitrary exercise of discretion in imposing death penalty. Having traced the legislative history of the relevant provisions in regard to death penalty, I will now turn my attention to what great and eminent men have said in regard to death penalty, for their words serve to bring out in bold relief the utter barbarity and futility of the death penalty. Jaiprakash Narain, the great humanist, said, while speaking on abolition of death penalty ; "To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case. I am sure a large proportion of the murderers could be weaned away from their path and their mental condition sufficiently improved to become useful citizens. In a minority of cases, this may not be possible. They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man 's dignity and make society more human. (emphasis added) 280 Andrei Sakharov in a message to the Stockholm Conference on Abolition of death Penalty organised by Amnesty International in 1978 expressed himself firmly against death penalty: "I regard the death penalty as a savage and immoral institution which undermines the moral and legal foundations of a society. A state, in the person of its functionaries who like all people are inclined to making superficial conclusions, who like all people are subject to influence, connections, prejudices and egocentric motivations for their behaviour, takes upon itself the right to the most terrible and irreversible act the deprivation of life. Such a State cannot expect an improvement of the moral atmosphere in its country. I reject the notion that the death penalty has any essential deterrent effect on potential offenders. I am convinced that the contrary is true that savagery begets only savagery. I am convinced that society as a whole and each of its members individually, not just the person who comes before the courts, bears a responsibility for the occurrence of a crime. I believe that the death penalty has no moral or practical justification and represents a survival of barbaric customs of revenge. Blood thirsty and calculated revenge with no temporary insanity on the part of the judges, and therefore, shameful and disgusting. " (emphasis added) Tolstoy also protested against death sentence in an article "I Cannot be Silent": "Twelve of those by whose labour we live, the very men whom we have depraved and are still depraving by every means in our power from the poison of vodka to the terrible falsehood of a creed we impose on them with all our might, but do not ourselves believe in twelve of those men strangled with cords by those whom we feed and clothe and house, and who have depraved and still continue to deprave them. Twelve husbands, fathers, and sons, from among those upon whose kindness, industry and simplicity alone rests the whole of Russian life, are seized, imprisoned, and shackled. Then their hands are tied 281 behind their backs lest they should seize the ropes by which they are to be hung, and they are led to the gallows. " So also said Victor Hugo in the spirit of the Bishop created by him in his 'Les Miserables ' : "We shall look upon crime as a disease. Evil will be treated in charity instead of anger. The change will be simple and sublime. The cross shall displace the scaffold, reason is on our side, feeling is on our side, and experience is on our side." Mahatma Gandhi also wrote to the same effect in his simple but inimitable style : "Destruction of individuals can never be a virtuous act. The evil doers cannot be done to death. Today there is a movement afoot for the abolition of capital punishment and attempts are being made to convert prisons into hospitals as if they are persons suffering from a disease." This Gandhian concept was translated into action with commendable success in the case of Chambal dacoits who laid down their arms in response to the call of Vinobha Bhave and Jaiprakash Narayan. See "Crime and Non violence" by Vasant Nargolkar. There is also the recent instance of surrender of Malkhan Singh, a notorious dacoit of Madhya Pradesh. Have these dacoits not been reformed ? Have they not been redeemed and saved ? What social purpose would have been served by killing them ? I may also at this stage make a few observations in regard to the barbarity and cruelty of death penalty, for the problem of constitutional validity of death penalty cannot be appreciated in its proper perspective without an adequate understanding of the true nature of death penalty and what it involves in terms of human anguish and suffering. In the first place, death penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life for ever and is plainly destructive of the right to life, the most precious right of all, a right without which enjoyment of no other rights is possible. It silences for ever a living being and despatches him to that 'undiscovered country from whose bourn no traveller returns ' nor, 282 once executed, 'can stored urn or animated bust back to its mansion call the fleeting breath '. It is by reason of its cold and cruel finality that death penalty is qualitatively different from all other forms of punishment. If a person is sentenced to imprisonment, even if it be for life, and subsequently it is found that he was innocent and was wrongly convicted, he can be set free. Of course the imprisonment that he has suffered till then cannot be undone and the time he has spent in the prison cannot be given back to him in specie but he can come back and be restored to normal life with his honour vindicated if he is found innocent. But that is not possible where a person has been wrongly convited and sentencted to death and put out of existence in pursuance of the sentence of death. In his case, even if any mistake is subsequently discovered, it will be too late; in every way and for every purpose it will be too late, for he cannot be brought back to life. The execution of the sentence of death in such a case makes miscarriage of justice irrevocable. On whose conscience will this death of an innocent man lie ? The State through its judicial instrumentality would have killed an innocent man. How is it different from a private murder ? That is why Lafayatte said : "I shall ask for the abolition of the penalty of death until I have the infallibility of human judgment demonstrated me. " It is argued on behalf of the retentionists that having regard to the elaborate procedural safeguards enacted by the law in cases involving capital punishment, the possibility of mistake is more imaginary than real and these procedural safeguards virtually make conviction of an innocent person impossible. But I do not think this argument is well founded. It is not supported by factual data. Hugo Bedau in his well known book, "The Death Penalty in America" has individually documented seventy four cases since 1893 in which it has been responsibly charged and in most of them proved beyond doubt, that persons were wrongly convicted of criminal homicide in America. Eight out of these seventy four, though innocent, were executed. Redin, Gardener, Frank and others have specifically identified many more additional cases. These are cases in which it has been possible to show from discovery of subsequent facts that the convictions were erroneous and innocent persons were put to death, but there may be many more cases where by reason of the difficulty of uncovering the facts after conviction, let alone after execution, it may not be possible to establish that there was miscarriage of justice. The jurist Olivecroix, applying a calculus of probabilities to the chance of judicial error, concluded as far back 283 as in 1860 that approximately one innocent man was condemned out of every 257 cases. The proportion seems low but only in relation to moderate punishment. In relation to capital punishment, the proportion is infinitivelly high. When Hugo wrote that he preferred to call the guillotine Lesurques (the name of an innocent man guillotined in the Carrier de Lyon case) he did not mean that every man who was decapitated was a Lesurques, but that one Lesurques was enough to wipe out the value of capital punishment for ever. It is interesting to note that where cases of wrongful execution have come to public attention, they have been a major force responsible for bringing about abolition of death penalty. The Evans case in England in which an innocent man was hanged in 1949 played a large role in the abolition of capital punishment in that country. Belgium also abjured capital punishment on account of one such judicial error and so did Wisconsin, Rhode Island and Maine in the United States of America. Howsoever careful may be the procedural safeguards erected by the law before death penalty can be imposed, it is impossible to eliminate the chance of judicial error. No possible judicial safeguards can prevent conviction of the innocent. Students of the criminal process have identified several reasons why innocent men may be convicted of crime. In the first place, our methods of investigation are crude and archaic. We are, by and large, ignorant of modern methods of investigation based on scientific and technological advances. Our convictions are based largely on oral evidence of witnesses. Often, witnesses perjure themselves as they are motivated by caste, communal and factional considerations. Some times they are even got up by the police to prove what the police believes to be a true case. Sometimes there is also mistaken eye witness identification and this evidence is almost always difficult to shake in cross examination. Then there is also the possibility of a frame up of innocent men by their enemies. There are also cases where an over zealous prosecutor may fail to disclose evidence of innocence known to him but not known to the defence. The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility and it is not at all unlikely that so long as death penalty remains a constitutionally valid alternative, the court or the State acting through the instrumentality of the court may have on its conscience the blood of an innocent man. 284 Then again it is sometimes argued that, on this reasoning, every criminal trial must necessarily raise the possibility of wrongful conviction and if that be so, are we going to invalidate every form of punishment ? But this argument, I am afraid, is an argument of despair. There is a qualitative difference between death penalty and other forms of punishment. I have already pointed out that the former extinguishes the flame of life altogether and is irrevocable and beyond recall while the latter can, at least to some extent be set right, if found mistaken. This vital difference between death penalty and imprisonment was emphasized by Mahatma Gandhi when he said in reply to a German writer : "I would draw distinction between killing and detention and even corporal punishment. I think there is a difference not merely in quantity but also in quality. I can recall the punishment of detention. I can make reparation to the man upon whom I inflict corporal punishment. But once a man is killed, the punishment is beyond recall or reparation. " The same point was made by the distinguished criminologist Leon Radzinowicz when he said : "The likelihood of error in a capital sentence case stands on a different footing altogether. " Judicial error in imposition of death penalty would indeed be a crime beyond punishment. This is the drastic nature of death penalty, terrifying in its consequences, which has to be taken into account in determining in constitutional validity. It is also necessary to point out that death penalty is barbaric and inhuman in its effect, mental and physical upon the condemned man and is positively cruel. Its psychological effect on the prisoner in the Death Row is disastrous. One Psychiatrist has described Death Row as a "grisly laboratory" "the ultimate experiment alstress in which the condemned prisoner 's personality is incredibly brutalised." He points out that "the strain of existence on Death Row is very likely to produce. . acute psychotic breaks." Vide the article of "West on Medicine and Capital Punishment. " Some inmates are driven to ravings or delusions but the majority sink into a sort of catatonic numbness under the over whelming stress. " Vide "The Case against Capital Punishment" by the Washington Research Project. Intense mental suffering is inevitably associated with confinement under sentence of death. Anticipation of approaching 285 death can and does produce stark terror. Vide article on "Mental Suffering under Sentence of Death". Justice Brennan in his opinion in Furman vs Georgia(1) gave it as a reason for holding the capital punishment to be unconstitutional that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. " Krishna Iyer, J. also pointed out in Rajendra Prasad 's case (supra) that because the condemned prisoner had "the hanging agony hanging over his head since 1973 (i.e. for six years). "he must by now be more a vegetable than a person." He added that "the excruciation of long pendency of the death sentence with the prisoner languishing near solitary suffering all the time, may make the death sentence unconstitutionally cruel and agonising." The California Supreme Court also, in finding the death penalty per se unconstitutional remarked with a sense of poignancy : "The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture. " In Re Kemmler(2) the Supreme Court of the United States accepted that "punishments are cruel when they involve a lingering death, something more than the mere extinguishment of life. " Now a death would be as lingering if a man spends several years in a death cell avaiting execution as it would be if the method of execution takes an unacceptably long time to kill the victim. The pain of mental lingering can be as intense as the agony of physical lingering. See David Pannick on "Judicial Review of the Death Penalty." Justice Miller also pointed out in Re Medley(3) that "when a prisoner sentenced by a court to death is confined to the ______________ (1) ; (2) ; (3) ; 286 penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it. . as to the precise time when his execution shall take place. " We acknowledged that such uncertainty is inevitably 'accompanied by an immense mental anxiety amounting to a great increase of the offender 's punishment. ' But quite apart from this excruciating mental anguish and severe psychological strain which the condemned prisoner has to undergo on account of the long wait from the date when the sentence of death is initially passed by the sessions court until it is confirmed by the High Court and then the appeal against the death sentence is disposed of by the Supreme Court and if the appeal is dismissed, then until the clemency petition is considered by the Pesident and if it is turned down, then until the time appointed for actual execution of the sentence of death arrives, the worst time for most of the condemned prisoners would be the last few hours when all certainty is gone and the moment of death is known. Dostoyevsky who actually faced a firing squad only to be reprieved at the last instant, described this experience in the following words : ". the chief and the worst pain is perhaps not inflicted by wounds, but by your certain knowledge that in an hour, in ten minutes, in half a minute, now this moment your soul will fly out of your body, and that you will be a human being no longer, and that that 's certain the main thing is that it is certain . Take a soldier and put him in front of a cannon in battle and fire at him and he will still hope, but read the same soldier his death sentence for certain, and he will go mad or burst out crying. Who says that human nature is capable of bearing this without madness ? Why this cruel, hideous, unnecessary and useless mockery ? Possibly there are men who have sentences of death read out to them and have been given time to go through this torture, and have then been told, You can go now, you 've been reprieved. Such men could perhaps tell us. It was of agony like this and of such horror that Christ spoke. No you can 't treat a man like that. " 287 We have also accounts of execution of several prisoners in the United States which show how in these last moment condemned prisoners often simply disintegrate. Canns has in frank and brutal language bared the terrible psychological cruelty of capital punishment : "Execution is not simply death. It is just as different in essence, from the privation of life as a concentration camp is from prison. . It adds to death a rule, a public premeditation known to the future victim, an organisation, in short, which is in itself a source of moral sufferings more terrible than death. For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life. " There can be no stronger words to describe the utter depravity and inhumanity of death sentence. The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949 53 found that hanging is the most humane method of execution and so also in Ichikawa vs Japan,(1) the Japanese Supreme Court held that execution by hanging does not corrospond to 'cruel punishment ' inhibited by Article 36 of the Japanese Constituion. But whether amongst all the methods of execution, hanging is the most humane or in the view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly accompanied by intense physical torture and pain. Warden Duffy of San Quentin, a high security __________ (1) Vide : David Pannick on "Judicial Review of Death Penalty, page 73, 288 prison in the United States of America, describes the hanging process with brutal frankness in lurid details : "The day before an execution the prisoner goes through a harrowing experience of being weighed, measured for length of drop to assure breaking of the neck, the size of the neck, body measurement et cetera. When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face and that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint or have to be helped out of the witness room. The prisoner remains dangling from the end of the rope for from 8 to 14 minutes before the doctor, who has climbed up a small ladder and listens to his heart beat with a stethoscope, pronounces him dead. A prison guard stands at the feet of the hanged person and holds the body steady, because during the first few minutes there is usually considerables struggling in an effort to breathe. " If the drop is too short, there will be a slow and agonising death by strangulation. On the other hand, if the drop is too long, the head will be torn off. In England centuries of practice have produced a detailed chart relating a man 's weight and physical condition to the proper length of drop, but even there mistakes have been made. In 1927, a surgeon who witnessed a double execution wrote : "The bodies were cut down after fifteen minutes and placed in an antechamber, when I was horrified to hear one of the supposed corpses give a gasp and find him making respiratory efforts, evidently a prelude to revival. The two bodies were quickly suspended again for a quarter of an hour longer. Dislocation of the neck is the ideal aimed at, but, out of all my post mortem findings, that has proved rather an exception, which in the majority of 289 instances the cause of death was strangulation and asphyxin. " These passages clearly establish beyond doubt that the execution of sentence of death by hanging does involve intense physical pain and suffering, though it may be regarded by some as more humane than electrocution or application of lethal gas. If this be the true mental and physical effect of death sentence on the condemned prisoner and if it causes such mental anguish, psychological strain and physical agony and suffering, it is difficult to see how it can be regarded as anything but cruel and inhuman. The only answer which can be given for justifying this infliction of mental and physical pain and suffering is that the condemned prisoner having killed a human being does not merit any sympathy and must suffer this punishment because he 'deserves ' it. No mercy can be shown to one who did not show any mercy to others. But, as I shall presently point out, this justificatory reason cannot commend itself to any civilised society because it is based on the theory of retribution or retaliation and at the bottom of it lies the desire of the society to avenge itself against the wrong doer. That is not a permissible penological goal. It is in the context of this background that the question has to be considered whether death penalty provided under section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure is arbitrary and irrational for if it is, it would be clearly violative of Articles 14 and 21. I am leaving aside for the moment challenge to death penalty under Article 19 and confining myself only to the challenge under Article 14 and 21. So far as this challenge is concerned the learned counsel appearing on behalf of the petitioner contended that the imposition of death penalty under section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure was arbitrary and unreasonable, firstly because it was cruel and inhuman, disproportionate and excessive, secondly because it was totally unnecessary and did not serve any social purpose or advance any constitutional value and lastly because the discretion conferred on the court to award death penalty was not guided by any policy or principle laid down by the legislature but was wholly arbitrary. The Union of India as also the States supporting it sought to counter this argu 290 ment of the petitioners by submitting first that death penalty is neither cruel nor inhuman, neither disproportionate nor excessive, secondly, that it does serve a social purpose inasmuch as it fulfils two penological goals namely, denunciation by the community and deterrence and lastly, that the judicial discretion in awarding death penalty is not arbitrary and the court can always evolve standards or norms for the purpose of guiding the exercise of its discretion in this punitive area. These were broadly the rival contentions urged on behalf of the parties and I shall now proceed to examine them in the light of the observations made in the preceding paragraphs. The first question that arises for consideration on these contentions is and that is a vital question which may well determine the fate of this challenge to the constitutional validity of death penalty on whom does the burden of proof lie in a case like this ? Does it lie on the petitioners to show that death penalty is arbitrary and unreasonable on the various grounds urged by them or does it rest on the State to show that death penalty is not arbitrary or unreasonable and serves a legitimate social purpose. This question was debated before us at great length and various decisions were cited supporting one view or the other. The earliest decision relied on was that of Saghir Ahmed vs State of Uttar Pradesh(1) where it was held by this Court that if the petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the sub clauses of clause (1) of Article 19, the onus shifts on the respondent State to show that the legislation comes within the permissible limits authorised by any of clauses (2) to (6) as may be applicable to the case, and also to place material before the court in support of that contention. If the State fails to discharge this burden, there is no obligation on the petitioner to prove negatively that the impugned law is not covered by any of the permissive clauses. This view as to the onus of proof was reiterated by this Court in Khyerbari Tea Company vs State of Assam(2). But contended the respondents, a contrary trend was noticeable in some of the subsequent decisions of this Court and the respondents relied principally on the decision in B. Banerjee vs Anita Pan(3) where Krishna Iyer, J. speaking on behalf of himself and Beg, J. as he then was, _________________________ (1) ; (2) ; (3) ; 291 recalled the following statement of the law from the Judgment of this Court in Ram Krishna Dalmia vs S.R. Tendolkar & others: (1) "there is always a presu mption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles." and "that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." and added that "if nothing is placed on record by the challengers, the verdict ordinarily goes against them. " Relying inter alia on the decision of this Court in State of Bombay vs R.M.D. Chamarbaugwala(2) the learned Judge again emphasized: "Some courts have gone to the extent of holding that there is a presumption in favour of constitutionality, a law will not be declared unconstitutional unless the case is so clear as to be free from doubt." These observations of Krishna Iyer, J. undoubtedly seem to support the contention, of the respondents, but it may be pointed out that what was said by this Court in the passage quoted above from the judgment in Ram Krishna Dalmia 's case (supra) on which reliance was placed by Krishna Iyer, J. was only with reference to the challenge under Article 14 and the Court was not considering there the challenge under Articles 19 or 21. This statement of the law contained in Ram Krishna Dalmia 's case (supra) could not therefore be applied straightaway without anything more in a case where a law was challenged under Articles 19 or 21. The fact, however, remains that Krishna Iyer, J. relied on this statement of the law even though the case before him involved a challenge under Article 19(1) (f) and not under Article 14. Unfortunately, it seems that the attention of the learned Judge was not invited to the decisions of this Court in Saghir Ahmed 's case and Khyerbari Tea Company 's case _______________________ (1) (2) ; 292 (supra) which were cases directly involving challenge under Article 19. These decisions were binding on the learned Judge and if his attention had been drawn to them, I am sure that he would not have made the observations that he did casting on the petitioners the onus of establishing "excessiveness or perversity in the restrictions imposed by the statute" in a case alleging violation of Article 19. These observations are clearly contrary to the law laid down in Saghir Ahmed and Khyerbari Tea Company cases (supra) The respondents also relied on the observations of Fazal Ali, J. in Pathumma vs State of Kerala (1). There the constitutional validity of the Kerala Agriculturists ' Debt Relief Act 1970 was challenged on the ground of violation of both Articles 14 and 19(1) (f). Before entering upon a discussion of the arguments bearing on the validity of this challenge, Fazal Ali. J. speaking on behalf of himself, Beg, C.J., Krishna Iyer and Jaswant Singh. observed that the court will interfere with a statute only "when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution" and proceeded to add that it is on account of this reason "that courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same. " The learned Judge then quoted with approval the following passage from the Judgment of S.R. Das, C.J. in Mohd. Hanif vs State of Bihar (2) "The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. " It is difficult to see how these observations can be pressed into service on behalf of the respondents. The passage from the judgment of _______________________ (1) (2) ; 293 S.R. Das, C.J. in Mohd. Hanif 's case (supra) relied upon by Fazal Ali, J. occurs in the discussion relating to the challenge under Article 14 and obviously it was not intended to have any application in a case involving challenge under Article 19 or 21. In fact, while discussing the challenge to the prevention of cow slaughter statutes under Article 19(1)(g), S.R. Das, C.J. proceeded to consider whether the restrictions imposed by the impugned statutes on the Fundamental Rights of the petitioners under Article 19(1)(g) were reasonable in the interest of the general public so as to be saved by clause (6) of Article 19. Moreover, the observations made by Fazal Ali, J. were general in nature and they were not directed towards consideration of the question as to the burden of proof in cases involving violation of Article 19. What the learned Judge said was that there is always a presumption in favour of the constitutionality of a statute and the court will not interfere unless the statute is clearly violative of the Fundamental Rights conferred by Part III of the Constitution. This is a perfectly valid statement of the law and no exception can be taken to it. There must obviously be a presumption in favour of the constitutionality of a statute and initially it would be for the petitioners to show that it violates a Fundamental Right conferred under one or the other sub clauses of clause (1) of Article 19 and is therefore unconstitutional, but when that is done, the question arises, on whom does the burden of showing whether the restrictions are permissible or not, lie? That was not a question dealt with by Fazal Ali, J. and I cannot therefore read the observations of the learned Judge as, in any manner, casting doubt on the validity of the statement of law contained in Saghir Ahmed and Khyerbari Tea Company 's cases (supra). It is clear on first principle that subclauses (a) to (g) of clause (1) of Article 19 enact certain fundamental freedoms and if sub clauses (2) to (6) were not there, any law contravening one or more of these fundamental freedoms would have been unconstitutional. But clauses (2) to (6) of Article 19 save laws restricting these fundamental freedoms, provided the restrictions imposed by them fall within certain permissible categories. Obviously therefore, when a law is challenged on the ground that it imposes restrictions on the freedom guaranteed by one or the other subclause of clause (1) of Article 19 and the restrictions are shown to exist by the petitioner, the burden of establishing that the restrictions fall within any of the permissive clauses (2) to (6) which may be applicable, must rest upon the State. The State would have to produce material for satisfying the court that the restrictions imposed 294 by the impugned law fall within the appropriate permissive clause from out of clauses (2) to (6) of Article 19. Of course there may be cases where the nature of the legislation and the restrictions imposed by it may be such that the court may, without more, even in the absence of any positive material produced by the State, conclude that the restrictions fall within the permissible category, as for example, where a law is enacted by the legislature for giving effect to one of the Directive Principles of State Policy and prima facie, the restrictions imposed by it do not appear to be arbitrary or excessive. Where such is the position, the burden would again shift and it would be for the petitioner to show that the restrictions are arbitrary or excessive and go beyond what is required in public interest. But, once it is shown by the petitioner that the impugned law imposes restrictions which infringe one or the other sub clause of clause (1) of Article 19, the burden of showing that such restrictions are reasonable and fall within the permissible category must be on the State and this burden the State may discharge either by producing socio economic data before the court or on consideration of the provisions in the impugned law read in the light of the constitutional goals set out in the Directive Principles of State Policy. The test to be applied for the purpose of determining whether the restrictions imposed by the impugned law are reasonable or not cannot be cast in a rigid formula of universal application, for, as pointed out by Patanjali Shastri, J. in State of Madras vs V.J. Row (1) "no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases". The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied, the value of human life, the disproportion of the imposition, the social philosophy of the Constitution and the prevailing conditions at the time would all enter into the judicial verdict. And we would do well to bear in mind that in evaluating such elusive factors and forming his own conception of what is reasonable in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judge participating in the decision would play a very important part. Before I proceed to consider the question of burden of proof in case of challenge under Article 14, it would be convenient first to (1) ; 295 deal with the question as to where does the burden of proof lie when the challenge to a law enacted by the legislature is based on violation of Article 21. The position in regard to onus of proof in a case where the challenge is under Article 21 is in my opinion much clearer and much more free from doubt or debate than in a case where the complaint is of violation of clause (1) of Article 19. Wherever there is deprivation of life, and by life I mean not only physical existence, but also use of any faculty or limb through which life is enjoyed and basic human dignity, or of any aspect of personal liberty, the burden must rest on the State to establish by producing adequate material or otherwise that the procedure prescribed for such deprivation is not arbitrary but is reasonable, fair and just. I have already discussed various circumstances bearing upon the true nature and character of death penalty and these circumstances clearly indicate that it is reasonable to place on the State the onus to prove that death penalty is not arbitrary or unreasonable and serves a compelling State interest. In the first place, death penalty destroys the most fundamental right of all, namely, the right to life which is the foundation of all other fundamental rights. The right to life stands on a higher footing than even personal liberty, because personal liberty too postulates a sentient human being who can enjoy it. Where therefore a law authorises deprivation of the right to life the reasonableness, fairness and justness of the procedure prescribed by it for such deprivation must be established by the State. Such a law would be 'suspect ' in the eyes of the court just as certain kinds of classification are regarded as 'suspect ' in the United States of America. Throwing the burden of proof of reasonableness, fairness and justness on the State in such a case is a homage which the Constitution and the courts must pay to the righ to life. It is significant to point out that even in case of State action depriving a person of his personal liberty, this Court has always cast the burden of proving the validity of such action on the State, when it has been challenged on behalf of the person deprived of his personal liberty. It has been consistently held by this Court that when detention of a person is challenged in a habeas corpus petition, the burden of proving the legality of the detention always rests on the State and it is for the State to justify the legality of the detention. This Court has shown the most zealous regard for personal liberty and treated even letters addressed by prisoners and detenus as writ petitions and taken action upon them and called upon the State to show how the detention is justified. If this be the anxiety and concern shown by 296 the court for personal liberty, how much more should be the judicial anxiety and concern for the right to life which indisputably stands on a higher pedestal. Moreover, as already pointed out above, the international standard or norm set by the United Nations is in favour of abolition of death penalty and that is the ultimate objective towards which the world body is moving. The trend of our national legislation is also towards abolition and it is only in exceptional cases for special reasons that death sentence is permitted to be given. There can be no doubt that even under our national legislation death penalty is looked upon with great disfavour. The drastic nature of death penalty involving as it does the possibility of error resulting in judicial murder of an innocent man as also its brutality in inflicting excruciating mental anguish severe psychological strain and agonising physical pain and suffering on the condemned prisoner are strong circumstances which must compel the State to justify imposition of death penalty. The burden must lie upon the State show that death penalty is not arbitrary and unreasonable and serves a legitimate social purpose, despite the possibility of judicial error in convicting and sentencing an innocent man and the brutality and pain, mental as well as physical, which death sentence invariably inflicts upon the condemned prisoner. The State must place the necessary material on record for the purpose of discharging this burden which lies upon it and if it fails to show by presenting adequate evidence before the court or otherwise that death penalty is not arbitrary and unreasonable and does serve a legitimate social purpose, the imposition of death penalty under section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure would have to be struck down as violative of the protection of Article 21. So far as the question of burden of proof in a case involving challenge under Article 14 is concerned, I must concede that the decisions in Ram Krishan Dalmia 's case (supra) and Mohd. Hannif Qureshi 's case (supra) and several other subsequent decisions of the Court have clearly laid down that there is a presumption in favour of constitutionality of a statute and the burden of showing that it is arbitrary or discriminary lies upon the petitioner, because it must be presumed "that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. " Sarkaria, J. has pointed out in the majority judgment that underlying this presumption of constitu 297 tionality "is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions and the judicial responsibility to guard the tresspass from one side or the other." The learned Judge with a belief firmly rooted in the tenets of mechanical jurisprudence, has taken the view that "the primary function of the Courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy making. " Now there can be no doubt that in adjudicating upon the constitutional validity of a statute, the Judge should show deference to the legislative judgment and should not be anxious to strike it down as invalid. He does owe to the legislature a margin of tolerance and he must constantly bear in mind that he is not the legislator nor is the court a representative body. But I do not agree with Sarkaria, J. when he seems to suggest that the judicial role is, as it was for Francis Bacon, 'jus dicere and not jus dare; to interpret law and not to make law or give law. ' The function of the Court undoubtedly is to interpret the law but the interpretative process is highly creative function and in this process, the Judge, as pointed out by Justice Holmes, does and must legislate. Lord Reid ridiculed as 'a fairytale ' the theory that in some Aladdin 's cave is hidden the key to correct judicial interpretation of the law 's demands and even Lord Diplock acknowledged that "The court may describe what it is doing in tax appeals as interpretation. So did the priestess of the Delphic Oracle. But whoever has final authority to explain what Parliament meant by the words that it used, makes law as if the explanation it has given were contained in a new Act of Parliament. It will need a new Act of Parliament to reverse it. " Unfortunately we are so much obsessed with the simplicities of judicial formalism which presents the judicial role as jus dicere, that, as pointed out by David Pannick in his "Judicial Review of the Death Penalty", "we have, to a substatial extent, ignored the Judge in administering the judicial process. So heavy a preoccupation we have made with the law, its discovery and its agents who play no creative role, that we have paid little, if any, regard to the appointment, training, qualities, demeanour and performance of the individuals selected to act as the mouth of the legal oracle. " It is now acknowledged by leading jurists all over the world that judges are not descusitized and passionless instruments which weigh on inanimate and impartial scales of legal judgment, the evidence and the arguments presented on each side of the case. They are not political 298 and moral enuchs able and willing to avoid impregnating the law with their own ideas and judgment. The judicial exercise in constitutional adjudication is bound to be influenced, consciously or subconsciouly, by the social philosophy and scale of values of those who sit in judgment. However, I agree with Sarkaria, J. that ordinarily the judicial function must be characterised by deference to legislative judgment because the legislature represents the voice of the people and it might be dangerous for the court to trespass into the sphere demarcated by the Constitution for the legislature unless the legislative judgment suffers from a constitutional infirmity. It is a trite saying that the Court has "neither force nor will but merely judgment" and in the exercise of this judgment, it would be a wise rule to adopt to presume the constitutionality of a statute unless it is shown to be invalid. But even here it is necessary to point out that this rule is not a rigid inexorable rule applicable at all times and in all situations. There may conceivably be cases where having regard to the nature and character of the legislation, the importance of the right affected and the gravity the injury caused by it and the moral and social issues involved in the determination, the court may refuse to proceed on the basis of presumption of constitutionality and demand from the State justification of the legislation with a view to establishing that it is not arbitrary or discriminatory. There are times when commitment to the values of the Constitution and performance of the constitutional role as guardian of fundamental rights demands dismissal of the usual judicial deference to legislative judgment. The death penalty, of which the constitutionality is assailed in the present writ petitions, is a fundamental issue to which ordinary standards of judicial review are inappropriate. The question here is one of the most fundamental which has arisen under the Constitution, namely, whether the State is entitled to take the life of a citizen under cover of judicial authority. It is a question so vital to the identity and culture of the society and so appropriate for judicial statement of the standards of a civilised community often because of legislative apathy that "passivity and activism become platitudes through which judicial articulation of moral and social values provides a light to guide an uncertain community. " The same reasons which have weighed with me in holding that the burden must lie on the State to prove that the death penalty provided under section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure is not arbitrary and unreasonable and serves a legitimate penological purpose where 299 the challenge is under Article 21 must apply equally to cast the burden of the proof upon the State where the challenge is under Article 14. Now it is an essential element of the rule of law that the sentence imposed must be proportionate to the offence. If a law provides for imposition of a sentence which is disproportionate to the offence, it would be arbitrary and irrational, for it would not pass the test of reason and would be contrary to the rule of law and void under Articles 14, 19 and 21. The principle of proportionality is implicit in these three Articles of the Constitution. If, for example, death penalty was prescribed for the simple offence of theft as indeed it was at one time in the seventeenth century England it would be clearly excessive and wholly disproportionate to the offence and hence arbitrary and irrational by any standards of human decency and it would be impossible to sustain it against the challenge of these three Articles of the Constitution. It must therefore be taken to be clear beyond doubt that the proportionality principle constitutes an important constitutional criterion for adjudging the validity of a sentence imposed by law. The Courts in the United States have also recognised the validity of the proportionality principle. In Gregg vs Goergia (1) Stewart, J. speaking for the plurality of the American Supreme Court said that "to satisfy constitutional requirements, the punishment must not be excessive. the punishment must not be out of proportion to the severity of the crime. This constitutional criterion was also applied in Coker vs Georgia (2) to invalidate the death penalty for rape of an adult woman. While, J. with whom Stewarts and Blackmun, JJ. agreed, said, with regard to the offence of rape committed against an adult woman : "a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment". Likewise in Lockette vs Ohio (3) where the defendant sat outside the scene of robbery waiting to drive her accomplices away and contrary to plan, the robbers murdered three victims in the course of their robbery and she was convicted and sentenced to death by resort to the doctrine of vicarious liability, 300 the Supreme Court of the United States applying the same principle of proportionality held the death sentence unconstitutional. Marshall, J. pointed out that because the appellant was convicted under a theory of vicarious liability, the death penalty imposed on her "violates the principle of proportionality embodied in the Eighth Amendment 's prohibition" and White J. also subscribed to the same reasoning when he said, "the infliction of death upon those who had no intent to bring about the death of the victim is . .grossly out of proportion to the severity of the crime". Of course, the Supreme Court of the United States relied upon the Eighth Amendment which prohibits cruel and unusual treatment or punishment and we have no such express prohibition in our Constitution, but this Court has held in Francis Mullen 's case (supra) that protection against torture or cruel and inhuman treatment or punishment is implicit in the guarantee of Article 21 and therefore even on the basic of the reasoning in these three American decisions, the principle of proportionallty would have relevance under our Constitution. But, quite apart from this, it is clear and we need not reiterate what we have already said earlier, that the principle of proportionality flows directly as a necessary element from Articles 14, 19 and 21 of the Constitution. We find that in Canada too, in the case of Rex vs Miller and Cockriell (1) the principle of proportionality has been recognised by Laskin C.J. speaking on behalf of Canadian Supreme Court as "one of the constitutional criteria of 'cruel and unusual treatment or punishment ' prohited under the Canadian Bill of Rights. Laskin C.J. pointed out in that case "It would be patent to me, for example, that death as a mandatory penalty today for theft would be offensive to section 2(b). That is because there are social and moral considerations that enter into the scope and application of section 2(b). Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency. That is not a precise formula for section 2(b) but I doubt whether a more precise one can be found. " Similarly, as pointed out by Mr. David Pannick in his book on "Judicial Review of the Death Penalty" international charters of rights express or imply the principle of proportionality. Article 7 of the International Covenant on Civil and Political Rights forbids torture and cruel 301 inhuman or degrading treatment or punishment and so does Article A 3 of the European Convention on Human Rights. It has been suggested by Francis Jacobs, a commentator on the European Convention that "among the factors to be considered in deciding whether the death penalty, in particular circumstances, was contrary to Article 3, would be whether it was disproportionate to the offence. It is necessary to point out at this stage that death penalty cannot be said to be proportionate to the offence merely because it may be or is believed to be an effective deterrent against the commission of the offence. In Coker vs Georgia (supra) the Supreme Court of the United States held that capital punishment is disproportionate to rape "even though it may measurably serve the legitimate ends of punishment and therefore is not invalid for its failure to do so. " The absence of any rational purpose to the punishment inflicted is a separate ground for attacking its constitutionality. The existence of a rational legislative purpose for imposing the sentence of death is a necessary condition of its constitutionality but nota sufficient one. The death penalty for theft would, for example, deter most potential thieves and may have a unique deterrent effect in preventing the commission of the offence; still it would be wholly disproportionate and excessive, for the social effect of the penalty is not decisive of the proportionality to the offence. The European Court of Human Rights also observed in Tyrer vs United Kingdom (1) that "a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the court must emphasize, it is never permissible to have recourse to punishments which are contrary to Article 3, whatever their deterrent effect may be." The utilitarian value of the punishment has nothing to do with its proportionality to the offence. It would therefore be no answer in the present case for the respondents to say that death penalty has a unique deterrent effect in preventing the crime of murder and therefore it is proportionate to the offence. The proportionality between the offence and death penalty has to be judged by reference to objective factors such as international standards or norms or the climate of international opinion, modern penological theories and evolving standards of human decency. I have already pointed out and I need not repeat that the international standard or norm which 302 is being evolved by the United Nations is against death penalty and so is the climate of opinion in most of the civilized countries of the world. I will presently show that penological goals also do not justify the imposition of death penalty for the offence of murder. The prevailing standards of human decency are also incompatible with death penalty. The standards of human decency with reference to which the proportionality of the punishment to the offence is required to be judged vary from society to society depending on the cultural and spiritual tradition of the society, its history and philosophy and its sense of moral and ethical values. To take an example, if a sentence of cutting off the arm for the offence of theft or a sentence of stoning to death for the offence of adultery were prescribed by law, there can be no doubt that such punishment would be condemned as barbaric and cruel in our country, even though it may be regarded as proportionate to the offence and hence reasonable and just in some other countries. So also the standards of human decency vary from time to time even within the same society. In an evolutionary society, the standards of human decency are progressively evolving to higher levels and what was regarded as legitimate and reasonable punishment proportionate to the offence at one time may now according to the envolving standards of human decency, be regarded as barbaric and inhuman punishment wholly disproportionate to the offence. There was a time when in the United Kingdom a sentence of death for the offence of theft or shop lifting was regarded as proportionate to the offence and therefore quite legitimate and reasonable according to the standards of human decency then prevailing, but today such punishment would be regarded as totally disproportionate to the offence and hence arbitrary and unreasonable. The question, therefore, is whether having regard to the international standard or norm set by the United Nations in favour of abolition of death penalty, the climate of opinion against death penalty in many civilized countries of the world and the prevailing standards of human decency, a sentence of death for the offence of murder can be regarded as satisfying the test of proportionality and hence reasonable and just. I may make it clear that the question to which I am addressing myself is only in regard to the proportionality of death sentence to the offence of murder and nothing that I say here may be taken as an expression of opinion on the question whether a sentence of death can be said to be proportionate to the offence of treason or any other offence involving the security of the State. 303 Now in order to determine what are the prevailing standards of human decency, one cannot ignore the cultural ethos and spiritual tradition of the country. To quote the words of Krishna Iyer, J. in Raiendra Prasad 's case "The values of a nation and ethos of a generation mould concepts of crime and punishment. So viewed, the lode star of penal policy today, shining through the finer culture of former centuries, strengthens the plea against death penalty. The Indian cultural current also counts and so does our spiritual chemistry, based on divinity in everyone, catalysed by the Buddha Gandhi compassion. Many humane movements and sublime souls have cultured the higher consciousness of mankind. " In this land of Buddha and Gandhi, where from times immemorial, since over 5000 years ago, every human being is regarded as embodiment of Brahman and where it is a firm conviction based not only on faith but also on experience that "every saint has a past and every sinner a future", the standards of human decency set by our ancient culture and nourished by our constitutional values and spiritual norms frown upon imposition of death penalty for the offence of murder. It is indisputable that the Constitution of a nation reflects its culture and ethos and gives expression to its sense of moral and ethical values. It affords the surest indication of the standards of human decency cherished by the people and sets out the socio cultural objectives and goals towards which the nation aspires to move. There can be no better index of the ideals and aspirations of a nation than its Constitution. When we turn to our Constitution, we find that it is a humane document which respects the dignity of the individual and The worth of the human person and directs every organ of the State to strive for the fullest development of the per sonality of every individual. Undoubtedly, as already pointed out above, our Constitution does contemplate death penalty, and at the time when the Constitution came to be enacted, death penalty for the offence of murder was on the statute book, but the entire thrust of the Constitution is in the direction of development of the full potential of every citizen and the right to life alonggwith basic human dignity is highly prized and cherished and torture and cruel or in human treatment or punishment which would be degrading and destructive of human dignity are constitutionally forbidden. Moreover, apart from the humanistic quintessence of the Constitution, the thoughts, deeds and words of the great men of this country provide the clearest indication of the prevailing standards of human 304 decency. They represent the conscience of the nation and are the most authentic spokesmen of its culture and ethos. Mahatma Gandhi, the Father of the Nation wrote long ago in the Harijan. "God alone can take life because He alone gives it. He also said and this I may be permitted to emphasize even at the cost of repetition: "Destruction of individuals can never be a virtuous act. The evil doers cannot be done to death . Therefore all crimes including murder will have to be treated as a disease. " I have also quoted above what Jai Prakash Narain said in his message to the Delhi Conference against Death Penalty. The same humanistic approach we find in the utterances of Vinoba Bhave. His approach to the problem of dacoits in Chambal Valley and the manner in which he brought about their surrender through soulforce bear eloquent testimony to the futility of death penalty and shows how even dacoits who have committed countless murders can be reclaimed by the society. But, the more important point is that this action of Vinoba Bhave was applauded by the whole nation and Dr. Rajendra Prasad who was then the President of India, sent the following telegram to Binoba Bhave when he came to know that about 20 dacoits from the Chambal region had responded to the Saint 's appeal to surrender . "The whole nation looks with hope and admiration upon the manner in which you have been able to rouse the better instincts and moral sense, and thereby inspire faith in dacoits which has led to their voluntary surrender. Your efforts, to most of us, come as a refreshing proof of the efficacy of the moral approach for reforming the misguided and drawing the best out of them. I can only pray for the complete success of your mission and offer you my regards and best wishes. " These words coming from the President of India who is the Head of the nation reflect not only his own admiration for the manner in which Vinoba Bhave redeemed the dacoits but also the admiration of the entire nation and that shows that what Vinoba Bhave did, had the approval of the people of the country and the standards of human decency prevailing amongst the people commended an approach favouring reformation and rehabilitation of the dacoits rather than their conviction for the various offences of murder com mitted by them and the imposition of death penalty on them. More over, it is difficult to see bow death penalty can be regarded as pro 305 portionate to the offence of murder when legislatively it has been A ordained that life sentence shall be the rule and it is only in exceptional cases for special reasons that death penalty may be imposed. It is obvious from the provision enacted in section 354(3) of the Code of Criminal Procedure that death sentence is legislatively regarded as disproportionate and excessive in most cases of murder and it is only in exceptional cases what Sarkaria, J. speaking on . behalf of the majority, describes as "the rarest of rare" cases, that it can at all be contended that death sentence is proportionate to the offence of murder. But, then the legislature does not indicate as to what are those exceptional cases in which death sentence may be regarded as proportionate to the offence and, therefore, reasonable and just. Merely because a murder is heinous or horrifying, it cannot be said that death penalty is proportionate to the offence when it is not so for a simple murder. How does it become proportionate to the offence merely because it is a 'murder most foul '. I fail to appreciate how it should make any difference to the penalty whether the murder is a simple murder or a brutal one. A murder is a murder all the same whether it is carried out quickly and inoffensively or in a gory and gruesome manner. If death penalty is not proportionate to the offence in the former case, it is difficult to see how it can be so in the latter. I may usefully quote in this connection the words of Krishna Iyer, J. in Rajendra Prasad 's case where the learned Judge said; "Speaking illustratively, is shocking crime, without more, good to justify the lethal verdict ? Most murders are horrifying, and an adjective adds but sentiment, not argument. The personal story of an actor in a shocking murder, if considered, may bring tears and soften the sentence. He P . might have been a tortured child, an ill treated orphan, a jobless starveling, a badgered brother, a wounded son, a tragic person hardened by societal cruelty or vengeful justice, even a Hemlet or Parasurarna. He might have been an angelic boy but thrown into mafia company or inducted into dopes and drugs by parental neglect or morally ment ally retarded or disordered. Imagine a harijan village hacked out of existence by the genocidal fury of a kulak ' group and one survivor, days later, cutting to pieces the villain of the earlier outrage. Is the court in error in reckoning the prior provocative barbarity as a sentencing factor ? 306 Another facet. May be, the convict 's poverty had disabled his presentation of the social milieu or other circumstances of extenuation in defence. When life is at stake, can such frolics of fortune play with judicial , verdicts ? "The nature of the crime too terrible to contemplate has often been regarded a traditional peg on which to hang a death penalty. Even Ediga Anamma (supra) has hardened here. But 'murder most foul ' is not the test, speaking J scientifically. The doer may be a patriot, a revolutionary, a weak victim of an overpowering passion who, given better a environment, may be a good citizen, a good administrator, a good husband, a great saint. What was Valmiki once ? And that sublime spiritual star, Shri Aurobindo tried once for murder but by history 's fortune acquitted. " I agree with these observations of the learned Judge which clearly show that death penalty cannot be regarded as proportionate to the offence of murder, merely because the murder is brutal, heinous or shocking. The nature and magnitude of the offence or the motive and purposes underlying it or the manner and extent of its commission cannot have any relevance to the proportionality of death penalty to the offence. It may be argued that though these factors may not of themselves be relevant,. they may go to show that the murderer is such a social monster, a psychopath, that he cannot be reformed and he should therefore be regarded as human refuse, dangerous to society, and deserving to be hanged and in such a case death penalty may legitimately be regarded as proportionate to the offence. But I do not think this is a valid argument. It is for reasons which I shall presently state, wholly untenable and it has dangerous implications. I do not think it is possible to hold that death penalty is, in any circumstances, proportionate to the offence of murder. Moreover, when death penalty does not serve any legitimate social purpose, and this is a proportion which I shall proceed to establish in the succeeding paragraphs, infliction of mental and physical pain and suffering on the condemned prisoner by sentencing him to death penalty cannot but be regarded as cruel and inhuman and therefore arbitrary and unreasonable. I will now examine whether death penalty for the offence of murder serves any legitimate social purpose. There are three justi 307 fications traditionally advanced in support of punishment in general, namely, (1) reformation; (2) denunciation by the community or retribution and (3) deterrence. These are the three ends of punishment, its three penological goals, with reference to which any punishment prescribed by law must be justified. If it cannot be justified with reference to one or the other of these three penological purposes, it would have to be condemned as arbitrary and irrational, for in a civilised society governed by the rule of law, no punishment can be inflicted on an individual unless it serves some social purpose. It is a condition of legality of a punishment that it should serve a rational legislative purpose or in other words, it should have a measurable social effect. Let us therefore examine whether death penalty for the offence of murder serves any legitimate and of punishment. It would be convenient first to examine the examine the constutionality of death penalty with reference to the reform tory end of punishment. The civilised goal of criminal justice is the reformation of the criminal and death penalty means abandonment of this goal for those who suffer it. Obviously death penalty cannot serve the reformatory goal because it extinguishes life and puts an end to any possibility of reformation. In fact, it defeats the reformatory end of punishment. But the answer given by the protagonists of death penalty to this argument is that though there may be a few murderers whom it may be possible to reform and rehabilitate, what about those killers who cannot be reformed and rehabilitated ? Why should the death penalty be not awarded to them ? But even in their cases, I am afraid, the argument cannot be sustained. There is no way of accurately predicting or knowing with any degree of moral certainty that a murderer will not be reformed or is incapable of reformation. All we know is that there have been many many successes even with the most vicious of cases. Was Jean Valjean of Les Miserbles not reformed by the kindness and magnanimity of the Bishop ? Was Valmiki a sinner not reformed and did he not become the author of one of the world 's greatest epics ? Were the dacoits of Chambal not transformed by the saintliness of Vinoba Bhave and Jai Prakash Narain ? We have also the examples of Nathan Leopold, Paul Crump and Edger Smith who were guilty of the most terrible and gruesome murders but who, having escaped the gallows, became decent and productive human beings. These and many other examples clearly 308 show that it is not possible to know before hand with any degree of cartainty that a murderer is beyond reformation. Then would it be right to extinguish the life of a human being merely on the basis of speculation and it can only be speculation and not any definitive inference that he cannot be reformed. There is divinity in every man and to my mind no one is beyond redemption. It was Ramakrishna Paramhansa, one of the greatest saints of the last century, who said, "Each soul is potentially divine". There is Brahman in every living being, serve khalu idan bramh, as the Upanishad says and to the same effect we find a remarkable utterance in the Brahmasukta of Atharvaveda where a sage exclaims: "Indeed these killers are Brahman; these servants (or slaves) are Brahmaa; these cheats and rogues are also manifestation of one and the same Brahman itself." Therefore once the dross of Tamas is removed and satva is brought forth by methods of rehabilitation such as community service, yoga, meditation and sat sang or holy influence, a change definitely takes place and the man is reformed. This . is not just a fancy or idealised view taken by Indian philosophical thought, but it also finds Support from the report of the Royal Commission on Capital Punishment set up in the United Kingdom where it has been said: "Not that murderers in general are incapable of reformation, the evidence plainly shows the contrary. Indeed, as we shall see later" (in paragraphs 651 652) "the experience of countries without capital punishment indicates that the prospects of reformation are at least as favourable with murderers as with those who have committed other kinds of serious crimes. " The hope of reforming even the worst killer is based on exeperience as well as faith and to legitimate the death penalty even in the so called exceptional cases where a killer is said to be beyond reformation, would be to destroy this hope by sacrificing it at the altar of superstition and irrationality. I would not therefore, speaking for myself, be inclined to recognise any exception, though Justice Krishna Iyer has done so in Rajendra Prasad 's case, that death panalty may be legally permissible where it is found that a killer is such a monster or beast that he can never be reformed. Moreover, it may be noted, as pointed out by Albert Camus, that in resorting to this philosophy of elimination of social monsters, we would be approaching some of the worst ideas of totalitarianism or the selective racism which the Hitler regime propounded. Sir Ernest Gowers, Chairman of the Royal Commission on Capital Punishment also emphasized the disturbing implications of this argument favouring elimination of 309 a killer who is a social monster and uttered the following warning A "If it is right to eliminate useless and dangerous members of the community why should the accident of having committed a capital offence determine who should be selected. These ar. Only a tiny proportion and not necessarily the most dangerous. It can lead to Nazism. " This theory that a killer who is believed to be a social monster or beast should be eliminated in defence of the society cannot therefore be accepted and it cannot provide a justification for imposition of death penalty even in this narrow class of cases. I will now turn to examine the constiutional validity of death penalty with reference to the second goal of punishment, namely, denunciation by the community or retribution. The argument which is sometimes advanced in support of the death penalty is that every punishment is to some exetent intended to express the revulsion felt by the society against the wrong doer and the punishment must, therefore, be commensurate with the crime and since murder is one of the gravest crimes against society, death penalty is the only punishment which fits such crime and hence it must he held to be reasonable. This argument is founded on the denunciatory theory of punishment which apparently claiming to justify punishment, as the expression of the moral indignation of the society against the wrong doer, represents in truth and reality an attempt to legitimise the feeling of revenge entertained by the society against him. The denunciatory theory was put forward as an argument in favour of death penalty by Lord Denning before the Royal Commission on Capital Punishment: "The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime, and from this point of view there are some murders which in the present state of opinion demand the most emphatic denunciation of all, namely, the death penalty. The truth is that some crimes are so outrageous that it, irrespective of whether it is a deterrent or not." 310 The Royal Commission on Capital Punishment seemed to agree with Lord Denning 's view about this justification for the death penalty and observed.". the law cannot ignore the public demand for retribution which heinous crimes undoubtedly provoke; it would be generally agreed that, though reform of the criminal law ought sometimes, to give a lead to public opinion, it is dangerous to move too far in advance of it." Though garbed in highly euphemistic language by labelling the sentiment underlying this observation as reprobation and not revenge, its implication can hardly be disguised that the death penalty is considered necessary not because the preservation of the society demands it, but because the society wishes to avenge itself for the wrong done to it. Despite its high moral tone and phrase, the denunciatory theory is nothing but an echo of what Stephen said in rather strong language: "The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite. " The denunciatory theory is a remnant of a primitive society which has no respect for the dignity of man and the worth of the human person and seeks to assuage its injured conscience by taking revenge on the wrong doer. Revenge is an elementary passion of a brute and betrays lack of culture and refinement. The manner in which a society treats crime and criminals affords the surest index of its cultural growth and development. Long ago in the year 1910 Sir Winston Churchill gave expression to this social truth when he said in his inimitable language: "The mood and temper of the public with regad to the treatment of crime and the criminals is one of the most unfailing tests of civilization of any country. A calm dispassionate recognition of the right of accused, and even of the convicted, criminal against the State, a constant heart searching by all charged with the duty of punishment tireless efforts towards the discovery of curative and , regenerative processes, unfailing faith that there is a treasure if you can only find it in the heart of every man these are the symbols, which, in treatment of crime and the criminals, mark and measure the stored up strength of a nation and are sign and proof of the living virtue in it. A society which is truly cultured a society which is reared on a spiritual foundation like the Indian society can never harbour a 311 feeling of revenge against a wrong doer. On the contrary, it would A try to reclaim the wrong doer and find the treasure that is in his heart. The wrong doer is as much as part of the society as anyone else and by exterminating him, would the society not injure itself ? If a limb of the human body becomes diseased, should we not try to cure it instead of amputating it ? Would the human body not be partially disabled: would it not be rendered imperfect by the . amputation ? Would the amputation not leave a scar on the human body ? Would the human body not cease to be what it was intended by its maker? But if the diseased limb can be cured, would it not be so much better that the human body remains intact in all its perfection. Similarly the society also would benefit if one of its members who has gone astray and done some wrong can be reformed and regenerated. It will strengthen the fabric of the society and increase its inner strength and vitality. Let it not be forgotten that no human being is beyond redemption. There is divinity in every human being, if only we can create conditions in which it can blossom forth in its full glory, and effulgence. It can dissolve the dross of criminality and make God out of man. "Each soul", said Shri Ramakrishna Paramhansa, "is potentially divine" and it should be the endeavour of the society to reclaim the wrong doer and bring out the divinity J in him and not to destroy him in a fit of anger or revenge. Retaliation can have no place in a civilised society and particularly in the Land of Buddha and Gandhi. The law of Jesus must prevail over the lex tallionis of Moses, "Thou shalt not kill" must penologically over power "eye for an eye and tooth for a tooth. " The society has made tremendous advance in the last few decades and today the concept of human rights has taken firm root in our soil and there is a tremendous wave of consciousness in regard to the dignity and divinity of man. To take human life even with the sanction of the law and under the cover of judicial authority, is retributive barbarity and violent futility: travesty of dignity and violation of the divinity of man. So lang as the offender can be reformed through the rehabilitatory therapy which may be administered to him in the prison or other correctional institute and he can be reclaimed as a useful citizen and made conscious of the divinity within him by techniques such as meditation, how can there be any moral justification for liquidating him out of existence ? In such a case, it would be most unreasonable and arbitrary to extinguish the flame of life within him, for no social purpose would be served and no consti 312 tutional value advanced by doing so. I have already pointed out that death penalty runs counter to the reformatory theory of punishment and I shall presently discuss the deterrent aspect of death penalty and show that death penalty has not greater deterrent effect than life imprisonment. The only ground on which the death penalty may therefore be sought to be justified is reprobation which as already pointed out, is nothing but a different name for revenge and retaliation. But in a civilised society which believes in the dignity and worth of the human person, which acknowledges and protects the right to life as the most precious possession of mankind, which recognises the divinity in man and describes a his kind as "Amaratsaya Putra" that is "children of Immortality", it is difficult to appreciate now retaliatory motivation can ever be countenanced as a justificatory reason. This reason is wholly inadequate since it does not justify punishment by its results, but it merely satisfies the passion for revenge masquerading as righteousness. I may point that in holding this view I am not alone, for I find that most philosophers have rejected retribution as a proper goal of punishment. Plato wrote: "He who desires to inflict rational punishment does not retaliate for a past wrong which cannot be undone; he has regard to the future, and is desirous that the man who is punished, and he who sees him punished, may be deterred from doing wrong again. He punishes for the sake of prevention. " Even in contemporary America, it is firmly settled that retribution has no proper place in our criminal system. The New York Court of Appeals pointed out in a leading judgment in People vs Oliver: "The punishment or treatment of offenders is directed toward one or more of three ends: (I) to discourage and act as a deterrent upon future criminal activity. (2) to confine the offender so that he may not harm society; and (3) to correct and rehabilitate the offender. There is no 313 place in the scheme for punishment for its own sake, the product simply of vengeance or retribution. " Similarly, the California Supreme Court has held that "to conclude that the Legislature was motivated by a desire for vengeance" would be "a conclusion not permitted in view of modern theories of penology." The same view has been adopted in official studies of capital punishment. The British Royal Commission on Capital Punishment concluded that "modern penological thought discounts retribution in the sense of vengeance. "The Florida Special Commission on capital punishment, which recommended retention of the death penalty on other grounds, rejected "vengeance or retaliation" as justification for the official taking of life. " The reason for the general rejection of retribution as a purpose of the criminal system has been stated concisely by Professors Michael and Wechsler: "Since punishment consists in the infliction of pain it is, apart from its consequence, an evil: consequently it is good and therefore just only if and to the degree that it serves the common good by advancing the welfare of the person punished or of the rest of the population Retribution is itself unjust since it requires some human beings to inflict pain upon others, regardless of its effect upon them or upon the social welfare. " The Prime Minister of Canada Mr. Pierre Trudeaux, addressing the Canadian Parliament, pleading for abolition of death penalty, posed a question in the same strain: "Are we as a society so lacking in respect for ourselves, so lacking in hope for human betterment, so socially bankrupt that we are ready to accept state vengeance as our penal philosophy" It is difficult to appreciate how a feeling of vengeance whether on the individual wronged or the society can ever be regarded as a healthy sentiment which the State should foster. It is true that when a heinous offence is committed not only the individual who suffers 314 as a result of the crime but the entire society is oppressed with a feeling of revulsion, but as Arthur Koestler has put it in his inimitable style in his "Reflections on Hanging": "Though easy to dismiss in reasoned argument on both moral and logical grounds, the desire for vengeance has deep, unconscious roots and is roused when we feel strong indignation or revulsion whether the reasoning mind approves or not. This psychological fact is largely ignored in abolitionist propaganda yet it has to be accepted as a fact. The admission that even confirmed abolitionists are not proof against occasional vindictive impulses does not mean that such impulses should be legally sanctioned by society, any more than we sanction some other unpalatable instincts of our biological inheritance. Deep inside every civilized being there lurks a tiny Stone Age man, dangling a club to robe and rape, and screaming an eye for an eye. But we would rather not have that little fur clad figure dictate the law of the land. " I have no doubt in my mind that if the only justification for the death penalty is to be found in revenge and retaliation, it would be clearly arbitrary and unreasonable punishment falling foul of Articles 14 and 21. I must then turn to consider the deterrent effect of death penalty, for deterrence is undoubtedly an important goal of punishment. The common justification which has been put forward on behalf of the protagonists in support of capital punishment is that it acts as a deterrent against potential murderers. This is, to my mind, a myth, which has been carefully nurtured by a society which is actuated not so much by logic or reason as by a sense of retribution. It is really the belief in retributive justice that makes the death penalty attractive but those supporting it are not inclined to confess to their instinct for retribution but they try to bolster with reasons their unwillingness to abandon this retributive instinct and seek to justify the death penalty by attribution to it a deterrent effect. The question whether the death penalty has really and truly 315 a deterrent effect is an important issue which has received careful attention over the last 40 years in several countries including the United States of America. Probably no single subject in criminology has been studied more. Obviously, no penalty will deter all murders and probably any severe penalty will deter many. The key question therefore is not whether death penalty has a deterrent effect but whether death penalty has a greater deterrent effect than life sentence. Does death penalty deter potential murderers better than life imprisonment ? I shall presently consider this question but before I do so let me repeat that the burden of showing that death penalty is not arbitrary and unreasonable and serves a legitimate penological goal is on the State. I have already given my reasons for taking this view on principle but I find that the same view has also been taken by the Supreme Judicial Court of Massachusettes in "Commonwealth vs O 'Neal (No.2)(1) where it has been held that because death penalty impinges on the right to life itself, the onus lies on the State to show a compelling State interest to justify capital punishment and since in that case the State was unable to satisfy this onus, the Court ruled that death penalty for murder committed in the course of rape or attempted rape was unconstitutional. The Supreme Judicial Court of Massachusttes also reiterated the same view in opinion of the Justices while giving its opinion whether a Bill before the House of Representatives was compatible with Article 26 of the Constitution which prohibits cruel or unusual punishment. The majority Judges stated hat Article 26 "forbids the imposition of a death penalty in this Commonwealth in the absence of a showing on the part of the Commonwealth that the availability of that penalty contributes more to the achievement of a legitimate State purpose for example, the purpose of deterring criminal conduct than the availability in like cases of the penalty of life imprisonment. " It is therefore clear that the burden rests on the State to establish by producing material before the Court or otherwise, that death penalty has greater deterrent effect than life sentence in order to justify its imposition under the law. If the State fails to discharge this burden which rests upon it, the Court would have to hold that death penalty has not been shown to have greater deterrent effect and it does not therefore serve a rational legislative purpose. 316 The historical course through which death penalty has passed in the last 150 years shows that the theory that death penalty acts as a greater deterrent than life imprisonment is wholly unfounded. Not more than a century and a half ago, in a civilised country like England, death penalty was awardable even for offences like shop lifting, cattle stealing and cutting down of trees. It is interesting to note that when Sir Samuel Romully brought proposals for abolition of death penalty for such offences, there was a hue and cry from lawyers, judges, Parliamentarians and other so called protectors of social order and they opposed the proposals on the grounds that death penalty acted as a deterrent against commission of such offences and if this deterrent was removed, the consequences would be disastrous. The Chief Justice said while opposing abolition of capital punishment for shop lifting: "Where terror of death which now, as the law stood, threatened the depredator to be removed, it was his opinion the consequence would be that shops would be liable to unavoidable losses from depredations and, in many instances, bankruptcy and ruin must become the lot of honest and laborious tradesmen. After all that had been said in favour of this speculative humanity, they must all agree that the prevention of crime should be the chief object of the law; and terror alone would prevent the com mission of that crime under their consideration." and on a similar Bill, the Lord Chancellor remarked: "So long as human nature remained what it was, the apprehension of death would have the most powerful co operation in deterring from the commission of crimes; and he thought it unwise to withdraw the salutary influence of that terror. " The Bill for abolition of death penalty for cutting down a tree was opposed by the Lord Chancellor in these terms: "It did undoubtedly seem a hardship that so heavy a punishment as that of death should be affixed to the cutting down of a single tree, or the killing or wounding of a cow. 317 But if the Bill passed in its present state a person might root up or cut down whole acres of plantations or destroy the whole of the stock of cattle of a farmer without being subject to capital punishment. " Six times the House of Commons passed the Bill to abolish capital punishment for shop lifting and six times the House of Lords threw out the Bill, the majority of one occasion including all the judicial members, one Arch Bishop and six Bishops. It was firmly believed by these opponents of abolition that death penalty acted as a deterrent and if it was abolished, offences of shop lifting etc would increase. But it is a matter of common knowledge that this belief was wholly unjustified and the abolition of death penalty did not have any adverse effect on the incidence of such offences. So also it is with death penalty for the offence of murder. It is an irrational belief unsubstantiated by any factual data or empirical research that death penalty acts as a greater deterrent than life sentence and equally unfounded is the impression that the removal of death penalty will result in increase of homicide. The argument that the rate of homicide will increase if death penalty is removed from the statute book has always been advanced by the established order out of fear psychosis, because the established order has always been apprehensive that if there is any change and death penalty is abolished, its existence would be imperilled. This argument has in my opinion no validity because, beyond a superstitious belief for which there is no foundation in fact and which is based solely on unreason and fear, there is nothing at all to show that death penalty has any additionally deterrent effect not possessed by life sentence. Arthur Koestler tells us an interesting story that in the period when pick pockets were punished by hanging in England, other thieves exercised their talents in the crowds sorrounding the scaffold where the convicted pick pocket was being hanged. Statistics compiled during the last 50 years in England show that out of 250 men hanged, 170 had previously attended one or even two public executions and yet they were not deterred from committing the offence of murder which ultimately led to their conviction and hanging. It is a myth nurtured by superstition and fear that death penalty has some special terror for the criminal which acts as a deterrent against the commission of the crime. Even an eminent judge like Justice Frank Furter of the Supreme Court of the United States expressed the same opinion when he said in the course of his 318 examination before the Royal Commission on Capital Punishment: "I think scientifically the claim of deterrence is not worth much." The Royal Commission on Capital Punishment, after four years of investigation which took it throughout the continent and even to the United States, also came to the same conclusion: "Whether the death penalty is used or not and whether executions are frequent or not, both death penalty states and abolition states show rates which suggests that these rates are conditioned by other factors than the death penalty. " and then again, it observed in support of this conclusion: "The general conclusion which we have reached is that there is no clear evidence in any of the figures we have examined that the abolition of capital punishment has led to an increasing homicide rate or that its reintroduction has led to a fall. " Several studies have been carried out in the United States of America for the purpose of exploring the deterrent effect of death penalty and two different methods have been adopted. The first and by far the more important method seeks to prove the case of the abolitionists by showing that the abolition of capital punishment in other countries has not led to an increase in the incidence of homicide. This is attempted to be shown either by comparing the homicide statistics of countries where capital punishment has been abolished with the statistics for the same period of countries where it has been retained or by comparing statistics of a single country in which capital punishment has been abolished, for periods before and after abolition or where capital punishment has been reintroduced, then for the period before and after its reintroduction. The second method relates to comparison of the number of executions in a country in particular years with the homicide rate in the years succeeding. Now, so far as the comparison of homicide statistics of countries which have abolished capital punishment with the statistics of countries which have retained it, is concerned, it may not yield any definitive inference, because in most cases abolition or retention of death 319 penalty may not be the only differentiating factor but there may be other divergent social, cultural or economic factors which may affect the homicide rates. It is only if all other factors are equal and the only variable is the existence or non existence of death penalty that a proper comparison can be made for the purpose of determining whether death penalty has an additional deterrent effect which life sentence does not possess, but that would be an almost impossible controlled experiment. It may however be possible to find for comparison a small group of countries or States, preferably contiguous and closely similar in composition of population and social and economic conditions generally, in some of which capital punishment has been abolished and in others not. Comparison of homicide rates in these countries or States may afford a fairly reliable indication whether death penalty has a unique deterrent effect greater than that of life sentence. Such groups of States have been identified by Professor Sellin in the United States of America and similar conditions perhaps exist also in Newzealand and the Australian States. The figures of homicide rate in these States do not show any higher incidence of homicide in States which have abolished death penalty than in those which have not. Professor Sellin points out that the only conclusion which can be drawn from these figures is that there is no clear evidence . Of any influence of death penalty on the homicide rates of these States. In one of the best known studies conducted by him, Professor Sellin compared homicide rates between 1920 and 1963 in abolition States with the rates in neighboring and similar retention States. He found that on the basis of the rates alone, it was impossible to identify the abolition States within each group. A similar study comparing homicide rates in States recently abolishing the death penalty and neighboring retention States during the 1960 's reached the same results. Michigan was the first State in the United States to abolish capital punishment and comparisons between Michigan and the bordering retention states of Ohio and Indiana States with comparable demographic characteristics did not show any significant differences in homicide rates. Professor Sellin therefore concluded: "You cannot tell from . the homicide rates alone, in contiguous, which are abolition and which are retention states; this indicates that capital crimes are dependent upon factors other than the mode of punishment." Students of capital punishment have also studied the effect of abolition and reintroduction of death penalty upon the homicide 320 rate in a single state. If death penalty has a significant deterrent effect? abolition should produce a rise in homicides apart from the general trend and reintroduction should produce a decline. After examining statistics from 11 states, Professor Sellin concluded that "there is no evidence that the abolition of capital punishment generally causes an increase in criminal homicides, or that its reintroduction is followed by a decline. The explanation of changes in homicide rates must be sought elsewhere. " Some criminologists have also examined the short term deterrent effects of capital punishment. One study compared the number of homicides during short periods before and after several well publicized executions during the twenties and thirties in Philadelphia. It was found that there were significantly more homicides in the period after the executions than before the opposite of what the deterrence theory would suggest other studies have also shown that in those localities where capital punishment is carried out, the incidence of homicide does not show any decline in the period immediately following well publicized executions when, if death penalty had any special deterrent effect, such effect would be greatest. Sometimes, as Bowers points out in his book on "Executions in America" the incidence of homicide is higher. In short, there is no correlation between the ups and downs of the homicide rate on the one hand and the presence or absence of the death penalty on the other. I may also refer to numerous other studies made by jurists and sociologists in regard to the deterrent effect of death penalty Barring only one study made by Ehrlich to which I shall presently refer, all the other studies are almost unanimous that death penalty has no greater deterrent effect than life imprisonment. Dogan D. Akman, a Canadian Criminologist, in a study made by him on the basis of data obtained from the records of all Canadian penitentiaries for the years 1964 and 1965 observed that the threat of capital punishment has little influence on potential assaulters. So also on the basis of comparison of homicide and execution rates between Queensland and other Australian States for the period 1860 1920, Barber and Wilson concluded that the suspension of capital punishment from 1915 and its abolition from 1922 in Qneensland did not have any significant effect on the murder rate. Chambliss, another Criminologist, also reached the same conclusion in his Article on "Types of Deviance and the Effectiveness of Legal Sanctions" (1967) Wisconsin namely, that "given the preponderance of evi dence, it seems safe to conclude that capital punishment does not act as an effective deterrent to murder. " Then we have the opinion of Fred J. Cook who says in his Article on "Capital Punishment: Does it Prevent Crime ?" that "abolition of the death penalty may actually reduce rather than encourage murder. " The European Committee on Crime Problems of the Council of Europe gave its opinion on the basis of data obtained from various countries who are Members of the Council of Europe that these data did not give any "positive indication regarding the value of capital punishment as a deterrent". I do not wish to burden this judgment with reference to all the studies which have been conducted at different times in different parts of the world but I may refer to a few of them, namely "Capital Punishment as a Deterrent to Crime in Georgia" by Frank Gibson, "The Death Penalty in Washington State" by Hayner and Crannor, Report of the Massachusett Special Commission Relative to the Abolition of the Death Penalty in Capital Cases, "The use of the Death Penalty Factual Statement" by Walter Reckless, "Why was Capital Punishment resorted in Delaware" by Glenn W. Samuelson, "A Study in Capital Punishment" by Leonard o. Savitz, "The Deterrent Influence of the Death Penalty" by Karl F. Schuessler, "Murder and the Death Penalty" by E.H. Sutherland, "Capital Punishment: A case for Abolition" by Tidmarsh, Halloran and Connolly, "Can the Death Penalty Prevent Crime" by George B. Vold and "Findings on Deterrence with Regard to Homicide" by Wilkens and Feyerherm. Those studies, one and all, have taken the view that "statistical findings and case studies converge to disprove the claim that the death penalty has any special deterrent value" and that death penalty "fails as a deterrent measure". Arthur Koestler also observes in his book on "Reflections on Hanging" that the figures obtained by him from various jurisdictions which have abolished capital punishment showed a decline in the homicide rate following abolition. The Report made by the Department of Economic and Social Affairs of the United Nations also reaches the conclusion that "the information assembled confirms the now generally held opinion that the abolition or . suspension of death penalty does not have the immediate effect of appreciably increasing the incidence of crime." These various studies to which I have referred clearly establish beyond doubt that death penalty does not have any special deterrent effect which life sentence does not posses and that in any event there is no evidence at all to suggest that death penalty has any such special deterrent effect. 322 There is unfortunately no empirical study made in India to assess, howsoever imperfectly, the deterrent effect of death penalty. But we have the statistics of the crime of murder in the former States of Travancore and Cochin during the period when the capital punishment was on the statute book as also during the period when it was kept in abeyance. These figures have been taken by me from the Introduction of Shri Mohan Kumar Mangalam to the book entitled "Can the State Kill its Citizen" brought out by Shri Subramaniam: Statistics of murder cases during the period when Capi tal Punishment was kept in abeyance. Year Travancore Cochin Total for Travan core & Cochin 1945 111 cases 22 133 1946 135 cases 13 148 1947 148 cases 26 174 1948 160 cases 43 203 1949 114 cases 26 140 1950 125 cases 39 164 Total 793 169 962 Statistics of murder cases during the period when capi tal punishment was in vogue. 1951 141 cases 47 188 1952 133 cases 32 165 1953 146 cases 54 200 1954 114 cases 57 171 1955 99 cases 30 129 1956 97 cases 17 114 Total 730 237 967 323 These figures show that the incidence of the crime murder did not A increase at all during the period of six years when the capital punishment was in abeyance. This is in line with the experience of ether countries where death penalty has been abolished. I must at this stage refer to the study carried out by Ehrlich on which the strongest reliance has been placed by Sarkaria, J. in the majority judgment. Ehrlich was the first to introduce regression analysis in an effort to isolate the death penalty effect, if it should exist, uncontaminated by other influences on the capital crirme rate. His paper was catapulated into the centre of legal attention even before it was published, when the Solicitor General of the United States cited it in laudatory terms in his brief in Fowler vs North Cerolina(l) and delivered copies of it to the court. The Solicitor General called it an "important empirical support for the a priori logical belief that use of the death penalty decrease the number of murders. " In view of the evidence available upto that time, Ehrlich 's claim was indeed formidable both in substance and precision. The conclusion he reached was: "an additional execution per year. may have resulted in . seven or eight fewer murders. " The basic data from which he derived this conclusion were the executions and the homicide rates as recorded in the United States during the years 1933 to 1969, the former generally decreasing, the latter, especially during the sixties, sharply increasing. Ehrlich considered simultaneously with the execution and homicide rates, other variables that could affect the capital crime rate and sought to isolate the effect of these variables through the process of regression analysis. It is not necessary for the purpose of the present judgment to explain this process of mathematical purification or the various technical refinements of this process, but it is sufficient to point out that the conclusion reached by Ehrlich was that death penalty had a greater deterrent effect than the fear of life imprisonment. Ehrlich 's study because it went against all the hitherto available evidence, received extra ordinary attention from the scholarly community. First, Peter Passell and John Taylor attempted to replicate Ehrlich 's findings and found that they stood scrutiny only under an unusually restrictive set of circumstances. They found, for example that the appearance of deterrence is produced only when 324 the regression equation is in logarathmic form and in the more conventional linear regression frame work, the deterrent effect disappeared. They also found that no such effect emerged when data for the years after 1962 were omitted from the analysis and only the years 1953 61 were considered. Kenneth Avio of the University of Victoria made an effort to replicate Ehrlich 's findings from Canadian experience but that effort also failed and the conclusion reached by the learned jurist was that "the evidence would appear to indicate that Canadian offenders over the period 1926 60 did not behave in a manner consistent with an effective deterrent effect of capital punishment. " William Bowers and Glenn Pierce also made an attempt to replicate Ehrlich 's results and in replicating Ehrlich 's work they confirmed the Passel Taylor findings that Ehrlich 's results were extremely sensitive as to whether the logarithmic specification was used and whether the data for the latter part of 1960 's were included. During 1975 the Yale Law Journal published a series of Articles reviewing the evidence on the deterrent effect of death penalty and in the course of an Article in this series, Ehrlich defended his work by addressing himself to some of the criticism raised against his study. Hans Zeisel, Professor Emeritus of Law and Sociology in the University of Chicago points out in his article on The deterrent effect of death penalty; Facts vs Faith that in this article contributed by him to the Yale Law Journal, Ehrlich did refute some criticisms but the crucial ones were not met. Ehrlich in this Article referred to a second study made by him, basing it this time on a comparison by States for the years 1940 and 1950. He claimed that this study bolstered his original thesis but conceded that his findings were "tentative and inconclusive". In the mean time Passell made a State by State comparison for the years 1950 and 1960 and as a result of his findings, concluded that "we know of no reasonable way of interpreting the cross sections (i.e. State by State) data that would lend support to the deterrence hypothesis." A particularly extensive review of Ehrlich 's time series analysis was made by a team led by Lawrence Klein, President of the American Economic Association. The authors found serious methodological problems with Ehrlich 's analysis. They raised questions about his failure to consider the feedback effect of crime on the economic variables in his model, although he did consider other feedback effects in his analysis. They found some of Ehrlich 's technical manipulations to be superfluous and tending to obscure the accuracy of his estimates. They, too, raised questions about 325 variables omitted from the analysis, and the effects of these omissions on the findings. Like Passell Taylor and Bowers Pierce, Klein and his collaborators replicated Ehrlich 's results, using Ehrlich 's own data which by that time he had made available. As in previous replications, Ehrlich 's results were found to be quite sensitive to the mathematical specification of the model and the inclusion of data at the recent end of the time series. By this time, Ehrlich 's model had been demonstrated to be peculiar enough. Klein went on to reveal further difficulties. One was that Ehrlich 's deterrence finding disappeared after the introduction of a variable rejecting the factors that caused other crimes to increase during the latter part of the period of analysis. The inclusion of such a variable would seem obligatory not only to substitute for the factors that had obviously been omitted but also to account for interactions between the crime rate and the demographic characteristics of the population. Klein also found Ehrlich 's results to be affected by an unusual construction of the execution rate variable, the central determinant of the analysis. Ehrlich constructed this variable by using three other variables that appeared elsewhere in his regression model: the estimated homicide arrest rate the estimated homicide conviction rate, and the estimated number of homicides. Klein showed that with this construction of the execution rate, a very small error in the estimates of any of these three variables produced unusually strong spurious appearances of a deterrent effect. He went on to show that the combined effect of such slight errors in all three variables was likely to be considerable, and that in view of all these considerations, Ehrlich 's estimates of the deterrent effect were so weak that they "could be regarded as evidence. (of) a counter deterrent effect of capital punishment. " In view of these serious problems with Ehrlich 's analysis, Klein concluded: "We see too many plausible explanations for his finding a deterrent effect other than the theory that capital punishment deters murder" and further observed: "Ehrlich 's results cannot be used at this time to pass judgment on the use of the death penalty." This is the analysis of the subsequent studies of Passell and Taylor, Bowers and Pierce and Klein and his colleagues made by Hans 326 Zeisel in his Article on "The deterrent effect of the Death Penalty: Facts vs Faith". These studies which were definitely more scientific and refined than Ehrlich 's demolish to a large extent the validity of the conclusion reached by Ehrlich and establish that death penalty does not possess an additional deterrent effect which life sentence does not. But, according to Hans Zeisel, the final blow to the work of Ehrlich came from a study of Brian Forst, one of Klein 's collaborators on the earlier study. Since it had been firmly established that the Ehrlich phenomenon, if it existed emerged from developments during the sixties, Forst concentrated on that decade. He found a rigorous way of investigating whether the ending of executions and the sharp increase in homicides during this period was casual or coincidental. The power of Forst 's study derives from his having analysed changes both over time and across jurisdictions. The aggregate United States time series data Ehrlich used were unable to capture important regional differences. Moreover, they did not vary as much as cross state observations, hence they did not provide as rich an opportunity to infer the effect of changes in executions on homicides. Forst 's analysis, according to Hans Zeisel, was superior to Ehrlich 's and it led to a conclusion that went beyond that of Klein. "The findings" observed Forst "give no support to the hypothesis that capital punishment deters homicide" and added: "our finding that capital punishment does not deter homicide is remarkably robust with respect to a wide range of alternative constructions. " It will thus be seen that The validity of Ehrlich 's study which has been relied upon very strongly by Sarkaria J. in the majority judgment is considerably eroded by the studies carried out by leading criminologists such as Passell and Taylor, Bowers and Pierce, Klein and his colleagues and Forst and with the greatest respect, I do not think that Sarkaria, J. speaking on behalf of the majority was right in placing reliance on that study. The validity, design and findings of that study have been thoroughly discredited by the subsequent studies made by these other econometricians and particularly by the very scientific and careful study carried out by Forst. I may point out that apart from Ehrlich 's study there is not one published econometric analysis which supports Ehrlich 's results. I may also at this stage refer once again to the opinion expressed ed by Professor Sellin. The learned Professor after a serious and thorough study of the entire subject in the United States on behalf 327 of the American Law Institute stated his conclusion in these terms: "Any one who carefully examines the above data is bound to arrive at the conclusion that the death penalty as we use it exercises no influence on the extent or fluctuating rate of capital crime. It has failed as a deterrent. (Emphasis supplied.) So also in another part of the world very close to our country, a Commission of Inquiry on capital punishment was appointed by late Prime Minister Bhandarnaike of Shri Lanka and it reported: "If the experience of the many countries which have suspended or abolished capital punishment is taken into account, there is in our view cogent evidence of the unlikelihood of this 'hidden protection '. It is, therefore, our view that the statistics of homicide in Ceylon when related to the social changes since the suspension of the death penalty in Ceylon and when related to the experience of other countries tend to disprove the assumption of the uniquely deterrent effect of the death penalty, and that in deciding on the question of reintroduction or abolition of the capital punishment reintroduction cannot be justified on the argument that it is a more effective deterrent to potential killers than the alternative or protracted imprisonment. " It is a strange irony of fate that Prime Minister Bhandarnaike who suspended the death penalty in Sri Lanka was himself murdered by a fanatic and in the panic that ensued death penalty was reintroduced in Sri Lanka. The evidence on whether the threat of death penalty has a deterrent effect beyond the threat of life sentence is therefore overwhelmingly on one side. Whatever be the measurement yardstick adopted and howsoever sharpened may be the analytical instruments they have not been able to discover any special deterrent effect. Even regression analysis, the most sophisticated of these instruments after careful application by the scholarly community, has failed to detect special deterrent effect in death penalty which is not to be found in life imprisonment. One answer which the protagonists of 328 capital punishment try to offer to combat the inference arising from these studies is that one cannot prove that capital punishment does not deter murder because people who are deterred by it do not report good news to their police departments. They argue that there are potential murderers in our midst who would be deterred from killing by the death penalty, but would not be deterred by life imprisonment and there is no possible way of knowing about them since these persons do not commit murder and hence are not identified. Or to use the words of Sarkaria, J. "Statistics of deterred potential murderers are difficult to unravel as they remain hidden in the innermost recesses of their mind. " But this argument is plainly a unsound and cannot be sustained. It is like saying, for example, that we have no way of knowing about traffic safety because motorists do not report when they are saved from accidents by traffic safety programmes or devices. That however cannot stop us from evaluating the effectiveness of those programmes and devices by studying their effect on the accident rates where they are used for a reasonable time. Why use a different standard for evaluating the death penalty, especially when we can measure its effectiveness by comparing homicide rates between countries with similar social and economic conditions in some of which capital punishment has been abolished and in others not or homicide rates in the same country where death penalty has been abolished or subsequently reintroduced. There is no doubt that if death penalty has a special deterrent effect not possessed by life imprisonment, the number of those deterred by capital punishment would appear statistically in the homicide rates of abolitionist jurisdictions but according to all the evidence gathered by different studies made by jurists and criminologists, this is just not to be found. The majority speaking through Sarkaria, J. has observed that "in most of the countries of the world including India, a very large segment of the population including noteable penologists, Judges, jurists, legislators and other enlightened people believe that death penalty for murder and certain other capital offences does serve as a deterrent and a greater deterrent than life imprisonment. " I do not think this statement represents the correct factual position. It is of course true that there are some penologists, judges, jurists, legislators and other people who believe that death penalty acts as a greater deterrent but it would not be correct to say that they form a large segment of the population. The enlightened opinion in the world, 329 as pointed out by me, is definitely veering round in favour of A abolition of death penalty. Moreover, it is not a rational conviction but merely an unreasoned belief which is entertained by some people including a few penologists, judges, jurists and legislators that death penalty has a uniquely deterrent effect. When you ask these persons as to what is the reason why they entertain this belief, they will not be able to give any convincing answer beyond stating that basically every human being dreads death and therefore death would naturally act as a greater deterrent than life imprisonment. That is the same argument advanced by Sir James Fitz James Stephen, the draftsman of the Indian Penal Code in support of the deterrent effect of capital punishment. That great Judge and author said in his Essay on Capital Punishment: "No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity of producing some results. No one goes to certain inevitable death except by compulsion. Put the matter the other way, was there ever yet a criminal who when sentenced to death and brought out to die would refuse the offer of a commutation of a sentence for a severest secondary punishment ? Surely not. Why is this ? It can only be because 'all that a man has will be given for his life '. In any secondary punishment, however terrible, there is hope, but death is death; its terrors cannot be described more forcibly. " The Law Commission in its thirty fifth report also relied largely on this argument for taking the view that "capital punishment does act as a deterrent. " It set out the main points that weighed with it in arriving at this conclusion and the first and foremost amongst them was that: "Basically every human being dreads death", suggesting that death penalty has therefore a greater deterrent effect than any other punishment. But this argument is not valid and a little scrutiny will reveal that it is wholly unfounded. In the first place, 330 even Sir James Fitz James Stephen concedes that the proposition that death penalty has a uniquely deterrent effect not possessed by any other punishment, is one which is difficult to prove, though according to him it is Self evident. Secondly, there is a great fallacy underlying the argument of Sir James Stephen and the Law Commission. This argument makes no distinction between a threat of certain and imminent punishment which faces the convicted murderer and the threat of a different problematic punishment which may or may not influence a potential murderer Murder may be unpremeditated under the stress of some sudden outburst of emotion or it may be premeditated after planning and deliberation. Where the murder is unpremeditated, as for example, where it is the outcome of a sudden argument or quarrel or provocation leading to uncontrollable anger or temporary imbalance of the mind and most murders fall within this category any thought of possibility of punishment is obliterated by deep emotional disturbance and the penalty of death can no more deter than any other penalty. Where murder is premeditated it may either be the result of lust, passion, jealousy hatred frenzy of frustration or it may be a cold calculated murder for monetary or other consideration. The former category of murder would conclude any possibility of deliberation or a weighing of consequences, the thought of the likelihood of execution after capture, trial and sentence would hardly enter the mind of the killer. So far as the latter category of murder is concerned, several considerations make it unlikely that the death penalty would play any significant part in his thought. Since both the penalties for murder, death as well as life sentence, are so severe as to destroy the future of any one subjected to them, the crime would not be committed by a rational man unless he thinks that there is little chance of detection. What would weigh with him in such a case is the uncertainty of detection and consequent punishment rather than the nature of punishment. It is not the harshness or severity of death penalty which acts as a deterrent. A life sentence of twenty years would act as an equally strong deterrent against crime as death penalty, provided the killer feels that the crime would not go unpunished. More than the severity of the sentence, it is the certainty of detection and punishment that acts as a deterrent. The Advisory Council on the Treatment of offenders appointed by the Government of Great Britain stated in its report in 1960 "We were impressed by the argument that the greatest deterrent to crime is not the fear of punishment but the 331 certainty Of detection." Professor Hart emphasized the same point, refuting the argument of Sir James Fitz James Stephen in these words: "This (Stephen 's) estimate of the paramount place in human motivation of the fear of death reads impressively but surely contains a suggestio falsi and once this is detected its cogency as an argument in favour of the death penalty for murder vanishes for there is really no parallel between the situation of a convicted murderer over the alternative of life imprisonment in the shadow of the gallows and the situation of the murderer contemplating his crime. The certainty of death is one thing, perhaps for normal people nothing can be compared with it. But the existence of the death penalty does not mean for the murderer certainty of death now. It means not very high probability of death in the future. And, futurity and uncertainty, the hope of an escape, rational or irrational, vastly diminishes the difference between death and imprisonment as , deterrent and may diminish to vanishing point. The way in which the convicted murderer may view the immediate prospect of the gallows after he has been caught, must be a poor guide to the effect of this prospect upon him when he is contemplating committing his crime. " It is also a circumstance of no less significance bearing on the question of detection effect of death penalty, that, even after detection and arrest, the likelihood of execution for the murderer is almost nil. In the first place, the machinery of investigation of offences being what it is and the criminal law of our country having a tilt in favour of the accused, the killer and look forward to a chance of acquittal at the trial. Secondly, even if the trial results in a conviction, it would not, in all probability, be followed by a sentence of . , death. Whatever may have been the position prior to the enactment of the Code of Criminal Procedure, 1973, it is now clear that under section 354 sub section (3), life sentence is the rule and it is only in exceptional cases for special reasons that death sentence may be awarded. The entire drift of the legislation is against infliction of death penalty and the courts are most reluctant to impose it save in the rarest of rare cases. It is interesting to note that in the last 2 years, almost every case where death penalty is confirmed by the High Court has come up before this Court by way of petition for 332 special leave, and, barring the case of Ranga and Billa, I do not think there is a single case in which death penalty has been affirmed by this Court. There have been numerous cases where even after special leave petitions against sentence of death were dismissed, review petitions have been entertained and death sentence commuted by this Court. Then there is also the clemency power of the President under Article 72 and of the Governor under Article 161 of the Constitution and in exercise of this power, death sentence has been commuted by the President or the Governor, as the case may be, in a number of cases. The chances of imposition of death sentence following upon a conviction for the offence of murder are therefore extremely slender. This is also evident from the figures supplied to a us by the Government of India for the years 1974 to 1978 pursuant to the inquiry made by us. During the course of the hearing, we called upon the Government of India to furnish us statistical information in regard to following three matters, namely, (i) the number of cases in which and the number of persons on whom death sentence was imposed and whose death sentence was confirmed by various High Courts in India; (ii) the number of cases in which death sentence was executed in the various States and the various Union Territories; and (iii) the number of cases in which death sentence was commuted by the President of India under Article 72 or by the Governors under Article 161 of the Constitution. The statistical information sought by us was supplied by the Government of India and our attention was also drawn to the figures showing the total number of offences of murder committed inter alia during the years 1974 77. These figures showed that on an average about 17,000 offences of murder were committed in India every year during the period 1974 to 1977, and if we calculate on the basis of this average, the total number of offences of murder during the period of five years from 1974 to 1978 would come to about 85,000. Now, according to the statistical information supplied by the Government of India, out of these approximately 85,000 case of murder, there were only 288 in which death sentence was imposed by the sessions court and confirmed by the High Courts and out of them, in 12 cases death sentence was commuted by the President and in 40 cases, by the Governors and death sentence was executed in only 29 cases. It will thus be seen that during the period of five years from 1974 to 1978, there was an infinitesingly small number of cases, only 29 out of an aggregate number of approximately 85,000 cases of murder, in which death sentence was executed. Of course, the figures supplied by the 333 Government of India did not include the figures from the States of A Bihar, Jammu and Kashmir, West Bengal and Delhi Administration but the figures from these three States and from the Union Territory of Delhi would not make any appreciable difference. It is obvious therefore that even after conviction in a trial, there is high degree of probability that death sentence may not be imposed by the sessions court and even If death sentence is imposed by the sessions court, it may not be confirmed by the High Court and even after confirmation by the High Court, it may not be affirmed by this Court and lastly, even if affirmed by this Court, it may be commuted by the President of India under Article 72 or by the Governor under Article 161 of the Constitution in exercise of the power of clemency. The possibility of execution pursuant to a sentence of death is therefore almost negligible, particularly after the enactment of section 354 sub section (3) of the Code of Criminal Procedure 1973 and it is difficult to see how in these circumstances death penalty can ever act as a deterrent. The knowledge that . death penalty is rarely imposed and almost certainly, it will not be imposed takes away whatever deterrent value death penalty might otherwise have. The expectation, bordering almost on certainty, that death sentence is, extremely unlikely to be imposed is a factor that would condition the behaviour of the offender and death penalty cannot in such a situation have any deterrent effect. The risk of death penalty being remote and improvable, it cannot operate as a greater deterrent than the threat of life imprisonment. Justice Brennan and Justice White have also expressed the same view in Furman vs Georgia (supra), namely, that, when infrequently and arbitrarily imposed, death penalty is not a greater deterrent to murder than is life imprisonment. The majority speaking through Sarkaria, J. has referred to a few decisions of this Court in which, according to majority Judges, the deterrent value of death penalty has been judicially recognised. But I do not think any reliance can be placed on the observations in these decisions in support of the view that death penalty has a uniquely deterrent effect. The learned Judges who made these observations did not have any socio legal data before them on the basis of which they could logically come to the conclusion that death penalty serves as a deterrent. They merely proceeded upon an impressionistic in view which is entertained by quite a few lawyers, judges and legislators without any scientific investigation or empiri 334 cal research to support it. It appears to have been assumed by these learned judges that death penalty has an additional deterrent effect which life sentence does not possess. In fact, the learned judges were not concerned in these decisions to enquire and determine whether death penalty has any special deterrent effect and therefore if they proceeded on any such assumption, it cannot be said that by doing so they judicially recognised the deterrent value of death penalty. It is true that in Jagmohan 's case (supra) Palekar J. speaking on behalf of the court did take the view that death penalty has a uniquely deterrent effect but I do Dot think that beyond a mere traditional belief the validity of which cannot be demonstrated either by logic or by reason, there is any cogent and valid argument put forward by the learned Judge in support of the view that death sentence has greater deterrent effect than life sentence. The majority judges have relied on some of the observations of Krishna Iyer, J. but it must not be forgotten that Krishna Iyer, J. has been one of the strongest opponents of death penalty and he has pleaded with passionate conviction for 'death sentence on death sentence '. In Dalbir Singh & Ors. vs State of Punjab (supra) he emphatically rejected the claim of deterrence in most unequivocal terms: ". the humanity of our Constitution historically viewed (does not) subscribe to the hysterical assumption or facile illusion that a crime free society will dawn if hangmen and firing squads were kept feverishly busy. " It would not be right to rely on stray or casual observations of Krishna Iyer, J. in support of the thesis that death penalty has a uniquely deterrent effect. It would be doing grave injustice to him and to the ideology for which he stands. In fact, the entire basis of the judgment of Krishna Iyer, J. in Rajendra Prasad 's is that death penalty has not deterrent value and that is only where the killer is found to be a social monster or a beast incapable of reformation that he can be liquidated out of existence. Chinnappa Reddy, J. has also in Bishnu Deo Shaw 's case (supra) taken the view that "there is no positive indication that the death penalty has been deterrent" or in other words, "the efficacy of the death penalty as a deterrent is unproven." Then reliance has been placed by Sarkaria, J. speaking on behalf of the majority on the observations of Stewart, J. in Furman vs Georgia (supra) where the learned Judge took the view that death penalty serves a deterrent as well as retributive purpose. In his view, certain criminal conduct is so atrocious that society 's interest in deterrence and retribution wholly outweighs any considerations 335 of reform or rehabilitation of the perpetrator and that, despite the on conclusive empirical evidence, only penalty of death will provide maximum deterrence. It has also been pointed out by Sarkaria, J. that in Gregg vs Georgia (supra) Stewart, J. reiterated the same view in regard to the deterrent and retributive effect of death penalty. But the view taken by Stewart, J. cannot be regarded as decisive of the present question as to the deterrent effect of death penalty. It is just one view like any other and its validity has to be tested on the touchstone of logic and reason. It cannot be accepted merely because it is the view of an eminent judge, I find that as against the view taken by him, there is a contrary view taken by at least two judges of the United States Supreme Court, namely. Brennan J. and Marshall J. who were convinced in Gregg vs Georgia (supra) that "capital punishment is not necessary as a deterrent to crime in our society. " It is natural differing judicial observations supporting one view or the other that these should be particularly on a sensitive issue like this, but what is necessary is to examine objectively and critically the logic and rationale behind these observations and to determine for ourselves which observations represent the correct view that should find acceptance with us. The majority Judges speaking through Sarkaria, J. have relied upon the observations of Stewart, J. as also on the observations made by various other Judges and authors for the purpose of concluding that when so many eminent persons have expressed the view that capital punishment is necessary for the protection of society, how can it be said that it is arbitrary and unreasonable and does not serve any rational penological purpose. It has been observed by Sarkaria, J: "It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners ' argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society. it is not possible to hold that the provision of death penalty as an alternative punishment for murder is unreasonable and not in the public interest. I find it difficult to accept this argument which proceeds upon the hypothesis that merely because some lawyers, judges and jurists are of the opinion that death penalty 336 sub serves a penological goal and is therefore in public interest, the court must shut its eyes in respectful deference to the views expressed by these scholars and refuse to examine whether their views are correct or not. It is difficult to understand how the court, when called upon to determine a vital issue of fact, can surrender its judgment to the views of a few lawyers, judges and jurists and hold that because such eminent persons have expressed these views, there must be some substance in what they say and the provision of death penalty as an alternative punishment for murder cannot therefore be regarded as arbitrary and unreasonable. It is to my mind inconceivable that a properly informed judiciary concerned to uphold Fundamental Rights should decline to come to its own determination of a factual dispute relevant to the issue whether death penalty serves a legitimate penological purpose and rest its decision only on the circumstance that there are sociologists, legislators, judges and jurists who firmly believe in the worth and necessity of capital punishment. The court must on the material before it find whether the views expressed by lawyers, judges, jurists and criminologists on one side or the other are well founded in logic and reason and accept those which appear to it to be correct and sound. The Court must always remember that it is charged by the Constitution to act as a sentinel on the qui vive guarding the fundamental rights guaranteed by the Constitution and it cannot shirk its responsibility by observing that since there are strong divergent views on the subject, the court need not express any categorical opinion one way or the other as to which of these two views is correct. Hence it is that, in the discharge of my constitutional duty of protecting and upholding the right to life which is perhaps the most basic of all human rights, I have examined the rival views and come to the p conclusion, for reasons which I have already discussed, that death penalty has no uniquely deterrent effect and does not serve a penological purpose. But even if we proceed on the hypothesis that the opinion in regard to the deterrent effect of death penalty is divided and it is not possible to say which opinion is right and which opinion is wrong, it is obvious that, in this state of affairs, it cannot be said to be proved that death penalty has an additional deterrent effect not possessed by life sentence and if that be so, the legislative provision for imposition of death penalty as alternative punishment for murder fail, since, as already pointed out above, the burden of showing that death penalty has a uniquely deterrent effect and therefore serves a penological goal is on the State and 337 if the State fails to discharge this burden which lies upon it, death penalty as alternative punishment for murder must be held to be arbitrary and unreasonable. The majority Judges have, in the Judgment of Sarkaria, J. placed considerable reliance on the 35th Report of the Law Commission and I must therefore briefly refer to that Report before I part with this point. The Law Commission set out in their Report the following main points that weighed with them in arriving at the conclusion that capital punishment does act as a deterrent: (a) Basically, every human being dreads death. (b) Death, as a penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree. (c) Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Governments, Judges, Members of Parliament and legislatures and Members of the Bar and police officers are definitely of the view that the deterrent object of capital punishment is achieved in a fair measure in India. (d) As to conduct of prisoners released from jail (after under going imprisonment for life), it would be difficult lo come to a conclusion, without studies extending over a long period of years. (e) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt. (f) Statistics of other countries are inconclusive on the subject. If they are not regarded as proving the deterrent effect, neither can they be regarded as conclusively disproving it. So far as the first argument set out in clause (a) is concerned, I have already shown that the circumstance that every human being dreads 338 death cannot lead to the inference that death penalty act as a deterrent. The statement made in clause (b) is perfectly correct and I agree with they Law Commission that death as a penalty stands on a totally different level from life imprisonment and the difference between them is one of quality and not merely of degree, but I fail to see how from this circumstance an inference can necessarily follow that death penalty has a uniquely deterrent effect. Clause (c) sets out that those who are specially qualified to express an opinion on the subject have in their replies to the questionnaire stated their definite view that the deterrent effect of capital punishment is achieved in a fair measure in India. It may be that a large number of persons who sent replies to the questionnaire issued by the Law Commission might have expressed the view that death penalty does act as a deterrent in our country, but mere expression of opinion in reply to the questionnaire, unsupported by reasons, cannot have any evidenciary value. There are quite a number of people in this country who still nurture the superstitions and irrational belief, ingrained in their minds by a century old practice of imposition of capital punishment and fostered, though not consciously, by the instinct for retribution, that death penalty alone can act as an effective deterrent against the crime of murder. I have already demonstrated how this belief entertained by lawyers, judges, legislators and police officers is a myth and it has no basis in logic or reason. In fact, the statistical research to which I have referred completely falsifies this belief. Then, there are the arguments in clauses (d) and (e) but these arguments even according to the Law Commission itself are inconclusive and it is difficult to see how they can be relied upon to support the thesis that capital punishment acts as a deterrent. The Law Commission states in clause (f) that statistics of other countries are inconclusive on the subject. I do not agree. I have already dealt with this argument and shown that the statistical studies carried out by various jurists and criminologists clearly disclose That there is no evidence at all to suggest that death penalty acts as a deterrent and it must therefore be held on the basis of the available material that death penalty does not act as a deterrent. But even if we accept the proposition that the statistical studies are inconclusive and they cannot be regarded as proving that death penalty has no deterrent effect, it is clear that at the same time they also do not establish that death penalty has a uniquely deterrent effect and in this situation, the burden of establishing that death penalty has an additional deterrent effect which life sentence does not have and therefore serves a penological purpose 339 being on the State, it must held that the State has failed to discharge the burden which rests upon it and death penalty must therefore be held to be arbitrary and unreasonable. There was also one other argument put forward by the Law Commission in its 35th Report and that argument was that having regard to the conditions in India to the variety of social up bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount Deed to maintain law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. This argument does not commend itself to me as it is based more on fear psychosis than on reason. It is difficult to see how any of the factors referred to by the Law Commission, barring the factor relating to the need to maintain law and order, can have any relevance to the question of deterrent effect of capital punishment. I cannot subscribe to the opinion that, because the social upbringing of the people varies from place to place or from class to class or there are demographic diversities and variations, they tend to increase the incidence of homicide and even if they do, I fail to see how death penalty can counter act the effect of these factors. It is true that the level of education in our country is low, because our developmental process started only after we became politically free, but it would be grossly unjust to say that uneducated people are more prone to crime than the educated ones. I also cannot agree that the level of morality which prevails amongst our people is low. I firmly hold the view that the large bulk of the people in our country, barring only a few who occupy positions of political, administrative or economic power, are actuated by a high sense of moral and ethical values. In fact, if we compare the rate of homicide in India with that in the United States, where there is greater homogeneity in population and the level of education is fairly high, we find that India compares very favourably with the United States. The rate of homicide for the year 1952 was 4.7 in the United States as against the rate of only 2.9 in India per 1,00,000 population and the figures for the year 1960 show that the rate of homicide in the United States was 5.1 as against the rate of only 2.5 in India per 1,00,000 population. The comparative figures for the year 1967 also confirm that the rate of homicide per 1,00,000 population in the United States was definitely higher than that in India because in the United States it was 6.1 340 while in India it was only 2.6. It is therefore obvious that, despite the existence of the factors referred to by the Law Commission, the conditions in India, in so far as the rate of homicide is concerned, are definitely better than in the United States and I do not see how these factors can possibly justify an apprehension that it may be risky to abolish capital punishment. There is in fact statistical evidence to show that the attenuation of the area in which death penalty may be imposed and the remoteness and infrequency of abolition of death penalty have not resulted in increase in the rate of homicide. The figures which were placed before us on behalf of the Union clearly show that there was no increase in the rate of homicide even though death sentence was made awardable only in exceptional cases under section 354 sub section (3) of the new Code of Criminal Procedure 1973. I must therefore express my respectful dissent from the view taken by the Law Commission that the experiment of abolition of capital punishment, would involve a certain element of risk to the law and order situation. It will thus be seen that death penalty as provided under section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure, 1973 does not subserve any legitimate end of punishment, since by killing the murderer it totally rejects the reformative purpose and it has no additional deterrent effect which life sentence does not possess and it is therefore not justified by the deterrence theory of punishment. Though retribution or denunciation is regarded by some as a proper end of punishment. I do not think, for reasons I have already discussed, that it can have any legitimate place in an enlightened philosophy of punishment. It must therefore be held that death penalty has no rational nexus with any legitimate penological goal or any rational penological purpose and it is arbitrary and irrational and hence violative of Articles 14 and 21 of the Constitution. I must now turn to consider the attack against the constitutional validity of death penalty provided under section 302 of the Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure, 1973 on the ground that these sections confer an unguided and standardless discretion on the court whether to liquidate an accused out of existence or to let him continue to live and the vesting of such discretion in the court renders the death penalty arbitrary and freakish. This ground of challenge is in my opinion well founded and it furnishes one additional reason 341 why the death penalty must be struck down as violative of Articles A 14 and 21. It is obvious on a plain reading of section 302 of the Indian Penal Code which provides death penalty as alternative punishment for murder that it leaves it entirely to the discretion of Court whether to impose death sentence or to award only life imprisonment to an accused convicted of the offence of murder. This section does not lay down any standards or principles to guide the discretion of the Court in the matter of imposition of death penalty. The critical choice between physical liquidation and life long incarceration is left to the discretion of the court and no legislative light is shed as to how this deadly discretion is to be exercised. The court is left free to navigate in an uncharted sea without any com pass or directional guidance. The respondents sought to find some guidance in section 354 sub section (3) of the Code of Criminal Procedure 1973 but I fail to see how that section can be of any help at all in providing guidance in the exercise of discretion. On the contrary it makes the exercise of discretion more difficult and uncertain. Section 354 sub section (3) provides that in case of offence of murder, life sentence shall be the rule and it is only in exceptional cases for special reasons that death penalty may be awarded. But what are the special reasons for which the court may award death penalty is a matter on which section 354 sub section (3) is silent nor is any guidance in that behalf provided by any other provision of law. It is left to the Judge to grope in the dark for himself and in the exercise of his unguided and unfettered discretion decide what reasons may be considered as 'special reasons ' justifying award of death penalty and whether in a given case any such special reasons exist which should persuade the court to depart from the normal rule and inflict death penalty on the accused. There being no legislative policy or principle to guide the court in exercising its discretion in this delicate and sensitive area of life and death, the exercise of discretion of the Court is bound to vary from judge to judge. What may appear as special reasons to one judge may not so appear to another and the decision in a given case whether to impose the death sentence or to let off the offender only with life imprisonment would, to a large extent, depend upon who is the judge called upon to make the decision. The reason for this uncertainty in the sentencing process is two fold. Firstly, the nature of the sentencing process is such that it involves a highly delicate task calling for skills and talents very much different from those ordinarily expected of lawyers. This was pointed out clearly 342 and emphatically by Mr. Justice Frankfurter in the course of the evidence he gave before the Royal Commission on Capital Punishment: "I myself think that the bench we lawyers who be come Judges are not very competent, are not qualified by experience, to impose sentence where any discretion is to be exercised. I do not think it is in the domain of the training of lawyers to know what to do with a fellow after you find out he is a thief. I do not think legal training has given you any special competence. I, myself, hope that one of these days, and before long, we will divide the functions of criminal justice. I think the lawyers are people who are competent to ascertain whether or not a crime has been committed. The whole scheme of common law judicial machinery the rule of evidence, the ascertainment of what is relevant and what is irrelevant and what is fair, the whole question of whether you can introduce prior crimes in order to prove intent I think lawyers are peculiarly fitted for that task. But all the questions that follow upon ascertainment of guilt, I think require very different and much more diversified talents than the lawyers and judges are normally likely to possess. " Even if considerations relevant to capital sentencing were provided by the legislature, it would be a difficult exercise for the judges to decide whether to impose the death penalty or to award the life sentence. But without any such guidelines given By the legislature, the task of the judges becomes much more arbitrary and the sentencing decision is bound to vary with each judge. Secondly, when unguided discretion is conferred upon the Court to choose between life and death, by providing a totally vague and indefinite criterion of 'special reasons ' without laying down any principles or guidelines for determining what should be considered To be 'special reasons ', the choice is bound to be influenced by the subjective philosophy of the judge called upon to pass the sentence and on his value system and social philosophy will depend whether the accused shall live or die. No doubt the judge will have to give 'special reasons ' if he opts in favour of inflicting the death penalty, H but that does not eliminate arbitrariness and caprice, firstly because there being no guidelines provided by the legislature, the reasons 343 which may appeal to one judge as 'special reasons ' may not appeal to another, and secondly, because reasons can always be found for a conclusion that the judge instinctively wishes to reach and the judge can bonafide and conscientiously find such reason to be 'special reasons '. It is now recognised on all hands that judicial conscience is not a fixed conscience; it varies from judge to judge depen ding upon his attitudes and approaches, his predilections and prejudices, his habits of mind and thought and in short all that goes with the expression "social philosophy". We lawyers and judges like to cling to the myth that every decision which we make in the exercise of our judicial discretion is guided exclusively by legal principles and we refuse to admit the subjective element in judicial decision making. But that myth now stands exploded and it is acknowledged by jurists that the social philosophy of the judge plays a not inconsiderable part in moulding his judicial decision and particularly the exercise of judicial discretion. There is nothing like complete objectivity in the decision making process and especially so, when this process involves making of decision in the exercise of judicial discretion. Every judgment necessarily bears the impact of the attitude and approach of the judge and his social value system. It would be pertinent here to quote Justice Cardozo 's analysis of the mind of a Judge in his famous lectures on "Nature of Judicial Process": "We are reminded by William James in a telling page of his lectures on Pragmatism that every one of us has in truth an underlying philosophy of life, even those of us to whom the names and the notions of philosophy are unknown or anathema. There is in each of us a stream of y tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and ' t action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of ' social needs, a sense in Jame 's phrase of 'the total push and pressure of the cosmos, ' which when reasons are nicely balanced, must determine where choice shall fall. In this mental background every problem finds its setting. We l may try to see things as objectively as we please. None 344 theless, we can never see them with any eyes except our own. " It may be noted that the human mind, even at infancy, is no blank sheet of paper. We are born with predisposition and the process of education, formal and informal, and, our own subjective experiences create attitudes which effect us in judging situations and coming to decisions. Jerome Frank says in his book; "Law and the Modern Mind", in an observation with which I find myself in entire agreement: "Without acquired 'slants ' preconceptions, life could not go on. Every habit constitutes a pre judgment; were those pre judgments which we call habits absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem, he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. An 'open mind ' in the sense of a mind containing no pre conceptions whatever, would be a mind incapable of learning anything, would be that of an utterly emotion less human being. " It must be remembered that "a Judge does not shed the attributes of common humanity when be assumes the ermine." The ordinary human mind is a mass of pre conceptions inherited and acquired, often unrecognised by their possessor. "Few minds are as neutral as a sheet of plain glass and indeed a mind of that quality may actually fail in judicial efficiency, for the warmer tints of imagination and sympathy are needed to temper the cold light of reason, if human justice is to be done. " It is, therefore, obvious that when a Judge is called upon to exercise his discretion as to whether the accused shall be killed or shall be permitted to live, his conclusion would depend to a large extent on his approach and attitude, his predilections and pre conceptions, his value system and social philosophy and his response to the evolving norms of decency and newly developing concepts and ideas in penological jurisprudence. One Judge may have faith in the Upanishad doctrine that every human being is an embodiment of the Divine and he may believe with Mahatma Gandhi that every offender can be reclaimed 345 and transformed by love and it is immoral and unethical to kill him, while another Judge may believe that it is necessary for social defence that the offender should be put out of way and that no mercy should be shown to him who did not show mercy to another. One Judge may feel that the Naxalites, though guilty of murders, . are dedicated souls totally different from ordinary criminals as they are motivated not by any self interest but by a burning desire to bring about a revolution by eliminating vested interests and should not therefore be put out of corporeal existence while another Judge may take the view that the Naxalities being guilty of cold premeditated murders are a menace to the society and to innocent men and women and therefore deserve to be liquidated. The views of Judges as to what may be regarded as 'special reasons ' are bound to differ from Judge to Judge depending upon his value system and social philosophy with the result that whether a person shall live or die depends very much upon the composition of the bench. which tries his case and this renders the imposition of death penalty arbitrary and capricious. Now this conclusion reached by me is not based merely on theoretical or a priori considerations. On an analysis of decisions given over a period of years we find that in fact there is no uniform pattern of judicial behaviour in the imposition of death penalty and the judicial practice does not disclose any coherent guidelines for ' the award of capital punishment. The Judges have been awarding death penalty or refusing to award it according to their own scale of values and social philosophy and it is not possible to discern any consistent approach to the problem in the judicial decisions. It is p apparent from a study of the judicial decisions that some Judges are readily and regularly inclined to sustain death sentences, other are . similarly disinclined and the remaining waver from case to case. Even in the Supreme Court there are divergent attitudes and opinions in regard to the imposition of capital punishment. If a case comes before one Bench consisting of Judges who believe in the social efficacy of capital punishment, the death sentence would in all probability be confirmed but if the same case comes before another Bench consisting of Judges who are morally and ethically against the death penalty, the death sentence would most likely be commuted to life imprisonment. The former would find and I say this not in any derogatory or disparaging sense, but as a consequence of psychological and attitudinal factors operating on the 346 minds of the Judges constituting the Bench 'special reasons ' in the case to justify award of death penalty while the latter would reject any such reasons as special reasons. It is also quite possible that one Bench may, having regard to its perceptions, think that there are special reasons in the case for which death penalty should be awarded while another Bench may bonafide and conscientiously take a different view and hold that there are no special reasons and that only life sentence should be imposed and it may not be possible to assert objectively and logically as to who is right and who is wrong, because the exercise of discretion in a case of this kind, where no broad standards or guidelines are supplied by the legislature, is bound to be influenced by the subjective attitude and approach of the Judges constituting the Bench, their value system, individual tone of their mind, the colour of their experience and the character and variety of their interests and their predispositions. This arbitrariness in the imposition of death penalty is considerably accentuated by the fragmented bench structure of our Courts where benches are inevitably formed with different permutations and combinations from time to time and cases relating to the offence of murder come up for hearing sometimes before one Bench, sometimes before another sometimes before a third and so on. Prof. Blackshield has in his Article on 'Capital Punishment in India ' published in Volume 21 of the Journal of the Indian Law Institute pointed out how the practice of bench formation contributes to arbitrariness in the imposition of death penalty. It is well known that so far as the Supreme Court is concerned, while the number of Judges has increased over the years, the number of Judges on Benches which hear capital punishment cases has actually decreased. Most cases are now heard by two judge Benches. Prof. Blackshield has abstracted 70 cases in which the Supreme Court had to choose between life and death while sentencing an accused for the offence of murder and analysing these 70 cases he has pointed out that during the period 28th April 1972 to 8th March 1976 only eleven Judges of the Supreme Court participated in 10% or more of the cases. He has listed these eleven Judges in an ascending order of leniency based on the proportion for each Judge of plus votes (i.e. votes for the death sentence) to total votes and pointed out that these statistics show how the judicial response to the question of life and death varies for judge to judge. " It is significant to note that out of 70 cases analysed by Prof. Blackshield, 37 related to the period subsequent to the coming into force of section 354 sub section (3) of the Code of Criminal Procedure 1973. If a similar 347 exercise is performed with reference to cases decided by the Supreme A Court after 8th March 1976, that being the date upto which the survey carried out by Prof. Blackshield was limited, the analysis will x reveal the same pattern of incoherence and arbitrariness, the decision to kill or not to kill being guided to a large extent by the com position of the Bench. Take for example Rajendra Prasad 's case (supra) decided on 9th February 1979. In this case, the death sentence imposed on Rajendra Prasad was commuted to life imprisonment by a majority consisting of Krishna Iyer, J. and Desai, J.A.P. Sen, J. dissented and was of the view that the death sentence should be confirmed. Similarly in one of the cases before us, namely, Bachan Singh vs State of Punjab,(l) when it was first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in . Rajendra Prasad 's case was wrong and that is why 'he referred that case to the Constitution Bench. So also in Dalbir Singh vs State of Punjab (supra), the majority consisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir Singh should be commuted to life imprisonment while A.P. Sen, J. struck to the original view taken by him in Rajendra Prasad 's case and was inclined to confirm the death sentence. It will thus be seen that the exercise of discretion whether to inflict death penalty or not depends to a considerable extent on the value system and social philosophy of the Judges constituting the Bench. The most striking example of freakishness in imposition of death penalty is provided by a recent case which involved three accused, namely, Jeeta Singh, Kashmira Singh and Harbans Singh. These three persons were sentenced to death by the Allahabad High Court by a judgment and order dated 20th October 1975 for playing an equal part in jointly murdering a family of four persons. Each of these three persons preferred a separate petition in the Supreme Court for special leave to appeal against the common judgment sentencing them all to death penalty. The special leave petition of Jeeta Singh came up for hearing before a bench consisting of Chandrachud, J. (as he then was) Krishna Iyer, J. and N.L. Untwalia, J. and it was dismissed on 15th April 1976. Then came the special leave petition preferred by Kashmira Singh from jail and this petition was placed for hearing before another bench consisting of Fazal Ali, J. and myself. We granted leave to Kashmira Singh limited to 348 the question of sentence and by an order dated 10th April 1977 we allowed his appeal and commuted his sentence of death into one of imprisonment for life. The result was that while Kashmira Singh 's death sentence was commuted to life imprisonment by one Bench, the death sentence imposed on Jeeta Singh was confirmed by another bench and he was executed on 6th October 1981, though both had played equal part in the murder of the family and there was nothing to distinguish the case of one from that of the other. The special leave petition of Harbans Singh then came up for hearing and this time, it was still another bench which heard his special leave petition. The Bench consisted of Sarkaria and Singhal, JJ. and they rejected the special leave petition of Harbans Singh on 1 6th October, 1978. Harbans Singh applied for review of this decision, but the review petition was dismissed by Sarkaria, J. and A.P. Sen, J. On 9th May 1980. It appears that though the registry of this court had mentioned in its office report that Kashmira Singh 's death sentence was already commuted, that fact was not brought to the notice of the court specifically when the special leave petition of Harbans Singh and his review petition were dismissed. Now since his special leave petition as also his review petition were dismissed by this Court, Harbans Singh would have been executed on 6th October 1981 along with Jeeta Singh, but fortunately for him he filed a writ petition in this Court and on that writ petition, the court passed an order staying the execution of his death sentence. When this writ petition came up for hearing before a still another bench consisting of Chandrachud, C.J., D.A. Desai and AN. Sen. JJ. , it was pointed out to the court that the death sentence imposed on Kashmira Singh had been commuted by a bench consisting of Fazal Ali, J. and myself and when this fact was pointed out, the Bench directed that the case be sent back to the President for reconsideration of the clemency petition filed by Harbans Singh. This is a classic case which illustrates the judicial vagaries in the imposition Of death penalty and demonstrates vividly, in all its cruel and stark reality, how the infliction of death penalty is influenced by the composition of the bench, even in cases governed by section 354 sub section (3) of the Code of Criminal Procedure 1973. The question may well be asked by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time ? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21 ? 349 If we study the judicial decisions given by the courts over a number of years, we find Judges resorting to a wide variety of factors in justification of confirmation or commutation of death sentence and these factors when analysed fail to reveal any coherent pattern. This is the inevitable consequence of the failure of the legislature to supply broad standards or guidelines which would structure and channelise the discretion of the court in the matter of imposition of death penalty. Of course, I may make it clear that when I say this I do not wish to suggest that if broad standards or guidelines are supplied by the legislature, they would necessarily cure death penalty of the vice of arbitrariness or freakishness. Mr. Justice Harlan pointed out in Mc Gautha vs California(l) the difficulty of formulating standards or guidelines for channelising or regulating the discretion of the court in these words ": "Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." But whether adequate standards or guidelines can be formulated or not which would cure the aspects of arbitrariness and capriciousness, the fact remains that no such standards or guidelines are provided by the legislature in the present case, with the result that the court has unguided and untrammelled discretion in choosing between death and life imprisonment as penalty for the crime of murder and this has led to considerable arbitrariness and uncertainty. This is evident from a study of the decided cases which clearly shows that the reasons for confirmation or commutation of death sentence relied upon by the court in different cases defy coherent analysis. Dr. Raizada has, in his monumental doctoral study entitled "Trends in sentencing; a study of the important penal statutes and judicial pronouncements of the High Courts and the Supreme Court" identified a large number of decisions of this Court where inconsis 350 tent awards of punishment have been made and the judges have frequently articulated their inability to prescribe or follow consistently any standards or guidelines. He has classified cases upto 1976 in terms of the reasons given by the court for awarding or refusing to award death sentence. The analysis made by him is quite rewarding and illuminating. (i) one of the reasons given by the courts in a number of cases for imposing death penalty is that the murder is "brutal", "cold blooded", "deliberate", "unprovoked", "fatal", "gruesome", "wicked", "callous", "heinous" or "violent". But the use of these labels for describing the nature of the murder is indicative only of the degree of the court 's aversion for the nature or the manner of commission of the crime and it is possible that different judges may react differently to these situations and moreover, some judges may not regard this factor as having any relevance to the imposition of death penalty and may therefore decline to accord to it the status of "special reasons". In fact, there are numerous cases, where despite the murder being one falling within these categories, the court has refused to award death sentence. For example, Janardharan whose appeal was decided along with the appeal of Rajendra Prasad had killed his innocent wife and children in the secrecy of night and the murder was deliberate and cold blooded, attended as it was with considerable brutality, and yet the majority consisting of Krishna Iyer, J. and D.A. Desai, J. commuted his death sentence to life imprisonment. So also Dube had committed triple murder and still his death sentence was commuted to life imprisonment by the same two learned Judges, namely, Krishna Iyer, J. and D.A. Desai, J. It is therefore clear that the epithets mentioned above do not indicate any clearcut well defined categories but are merely expressive of the intensity of judicial reaction to the murder, which may not be uniform in all Judges and even if the murder falls within one of these categories, that factor has been regarded by some judges as relevant and by others, as irrelevant and it has not been uniformly applied as a salient factor in determining whether or not death penalty should be imposed. 351 (ii) There have been cases where death sentence has been A . awarded on the basis of constructive or joint liability arising under sections 34 and 149. Vide: Babu vs State of U.P.,(1) Mukhtiar Singh vs State of Punjab,(2) Masalt vs State of U.P.,(3) Gurcharan Singh vs State of Punjab.(4) But, there are equally a large number of cases whether death sentence has not been awarded because the criminal liability of the accused was only . under section 34 or Section 149. There are no establi shed criteria for awarding or refusing to award death sentence to an accused who himself did not give the fatal blow but was involved in the commission of murder along with other assailants under section 34 or section 149. (iii)The position as regards mitigating factors also shows the same incoherence. One mitigating factor which , has often been relied upon for the purpose of com muting the death sentence to life imprisonment is the youth of the offender. But this too has been quite arbitrarily applied by the Supreme Court. There are . cases such as State of U.P. vs Suman Das,(5) Raghubir Singh vs Sate of Haryana(6) and Gurudas Singh vs State of Rajasthan(7) where the Supreme Court took into account the young age of the appellant and refused to award death sentence to him. Equally there are cases such as Bhagwan Swarup vs State of U.P.( ') and Raghomani vs State of U.P.(9) where the Supreme Court took the view that youth is no ground for extenuation of sentence. Moreover there is also divergence of opinion as to what should be the age at which an offender may be regarded as a young man deserving i of commutation. The result is that as pointed out 352 by Dr. Raizada, in some situations young offenders who have committed multiple murders get reduction in life sentence whereas in others, "where neither the loss of as many human lives nor of higher valued properly" is involved, the accused are awarded death sentence. (iv) one other mitigating factor which is often taken into account is delay in final sentencing. This factor of delay after sentence received great emphasis in Ediga Annamma vs State of Andhra Pradesh,(1) Chawla vs State of Haryana,(2) Raghubir Singh vs State of Haryana (supra) Bhur Singh vs State of Punjab,(3) State of Punjab v Hari Singh(4) and Gurudas Singh vs State of Rajasthan(5) and in these cases delay was taken into account for the purpose of awarding the lesser punishment of life imprisonment. In fact, in Raghubir Singh vs State of Haryana (supra) the fact that for 20 months the spectre of death penalty must have been tormenting his soul was held sufficient to entitle the accused to reduction in sentence. But equally there are a large number of cases where death sentences have been confirmed, even when two or more years were taken in finally disposing of the appeal; Vide: Rishdeo vs State of U.P.,(6) Bharmal Mapa vs State of Bombay(7) and other cases given by Dr. Raizada in foot note 186 to chapter III. These decided cases show that there is no way of predicting. the exact period of prolonged proceeding which may favour an accused. Whether any im portance should be given to the factor of delay and if so to what extent are matters entirely within the dis cretion of the court and it is not possible to assert with any definitiveness that a particular period of delay after sentencing will earn for the accused immunity 353 from death penalty. It follows as a necessary corrolary from these vagaries in sentencing arising from the factor of delay, that the imposition of capital punishment becomes more or less a kind of cruel judicial lottery. If the case of the accused is handled expeditiously by the prosecution, defence lawyer, sessions court, High Court and the Supreme Court, then this mitigating factor of delay is not available to him for reduction to life sentence. If, on the other hand, there has been lack of despatch, engineered or natural, then the accused may escape the gallows, subject of course to the judicial vagaries arising from other causes. In other words, the more efficient the proceeding, the more certain the death sentence and vice versa. (v) The embroilment of the accused in an immoral relationship has been condoned and in effect, treated as an extenuating factor in Raghubir Singh vs State of Haryana (supra) and Basant Laxman More vs State of Maharashtra(l) while in Lajar Masih vs State of U.P.,(2) it has been condemed and in effect treated as an aggravating factor. There is thus no uniformity l of approach even so far as this factor is concerned. All these facors singly and cumulatively indicate not merely that there is an enormous potential of arbitrary award of . death penalty by the High Courts and the Supreme Court but that, .; in fact, death sentences have been awarded arbitrarily and freakishly. Vide: Dr. Upendra Baxi 's note on "Arbitrariness of Judicial Imposition of Capital Punishment. Professor Blackshield has also in his article on "Capital Punishment in India" commented on the arbitrary and capricious nature of imposition of death penalty and demonstrated forcibly and almost conclusively, that arbitrariness and uneven incidence are inherent and inevitable in a system of capital punishment. He has taken the decision of this Court in Ediga Anamma vs State of Andhra Pradesh (supra) as the dividing line and examined the judicial decisions given by this Court subsequent to the decision in Ediga 354 Anamma 's case, where this Court had to choose between life and death under section 302 of the Indian Renal Code. The cases sub sequent to the decision in Ediga Anamma 's case have been chosen for study and analysis presumbly because that was the decision in which the court for the first time set down some working formula whereby a synthesis could be reached between death sentence and life imprisonment and Krishna Iyer, J. speaking on behalf of the court, formulated various grounds which in his opinion, might warrant death sentence as an exceptional measure. But, despite this attempt made in Ediga Anamma 's case to evolve some broad standards or guidelines for imposition of death penalty, the subsequent decisions, as pointed out by Professor Blackshield, display the same pattern of confusion, contradictions and aberrations as the decisions before that case. The learned author has taken 45 reported decisions given after Ediga Anamma 's case and shown that it is not possible to discern any coherent pattern in these decisions and they reveal con tradictions and inconsistencies in the matter of imposition of death penalty. This is how the learned author has summed up his conclusion after an examination of these judicial decisions: "But where life and death are at stake, inconsistencies which are understandable may not be acceptable. The hard evidence of the accompanying "kit of cases" compels the conclusion that, at least in contemporary India, Mr. Justice Douglas ' argument in Furman vs Georgia is correct: that arbitrariness and uneven incidence are inherent and inevitable in a system of capital punishment and that therefore in Indian constitutional terms, and in spite of Jagmohan Singh the retention of such a system necessarily violates Article 14 's guarantee of "equality before the law". It is clear from a study of the decisions of the higher courts on the life or death choice that judicial adhocism or judicial impressionism dominates the sentencing exercise and the infliction of death penalty suffers from the vice of arbitrariness and caprice. I may point out that Krishna Iyer, J. has also come to the the same conclusion on the basis of his long experience of the sentencing process. He has analysed the different factors which have prevailed with the Judges from time to time in awarding or refusing 355 to award death penalty and shown how some factors have weighed A with one Judge, some with another, some with a third and so on, resulting in chaotic arbitrariness in the imposition of death penalty. I can do no better than quote his own words in Rajendra Prasad 's case (supra): "Law must be honest to itself. Is it not true that some judges count the number of fatal wounds, some the nature of the weapon used, others count the corpses or the degree of horror and yet others look into the age or sex of the offendar and even the lapse of time between the trial Court 's award of death sentence and the final disposal. Of the appeal ? With some judges, motives, provocations, primary or constructive guilt, mental disturbance and old feuds, the savagery of the murderous moment or the plan which has preceded the killing; the social milieu, the sublimated class complex and other odd factors enter the sentencing calculas. Stranger still, a good sentence of death by the trial Court is sometimes upset by the Supreme Court I; because of law 's delays. Courts have been directed execution of murderers who are mental cases, who do not fall within the McNaghten rules, because of the insane fury of the slaughter. A big margin of subjectivism, a preference for old English precedents, theories of modern penology, behavioral emphasis or social antecedents, judicial hubris or human rights perspectives, criminological literacy . or fanatical reverence for outworn social philosophers burried in the debris of time except as part of history this h plurality of forces plays a part in swinging the pendulum of sentencing justice erratically. " This passage from the judgment of the learned Judge exposes, in language remarkable for its succinctness as well as eloquence, the vagarious nature of the imposition of death penalty and highlights a few of the causes responsible for its erratic operation. I find myself totally in agreement with these observations of the learned Judge. But when it was contended that sentencing discretion is inherent in our legal system, and, in fact, it is desirable, because no two cases or criminals are identical and if no discretion is left to the 356 court and sentencing is to be done according to a rigid predetermined formula leaving no room for judicial discretion, the sentencing process would cease to be judicial and would de generate into a bed of procrustean cruelty. The argument was that having regard to the nature of the sentencing process, it is impossible to lay down any standards or guidelines which will provide for the endless and often unforeseeable variations in fact situations and sentencing discretion his necessarily to be left to the court and the vesting of such discretion in the court, even if no standards or guidelines are provided by the legislature for structuring or challenging such discretion, cannot be regarded as arbitrary or unreasonable. This argument, plausible though it may seem, is in my opinion not well a founded and must be rejected. It is true that criminal cases do not fall into set behaviouristic patterns and it is almost impossible to find two cases which are exactly identical. There are, as pointed out by Sarkaria, J. in the majority judgment, "countless permutations and combinations which are beyond the anticipatory capacity of the human calculus". Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts. That is why, in the interest of individualised justice, it is necessary to vest sentencing discretion in the court so that appropriate sentence may be imposed by the court in the exercise of its judicial discretion, having regard to the peculiar facts and circumstances of a given case, or else the. sentencing process would cease to be just and rational and justice would be sacrificed at the altar of blind uniformity. But at the same time, the sentencing discretion conferred upon the court cannot be altogether uncontrolled or unfettered. The strategem which is therefore followed by the legislatures while creating and defining offences is to prescribe the maximum punishment and in some cases, even the minimum and leave it to the discretion of the court to decide upon the actual term of imprisonment. This cannot be regarded as arbitrary or unreasonable since the discretion that is left to the court is to choose an appropriate term of punishment between the limits laid down by the legislature, having regard to the distinctive features and the peculiar facts and circumstances of the case. The conferment of such sentencing discretion is plainly and indubitably essential for rendering individualised justice. But where the discretion granted to the court is to choose between life and death without any standards or guidelines provided by the legislature, the death penalty does become arbitrary and unreasonable. The death penalty is 357 qualitatively different from a sentence of imprisonment. Whether Ia sentence of imprisonment is for two years or five years or for life, it is qualitatively the same, namely, a sentence of imprisonment, but the death penalty is totally different. It is irreversible; it is beyond recall or reparation; it extinguishes life. It is the choice between life and death which the court is required to make and this is left to its sole discretion unaided and unguided by any legislative yardstick to determine the choice. The only yardstick which may be said to have been provided by the legislature is that life sentence shall be the rule and it is only in exceptional cases for special reasons that death penalty may be awarded. but it is nowhere indicated by legislature as to what should be regarded as f 'special reasons ' justifying imposition of death penalty. The awesome and fearful discretion whether to kill a man or to let him live is vested in the court and the court is called upon to exercise . this discretion guided only by its own perception of what may be regarded as 'special reasons ' without any light shed by the legislature. It is difficult to appreciate how a law which confers such unguided discretion on the court without any standards or guidelines on so vital an issue as the choice between life and death can be regarded as constitutionally valid. If I may quote the words of Harlan, J.: "our scheme of ordered liberty is based, like the common law, on enlightened and uniformly applied legal principles, not on ad hoc notions of what is right or wrong in a particular case" There must be standards or principles to guide the court in making the choice between life and death and it cannot be left to the court to decide upon the choice on an ad hoc notion of what it conceives to be "special reasons ' in a particular case. That is exactly what we mean when we say that the government should be of laws and not y of men and it makes no difference in the application of this princi ple, whether 'men ' belong to the administration or to the judiciary. It is a basic requirement of the equality clause contained in Article 14 that the exercise of discretion must always be guided by standards or norms so that it does not degenerate into arbitrariness and operate unequally on persons similarly situate. Where unguided and unfettered discretion is conferred on any authority, whether it be the executive or the judiciary, it can be exercised arbitrarily or 358 capriciously by such authority, because there would be no standards k or principles provided by the legislature with reference to which the exercise of the discretion can be tested. Every form of arbitrariness, whether it be executive waywardness or judicial adhocism is anathema in our constitutional scheme. There can be no equal protection without equal principles in exercise of discretion. Therefore. the equality clause of the Constitution obligate that whenever death sentence is imposed it must be a principled sentence, a sentence based on some standard or principle and not arbitrary or indignant capital punishment It has been said that 'a Judge untethered by a text is a dangerous instrument, and I may well add that Judge power, uncanalised by clear principles, may be equally dangerous when the consequence of the exercise of discretion may result in the hanging of a human being It is obvious that if judicial discretion is not guided by any standard or norms, it would degenerate into judicial caprice, which, as is evident from the foregoing discussion, has in fact happened and in such a situation, unregulated and un principled sentencing discretion in a highly sensitive area involving a question of life and death would clearly be arbitrary and hence violative of the equal protection clause contained in Article 14. It would also militate against Article 21 as interpreted in Maneka Gandhi 's case (supra) because no procedure for depriving a person of his life can be regarded as reasonable, fair and just, if it vests uncontrolled and unregulated discretion in the court whether to award death sentence or to inflict only the punishment of life im prisonment. The need for well recognised principles to govern the 'deadly ' discretion is so interlaced with fair procedure that unregulated power not structured or guided by any standards or principles would fall foul of Article 21. The respondents however contendent that the absence of any standards or guidelines in the legislation did not affect the constitutional validity of the death penalty, since the sentencing discretion being vested in the court, standards or principles for regulating the exercise of such discretion could always be evolved by the court and the court could by a judicial fiat lay down standards or norms which would guide the Judge in exercising his discretion to award the death penalty. Now it is true that there are cases where the court lays down principles and standards for guidance in the exercise of the discretion conferred upon it by a statute, but that is done by the court only in those cases where 359 the principles or standards are gatherable from the provisions of the statute Where a statute confers discretion upon a court, the statute may lay down the broad standards or principles which should guide the court in the exercise of such discretion or such standards or principles may be discovered from the object and purpose of the statute, its underlying policy and the scheme of its provisions and some times, even from the surrounding circumstances. When the court lays down standards or principles which should guide it in the exercise of its discretion, the court does not evolve any new standards or principles of its own but merely discovers them from the statute. The standards or principles laid down by the court in such a case are not standards or principles created or evolved by l ' the court but they are standards or principles enunciated by the Iegislature in the statute and are merely discovered by the court as a matter of statutory interpretation. It is not legitimate for the court to create or evolve any standards or principles which are not found in the statute, because enunciation of such standards or principles is a legislative function which belongs to the legislative and not to the judicial department. Moreover, it is difficult to see how any standards or principles which would adequately guide the exercise of discretion in the matter of imposition of death penalty can be evolved by the court. Sarkaria, J. himself has lamented the impossibility of formulating standards or guidelines in this highly ' sensitive area and pointed out in the majority judgment: ". there is little agreement among penologists and jurists as to what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment for a person convicted of a particular offence. According to Cessare Beccaria, who is supposed to be the intellectual progenitor of today 's fixed sentencing movement, 'crime are only to be measured by the injury done to society. ' But the 20th Century sociologists do not wholly agree with this view. In the opinion of Von Hirsch, the "seriousness of a crime depends both on the harm done (or risked) by the act and degree of actor 's culpability. " But how is the degree of that culpability to be measured. Can any thermometer be devised to measure its degree ? This passage from the majority judgment provides a most complete and conclusive answer to the contention of the respon 360 dents that the court may evolve its own standards or principles for guiding the exercise of its discretion. This is not a function which can be satisfactorily and adequately performed by the court more particularly when the judicial perception of what may be regarded as proper and relevant standards or guidelines is bound to vary from judge having regards to his attitude and approach, his predilections and prejudices and his scale of values and social philosophy. I am fortified in this view by the decision of the Supreme Court of the United States in Furman vs Georgia (supra). The question which was brought before the court for consideration in that Case was whether the imposition and execution of death penalty constituted "cruel and unusual punishment" within the meaning of the Eighth Amendment as applied to the States by the Fourteenth. The court, by a majority of five against four, held that the death penalty as then administered in the United States was unconstitutional, because it was being used in an arbitrary manner and such arbitrariness in capital punishment was a violation of the Eighth Amendment prohibition against "cruel and unusual punishment" which was made applicable to the States by the Fourteenth Amendment. Brennan J. and Marshall, J. took the view that the death penalty was per se unconstitutional as violative of the prohibition of the Eighth Amendment. Brennan, J. held that the death penalty constituted cruel and unusual punishment as it did not comport with human dignity and it was a denial of human dignity for a State arbitrarily to subject a person to an unusually severe punishment which society indicated that it did not regard as acceptable and which could not be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Marshall, J. stated that the death penalty violated the Eighth Amendment because it was an excessive and unnecessary punishment and also because it was morally unacceptable to the people of the United States. The other three learned Judges namely, Douglas, J. Stewart, J. and White, J. did not subscribe to the view that the death penalty was per se unconstitutional in all circumstances but rested their judgment on the limited ground that the death penalty as applied in the United States was unconstitutional. Douglas, J. argued that "we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die dependent on the whim of one man or of twelve," 361 Stewart, J. also voiced his concern about the unguided and unregulated discretion in the sentencing process and observed: ". the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. " The remaining four Judges, namely, Burger, C.J. Blackmun, J. Powell, J. and Rehnquist, J. took the opposite view and upheld the constitutional validity of the death penalty in its entirety. It will thus be seen that the view taken by the majority decision in this case was that a law which gives uncontrolled and unguided discretion to the Judge (or the jury) to choose arbitrarily between death sentence and life imprisonment for a capital offence violates the Eighth Amendment which inhibits cruel and unusual punishment. Now Sarkaria, J. speaking on behalf of the majority, has brushed aside this decision as inapplicable in India on the ground that we "do not have in our Constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply the 'due process ' clause. " I am unable to agree with this reasoning put forward in the majority judgment. I have already pointed out that though there is no explicit provision in our Constitution prohibiting cruel and unusual punishment, this Court has in Francis Mullin 's case (supra) held that immunity against torture or cruel and unusual punishment or treatment is implicit in Article 21 and therefore, if any punishment is cruel and unusual, it would be violative of basic human dignity which is guaranteed under Article 21. Moreover, in Maneka Gandhi 's case (supra) this court has by a process of judicial interpretation brought in the procedural due process clause of the American Constitution by reading in Article 21 the requirement that the procedure by which a person may be deprived of his life or personal liberty must be reasonable, fair and just. Douglas, J. has also pointed out in Furman 's case (supra) that "there is increasing recognition of the fact that the basic theme of equal protection is implicit in 'cruel and unusual ' punishment. A penalty . should be considered 'unusually ' imposed. if it is administered arbitrarily or discriminatorily" and thus brought in the equal protection clause for invalidating the death penalty. It is also significant to note that despite the absence of provisions like the American Due Process Clause and the Eighth Amendment, this Court speaking through Desai, J. said in 362 Sunil Batra vs Delhi Administration.(1) "Treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14. " Krishna Iyer, J. was more emphatic and he observed in the same case. "True, our Constitution has no 'due process ' clause or the VIII Amendment; but, in this branch of law, after Cooper. and Maneka Gandhi. . . the consequence is the same. For what is punitively outrageous, scandalizing unusual or cruel or rehabilitatively counter productive is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 " It should be clear from these observations in Sunil Batra 's case to which Cbandrachud, C.J. was also a party, that Sarkaria, J. speaking on behalf of the majority Judges, was in error in relying on the absence of the American due process clause and the Eighth Amendment for distinguishing the decision in Furman 's case (supra) and upholding death penalty. The decision in Furman 's case cannot, therefore, be rejected as inapplicable in India. This decision clearly supports the view that where uncontrolled and unregulated discretion is conferred on the court without any standards or guidelines provided by the legislature, so as to permit arbitrary and uneven imposition of death penalty, it would be violative of both Articles 14 and 21. It may be pointed out that subsequent to the decision in Furman 's case (supra) and as a reaction to it the legislatures of several States in the United States passed statutes limiting or controlling the exercise of discretion by means of explicit standards to be followed in the sentencing process. These 'guided discretion ' statutes provided standards typically in the form of specific aggravating and mitigating circumstances that must be taken into account before death sentence can be handed down. They also provided for separate phases of the trial to determine guilt and punishment (I) A.l. R. 363 and for automatic appellate review of death sentences. The constitutional validity of some of these 'guided discretion ' statutes was challenged in Gregg vs Georgia (supra) and companion cases and the Supreme Court of the United States upheld these statutes on the ground that providing specific sentencing guidelines to be followed in a separate post conviction phase of the trial would free the sentencing decision of arbitrariness and discrimination. There is considerable doubt expressed by leading jurists in the United States in regard to correctness of this decision, because in their view the guide lines provided by these statutes in the form of specific aggravating and/or mitigating circumstances are too broad and too vague to serve as an effective guide to discretion. In fact, while dealing with the challenge to the constitutional validity of a 'guided discretion ' statute enacted by the Legislature of Massachusettes, the Supreme Court of Massachusettes by a majority held in District Attorney for the Suffolk District vs Watson (1) that the statute providing for imposition of death penalty was unconstitutional on the ground that it was violative of Article 26 of the Declaration of Rights of the Massachusettes Constitution which prohibits infliction of cruel or unusual punishment. Henneseey, C.J. pointed out that in enacting the impugned statute the Legislature of Massachusettes had clearly attempted to follow the mandate of the Furman opinion and its progeny by promulgating a law of guided and channelled jury discretion, but even so it transgressed the prohibition of Article 26 of the Declaration of Rights of the State Constitution. The learned Chief Justice observed: " . it follows that we accept the wisdom of Furman that arbitrary and capricious infliction of death penalty is unconstitutional. However, we add that such arbitrariness and discrimination, which inevitably persists even under a statute which meets the demands of Furman, offends Article 26 of the Massachusettes Declaration of Rights. " But we are not concerned here with the question as to whether the decision in Gregg 's case represents the correct law or the decision of the Massachusettes Supreme Court in Watson 's case. That controversy does not arise here because admittedly neither the Indian Penal Code nor any other provision of law sets out any aggravating or mitigating circumstance or any other considerations which must be taken into account in determining whether death sentence should be 364 awarded or not. Here the sentencing discretion conferred upon the court is totally uncontrolled and unregulated or if I may borrow an expression from Furman 's decision, it is 'standardless ' and unprincipled '. It is true that there are certain safeguards provided in the Code of Criminal Procedure, 1973 which are designed to obviate errors in the exercise of judicial discretion in the matter of imposition of death penalty. Section 235 sub section (2) bifurcates the trial by providing two hearings one at the pre conviction stage and another at the pre sentence stage so that at the second stage following upon conviction, the court can gather relevant information bearing on the question of punishment and decide, on the basis of such information, what would be the appropriate punishment to be imposed on the offender. Section 366 sub section (1) requires the court passing a sentence of death to submit the proceedings to the High Court and when such reference is made to the High Court for confirmation of the death sentence, the High Court may under section 367 direct further inquiry to be made or additional evidence to be taken and under section 368, confirm the sentence of death or pass any other sentence warranted by law or annual or alter the conviction or order a new trial or acquit the accused. Section 369 enjoins that in every reference so made, the confirmation of the sentence or any new sentence or order passed by the High Court, shall, when such court consists of two or more judges, be made, passed and signed by at least two of them. Then there is also a proviso in section 379 which says that when the High Court on appeal reverses an order of acquittal and convicts the accused and sentences him to death, the accused shall have a right to appeal to the Supreme Court. Lastly there is an over riding power conferred on the Supreme Court under Article 136 to grant, in its discretion, special leave to appeal to an accused who has been sentenced to death. These are undoubtedly some safeguards provided by the legislature, but in the absence of any standards or principles provided by the legislature to guide the exercise of the sentencing discretion and in view of the fragmented bench structure of the High Courts and the Supreme Court, these safeguards cannot be of any help in eliminating arbitrariness and freakishness in imposition of death penalty. Judicial ad hocism or waywardliness would continue to characterise the exercise of sentencing discretion whether the Bench be of two judges of the High Court or of two or three judges of the Supreme Court and arbitrary and uneven incidence of death 365 penalty would continue to afflict the sentencing process despite these procedural safeguards. The reason is that these safeguards are merely peripheral and do not attack the main problem which stems from lack of standards or principles to guide the exercise of the sentencing discretion. Stewart, J. pointed out in Gregg 's case (supra), ". the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. " The first requirement that there should be a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence is met by the enactment of section 235 sub section (2), but the second requirement that the sentencing authority should be provided with standards to guide its use of the information is not satisfied and the imposition of death penalty under section 302 of the Indian Penal "ode read with section 354 sub section (3) of the Code of Criminal Procedure, 1973 must therefore be held to be arbitrary and capricious and hence violative of Articles 14 and 21. There is also one other characteristic of death penalty that is revealed by a study of the decided cases and it is that death sentence has a certain class complexion or class bias in as much as it is largely the poor and the down trodden who are the victims of this extreme penalty. We would hardly find a rich or affluent person going to the gallows. Capital punishment, as pointed out by Warden Duffy is "a privilege of the poor." Justice Douglas also observed in a famous death penalty case "Former Attorney Pamsey Clark has said: 'it is the poor, the sick, the ignorant, the powerless and the hated who are executed '. "So also Governor Disalle of Ohio State speaking from his personal experience with the death penalty said: "During my experience as Governor of Ohio, I found the men in death row had one thing in common; they were penniless. There were other common denominators, low mental capacity, little or no education, few friends, broken 366 homes but the fact that they had no money was a principal factor in their being condemned to death. " The same point was stressed by Krishna Iyer, J. in Rajendra Prasad 's case (supra) with his usual punch and vigour and in hard hitting language distinctive of his inimitable style: "Who, by and large, are the men whom the gallows swallow. The white collar criminals and the corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control? Rarely. With a few exceptions, they hardly fear the halter. The feuding villager, heady with country liquor, the striking workers desperate with defeat, the political dissenter and sacrificing liberator intent on changing the social order from satanic misrule, the waifs and strays whom society has hardened by neglect into street toughs, or the poor householder husband or wife driven by dire necessity or burst of tantrums it is this person who is the morning meal of the macabre executioner." "Historically speaking, capital sentence perhaps has a class bias and colour bar, even as criminal law barks at both but bites the proletariat to defend the proprietariat a reason which, incidentally, explains why corporate criminals including top executives whom by subtle processes, account for slow or sudden killing of large members by adulteration, smuggling, cornering, pollution and other invisible operations, are not on the wanted list and their offending operations which directly derive profit from mafia and white collar crimes are not visited with death penalty, while relatively lesser delinquencies have, in statutory and forensic rhetoric, deserved the extreme penalty." There can be no doubt that death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived sections of the community and the rich and the affluent usually escape from its clutches. This circumstance also adds to the arbitrary and capricious nature of the death penalty and renders it unconstitutional as being violative of Articles 14 and 21. 367 Before I part with this topic I may point out that only way in which the vice of arbitrariness in the imposition of death penalty can be removed is by the law providing that in every case where the death sentence is confirmed by the High Court there shall be an automatic review of the death sentence by the Supreme Court sitting as a whole and the death sentence shall not be affirmed or imposed by the Supreme Court unless it is approved unanimously by the entire court sitting enbanc and the only exceptional cases in which death sentence may be affirmed or imposed should be legislatively limited to those where the offender is found to be so depraved that it is not possible to reform him by any curative or rehabilitative therapy and even after his release he would be a serious menace to the society and therefore in the interest of the society he is required to be eliminated. Of course, for reasons I have already discussed such exceptional cases would be practically nil because it is almost impossible to predicate of any person that he is beyond reformation or redemption and therefore, from a practical point of view death penalty would be almost nor existent But theoretically it may be possible to say that if the State is in a position to establish positively that the offender is such a social monster that even after suffering life imprisonment and undergoing reformative and rehabilitative therapy, he can never be reclaimed for the society, then he may be awarded death penalty. If this test is legislatively adopted and applied by following the procedure mentioned above, the imposition of death penalty may be rescued from the vice of arbitrariness and caprice. But that is not so under the law as it stands to day. This view taken by me in regard to the constitutional validity of the death penalty under Articles 14 and 21 renders it unnecessary for me to consider the challenge under Article 19 and I do not therefore propose to express any opinion on that question. But since certain observations have been made in the majority judgment of Sarkaria, J. which seem to run counter to the decisions of this Court in R.C Cooper vs Union of India (1) and Maneka Gandhi 's case (supra). I am constrained to add a few words voicing my respectful dissent from those observations. Sarkaria, J. speaking on behalf of the majority judges has observed in the present case that the 'form and object test or 'pith and substance rule ' adopted by 368 Kania, C.J. and Fazal Ali, J. in A.K. Gopalan vs State of Madras (supra) is the same as the 'test of direct and inevitable effect ' enunciated in R.C. Cooper 's case and Maneka Gandhi 's case and it has not been discarded or jettisoned by these two decisions. I cannot look with equimanity on this attempt to resucitate the obsolute 'form and object test ' or 'pith and substance rule ' which was evolved in A.R. Gopalan 's case and which for a considerable number of years dwarfed the growth and development of fundamental rights and cut down their operational amplitude. This view proceeded on the assumption that certain articles in the Constitution exclusively deal with specific matters and where the requirement of an Article dealing with a particular matter in question is satisfied and there is no infringement of the fundamental right guaranteed by that Article, no recourse can be had to a fundamental right conferred by another Article and furthermore, in order to determine which is the fundamental right violated, the court must consider the pith and substance of the legislation and ask the question: what is the object of the legislature in enacting the legislation; what is the subject matter of the legislation and to which fundamental right does it relate. But this doctrine of exclusivity of fundamental rights was clearly and unequivocally over ruled in R.C. Cooper 's case by a majority of the Full Court, Ray, J. alone dissenting and so was the 'object and form test ' or 'pith and substance rule ' laid down in A.K. Gopalan 's case. Shah, J. speaking on behalf of the majority Judges said in R.C. Copper 's case (supra) ". it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual 's rights." "We are of the view that the theory that the object and form of the State action determine the extent of pro 369 tection which the aggrieved party may claim is not consistent with the constitutional scheme. " "In our judgment, the assumption in A.K Gopalan 's case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual 's guaranteed rights, the object and the form of the State action alone need be considered and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct." This view taken in R.C. Cooper 's case has since then been consistently followed in several decisions of which I may mention only a few, namely, Shambhu Nath Sarkar vs State of West Bengal (1); Haradhan Saha vs State of West Bengal;(2) Khudiram Das vs State of West Bengal (3) and Maneka Gandhi 's case (supra). I cannot therefore assent to the proposition in the majority judgment that R.C. Cooper 's case and Maneka Gandhi 's case have not given a complete go by to the test of direct and indirect effect, some times described as 'form and object test ' or 'pith and substance rule ' evolved by Kania, C.J. and Fazal Ali, J. in A.K. Gopalan 's case and that the 'pith and substance rule ' still remains a valid rule for resolving the question of the constitutionality of a law assailed on the ground of its being violative of a fundamental right. Nor can I agree with the majority judgment when it says that it is Article 21 which deals with the right to life and not Article 19 and section 302 of the Indian Penal Code is therefore not required to be tested on the touchstone of any one or more of the clauses of Article 19. This approach of the majority judgment not only runs counter to the decision in R.C. Cooper 's case and other subsequent decisions of this Court including Maneka Gandhi 's case but is also fraught with grave danger inasmuch as it seeks to put the clock back and reverse the direction in which the law is moving towards realisation of the full potential of fundamental rights as laid down in R.C. Cooper 's ease and Maneka Gandhi 's case. It is significant to note that the doctrine of exclusi 370 vity enunciated in A.K. Gopalan 's case led to the property rights under Article 19(1)(f) and 31 being treated as distinct and different rights traversing separate grounds, but this view was over turned in Kochune 's case (1) where this Court by a majority held that a law seeking to deprive a person of his property under Article 31 must be a valid law and it must therefore meet the challenge of other fundamental rights including Article 19(1)(f). This Court over ruled the proposition laid down in State of Bombay vs Bhanji Munji(2) that Article 19(1)(f) read with clause (5) postulates the existence of property which can be enjoyed and therefore if the owner is deprived of his property by a valid law under Article 31, there can be no question of exercising any rights ' under Article 19(1)(f) in respect of such property. The court ruled that even io a law seeks to deprive a person of his property under Article 31, it must still, in order to be valid, satisfy the requirement of Article 19 (1)(f) read with clause (5). If this be the true position in regard to the inter relation between Article 19 (1) (f) and Article 31, it is difficult to see why a law authorising deprivation of the right to life under Article 21 should not have to meet the test of other fundamental rights including those set out in the different clauses of Article 19. But even if section 302 in so far as it provides for imposition of death penalty as alternative punishment has to meet the challenge of Article 19. the question would still remain whether the 'direct and inevitable consequence ' of that provision is to affect any of the rights guaranteed under the Article. That is a question on which I do not wish to express any definite opinion. It is sufficient for me to state that the 'object and form test ' or the 'pith and substance rule ' has been completely discarded by the decision in R.C. Cooper 's case and Maneka Gandhi 's case and it is now settled law that in order to locate the fundamental right violated by a statute, the court must consider what is the direct and inevitable consequence of the statute. The impugned statute may in its direct and inevitable effect invade more than one fundamental right and merely because it satisfies the requirement of one fundamental right, it is not freed from the obligation to meet the challenge of another applicable fundamental right. These are the reasons for which I made my order dated May 9, 1980 declaring the death penalty provided under section 302 of the 371 Indian Penal Code read with section 354 sub section (3) of the Code of Criminal Procedure, 1973 is unconstitutional and void as being 5 violative of Articles 14 and 21. I must express my profound regret at the long delay in delivering this judgment but. the reason is that there was a considerable mass of material which had to be collected from various sources and then examined and analysed and this took a large amount of time. B S.R. Appeal dismissed. [/INST]The petitioner complained that the workmen employed in the two ferries, one at Bhagalpur and the other at Sultanganj, operated by respondent No. 5 were not being paid minimum wages as prescribed by the relevant notifications issued by the State of Bihar under the . Respondent No. 5 contended that the was not applicable to these two ferries. Allowing the writ petition, ^ HELD: The Schedule to the lists various employments in respect of which minimum rates of wages can be fixed by the appropriate Government. Entry 27 of the Schedule which dealt with employment in shops and establishments registered under the Bihar Shops and Establishments Act, 1953, was amended on 25.11.1978 to enlarge its scope to cover employment in any shop or establishment other than that covered under any of the other entries in the Schedule. It is clear from the Explanation to the amended Entry 27 that the word "establishment" in that entry has the same meaning which is assigned to it in the Bihar Shops and Establishments Act, 1953 and the court must, therefore, look at the definition of "establishment" as given in the Bihar Shops and Establishments Act, 1953 in order to determine as to whether the Bhagalpur and Sultanganj ferries could be said to be establishments within the meaning of the amended Entry 27. The word "establishment" is defined in see. 2(6) of Bihar Shops and Establishments Act, 1953 to mean an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession. Now it can hardly be disputed that the Bhagalpur and Sultanganj ferries are establishments which carry on business or trade of plying ferries across the Ganges and they are clearly within the meaning of the word "establishment" in sec. 2(6) of the Bihar Shops and Establishments Act, 1953 and consequently they would also be establishments within the meaning 1012 of that expression as used in the amended Entry 27. The would, therefore, clearly be applicable to employment in the Bhagalpur, and Sultanganj ferries. [1014 D, G H; 1015 A B G H; 1016A] The workmen employed in the Bhagalpur and Sultanganj ferries were entitled to receive minimum wage as set out in the Notification dated 25th June 1975 as amended by the Notification dated 20th January 1979 for the period from 20th January 1979 upto 25th November 1981 and thereafter at the rate fixed in the Notification dated 26th November 1981. [1016 F G] </s>
<s>[INST] Summarize the judgementAppeal No. 455 of 1965. Appeal by special leave from the judgment and order dated September 11, 1962 of the Gujarat High Court in Civil Revision Application No. 150 of 1960. 347 G. L. Sanghi, and B. R. Agarwala, for the appellant. O. P. Malhotra and Ravinder Narain, for the respondents Nos. 1 to 4. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from a judg ment of the High Court of Gujarat passed in a Civil Revision Application arising out of a suit filed by the plaintiff respondent against the defendant appellant to recover possession of certain premises situate in Surat. The facts are as follows. The appellant became a tenant of the respondent under a rent note executed on February 27, 1947 whereby rent was fixed at Rs. 40 per month and the tenancy was to be for a period of one year from 22nd February, 1947. After the expiry of the said period, the appellant continued as a monthly tenant on the same terms and conditions as were to be found in the rent note. He fell into arrears of payment of rent and the respondent sued him for eviction some time in 1951. The suit was eventually compromised by a petition put in court bearing date September 16, 1952. Under the terms of the compromise, the defendant continued as a tenant from September 1, 1952 on the terms and conditions of the rent note dated February 27, 1947: the original conditions in respect of rent also continued excepting that the rate was lowered from Rs. 40/ to quote the words of the compromise to "standard rent of Rs. 27" and "in the matter of taxes and interest also the defendant was to act in accordance with the conditions of the aforesaid rent note. " Paragraph 2 of the compromise petition contained an account of payments made by the defendant the final. result thereof being that it was agreed between the parties that the defendant had paid Rs. 104 5 3 "which amount was to be rcmbursed by the plaintiff to the defendant when accounting the future payment of rent. " It should be noted here that according to the rent note of 1947 the tenant had agreed to pay the monthly rent of Rs. 40 together with interest at Rs. 0 12 0 per cent per annum in respect of any balance due for rent. Even after the compromise, the defendant fell in arrears again. The only payments made thereafter up to the institution of the second suit out of which the present proceedings have arisen were a sum of Rs. 250 on July 19, 1954 and Rs. 200 on March 17, 1955. The defendant did not make any payment to the plaintiff in rcspect of the permitted increases under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 from the 1 st of April, 1954; neither did he pay the taxes agreed upon. The plaintiff gave a notice to the defendant on April 18, 1955 demanding the arrears of rent and permitted increases in terms of the said Act and also terminating the tenancy of the defend 348 ant with effect from May 31, 1955 in terms of section 106 of the Transfer of Property Act. The notice was received by the defeiidant on April 21, 1955. No reply was sent thereto nor was any payment made to the plaintiff. The suit for ejectment was filed on March 15, 1956 the ground thereof as laid in the plaint being that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act. In paragraph 6 of the plaint the dues under various heads were specified showing the arrears of rent, increases permitted thereon, interest in terms of the rent note and taxes for three years. It was pleaded by the defendant in the written statement that rent at Rs. 27 had been fixed by the court without going into the merits of the case and that standard rent or reasonable rent of the property in suit had to be fixed first and a preliminary issue in that respect should be framed. The defendant did not admit the claim to the arrears as laid in paragraph 6 of the plaint. He also pleaded that the notice of ejectment was not a valid one as the tenancy was to be reckoned in terms of the Gujarati calendar and not the Gregorian calendar. 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 purposes of the Act. On that day the defendant deposited in court a sum of Rs. 1,000. Thereafter the defendant made a deposit of a sum of Rs. 150 on February 25, 1957. The suit was decreed by the trial Judge on March 25, 1957. The trial Judge after considering the evidence on record determined the standard rent of the premises at Rs. 27, exclusive of the permitted increases and water tax and sanitary tax, payable by the defendant to the plaintiff. Holding that the defendant had not complied with section 12(3)(b) of the Act he passed a decree for eviction. The defendant went in appeal to the District Judge, Surat. He raised no contention even at the hearin of the appeal either in regard to the standard rent of the premises or in regard to interest on arrears of rent or municipal taxes or permitted increases. The finding of the trial Judge that the standard rent of the premises exclusive of permitted increases and water tax and sanitary tax was Rs. 27,1 per month was not challenged by the defendant. Nor was any question raised as to the finding that the defendant was liable to pay the plaintiff a sum of Rs. 123 4 0 as and by, way of interest on arrears of rent, a sum of Rs. 81 as and by way of water tax and sanitary tax for a period of three years prior to the date of the suit and a sum of Rs. 2 1 9 per month as and by way of permitted increases from April 1, 1954. The point regarding the validity of the notice of ejectment was however raised in the appeal. According to the judgment of the High Court, "the only contention urged 349 before the learned Assistant Judge was, whether the defendant had or had not complied with the requirements of section 12(3)(b) of the Rent Act." The Assistant Judge concluded that there had been no compliance with that section and upheld the decree for eviction. In revision three contentions were. raised before the High Court, namely, (1) as to the validity of the notice of ejectment; (2) whether section 12(3)(a) or 12(3)(b) of the Act applied; and(3) whether the defendant was entitled to protection under section 12(1) of the Act. The High Court held that it was not open to the tenant to raise the question of the validity of the notice in a revision application. Moreover, there was no substance in it as the compromise petition expressly recorded that the tenancy in terms of it should commence on September 1, 1952. With regard to the second question the High Court held that "it was common ground between the parties before the Assistant Judge that the case of the defendant fell within section 12(3) (b) of the Rent Act. " The learned Judge of the High Court noted: (a) The trial Judge turned down the applicability of section 12(3) (a) of the Act holding that the defendant had disputed the municipal taxes and permitted increases; (b) The, conditions under section 12(3) (b) of the Act were not fulfilled; (c) No contention about the applicability of 12(3) (a) was raised before the Assistant Judge in appeal and he therefore did not go into the question at all; and (d) The conditions necessary for the applicability of section 12(3)(a) were not present, as besides the amount of Rs. 27 mentioned in the compromise petition, the tenant had to pay other sums not due from him every month. The High Court further found that after the first date of hearing of the suit on September 3, 1956 rent of the premises which fell due on 1st October 1956, 1st November 1956, 1st December 1956, 1st January 1957, 1st February 1957 and 1st March, 1957 remained unpaid on March 25, 1957 when the suit was disposed of. As the defendant did not pay or deposit in court regularly the amount of standard rent which became due on the aforesaid dates barring the 1st of March 1957 (taking into account the deposit of Rs. 150 on February 25, 1957) there was default on the part of the defendant attracting the operation of section 12(3)(b) of the Act. 350 The High Court turned down the contention based on section 12(1) of the Act. At the hearing of the appeal before us, learned counsel for the appellant raised two points, namely: (1) The provisions of section 12(1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing. If at that stage it was found that the defendant had paid up all arrears due from him he could not be ejected. (2) Even applying section 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction. In order to appreciate the first contention it is necessary to set out section 12 of the Act as it stood at the relevant time : "12(1)A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the pro visions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the . (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 may 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 suit, 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 thereafter conti 351 nues to 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. (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit. Explanation. In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. " Learned counsel drew our attention to a judgment of this Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograj Sinha(1). There the landlord had filed a suit for possession of the premises on April 25, 1957, the period of tenancy fixed under the rent note having expired on March 14, 1957. Under section 6 of the Act a notification was issued applying Part II of the Act to the area where the property was situate. The appellants claimed protection of section 12 of the Act and the main question which engaged the attention of this Court was, whether by virtue of the first proviso to section 50 of the Act, all the provisions in Part 11 including section 12 were made expressly applicable to all suits; and secondly, whether by virtue of section 12(1) of the Act the suit was rendered incompetent. This Court turned down the contention of the respondent that the operation of section 12(1) was limited to suits filed after it came into force in a particular area and observed that under section 12(1) the landlord was not to be entitled to recover possession and the point of time when the sub section would operate was when the decree for recovery of possession would have to be passed, It appears to us that there is no substance in the contention put forward on behalf of the appellant. Section 12(1) must be read with the Explanation and so read it means that a tenant can only be considered "to be ready and willing to pay" if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and thereafter pays or tenders the amount of (1) ; 352 rent or permitted increases specified by the court. We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of section 1 1(3) of the Act. The readiness and willingness to pay has therefore to be judged in the light of the facts of the case. Where as here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or per mitted increases recoverable under the Act, the tenant makes no application in terms of section 11(3) he cannot claim the protection of section 12(1) by merely offering to pay or even paying all arrears due from him when the court is about to pass a decree against him. In Vora Abbasbhai Alimahomed lv. Hai; Gulamnabi Haji Safibhai(1) it was pointed out that section 12(1) of the Act applied to a tenant who continued to remain in occupation even after the expiry of the contractual tenancy so long as he paid or was, ready and willing to pay the amount of the standard rent and permitted increases. The protection was howsoever available to a tenant subject to the provisions of section 13 and to the limitations contained in section 12(2) and section 12(3)(a) of the Act. In Mrs. Manorama Masurekar vs Mrs. Dhanlaxmi G. Shah and another ( 2 ) rent was in arrears for a period of more than six months and the tenant neglected to make payment of the same within one month of the notice under section 12(2). There the rent was payable by the month and there was no dispute regarding the amount of the rent. It was held that if the conditions of sub section (3)(a) of section 12 were satisfied the tenant could not claim any protection from eviction by tendering the arrears of rent after the expiry of one month from the service of notice under sub section It was observed : "It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub section (3)(a), the tenant must be dealt with under the special provisions of sub section (3)(a), and he cannot claim any protection from eviction under the general provisions of sub section (1)" As already noted, if sub section (3)(a) is not attracted, the tenant, if he is in arrears, cannot sit quiet and offer to pay all the amount due from him at the time of the hearing of the suit so as to get the protection of section 12(1). To be within the protection of subs. (1) where he raises a dispute about the standard rent payable, he must make an application to the court under sub section (3) of section 11 and thereafter pay or tender the amount of rent and permitted (1) ; (2) ; 353 increases, if any, specified in the order made by the Court. If he does not approach the court under section 1 1(3), it is not open to him thereafter to claim the protection of section 12(1). The case clearly does not come within section 12(3)(b). To be within the protection of that provision, the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay or tender in court regularly the rent and the permitted increases till the suit is finally decided. Before the date of the suit, the appellant was entitled to a credit of Rs. 104 5 3; the total payments up to the date of the first hearing including the. sum of Rs. 1,000 come to Rs. 1,554 5 3. The amounts due from him, up to that date were : (a) rent at the rate of Rs. 27 per month for 48 months. Rs. 1296 0 0 (b) permitted increases from 1 4 54 to 1 9 56. 61 3 9 (c) taxes. 81 0 0 (d) Interest on arrears at 9% p.a. 123 3 0 making a total ofRs. 1561 6 9 Moreover, there was failure on the part of the appellant to pay or tender in court the amounts which fell due from the 1st of October 1956 to the 1st of March, 1957. Thus, leaving out of consideration the question of costs awarded against him under the decree, the appellant cannot get the protection under section 12(3)(b) of the Act. A faint attempt was made to raise the point about the invalidity of the notice of ejectment on the plea that the same had to comply with section 12(2) of the Act. This is clearly fallacious as the said section merely lays down the manner in which a notice of demand of standard rent and permitted increases has to be made. The contentions raised on behalf of the appellants are therefore without any merits and the appeal is dismissed with costs. G.C. Appeal dismissed. [/INST]The statements of eye witnesses to a murder were recorded under section 164, Criminal Procedure Code, and a certificate was appended to each of the statements to the effect, that the deponent was warned that he was making the statement before a Magistrate and that it might be used against him. On the question as to the weight to, be attached to the evidence given by the witnesses in court, HELD : It did not follow from the endorsement that any threat was given to the witnesses or that it necessarily made their evidence in court suspect or less believable. [357 G] If a witness, in his evidence in court sticks to the version given by him in the statement under section 164, Cr. P.C. the mere fact that the statement was previously recorded under the section is not sufficient to discard his .,evidence. The only inference that can be drawn is that there, was a time when the police thought the witness may change his evidence. The Court. %however, ought to. receive the evidence with caution. [358 D] Observations in Parmanand vs Emperor, A.I.R. 1940 Nag. 340, 344 and In re : Gopisetti Chinna Venkatasubbialh. , I.L.R. , 639. approved. Observations contra in Emperor vs Manu Chik, A.I.R. 1938 Patna 290, 295, disapproved. </s>
<s>[INST] Summarize the judgementCivil Appeal No. 383(N) of 1973. From the Judgment and Order dated 7.3.1972 of the High Court of Kerala in S.A. No. 549 of 1971. G. Viswanath Iyer and Narayan Nettar for the Appellants. T.S. Krishnamurthy Iyer, Vijay Kumar Verma and Madhu Moolchandani for the Respondent. The Judgment of the Court was delivered by KHALID, J. The appellants are the defendant in O.S. 55 of 1952 in the Sub Court, Mangalore. Their father had ob tained sale of the property involved in this appeal by a document dated 28 4 1939, executed by the widowed mother of the respondent plaintiff who was a minor, aged six years, she acting as his guardian. After he attained majority, he filed a suit for a declaration that the said sale deed was invalid and was not binding upon him and for recovery of possession thereof. The Trial Court dismissed the suit. In appeal, the appellate court confirmed the decree and Judg ment of the Trial Court. In second appeal, the High Court of Kerala, by its Judgment, dated 27 11 1969, set aside the Judgments of the Courts below, allowed the appeal and de creed the suit. The decree directed recovery of possession of the properties on payment of the sum of Rs.4,700 being the sale consideration and a sum of Rs.4,164 being the compensation for improvements. On 15 9 1970, the decree holder, respondent herein, filed R.E.P. 68/70 in the Sub Court, Kasargod, depositing the amount due under the decree of the High Court and pray ing for delivery of the properties from the possession of the Judgment debtors, the appel 703 lants. Execution was resisted by the appellants on the ground that no delivery could be ordered without payment of the value of improvements effected by them subsequent to the year 1952. They also filed R.E.A. No. 146/70 for the issue of a commission to re value the improvements, claiming that they had effected improvements to the tune of Rs.80,000. The respondent contested this application, denied that the appellants had made any improvements and contended that the question of improvements had been concluded by the Judgment of the High Court in the second appeal. The executing Court dismissed this petition. Aggrieved by this order, the appel lants filed an appeal before the District Judge, Tellicher ry, who allowed the appeal by his Judgment dated 12th April, 1971 and set aside the order of the executing Court. The matter was taken to the High Court by way of Execution Second Appeal. A Division Bench of the Kerala High Court, on a reference from a learned Single Judge, set aside the Judgment of the District Judge by its Judgment dated 7 3 1972 and restored the order of the Subordinate Judge and directed recovery of the property. The appellants, moved the High Court for grant of certificate of fitness, which prayer was declined and hence have filed this appeal, by special leave. The suit was filed by the plaintiff within three years 'of his attaining majority alleging that the assignee took advantage of the ignorance and helpless condition of the plaintiff 's mother, who was a young widow and that there was neither legal necessity nor pressure from the estate for effecting the sale. He averred in the plaint that there was a partition decree in his favour in which he had been allot ted these properties with outstanding amounting to Rs.5,300 and mesne profits to the extent of Rs.1,549 which were sufficient to discharge the debts due by the estate. The entire immovable properties belonging to the plaintiff, including the family residential house, were alienated. The High Court in second appeal on the trial side held that the alienation was not something which a man of ordinary pru dence would have effected, had the properties been owned by him and thus held it not binding on the plaintiff. The learned Judges of the Division Bench then considered the question of the defendant 's right for compensation for improvements, if any, effected. This claim was denied. In the written statement filed by the defendant, as noted by the High Court, all that was claimed was that improvements had been effected to the tune of Rs.4,000. But no specific claim was made for compensation in the event of eviction. The High Court also noted that the averment regarding im provements was itself made in the context of denying that the property would have fetched Rs.11,000 at the time of sale. In the 704 additional written statement filed by the defendant a claim was made that improvements to the value of Rs.11,168 had been effected after the sale date and that under any circum stances, the defendants were entitled to just and adequate compensation for them. The Division Bench adverting to this aspect of the case held against the appellants with the following observation: "The basis of the claim has not been stated anywhere, and no averments of fact necessary for attracting section 51 of the Transfer of Property Act or Section 4 of the Kerala Com pensation for Tenants ' Improvements Act, 1958, have been made. Hence, the claim for value of improvements would appear to be unsustainable. However, no objection has been taken by the appellant in the lower appellate court or in this Court to the finding of the trial court that in case of eviction, the defendants would be entitled to Rs.4,164.8.0 as compensation for improvements. " It was with these observations regarding improvements that the appeal was allowed and the suit for recovery decreed. When the matter reached the High Court in second appeal on the execution side the matter was heard by another Divi sion Bench of the Kerala High Court. The Division Bench relied upon the following observation in the Judgment of the Division Bench on the original side and declined relief of value of improvements to the appellants, with the following observation: The Division Bench considered the question of value of improvements in paragraph 9 of the Judgments and Unnikrishna Kurup, J. who spoke for the Division Bench has stated in unequivocal terms: "Hence, the claim for value of improvements would appear to be unsustainable. However, no objection has been taken by the appellant in the lower appellate court or in this Court to the finding of the trial court that in case of eviction, the defendants would be entitled to Rs.4,164,8.0. as compensation for improve ments. " We may in passing on also observe that the appellant had filed an application for special leave against the first Judgment in second appeal. which was dismissed. The claim of value of improvements was 705 rejected by the Division Bench with the following observa tion: "The sum of Rs.4,164.8.0 was directed to be paid, we repeat, not because the respondents were entitled to it, but because the appellant agreed to pay it. " It is with these materials that the present claim of the appellants for value of improvements has to be considered. We may indicate at this stage itself that the Commissioner appointed at the instance of this Court, assessed the value of improvements at Rs.1,00,031.40, by his report dated 12 10 1972. The learned counsel for the appellant made a forceful plea that the Judgment of the High Court was wrong and that the conclusion arrived at by the High Court was as a result of a confusion regarding the pleadings in the case and the question of law involved. He stated that at the trial stage an issue was struck as issue No. 8 regarding the value of improvements. This question was adjudicated and the value of improvements was adjudged after due consideration of this issue. His further submission is that the appellants were tenants within the meaning of Section 2(d) of the Kerala Compensation for Tenants Improvements Act, 1958 (Act 29 of 1958), and that the claim for value of improvements was made on the strength of Section 5 of the Act. He relied upon a Division Bench ruling in Veerasikku Gounder vs Kuri an, 1 in support of his contention that the appellants were tenants and were entitled to the value of improvements. The property is situated in the old South Kerala Dis trict which formed part of the then Madras Presidency. At the time the suit was filed, there was no enactment in force in that area, enabling persons in possession of property belonging to another to claim value improvements in a suit for recovery of possession. The area, where the property in dispute is situated, became part of Kerala when the said State was formed. When Act 29 of 1958 was enacted, there were two enactments in existence, applicable to the Travan core Cochin and the Malbar Area, regarding the claims for improvements for tenants in possession. They are the Travan core Cochin Compensation for Tenants Improvements Act, 1956 and the Malbar Compensation for Tenants Improvements Act, 1899. Both these Acts were repealed when Act 29 of 1958 was enacted. Section 2(d) of the new Act defines 'tenant ', the relevant portion of which reads as follows: "2(d) 'tenant ' with its grammatical variations and cognate 706 expression includes (i) . . . (ii) . . (iii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements. " The appellants contention is that they satisfy this defini tion and that, therefore, they are entitled to the benefit of this Act. Section 4 deals with the entitlement to compen sation for improvements for tenants for the improvements made by them, or their predecessor in interest on eviction. Section 5 states that when in a suit for eviction instituted against the tenant the plaintiff succeeds and the defendant establishes a claim for compensation due under Section 4 for improvements, the Court shall ascertain the amount of com pensation and shall pass a decree for payment of the amount so found due to the tenants. Subsection 3 of this section gives an additional right to such tenants for value of improvements effected after the decree by evaluation. We read the section for a correct understanding of the same: "5(3) The amount of compensation for improve ments made subsequent to the date upto which compensation for improvements has been ad judged in the decree and the re valuation of an improvement, for which compensation has been so adjudged, when and in so far as such revaluation may be necessary when reference to the condition of such improvements at the time of eviction as well as any sum of money accru ing due to the plaintiff subsequent to the said date for rent, or otherwise, in respect of the tenancy, shall be determined by order of the court executing the decree and the decree shall be varied in accordance with such order. " It is basing on this Section that the claim is made for value of improvements by the appellants. The suit was filed in 1952. At the time there was no enactment available for the defendant to claim value of improvements. Neither in the original written statement nor in the additional written statement 707 dated 15 11 1954, did the defendants claim the value of improvements under the Act. It is true that at the execution stage a plea was raised under Section 5 of Act 29 of 1958. But it is necessary to remember that in the Judgment in the Second Appeal No. 464 of 1964, the Division Bench decided on 27 11 1969, that no claim for .improvements was made either under Section 51 of the Transfer of Property Act or under Section 4 of Act 29 of 1958. Moreover, the High Court also found that no objection was taken by the appellants in the lower appellate court or before the High Court to the find ing that in case of eviction the defendant would be entitled to Rs.4,164.8.0 as compensation. This Judgment was rendered when Act 29 of 1958 had already come into force. Against this Judgment this Court was moved by filing a special leave petition and that was dismissed. Thus, there is a concluded finding against the appellants that they were not entitled to anything more than the value of improvements decreed by the trial Court. In the Judgment under appeal also the High Court has reiterated the fact that the appellants were being paid the amount mentioned above not because they were entitled to it, but because the appellant agreed to pay it. The learned counsel for the appellants Shri G. Vishwanatha Iyer tries to over come the finality of this Judgment with the contention that the value of improvements has to be ascertained under the Act on the execution side and his claim cannot be de feated by flourishing the Judgment of the High Court and the dismissal of the S.L.P. We find it difficult to accept the appellant 's case. Section 5 comes into operation only when a defendant against whom a suit for eviction is instituted establishes a claim for compensation under the Act. The Judgment of the High Court rendered in 1969 has clearly held that the value of improvement awarded was not under Section 4 of the Act but was an amount agreed by the plaintiff. The appellants cannot succeed and have not succeeded in satisfy ing us that they ever made a claim for compensation under Section 4 of the Act and succeeded in such a claim. There fore their further claim for getting the improvements reval ued cannot be accepted. We do not wish to pronounce upon the question whether a person like the appellants who came into possession of the properties of a minor through his young widowed mother could be brought within the definition of tenant in Section 2(d)(iii). This matter will have to be considered in an appropriate case and the correctness of the decision of the Kerala High Court brought to our notice by the appellant 's counsel tested then. The appeal has only, therefore, to be dismissed. 708 However, we feel that some equity has to be worked out in this case. This Court issued notice in the S.L.P. on 20 6 1972. On 1 9 1972 stay of operation of decree was granted, and an opportunity was given to enable the parties to come to a compromise. On 18 9 1972, this Court directed a Commissioner to be appointed to assess the value of improve ments which were made subsequent to the date upto which the compensation for improvements had already been adjudged. It was pursuant to this direction that a report was submitted showing the value of improvements at more than a lakh of rupees. On 23 2 1973, this Court granted special leave and stayed the operation of the decree on condition that the appellants deposit a sum of Rs.5,000 each year in the Trial Court and permitting the respondents to withdraw the same on furnishing security. On April 1, 1980, this Court passed an order as follows: "Counsel on both sides, after arguments were heard in substantial measure, agreed with us that this was a case pre eminently fit for settlement. The question of law raised is a ticklish one and the consequences will be 'all or nothing '. The suggestion which appears to be acceptable to counsel on both sides is one of two alternatives, the option to choose being left to the respondent, since he has won in the High Court. The alternatives are: (a) the appellant is to pay a sum of Rs.50,000 to the respondent in addition to the respondent being entitled to withdraw an amount of Rs.30,000 plus Rs.8,000 and odd lying in deposit to the credit of the suit. In this event the appeal will stand allowed and the property will be kept by the appellant as owners of the property; (b) alternatively, the respondent will pay to the appellant a sum of Rs.50,000 and the appellant will be further entitled to withdraw a sum of Rs.30,000 plus Rs.8,000 now lying in deposit to the credit of the suit. Thereupon the appellant will surrender posses sion forthwith to the respondent. The property be kept in the same condition as it is now. Post the matter on Tuesday i.e. 8 4 80. " When the matter came before us for hearing, we asked the counsel whether a compromise was possible. We found that the parties were not agreeable for a compromise. The appellants have been in 709 possession of the properties ever since 1934 and have been enjoying the income therefrom. It is true that they have effected improvements to the property. That being so, we feel that the appellants should not be left without any compensation for the improvements effected. We make this observation purely on an equitable basis. We direct the respondents to pay to the appellants a sum of Rs.30,000 in addition to the amount decreed. On such payment the appel lants shall deliver the property to the respondents. The respondents will be at liberty to withdraw the amounts deposited by the appellants in the Trial Court pursuant to the orders of this Court if not already withdrawn. A.P.J. Appeal dis missed. [/INST]The appellants ' father had obtained sale of the property in question during the minority of the respondent through his widowed mother, who was acting as his guardian. The respondent, on attaining majority, filed a suit for declara tion that the said sale deed was invalid and not binding upon him and for recovery of possession of the property. The judgment and decree of the trial Court dismissing the suit was affirmed by the Appellate Court. In Second Appeal, the High Court set aside the judgments of the Court below, allowed the appeal and decreed the suit, directing recovery of possession of properties on payment of Rs.4,700 being the sale consideration and a sum of Rs.4,164 being the compensa tion for improvement. The Special Leave Petition filed by the appellants was dismissed. The respondent filed execution, which was resisted by the appellants on the ground that the properties could not be ordered to be delivered without payment of the value of improvements effected by them subsequent to the year 1952. They also filed an application for the issue of a commission to revalue the improvements, claiming that they had effected improvements to the tune of Rs.gO,O00. The respondent con tested this application denying that the appellants had made any improvements and contended that the question of improve ments had been concluded by the judgment of the High Court in the Second Appeal. The executing Court dismissed this petition. The District Judge allowed the appeal filed by the appellants and set aside the order of the executing Court. The High Court set aside the judgment of the District Judge and restored the order of the executing Court and directed recovery of the property. The High Court observed that "the sum of Rs.4,164.8.0 was directed to be paid not because the respondents were entitled to it, but because the appellant agreed to pay it. ' ' In the appeal to this Court, on behalf of the appellants it was 701 contended: (1) that the judgment of the High Court was wrong and that the conclusion arrived at by the High Court was as a result of confusion regarding the pleadings in the case and the question of law involved; (2) that at the trial stage an issue was struck as issue No. 8 regarding the value of improvements which was adjudicated and the value of improvements was adjudged; (3) that the appellants were tenants within the meaning of section 2(d) of the Kerala Compen sation for Tenants Improvements Act, 1958 (Act 29 of 1958) and that their claim for value of improvements was made on the strength of section 5 of the Act and, therefore, they are entitled to the value of improvements; and (4) that the value of improvements has to be ascertained under the Act on the execution side and their claim cannot be defeated by flourishing the judgment of the High Court and the dismissal of the S.L.P. Dismissing the Appeal, HELD: 1. The suit was filed in 1952. At that time there was no enactment available for the defendant to claim value of improvements. Neither in the original written statement nor in the additional written statement dated 15.11.1954, did the defendants claim the value of improvements under the Act. Though at the execution stage a plea was raised under section 5 of Act 29 of 1958, but in the Judgment in the Second Appeal No. 464 of 1964 dated 27.11.1969, the Division Bench decided that no claim for improvements was made either under section 51 of the Transfer of Property Act or under section 4 of Act 29 of 1958. Moreover, the High Court also found that no objection was taken by the appellants in the lower Appellate Court or before the High Court to the finding that in case of eviction the defendant would be entitled to Rs.4,164.8.0. as compensation. This judgment was rendered when Act 29 of 1958 had already come into force. Against this judgment a special leave petition was filed and dismissed. Thus, there is a concluded finding against the appellants that they were not entitled to anything more than the value of improvements decreed by the trial Court. [706H; 707A C] 2. Section 5 comes into operation only when a defendant against whom a suit for eviction is instituted establishes a claim for compensation under the Act. The Judgment of the High Court rendered in 1969 has clearly held that the value of improvement awarded was not under section 4 of the Act but was an amount agreed by the plaintiff. The appellants cannot succeed and have not succeeded in satisfying this Court that they ever made a claim for compensation under section 4 of the Act and succeeded in such a claim. Therefore, their further claim for getting the improvements revalued cannot be ac cepted. [707E G] 702 3. The question whether a person who came into posses sion of the properties of a minor could be brought within the definition of 'tenant ' in section 2(d)(iii) will have to be considered in an appropriate case. [707G H] 4. Purely on an equitable basis, the respondent shall pay to the appellants a sum of Rs.30,000 in addition to the amount decreed. On such payment the appellants shall deliver the property to the respondent. The respondent shall be at liberty to withdraw the amounts deposited by the appellants in the trial court pursuant to the order of this Court, if not already withdrawn. [709B C] </s>
<s>[INST] Summarize the judgementvil Appeal Nos. 80 & 81 of 1975. From the Judgment and Order dated 26/27.8.1974 of the Gujarat High Court in I.T. Reference Nos. 7 and 29 of 1973. S.C. Patel for the Appellant. Dr. V. Gauri Shanker and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by PATHAK, CJ. The appellant is an assessee who derives income 867 from various sources, including income from the Shrimati Arundhati Balkrishna Trust, Ahmedabad. In assessment pro ceedings for the assessment year 1964 65 the Income Tax Officer found that a sum of Rs. 10,880 had been debited to the interest account maintained in the books of the Ahmeda bad Trust as interest paid to the Harivallabhadas Kalidas Estate Account. Upon further scrutiny, he discovered that substantial debits totalling Rs.2,19,804 included withdraw als from the Estate Account by the Ahmedabad Trust on ac count of the personal expenses of the assessee. After taking into consideration earlier withdrawals from the Estate Account by the Ahmedabad Trust for the purpose of investment and making adjustments for deposits during the year, the Income Tax Officer concluded that the net withdrawals from the Estate Account for personal expenditure were Rs.3,10,806 He held that the proportionate interest of Rs.6,199 out of the total interest of Rs. 10,880 paid by the Ahmedabad Trust to the Estate Account was referable to such withdrawals, and. therefore constituted an inadmissible deduction. Similarly, for the assessment year 1966 67 the Income Tax Officer found that a sum of Rs.25,496 had been shown in the books of account of the Ahmedabad Trust for the relevant previous year as interest paid to the Estate Ac count. He held that of this sum, an amount of Rs.12,833 was referable to withdrawals for purposes other than investment, and accordingly he disallowed the claim of interest to that extent. The assessee appealed to the Appellate Assistant Com missioner of Income Tax, and failing there he proceeded in second appeal to the Income Tax Appellate Tribunal, claiming that the entire amount of interest should have been allowed as a deduction for each year. An additional question raised in respect of the assessment year 1964 65 related to the point whether the assessee was liable to tax on the net income only received by her from the Trust or the income determined in accordance with the provisions of the Income Tax Act in the case of the Trust. The Appellate Tribunal dismissed the appeals of the assessee. At the instance of the assessee the Appellate Tribunal referred the following questions of law to the High Court of Gujarat in respect of the assessment year 1964 65: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was fight in not holding that out of the interest payment of Rs.10,880, Rs.6,199 was not an admissible deduction against the income from other sources? 868 (2) Whether, on the facts and in the circumstances of the case, the income includible in the total income of the assessee is income determinable as per provisions of the Income Tax, 1961 in the case of the Trust or the income receivable by the assessee from the said trust?" The question referred to the High Court for assessment year 1966 67 was: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that out of the interest payment of Rs.25,496, Rs. 12,833 was not an admissible deduction against the income from other sources?" The High Court held that the question relating to the disallowance of part of the interest for the two assessment years was rightly decided against the assessee and in favour of the Revenue. On the second question in the reference for the assessment year 1964 65, the High Court held that the income includible in the total income of the assessee was income determinable in accordance with the provisions of the Income Tax Act in the case of the Trust and not the income actually received or receivable by the assessee from the Trust or according to the entries in the books of accounts of the Trust. In the result that question was also answered against the assessee and in favour of the Revenue. In regard to the question arising in each of the assess ment years 1964 65 and 1966 67 relating to the disallowance of part of the interest claimed as a deduction by the asses see, the High Court relied on the view taken by it earlier in Shrimati Padmavati Jaykrishna vs Commissioner of Income Tax., The judgment of the High Court was considered in appeal by this Court in Padmavati Jaikr ishna vs Addl. Commissioner of Income Tax, Gujarat, and this Court affirmed the view taken by the High Court. For the reasons which found favour with this Court in that case, we must answer the question in the two appeals before us against the assessee and in favour of the Revenue. Turning to the additional question referred to the High Court fo r the assessment year 1964 65, it seems to us clear that what is assessable in the hands of the assessee must be the income of the Trust received by it on behalf of the asses see. It is apparent from section 161(1) of the 869 Income Tax Act, 1961 that a representative assessee, that is to say a trustee, as regards the income in respect of which he is representative assessee, is subject to the same du ties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him bene ficially, and he is liable to assessment in his own name in respect of that income; but any such assessment is deemed to be made upon him in his representative capacity only, and the tax is levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. And section 166 of the. Act clarifies that the provisions relating to the liability of a representative assessee will not prevent either the direct assessment of the person on whose behalf or for whose benefit income is receivable, or the recovery from such person of the tax payable in respect of such income. The Income Tax Officer has the option to proceed either against the trustee or against the beneficiary, but in either case the income to be assessed must be in the same figure. What the trustee receives as the income pertaining to the beneficiary is received by him under an obligation to pass on that income to the beneficiary. However, in most cases administration charges and expenses have to be met out of the Trust 's income and it is only the net income which reaches ' the beneficiary. If the income had to pass directly to the beneficiary and not under trust through a trustee the beneficiary would have equally to meet those outgoings, leaving a net income in his hands which for the purposes of the Income Tax Act would have been computed after reducing the gross income by the deductions admissible under the Act. It seems to us clear that it is not the income shown in the books of account of the Ahmedabad Trust actually paid to the assessee after deduction of the outgoings from the income received in the hands of the Ahmedabad Trust, but the real income of the Ahmedabad Trust has to be included in the total income of the assessee after taking into consideration the different items of permissible deductions in relation to that income. We are of opinion that the High Court is right in the view which it has taken. In the result, the appeals fail and are dismissed with costs. H.L.C. Appeals dismissed. [/INST]By an ex parte order made in the writ petition on 9 th September, 1988, the Court prohibited respondent No. 2, t he management of the Sri Rani Satiji 's Mandir, from performi ng Chunri ceremony within the temple and directed the enti re collection of money to be separately accounted for a nd deposited into a nationalised bank. In this miscellaneous petition, the management soug ht vacation of the ad interim order and lot a direction to t he authorities not to interfere in the matter of collection of money as also articles of gold and silver of deities. Disposing of the miscellaneous petition, the Court, Ordered: 1. The restraint imposed on holding the Chunri ceremo ny within the temple should continue without any variatio n. [68G H] 2.1 Pending disposal of the writ .petition, the temp le complex has to be maintained. Therefore, out of the inco me earned maintenance expenses must be met. [69A] 2.2 If out of the income of this institution any contr i bution was being made to sustain some social institutions of utility, the support should not die out. [69B C] 2.3 The respondent No. 2 is free to move the Distri ct Magistrate in regard to these two aspects and in case t he latter is satisfied that appropriate funds should be r e leased out of the deposits in the bank for 67 one or both of the above said purposes, he would be free to make an appropriate order in respect thereof. </s>
<s>[INST] Summarize the judgementCivil Appeals Nos. 171, 171A 171D of 1969. From the Judgment and decree dated 10 12 1963 of the Allahabad High Court in First Appeal No. 511/55. Lal Narain Sinha, P. P. Singh, J. B. Dadachanji, K. John and J. Sinha for the Appellants. G. N. Dikshit and M. V. Goswami for the Respondent. The Judgment of the Court was delivered by JASWANT SINGH, J. These five appeals by certificates under Article 133(1)(c) of the Constitution granted by the High Court of Judicature at Allahabad shall be disposed of by this judgment as they raise a common question relating to the interpretation of section 39(1) (e) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act No. 1 of 1951) (hereinafter referred to as 'the Act '). As the facts giving rise to these appeals are identical, it shall suffice to narrate the facts of the case culminating in Appeal No. 171 of 1969. The predecessor in interest of the appellants, the late Jodha Mal, owned several private forests in the State of U.P. including the one consisting of three compartments comprising a total area of 484.57 acres in village Rajiwala Attick Farm, Mahal Sansar in District Dehradun. On the vesting of the said forest in the State of U.P. by virtue of section 4 of the Act, the question arose about the assessment and payment of compensation therefor to the heirs of the intermediary. On service of draft compensation roll prepared under section 40 of the Act, each one of the appellants, filed separate objections in regard thereto before the Compensation officer, Dehradun, who disposed of the same by his order dated August 31, 1953 holding that the average annual income for the said forest which could be taken into consideration while computing its compensation was Rs. 4,551/ as disclosed by the appellants ' accounts for a period of 22 years preceding the date of vesting in terms of clause (i) of section 39(1)(e) of the Act and Rs. 450/ was its annual yield on the date of vesting as per terms of clause (ii) of section 39(1) (e) of the Act. Dividing the sum total of these two figures by 2, the Compensation officer held that Rs. 5,001/ was the annual income from the aforesaid forest to the intermediaries. Aggrieved by the computation of compensation, the respondent preferred an appeal to the High Court of Judicature at Allahabad under section SO of the Act. The appellant 's also filed cross appeals claiming that the average annual income as assessed by the Compensation officer was too low. Being of the view that while com 30 puting the average annual income from the forest, both the results arrived at by working both the clauses of section 39(1)(e) of the Act had to be looked into and considered and it had to be objectively decided as to what the average annual income from the forest would be, the High Court held that Rs. 2,000/ and not Rs. 450/ was the income under clause (ii) of section 39(1)(e) of the Act. On the aforesaid basis, the High Court came to the conclusion that Rs. 3,000/ and not Rs. 5,001/ was the average annual income on the basis of which gross assets had to be calculated in computation of compensation in respect of the aforesaid forest. The High Court by its judgment and decree dated December 10, 1963, disposed of the appeal and the cross appeal in the manner indicated above. Aggrieved by the judgment and decree of the High Court, the appellants have come up in appeal to this Court. The respondent has also filed objections with regard to the item of Rs. 2,000/ . Mr. Lalnarayan Sinha appearing on behalf of the appellants has raised a very short point. Assailing the method adopted by the High Court in computing the compensation, he has urged that the High Court has missed the real purport and meaning of the provisions relating to the computation of compensation and that the relevant portion of section 39 of the Act did not authorise the High Court to calculate the compensation by taking a mean of the aforesaid two figures. He has further urged that having worked out the average annual income according to the method indicated in clause (i) of section 39(1)(e) of the Act, the High Court was not required to work out the annual yield of the forest on the date of vesting. We regret, we cannot accede to this contention. Section 39(1) (e) of the Act provides as follows: "39.Gross assets of a mahal. (1) Gross assets as respects a mahal shall be the aggregate gross income of the land or estate comprised in the mahal and such income shall comprise . . . (e)average annual income from forests, which shall be computed (i) on the basis of the income for a period of twenty to forty agricultural years immediately preceding the date of vesting as the Compensation officer may consider reasonable, and (ii) on the appraisement of the annual yield of the forest on the date of vesting. " 31 It will be noticed that the opening words of the above quoted section which is couched in very emphatic terms govern not only clause (i) but also clause (ii ) of section 39 ( 1 ) (e) of the Act. Consequently neither of the two factors mentioned in section 39(1)(e) of the Act can be ignored while computing the average annual income. Now so far as the connotation of the word 'average ' is concerned, it does not admit of any doubt. According to shorter oxford English Dictionary, the word 'average ' means arithmetical mean to estimate by dividing the aggregate of a series by the number of its units '. The same is the connotation of the word 'average ' according to the Random House Dictionary of the English Language where the total receipt has been stated to mean the total receipt from sales divided by the number of the units sold. On a true construction of section 39(1)(e) of the, Act, it appears to us that the legislature cast an obligation on the Compensation officer to work out the compensation by computing the average annual income giving due weight to both the factors mentioned in the aforesaid clauses (i) and (ii). Accordingly, we are of the view that the High Court was correct in computing the average income by adding up to two figures i.e. Of Rs. 4,551/ and Rs. 2,000/ and arriving at a mean on that basis. The position is also not res integra as in Smt. Durgi Devi & Ors. vs State of U.P.(l) this Court held that the average annual income has to be arrived at by taking into consideration not only the income referred to in clause (i) of section 39(1) (e) but also the estimated annual yield of the forest on the date of vesting. The following observations made therein are apposite. "A plain reading of clause (e) of section 39(1) shows that its sub clauses (i) and (ii) do not provide for two alter native methods of calculating the average annual income of the forest. The conjunction 'and ' at the end of sub clause (i) cannot be read as "or". It conjoins the two sub clauses, and in effect, read in the context of "shall" in the opening part of clause (e), mandates the compensation officer to take both the factors into consideration in assessing the average annual income from the forest. The reason why the legislature has made compliance with the requirement of this sub clause (ii), also, obligatory, appears to be to ensure that the compensation assessed has a reasonable nexus and proportion to the actual and potential value of the forest as on the date of vesting. If a forest has been repeatedly, wholly and indiscriminately exploited within forty years or less imme (1) ; 3 S.C.C. 101. 32 diately before the vesting, its actual and potential value as a forest on the date of the vesting might be far less than the one calculated on the basis of its average annual income of the preceding 20 to 40 years as the case may be. In such a case, average annual income calculated merely on the basis of the income for a period of 20 to 40 years preceding the vesting, may cause fortuitous inflation in the assessment of compensation. Conversely, if a forest has been very little exploited in the preceding forty years and is well preserved and well developed on the date of vesting than calculation of its average annual income on the basis of sub clause (i) alone, without taking into account its potential yield on the date of the vesting, will make the compensation assessed wholly illusory, having no relation whatever to the value of the forests as at the date of vesting. Entry of the appraised annual yield of the forest on the date of vesting, into computation under clause (e), operates as a counterpoise against fortuitous inflation or deflation in the assessment. " Again in Ganga Devi vs State of Uttar Pradesh(1) it was pointed out by this Court that in computing the average annual income under clause (e) of section 39(1), the compensation officer has to refer to both these sub clauses (i) and (ii). He cannot adopt either of these sub clauses. It was also pointed out that under sub clause (ii) the annual yield on the date of vesting is to be appraised by taking into consideration, inter alia the number and age of the trees, the area under forest and the produce. For the foregoing reasons, we find no merit in these appeals which are dismissed with costs. S.R. Appeals dismissed. [/INST]The appellant who was working as Joint Director, Family Planning in the Directorate General of the All India Radio was prematurely retired from ser vice. She made a representation, but it was rejected. In her writ petition under article 226 of the Constitution she alleged that she had a long and clean record of nearly three decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of the Central Board of Film Censors. She also alleged that the impugned order was arbitrary and capricious and that the retiring authority had not applied its mind to the record of her case. The writ petition was dismissed in limine. On the appeal, the first respondent conceded that there was nothing on the record to justify the impugned order, and that the Government was not in a position to support that unfair order. Allowing the appeal, ^ HELD: (1) There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence tho Central Government m making the impugned order. It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact. [205E] (2) Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. [205G] . Shearer & Anr. vs Shields, at p. 813 referred to. (3) It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in bad faith. [205H 206A] 203 Pilling vs Abergele Urban District Council. [1950] 1 K.B. 636: referred to. (4) The principle which is applicable in such cases is that laid down by Lord Esher M.R. in at p. 375, and followed in 3. [206C D] (5) When a public body is prompted by a mistaken belief in the existence of a non existing fact or circumstance it will be an error of fact. That is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith. [206E] (6) When the respondent conceded that there was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power which was vested in the authority concerned as it had admitted the influence of extraneous matter. [206H 207A] (7) It will be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the "public interest", to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. [206F] (8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power. [206G] </s>
<s>[INST] Summarize the judgement65 of 1958. Petition under Article 32 of the Constitution of India for enforcement of fundamental rights. AND CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 112 of 1958. 277 Appeal by special leave from the judgment and order dated February 28, 1958, of the Punjab High Court in Criminal Revision No. 145 of 1958. N. C. Chatterjee and Nanak Chand, for the petitioner and the appellant. H. N. Sanyal, Additional Solicitor General of India, H J. Umrigar, R. H. Dhebar and T. M. Sen, for the respondent in both the matters. November 4. The Judgment of Das, C. J., Bhagwati, Sinha and Wanchoo, JJ. was delivered by Sinha J., Subba Rao, J., delivered a separate judgment. SINHA, J. Petition Nos. 65 of 1958, under article 32 of the Constitution, on behalf of one Thomas Dana, and Criminal Appeal No. 112 of 1958, by special leave to appeal granted to one Leo Roy Frey (appellant), raise substantially the same question of some constitutional importance, and have, therefore, been heard together, and will be covered by this judgment. The main question for determination in these two cases, is whether there has been an infringement of the constitutional protection granted under article 20(2) of the Constitution. For the sake of brevity and convenience, we shall refer to Thomas Dana as the first petitioner, and Leo Roy Frey, as the second petitioner, in the course of this Judgment. The relevant facts are these : The first petitioner is a Cuban national. He came to India on a special Cuban passport No. 11822, dated November 16, 1954, issued by the Government of the Republic of Cuba. The second petitioner is a citizen of the United States of America, and holds a U.S.A. passport No. 45252, dated July 1, 1955. In May, 1957, both the petitioners were in Paris. There, the second petitioner purchased a motor car from an officer of the American Embassy. He is said to have sold that car to the first petitioner on May 14, 1957, and the same month, it was registered in the first petitioner 's name. The two petitioners sailed by the same steamer at the end of May. The car was also shipped by the same steamer. They reached Karachi on June 11, 1957, and from there, flew to Bombay. From June 11 to 19, 1957, they 278 stayed together in Hotel Ambassador in Bombay. The car was delivered to the first petitioner in Bombay on June 13, and on June 19, both of them flew from Bombay to Delhi. In Delhi also, they stayed together at Hotel Janpath. The first petitioner received the car at Delhi by rail on June 22, and the same night, the two petitioners left by the said car for Amritsar, where they reached after mid night, and stayed in Mrs. Bhandari 's Lodge. On the morning of June 23, they reached Attari Road Land Customs Station by the same car (No. CD On arrival at Attari, the petitioners presented themselves for completing customs formalities for crossing over to Pakistan. The Customs officers at Attari Road Land Customs Station, handed over to them the Baggage Declaration forms, to declare the articles that they had in their possession, including any goods which were subject to the Export Trade Control and/or Foreign Exchange Restrictions, and/or were dutiable. Both the petitioners completed the forms aforesaid, and handed those completed statements over to the Customs officers. The first petitioner declared the under noted articles: Indian currency Rs. 40 Pakistan currency Rs. 50 U. section Dollars $. 30.00 Gold ring I (valued at Rs. 100) Personal effects Valued at $ 100.00 Car Valued at Rs. 15,000 On suspicion, the Customs officers searched his baggage which was being carried in the car aforesaid. His person was also searched, and as a result of the search, the under noted articles which had not been declared by him, were recovered : Indian currency Rs. 900 Pakistan currency Rs. 250 U. section Dollars $ 1.00 Hong Kong Dollars $ 1100 Thailand currency 78 Pocket radio 1 Time piece 1 279 The second petitioner, in his statement, had declared the following articles: Indian currency Rs. 40 U. section Dollars $ 500.00 U. section Coins $ 1.23 Belgian coins BF 26.00 French coins BF 205.00 Italian coins L. 400.00 Wrist watch I Personal effects Rs. 1,00,000 On suspicion, the Customs staff searched the person of the second petitioner also. They recovered from him one pistol of 22 bore with 48 live cartridges of the same bore. As he could not produce a valid licence under the Indian law, the pistol and the cartridges were handed over to the police, for taking appropriate action under the Indian Arms Act. The car was thoroughly searched, and as a result of the intensive search and minute examination on June 30, 1957, a secret chamber above the petrol tank, behind the hind seat of the car, was discovered. The chamber was opened, and the following things which had not been declared by the petitioners, were recovered from inside the secret chamber: Indian currency Rs. 8,50,000 U. section Dollars $ 10,000.00 Empty tin containers 10(The containers bore (rectangular) marks to indicate that they were used for carrying gold bars) Mirror 1. besides other insignificant things. Under the Indian law, Indian currency over Rs. 50, Pakistan currency over Rs. 100 and any foreign currency, could not be exported out of India, without the permission of the Reserve Bank of India. The export of a pocket radio also required a valid licence under the Imports and Exports (Control) Act, 1947. The petitioners could not produce, on demand the requisite permission from the Reserve Bank of India. ' or the licence for the export of the pocket radio, or a permit for exporting 280 a time piece, as required by the . The car also was handed over to the police for necessary action. The offending articles, namely Indian currency Rs.8,50,900 Pakistan currency Rs.250 U. section Dollars $ 10,001.00 Hong Kong Dollar $.1.00 Thailand currency T.78.00 pocket radio, and the time piece, etc., were seized under section 178 of the . Both the petitioners were taken into custody for infringement of the law. On July 7, both the petitioners were called upon to show cause before the Collector of Central Excise and Land Customs, New Delhi, why a penalty should not be imposed upon them under section 167(8) of the , and why the seized articles aforesaid, should not be confiscated under section 167(8) and section 168 of the Act. Both the petitioners objected to making any statements in answer to the show cause notice, on the ground that the matter was. subjudice and any statement made by them, might prejudice them in their defence. But at the same time, the second petitioner disclaimed any connection with the car in which the two petitioners were travelling, and which had been seized. After some adjournments granted to the petitioners to avail themselves of the opportunity of showing cause, the Collector of Central Excise and Land Customs, New Delhi, passed orders on July 24, 1957. He came to the conclusion that the petitioners had planned to smuggle Indian and foreign currency out of India, in contravention of the law. They had been acting in concert with each other, and had, throughout the different stages of their journey from France to India, been acting together, and while leaving India for Pakistan, were travelling together by the same car, until they reached the Attari Road Land Customs Station, on their way to Pakistan. He directed that the different kinds of currency which had been seized, as aforesaid, from the possession of the petitioners, be " absolutely confiscated " for contravention of section 8(2) of the Foreign Exchange Regulation Act, 1947, read with sections 23 A 281 and 23 B of the Act. He also directed the confiscation of the car aforesaid, which could be redeemed on payment of a " redemption fine " of Rs. 50,000. He also ordered the confiscation of the pocket radio and the time piece and other articles seized, as aforesaid, under section 167(8) of the , read with section 5 of the Imports and Exports (Control) Act, 1947, and section 7 of the . He further imposed a personal penalty of Rs. 25,00,000 on each of the petitioners, under section 167(8) of the . After making further inquiry, on August 12, 1957, the Assistant Collector of Customs and Central Excise, Amritsar, under authority from the Chief Customs Officer, Delhi, filed a complaint against the petitioners and a third person, named Moshe Baruk of Bombay, (since acquitted), under section 23, read with section 8, of the Foreign Exchange Regulation Act, 1947, and section 167 (81) of the . The petition of complaint, after stating the facts stated above, charged the accused persons with offences of attempt ing to take out of India Indian and foreign currency, in contravention of the provisions of the Acts referred to above. After recording considerable oral and documentary evidence, the learned Additional District Magistrate, Amritsar, by his judgment dated November 13, 1957, convicted the petitioners, and sentenced them each to two years ' rigorous imprisonment under section 23, read with section 23 B, of the Foreign Exchange Regulation Act, six month 's rigorous imprisonment under section 120 B(2) of the Indian Penal Code, the sentences to run con currently. It is not necessary to set out the convictions and sentences in respect of the third accused Moshe, who was subsequently acquitted by the High Court of Punjab, in exercise of its revisional jurisdiction. The learned Magistrate also, perhaps, out of abundant caution, directed that " The entire amount of currency and foreign exchange and the car in which the currency had been smuggled as well as the sleeveless shirt exhibit P. 39 and belt exhibit P. 40 shall be 36 282 confiscated to Government ". This order of confiscation was passed by the criminal court, notwithstanding the fact, as already stated, that the Collector of Central Excise and Land Customs, New Delhi, had ordered the confiscation of the offending articles under section 167(8) of the and the other related Acts referred to above. On appeal by the convicted persons, the learned Additional Sessions Judge, Amritsar, by his judgment and order dated. December 13, 1957, dismissed the appeal after a very elaborate examination of the facts and circumstances brought out in the large volume of evidence adduced on behalf of the prosecution. It is riot necessary, for the purposes of these cases, to set out in detail the findings arrived at by the appellate court, or the evidence on which those conclusions were based. It is enough to state that both the courts of fact agreed in coming to the conclusion that the accused persons had entered into a conspiracy to smuggle contraband property out of this country. The petitioners moved the High Court of Judicature for the State of Punjab, separately, against their convictions and sentences passed by the courts below, as aforesaid. Both the revisional applications were dismissed summarily by the learned Chief Justice. By his order dated February 28, 1958, the learned Chief Justice refused to certify that the case was a fit one for appeal to this Court. The petitioners then moved this Court for, and obtained, special leave to appeal from the judgment and orders of the courts below, convicting and sentencing them, as stated above. They also moved this Court for writs of habeas corpus. The petition of the first petitioner for a writ of habeas carp= was admitted, and was numbered as petition No. 65 of 1958, and a rule issued. The writ petition on behalf of the second petitioner was dismissed in limited. All these orders were passed on April 28, 1958. Subsequently, the first petitioner moved this Court for revocation of the special leave granted to him, and for an early hearing of his writ petition No. 65 of 1958, as the points for consideration were common to both the cases. This 283 Court granted the prayers by its order dated May 13,1958. Before dealing with the arguments advanced on behalf of the petitioners, in order to complete the narrative of events leading up to the filing of the cases in this Court, it is necessary to state that the petitioners had moved this Court separately under article 32 of the Constitution, against their prosecution in the Magistrate 's court, after the aforesaid orders of confiscation and penalty, passed by the Collector of Customs. They prayed for a writ of certiorari and/or prohibition, and for quashing the proceedings. There was also a prayer for a writ in the nature of habeas corpus. On that occasion also, the protection afforded by article 20(2) of the Constitution, was pressed in aid of the petitioners ' writ applications. This Court, after hearing the parties, dismissed those writ petitions, holding that the charge against the petitioners included an offence under s.120B of the Indian Penal Code, which certainly was not one of the heads of charge against them before the Collector of Customs. This Court, therefore, without deciding the applicability of the provisions of article 20(2) of the Constitution, to the facts and circumstances of the present case, refused to quash the prosecution. The question whether article 20(2) of the Constitution, barred the pro secution of the petitioners under the provisions of the and the Foreign Exchange Regulation Act, was apparently left open for future determination, if and when the occasion arose. In view of the events that have happened since after the passing of the order of this Court, dated October 31, 1957, (reported in ; , it has now become necessary to determine that controversy. It was vehemently argued on behalf of the petitioners that the prosecution of the petitioners under the provisions of the Acts aforesaid, and their convictions and imposition of sentences by the courts below, infringe the protection against double jeopardy enshrined in article 20(2) of the Constitution, which is in these terms 284 " No person shall be prosecuted and punished, for the same offence more than once. " It is manifest that in order to bring the petitioners ' case within the prohibition of article 20(2), it must be shown that they had been " prosecuted " before the Collector of Customs, and " punished " by him for the " same offence " for which they have been convicted and punished as a result of the judgment and orders of the courts below, now impugned. If any one of these three essential conditions, is not fulfilled, that is to say, if it is not shown that the petitioners had been it prosecuted " before the Collector of Customs, or that they had been " punished " by him in the proceedings before him, resulting in the confiscation of the properties aforesaid, and the imposition of a heavy penalty of Rs. 25,00,000, each, or that they had been convicted and " sentenced" for the " same offence ", the petitioners will have failed to bring their case within the prohibition of article 20(2). It has been argued, in the first instance, on behalf of the petitioners that they had been " prosecuted " within the meaning of the article. On the other hand, the learned Additional Solicitor General has countered that argument by the contention that the previous adjudication by the Collector of Customs, was by an administrative body which has to act judicially, as held by this Court in F. N. Roy vs Collector of Customs(1), and reiterated in Leo Roy Frey vs Superintendent, District Jail, Amritsar (2); but the Collector was not a criminal court which could in law, be said to have tried the petitioner for an offence under the Indian Penal Code, or under the penal provisions of the other Acts mentioned above. It is, therefore, necessary first to consider whether the petitioners had really been prosecuted before the Collector of Customs, within the meaning of article 20(2). To " prosecute ", in the special sense of law, means, according to Webster 's Dictionary, " (a) to seek to obtain, enforce, or the like, by legal process; as, to prosecute a right or a claim in a court of law. (b) to pursue (a person) by legal proceedings for redress or (1) ; (2) ; 285 punishment; to proceed against judicially; espy., to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form before a legal tribunal; as, to prosecute a man for trespass, or for a riot." According to Wharton 's Law Lexicon, 14th edn., p. 810, " prosecution " means " a proceeding either by way of indictment or information,, in the criminal courts, in order to put an offender upon his trial. In all criminal prosecutions the King is nominally the prosecutor. " This very question was discussed by this Court in the case of Maqbool Hussain vs The State of Bombay (1), with of reference to the context in which the word " prosecution " occurred in article 20. In the course of the judgment, the following observations, which apply with full force to the present case, were made: ". . and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. " In that case, this Court discussed in detail the provisions of the , with particular reference to Chapter XVI, headed " Offences and Penalties ". After examining those provisions, this Court came to the following conclusion: "We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudgeing of confiscation, increased rate of duty or penalty under the provisions of the do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy." The learned counsel for the petitioners, did not categorically attack the correctness of that decision, but suggested that that case could be distinguished on the ground that in the present case, unlike the case then before this Court, a heavy penalty of Rs. 25,00,000 on each of the petitioners, was imposed by the Collector of Central Excise and Land Customs, (1) ; , 738, 739, 743. 286 besides ordering confiscation of properties and currency worth over 81 lacs. But that circumstance alone cannot be sufficient in law to distinguish the previous decision of this Court, which is otherwise directly in point. Simply because the Revenue Authorities took a very serious view of the smuggling activities of the petitioners, and imposed very heavy penalties under item 8 of the Schedule to section 167 of the , would not convert the Revenue Authorities into a court of law, if the Act did not contemplate their functioning as such. That the did not envisage the Chief Customs Officer or the other officers under him in the hierarchy of the Revenue Authorities under the Act, to function as a Court, is made absolutely clear by certain provisions of that Act. The most important of those is the new section 187A, which was inserted by the Sea Customs (Amendment) Act, (21 of 1955). That section is in these terms:" 187A. No Court shall take cognizance of any offence relating to Smuggling of goods punishable under item 81 of the Schedule to section 167, except upon complaint in writing, made by the Chief Customs officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorized in this behalf by the Chief Customs officer. " This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him, in the Customs department, is not a " court ", and that the offence punishable under item 81 of the Schedule to section 167, cannot be taken cognizance of by any court, except upon a complaint in writing, made, as prescribed in that section. This section, in our opinion, sets at rest the controversy, which has been raised in the past upon certain expressions, like " offences " and " penalties used in Chapter XVI. These words have been used in that Chapter in their generic sense and not in their specific sense under the penal law. When a proceeding by the Revenue Officers is meant, as is the case in most of the items in the Schedule to section 167, those officers have been empowered to deal with the offending articles by way of confiscation, or with the person 287 infringing those rules, by way of imposition of penalties in contradistinction to a sentence of imprisonment or fine or both. When a criminal prosecution and punishment of the criminal, in the sense of the Penal law, is intended, the section makes a specific reference to a trial by a Magistrate, a conviction by such Magistrate, and on such conviction, to imprisonment or to fine or both. In this connection, reference may be made to the penalties mentioned in the third column against items 72, 74, 75, 76, 76A, 76B, 77, 78 and 81, which illustrate the latter class of the penalty in column 3. The penalties mentioned in the third column of most of the items of the Schedule to section 167 of the Act, do not make any reference to a conviction by a Magistrate and punishment by him in terms of imprisonment or of fine or of both. For example, item 76C, which was inserted by the Sea Customs Amendment Act X of 1957, in the third column meant for penalties, has only this " such vessel shall be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding one thousand rupees". Item 76A, on the other hand, specifically mentioning conviction, imprisonment and fine, was inserted by XXI of 1955. Both the amending Acts, by which the aforesaid additional offences were created, and penalties prescribed, were enacted after the coming into force of the Constitution. The Legislature was, therefore, aware of the distinction made throughout the Schedule to section 167, between a proceeding before Revenue authorities by way of enforcing the preventive and penal provisions of the Schedule and a criminal trial before a Magistrate, with a view to punishing offenders under the provisions of the same section. It is, therefore, in the teeth of these provisions to contend that the imposition of a penalty by the Revenue officers in the hierarchy created by the Act, is the same thing as a punishment imposed by a criminal court by way of punishment for a criminal offence. This distinction has been very clearly brought out in the recent judgment of this Court in the case of Sewpujanrai Indrasanrai Ltd. vs The Collector of 288 Customs(2). In that case, though the question of double jeopardy under article 20(2) of the Constitution, had not been raised, this Court has pointed out the difference in the nature of proceedings against offending articles and offending persons. A proceeding under the and the corresponding provisions of the Foreign Exchange Regulation Act, in respect of goods which have been the subject matter of the proceeding, has been held to be of the nature of a proceeding in rem whereas, a proceeding against a person concerned in smuggling goods within the purview of those Acts, is a proceeding in personam, resulting in the imposition of a punishment by way of imprisonment or fine on him, where the offender is known. In the former case, the offender may not have been known, but still the offending goods seized may be confiscated as a result of the proceedings in rem. That case was not concerned with the further question whether, besides the liability to the penalty as contemplated by section 23(1)(a), namely, a penalty not exceeding three times the value of the foreign exchange in respect of which the contravention had taken place, the person contravening the provisions of the Foreign Exchange Regulation Act, 1947, upon conviction by a court, is also punishable with imprisonment which section 23(1)(b) prescribes, namely, imprisonment for a term which may extend to 2 years, or with fine, or with both. The decision of this Court (supra) is also an authority for the proposition that in imposing confiscation and penalty under the , the Collector acts judicially. But that is not the same thing as holding that the Authority under section 167 of the Act, functions as a Judicial Tribunal or as a Court. An Administra. five Tribunal, like the Collector and other officers in the hierarchy, may have to act judicially in the sense of having to consider evidence and hear arguments in an informal way, but the Act does not contemplate that in so doing, it is functioning as a court. As already pointed out, section 187A, which was inserted by the Amending Act of 1955 (21 of 1955), brings out, in bold relief, the legal position that the Chief Customs (I) ; 289 Officer or any other officer of Customs, does not function as a court or as a Judicial Tribunal. All criminal offences are offences, but all offences in the sense of infringement of a law, are not criminal offences. Likewise, the other expressions have been used in their generic sense and not as they are understood in the Indian Penal Code or other laws relating to criminal offences. Section 167 speaks of offences mentioned in the first column in the Schedule, and the third column in that Schedule lays down the penalties in respect of each of the contravention of the rules or of the sections in the Act. There are as many as 81 entries in the Schedule to section 167, besides those added later, but each one of those 81 and more entries, though an offence, being an act infringing certain provisions of the section is and rules under the Act, is not a criminal offence. Out of the more than 81 entries in the Schedule to section 167, it is only about a dozen entries, which contemplate prosecution in the criminal sense, the remaining entries contemplate penalties other than punishments for a criminal offence. The provisions of Chapter XVII of the Act, headed " Procedure relating to offences, Appeals, etc.", also make it clear that the hierarchy of the Customs Officers under the Act have not been empowered to try criminal offences. They have been only given limited powers of search. Similarly, they have been given limited powers to summon persons to give evidence or to produce documents. It is true that the Customs Authorities have been empowered to start proceedings in respect of suspected infringements of the provisions of the Act, and to impose penalties upon persons concerned with those infringements, or to order confiscation of goods or property which are found to have been the subjectmatter of the infringements, but when a trial on a charge of a criminal offence is intended under any one of the entries of the Schedule aforesaid, it is only the Magistrate having jurisdiction, who is empowered to impose a sentence of imprisonment or fine or both. it was also suggested in the course of the argument that the use of a particular phraseology in the Act, 37 290 should not stand in the way of looking at the substance of the matter. It may be that the Act has drawn a distinction between confiscation of property and goods, and imposition of penalties on persons concerned with the infringement, on the one hand, and the imposition of a sentence of imprisonment or fine or both by a Magistrate, on the other hand; but, it is further contended, the Customs Authorities, who impose a penalty or who order confiscation of goods of very large value, are in substance imposing punishments within the meaning of the criminal law. In this connection, our particular attention was drawn to para. 24 of the order dated July 24, 1957, passed by the Collector of Central Excise and Land Customs, New Delhi, which is in these terms: " 24. Having regard to all the circumstances of the case, I find that both Sarvshri Thomas Dana and Leo Roy Frey are equally guilty of the offence. They attempted to smuggle Indian and foreign currency out of India. I hold both of them as the persons concerned in the offence committed under section 167(8) of the . The foregoing facts prove beyond doubt that the offence was the result of the most deliberate and calculated conspiracy to smuggle this huge amount of currency out of the country. The offenders, therefore, deserve deterrent punishment. 1, therefore, impose a personal penalty of Rs. 25,00,000 (Rupees twenty five lakhs only) each on Shri Thomas Dana and Shri Leo Roy Frey which should be paid within two months from the date of this order or such extended period as the adjudicating officer may allow. " The expressions " equally guilty of the offence the offence was the result of the most deliberate and calculated conspiracy to smuggle ", and " deserve deterrent punishment ", have been greatly emphasized in aid of the argument that the Collector had really intended to punish the petitioners in respect of the " offence", and found them ',guilty". It is true that these expressions are commonly used in judgments given in criminal trials, but the same argument can be used 291 against the petitioners by saying that mere nomenclature does not matter. What really matters is whether there has been a " prosecution ". It is true that the petitioners were dealt with by the Collector of Central Excise and Land Customs, for the" offence " of smuggling; were found " guilty ", and a deterrent " punishment " was imposed upon them, but as he had not been vested with the powers of a Magistrate or a criminal court, his proceedings against the petitioners were in the nature of Revenue proceedings, with a view to detecting the infringement of the provisions of the , and imposing penalties when it was found that they had been guilty of those infringements. Those penalties, the Collector had been empowered to impose in order not only to prevent a recurrence of such infringements, but also to recoup the loss of revenue resulting from such infringe ments. A person may be guilty of certain acts which expose him to a criminal prosecution for a criminal offence, to a penalty under the law intended to collect the maximum revenue under the Taxing law, and/or, at the same time, make him liable to damages in torts. For example, an assessee under the Income tax law, may have submitted a false return with a view to defrauding the Revenue. His fraud being detected, the Taxing Officer may realise from him an amount which may be some multiple of the amount of tax sought to be evaded. But the fact that he has been subjected to such a penalty by the Taxing Authorities, may not avail him against a criminal prosecution for the offence of having submitted a return containing false statements to his knowledge. Similarly, a person may use defamatory language against another person who may recover damages in tort against the maker of such a defamatory statement. But the fact that a decree for damages has been passed against him by the civil court, would not stand in the way of his being prosecuted for defamation. In such cases, the law does not allow him the plea of double jeopardy. That this is the law in America also, is borne out by the following quotation from the " Constitution 292 of the United States of America " revised and annotated in 1952 by Edward section Corwin at p. 840: "A plea of former jeopardy must be upon a prosecution for the same identical offense. The test of identity of offenses is whether the same evidence is required to sustain them; if not, the fact that both charges relate to one transaction does not make a single offense where two are defined by the statutes. Where a person is convicted of a crime which includes several incidents, a second trial for one of those incidents puts him twice in jeopardy. Congress may impose both criminal and civil sanctions with respect to the same act or omission, and may separate a conspiracy to commit a substantive offense from the commission of the offense and affix to each a different penalty. A conviction for the conspiracy may be had though the subsequent offense was not completed. Separate convictions under different counts charging a monopolization and a conspiracy to monopolize trade, in an indictment under the Sherman Antitrust Act, do not amount to double jeopardy. ". A forfeiture proceeding for defrauding the Government of a tax on alcohol diverted to beverage uses is a proceeding in rem, rather than a punishment for a criminal offense, and may be prosecuted after a conviction of conspiracy to violate the statute imposing the tax. " To the same effect is the following placitum tinder article 240 in Vol. 22 of 'Corpus Juris Secundum ', headed " Offenses and Proceedings in Which Former Jeopardy Is a Defense ": " The doctrine applies to criminal prosecution only and generally to misdemeanours as well as felonies. A former conviction or acquittal does not ordinarily preclude subsequent in rem proceedings, civil actions to recover statutory penalties or exemplary damages, or proceedings to abate a nuisance. " On behalf of the petitioners, their learned counsel placed reliance upon the two American decisions in Morgan vs Zevine (1) and United States of America vs (1) ; ; 293 Anthony La Franca (,). The former decision is really against the contention of double jeopardy, raised in this case. That case lays down that persons who steal postage stamps and postal funds from a post office of the United States, after having committed burglary, and thus, having effected their entry into the premises, committed two distinct offences which may be separately charged and punished under the United States ' Penal Code. Two separate convictions and Sentences as for two distinct offences in those circumstances were not held to be within double jeopardy within the meaning of the United States ' Constitutional 5th Amendment. The reason given for the decision against the contention of double jeopardy was that though the offences had been committed in the same transaction, they had been constituted separate and distinct offences by the United States ' Penal Code articles 190 and 192. In the latter case, the plea of double jeopardy was given effect to because the special statutes, infringements of which formed the subjectmatter of the controversy, namely, for unlawfully selling intoxicating liquor, had made a specific provision that if any act is a violation of earlier laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and also of the National Prohibition Act, a conviction for such act or offence under one statute, shall be a bar to prosecution therefor under the other. It is clear, therefore, that where there is a specific statutory provision creating a bar to a second prosecution, the court is bound to give effect to the plea of double jeopardy. It is not necessary to refer to certain decisions of the English courts, relied upon by the learned counsel for the petitioners, because those cases had reference to the question whether certain orders passed by certain courts were or were not made in a criminal case or matter within the meaning of the statutes then under consideration before the court. Those are observations made with reference to the terms of those statutes, and are of no assistance in the present controversy. The learned counsel for the petitioners was not able to produce before us any (1) ; ; 294 authority in support of the proposition that once a person has been dealt with by the Revenue Authorities for an infringement of the law against smuggling, he cannot also be prosecuted in a criminal court for a criminal offence. In view of these considerations, and particularly in view of the decision of this Court in the case of Maqbool Hussain vs The State of Bombay (1), there is no escape from the conclusion that the proceedings before the Sea Customs Authorities under section 167(8) were not " prosecution " within the meaning of article 20 (2) of the Constitution. In that view of the matter, it is not necessary to pronounce upon the other points which were argued at the Bar, namely, whether there was a " punishment " and whether " the same offence " was involved in the proceedings before the Revenue Authorities and the criminal court. Unless all the three essential conditions laid down in el. (2) of article 20, are fulfilled, the protection does not become effective. The prohibition against double jeopardy would not become operative if any one of those elements is wanting. It remains to consider a short point raised particularly on behalf of the second petitioner (Leo Roy Frey). It was argued that the letter exhibit P. DD/2, admittedly written by him to his father in German, had not been specifically put to him with a view to eliciting his explanation as to the circumstances and the sense in which it had been written. The learned Magistrate in the trial court put the following question (No. 20) to him : " It is in evidence that exhibit P. FF/I is the translation of the letter exhibit P. DD/2. What have you to say about it The answer given by the accused to this question was " The translation of exhibit P. FF/I is mostly correct except for few variations which could have been due to misinterpretation of handwriting ". It is clear from the question and answer quoted above, that the learned Magistrate did afford an opportunity to this petitioner to explain the circumstances appearing in the (1) ; , 738, 739, 743 295 evidence against him with particular reference to the letter. If the court had persisted in putting more questions with reference to that letter, perhaps, it may have been argued that the examination under section 342 of the Code of Criminal Procedure, was in the nature of a cross examination of the accused person, which is not permitted. In our opinion, there is no substance in the contention that the petitioner had not been properly examined under section 342, Criminal Procedure Code, to explain the circumstances appearing in the evidence against him. It follows from what has been said above, that there is no merit either in the appeal or in the petition. They are, accordingly dismissed. SUBBA RAO, J. I have had the advantage of reading the judgment prepared by Sinha J., but I cannot persuade myself to agree with my learned brother. The facts are fully stated in the judgment of my learned brother and therefore it would suffice if I restate briefly the facts strictly relevant to the question raised. On June 11, 1957, the petitioner arrived at Bombay, later came to Delhi and from there he travelled to Amritsar by car in company with Mr. Leo Roy Frey. On June 23, 1957, he reached Attari Road Land Customs Station and was arrested under section 173 of the (Act VIII of 1878) on suspicion of having committed an offence thereunder. He was served with a notice by the Collector of Central Excise and Land Customs, New Delhi, on July 7, 1957, to show cause why penalty should not be imposed on him under section 167(8) of the (hereinafter called the Act) and section 7(2) of the , and why the goods should not be confiscated. By order dated July 24, 1957, the petitioner was adjudged guilty under section 167(8) of the Act and currency of the value of over 9 lakhs, car worth Rs. 50,000, and other things were confiscated, and he was punished with personal penalty of Rs. 25,00,000. The petitioner was again prosecuted on the same facts before the Additional District Magistrate, Amritsar, on charges under section 167(81) of the Act and sections 23 and 23B of the 296 Foreign Exchange Regulation Act. 'He was convicted on charges under section 23 read with section 23B of the Foreign Exchange Regulation Act, section 167(81) of the Act and section 120B of the Indian Penal Code and sentenced to imprisonments of 2 years, 6 months and 6 months respectively by 'the Additional District Magistrate, Amritsar. The conviction and sentences were confirmed on appeal by the Additional Sessions Judge, and the revision filed in the High Court was dismissed. The learned counsel for the petitioner contends that the Courts in punishing him violated the fundamental right conferred on him under article 20(2) of the Constitution as he hag been prosecuted and punished for the same offence by the Collector of Customs. The learned Additional Solicitor General counters this argument by stating that the petitioner was not prosecuted earlier before a judicial tribunal and punished by such tribunal, and, in any view, the prosecution was not for the same offence with which he was charged before the Magistrate, and therefore this case does not fall within the Constitutional protection given under article 20(2). Before addressing myself to the arguments advanced it would be convenient at this stage to steer clear of two decisions of this Court. The first is Maqbool Hussain vs The State of Bombay (1). There proceedings had been taken by the Sea Customs Authorities under section 167(8) of the Act and an order for confiscation of goods had been passed. The person concerned was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act. This Court held that the proceeding before the Sea Customs Authorities was not a prosecution and the order for confiscation was not a punishment inflicted by a Court or a judicial tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The important factor to be noticed in that case is that the Sea Customs Authorities did not proceed against the person concerned but only confiscated the goods found in his possession. At page (1) ; 297 742 Bhagwati J. says " Confiscation is no doubt one of the penalties which the Customs Authorities can impose. But that is more in the nature of proceedings in rem than proceedings in personal, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law. . Though the observations in the judgment cover a wider field. I shall deal with them at a later stage the decision could be sustained on the simple ground that the previous proceedings were not against the person concerned and therefore he was not prosecuted and punished for the same offence for which he was subsequently proceeded against in the Criminal Court. The second decision is Sewpujanrai Indrasanrai Ltd. vs The Collector of Customs (1). There also the Customs Authorities confiscated the goods found in the possession of the appellant. Under section 8(3) of the Foreign Exchange Act, a restriction imposed by notification made under that section is deemed to have been imposed under section 19 of the , and all the provisions of the shall have effect accordingly. But the said deeming provision is subject to an important qualification contained in the words ' without prejudice to the provisions of section 23 of the former Act '. It was argued that by reason of the provisions of section 8(3) of the Foreign Exchange Regulations Act, the appellant should have been proceeded against under section 23 of that Act and it was not open to the Customs Authorities to take action against the offender under section 167(8) of the . This Court negatived that contention accepting the principle that confiscation of the goods under section 167(8) of the was an action in rem and not a proceeding in personal. Das, J., who delivered the judgment of the Court made the following observations in repelling the said argument: The penalty provided is that the goods shall be liable to confiscation. There is a further provision in the penalty column that any person concerned in any such offence shall be liable to a penalty not exceeding (1) 298 three times the value of the goods etc. The point to note is that so far as the confiscation of the goods is concerned, it is a proceeding in rem and the penalty is enforced against the goods whether the offender is known or not known; the order of confiscation under section 182, , operates directly upon the status of the property, and under section 184 transfers an absolute title to Government. Therefore, in a case where the Customs authorities can proceed only against the goods, there can be no question of applying section 23 of the Foreign Exchange Act and even on the construction put forward on behalf of the appellant company as respects section 8(3), the remedy under the against the smuggled goods cannot be barred. " This decision also indicates that the confiscation of the goods is an action in rem and is not a proceeding in personam. A combined effect of the aforesaid two decisions may be stated thus: Section 167(8) of the Act provides for the following two kinds of penalties when contraband goods are imported into or exported from India: (1) such goods shall be liable to confiscation; (2) any person concerned in any such offence shall be liable to a penalty. If the authority concerned makes an. order of confiscation it is only a proceeding in rem and the penalty is enforced against the goods. On the other hand, if it imposes a penalty against the person concerned, it is a proceeding against the person and he is punished for committing the offence. It follows that in the case of confiscation there is no prosecution against the person or imposition of a penalty on him. If the premises be correct, the subsequent prosecution of the person con cerned cannot be affected by the principle of double jeopardy, as he was not prosecuted or punished in the earlier proceedings. But the question that arises in this case is whether, when there was a proceeding in personam and a penalty was imposed upon the person concerned under section 167(8) of the Act, he could be prosecuted and punished in regard to the same act before another tribunal. On the facts of this case it is manifest that the 299 petitioner was prosecuted before the Magistrate for the same act in respect of which a penalty of Rs. 25,00,000 had been imposed on him by the Collector of Customs under section 167(8) of the Act. The question is whether the prosecution and punishment of the petitioner infringed his fundamental right under article 20(2) of the Constitution. It reads: " No person shall be prosecuted and punished for the same offence more than once. " The words of this Article are clear and unambiguous and their plain meaning is that there cannot be a second prosecution where the accused has been prosecuted and punished for the same offence previously. The clause uses the three words of well known connotation: (1) Prosecution; (2) punishment; and (3) offence. The word offence ' is defined in section 3(38) of the , to mean any act or omission made punishable by any law for the time being in force. Under section 4 of the Code of Criminal Procedure, it means any act or omission made punishable by any law for the time being in force. An offence is therefore an act committed against law or omitted where the law requires it. Punishment is the penalty for the transgression of law. The terms 'punishment ' and 'penalty ' are frequently used as synonyms of each other; and, indeed under cl. (I)of article 20 of the Constitution the word penalty issued in the sense of punishment. The punishments to which offenders are liable under the provisions of the Indian Penal Code are: (1) death; (2) imprisonment for life; (3) imprisonment, which is of two descriptions, viz., (1) rigorous, i.e., with hard labour; and (ii) simple; (4) for feature of property ; and (6) fine. The word 'prosecuted ' is comprehensive enough to take in a prosecution before an authority other than a magisterial or a criminal Court. Having regard to the historical background, a restricted meaning has been placed upon it by this Court in Maqbool Hussain vs The State of Bombay (1). Bhagwati, J., in delivering the Judgment of the Court observed at page 742 thus: (I) ; 300 Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty, the highest penalty which can be inflicted is Rs. 1,000. Confiscation is no doubt one of the penalties which the Customs Authorities can impose, but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit. All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner to the provisions of the Civil or the Criminal Procedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness. The appeals, if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority. In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities. But if such penalty or increased rate of duty cannot be realised therefrom the only thing which he can do is to notify the matter to the appropriate Magistrate who is the only person empowered to enforce payment as if such penalty or increased rate of duty had been a fine inflicted by himself. The process of recovery can be issued only by the Magistrate and not by the Customs Authority. All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of 301 adjudging confiscation, increased rates of duty and Penalty prescribed in the Act. " This Court therefore accepted the view that the earlier prosecution should have been before a Court of law or a judicial Tribunal, and that the Sea Customs Authorities when they entertained proceedings for the confiscation of gold did not act as a judicial Tribunal. In my view the said decision unduly restricted the scope of the comprehensive terms in which the fundamental right is couched. If res integral I would be inclined to hold that the prosecution before the Customs Authority for an offence created by the Act is prosecution within the meaning of Article 20, even though the Customs Authority is not a judicial Tribunal. But I am bound by the decision of this Court in so far as it held that the earlier prosecution should have been held before a Court of law or a judicial Tribunal, and that the Customs Authority adjudging confiscation was not such a tribunal. But the said observations must be confined to the adjudication of confiscation by the Customs Authority. The outstanding question therefore is whether a Collector of Customs in adjudging on the question whether any person concerned in the importation or exportation of the prohibited goods committed an offence, and in imposing a penalty on him, acts as a judicial Tribunal. There is a current of judicial opinion in support of the contention that under a particular Act an authority may act as a judicial Tribunal in discharge of certain duties and as an executive or administrative authority in discharge of other duties. The question whether a particular authority in dis charging specified duties is a judicial tribunal or not falls to be decided on the facts of each case, having regard to the well settled characteristics of a judicial tribunal. In 'Words and Phrases ', permanent edition, Vol. 23, Judicial Tribunal " has been defined thus: " It is a body who has the power and whose duty it is to ascertain and determine the rights and enforce the relative duties of contending parties. " In I The Encyclopedia of Words and Phrases Legal Maxims ', 302 by Sanagan and Drynan, much to the same effect it is stated thus: " A 'judicial tribunal ' is one that dispenses justice, is concerned with legal rights and liabilities, which means rights and liabilities conferred or imposed by I law '. These legal rights and liabilities are treated by a judicial tribunal as preexisting; such a tribunal professes merely to ascertain and give effect to them; it investigates the facts by hearing the 'evidence ' (as tested by long settled rules), and it investigates the law by consulting precedents. A judicial tribunal looks for some law to guide it. An administrative tribunal, within its province, is a law unto itself. " In Cooper vs Wilson (1) the characteristics of a judicial decision are given as follows, at page 340: " A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence ; (3) If the dispute be. tween them is a question of law, the submission of legal argument by the parties; and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. " This passage has been approved by this Court in Maqbool Hussain 's Case (2). In Venkataraman vs The Union of India (3) this Court considered the question whether article 20 protects an Officer against whom an enquiry was held under Public Servants Enquiries Act, 1850 (Act XXXVII of 1850) from being prosecuted again on the same facts before a Criminal (Court. This Court held on a consideration of the provisions of that Act that the appellant was neither prosecuted nor punished (1) , 340, 341 (2) [1953] S C.R. 730. (3) ; 303 for the same offence before a judicial tribunal. But in coming to that conclusion the following criteria were applied to ascertain the character of the proceedings: (1) duty to investigate an offence and impose a punishment; (ii) prosecution must be in reference to the law which creates the offence and punishment must also be in accordance with what the law proscribes; (iii) there must be the trappings of a judicial tribunal and (iv) the decision must have both finality and authoritativeness, which are the essential tests of a judicial pronouncement. Having regard to the aforesaid tests, I shall now proceed to consider the applicability of Article 20 to the present prosecution. A fundamental right is transcendental in nature and it controls both the legislative and the executive acts. Article 13 explicitly prohibits the State from making any law which takes away or abridges any fundamental right and declares the law to the extent of the contravention as void. The law therefore must be carefully scrutinized to ascertain whether a fundamental right is infringed. It is not the form but the substance that matters. If the legislature in effect constitutes a judicial tribunal, but calls it ail authority, the tribunal does not become any the less a judicial tribunal. Therefore the correct approach is first to ascertain with exactitude the content and scope of the fundamental right and then to scrutinize the provisions of the Act to decide whether in effect and substance, though not in form, the said right is violated or curtailed. Otherwise the fundamental right will be lost or unduly restricted in our adherence to the form to the exclusion of the content. The question therefore is whether the petitioner was in effect and in substance prosecuted and punished by a judicial tribunal for the same offence for which he is now prosecuted. Section 167 of the Act opens with the following words: " The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively." Chapter XVI of the Act deals with 'Offences and 304 Penalties '. Section 167 provides for offences and penalties in a tabular form. The first column gives the particulars of the offences; the second column gives the sections of the Act to which the offence has reference ; and the third column gives the penalties in respect of the relevant offences. Apart from the fact that the statute itself, in clear terms, describes the acts detailed in the first column of section 167 as offences against particular laws, the acts described therein clearly fall within the definition of 'offences ' in the and the Indian Penal Code. There cannot therefore be the slightest doubt in this case that the contravention of any of the provisions of the Act mentioned in section 167 is an offence. The next question is whether the penalties prescribed for the various offences in the third column of section 167 are punishments within the meaning of article 20 of the Constitution. A glance at the third column shows that the penalties mentioned therein include direction of payment of money, confiscation of goods and the receptacles wherein they are found, and imprisonment. The penalties may be imposed by the Customs Officers or Magistrates as the case may be. Where a person is convicted by a Magistrate and sentenced to imprisonment or payment of fine or where a penalty is imposed by a Customs Officer, in either case, the punishment is described as penalty in the third column of section 167. Section 167 clearly indicates that penalty is punishment inflicted by law for its violation for doing or failing to do something that is the duty of the party to do. Section 167 therefore defines a criminal act and fixes a penaltv or punishment for that act. The two words penalty ' and 'punishment ' are interchangeable and they convey the same idea. The more difficult question is whether a Customs Authority, when it functions under section 167 of the Act, is a judicial tribunal. It is not, and cannot be, disputed that a magistrate, who convicts and punishes a person for the infringement of some of the provisions of section 167 of the Act, is a judicial tribunal. Is it reasonable to assume that when another authority adjudges on similar offences under the same section, it is 305 functioning in a different capacity ? Section 182 defines the jurisdiction of the Customs Authority in respect of the offences mentioned in section 167 of the Act. It says: " In every case, except the cases mentioned in Section 167, Nos. 26, 72 and 74 to 76, both inclusive, in which under this Act, anything is liable to confiscation or to increased rates of duty or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged (a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs collector; (b) up to confiscation of goods not exceeding two hundred and fifty rupees in value, and imposition of penalty or increased duty, not exceeding one hundred rupees, by an Assistant Commissioner or Assistant Collector of Customs ; (c) up to confiscation of goods not exceeding fifty rupees in value, and imposition of penalty or increased duty not exceeding ten rupees, by such other subordinate officers of Customs as the Chief Customs authority may, from time to time, empower in that behalf in virtue of their office : ". Section 187 : " All offences against this Act, other than those cognizable under section 182 by officers of Customs, may be tried summarily by a Magistrate. " It is therefore clear that some offences under section 167 are cognizable by the Customs Authorities and some offences by Magistrates. Section 171A, inserted by the Sea Customs (Amendment) Act, 1955 (Act 21 of 1955), confers power on officers of Customs to summon any person to give evidence and produce documents; it reads: " 171A. (1) Any officer of Customs duly employed in the prevention of smuggling shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. 39 306 (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct;. and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. " Under this section, the Customs Authority, who makes an inquiry, is empowered in connection with that inquiry, to summon persons to give evidence and produce documents and the witnesses summoned are under a statutory duty to speak the truth. The cir cumstance that under el. (4) of the said section, an inquiry is deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, viz., for the purpose of punishment for giving false evidence and for contempt of Court, does not detract from the judicial characteristics conferred upon the authority by the other clauses of the section. Clause (4) must have been enacted only by way of abundant caution to guard against the contention that the authority is not a Court ; and to bring in the inquiry made by the Customs Officer in regard to administrative matters other than those conferred upon him under section 167, within the fold of section 193 and section 228 of the Indian Penal Code. Sections 188, 189, 190A and 191 provide a hierarchy of tribunals for deciding appeals and revisions. The Chief Customs authority May, suo motu or otherwise exercise revisional powers in regard to the orders of the subordinate officers. Power is also conferred on Government to 307 inter in matters in regard whereof no appeal is provided for. It is true that no rules have been framed providing the manner in which the Customs collector should proceed with the inquiry in regard to offences committed under the Act of which he is authorized to take cognizance. But the record discloses that a procedure analogous to that obtaining in criminal Courts is followed in regard to the said offences. Charges are framed, evidence is taken, advocates are heard, decision is given on the question whether an offence is committed or not; and, if the offence is held to have been committed, the person concerned is con victed and a penalty is imposed. When the statute empowers the officer to take cognizance of an offence, to adjudge upon the question whether the offence is committed or not and to impose a penalty for the offence, it is implied in the statute that the judicial procedure is to be followed. The entire scheme of the Act as disclosed in the leaves no doubt in my mind that so far as offences mentioned in section 167 are concerned, the Customs Authority has to function as a Judicial Tribunal. I have therefore no hesitation to hold that the Customs Officers in so far as they are adjudicating upon the offences mentioned under section 167 of the Act are functioning as judicial tribunals. If the other view, viz., that an authority is not a judicial tribunal, be accepted, it will lead to an anomalous position, which could not have been contemplated by the legislature. To illustrate, a Customs Collector may impose a penalty of Rs. 25,00,000 as in this case on his finding that a person has committed an offence under section 167 (8) of the Act, and the accused can be prosecuted again for the same offence before a Magistrate. On the other hand, if the prosecution is first laid before a Magistrate for an offence under section 167(81) and he is convicted and sentenced to a fine of a few rupees, he cannot be prosecuted and punished again before a Magistrate. Unless the provisions of the Constitution are clear, a construction which will lead to such an anomalous position should not be accepted, for, by accepting such a construction, the right itself is defeated. 308 It is then contended that the offence for which the petitioner was prosecuted by the Magistrate is different from that in regard whereof he was sentenced by the Customs Officer. The petitioner was convicted under section 167(8) of the Act, whereas he was subsequently prosecuted and punished under section 167(81) of the Act. Section 167(81) of the Act reads as follows : "If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harboring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid ; or if any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods, such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years, or to fine, or to both. " It is contended that under section 167(81) knowledge or intention to defraud is an ingredient of the offence, whereas under section 167(8) they are not part of the offence, that offences under sections 167(8) and 167(81) are different, and that therefore the prosecution and punishment for an offence under the former sub section would not be a bar for prosecution and punishment under the latter sub section. It is not necessary to consider the decisions cited in support of the contention that for the application of the principle of double ' jeopardy the offence for which a person is prosecuted and punished in a second proceeding should be the same in respect of which he has been prosecuted and 309 punished at an earlier stage. That fact is self evident from article 20(2) of the Constitution itself. If so, the only question is whether the petitioner was prosecuted before the Magistrate for the same offence in regard to which he was prosecuted before the Collector of customs. It is true that the phraseology in section 167(8) is more comprehensive than that in sub section (81) in that the offences under the former sub section take in acts committed without knowledge or intent to defraud. But it does not exclude from its scope acts committed with knowledge or with intent to defraud. For, a person who imports or exports prohibited goods with intent to defraud is also concerned in the offence of such importation or exportation. The question of identity of offence is one to be determined on the facts and circumstances of a particular case. One of the tests is whether an offence for which a person was earlier prosecuted takes in all the ingredients of the offence, the subject matter of the second prosecution. The fact that he might have been prosecuted for a lesser offence is not a material circumstance. The question therefore is not whether under section 167(8) a person can be found guilty of an offence even if there is no fraudulent intent or knowledge, but the question is whether the petitioner was prosecuted and punished on the same facts in regard to which he was subsequently prosecuted and punished before the Magistrate. The record discloses that the petitioner was prosecuted before the Customs Authority as well as the Magistrate on the same facts, viz., that he, along with others, attempted to take out of India, Indian currency (as detailed in paragraphs 14 and 17 of the complaint of the Assistant Collector of Customs and Central Excise, Amritsar), in contravention of the law prohibiting such export. It is not the case that the knowledge on the part of the petitioner of his illegal act is excluded from the first prosecution and included in the subsequent one. In the circumstances, I cannot hold that the offence for which he was prosecuted by the Magistrate is different from that in regard to which he was prosecuted and punished by the Customs Authority. In this view, the prosecution and punishment by the Magistrate 310 directly infringes the fundamental right under article 20 (2) of the Constitution. No attempt has been made by the learned Solicitor General to contend that the offence under sections 23 and 23B of the Foreign Exchange Regulations Act for which the petitioner is convicted is an offence different from that for which he was prosecuted earlier under section 167(8) of the Act. It is conceded that the decision in the writ petition covers the decision in the connected appeal also. In the result, the writ petition and the appeal are allowed. ORDER In view of the opinion of the majority, the Petition and the Appeal are dismissed. [/INST]The respondent, the proprietor of an estate, derived income from the sale of trees growing in his forests and claimed that it was agricultural income as defined in section 2(1) of the Indian Income tax Act, 1922, and that it was exempt from payment of income tax under section 4(3)(viii). The Appellate Tribunal found that the evidence to show that there was plantation by the estate authorities was meagre and unsubstantial, that the trees in question must have been of spontaneous growth and that the respondent had failed to establish facts on which he could claim exemption. On reference, the High Court took the view that though trees in the forest had not been planted by the estate authorities, the latter had performed subsequent operations of a substantial character for the maintenance and improvement of the forest, and that the income was, therefore, agricultural income. It also held that the onus was on the income tax authorities to prove that the income derived from the sale of trees was not agricultural income and that they had failed to show that the income fell outside the scope of the exemption mentioned in section 4(3)(viii) Of the Act. Held, that the High Court erred in placing the burden on the income tax authorities to prove that the income sought to be taxed was not agricultural income. The principle has been well established that where a person claims the benefit of an exemption under the provisions of the Act, he has to establish it. 177 Commissioner of Income tax vs Venkataswamy Naidu, [1956] 291.T.R. 529, followed. The question whether the trees were of spontaneous growth or were products of plantation was essentially a question of fact and the finding of the Tribunal on this point was binding on the High Court in a reference under section 66(1) of the Act. Held, further, that the income received by the respondent by the sale of trees in his forests was not agricultural income as the trees had not been planted by him, and that it was immaterial that he had maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees. The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy; , , explained and followed. </s>
<s>[INST] Summarize the judgementAppeal No. 991/76. (Appeal by Special Leave from the Judgment and Order dated the 21.1.1976 of the Madhya Pradesh High Court in Second Appeal No. 415 of 1971) section Choudhury, D.N. Mishra, O.C. Mathur and Shri Narain for the appellant. G.L. Sanghi, V.K. Sanghi, R.K. Sanghi and S.N. Khanduja for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non residential 768 purposes resulted in dismissal by the trial Judge. But in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction. The tenant challenged the appellate decree before the High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave. A short point has been raised which deserves only a short answer. Since we agree with the High Court which in turn has agreed with the first appellate court, our judgment can afford to be brief. A statement of necessary facts may now be given. The landlord had let out the premises, which is a storeyed building, to be tenant as per exhibit P 1 of 1955. The signif icant clause in the lease deed runs thus: "1 XXX 2. I take your house for my own use i.e. for opening a cloth shop and for residential purposes and I will not sublet your house to anybody. XXX XXX XXX XXX. " The tenant has thus put the building to busi ness and residential purposes. The landlord, who is an M. Sc., claimed the building back on the score that he wanted to run a medical store on the ground floor a non residential purpose and stay on the first floor with his wife a residential purpose. Thus the acommo dation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above. The final court of fact has held that the landlord needs the building for his chemist 's shop and for his residential use. The High Court in Second Appeal has upheld this finding and added that "the finding as to his bonafide requirement was rightly not challenged before me . The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing. " This statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned in the memorandum of appeal to this Court. It must therefore be taken that the bonafide need of the landlord is validly made out. The short point that survives is as to whether the composite purposes of the lease would put it out of the ground set out for eviction under section 2 of the Madhya Pradesh Accommodation Control Act, 1961. The said Act defines 'accommodation ' thus: " 'accommodation ' means any building or part of a building, whether residential or non residential and includes, XX XXX XXX. " 769 It follows that an accommodation can be resi dential, non residential or both. section 12 bars an action of eviction of a tenant from any accommodation except on one or more of the grounds set out therein. section 12(1) (e) and (f), bearing on the present case, may be appropriately extracted here: "12. Restriction on eviction of tenents (1) (a) to (d) x x x x x (e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held. and that the landlord or such person has no other reasonably suitable residential accommoda tion of his own in the occupation in the city or town concerned; (f) that the accommodation let for non residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasona bly suitable non residential accommodation of his own in his occupation in the city or town concerned;. XXX XXX XXX. " The residential portion is a part of the building and is an accommodation by defini tion. The non residential portion is also a part of the building and is an accommoda tion by definition. The lease has been given for residential as well as non residential purposes. The landlord is entitled to evic tion of the residential portion if he makes out a bonafide residential requirement. Likewise he is entitled to eviction of the non residential portion which is an accommoda tion if he makes out a non residential requirement. We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non residential requirements. Therefore, nothing more can be done in defence of the tenant in the light of the present law. Counsel contended that in a decision of this Court, viz, section Sanyal vs Gian Chand,(1) it has been held that it is not permissible for the court to split up a contract in an eviction proceeding. We agree. There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated. The contract was integral but had dual purposes. The landlord has put forward dual requirements which neatly fit into section 12(1)(e) and (f). The conse quence is inevitable that the eviction order has to be upheld. (1) ; 770 It is seep, that the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years. It is therefore but fair that the. tenant is given sometime to rehabilitate himself by securing an alter native but suitable accommodation. In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises. Taking due note of this reali ty, we direct that while dismissing the appeal the eviction order shall not be put into execution before 1st January, 1978. Parties will bear their respective costs. S.R. Appeal dismissed. [/INST]The Nellore Ramapuram route passing over a short dis tance of 8 K.m. through Tamil Nadu was proposed to be natio nalised by the Andhra, Pradesh Government. The appellant an existing private operator on the route challenged the scheme on the ground that the route being an inter state route, noncompliance with section 68 D(3) of the aborted the Nationalisation. The High Court held that the decisive test turned on whether both the termini fall within the same state and it did in this case and so on question of inter state route arose. On appeal by Certifi cate the court HELD: (1) (a) The route Nellore Ramapuram is an inter state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and (c) the nationalisation cannot become effective over the strip in Tamil Nadu and ,private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corpora tion may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to section 63(1 ) of the . [567H, 568 A B] (2) The definition of 'Route ' in section 2(28A) of the Act is not a notional line "as the crow flies" but the actual highway as a motor vehicle traverses from one terminus to another. A route is transformed into an inter state one, if the highway it covers passes through more than one state. An inter state route may be of the categories either con necting two states or traversing two or more states. [564 D E] (3) Ordinarily not invariably the two termini test is a, working solution and not an inflexible formation. The termini test may lead to strange results, fatal to federal ideas. A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, without doing violence to lan guage, geography and federalism. And in the absence of a statutory definition of inter state route non violence to English and conformance to commonsense dictate the adoption of the conventional meaning that if a route traverses more than one state it is inter state. [564 B C, D] (4) Undoubtedly, where the termini fall in different states the route is inter state. But that does not ex clude other categories of inter state route such as where it crosses a state other than the originating state although gets back into it later. If the territory of more than one state is covered even if both the termini eventually fall within the same state, the route is inter not intra state. [564H, 565A] 563 Kazan Singh ; ; Ahwathanarayan vs State ; pp. 100 101. explained. (5) If the whole of the route lies within a single state it is intra state and not inter state, even though the road over which the route lies runs beyond the borders of that single state as national highways do. It is elementary that there can be inter state routes which run into or through more than one state. A part of that long route may itself be a separate route and may fall wholly within a single state in which case the former may be inter state while the latter will be an intra state route. [565G H, 566A] (6) There can be no doubt that the scheme notified by one State will, even in the case of an inter state route, operate to the extent it lies within that State. Its extra territorial effect depends on securing of prior Cen tral Government approval under the proviso to Section 680(3). However, the permit granted in one state may still be valid in. another state, if the condition specified in the 2nd proviso to section 63(1) is fulfilled. The portion of the route, in the instant case, falling outside Andhra Pradesh (both termini being within that state) is admittedly less than 16 k.m. and so no question of countersignature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu arises. The portion of the inter state route which fell within Andhra Pradesh stand nationa lised and consequently exclude private operators. But that strip of the inter state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to section 63(1) of the . [567 A B, E F] </s>
<s>[INST] Summarize the judgementivil Appeal No. 3054 of 1988. From the Judgment and Order dated 16.3.1988 of the Rajasthan High Court in S.B. Civil Miscellaneous Appeal No. 240/1987. K. Parasaran, Attorney General, B.L. Saruparia and Badridas Sharma for the Appellant. Soli J. Sorabjee, Paras Kulad, Rohinton F. Nariman and Rathin Das for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Leave granted. Appeal is disposed of by the judgment herein. This appeal challenges the order of the High Court of Rajasthan, dated 16th March, 1988. The respondent 's tender for construction of complete masonry dam (Civil Engineering Works) Mahi Bajaj Sagar Project, Banswara, was accepted by the appellant for a sum of Rs.5,90,30,791 vide letter dated 29.4.1974 and a provisional agreement was entered into between the parties on 23.5.1975. The construction was commenced by the respondent company but it did not complete the same and, it is alleged, left the work unfinished in the year 1979, which was of the value of Rs. 1,79,80,054. The letter of acceptance was dated 23.5.1975. It is stated that the respondent did not start the work in spite of written notices and, ultimately, by a letter dated 24th December, l979 of the Executive Engineer (Dam Division), Banswara, the respondent was informed that as it had committed breach of the conditions of the contract, the same had been terminated and that the State Govt. would complete the work under the clauses and conditions of the contract. The work had to be completed departmentally at the cost and risk of the respondent company. After some litigation between the parties when the Civil Revision was pending in the High Court of Rajasthan at Jodhpur, a compromise between PG NO 444 the parties was arrived at on the 13th April, 1982. It was agreed that the dispute would be settled through arbitration. By an agreement dated 13th June, 1982 the parties named their arbitrators. The arbitrators entered upon the reference on 19th June, 1982. On 5th May, 1982, the respondent company presented its claims under 40 heads claiming a total sum of Rs. 1,90,53,059.28. This amount was later on revised to Rs. 1,82,20,261.02. The State filed a counter claim for a sum of Rs. 1,70,63,026.37 which was revised to Rs. 1,25,706,17. It is stated that the arbitration proceedings were conducted for 52 days during which the number of sittings was 25. Various issues were framed. Minutes of the proceedings were recorded. The arbitrators gave the award on 8.12.1982. It is stated that the award did not contain any reason as to why and how they had arrived at the figure of Rs. 75,41,755 in favour of the respondent company. The award, however, mentioned that the State of Rajasthan committed breach of contract and was also guilty of wrongful revocation of the agreement and the actions taken under Clauses 2 and 3 of the conditions of the Contract, were wrongful and unjustified. However. no reasons were indicated as to how the arbitrators arrived at those findings. The respondent filed an application in the Court of the learned District Judge for making the award Rule of the Court. The appellant, however, filed an objection on the grounds inter alia that no reasons had been given by the arbitrators for the award and the amount of interest awarded was unjustified. It was further averred that the award being ambiguous, showed non application of mind and the question as regards the plant machinery of the respondent company lying at the dam site, were beyond the scope of the arbitrator. The learned District Judge by his judgment and order dated 11th August, 1987 allowed the objection and set aside the award on the ground of ambiguity and non application of mind. The award also suffered from the vice of non statement of reasons, according to the learned District Judge. According to him, the award was not in accordance with law. He further held that the plant & machinery lying at the dam site was beyond the reference made to the arbitrators. He was of the opinion that the interest amount was ambiguous and thus liable to be set aside. THere was an appeal to the High Court. The High Court allowed the appeal and passed a decree for Rs. 75,41,755 being the amount of all claims and directed that the State should pay interest @ 5% p.a. on the said amount for the period from 1.8.1983 to 8.12.1985, being the period during which the arbitration proceedings were PG NO 445 pending. This decision of the High Court is under challenge in this appeal. It was contended before us that the question whether on the ground of absence of reasons, the award is bad per se, is pending consideration by a Constitution Bench of this Court in C.A. No. 3137 39/85, 3145/85 Jaipur Development Authority vs Firm Chhokhamal Contractor etc. It was, hence, urged that this should await adjudication on this point by the Constitution Bench. We are unable to accept this contention. In our opinion pendency of this question should not postpone all decisions by this Court. One of the cardinal principles of the administration of justice is to ensure quick disposal of disputes in accordance with law, justice and equity. In the instant case the proceedings have long procrasticated. Indeed, the learned Judge of the High Court, after narrating the incidents from 1975 to 1985, concluded his judgment in March 1988 by observing that that was the end of the journey. He was wrong. That was only the end of a chapter in the journey and the appellant wants to begin another chapter in the journey on the plea that the award is not a reasoned one. The bargaining between the parties was entered into in 1974 75 and the award was made on 8th December, 1985 i.e. a decade after the beginning of the transaction. The law as it stands today is clear that unless there is an error of law apparent on the face of the award, the award cannot be challenged merely on the ground of absence of reasons. This is settled law by a long series of decisions. Interests of justice and administration of justice would not be served by keeping at bay final adjudication of the controversy in this case on the plea that the question whether an unreasoned award is bad or not, is pending adjudication by a larger Bench. There have been a large number of sittings before the arbitrators. Parties have been heard. There was no misconduct in the proceedings. There has been no violation of the principles of natural justice. In such a situation it would be inappropriate to postpone the decision pending adjudication of this question by a larger Bench of this Court. We do not know how long it would take to decide that question, and whether ultimately this court would decide that unreasoned awards per se are bad or whether the decision would have prospective application only in view of the long settled position of law on this aspect in this country or not. Justice, between the parties in a particular case, should not be in suspended animation. Law as it stands today, as observed in Jivarajbhai Ujamshi Sheth & Ors. vs Chintamanrao Balaji & Ors., ; is that award made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to set aside an award only if the arbitrator has misconducted himself in PG NO 446 the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or if the arbitration proceedings have become invalid under Sec. 35 of the or where an award has been improperly procured or is otherwise invalid under Sec. 30 of the Act. An award may be set aside by the Court on the ground of error on the face of the award, but an award is not invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator had committed some mistake in arriving at some conclusion. In that decision Shah, J. and Sarkar, J. as the learned Chief Justices then were, were of the view that it was not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusions. They held the award not severable. Hidayatullah, J. as the learned Chief Justice then was, observed that if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the Court can find his auxiliary jurisdiction. Instant case before us is also not a severable award. In Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore ; Bachawat, J. speaking for the Court observed that an arbitrator could give a lump sum award. He was not bound to give a separate award for each claim. His award on both fact and law is final. There is no appeal from his verdict. The Court cannot review his award and correct any mistake in his adjudication, unless an objection to the legality of the award is apparent on the face of it. In the present case the arbitrator gave no reasons for the award. There is no legal proposition which is the basis of the award, far less any legal proposition which is erroneous. Also there is no allegation of any misconduct in the proceedings. It is an error of law apparent on the face of it and not mistake of fact which could be the ground for challenging the award. See in this connection the observations in Union of India vs Bungo Steel Furniture P. Ltd.; , Also see the observations of this Court in Allen Berry & Co. (P) Ltd. vs Union of India, New Delhi, [l971] 3 SCR 282. Hence, the High Court was right in the instant case. There is, however, one infirmity in the award as sanctioned by the High Court, that is to say, the grant of interest pendente lite. The arbitrators have observed as follows : "By adjustment of interest held to be due to the Respondents with that held to be due to the Claimants on their items of claims which were not in the nature of claim PG NO 447 for damages for breach, we hold that the Respondents do pay Rs. 17,92,957 (Rupees seventeen lacs ninetytwo thousand nine hundred fiftyseven only) as interest, to the Claimants upto the date of the AWARD. Claimants further do pay to the Respondents Rs. Nill. " This was awarding interest pendente lite. This is in violation of the principles enunciated by this Court in Executive Engineer (Irrigation), Balimela & Ors. vs Abhaduta Jena & Ors., [1988] 1 SCC 418. Our attention was drawn by Shri Soli J. Sorabjee, counsel for the respondent, to the decision of this Court in Food Corpn. of India vs M/s. Surendra, Devendra & Mohendra Transport Co., where at pages 555 556 of the report, the Court referred to certain decisions cited by Chinnappa Reddy, J. in Executive Engineer (Irrigation), (supra) in which he had expressed the view that those were cases in which the references to arbitration were made by the Court or in Court proceedings of the disputes in the suit. In that context it was held in those cases that the arbitrator had power to grant interest. It was contended before us that this was a similar case. There was a Court proceeding in this case regarding the appointment of the arbitrator and, as such, on the same analogy it should be treated that the arbitrator had power to grant interest. We are unable to accept this. What Mr justice O. Chinnappa Reddy meant to say by the latter judgment in Executive Engineer (Irrigation), case referred to in Food Corporation of India, (supra) was where the disputes regarding the merit of the case were pending in the Court and such disputes instead of being decided by the Court adjudication had been referred to an arbitrator by the Court, in such cases the arbitrators deciding in the place of the Court, would have the same powers to grant interest pendente lite as the Courts have under Section 34 of the Civil Procedure Code. Instant case is not such a proceeding. In that view of the matter this part of the award, which was affirmed by the High Court of granting of interest, must be deleted. We do so accordingly. Shri K. Parasaran, learned Attorney General, assures us that the amount awarded as modified, would be paid within 8 weeks from today. The appeal is thus disposed of without any order as to costs. R.S.S. Appeal disposed of. [/INST]The respondent Company took over, with the consent of the State Government, the licence granted to a private firm under the for supply and dis tribution of electricity in the areas covered by the li cence, and became entitled to the benefits and privileges of the licence. Under cl. (11) of the licence, Government had the option to purchase the undertaking on the expiry of the period of licence. The licence was to expire on 21st September, 1977. The State Electricity Board, in .exercise of its option, issued a notice to the Company on 26th August, 1976 and required it to sell and deliver the undertaking to the Board on the midnight between 21st and 22nd September, 1977. Under the provisions of the , as they stood at the time of option, the Company was entitled to be paid the 519 market value of the undertaking. But, by the Amending Act, 1976 the Bill for which had been introduced in the State legislature on 13.7.1976 the principle of market value in the relevant provisions of the 1910 Act was substituted by the concept of "Amount" legislatively fixed as a sum equal to the depreciated Book Value of the assets of the undertak ing to be taken over. The amended provisions were to govern cases where notices had been issued prior to the amendment. The respondent Company filed writ petitions before the High Court challenging the validity of sections 4, 5 and 6 of the Indian Electricity (Maharashtra Amendment) Act, 1976 and section 2 of the Indian Electricity (Maharashtra Amendment and Validity) Act, 1974 as violative of articles 14, 19(1)(f) and (g) and 31 of the Constitution. The appellants, the State and the Electricity Board, claimed protection of article 31 C to the Amending Act, 1976 and the consequent immunity from attack on the ground of violation of articles 14, 19 and 31. The High Court held that in the absence of a declaration in the Amending Act of 1976 that ,the law was one intended to give effect to the objects of article 39(b) and (c) of the Constitution, the Amending Act cannot have the protection of article 31 C. Declaring section 4 of the Amending Act as violative of article 19(1)(f) and article 14, it held that the State could not unilaterally reduce, even by legislation, its liability to pay the purchase price under a consensual transaction and that conferment on Government of power to fix instalments was grossly unreasonable and arbitrary and that provision for payment of interest at the Reserve Bank rate pins one per cent made more unreasonable the provisions of the Amend ing Act. The High Court also rejected the respondent Company 's claim as to the Constitutional infirmity attributed to section 2 of the 1974 Act and sections 5 and 6 of the Amending Act, 1976. It further rejected the Company 's contention that, upon the service of the notice exercising the option to purchase, the Company 's right to be paid the market value under the law as it then stood, was crystallised into an "actionable claim" or "A chose in action" and that What was sought to be ac quired was not the undertaking itself but a chose in action, and that the law was bad for excluding the service lines from computation of the amount. The appellants filed appeal in this Court assailing the correctness of the High Court 's view that section 4 of the Amend ing Act. was bad. The respondent Company, also filed a cross appeal, questioning the correct 520 ness of the judgment on the points held against it. It was contended on behalf of the appellants that the law was entitled to the protection of article 31C and that the High Court was in error in postulating that the absence of the express legislative declaration in the law that it was enacted for giving effect to the directive principles of State Policy in article 39(b) and (c), was itself conclusive against the attraction of article 31 C. It was urged that the presence of such a declaration merely furnished evidence of a reasonable and direct nexus between the legislation and the objects of article 39(b) and (c) but the declaration was by itself not conclusive either way, and the court was entitled to go behind the facade of the declaration and scrutinise whether there was really such a direct and reasonable nexus, and that the absence of such an express declaration did not preclude the State from showing the existence of the requi site nexus, and that apart altogether from the protection of article 31 C, the Amending Act of 1976 was justifiable as a reasonable restriction on the freedom under article 19(1)(f) and (g). On behalf of the Company, it was contended that any appeal to and reliance upon article 31 C was wholly misplaced, as the option to purchase the undertaking was in effectua tion of a purely consensual transaction and that the scheme of the Electricity Act, 1910, and the covenants in the license enabling the Government or the Board, as the case may be, to exercise the option to purchase did not amount to a compulsory acquisition of the undertaking, and that the provisions of the Amending Act, 1976, which had the effect Of bringing down the purchase price payable under a mutual agreement, could not be justified on any nexus with or for the effectuation of the objects of article 39(b). The point for consideration was whether Indian Electric ity (Maharashtra Amendment) Act, 1976, which statutorily modified the principles for the determination of the pur chase price for the undertaking from the principle of market value contained in the unamended section 7A of 1910 Act to the concept of "Amount" equal to the depreciated book value of the assets under section 7A as amended the Amending Act of 1976, could be said to be a law enacted for the acquisition of the undertaking with a reasonable and direct nexus with the object of article 39(b) of the Constitution and, therefore, had the protection of article 31 C. Allowing the appeals preferred by the appellants Maha rashtra State Electricity Board and dismissing the cross appeal of the 521 respondent Company, this Cpurt, HELD: The provisions of the Amending Act of 1976 have a direct and substantial relationship with the objects of article 39(b) and, therefore, are entitled to the protection of article 31 C. Therefore, all challenge to the law on the ground of violation of Articles 14, 19 and 31 must necessarily fail. That apart, there is no merit in the grievance that service lines had been omitted from computation of the amount. Similarly, there is no merit in the contention that the value of the "goodwill" has been omitted from computa tion of the amount. [542D F] The nexus between the law and the objects of article 39(b) could be shown independently of an express declaration by the legislature in the law that it was enacted for giving effect to the directive principles of State Policy contained in article 39(b). The absence of evidence of nexus, in the form of such an express declaration, was not by itself evidence of absence of such nexus. [534F G] State of Maharashtra vs Basantibai, ; at 1475 and Fazilka Electric Supply Co. Ltd. vs The Commis sioner of Income Tax, Delhi 1962 Supp. 3 S.C.R. 496, re ferred to. The business of an electricity supply undertaking, a public utility service, in pursuance of a license granted under the Electricity Act, 1910 is comprehensively con trolled by the terms of that Statute. The terms on which a franchise is created and conferred are amenable to unilater al modification by Statute, and include the term pertaining to the quantification of the price payable for the take over. The proposition that the right to the payment of the price gets crystallised into a 'chose in action ' independ ently of or even before the actual transfer of ownership of the undertaking, cannot be accepted. [539C D] Fazilka Electric Supply Company 's case, [1962] Supp. 3 S.C.R. 496 and Gujarat Electricity Board vs Girdharilal Motilal, ; , referred to. Even if the provisions of the Electricity Act, 1910 are held and understood to provide for take over by the State of a privately owned undertaking only by the adoption of the expedient of a consensual sale, that circumstance, by it self, would not be decisive of whether the amending Act of 1976 had no direct and reasonable nexus with the objects of Art 39(b). [539F] 522 The effect of the relevant provisions of the 1910 Act, as amended by the amending Act of 1976, is the transfer of the ownership and control of material resources of the community for purposes of ensuring that they are so distrib uted as best to subserve the common good. In effect, the provisions bring about nationalisation in the larger sense of that term. The Amending Act of 1976 sought to limit the economic burden of this reform. [540C D] The expression "nationalisation" means 'the acquisition and control of privately owned business by Government. ' [540D E] The idea of nationalisation of a material resource of the community cannot he divorced from the idea of distribu tion of that resource in the community in a manner which advanced common good. [540G] No doubt, the protection of article 31 C is accorded only to those provisions which are basically and essentially necessary for giving effect to the objects of article 39(b). [540H] But, the High Court, was in error in taking the view that, while the provision for the take over in the Principal Act might amount to a power to acquire, the objects the. Amending Act of 1976, which merely sought to beat down the price, could not be said to be part of that power and was. therefore, incapable of establishing any nexus with article 39(b). 1541A B] The amending Act of 1976, renders the cost of this economic reform brought about with the objects of article 39(b) in view an affordable one in terms of money. This can not he held to have no direct or reasonable nexus with the objects of Act. 39(b)? When a legislative enactment is challenged as not conforming to the constitutional mandate the judicial branch of the Government has only one duty to lay the Arti cle of the Constitution which is invoked beside the Statute which is challenged and to decide whether the latter squares with the former. [541B C] The community 's economic burden for social and economic reforms is an integral part of the exercise involved in social and economic change in the ushering in of an egali tarian and eclectic social and economic order in tune with the ethos of the Constitution. The cost in terms of monetary expenditure of economic change is a factor integrated with the objects of article 39(b). The Court must, on matters of economic policy, defer to legislative judgment as con 523 ditioned by time and circumstances. The wisdom of social change, is, dependant, in some degree, upon trial and error, on the left needs of the time. [542A C] </s>
<s>[INST] Summarize the judgementCivil Appeals No. 127 130 of 1975. Appeal by Special leave from the Judgment and order dated 15th October, 1974 of the Gujarat High Court in Civil Revision Appln. 1434 1437 of 1973. V.M. Tarkunde. Naresh Kumar Sharma and Vineet Kumar for the Appellant. D.V. Patel, C.V. Subba Rao, Dy. Advocate, M.N. Shroff, G.N. Desal, R.N. Poddar and R.H. Dhebar for the Respondent (State). P.H. Parekh for Respondents 1 and 2. The Judgment of the Court was delivered by VARADARAJAN, J. These appeals by special leave are directed, against the judgment of the learned Chief Justice (B.J. Diwan) of the Gujarat High Court in Civil Revision Application Nos. 1434 to 1437 of 1973. Those Civil Revision Applications (hereinafter referred to as 'Revisions ') were preferred against the judgment of the Civil Judge, (Junior Division) Vijapur as the authority appointed under section 20(i) of the for Vijapur Taluka in Civil Misc. Applications Nos. 1 and 2 of 1970 and 1 and 2 of 1971 (hereinafter referred to as 'applications '). The four Revisions raised a common question of law and were disposed of by a common judgment. The applications before the Minimum Wages Authority were filed by the Gujarat Government Labour officer and Minimum Wages Inspector for Mehsana district against the Taluka Development officer, Vijapur Taluka and District Development officer (Panchayat) Mehsana. The Minimum Wages Inspector contended in those applications that the four employees, Ishwerbhai 324 Prahladbhai, Dayabhai Umeddass, Kanjibhai Shankarbhai and Nathalal Maganlal, working in the Taluka Panchayat and District Panchayat as Tube well operators at Delva da and Vihar villages, fall within the (hereinafter referred to as the 'Act ') and had been made to work for more hours than what is prescribed under the Act and they were entitled to over time wages of Rs. 3018.40 and Rs. 3769.05 in respect of Ishwerbhai Prahladbhai and Dayabhai Umeddass respectively for the period from September 1969 to February 1970, and Rs. 3082/ for the period from October 1970 to March 1971 and Rs. 1178.25 for the transitional period of April and May 1971 in respect of Kanjibhai Shankarbhai and Rs. 3962.40 and Rs. 1237.80 for those identical periods in respect of Nathalal Maganlal. Directions under section 20 of Act for payment of those amounts together with further sums for the period during which the applications were pending were prayed for in the applications. The respondents in the applications denied that the four employees are working under any District Panchayat and contended that they were work charged employees in the State service and that on the introduction of Panchayat Raj in the State of Gujarat with effect from 1.4.1963 as per the Gujarat Panchayats Act, 1961, the maintenance of tube wells and further extension of tube wells and their maintenance and the work charged establishment relating to the tube wells were transferred to the District Panchayats by Government 's Circular No. MNS/41162/V dated 27.3.1963 and the employees were continued as work charged employees by the District Panchayat and were transferred to and continued as such in the Panchayats. The respondents in the applications thus contended that the four employees concerned were employees of the State of Gujarat, whose terms and conditions of employment are subject to orders of the State Government and that they are paid out of the IOO per cent grant made by the State Government. The respondents in the applications further contended that the terms and conditions of service of the work charged employees of the State Government are governed by the P.W.D. Manual and that the four employees concerned are not entitled to the over time wages claimed in the applications. The Minimum Wages Authority found on the evidence adduced by the parties that the Tube well operators concerned were State Government servants and not the servants of the Panchayats, that Panchayats exercised supervisory control over them and that it was not controverted by the applicant, before him 325 that the Tube well operators were employed by the State Government before 1.4.1963. Following the decision in G.L. Shukla vs State of Gujarat,(l) the found that Panchayat service is, like any other branch of service, service under the State, and he held that though employment in any District Panchayat or Taluka Panchayat is scheduled employment as per section 2(g) of the Act, the Tube well operators concerned being Government servants in Panchayat service are not entitled to claim minimum wages under the Act. In that view he dismissed the applications. The Minimum Wages Inspector took the matter in revision before the High Court. Diwan, C. J., who heard these Revisions followed the decision of the Full Bench of the Gujarat High Court in Criminal Appeal No. 361 of 1972, disposed of on 2.5.1974, in which the ratio of the decision in Shukla 's case was approved and held that Panchayat service was part of the service of the State and the Tube well operators concerned are State Government servants holding civil posts. In that view the learned Chief Justice agreed with the Minimum Wages Authority that as State Government servants the Tube well operators concerned are not entitled to the benefit of the Act and he dismissed the Revisions. The point arising for consideration in these civil appeals is simple. The Minimum Wages Authority and the learned Chief Justice have found that the Tube well operators are Gujarat State Government servants. That is the contention of the contesting respondents I and 2., viz. Taluka Development officer Vijapur, Taluka Panchayat and District Development officer, Mehsana District Panchayat, in these appeals. The contention of the State of Gujarat before us in Civil Appeal No. 359 of 1974 was that the employees in the District Panchayats and Taluka Panchayats constituted under the Gujarat Panchayat Act, 1961 and Talatis and Kotwals working in Gram and Nagar Panchayats in the local cadre of Panchayats constituted under that Act are Government servants and that the other employees in the local cadre are Panchayat employees and not State Government employees. I n that appeal we have repelled the contention that employees of the local cadre, namely, Gram and Nagar Panchayat servants barring Talatis and Kotwals are Panchayat servants and not Government servants and held that they also are State Government servants like the District H 326 Panchayat and Taluka Panchayat employees and Talatis and Kotwals working in the Gram and Nagar Panchayats. Section 3 of the provides for the appropriate government, in the manner provided in. the Act, fixing minimum rates of wages payable to employees employed in an employment specified in Part I and Part II of the Schedule and in any other employment added to either Part by notification under s.27 of the Aet subject to the proviso to section 3(1) (a) and has power to review at such intervals as it thinks fit, such intervals not exceeding S years, the minimum rates of wages so fixed and revise the minimum rates, if necessary, subject to the proviso to clause (b) of sub section (I) of section 3. Section 2(i) of the Act defines "employee" as meaning "any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed and includes an out worker. " "Employer" is defined in section 2 (e) of the Act as "any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum wages have been fixed under the Act and includes, except in sub section (3) of section 26". (i). . (ii) . . . (iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under the Act, the person appointed by such authority for the supervision and control of the employees or where no employee is so appointed, the Chief Executive officer of the local authority; and (iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under the Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages . ". We are not concerned in these appeals with section 26 (3) of the Act. Section 2 (g) defines "scheduled employment" as meaning "an employment specified in the Schedule or any process or branch of work forming part of such employment". "Employment under any local authority" is item 6 in the Schedule of the Act. Therefore, there can be no doubt that the Tube well operators concerned in these appeals are in scheduled employment under the Panchayats. The question is whether, being Government servants, employed under the local authority, they are not entitled to minimum wages and other benefits under the Act. "Employer" under the Act being "any person who employs whether directly or through another 327 person, or whether on behalf of himself or any other person, one or A more employees in any scheduled employment in respect of which minimum wages have been fixed under the Act", the Panchayat or Panchayats under which the Tube well operators concerned are employed in scheduled employment would be "employers" under the Act even though they are Government servants, for under section 102 (2) of the Gujarat Panchayat Act, 1961 a Secretary of a Gram Panchayat or Nagar Panchayat shall subject to the control of the Sarpanch or Chairman as the case may be, perform certain duties mentioned in clauses (a), (b), (c) and (d) to that sub section and under sub section (3) of that section the other servants of the panchayats shall perform such functions and duties and exercise such powers under the Act as may be imposed or conferred on them by the Panchayat, subject to rules, if any, made in this behalf. We are, therefore, of the opinion that the Tube well operators concerned in these appeals, even thought State Government servants, are employed in scheduled employment under the local authority or authorities and are consequently entitled to minimum wages and other benefits under the Act, it not being disputed that minimum wages have been fixed by the State Government in respect of Tube well operators generally though that benefit has not been extended to the Tube well operators concerned in these appeals. The appeals are accordingly allowed with costs. The applications before the Minimum Wages Authority are allowed as prayed for and the directions shall be issued as prayed for. H.L.C. Appeals allowed. [/INST]After obtaining the requisite sanction from the Governor on 19th February, 1979, a chargesheet in Vigilance P.S. case No. 9 (2) 78 was filed by the State of Bihar against Respondent No 2 (Dr. Jagannath Mishra), Respondent No. 3 (Nawal Kishore Sinha), Respondent No. 4 (Jiwanand Jha) and three others (K.P. Gupta since deceased, M.A. Haidari and A.K. Singh who later became approvers) for offences under Sections 420/466/471/109/120 B I.P.C. and under Section 5 (1) (a), 5 (1) (b) and 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge against the respondent No. 2, was that all times material he was either a Minister or the Chief Minister of Bihar and in that capacity by corrupt and or illegal means or by otherwise abusing his position as a public servant, he, in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha, in particular, sought to subvert criminal prosecution and surcharge 62 proceedings against Nawal Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Co operative Bank, its members, depositors and creditors and thereby committed the offence of criminal misconduct under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and in that process committed the other offences specified in the charge sheet, including the offences of forgery under section 466 I.P.C. Cognizance of the case was taken on 21st November, 1979 by the learned Chief Judicial Magistrate cum Special Judge (Vigilance)Patna, who issued process against the accused, but before the trial commenced the State Government, at the instance of Respondent No. 2, who in the meantime had come to power and had become the Chief Minister; took a decision in February 1981 to withdraw from the prosecution for reasons of State and Public Policy. Though initially Shri Awadesh Kumar Dutt, Senior Advocate Patna High Court, had been appointed as a Special Public Prosecutor by the previous Government for conducting the case, the State Government (now headed by Respondent No. 2) without cancelling Shri Dutt 's appointment as Special Public Prosecutor, on 24th February 1981 constituted a fresh panel of lawyers for conducting cases pertaining to Vigilance Department. Sri Lalan Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted the said case and was informed of the Government 's said decision and on 26th March, 1981, he was further requested to take steps for withdrawal of the case after he had considered the matter and satisfied himself about it. On 17th June, 1981, Sri Lalan Prasad Sinha made an application under Section 321 Crl. P.C. 1973 to the Special Judge seeking permission to withdraw from the prosecution of Respondent Nos. 2, 3 and 4 in the case on four grounds: namely, (a) Lack of prospect of successful prosecution in the light of the evidence, (b) Implication of the persons as a result of political and personal vendetta, (c) Inexpediency of the prosecution for the reasons of the State and Public Policy; and (d) Adverse effects that the continuance of the prosecution will bring on public interest in the light of the changed situation. The learned Special Judge by his order dated 20th June 1981 granted the permission. A Criminal Revision No. 874/81 preferred by the appellant against the said order was dismissed in limine by the High Court on 14th September, 1981. Hence the approval by Special Leave of the Court. Allowing the Appeal, the Court ^ HELD: (i) Lalan Prasad Sinha was the competent officer entitled to apply for the withdrawal from the prosecution, there being no infirmity in his appointment. [155 B C] (ii) He did apply his mind and came to his own conclusions before making the application for the withdrawal from the prosecution. [149 G] Per majority (Baharul Islam and Misra JJ, Tulzapurkar J dissenting) The executive function of the Public Prosecutor and or the supervisory function of the trial court in granting its consent to the withdrawal have been properly performed and not vitiated by reason of any illegality. [143E 158A] 63 Per Tulzapurkar J (Concurring with Baharul Islam and Misra JJ.) 1:1 Sri Lalan Prasad Sinha was the competent officer entitled to apply for the withdrawal from the prosecution. [84 E. It is true that the appointment of the former prosecutor, in the instant case, made by the previous government to conduct the case in question had not been cancelled, though in fitness of things it should have been cancelled but that did not prevent the new government to make a fresh appointment of a Public Prosecutor and to put him in charge of the case. Appointments of Public Prosecutors generally fall under Section 24 (3) of the Code of Criminal Procedure, but when the State Government appoints public prosecutors for the purpose of any case or class of cases, the appointees became Special Public Prosecutors under Section 24 (8) of the Code. [85 B D] 1:2 Further it cannot be disputed that the former prosecutor not having appeared before the Special Judge at any stage of the hearing was never incharge of the case not in the actual conduct of the case; on the other hand, after the allotment of this case to him, the latter was incharge of the case and was actually conducting the case he having admittedly appeared in the case at least on four occasions before the Special Judge. [85 D F] State of Punjab vs Surjeet Singh and Anr., ; ; M.N.S. Nair vs P.V. Balakrishnan and Ors ; , followed. 1:3 It is true that, in the instant case, the State Government had taken its own decision to withdraw from the prosecution in the case against the accused persons and it is also true that the said decision was communicated to the Public Prosecutor, but if the letters communicating the decision are carefully scrutinised, it will be clear that the State Government merely suggested him (which it was entitled to do) to withdraw from the prosecution but at the same time asked him to consider the matter on his own and after satisfying himself about it make the necessary application which he did, and there is no material to doubt the recital that is found in the application that he had himself considered relevant materials connected with the case and had come to his own conclusions in that behalf. [86 D F] 2. From the Supreme Court 's enunciation of the legal position governing the proper exercise of the power contained in Section 321, three or four things became clear : (i) Though withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the court 's supervisory function. In fact being an executive function it would be subject to a judicial review on certain limited grounds like any other executive action; the authority with whom the discretion is vested 'must genuinely address itself to the matter before it, must not act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or the spirit of the legislation that gives it power to act arbitrarily or capriciously." [81 E H, 82A] 64 (ii) Since the trial court 's supervisory function of either granting or refusing to grant the permission is a judicial function the same is liable to correction by the High Court under its revisional powers both under the old and present Code of Criminal Procedure, and naturally the Supreme Court would have at least coextensive jurisdiction with the High Court in an appeal preferred to it by special leave or upon a certificate by the High Court. [82 B D] (iii) No dichotomy as such between political offences or the like on the one hand and common law crimes on the other could be said to have been made by the Supreme Court for purposes of Section 321, for, even in what are called political offences or the like, committing common law crimes, is implicit, for the withdrawal from the prosecution of which the power under Section 321 has to be resorted to. But the decisions do lay down that when common law crimes are motivated by political ambitions or considerations or they are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or like situations involving emotive issues giving rise to an atmosphere surcharged with violence, the broader cause of public justice, public order and peace may outweigh the public interest of administering criminal justice in a particular litigation and withdrawal from the prosecution of that litigation would become necessary, a certainty of conviction notwithstanding, and persistence in the prosecution in the name of vindicating the law may prove counter productive. In other words, in case of such conflict between the two types of public interests, the narrower public interest should yield to the broader public interest, and, therefore, an onerous duty is cast upon the court to weigh and decide which public interest should prevail in each case while granting or refusing to grant its consent to the withdrawal from the prosecution. For, it is not invariably that whenever crime is politically motivated or is committed in or is followed by any explosive situation involving emotive issue that the prosecution must be withdrawn. In other words, in each case of such conflict the court has to weigh and decide judiciously. But it is obvious that unless the crimes in question are per se political offences like sedition or are motivated by political considerations or are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or the like situations involving emotive issues giving rise to an atmosphere surcharged with violence, no question of serving any broader cause of public justice, public order or peace would arise and in the absence thereof the public interest of administering criminal justice in a given case cannot be permitted to be sacrificed, particularly when a highly placed person is allegedly involved in the crime, as otherwise the common man 's faith in the rule of law and democratic values would be sheltered. [82 D H, 83 A D] (iv) When paucity of evidence or lack of prospect of successful prosecution is the ground for withdrawal the court has not merely the power but a duty to examine the material on record without which the validity and propriety of such ground cannot be determined. [83 D E] State of Bihar vs Ram Naresh Pandey, ; State of Orissa vs Chandrika Mohopatra and Ors., ; ; Balwant Singh and Ors. vs State of Bihar, ; R.K. Jain vs State, ; ; M.N.S. Nair vs P.V. Balakrishnan and Ors, ; , referred to. 65 3:1 In the light of the legal principles, it would be clear, that this Vigilance P.S. case 9 (2) (78) being an ordinary criminal case involving the commission of common law crimes of bribery and forgery in ordinary normal circumstances with self aggrandisement or favouritism as the motivating forces, grounds (b), (c) and (d) stated in the application for withdrawal were irrelevant and extraneous to the issue of withdrawal and since admittedly these were the considerations which unquestionably influenced the decision of the Public Prosecutor in seeking the withdrawal as well as the decision of the trial court to grant the permission, the impugned withdrawal of Vigilance P.S. case 9 (2) 78 from the prosecution would stand vitiated in law. [87 H, 88 A, G H, 89 A B] 3:2 Admittedly, the offences of bribery (criminal misconduct) and forgery which are said to have been committed by Respondent No. 2 in conspiracy with the other accused are ordinary common law crimes and were not committed during nor were they followed by any mass agitation or communal frenzy or regional dispute or industrial conflict or student unrest or the like explosive situation involving any emotive issue giving rise to any surcharged atmosphere of violence; further it cannot be disputed that these are not per se political offences nor were they committed out of any political motivation whatsoever; in fact the motivating force behind them was merely to give protection to and shield Sri Nawal Kishore Sinha, a close friend, from criminal as well as civil liability a favouritism amounting to criminal misconduct allegedly indulged in by Respondent No. 2 by abusing his position as a Minister or Chief Minister of Bihar. If therefore, the offences did not partake of any political character nor were committed in nor followed by any explosive situation involving emotive issue giving rise to any surcharged atmosphere of violence, no question serving any broader cause of public justice, public order or peace could arise and in absence thereof the public interest of administering criminal justice in this particular case could not be permitted to be sacrificed. [88 C F] 3:3. No results of any election, howsoever sweeping, can be construed as the people 's mandate to condone or compound the common law crimes allegedly committed by those who have been returned to power; in fact such interpretation of the mandate would be contrary to all democratic canons. Success at hustings is no licence to sweep all dirt under the carpet and enjoy the fruits nonchalantly. Therefore, the plea of change in the situation brought about by the elections putting Respondent No. 2 in power as Chief Minister and prosecution against the head of State would have had adverse effects on public interest including public order and peace is misplaced. At the worst, all that can happen is that Respondent No. 2 will have to step down and nothing more. Any fear of destabilisation of the Government is entirely misplaced. On the other hand, withdrawal from the prosecution of such offences would interfere with the normal course of administration of criminal justice and since Respondent No. 2 is placed in a high position, the same is bound to affect the common man 's faith in the rule of law and administration of justice. Further if the proof of the offences said to have been committed by Respondent No. 2, in conspiracy with the other accused based on undisputed and genuine documentary evidence, no question of political and personal vendetta or unfair and overzealous investigation would arise. [89 D H, 90 A] 66 3:4 The documentary evidence, comprising the Audit Reports, the relevant notings in the concerned file and the two orders of the Respondent No. 2, the genuineness of which cannot be doubted, clearly makes out a prima facie case against Respondent No. 2 sufficient to put him on trial for the offence of criminal misconduct under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Similar is the incidental offence of forgery under Section 466 I.P.C. for antedating the second order. The question of "paucity of evidence", therefore, does not arise. The trial court failed, therefore, in its duty to examine this before permitting the withdrawal from prosecution. [101 C E, H, 102 A] 3:5 Yet another legal infirmity attaching to the executive function of the Public Prosecutor as well as the supervisory judicial function of the trial court which would vitiate the final order is that while the charge sheet is under sub clauses (a), (b) and (d) of Section 5 (1) read with Section 5 (2) of the Prevention of Corruption Act along with other offences under the Penal Code, in the application for withdrawal and during the submission made before the Court as well as in the order of the trial Court permitting the withdrawal the reference is to Section 5 (1) (c) and not 5 (1) (d). Obviously the permission granted must be regarded as having been given in respect of an offence with which Respondent No. 2 had not been charged, completely ignoring the offence under Section 5 (1) (d) with which he had been mainly charged. This state of affairs brings out a clear and glaring non application of mind both on the part of the Public Prosecutor and also the learned special Judge with the issue of withdrawal; in the High Court also there is no improvement in the situation. [103 B, D, E, F, H, 104 A C] Per Baharul Islam, J. 1:1 In view of the definition of "Public Prosecutor" in Section 2 of the Code of Criminal Procedure read with Section 24 (8) of the Code and in the light of the decision of the Supreme Court in State of Punjab vs Surjeet Singh ; , there cannot be any doubt, that Sri L.P. Sinha was a Public Prosecutor validity appointed under sub section (8) of Section 24 of the Code. [115 D E] State of Punjab vs Surjeet Singh, ; , followed. 1:2 The appointment of Shri L.P. Sinha cannot be collaterally challenged particularly in an application under Article 136 of the Constitution. Shri A.K. Dutta, the earlier appointee had at no point of time came forward to make any grievance at any stage of the case, either at the appointment of Sri L.P. Sinha as Special Public Prosecutor or in the latter 's conduct of the case; nor Sri L.P. Sinha whose appointment and right to make an application under Section 321 of the Code have been challenged is before the Supreme Court. [115 E G] 1:3 The appointment of the latter prosecutor without the termination of the appointment of the earlier one might at best be irregular or improper, but cannot said to be legally invalid. The doctrine of de facto jurisdiction which has been recognised in India will operate in this case. [115 G H, 116A] 67 Gokaraju Rangaraju vs State of Andhra Pradesh, ; , followed. Newzealand and Norton vs Shelly Country p. ; quoted with approval. 1:4 Shri L.P. Sinha was both de jure and de facto Public Prosecutor in the case. If he fulfilled the two conditions as required by Section 321, namely, (i) that he was the Public Prosecutor; and (ii) was incharge of the case, he was competent to supply for withdrawal of the case, even if he were appointed for that purpose only. [118 H, 119 A C] 2:1 Section 321 enables the Public Prosecutor or Assistant Public Prosecutor incharge of a case to withdraw from the prosecution with the consent of the court. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any out side influence. But it cannot be said that a Public Prosecutor 's action will be illegal if he receives any communication or instruction from the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State. appointed conducting in Court any prosecution or proceedings on behalf of the Government. A public prosecutor cannot act without instructions of the Government; a public prosecutor cannot conduct a case absolutely on his own, or contrary to the instructions of his client, namely, the Government. Section 321 does not lay any bar on the public prosecutor to receive any instruction from the Government before he files an application under that Section. If the public prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the public prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government. [119 D H, 120 B C] 2:2 A mere perusal of the application made by the public prosecutor abundantly shows that he did apply his mind to the facts of the case; he perused the case Diary and the relevant materials connected with the case", before he made the application. He did not blindly quote from the Government letter which contained only one ground, namely, "inexpediency of prosecution for reasons of state and public policy". A comparison of the contents of this letter with the contents of the application under Section 321 completely negatives the contention that he did not himself apply his mind independently to the fact of the case and that he blindly acted on extraneous considerations. [112 F H] 3:1 The object of Section 321 appears to be to reserve power to the Executive Government to withdraw any criminal case on larger grounds of public policy, such as, inexpediency of prosecutions for reasons of State; broader public interest like maintenance of law and order; maintenance of public peace and harmony, social, economic and political; changed social and political situation; avoidance of destabilisation of a State Government and the like. And such powers have been rightly reserved for the Government; for, who but the Government is in the know of such conditions and situations prevailing in a State or in the country. The Court is not in a position to know such situations. [126 D F] 68 3:2 The withdrawal from the prosecution is an executive function of the public prosecutor and the ultimate decision to withdraw from the prosecution is his; the Government may only suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so; not merely inadequacy of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and political; public order and peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent by the court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the power of the Court is judicial to the extent that the Court in according or refusing consent has to see: (i) whether the grounds of withdrawal are valid; and (ii) whether the application is bonafide and not collusive. It may be remembered that an order passed by the Court under Section 321 is not appealable. [128 D G] 3:3 A mere perusal of the impugned order of the Special Judge granting permission to withdraw from the prosecution of accused persons, in the case in question shows that he has applied his mind to the relevant law. What the court has to do under section 321 is to see whether the application discloses valid grounds of withdrawal valid as judicially laid down by the Supreme Court. [128 G H] 3:4 A criminal proceeding with a prima facie case may also be with drawn. Besides, the normal practice of the Supreme Court in a criminal appeal by Special Leave under article 136 of the Constitution directed against an order of conviction or acquittal is that it does not peruse the evidence on record and appreciate it to find whether findings of facts recorded by the courts below are correct or erroneous, far less does it peruse the police diary to see whether adequate materials were collected by the investigating agency. It accepts the findings of the Courts below unless it is shown that the findings are the results of a wrong application of the principles of law and that the impugned order has resulted in grave miscarriage of justice. [129 A C] R.K. Jain vs The State, ; , followed. 3:5 An order under Section 321 of the Code does not have the same status as an order of conviction or acquittal recorded by a Trial Court or appellate court in a criminal prosecution, in as much as the former has not been made appealable. An order under Section 321 of the Code has a narrower scope. As an order under Section 321 of the Code is judicial, what the trial court is expected to do is to give reasons for according or refusing its consent to the withdrawal. The duty of the Court is to see that the grounds of withdrawal are legally valid and the application made by the public prosecutor is bonafide and not collusive. In revision of an order under Section 321 of the Code, the duty of the High Court is to see that the consideration by the trial court of the application under Section 321 was not misdirected and that the grounds of withdrawal are legally valid. In this case the trial court elaborately considered the grounds of withdrawal and found them to be valid and accordingly accorded its consent for withdrawal. In revision the High Court affirmed the findings of the trial court. In this appeal by special leave, therefore, there is no justification to disturb the findings of the courts below and peruse the statements of witnesses recorded or other materials collected by the investigating officers during the course of investigation. [129 C H] 69 3:6 A question of fact that needs investigation cannot be allowed to be raised for the first time in an appeal by special leave under Article 136 of the Constitution. In his application before the special Judge the appellant did not find fault with any of the grounds of withdrawal in the application filed by the Public Prosecutor under Section 321. There was no mention of any forgery by antedating or by pasting of any earlier order and thereby making any attempt at shielding of any culprit. He thus prevented the special Judge and the High Court from giving any finding an alleged forgery and thereby depriving the Supreme Court also from the benefits of such findings of the courts below. [131 C E] 3:7 There is no prima facie case of forgery or criminal misconduct made out on the materials on record. If the Chief Minister found that his first order was unwarranted by law, it was but right that he cancelled that order. Pasting order by a piece of paper containing another order prima facie appears suspicious, but pasting is the common practice in the Chief Minister 's Secretariat. Antedating simpliciter is no offence. [132 C,E,F] 3:8 If two interpretations are possible, one indicating criminal intention and the other innocent, needless to say that the interpretation beneficial to the accused must be accepted. [132 G] 3:9 Remand for trial if made will be a mere exercise in futility and it will be nothing but an abuse of the Court to remand the case to the trial court in view of the following circumstances, namely, (1) the occurrence took place as early as 1970; it is already more than twelve years; (ii) Respondent No. 2 is the Chief Minister in his office. Knowing human nature, as it is, it can hardly be expected that the witnesses, most of whom are officials, will come forward and depose against a Chief Minister; and (iii) Even after the assumption of office by Respondent No. 2 as the Chief Minister is in the court of Special Judge, the prosecution was pending on several dates but the Prosecutor, Sri A.K. Dutta, did not take any interest in the case at all. It cannot be accepted that a Public Prosecutor appointed by the Government in power, will now take interest and conduct the case so as to secure conviction of his own Chief Minister. [136 F H, 137 A B] Per R.B. Misra J. 1:1 A bare perusal of Section 321 of the Criminal Procedure Code shows that it does not put any embargo or fetter on the power of the Public Prosecutor to withdraw from prosecuting a particular criminal case pending in any court. All that he requires is that he can only do so with the consent of the court where the case is pending in any court. [140 C D] 1:2 In this country, the scheme of criminal justice places the prime responsibility of prosecuting serious offences on the executive authority. The investigation, collection of requisite evidence and the prosecution for the offences with reference to such evidence are the functions of the executive. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court in according its consent to withdrawal is, however, a judicial function. It, therefore, becomes necessary for the court before 70 whom the application for withdrawal is filed by the public prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by Public Prosecutor. [140 E G] State of Bihar vs Ram Naresh Pand ey, ; M.N.S. Nair vs P.V. Balakrishnan & Ors. , ; , State of Orissa vs C. Mohapatra, ; Balwant Singh vs State of Bihar, ; R.K. Jain vs State; ; , referred. 2:1 Section 321 is in very wide terms and in view of the decisions of the Supreme Court, it will not be possible to confine the grounds of withdrawal of criminal proceeding only to offences which may be termed as political offences or offences involving emotive issues. The only guiding factor which should weigh with Public Prosecutor while making the application for withdrawal and the court according its permission for withdrawal is to see whether the interest of public justice is advanced and the application for withdrawal is not moved with oblique motive unconnected with the vindication of the cause of public justice. [145 E G] 2:2 The Indian Penal Code or the Code of Criminal Procedure does not make any such distinction between political offences and offences other than political ones. Even if it is accepted that political offences are unknown to jurisprudence and other Acts do contemplate political offences, the fact remains that Section 321 Cr. P.C. is not confined only to political offences, but it applies to all kinds of offences and the application for withdrawal can be made by the Public Prosecutor on various grounds. [145 H, 146 A B] 2:3 To say that unless the crime allegedly committed are per se political offences or are motivated by political ambition or consideration or are committed during mass agitation, communal frenzies, regional disputes, no question of serving a broader cause of public justice, public order or peace can arise is to put limitation on the broad terms of Section 321 of the Code. [148 F G] 3:1 The Public Prosecutor may withdraw from the prosecution not only on the ground of paucity of evidence but on the other relevant grounds as well in order to further broad aims of justice, public order and peace. Broad aim of public justice will certainly include appropriate social, economic and political purposes. [143 G H] 3:2 An application for withdrawal from the prosecution can be made on various grounds and it is not confined to political offences. Therefore, it cannot be said that the grounds mentioned in the application for withdrawal, namely: (i) implication of the accused persons as a result of political and personal vendetta, (ii) inexpediency of the prosecution for the reasons of State and Public policy, and 71 (iii)adverse effects that the continuance of the prosecution will bring on public interest in the light of the changed situation, are irrelevant. are not liable grounds for withdrawal. [145 G H] 3:3 Further, the decision of the public prosecutor to withdraw from the case on the grounds given by him in his application for withdrawal cannot be said to be actuated by improper oblique motive. He bonafide thought that in the changed circumstances it would be inexpedient to proceed with the case and would be a sheer waste of public money and time to drag on with the case if the chances for conviction are few and far between. In the circumstances, instead of serving the public cause of justice, it will be to the detriment of public interest. [149 B D] 3:4 The letter sent by the Government to the public prosecutor did not indicate that the Government wants him not to proceed with the case, but the letter gave full discretion to the Public Prosecutor, to apply his own mind and to come to his own conclusion. Consultation with the Government or high officer is not improper. But the Public Prosecutor has to apply his own mind to the facts and circumstances of the case before coming to the conclusion to withdraw from the prosecution. From the materials on the record, it is clear that the Public Prosecutor has applied his own mind and came to his own conclusions. [155 D F] 3:5 The statutory responsibility for deciding withdrawal squarely rests upon the public prosecutor. It is non negotiable and cannot be bartered away. The court 's duty in dealing with the application under Section 321 is not to reappraise the materials which led the public prosecutor to request withdrawal from the prosecution but to consider whether public prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous or oblique considerations, as the court has a special duty in this regard in as much as it is the ultimate repository of legislative confidence in granting or withdrawing its consent to withdrawal from prosecution. [149 D E] 3:6 If the view of the Public Prosecutor is one, which could in the circumstances be taken by any reasonable man, the court cannot substitute its own opinion for that of the Public Prosecutor. If the Public Prosecutor has applied his mind on the relevant materials and his opinion is not perverse and which a reasonable man could have arrived at, a roving enquiry into the evidence and materials on the record for the purpose of finding out whether his conclusions were right or wrong would be incompetent. [154 H, 155 A] In the view taken that no prima facie case has been made out under Section 466 of the Indian Penal Code and Section 5 (1) (d) of the Prevention of Corruption Act and the fact that the High Court in revision agreed with the view of the Special Judge giving consent to the withdrawal from the prosecution on the application of the Public Prosecutor under Section 321 I.P.C. this Court cannot make a fresh appraisal of evidence and come to a different conclusion. 72 All that this Court has to see is that the Public Prosecutor was not actuated by extraneous or improper considerations while moving the application for withdrawal from the prosecution. Even if it is possible to have another view different from the one taken by the Public Prosecutor while moving the application for withdrawal from prosecution the Supreme Court should be reluctant to interfere with the order unless it comes to the conclusion that the Public Prosecutor has not applied his mind to the facts and circumstances of the case, and has simply acted at the behest of the Government or has been actuated by extraneous and improper considerations. On the facts and circumstances of the case, it is clear that the Public Prosecutor was actuated by oblique or improver motive. [157 B F] </s>
<s>[INST] Summarize the judgementNo. 170 of 1959. Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights. 785 R. V. section Mani. for the petitioner. C. K. Dephtary, Solicitor General of India, B. R. L. lyengar and R. H. Dhebar, for the respondent. 1960, January 20. The Judgment of the Court was delivered by IMAM J. This petition was heard on January 4, 1960, and we intimated that it was being dismissed and reasons for the same will follow later. We proceed to give our reasons now. The petitioner was detained by an order dated May 4, 1959, of the Central Government under the provisions of section 3 of the (hereinafter referred to as the Act). The grounds of detention dated May 7, 1959, were served on the petitioner. His case was considered by the Advisory Board constituted by the Central Government under section 8 of the Act. On the report of the Advisory Board the Central Government by its order dated June 23, 1959, directed that the petitioner be detained until May, 4 1960. It is against this order of detention that the present petition under article 32 of the Constitution has been filed by the petitioner. The grounds of detention contained 5 grounds upon which the Central Government was satisfied that it was necessary to detain the petitioner as he was likely to act further in a manner prejudicial to the security of India and the relations of India with foreign powers. It was further stated in the grounds of detention that the Central Government considered it against the public interest to disclose to the petitioner any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than those which had been mentioned in the grounds of detention. The grounds of detention further mentioned that some of the specimen despatches sent by the petitioner and some of the reports appearing in a newspaper published in Pakistan were annexed thereto. From the grounds of detention it would appear that the allegation against the petitioner was that he had been engaged in carrying on propaganda against the Government of India and the Government of the 786 State of Jammu and Kashmir established by law and against the administration of that State Government in a manner calculated to bring into hatred and contempt the Government of tile State and the Government of India; that in furtherance of his propaganda the petitioner had been inter alia sending for publication in a foreign newspaper despatches of news and views relating to the State of Jammu and Kashmir containing false, incomplete, one sided and misleading information about the administration of the State by the Government of that State, about the policy of the Government of India in relation to that State and about the conditions in India in general and in the State of Jammu and Kashmir in particular; that the said despatches were published prominently by the said newspaper, having a large circulation in Pakistan and other foreign countries, in a manner prejudicial to India and her cause in relation to the State of Jammu and Kashmir and also prejudicial to the relations of India with foreign powers ; that the petitioner was in regular touch and closely associated with several persons who are hostile to the cause of India in relation to the State of Jammu and Kashmir and were engaged in activities prejudicial to the security of India and that the cumulative effect of the petitioner 's aforesaid activities was prejudicial to the relations of India with foreign powers in general and particularly in regard to the cause of India in respect of the State of Jammu and Kashmir and the maintenance of public order therein. We have examined the various extracts from the despatches sent by the petitioner annexed to the grounds of detention served upon him. They disclose sufficient particulars to enable the petitioner to make a representation to the Advisory Board. Having regard to what appears in these extracts from the despatches sent to the newspaper concerned, they disclose sufficient grounds for the action taken by the Central Government in detaining the petitioner. On behalf of the petitioner it was urged that the order of detention was confined only to two matters (1) that it was made with a view to preventing the 787 petitioner from acting in a manner prejudicial to the relations of India with foreign powers and (2) to the security of India. As to the first matter, it was argued that Pakistan not being a Foreign State, there could be no question of any act of the petitioner being prejudicial to the relations of India with foreign powers. It was pointed out that under article 367(3) of the Constitution, for the purposes of the Constitution, Foreign State meant any State other than India. The proviso, however, enabled the President, subject to the provisions of any law made by Parliament, by order to declare any State not to be Foreign State for such purposes as may be specified in the order. Reference was made to the Constitution (Declaration as to Foreign State) Order, 1950 (hereinafter referred to as the Order) made by the Governor General of India under article 392(3) of the Constitution read with article 367(3). The Order directed that it shall come into force at once, that is to say, on January 23, 1950. Clause (2) of the Order states: "Subject to the provisions of any law made by Parliament, every country within the Commonwealth is hereby declared not to be a Foreign State for the purposes of the Constitution". On behalf of the petitioner it was urged that by the Order,, Pakistan being a member of the Commonwealth, was declared not to be a Foreign State. Although the Order was subject to the provisions of any law made by Parliament no law had yet been enacted by Parliament contrary to the declaration made by the Order. Pakistan not being a Foreign State could not therefore be regarded as a foreign power and none of the acts of the petitioner referred to in the grounds of detention could therefore be regarded as acts prejudicial to the relations of India with foreign powers. The ground in this respect being an invalid ground the order of detention must be set aside because even if one ground was an invalid ground the entire order of detention must be set aside though other grounds appeared to be valid grounds, having regard to certain decisions of this Court. It was also urged on behalf of the petitioner that none of the extracts of the, despatches and the grounds 788 of detention disclose any word or phrase suggesting incitement to violence or subversion of the Government of the State of Jammu and Kashmir or of the Government of India. Accordingly, there could be no question of any act of the petitioner being prejudicial to the security of India. Some other submissions were also urged on behalf of the petitioner with respect to the grounds of detention which will be dealt with in due course. It was also urged that in violation of the principles of natural justice the respondent 's case was heard by the Advisory Board prior to the case of the petitioner and in his absence and that copies of the further materials, which were placed before the Advisory Board by the respondent, were not supplied to the petitioner. As already stated the contention on behalf of the petitioner has been that Pakistan is not a Foreign State and therefore cannot be regarded as a foreign power. It is true, that in view of the Order, for the purposes of the Constitution of India, Pakistan is nota Foreign State. There is, however, a distinction between a country not being regarded as a Foreign State for the purposes of the Constitution and that country being a foreign power for other purposes. The Commonwealth is an Association of Nations each of which has a sovereign status independent of each other in its internal and foreign affairs. They have a sovereign status as complete as that of any nation which is not a member of the Commonwealth. Each member of the Commonwealth can have diplomatic relations with each other and with nations outside the Commonwealth. Indeed, in the matter of sovereign status they are as independent as any nation outside the Commonwealth. It follows, therefore, that in their relations between each other and nations outside the Commonwealth they must be regarded as foreign powers and their affairs as between them are foreign affairs. In our opinion, that which is not concerned with the internal affairs of a member of the Commonwealth, is its external affair, that is to say, a foreign affair. 789 Under item 9 of List 1 of the Seventh Schedule of the Constitution, Parliament is empowered to enact laws with respect to preventive detention for reasons connected with defence, foreign affairs or the security of India and persons subjected to such detention. Under section 3 of the Act the Central Government or the State Government may, if satisfied with respect to any person, with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India, make an order directing that such person be detained, if it thinks it necessary so to do. The expression " Foreign Affairs " includes the relations of India with foreign powers. The question for decision is whether Pakistan is a foreign power. On a correct interpretation of the meaning of the words " the relations of India with foreign powers " we have no doubt that Pakistan must be regarded as a foreign power, although that country may be a part of the Commonwealth as India is. It has sovereignty in matters of internal administration and external relations quite independent and disconnected with the sovereignty of India or any other member of the Commonwealth in these respects. Pakistan has its own diplomatic relations with various countries including India. Apart from its membership of the Commonwealth, the independent sovereign status of Pakistan is the same as the sovereign status of any country outside the Commonwealth. It was, however, suggested that the Order made by the Governor General took Pakistan outside the category of a foreign power. In our opinion, this is a fallacious argument because article 367(3) itself states that for the purposes of the Indian Constitution Foreign State means any State other than India but the President, and before the commencement of the Constitution the Governor General of India under article 392(3), may by order declare any State not to be a Foreign State for such purposes as may be specified in the Order. In the Order the Governor General declared that every country within the Commonwealth was not a Foreign State for the purposes of the Constitution. In the Constitution of India there are various Articles in which the expression 790 Foreign State appears, e.g., article 18(2), (3), (4), article 19(2), article 102(1)(d.) and article 191(1)(d). It is clear,therefore. that under the Order, for the purposes of these Articles or any other Article where the expression "Foreign State" appears, that expression would not cover a country within the Commonwealth unless Parliament enacted otherwise. The Order cannot be brought into aid for the purposes of construing the expression "foreign affairs" appearing in item 9 of List 1 of the Seventh Schedule and the expression "foreign powers" in section 3 of the Act. These expressions must be construed in the ordinary way giving the words their ordinary meaning. We have no doubt that Pakistan is a foreign power. Under the provisions of the Act the Central Government and the State Governments could detain a person who was acting in a manner prejudicial to the relations of India with foreign powers which would include Pakistan. It is to be further remembered that neither in the order of detention nor in the grounds of detention there is any mention of Pakistan specifically. On the contrary, in the grounds of detention, it is clearly stated that the cumulative effect of the petitioner 's activities was prejudicial to the relations of India with foreign powers in general (vide grounds 3 and 4). The grounds of detention refer to the publication in a foreign newspaper of despatches of news and views relating to the State of Jammu and Kashmir containing false, incomplete, one sided and misleading information and about the policy of the Government of India in relation to that State. The extracts of the despatches, sent by the petitioner to the foreign newspaper, annexed to the grounds of detention show that they are not only prejudicial to the Government of India vis a vis Pakistan but they are prejudicial to the relations of India with foreign powers in general, the subject of the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreign powers. Coming now to objections made as to the grounds of detention : regarding ground No. 1, it was urged that this ground was outside the scope of the order of 791 detention. This ground mentions that the petitioner is engaged in carrying on propaganda against the Government of India and the Government of the State of Jammu and Kashmir in such a manner as to bring these two Governments into hatred and contempt. In our opinion, it cannot be said that this ground is beyond the scope of the order of detention because the bringing of the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt does involve the security of India. Regarding ground No. 2 it was urged that it does not disclose a single suggestion about the subversive activities of the petitioner, nor does it disclose what portions of the despatches were false, incomplete, misleading or one sided. It was further pointed out that this ground speaks of the conditions in India in general and the policy of the Government of India in relation to the State of Jammu and Kashmir. What the policy of the Government of India is concerning that State is not stated. All these allegations were so vague that they gave no real opportunity to the petitioner to make a representation. Similarly, concerning grounds 3 and 4 it was urged that the grounds did not disclose what was the cause of India in relation to the State of Jammu and Kashmir. Here again, sufficient particulars were not given to enable the petitioner to make an effective representation to the Advisory Board. In our opinion, none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper " ]Dawn " published in Pakistan. These extracts gave sufficient particulars to enable the petitioner to make a represen tation with respect to all matters stated in the grounds of detention. Coming now to the submission that the respondent 's case was heard before the petitioner 's case and in his absence and that copies of further materials placed before the Advisory Board by the respondent were not supplied to the petitioner, it is necessary to refer to the procedure to be adopted by the Advisory Board under 101 792 the provisions of the Act. Under section 9, in every case where a detention order has been made the appropriate Government must within 30 days from the date of detention place before the Advisory Board the grounds, on which the order has been made, and the representation, if any, made by the detenus and, in a case where an order has been made by an officer, also the report by such officer under sub section (3) of section 3. Section 10 sets out the procedure which the Advisory Board must follow when reference has been made to it under section 9. Section 10(1) states : " The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date of detention. " It is clear from these provisions that the Advisory Board after considering the materials placed before it under section 9 can call for further information from the appropriate Government, and that thereafter if in any particular case it considers it essential so to do or if the detenue desires to be heard, after hearing him, submit its report to the appropriate Government. In such a situation the Advisory Board must of necessity obtain further information from the appropriate Government before it hears the detenue. In our opinion, there is nothing in section 10 which offends against the principles of natural justice. Furthermore, the petition does not assert as a matter of fact that the respondent 's case was heard in the absence of the petitioner. Indeed, the respondent 's affidavit does not admit that any such thing happened. As for the copies of the further materials placed by the respondent before the Advisory Board not being supplied to the petitioner, it has to be observed that in paragraph 3 of the grounds of detention it was 793 clearly stated that the Central Government considered it against public interest to disclose to the petitioner any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than those which had already been mentioned in the grounds of detention. Under article 22(6) of the Constitution it is clearly stated that nothing in cl. (5) of that Article shall require the authority making an order of detention to disclose facts which such authority considers to be against public interest to be disclosed. In the present case the authority concerned had declined to disclose in the public interest any facts or particulars as to dates, persons, places, nature of activities and the assistance given by the petitioner other than those which had already been mentioned in the grounds of detention. In such circumstances, it would have been entirely inappropriate for the respondent to supply copies of the further materials placed before the Advisory Board although the Advisory Board may have required further information in order to satisfy itself The petition is accordingly dismissed. Petition dismissed. [/INST]The petitioner was detained by an order of the Central Government under section 3, of the . The Advisory Board which considered the petitioner 's case in accordance with the provisions of the Act did not recommend that the order of detention should be withdrawn. The allegations against the petitioner were that he was carrying on propaganda of hatred and contempt against the Government of India and the State of Jammu and Kashmir by sending for publication in a widely published foreign Newspaper, false, one sided and misleading information about the administration of the State and the condition of India in general and the said State in particular. The petitioner 's contentions, inter alia, were that being a member of the Commonwealth, Pakistan, where the newspaper was published, was not a Foreign State and could not therfore be regarded as a Foreign power, that the principles of natural justice where violated by the Advisory Board in considering the respondent 's case in his absence and that materials placed before the Advisory Board were not supplied to him. Held, that on a correct interpretation of the expression foreign affairs " appearing in Item 9, List 1, Seventh Schedule of the Constitution and the words "the relations of India with foreign powers" in section 3 Of the Act, Pakistan must be regarded as a foreign power although that country might be a member of the Commonwealth like India. Under article 367 (3) a country might not be regarded as a Foreign State for the purposes of the Constitution but that country might be a foreign power for other purposes. The Commonwealth is an Association of Nations each having a sovereign status independent of the other in its internal and foreign affairs. The provisions of section 10 of the Act did not offend against the principles of natural justice and the procedure adopted by the Advisory Board in the present case was not in Contravention thereof. </s>
<s>[INST] Summarize the judgementAppeal No. 270 of 1955. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1958. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1952. L.K. Jha, A. D. Mathur and R. Patnaik, for the appellant. N.C. Chatterjee, and D. N. Mukherjee, for respondent No. 1. 1961. March 16. The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ., was delivered by Mudholkar, J. A. K. Sarkar, J., delivered a separate Judgment, MUDHOLKAR, J. This is an appeal by Special leave and the main point involved in it is whether the Rewa State Pre emption Act, 1949, is unconstitutional on the 360 ground that it places an unreasonable restriction upon the right to acquire property enumerated in cl. (1)(f) of article 19 of the Constitution. But before we hear arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of ' the plaintiff respondent No. 1 by Mr. N. C. Chatterjee to the effect that the defendant appellant is precluded from proceeding with the appeal because subsequent to the grant. of special leave to appeal, to him he withdrew the price of pre emption which was deposited by the respondent No. 1 in the court below. He contends that by withdrawing the pre emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous. In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate. In support of his contention, learned counsel has relied upon the well known case of Tinkler vs Hilder (1) and other cases which follow that decision or which proceed on the same reason as that in Tinkler 's case (1). Those decisons are: Banku Chandra Bose vs Marium Begum ( 'a); Ramendramohan Tagore vs Keshabchandra Chanda (2); Mani Ram vs Beharidas (3); section K. Veeraswami Pillai vs Kalyanasundaram Mudaliar & Ors. (4); Venkatarayudu vs Chinna (5) and Pearce vs Chaplin (6). The two English decisions just referred to and some of the Indian decisions were considered in Venkata. rayudu vs Chinna (5). Dealing with them Venkatasubba Rao, J., observed as follows: "What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, (1) ; (2) Cal. (4) A.I.R. 1927 Mad. 1009. (1a) (1915] (3) A.I.R. 1955 Raj. (5) (6) ; [1846] 9 Q.B. 802: 361 there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. . According to Halsbury this rule is an application of the doctrine "that a person may not approbate and reprobate" (13 Halsbury, para 508). . . . In other words,to allow a party, who takes a benefit under such an order, to, complain against it, would be to permit a breach of faith". The view taken in the other cases proceeds on similar reasoning But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim in, volved in these cases. What we are called upon to decide is whether the appellant by withdrawing the pre emption price can be said to have adopted the decree from which he had already preferred an appeal. The appellant did not seek to execute the decree, and indeed the decree did not confer a right upon him to sue out execution at all. The decree merely conferred a right upon the plaintiff respondent No. 1 to deposit the price of pre emption and upon his doing so, entitled him to be substituted in the sale deed in place of the vendee. The act of the appellant in withdrawing the pre emption price after it was deposited by the respondent No. 1 cannot clearly amount to, an adoption by him of the decree which he had specifically challenged in his appeal. Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. How can it be said that a vendee in a pre emption suit against whom a decree is passed takes any "benefit" thereunder? No doubt, he has a right to be paid the pre emption price before the pre emption decree becomes effective but tile price of pre emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. 46 362 For this reason the principle of the aforesaid decision would not apply to such a decree. A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand, J., in Sundara Das vs Dhanpat Rai (1). What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre emption has been passed. No reference is made by the learned judge to the decisions in Tinkler 's case (2) and in Pearce 's, case (3) and, therefore, this decision and other similar decisions are of little assistance in considering the "argument advanced by Mr. Chatterjee. It seems to us however, that in the absence of some statutory provision or of a well recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal. The phrase "approbate and reprobate" is borrowed from Scotch Law where it is used to expres the principle embodied in the English doctrine of election, namely, that no party can accept and reject the same instrument (per Scrutton, L. J., in Verschures Creameries vs Hull and Netherlands Steamship. , Co.,(4). The House of Lords further pointed out in Lissenden vs C. A. V. Bosch, Ltd. (5) that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument. In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory, right of appeal conferred upon him by the Workmen 's Compensation Act. Lord Maugham, after pointing out the limitations of the doctrine of approbate and reprobate observed towards the conclusion of his speech: "It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than (1) (1907] P. R. No. 16. (2) ; (3) ; (1846) 9 Q.B. 802: (4) (5) [1940] A.C 412. 363 the principles either of equity or of justice." (pp. 421 422). Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the "formula" to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from. No doubt, as pointed out by Lord At that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal. But he did not think it necessary to discuss in what circumstance the statutory right of appeal may be lost and added: "I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment: and the only conflicting right is the statutory right to seek to set aside or amend that judgment: and that the true solution may be found in the words of Lord Blanesburgh in Moore vs Cunard Steamship Co. (1)". According to Lord Blanesburgh when an order appealed against and later set aside, has been acted upon in the meantime "any mischief so done is undone" by an appropriate order. Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable. Thus, according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler 's case (2), is. based, may apply. Referring to this case and three other similar cases Lord Atkin observed: "In any case they form very flimsy foundation for such a wide reaching principle applicable to all appeals Its was asserted in this case: and if they did lead to that result should not be followed. 428 429). (3) The Lissenden case has thus in clear terms (1) (2)(1849) 4 Ex 187; ; (3) 364 indicated what the limitations of the Scotch doctrine are. If, therefore, what was laid down in this case is the common law of England according to its highest judicial tribunal, it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions. It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler 's case (1) to cases like the present. In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant, by withdrawing the preemption price has not taken a benefit de hors the merits. Besides, this is not a case where restitu tion is impossible or inequitable. Further. it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. In the case before us there was no such choice before the appellant and, therefore, his act in withdrawing the preemption price cannot preclude him for continuing his appeal. We., therefore, overrule the preliminary objection. The appeal will now be set down for hearing on merits. The costs of this hearing will be costs in the appeal. SARKAR, J. It seems to me that the objection to the maintainability of this appeal must succeed. The appellant having taken the benefit of the decree cannot now challenge its validity. The decree was passed in a suit for preemption brought in May, 1951 by the respondent Baijnath, whom I will call the respondent. against the appellant, the purchaser of certain property and the vendors, the other respondents who have not appeared in this appeal. The suit was dismissed by the trial Court but (1) ; 365 on appeal it was decreed by the Judicial Commissioner Vindhya Pradesh, on March 24,1952. The learned Judicial Commissioner held that the respondent had the right of pre emption and that the purchase money payable by him to the appellant for preemption of the property, *as Rs. 3,000 and directed the respondent to pay this sum into court within four months. The respondent duly paid this sum into court. The appellant obtained special, leave from this Court to appeal from the judgment of the learned Judicial Commissioner and thereafter withdrew from court the amount paid in by the respondent. The present appeal arises under this leave. The decree that was drawn up only stated that the appeal was allowed with costs and the period of grace was four months. In view of Or. XX, r. 14, of the Code of Civil Procedure, the decree, in spite of its informality, must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed, the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that, in default of such payment the suit would stand dismissed with costs. Now, there is not the slightest doubt that in with. drawing the money from court the appellant had acted entirely on his free choice; he had in no way been compelled to do so, nor been induced thereto by any act of the respondent. The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant. The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest. He has all along been in possession of the property since he purchased it on June 7, 1950 and he has been in enjoymeint of the money also sine( he withdrew it from court on November 14, 1953. It seems to me that on these facts the appellant cannot proceed with the appeal. He cannot be permitted to pursue inconsistent courses of conduct. By withdrawing the money, he has of his free choice, 366 adopted the decree and must, therefore, be precluded from challenging its validity. He had no right to the money excepting such as the decree gave him. Having exercised that right he cannot be heard to say that the decree was invalid and, therefore, the right which he had exercised, had never existed. The rule is well established in England as well as in our country, that a litigant is not permitted such inconsistent courses of conduct and, so far as I am aware, never been departed from. As early as 1849 in Tinkler vs Hilder (1), Pollock, C. B., in dealing with a rule to set aside an order said, "It might be discharged simply on this narrow ground, that, under the circumstances of this case, the party applying to set aside the order in question in point of fact has adopted it by taking something under it". In King vs Simmonds (2) and Pearce vs Chaplin (3) the same line of reasoning was adopted. It is true that in these cases the orders were said to have been adopted because costs, for the payment of which they had provided, had been received. It is also true that the orders were not such to which the parties directed to pay the costs, were entitled as a matter of right. But all these do not seem to me to make any difference. The question is, are the circumstances such that it would be inconsistent conduct to accept a benefit under an order and then to challenge it? I should suppose that for this purpose costs are as much benefit as anything else given by the order. Likewise when the orders were discretionary or such to which there was no right ex debito justitiae, there would be no reason to say that there could be no inconsistency if they were challenged after benefits under them had been accepted. For deciding such inconsistency, I am unable to discover that the discretionary nature of the order has any materiality. Coming to more recent times, we get the case of Dexters Ld. vs Hill Crest Oil Co. Ld. There a person, who had taken money under an award made in a commercial arbitration in accordance with which a (1) ; (3) (1846) 9 Q B 802. (2) ; (4) [1926] 1 K.B 348. 367 judgment had been entered in a special case stated to court, was held precluded from appealing from that judgment. This, it will be noticed, was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award. Scrutton, L. J., observed, (p. 358) "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right". I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans vs Bartlam (1), "a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit". Of the cases on the point in our country I may refer to Manilal Guzrati vs Harendra Lal (2), Banku Chandra Bose vs Marium Begum (3), Humrybux Deora vs Johurmull Bhotoria (4) and Venkatarayudu vs Chinna (5). Hurrybux Deora 's case (4) was an appeal from a decree in a suit for the redemption of a mortgage. The plaintiff had accepted the amount found by the decree passed by the trial Court to be due to him from the mortgagee in possession and receipt of the income of the mortgaged property, and had thereafter filed the appeal asking that he was entitled to more. Rankin, C. J., who delivered the judgment of the Court, held that there was no inconsistency in the conduct of the appellant and the rule 1 had so long been discussing had, therefore, no application. This was plainly right. The appellant had accepted the decree passed and in the appeal did not challenge its correctness so far as it went but only contended that it had not gone far enough. As has been said, he was not blowing hot and cold but only blowing hotter: see per Greer, L.J., in Mills vs Duckworth (6). Referring to King vs Simmonds (7), Pearce vs Chaplin (8) and Tinkler vs Hilder (9) which I have earlier (1) , 483.(2) (3) (5) 32 1. (7) ; (1846) 9 Q.B. 802. (9) (1849) 4 Exc 1187: ; 368 cited, Rankin, C.J., said (p. 714) that they "are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite, Party at whose instance the order was made". He was of the view that this basis did not exist in the case which he had before him. Rankin, C.J., also referred to another old English case, namely, Kennard vs Harris (1). , There, a rule to set aside an award of an arbitrator was discharged when it was shown that the party who had obtained the rule had accepted the costs of the reference and the award. Rankin, C.J., said with reference to this case that (p. 713), "A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award". He however also observed that An award is bad unless it deals with the whole matter submitted and prima facie cannot be set aside in part only". It may be that Rankin, C.J., was making a distinction, which is obviously correct, between an award which can be set aside only as a whole because it is one and indivisible and a judgment which might be in severable parts in which case, the adoption of a part by a party would not preclude him from challenging another part which was independent. Rankin, C.J., did not think, and if I may say so with respect, correctly, that the principle of Kennard vs Harris (1) had any application to the facts of the case before him, for, there no part of the judgment was sought to be challenged by the appeal, excepting perhaps an independent part which by implication rejected the appellant 's claim to a larger sum. In Venkatarayudu 's case (2), Venkatasubba Rao, J., after discussing various cases, to some of which I have referred, observed, (p. 141) "What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, (1) ; (1824) 2 B. & C. 80; (2) 369 a person cannot adopt one part and repudiate another". It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal. Here we have a decree which is one and indivisible. The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money. The appellant has no right to the money whatsoever independent of the decree; he had no right to compel the respondent to purchase the property from him on payment of a price. Indeed the appellant had been contending that the respondent was not entitled to purchase the property from him by paying the price. The appellant could have drawn out the money only on the basis that the decree had been properly passed. Therefore, by withdrawing the money he adopted its correctness and cannot now say it is incorrect. It seems to me that the observation of Venkatasubba Rao, J., in Venkatarayudu 's case (1) (P. 141) that " to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith", would apply fully to the conduct of the appellant. So would the observations of Rankin, C. J., in Hurrybux Deora 's case (2) on King vs Simmonds (3), Pearce vs Chaplin (4) and Tinkler vs Hilder (5). The present is a case where the appellant was seeking to challenge an order after accepting the benefit of a term or condition, that is to say, as to the payment of money into court, imposed upon the respondent at whose instance the order was made; that the obligation to pay money was a term or condition 'imposed upon the respondent is manifest because the decree provided that if the money was not paid, the suit would stand dismissed with costs. Again the judgment in the present case is like an award for it is one whole and cannot be set aside in parts. Therefore what (1) (3) ; (2) (4) (1846) 9 Q.B. 802. (5) ; 47 370 Rankin, C. J., said in regard to Kennard vs Harris which turned on an award, namely, that a person who accepts costs or a sum of money given to him by an award cannot ask to have it set aside, would also be applicable. I find it impossible to conceive that this judgment consists of several parts or that such parts are severable. The learned counsel for the appellant was able to refer us to only one case in support of his contention that the appeal could be proceeded with and that was Sunder Das vs Dhanpat Rai (2). That was also a case of pre emption. There, however, the plaintiff who had obtained the decree for pre emption in his favour, had executed that decree and obtained possession of the property concerned. The defendant appealed from the decree but was unsuccessful. in the first appellate court. He then appealed to the Chief Court at Lahore and when the appeal was pending there, withdrew the purchase money paid into court by the plaintiff under the decree of the trial Court. The Chief Court held that this (lid not preclude the defendant from proceeding with the appeal before it. The facts of that case were substantially different from those before us. It may be said that the defendant having been compelled to part with the property, was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree. That cannot be said in the present case. Whether on the facts, Sunder Das 's case (2) was rightly decided or not, is not a matter on which I feel called upon to express any opinion. If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal, I am unable to agree with it. It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment, in that case. I do not think that Sunder Das 's case (2) is of sufficient authority to warrant a departure from the principle uniformly followed by the courts. (1) ; (2) 1907 P.R. No 16. 371 It is necessary, however, before I conclude, to refer to the comparatively recent case of Lissenden vs C. A. V. Bosch Ltd. (1). That was a case in which a workman who had been awarded compensation for partial incapacity up to a certain date accepted the compensation so awarded and thereafter preferred an appeal claiming that compensation should have been awarded to him beyond that date and so long as he should be incapacitated. The Court of Appeal feeling itself bound by its earlier decision in Johnson vs Newton Fire Extinguisher Company (2) had held, somewhat reluctantly, that the workman having accepted money under the award could not challenge its validity by an appeal. In Johnson 's case (2), it appears to have been held that a workman could not. accept part of an award and claim to amend another part for that would be an attempt to "approbate and reprobate" the award and this could not be allowed. The House of Lords in Lissenden 's case (1) held that Johnson 's case (2) had been wrongly decided and that the workman before it was entitled to proceed with the appeal. The reason for, this view was that acceptance by the workman of what had been found to be due to him does not operate to prevent him from appealing for some further relief. The case therefore was the same as that before Rankin, C. J., in Hurrybux Deora vs Johurmull Bhotoria (3). The substance of the decision of the House of Lords was that there was no inconsistency between the appeal and the adoption of the award. That however cannot be said in the case before us now. The House of Lords also pointed out that the Court of Appeal had misunderstood the doctrine against " approbating and reprobating". It was said that that was a doctrine of Scottish law which in England had been held by High authorities to be equivalent to the equitable principle of election. It was observed that that equitable principle depended for its application on the intention of the executant of an instrument and was, therefore, not applicable to a case like the (1) [1940) A.C. 412. (2) (3) 372 one the House of Lords had before it. It was also pointed out that the common law principle of election had no application either for, it depended on the h existence of two rights or remedies, one alone of which could be chosen and in the case of an appeal there were no two rights or remedies. I do not think the observations of the House of Lords on the doctrine against "approbating and reprobating" affect the question before us. All the learned Judges who delivered opinions in the case, including Lord Atkin, who expressed himself with some reservation, accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for, by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal: see p. 420,429, 430 and 434. Lissenden 's case (1) does not, therefore, in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal. It seems to me that the courts in England have taken the same view of Lissenden 's case (1). In Baxter vs Eckersley (2) the Court of Appeal expressly approved of the principle laid down in Dexter 's case(3). In Banque Des Marchands De Moscou vs Kindersley (4) Evershed, M. R., referring to the phrases "approbating and reprobating" and "blowing hot and blowing cold" said at p. 119, "These phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, second, that he will not be regarded, at least in a case such as the present, as having so elected unless lie has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his pre sent action is inconsistent". These two cases, it will be observed, were decided after Lissenden 's case (1). All these authorities leave no doubt in my mind that the rule preventing inconsistent conduct is firmly (1) (3) (2) (4) 373 established. I think, for the reasons earlier mentioned, that the rule is properly applicable in the present case and the appellant cannot be allowed to proceed with the appeal. I wish however to make it clear that the applicability of the rule will depend on the facts of each case; it will depend on whether there has been actual inconsistency. I have found that there has been adoption in the present case and the prosecution of the appeal will result in the conduct of the appellant becoming inconsistent. That is, all that I decide. Before leaving the case, I think I ought to observe that the fact that the appellant had withdrawn the money after he had obtained leave from this Court makes no difference to the applicability of the principle. It was by such withdrawal that he adopted the decree and thereafter he is precluded from proceeding with the appeal. There is as much inconsistency in the present case as there would have been, if the appellant had withdrawn the money before he had obtained the leave. For these reasons I would dismiss the appeal with costs. By COURT: In accordance with the majority judgment, the preliminary objection is overruled. The appeal will now be set down for hearing on merits. Preliminary objection overruled. Appeal set down for hearing. [/INST]The appellant entered into a contract with the respondent for the sale of certain canvas at Re. 1 per yard under which the delivery was to be made through railway receipt for Calcutta for Kanpur. The cost of transport from Kanpur to Calcutta and the labour charges in that connection were to be borne by the respondent and it was agreed that the railway receipt would be delivered on August 5, 1947. The appellant was unable to deliver the railway receipt on the due date because booking from Kanpur to Calcutta was closed, and, therefore, cancelled the contract. The respondent instituted a suit for the recovery of damages for the breach of the contract and claimed that as the seller knew that the goods were to be sent to Calcutta and must therefore be presumed to know that the goods would be sold in Calcutta, any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Held: (1) that it is well settled that the two principles relating to compensation for loss or damage caused by breach of contract as laid down in section 73 Of the , read with the Explanation thereof, are (i) that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed, but (ii) that there is a duty on him of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps. British Westinghouse Electric and Manufacturing Company, Limited vs Underground Electric Railway Company of London, , relied on. (2) that the contract in the present case was for delivery for. Kanpur in which it was open to the buyer to sell the goods where it liked, and no inference could be drawn from the mere fact that goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. The contract was therefore not of the special type to which the words "which the parties knew, when they made the contract, 654 to be likely to result from the breach of it" appearing in section 73 of the , would apply, but an ordinary contract, for which the measure of damages would be such as "naturally arose in the usual course of things from such breach" within the meaning of that section. The damages would be the difference between the market price in Kanpur on the date of breach and the contract price. But as the respondent bad failed to prove the rate for similar canvas in Kanpur on the date of breach, it was not entitled to any damages as there was no measure for arriving at the quantum. Chao and others vs British Traders and Shippers Ltd., , relied on. Re. R and H. Hall Ltd. and W.P. Pim (junior) & Co. 's Arbi tration, and Victoria Laundry (Winsdsor) Ltd.v. Newman Industries Ltd., , distinguished. </s>
<s>[INST] Summarize the judgementivil Appeal No. 2413 of 1989. From the Judgment and Order dated 3.10.1988/12.10.1988 of the Central Administrative Tribunal, Hyderabad in O.A. No. 307 of 1987. Anil Dev Singh, B. Parthasarthy, Hemant Sharma and C.V. Subba Rao for the Appellants. Mrs. Kitty Kumaramangalam, Ms. Vijayalaxmi, Kailash Vasdev, P. Parmeshwaran and A.T.M. Sampath for the Respond ent. The Judgment of the Court was delivered by AHMADI, J. The Central Administrative Tribunal, Hydera bad by its order dated 3rd October, 1988 held that the Divisional Railway Manager (BG) SC Railway, Secunderabad was not competent to pass the impugned order dated 25th April, 1986 retiring the railway servant Shaik Ali from service under Rule 2046(h)(ii) of Indian Railway Establishment Code, Volume II Pension Rules (hereinafter called 'the Code '). The Union of India feeling aggrieved by the said order has come in appeal to this Court by special leave. The respondent Shaik Ali joined the erstwhile Nizam State Railway Service as Pointsman in 1953 or thereabouts and secured promotions from time to time in the course of his service, the last promotion being as Yard Master in the revised scale of Rs.550 750 on 31st January, 1986. The facts show that he was on duty between 14.00 and 22.00 hours on 23rd February, 1986 at Sanatnagar Station. As his reliever did not turn up at 23.00 hours, he was compelled to perform 459 duty from 22.00 hours to 08.00 hours of 24th February, 1986. At about 23.15 hours, he permitted the staff working under him to have their meals and report for duty as soon as possible. As the staff members did not return to duty within a reasonable time he went towards the cabin where they usually took their meals. At that time the Divisional Safety Officer, A. Bharat Bhushan, came down from the cabin and inquired of the respondent 's identity. The respondent coun tered by inquiring about the identity of the said officer. It is the respondent 's say that as he did not know the said officer he asked for his identity before disclosing his identity. The officer was annoyed at the behaviour of the respondent and threatened him with dire consequences. It is the respondent 's case that immediately thereafter he was placed under suspension. When he went to meet the officer at the suggestion of the Station Superintendent, the said officer behaved rudely and refused to listen to his explana tion. By a subsequent order dated 19th March, 1986, the respondent was kept under further suspension w.e.f. 4th March, 1986. He was not charge sheeted nor was any inquiry held against him but he was visited with the order of prema ture retirement dated 25th April, 1986, the relevant part whereof reads as under: "Whereas the Divisional Railway Manager (BG), Secunderabad is of the opinion that it is in the public interest to do so. Now therefore, in exercise of the powers conferred by Clause (h)(ii) of Rule 2046 of Indian Railway Establishment Code, Volume II Pension Rules, the Divisional Railway Manager (BG), Secunderabad hereby retires Shri Shaik Ali, Assistant Ward Master, Sanatnagar with immediate effect that he having already completed 30 years of qualify ing service. It was further directed that the respondent should be paid a sum equivalent to the amount of his pay plus allowances for a period of three months in lieu of three months notice calculated at the rate at which he was drawing salary imme diately before his retirement. The respondent challenged this order of premature retirement by preferring an applica tion under Section 19 of the . The Central Administrative Tribunal after reading the relevant Rule 2046(h)(ii) with Para 620(ii) of the Railway Pension Manual came to the conclusion that the Divisional Railway Manager who passed the impugned order of premature retirement was not competent to make such an order. In taking this view the Tribunal relied on an earlier 460 decision of the Full Bench in AISLJ wherein it held that the highest authority among_ the appointing authorities alone was competent to impose any of the punish ments specified in Article 311 of the Constitution. In this view that the Tribunal took, the Tribunal set aside the impugned order of premature retirement dated 25th April, 1986. It is against the said order that the Union of India has preferred this appeal. Under Rule 2046(a) of the Code ordinarily every railway servant would retire on the day he attains the age of 58 years. However, notwithstanding the said provision, Rule 2046(h) entitles the appointing authority to retire him before he reaches the age of superannuation. Rule 2046(h), insofar as it is relevant for our purposes, reads as under: "2046(h). Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months in writ ing or three months ' pay and allowances in lieu of such notice (i) if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years. (ii) in any other case after he has attained the age of fiftyfive years. " Since the respondent was indisputably in Class III service at the time the impugned order came to be made his case was governed by the second clause of Rule 2046(h). The impugned order recites that the respondent had already completed thirty years of qualifying service but it does not state that he had attained the age of fifty five years. The re spondent 's contention was that he could not be prematurely retired under clause (ii) of Rule 2046(h) since he had not attained the age of fifty five years on the date of the impugned order. According to him he was running 54th year on that date. That obviously took his case out of the purview of the said rule. Realising this difficulty an attempt was made by the department to fall back on paragraph 620(ii) of the Railway Pension Manual which reads as under: 461 "620(ii). The authority competent to remove the railway servant from service may also require him to retire any time after he has completed thirty years ' qualifying service provided that the authority shall give in this behalf, a notice in writing to the railway servant, at least three months before the date on which he is required to retire or three month 's pay and allowances in lieu of such notice. " Reliance was also placed on the decision of this Court in Union of India vs R. Narasimhan, ; in support of the contention that a railway servant governed by the Railway Pension Manual may be prematurely retired by 'the authority competent to remove him from service ' on his completing thirty years of qualifying service. Under this rule, power is conferred on the authority competent to remove him from service to retire a railway servant who has completed thirty years of quarrying service regardless of his age. The Tribunal took the view that although Rule 2046(h)(ii) would not be attracted in the absence of evi dence that the incumbent had attained the age of fifty five years, the department would be entitled to rely on para 620(ii) to support the order if it can show that the officer who passed the order was competent to do s0 under the said paragraph. The Tribunal was however, of the opinion that since the power under paragraph 620(ii) could be exercised only by the authority competent to remove the railway serv ant from service, the Divisional Railway Manager not being such authority was not competent to pass the impugned order and hence the order was clearly void and inoperative in law. In taking this view, the Tribunal relied on an earlier Full Bench decision referred to above. We were told that as the said Full Bench decision of the Tribunal was under scrutiny by this Court, this Civil Appeal should be tagged on with similar matters pending in this Court. However, the learned counsel for the respondent employee submitted that it was not necessary to tag on this matter with other matters arising out of the Tribunal 's Full Bench decision since in the instant case she proposed to support the Tribunal 's order on the twin grounds (i) that paragraph 620(ii) was ultra vires Article 14 of the Constitution and (ii) that the impugned order was punitive in nature and could not have been passed without a proper enquiry. Insofar as the first contention is concerned she placed reliance on this Court 's decision in Senior Superintendent of Post Office & Ors. vs Izhar Hussain; , wherein a similar Rule 2(2) of the Liberalised Pension Rules, 1950 was struck down as offending Article 14 of the Constitution. So far as the second limb of her submission is concerned she stated that the respondent had been promoted to the post of Yard Master on 31st 462 January, 1986 and hence there was no occasion to prematurely terminate his service by the impugned order. In Izhar Hus sain 's case the Court was concerned with F.R. 56(j) and Rule 2(2) of the Pension Rules. F.R. 56(j) is substantially the same as Rule 2046(h)(ii) of the Code and Rule 2(2) is sub stantially the same as paragraph 620 with which we are concerned. Since Rule 2(2) has been struck down as violative of Article 14 of the Constitution, paragraph 620(ii) would meet the same fate. The learned counsel for the Railway Administration, realising this difficulty tried to support the impugned order on the ground that it was in public interest to retire the respondent. Counsel for the respond ent contended that the railway administration has been shifting its stand, it first passed the impugned order under Rule 2046(h)(ii) of the Code and then relied on Rule 2(2) of the Pension Rules and when that was found to be of no as sistance switched over to paragraph 620(ii) of the Railway Pension Manual and is now trying to support the order on an extraneous ground which does not find a mention in the impugned order. We think the criticism is well founded. We are, therefore, of the view that apart from the competence of the Divisional Railway Manager to pass the order, the impugned order cannot be supported under paragraph 620(ii) for the aforesaid reason. We next find that the learned counsel for the responden temployee is on terra firma so far as the second limb of her contention is concerned. The facts clearly reveal that after the respondent joined the Nizam. State Railway service in 1953 he secured promotions in due course and was appointed an Assistant Yard Master by an order dated 22nd August, 1984. Thereafter, he was promoted to the next higher post of Yard Master by the order of 31st January, 1986. While he was discharging duties as Yard Master On 24th February, 1986, the incident in question occurred which is said to be form ing the basis for the impunged order of 25th April, 1986. We find from the facts that the Divisional Safety Officer was annoyed by the fact that the respondent had demanded that he disclose his identity before he (the respondent) did so. The respondent was immediately placed under suspension and the said officer refused to listen to his explanation. The suspension order was further extended by the order of 19th March, 1966. This was followed by the impugned order of retirement dated 25th April, 1986. The order was passed under Rule 2046(h)(ii) of the Code without verifying whether or not the incumbent had attained the age of fiftyfive years. Even if the order was intended to be under Rule 2(2) of the Pension Rules, this requirement had to be satisfied. The immediate and proximate reason for passing the impugned order was undoubtedly the unfortunate incident of 23/24th February, 1986. But for that 463 incident there was no occasion for the Review Committee to examine the case of the respondent. If the service record of the respondent was so bad as is now sought to be made out, he would not have been promoted to the post of Assistant Yard Master on 22nd August, 1984 and later to the post of Yard Master on 31st January, 1986. We are, therefore, satis fied that the impugned order of premature retirement is punitive in nature and having been passed in flagrant viola tion of the principles of natural justice cannot be allowed to stand. For the above reasons (different from the one on which the Tribunal rounded its decision), we are of the opinion that the ultimate order passed by the Tribunal does not require interference. We, therefore, dismiss this appeal with costs. Cost quantified at Rs.3,000. Before we part we may observe that the concerned author ities will do well to amend Rule 2(2) of the Pension Rules and Paragraph 620(ii) referred to above so as to incorporate therein the requirement of public interest, that is to say, the premature retirement on completion of qualifying service of thirty years can be ordered in public interest only. G.N. Appeal dismissed. [/INST]The petitioner was directed to be detained under section 3(2) of the Gujarat Prevention of Anti social Activities Act, 1985. In the grounds of detention it was alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and selling it by himself and through his men and that he and his men beat innocent citizens thereby creating an atmosphere of fear and terror and he had thus become obstructionist in the maintenance of public order. Reference was made to a previous order of detention which had been set aside by the High Court, and to the fact that notwithstand ing the previous detention, the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order. It was further stated in the grounds that the detaining authority had considered taking action against the petitioner section 93 of the Prohibition Act for good conduct, and under sections 56B and 57(c) of the Bombay Police Act for his externment, but all these steps were either found not feasible or adequate. It was then stated that there was a possibility of the petitioner, who was in jail, being released on bail and continuing his criminal activities, and to prevent the same there was no other alternative except to pass the order of detention. Allowing the writ petition and quashing the order of detention this Court, HELD: (1) The satisfaction of the detaining authority is not open to judicial review but a citizen is entitled to protection within the meaning of Article 22(5) of the Con stitution of the procedural guarantees envisaged by law, and the Court frowns upon any deviation or infraction of the procedural requirements. [184A B] (2) The fact that the detenu was in jail at the time the order of 178 detention was made and the possibility of his release from jail being made a ground of detention is not approved of by this Court. [184C] Ramesh Yadav vs District Magistrate, Etah, ; Binod Singh vs District Magistrate, Dhanbad, Bihar & Ors., ; and Smt. Shashi Aggarwal vs State of U.P., ; , referred to. (3) The detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant material constituting fresh facts to necessitate making of an order of detention. [184F] Abdul Razak Abdul Wahib Sheikh vs Shri S.N. Sinha, Commissioner of Police, Ahmedabad & Anr.,, J.T. and Ramesh vs State of Gujarat, J.T. , referred to. (4) There is a wide gap between law and order and public order. The criminal offence may relate to the field of law and order but such an offence would not necessarily give rise to a situation of public order. Depending upon peculiar situations, an act which may otherwise have been overlooked as innocuous might constitute a problem of public order. Selling of liquor by the petitioner would certainly amount to an offence under the Prohibition Act but without some thing more would not give rise to a problem of public order. Similarly commission of any other criminal offence even assault or threat Of assault would not bring the matter within the ambit of public order. [185B C] (5) Disclosure of adequate facts to enable a full and adequate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 22(5) of the Constitution. In the present case the grounds of detention show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representation. [185D E] A.K. Roy 's case, , referred to. (6) The grounds of detention show how helpless the authorities feel in the matter of enforcing prohibition within the State. [186B] (7) It is perhaps necessary to indicate that the provi sions of the Prohibition Act of 1949 or the Bombay Police Act should be suitably amended to meet the requirements of society. Even if the provisions under those Acts are made stringent the person proceeded against has the benefit of a trial or a regular hearing and pursuing an appeal 179 against adverse orders, but in a case of preventive deten tion trial is avoided and liberty is taken away without providing a right to defend himself. [185H; 186A] </s>
<s>[INST] Summarize the judgementivil Appeal No. 2057 of 1987. From the Judgment and Order dated 13.7.1987 of the Delhi High Court in Civil Writ No. 1604 of 1981. G.D. Gupta and Ashok K. Mahajan for the Appellant. G.S. Shah, Hemant Sharma and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. In 1980 the appellant was working as an Accountant in the Photo Division of the Ministry of Information and Broad casting, New Delhi. By that time the appellant had rendered more than 20 years ' service. By the letter dated 24th of December, 1980 the appellant sought voluntary retirement from the service after having completed more than 20 years ' service. The said letter dated 24th of December, 1980 which was addressed to the Director, Photo Division, Ministry of Information and Broadcasting stated, inter alia, as follows: "I beg to seek voluntary retirement on 31.3. I had joined government service on 4th August, 1958, thus I have completed more than 20 years service. My notice period may please be treated w.e.f. 1.1. The appellant states that three months notice was re quired by the rules of service to which the appellant be longed. The said voluntary retirement was sought under Rule 48 A of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'the Pension Rules '). The Rule 48 A provides as follows: "48 A. Retirement on completion of 20 years ' qualifying service: 1177 (1) At any time after a Government servant has completed twenty years ' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. (2) The notice of voluntary retire ment given under sub rule (1) shall require acceptance by the appointing authority. Provided that where the appointing authority does not refuse to grant the permis sion for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. " Sub rule (4) of Rule 48 A prevents with drawal of resignation letter except with the approval of the authority. The said sub rule (4 ) provides as follows: "(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority. " Acting on the basis of the letter of retirement, by an order dated 20th of January, 198 1 the appellant was allowed to retire voluntarily from service prospectively with effect from the afternoon of 31st March, 198 1. The said order dated 20th January, 198 1 read as follows: "Shri Bal Ram Gupta, permanent Upper Division Clerk and officiating Accountant in the Photo Division is allowed to retire volun tarily with effect from the afternoon of 31st March, 1981, in accordance with the provisions contained in the Ministry of Home Affairs, Department of Personnel and Administrative Reforms O .M. No. 250 13 7 77 Estt. (A) dated 26th August, 1977. " In the meantime, however, the appellant states that on account of persistent and personal requests from the staff members, the appellant had changed his mind and consequently had by his letter dated 31st January, 1981 withdrawn his notice of voluntary retirement. He stated in his letter that he had dropped the idea of seeking voluntary 1178 retirement and he, therefore, requested the authorities that his request for resignation might be treated as cancelled and the notice given by him treated as withdrawn. The appel lant, however, was not allowed to do so. The appellant was relieved by an order dated 31st March, 1981. It was stated in the said order that his request contained in the letter dated 31st January, 1981 for withdrawal of his application for voluntary retirement "has also been considered and found not acceptable". The appellant contended before the authorities and the High Court that in view of his letter dated 31st January, 1981 seeking withdrawal of his letter of resignation, the impugned order dated 31st March, 198 1 retiring the appel lant was illegal and invalid. The appellant, however, was asked to leave the office immediately. The appellant was thereafter sent the gratuity form for claiming his retiring benefits. The appellant met respondent No. 2 and requested him that his case may be considered on merits and the de partment should not "hush up" the matters like this but the same was to no avail. The respondent No. 2, the Director, Photo Division, Ministry of Information and Broadcasting clearly informed the appellant that in view of the activi ties of the appellant in his capacity as the Secretary of the Photo Division Employees Association (Registered), it had been found appropriate to "ease him out" from the serv ice. In spite of the several representations nothing hap pened, the appellant moved the High Court by a writ peti tion. The Delhi High Court dismissed the appellant 's writ petition on the ground that the rule enabled the government servant to withdraw his application for voluntary retirement only with the approval of the Government. The approval had not been given by the Government. According to the High Court the rule had been complied with. The Government had considered afresh the application of the appellant and Government found no reasons to interfere with the refusal to permit the appellant to withdraw his resignation. The appel lant thereafter has come up in appeal to this Court. The facts, therefore, are that the appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the appellant his resignation would have been effective, if accepted, only from 31st March, 1981. Before the resignation could have become effective the appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the appellant, the date the resignation could have been effective. In the meantime, however, prior thereto on the 20th of January, 1981 the respondent has purported to accept the resignation with effect from 31st March, 1981. The appropriate rule sub rule (4) of 1179 Rule 48 A of the Pension Rules as set out hereinbefore enjoins that a government servant shall be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement. That had been done. The approval of the authori ty was, however, not given. Therefore, the normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority. Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Funda mental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well .accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter affidavit filed in this proceeding by Shri Majgaonkar, who is the respondent No. 2 in this appeal reveals very little as to why the sanction was withheld. It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal. What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal. In this respect the government affidavit certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. There may be hundred and one situations where a situation or opportu nity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee. It was further stated that there were guidelines which were laid down by the O.M. No. 24(57) E V 32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement. What part of the guidelines was violated by the appellant was not indicated or spelled out in the said affidavit. We would advert to certain guidelines and examine if these were violated later. It is only stated that the application for withdrawal was considered in the light of the said guide lines and the request was turned down appropriately. It was further stated that the notice of termination of service or of retirement is a unilateral act whereby the officer commu nicates his intention to dissolve the 1180 contract of service and unlike resignation it operates without the consent of the other party. It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and auto matically brought about the dissolution of contract after the expiry of the notice period. We are unable to accept this submission and this position. The dissolution would be brought about only on the date indicated i.e., 31st of March, 1981, upto that the appellant was and is a Govern ment employee. There is no unilateral termination of the same prior thereto. He is at liberty, and entitled independ ently without sub rule (4) of Rule 48 A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement. In this respect it stands at par with letter of resignation. This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India vs Shri Gopal Chandra Misra and others; , There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from 1st of August, 1977. On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977. On 1st of August, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitu tion was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there after, was an usurpation of public office. The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter. On appeal this Court held that the resigning office necessarily in volved relinquishment of the office which implied cessation or termination of, or cutting as under from the office. A complete and effective act of resigning office is one which severs the link of the resigner with his office and termi nates its tenure. In the context of Article 217(1) this assumes the character of a decisive test, because the ex pression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years. It was further reiterated that in the absence of a legal, contrac tual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future speci fied date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment. This general 1181 rule equally applies to Government servants and constitu tional functionaries, this Court reiterated. The other peculiar essence of Article 2 17 which was discussed need not detain us in the facts of this case. On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effec tive if sub rule (4) of Rule 48 A was not there. In Air India etc. vs Nergesh Meerza & Ors. ; , , there the Court struck down certain provisions of Air India Employees Service Regula tions. We are not concerned with the actual controversy. But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government 's approach to its employees. On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace. Our attention was also drawn to the observations of this Court in Raj Kumar vs Union of India, There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in inti mating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted. But in the facts of the instant case the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Therefore, the appel lant, in our opinion, had locus. As mentioned hereinbefore the main question was whether the sub rule (4) of Rule 48 A was valid and if so whether the power exercised under the sub rule (4) of Rule 48 A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether subrule (4) of Rule 48 A was valid or not. It may be a salutary requirement that a Government servant cannot with draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether sub rule (4) of Rule 48 A of the Pension Rules is valid or not. If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasona bly and rationally. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is 1182 not an unreasonable reason. The guidelines indicated are as follows: "(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subse quently (but during the currency of the no tice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such right. There would, howev er, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in con sideration of which the notice was originally given. Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant con cerned is agreeable. " In this case the guidelines are that ordinarily permis sion should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people 's choice or freedom. If, however, the administration had made arrange ments acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant 's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or manage ment was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant. We hold, therefore, that there was no valid reason for withhold 1183 ing the permission,by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and in duced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one 's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appel lant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful atti tude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer the gov ernment must conduct itself with high probity and candour with its employees. In the aforesaid view of the matter, we are unable to sustain the judgment and order of the High Court of Delhi dated 13th of July, 198 1 and the same are, therefore, set aside. The appeal is accordingly allowed with costs and the appellant is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981. P.S.S. Appeal allowed. [/INST]The workmen demanded bonus for the year 1950 5, on the allegation that the employers had made profits during the relevant year. The employers resisted the demand on the ground that 879 there was a trading loss in the year and as such no bonus was payable. To determine the available surplus out of which bonus was to be paid, the employers deducted out of their gross profits an amount for depreciation admissible under the Income tax Act. The industrial tribunal disallowed a portion of the depreciation and found that there were profits in the relevant year and awarded three months bonus to the workmen. The employers preferred appeals to the Labour Appellate Tribunal but they were dismissed. The employers then applied to the Appellate Tribunal for a review and the Tribunal dismissed the application holding that it had no power to review its own decision and that even if it had the power it would not grant the review as no case for review had been made out. Held, that the whole of the depreciation admissible under the Income tax Act is not allowable in determining the available surplus. The initial depreciation and the additional depreciation are abnormal additions to the income tax depreciation and it would not be fair to the workmen if these depreciations are rated as prior charges before the available surplus is ascertained. Considerations on which the grant of additional depreciation may be justified under the Income tax Act are different from considerations of social justice and fair apportionment on which the original Full Bench formila in regard to the payment of bonus to the workmen is based. That is why only normal depreciation including multiple shift depreciation should rank as prior charges. U.P. Electric Supply Co. Ltd. vs Their Workmen, , approved. The Labour Appellate Tribunal had the power to review its own orders. M/s. Martin Burn Ltd. vs R. N. Banerjee, [1958] S.C.R .5I4, followed. The method adopted by the industrial tribunals in deter mining the trading profits of the employer is an industrial dispute, does not conform to the requirements and provisions of the Income tax Act, and it would, therefore, be fallacious to assume that gross profits determined by the industrial tribunal can be taken to be gross profits that would necessarily be taxable under the Income tax Act. In determining the available surplus for payment of bonus provision for a higher amount of incometax cannot be made merely because the claim to initial and additional depreciation has been disallowed which increase the amount of gross profits. </s>
<s>[INST] Summarize the judgementivil Appeal Nos. 3986 3987 of 1989. From the Judgment and Order dated 23.3.1989 and 6.4.1989 of the Calcutta High Court in Appeal No. 69 1 of 1988 and Admiralty Suit No. 6 of 1985 respectively. Dr. Shanker Ghosh, C.R. Addy, A.K. Sil, G. Joshi and Mrs. Urmila Narang for the Appellants. M.K. Ramamurthi, H.L. Tiku and Ashok Grover for tne Respondents. 190 The Judgment of the Court was delivered by VERMA, J. Is omission of the witness ' signature on his deposition recorded on commission, as required by Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, ap plicable to the Original Side, a defect fatal to the recep tion of the deposition in evidence even when the correctness and authenticity of the deposition is undisputed? Subject to the preliminary objection raised by Shri M.K. Ramamurthi, learned counsel for the respondents, this is the main point for decision on merits to be answered with reference to Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side. The Calcutta High Court has held this defect to be fatal and accordingly excluded the entire oral evidence of the defendants recorded on commis sion resulting in the suit being decreed in plaintiffs ' favour on the unrebutted testimony of the plaintiffs. Cor rectness of this view is assailed before us. A foreign vessel M.V. "Vali Pero" sailing under the Greek flag arrived at the port of Calcutta on April 20, 1985; 10 nOn Greek seamen on board that ship filed a suit on August 2, 1985 in the admiralty jurisdiction of the Calcutta High Court for recovery of approximately Rs. 15.40 lacs claimed as their dues from the owners of the vessel; deposi tions of the defendants ' witnesses were recorded on commis sion and submitted to the learned single Judge trying the suit who closed the case on 24.12.1987 for pronouncing judgment on 12.1.1988; before delivery of judgment on 10.8.1988 objection was raised on behalf of the plaintiffs to reception in evidence of the depositions of the defend ants ' witnesses examined on commission on the ground of absence of witness ' signature on the deposition; the objec tion was upheld by the learned single Judge as also by a Division Bench in a Letters Patent Appeal; and the suit has been decreed on 6.4.1989 on the unrebutted evidence of plaintiffs. In the meantime, one of the plaintiffs is stated to have died while another is alleged to be critically ill; and on the 'other hand, the vessel continues to be detained at the Calcutta Port even after the owners have furnished the security demanded from them by interim orders in the suit. Even at the risk of this description being labelled as oversimplification, this is the scenario of the forensic battle in which the point raised has to be decided. We may add that this is not the first journey to this Court of this litigation by special leave during the trial of the suit. 191 Both the Special Leave Petitions are by the defendants, owners of the vessel. One Special Leave Petition is against the judgment dated 23.3.1989 of the Division Bench of the High Court affirming the order dated 10.8.1988 of the learned single Judge excluding the defendants ' oral evidence recorded on commission for the above defect. The other Special Leave Petition is directed against the judgment and decree dated 6.4.1989 of the learned single Judge decreeing the plaintiffs ' suit after exclusion of defendants ' entire oral evidence. Petitioners urged that filing of an appeal under the Letters Patent against the judgment and decree in the suit was futile in view of the earlier Division Bench judgment dated 23.3. 1989 on the main point in controversy even in respect of the final decision. The preliminary objection of Shri Ramamurthi is that the first Special Leave Petition, apart from arising out of an interlocutory order which does not justify its entertain ment, is also now infructuous after decision of the suit itself in which that interlocutory order was made. The other Special Leave Petition should not be entertained, according to Shri Ramamurthi, because it circumvents the statutory internal appeal under the Letters Patent to the Division Bench of the High Court. Shri Ramamurthi contended that this Court should not, therefore, entertain either of these petitions for grant of special leave under Article 136 of the Constitution, even though the powers are fairly wide on account of which he does not contend that they are not maintainable. We shall first dispose of the preliminary objection of Shri Ramamurthi. He has very fairly stated that he does not challenge the maintainability of these petitions but only assails their entertainability under Article 136. In our considered opinion pragmatism and assurance of shortening this unduly protracted litigation are by themselves suffi cient and eloquent reasons to grant leave in these matters and to decide the above question on merits forthwith instead of deferring that decision to a later date. Technically, Shri Ramamurthi is right that ordinarily special leave need not be granted where remedy of a statutory appeal being available has not been exhausted. However, m the particular facts of this case when the decision in Letters Patent Appeal appears to be a forgone conclusion, the appropriate course which commends to us is to grant leave and decide the matter straightaway instead of deferring that decision to a later stage after exhaustion of the futile remedy of Letters Patent Appeal in the High Court. We may at this stage also mention the argument based on res 192 judicata addressed to us. The point raised is: whether the decision by a Division Bench of the High Court affirming the learned single Judge 's order excluding the depositions from evidence will bar a fresh adjudication of that point in the Letters Patent Appeal filed against the final decision in the suit? In our opinion, this academic exercise iS unneces sary in the present case since it cannot be doubted that irrespective of the question of res judicata, earlier deci sion on the same point by a Division Bench of the High Court will atleast be a binding precedent when the matter is reagitated before the Division Bench hearing the appeal against the final decision in the suit. In such a situation directing the resort to the remedy of an appeal under the Letters Patent against the final decision in the suit will needlessly delay decision of the point by this Court. We are, therefore, of the opinion that, in the present case, it is neither necessary to decide the question of res judicata argued before us nor would it be appropriate to refuse leave and direct the petitioner to first exhaust the remedy of an appeal under the Letters Patent in the High Court. We, accordingly, proceed to decide the point involved on merits. Leave granted. Having heard learned counsel for the parties, we have formed the opinion that the High Court was in error in excluding from evidence the depositions of the appellants ' witnesses recorded on commission and in proceeding to decide the suit on that basis. The matter will, therefore, have to go back to the High Court for a fresh decision of the suit treating these depositions as evidence in the suit. In view of this conclusion reached by us, we shall mention only the facts necessary for deciding the main controversy at this stage relating to the construction of Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side. In the above Admiralty Suit No. 6 of 1985, the appel lants (defendants in the suit) filed an application on February 6, 1987 for examining their two witnesses, Mr. A. Kappos and Mr. Parakis, on commission at the Greek Embassy in New Delhi. The respondents ' (plaintiffs in the suit) evidence was concluded on February 23, 1987. On February 25, 1987, the learned single Judge trying the suit directed issue of a commission for examination of the appellants ' two witnesses on commission at the Greek Embassy at New Delhi and Mr. B.C. Kundu, Advocate of the Alipore Bar was appoint ed the Commissioner for this purpose. The Commissioner commenced recording the depositions of these witnesses at New Delhi on May 1, 1987 and concluded it 193 on May 4, 1987. The deposition of each witness was signed by the Commissioner after being read over to the witness who admitted it to be correct. However, the signature of the witness was not taken on the deposition. The Commissioner settled the minutes in a meeting with counsel for parties in which the depositions recorded on commission were admitted to be correct and counsel for the parties signed the minutes in token of their acceptance. The minutes are as under: "A meeting was held this afternoon dated 15th May, 1987 at 4.15 P.M. at lB, Old Post Office St., Calcutta I to furnish the report of the Commission. Members present: Mr. Taimur Hossain Advocate on behalf of the plaintiffs Mr. A.K. Auddy Advocate (Sandersons & Morgans) on behalf of the defendant Mr. B.C. Kundu A list of Exhibits as also copies of deposi tions recorded at Greek Embassy, New Delhi were given to the parties. No amendment or correction was suggested in the deposition by either of the parties. The Report of the Commissioner would be submitted on Monday, the 15th May, 1987. Illegible Commissioner Appointed by the Hon 'ble High Court vide order dated 25.2.87 sd/ Md. Taimur Hossain Advocate for the plaintiffs 194 sd/ A.K. Auddy Advocate 15.5.87 Received a copy Sig. Illegible Recd. a copy of the minutes. sd/ A.K. Auddy. " The Commissioner then submitted his report along with the depositions recorded by him in a sealed cover to the Registrar (Original Side) of the High Court. The parties also filed written submissions in the court treating these depositions as evidence in the suit and on December, 1987 the learned trial Judge recorded the proceedings as under: "The Court: Deposition including the documents taken on commission are formally tendered in Court by the learned Advocate appearing for the defendant (in a sealed cover). Both the parties have submitted their written argument in Court earlier. Let this suit appear in the List on 12.1.1988 at 3 P.M. marked "For Judg ment". " It is clear that till closing of the suit for judgment, no objection was raised on behalf of the respondents to inclusion of the depositions of appellants ' witnesses exam ined on commission in evidence of the suit. Somehow the judgment was not delivered on 12.1.1988 and even thereafter for quite some time and the learned single Judge then made an order releasing the suit. This led to a special leave petition in this Court by the respondents and an order was made by this Court requesting the learned single Judge trying the suit to dispose of the suit on merits instead of releasing it. It was then on 10.8.1988 that respondents ' (plaintiffs in the suit) counsel raised the objection to inclusion of the depositions of appellants ' witnesses examined on commis sion in evidence of the suit on the ground that the deposi tions were not signed by the witnesses as required by Rule 4 ibid. That objection was upheld by the learned single Judge as well as a Division Bench of the High Court in L.P.A. against that order. The High Court has held this defect to be fatal on its view that even the requirement of witness ' signature in Rule 4 ibid is mandatory. S.L.P. No. 4074 of 1989 is against this order. On this view, the learned single Judge has proceeded to decree the suit on the basis of respondents ' unrebutted evidence and S.L.P. No. 93 18 of 1989 195 is against the judgment and decree in the suit. The controversy on merits depends ultimately on the correct construction of Rule 4 of Chapter XXII of the Cal cutta High Court Rules, 1914 applicable to the Original Side with reads as under: "4. Deposition to be read over, signed etc. After the deposition of any witness shall have been taken down, and before it is signed by him, it shall be distinctly read over, and, where necessary, translated to the witness in order that mistakes or omissions may be recti fied. The deposition shall be signed by the witness and left with the Commissioner who shall subscribe his name and date of the examination." Dr. Shanker Ghosh, learned counsel for the appellants contended that the omission of witness ' signature on the deposition recorded by the Commissioner does not invalidate the deposition atleast in a case like the present where the correctness and authenticity of the deposition is undisput ed. He argued that in this sense requirement of the witness ' signature on the deposition is not a mandatory requirement, the absence of which may invalidate the deposition. He also contended that the defect, if any, was curable by obtaining the witness ' signature even now for which the appellants are prepared. He added that in order to put the matter further beyond controversy, the affidavits of the witnesses examined on commission were filed in the High Court during pendency of the appeal before the Division Bench admitting correct ness of their depositions. He also placed strong reliance on admission of the respondents ' counsel to the correctness of the depositions, in the minutes recorded by the Commissioner on 15.5.1987 as well as the omission to raise any such objection till 10.8.1988 much after the suit was closed for judgment on 24.12.1987. He finally urged that the mistake, if any, was of the Commissioner in not taking the signatures of the witnesses and no party should be prejudiced by an act or omission of the Commissioner who was an officer of the Court. In reply, Shri M.K. Ramamurthi, relied on the reasons given in the Division Bench 's judgment dated March 23, 1989 for construing this requirement in Rule 4 ibid as mandatory and on that basis excluding from evidence in the suit of these depositions. He also contended that copies of affida vits of the witnesses filed in the High Court were not supplied to the respondents. He added that the argument of curing the defect by obtaining signatures of the witnesses on the depositions was not advanced in the High Court due to which it 196 should not be permitted now. Shri Ramamurthi also made the grievance that belated pleas of the appellants have caused needless harassment to the respondents. Since we have come to the conclusion that these appeals should be allowed on the construction of Rule 4 ibid, we need not decide the other points urged. It is needless to burden our decision with the several well known authorities cited at the Bar indicating the test to be applied to decide whether a provision is mandatory or directory. The real difficulty arises only in the applica tion of the well settled principles. The essential require ment of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing read over, and, where necessary, translated to the witness in order that mistakes or omissions, if any, may be rectified or supplied. The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposi tion. The further requirement of signature of Commissioner with the date of examination and deposition being left with the Commissioner to enable its production in court is to ensure its authenticity. The only remaining requirement in Rule 4 of the witness ' signature on the deposition has relevance to the admission of the witness of its correct ness. The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context. It is well known that under the Code of Civil Procedure a deposition recorded in a Court, except that under Order 18, Rule 16 C.P.C., does not require the witness ' signature on the deposition. It appears that witness ' signature on the deposition recorded on com mission is only required for court 's assurance since the witness is not examined in court. Accordingly, it cannot be said reasonably that the omission of witness ' signature on the deposition renders the deposition incomplete. If this be the true import of the witness ' signature on the deposition recorded on commission, the deposition cannot be treated as incomplete, much less, invalid merely due to omission of witness ' signature when correctness or authenticity of the deposition is undisputed. It appears to us that while the essential requirements of Rule 4 indicated above are no doubt mandatory requiring strict compliance, the requirement of witness ' signature therein is directory of which substantial compliance is sufficient. There is substantial compliance of this directo ry requirement where the correctness and authenticity of the deposition is undisputed. Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by 197 the witness, in case of dispute. This construction of Rule 4 made by us also promotes the object of its enactment instead of negativing it. Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscar riage by enabling the court to do justice in myriad situa tions, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system. In this case, none disputes the correctness and authen ticity of the depositions recorded on commission but there is omission of witness ' signature thereon. The question is: does reception of these depositions in evidence violate rule 3 ibid in a manner which is impermissible or this omission can be overlooked as insignificant since correctness and authenticity of the depositions is undisputed? We have no doubt that cause of justice would be served instead of being thwarted and the avowed object of Rule 4 ibid achieved by treating it to be an insignificant omission in the present case. The consequence of failure to comply with any require ment of Rule 4 ibid is not provided by the statute itself. Accordingly, the consequence has to be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the noncompliance. Rule 4 uses the word 'shall ' even while requiring the signature of the witness as it uses the word 'shall ' in respect of the other requirements of the Rule. Ordinarily, the word 'shall ' used at several places in Rule 4 must be given the same meaning at all places. However, it is also settled that this is not an invariable rule and even though the word 'shall ' is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory. 198 In short, the construction ultimately depends on the provi sion itself keeping in view the intendment of the enactment and the context in which the word 'shall ' has been used. It would suffice to refer only to the decision in Ganesh Prasad Sah Desari & Anr. vs Lakshmi Narayan Gupta, ; The word 'shall ' was used therein in connection with the Court 's power to strike off the defence against ejectment in a suit for eviction of tenant in case of de fault in payment of rent. This Court construed the word 'shall ' in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice. In taking this view, this Court was impressed by the fact that the default at tracting the drastic consequence of striking out defence may be only formal or technical and unless the provision was treated as directory, it would render the court powerless even where striking out the defence may result in miscar riage of justice. We may refer to a passage from Crawford on 'Statutory Construction ' which was quoted with approval in Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee, Godhra and Others, ; and relied on in this decision. The quotation is as under: "The 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 while considering its nature, its design and the consequences which would follow from construing it the one way or the other. " It cannot, therefore be doubted that the word 'shall ' used in the expression 'deposition shall be signed by wit ness ' in Rule 4 ibid has to be given the meaning keeping in view the intention of the legislature, the purpose of the enactment and the consequence which would follow from con struing it as mandatory or directory. If the word 'shall ' used in this expression is construed as mandatory, non compliance of which nullifies the deposi tion, drastic consequence of miscarriage of justice would ensue even where omission of the witness ' signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed. On the other hand, if the word 'shall ' used in this expression is treated as directo ry, the court will have power to prevent miscarriage of justice where the omission 199 does not cause any prejudice and the defect is only techni cal. The object of the provision being merely to obtain acceptance of the witness to the correctness of the deposi tion, that object would be advanced by taking this view and thereby empowering the court to avoid the drastic conse quence of nullifying the deposition where the correctness and authenticity is undisputed. In a case where the correct ness has been disputed, it would be permissible for the court to examine the effect of omission of the witness ' signature and to reject the deposition only if it does not accept the correctness and authenticity thereof on the available material. We do not find any cogent reason to take the view that the word 'shall ' occurring in the expression 'deposition shall be signed by the witness ' in Rule 4 ibid is mandatory which requires strict compliance and mere omission of which renders the deposition invalid and incapable of being read as evidence. Various facets discussed above lead unerringly to this conclusion. In view of the above discussion, we are of the opinion that the requirement of witness ' signature on the deposition in Rule 4 ibid is directory even though the requirement of the deposition being recorded, read over to him and correct ed wherever necessary is mandatory. Mere omission of the witness ' signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed. In the present case, correctness and authenticity of the deposition of the appellants ' witnesses being undisputed and the technical objection of omission of the witness ' signature on the deposition being raised as an after thought much after the learned single Judge had closed the suit for delivery of judgment, the objection is untena ble. With respect, the High Court was in error in upholding this objection and excluding the deposition of the appel lants ' witnesses examined on commission from the evidence in the suit. The result of exclusion of the appellants ' oral evidence on this untenable technical ground is that the suit has been decreed treating respondents ' evidence to be unre butted. Exclusion of appellants ' entire oral evidence has undoubtedly resulted in miscarriage of justice. The judgment and decree passed by the learned single Judge is vitiated for this reason alone. We end on a melancholy note for the past with hope for a better future. At a time when the minds of all of us are rightly exercised by the proverbial laws delays and innova tions are being made and suggested to prevent the apprehend ed collapse of the existing system, the 200 course of this litigation leaves us sad. No degree of thought can help unless translated into action. A more pragmatic appreciation and interpretation of the rules of procedure with due despatch would certainly have considera bly shortened the litigation so far. With both sides appear ing equally keen for a quick resolution of the dispute and this being obviously welcome to the Court we see no reason why the ultimate decision of the suit cannot now be reached early. We leave the matter with the fervent hope that the dispute will now be resolved expeditiously without any avoidable delay. We contribute the first step in that direc tion by hastening to pronounce our judgment on conclusion of the elaborate arguments on September 8, 1989, illuminating the penumbral zone. Consequently, these appeals are allowed. The order dated 10.8.1988 passed by the learned single Judge, the judgment dated 23.3.1989 passed by the Division Bench of the High Court affirming that order; and the judgment and decree dated 6.4.1989 passed by the learned single Judge are all set aside. The suit shah be decided afresh by the learned single Judge treating the depositions of appellants ' wit nesses recorded on commission as evidence in the suit, after hearing the arguments of parties on merits. The respondents alone cannot be blamed for this situation and, therefore, we direct the parties to bear their own costs. R.S.S. Appeals al lowed. [/INST]There are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay. Out of four, three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra. Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt. vide Govt. Resolution dated June 18, 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges. Both the aforesaid Rules provide for collegeate institu tional preference for admission in the M.D. Course. In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes of admission to the Post Graduate M.D. degree, no matter wheth er the candidates had secured less marks than those who secured higher marks, having passed the M.B.B.S. Exam. from other colleges. On this basis some candidates who were not able to secure admission to the M.D. Course in the respec tive colleges from which they had passed their M.B.B.S. Examination were not also admitted in the other medical colleges in the City of Bombay, in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above. Those students/candidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn. and the State Govt. in the High Court, as being violative of article 14 of the Constitution. The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt. Medical College, as discriminatory and violative of article 14 of the Constitution and thus in valid. Hence these appeals by Special Leave. Dismissing the appeals with some directions, the Court, HELD: When the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same University except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In such circumstances, college wise institutional prefer ence cannot be supported and, this Court has not approved of such preference at all. [931F G] So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates, any preference other than in order of merit, will not stand the test of article 14 of the Constitution. [932C D] The Rules are discriminatory and do not satisfy the test of reasonable classification and as such, cannot be sus tained. The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate M.D. Course pursuant to the impugned Rules, their admission shall not be interfered with or disturbed. [933E] The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate M.D. Course for the next year. The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules, the appellants may take into consideration the sug gestions of the High Court. [934G H; 935A] Dr Pradeep Jain vs Union of India & Ors., ; , distinguished. Nidamarti Mahesh Kumar vs State of Maharashtra & Ors. , ; , not applicable. 921 Jagdish Saran & Ors. vs Union of India & Ors. , ; , not applicable. State of Rajasthan & Anr. vs Dr. Ashok Kumar Gupta & Ors., ; , not applicable. </s>
<s>[INST] Summarize the judgementAppeals Nos. 776 and 777 of 1957. Appeals by special leave from the judgment and order dated September 25, 1956, of the Bombay High Court in Income tax Application No. 48 of 1956; and from the judgment and order dated March 17,1954, of the Income tax Appellate Tribunal, Bombay, in E.P.T.A. Nos. 757, 903 and 944 of 1948 49, respectively. A. V. Viswanatha Sastri and G. Gopalakrishnan, for the appellants. A. N. Kripal and D. Gupta. for the respondent. November 30. The Judgment of the Court was delivered by HIDAYATULLAH, J. These are two appeals, with special leave, against an order of the High Court of Bombay rejecting a petition under section 66(2) of the Indian Income tax Act and the order of the Income tax Appellate Tribunal, Bombay, in respect of which the petition to the High Court was made. Messrs. section C. Cambatta & Co. (Private) Ltd., Bombay, have filed these appeals, and the Commissioner of Excess Profits Tax, Bombay, is the respondent. We are concerned in these appeals with three chargeable accounting periods, each ending respectively on December 31, beginning with the year, 1943 and ending with the year, 1945. 807 The appellants carry on various businesses, and one such business was the running of a theatre and restaurant, called the Eros Theatre and Restaurant. In October, 1943, a subsidiary Company called the Eros Theatre and Restaurant, Ltd. was formed. The paid up capital of the subsidiary Company was Rs. 7,91,100 divided into 7,911 shares of Rs. 100 each. 7,901 shares were allotted to the appellant Company as consideration for assets, goodwill, stock in trade and book debts which were taken over by the subsidiary Company, and the remaining 10 shares were held by the Cam batta family. The assets which were transferred were as follows: Assets: Assets transferred. Rs.1,28,968 Stock in trade. Rs.40,000 Book debts. . Rs.100 Rs.1,69,068 They together with the capital reserve of Rs. 6,21,032 made up the amount of Rs. 7,90,100. In the books of the subsidiary Company, the share capital account was shown separately as follows: Rs. 2,50,000 debited to the various assets account. Rs. 5,00,000 debited to the goodwill account. Rs. 40,000 debited to the stock in trade account. Rs. 100 debited to the book debts account. It will thus appear that goodwill was not shown separately in the appellants ' account books, but only in the accounts of the subsidiary Company. In working out the capital of the two Companies for excess profits tax, a sum of Rs. 5,00,000 was claimed as goodwill as part of the capital of the subsidiary Company. Both the Department as well as the Tribunal held that section 8(3) of the Excess Profits Tax Act applied; and the goodwill was not taken into account in working out the capital. The Tribunal declined to state a case, but the High Court directed that a reference be made on two questions, which were framed as follows: 808 "(1) Whether on the facts of the case, the Appellate Tribunal was right in applying section 8(3) of the Excess Profits Tax Act? (2). Whether in the computation of the capital employed. in the business of the assessee, the Tribunal erred in. not including the value of the goodwill or any "portion thereof?" The High Court by its judgment and order answered the first question in the negative and the second, in the affirmative. It held that sub section (5) and not sub section (3) of section 8 of the Excess Profits Tax Act was applicable. It, therefore, held that "the Tribunal should have allowed for the value of the goodwill whatever it thought was reasonable at the date of the transfer. " When the matter went before the Tribunal again, three affidavits and a valuation report by a firm of architects were filed. The goodwill, according to the report of the architects, amounted to Rs. 25 lakhs. It may be mentioned here that the subsidiary Company was using the premises under a lease granted on November 20, 1944, for three years beginning from April 1, 1944, on a rental of Rs. 9,500 per month. The Tribunal came to the conclusion that no goodwill had been acquired by the business of the Theatre as such, and that whatever goodwill there was, related to the site and building itself. They then proceeded to consider what value should be set upon the goodwill on the date of the transfer of the subsidiary Company as directed by the High Court. They took into account certain factors in reaching their conclusions. They first considered the earning capacity of the business, and held that prior to 1942 the business had not made profits, and that the name of Eros Theatre and Restaurant thus by itself had no goodwill at all. They, therefore, considered that the only goodwill which had been acquired attached to the lease, which the trustees had given to the Eros ;Theatre and Restaurant Ltd., and computing the goodwill as the value of the lease to the subsidiary Company, they felt that Rs. 2 lakhs was a liberal estimate of the value of the goodwill in the hands of Eros Theatre and Restaurant, Ltd. at the material time. 809 Petitions under sections 66(1) and 66(2) read with a. 21 of the Excess Profits Tax Act were respectively rejected by the Tribunal and the High Court; but the appellants obtained special leave from this Court, and filed these appeals. In our opinion, a question of law did arise in the case whether the goodwill of the Eros Theatre and ' Restaurant, Ltd., was calculated in accordance with law. The Tribunal seems to have taken into account only the value of the leasehold of the site to the subsidiary Company, and rejected other considerations which go to make up the goodwill of a business. No doubt, in Cruttwell vs Lye(1), Lord Eldon, L. C. observed that goodwill was "nothing more than the probability that the old customers would resort to the old place". The description given by Lord Eldon has been considered always to be exceedingly narrow. The matter has to be considered from the nature of the business, because the goodwill of a public inn and the goodwill of a huge departmental stores cannot be calculated on identical principles. The matter has been considered in two cases by the House of Lords. The first case is Trego vs Hunt (2), where all the definitions previously given were considered, and Lord Macnaghten observed that goodwill is "the whole advantage, whatever it may be of the reputation and connection of the firm, which may have been built up by years of honest work or gained by lavish expenditure of money". In a subsequent case reported in Inland Revenue Commissioners vs Muller & Co.s. Margarin, Ltd. (3), Lord Macnaghten at pp. 223 and 224 made the following observations:. "What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old established business from a new business at its first start. . . If there is one attribute common to all cases of goodwill in it is the attribute (1) 346. (2) (3) 810 of locality. For goodwill has no independent existence. It cannot subsist by itself. 'It must be attached to a business. Destroy the business, and the goodwill perishes with it, though elements remain which may perhaps be gathered up and be revived again". These two cases and others were considered in two 'Australian cases. The first is Daniell vs Federal Com missioner of Taxation (1), where, Knox, C. J. observed: "My opinion is that while it cannot be said to be absolutely and necessarily inseparable from the premises or to have no separate value, prima facie at any rate it may be treated as attached to the premises and whatever its value may be, should be treated as an enhancement of the value of the premises". In the second case reported in Federal Commissioner of Taxation vs Williamson (2), Rich, J., observed at p. 564 as follows: "Hence to determine the nature of the goodwill in any given case, it is necessary to consider the type of business and the type of customer which such a business is inherently likely to attract as well as the surrounding circumstances. . The goodwill of a business is a composite thing referable in part to its locality, in part to the way in which it is conducted and the personality of those who conduct it, and in part to the likelihood of competition, many customers being no doubt actuated by mixed motives in conferring their custom". In Earl Jowitt 's Dictionary of English Law, 1959 Edn., "goodwill" is defined thus: "The goodwill of a business is the benefit which arises from its having been carried on for some time in a particular house, or by a particular person or firm, or from the use of a particular trade mark or trade name" It will thus be seen that the goowill of a business depends upon a variety of circumstances or a combination of them. The location, the service, the standing of the business, the honesty of those who run it, and the lack of competition and many other factors go individually or together to make up the goodwill, (1) ; (2) ; 811 though locality always plays a considerable part. Shift the locality, and the goodwill may be lost. At the same time, locality is not everything. The power to attract custom depends on one or more of the other factors as well. In the case of a theatre or restaurant, what is catered, how the service is run and what the competition is, contribute also to the goodwill. From the above, it is manifest that the matter of goodwill needs to be considered in a much broader way than what the Tribunal has done. A question of law did arise in the case, and, in our opinion, the High Court should have directed the Tribunal to state a case upon it. Civil Appeal No. 776 of 1957 is allowed. The High Court will frame a suitable question, and ask for a statement of the case from the Tribunal, and decide the question in accordance with law. The costs of this appeal shall be borne by the respondent; but the costs in the High Court shall abide the result. There will be no order in Civil Appeal No. 777 of 1957. C. A. No. 776 of 1957 allowed. [/INST]Various contracts for sale of goods had been made between the parties in Bombay each of which contained an arbitration clause. Disputes having arisen in March, 1952, in respect of these contracts, they were referred to arbitration and a composite award was made on October 7, 1952, against the respondent. One of these disputes had arisen out of a forward contract in groundnuts. The respondent applied to have the award set aside on the ground that the forward contract in groundnuts was illegal as such a contract was prohibited by the Oilseeds (Forward Contract Prohibition) Order, 1943, issued under the Essential Supplies (Temporary Powers) Act, 1946, passed by the Central Legislature. The appellant contended that the Essential Supplies (Temporary Powers) Act, 1946, was repugnant to the Bombay Forward Contracts Control Act, 1947, passed by the Provincial Legislature of Bombay which had received the assent of the Governor General of India and therefore under section 107(2) of the Government of India Act, 1935, which applied, the Bombay Act prevailed in Bombay in preference to the Central Act and under the Bombay Act Forward Contract in groundnut was valid. The High Court accepted the contention of the respondent and set aside the award. Section 8 of the Bombay Act provided: "Every forward con tract for the sale or purchase of, or relating to, any goods specified in the notification under sub section (3) of section 1 which is entered into, made or to be performed in any notified area shall be illegal if it is not entered into, made or to be performed" and thereafter, set out the manner in which and the persons between whom such contracts could be made and also made punishable a person making a contract declared illegal. Section 3 of the Central Act provided, "The Central Govern ment may by notified order provide for prohibiting trade and commerce" in any essential commodity. Under this section the Oilseeds (Forward Contract Prohibition) Order was passed prohibiting forward contracts in groundnuts, which was one of the essential commodities specified in the Central Act. Held, The Bombay Act did not make any contract legal. Its only effect was to render certain forward contracts illegal if not 781 made in compliance with its terms while the Central Act made the contracts to which it applied, illegal. There was, therefore, no repugnancy between the Bombay Act and the Central Act and both of them applied to Bombay. Article 372 of the Constitution continued both these Acts, and so there is no provision in the Constitution under which any one of them may be said to apply to the exclusion of the other. A composite award in respect of more than one dispute which is not severable, must be set aside as a whole if any of the disputes had been illegally referred. </s>
<s>[INST] Summarize the judgementCivil Appeal No. 556 of 1966. 283 Appeal by special leave from the order dated August 13, 1964 of the Industrial Tribunal, Andhra Pradesh in Industrial Dispute No. 41 of 1963. M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the appellants. K. Srinivasamurthy and Naunit Lal, for the respondent. The Judgment of the Court was delivered by Bhargava, J. This appeal, by special leave, has arisen out of an award made 'by the Industrial Tribunal, Andhra Pradesh, at Hyderabad in an industrial dispute between the respondent, the Imperial Tobacco Co., as well as exporting the tobacco to various (hereinafter referred to as "the Company"), and its workmen. Admittedly, the Company is an associate of the Imperial Tobacco Company Ltd., and the main business carried on by the Company is that of purchasing tobacco of all varieties and qualities, stemming, grading and packing of tobacco and supplying it to the Imperial Tobacco Co., as well as exporting the tobacco to various foreign countries in the world. The Company has been carrying on this business for about 40 years and handles almost 35 per cent of the tobacco grown in the State of Andhra Pradesh. For the work of stemming, grading and packing tobacco, the Company has two factories, one at Anaparty in East Godavari District, and the other at Chirala in Guntur District. In connection with this business, the Company, in the year 1962, was maintaining 21 depots where, according to the workmen, the appellants, the Company was carrying on the work of collecting tobacco, though the Company 's case was that the principal work done at these depots was that of handling the tobacco purchased at other places and only included the work of purchasing tobacco on a small scale. On 16th August, 1963, the Company gave a notice to the Union of the appellant workmen that 8 out of 21 depots mentioned therein would be closed down with effect from 30th September, 1963. Thereafter, an industrial dispute was raised by the workmen which related to the closure of these 8 depots, as well as to a number of other demands, including revision of basic wages and dearness allowance, additional discomfort allowance, etc. The State Government, by its Order dated 14th November, 1963, referred the dispute for adjudication under section 10(1)(d) of the to the Industrial Tribunal, Hyderabad. The first issue which was referred for adjudication, was as follows : "How far the demands of the union, viz., (i) that no depot which worked during 1962 season should. be closed, and (ii) that no workman who worked in 1962 season 'should be retrenched, are justified ?" 284 There were ten other issues, but we need not reproduce them, as we are not concerned with them in this appeal. In the proceedings for adjudication, the Company took a preliminary objection that the closure the depots was a managerial function, that there could not be an industrial dispute over such closure, that the Government, therefore, had no power to refer this issue for adjudication, and that the Tribunal also had no power to adjudicate on it. Thereupon, the Tribunal framed a .preliminary issue as to "whether the employer is justified in alleging that Issue No. 1 framed by the Government cannot be deemed to relate to an industrial dispute, and as such, whether the Government had the power to refer it for adjudication". The Tribunal decided this preliminary issue by giving an interim award on the 13th August, 1964. The preliminary objection was allowed and a further direction was made that the effect of this decision on Issue No. 1 will be decided later after hearing the parties, There,after, the Tribunal proceeded to hear the reference on this question as well as on all other issues referred to it and ', ultimately, gave its award on 11th December, 1964. In that award, both the parts of issue No. 1 were decided against the workmen. The workmen have now come up in this appeal against the interim award dated 13th August, 1964 as well as against the final award insofar as it relates to issue No. 1. The decision given by the Tribunal in the interim award, holding that the reference covered by issue No. 1 was not competent, has been challenged by learned counsel for the appellants on the ground that the closure of a depot does not amount to closure of business in law and, since the same business was continued by the Company at at least 13 other depots, the closure of the 8th depots in question was unjustified. For the proposition that the closure of the depots did not amount to closure of business, learned counsel rolled on the views expressed by this Court in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union(1), where the Court explained the reason for the decision given by the Labour Appellate Tribunal in the case of Employees of Messrs India Reconstruction Corporation Limited, Calcutta vs Messrs. India Reconstruction Corporation Ltd., Calcutta(2). It, however, appears to us that this question raised on behalf of the appellants is totally immaterial insofar as. the question of the jurisdiction of the Tribunal to decide the first part of issue No. 1 is concerned. The closure of the 8 depots by the Company, even if it is held not to amount to closure of business of the Company, cannot be interfered with by an Industrial Tribunal if, in fact, that closure was genuine and real. The closure may be treated as stoppage of part of the activity or business of the Company. Such stoppage of part of a (1) (2) 63. 285 business is an act of management which is entirely in the discretion of the Company carrying on the business. No Industrial Tribunal, even in a reference under section 10(1)(d) of the , can interfere with discretion exercised in such a matter and can have any power to direct a Company to continue a part of the business which the Company has decided to shut down. We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the has power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down. An example may be taken of a case where a Bank with its headquarters in one place and a number of branches at different places decides to close down one of the branches at one of those places where it is functioning. We cannot see how, in such a case, if the employees of that particular branch raise an industrial dispute, the Bank can be directed by the Industrial Tribunal to continue to run that branch. It is for the Bank to decide whether the business of the branch should be continued or not, and No. Bank can be compelled to continue a branch which it considers undesirable to do. In these circumstances, it is clear that the demand contained in the first part of Issue No. 1 was beyond the powers and jurisdiction of the Industrial Tribunal and was incorrectly referred. for adjudication to it by the State Government. of course, if a Company closes down a branch or a depot, the question can always arise as to the relief to which the workmen of that branch or depot are entitled and, if such a question arises and becomes the subject matter of an industrial dispute, an Industrial Tribunal will be fully competent to adjudicate on it. It is unfortunate that, in this case, when dealing with the preliminary issue, the Tribunal expressed its decision in the interim award in general words holding that Issue No. 1 as a whole was beyond its jurisdiction. If the reasoning in the interim award is taken into account, it is dear that the Tribunal on that reasoning only came to the conclusion that it was not competent to direct reopening of the 8 depots which had been closed, so. that the Tribunal should have held that the first part of Issue No. 1 only was outside its jurisdiction. So far as the second part of that issue is concerned, as we have said above, it was competent for the Tribunal to go into it and decide whether the claim of the workmen that they should not be retrenched was justified. On an examination of the interim award and the final award, we, however, find that the Tribunal in fact did (1) 286 do so. The case reported in Pipraich Sugar Mills Ltd.(1) was also concerned only with the question as to the relief that can be granted to workmen when there is closure of a business. No question arose either before the Court, or in the cases considered by the Court, of an Industrial Tribunal making a direction to the employers to continue to run or to reopen a closed branch of the business. The Labour Appellate Tribunal in the case of Employees of Messrs India Reconstruction Corporation Ltd., Calcutta(1) was dealing with the question of retrenchment compensation as a result of the closure of one of the units of the company concerned, and it held that the workmen were entitled to retrenchment compensation in accordance with law. This Court, in the case of Pipraich Sugar Mills Ltd. (2), only explained why the Labour Appellate Tribunal was justified in granting retrenchment compensation in that case. The opinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law no.t for discharge as such but for discharge on retrenchment and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure of business. It was in this context that the Court went on to add that in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta (1 ) what had happened was that one of the units of the Company had been closed which would be a case of retrenchment and not a case of closure of business. It may be noted that, at the time when this decision was given, section 25FF and section 25FFF had not been introduced in the , and the only right to retrenchment compensation granted to the workmen was conferred by section 25F. It was in the light of the law then prevailing that the Court felt that the decision of the Labour Appellate Tribunal in the case of Employees of M/s. India Reconstruction Corporation Lid(1) granting retrenchment compensation. could be justified on the ground that the services of the workmen had not been dispensed with as a result of closure cf business, but as a result of retrenchment. That question does not arise in the case before us. Since then, as we have indicated above, section 25FF and section 25FFF have been added in the , and the latter section specifically lays down what rights a workman has when an undertaking is closed down. In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under section 25F of section 25FFF it may become necessary decide Whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not. In the case before us, it was admitted by 1earned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots (1) (2) 287 of the Company, have all been paid retrenchment compensation at the higher rate laid down in section 25F, so that, in this case, it is not necessary to decide the point raised on 'behalf of the workmen. In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots. The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service. The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits. and merely altered the nature of the business by closing the depots and carrying on the stone business at the buying points. This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by the Tribunal. The Tribunal examined in detail the allegations made on behalf of the workmen in this respect. In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period. After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company. The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its 'desire to run the business economically. The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to, any buying point. The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all. if the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal. The Tribunal could not ask the Company to re employ or reinstate the workmen, because there was no business for which the workmen could be required. In these circumstances all that the workmen 288 could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation. Consequently, the appeal has no force and is dismissed but we make no order as to. costs. V.P.S. Appeal dismissed. L2 S.C.I./69 2,500 6 I 70 GIPF. [/INST]The Central Wage Board for sugar industry had recommended revised wage scales, revised categories and fitment of workmen into those, scales and categories as from November 1, 1960. The State Government had 'accepted those recommendations fully including the date of implementation. The appellant company, however, did not implement them and hence, its workmen raised a dispute and two questions were referred to the Labour Court namely : (1) of fitment of certain workmen in the new grades, and (2) the date from which it was to have effect. By its award, the Labour Court held that two of the workmen should be fitted into certain grades and directed the company to do so within one month after the award became enforceable, but, omitted to fix the date from which such fitment should have effect. On December 7. 1963, the 'award was published in the State Gazette and, under section 6A(1) of the U.P. , it became enforceable on January 7. The appellant fitted the two workmen in the two grades from February 7, 1964, that is, one month after the award became enforceable. The union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question referred to it and the Labour Court amended its award and directed that the two workmen should be placed in their respective grades from November 1, 1960, as recommended by the Wage Board. The amendment was published in the Gazette on June 20, 1964. The appellant filed a writ petition in the High Court for quashing the order of amendment, but the High Court dismissed the petition. In appeal to this Court, on the questions : (1) Whether the correction was of an error arising from an accidental omission within the meaning of a. 6 (6) of the Act; and (2) Whether the award could be, corrected (i) after it was published in the Gazette 'and had become final, and (ii) after it had become ,enforceable. HELD : (1) Section 6(6) enables the Labour Court to correct an accidental omission. in the present case, the Labour Court omitted to answer the second question which it was bound to answer. Since the first question was answered by it in accordance with the Wage Board 's recommendations and the Government 's notification accepting them fully, if the attention of the Labour Court had been drawn, it would have answered the second question also in consonance with those recommendations and the notification. Therefore, there was an error in the award due to an accidental omission within the meaning of section 6(6) of the Act. [39 G H; 40A] (2) (i) The scheme of sections 6 and 6A shows that there are 3 different stages before an award becomes enforceable, namely : (a) when the award is signed by the adjudicating authority; (b) when it is published and be, comes final; and (c) when it becomes enforceable under section 6A. Section 6(6) does not lay down expressly any time limit within which the correctional jurisdiction under the section should be exercised. To hold by implication that such jurisdiction can only be exercised till the date of publica 36 tion when the award becomes final, would be contrary to the sub section which envisages the correction of an award even after it is published and has become final. [40 C; 41 G H: 42 D E] (ii)There is nothing in sections 6, 6A or 6D to imply the limitation namely, that the power to correct is to be exercised only before the award becomes enforceable. The circumstance that the proceedings before a Labour Court and a Tribunal are deemed to be concluded under section 6D when their award becomes enforceable and they become functus officio would be no ground for inferring such a time limit, because : (a) Since an arbitrator is not mentioned in section 6D it would lead to the result, which could not have been intended, that there is a time limit only for the Labour Court and Tribunal and not for an arbitrator; and (b) the power is similar to that of a civil court under section 152 C.P.C. or under r. 28 of the Industrial Disputes (Central) Rules, 1957 of an adjudicating 'authority under the , and is based upon the principle that no party should suffer any detriment I on account of a mistake or an error committed by any adjudicating authority, and no limitation of time for exercising the correctional jurisdiction is implied even though a civil court or an adjudicating authority under the also become functus officio after their judgment or award becomes enforceable. Also, there is no hardship in holding that the Labour Court could correct an error under section 6(6) even after the award had become final as a result of the publication, or 'after it had become enforceable under section 6A, because, the correction is within a circumscribed field, namely, only in cases where a mistake, clerical or arithmetical, or an error arising from an accidental slip or omission, has occurred. [42 G H; 43 A B, C E, G H; 44 A H] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 3168 & 3167 of 1986 708 From the Judgment and order dated 21.9.1984 of the Gujarat High Court in First Appeal No. 163 of 1974 and Civil Application No. 9 of 1982. B.K. Mehta, A.B. Maniar and Ms. Indu Sharma for the Appellant in C.A. No. 3168 of 1986. P.H. Parekh and P.K. Manohar for the Appellant in C.A. No. 3167 of 1986. S.H. Seth, T.U. Mehta, Vimal Dave, C.D. Kakkad, Ajay. Rajeshwar Rao and M.N. Shroff for the Respondents. T.S. Krishnamoorthy Iyer and Mukul Mudgal for the Intervener in C.A. No. 3168 of 1986. Anil K. Nauriya and K.L. Hathi for the Intervener in C.A. No. 3167 of 1986. The Judgment of the Court was delivered by RANGANATH MISRA, J. These two appeals by special leave assail the judgment of the Gujarat High Court substantially affirming the appellate decision of the Charity Commissioner that the Pushti Margiya Moti Havali at Junagad and thirty eight items of its properties constitute a public trust under the Bombay Public Trusts Act, 1950. The appellant is the widow of Maharajshri Purshottamlalji who admittedly was a lineal descendant of Shrimad Vallabhacharyaji, the founder of the Pushti Margi Sampradaya. Purshottamlalji passed away in 1955 and, after him, the appellant has been in charge of the management of the Haveli and its assets both moveable and immoveable. The Bombay Public Trusts Act, 1950, (hereinafter referred to as 'the Act ') was extended to Saurashtra area of the Gujarat State in the year 1961. In October 1961, the appellant made an application to the Assistant Charity Commissioner at Rajkot under section 18 of the Act contending that the Haveli and its properties did not constitute a public trust. An inquiry followed to determine the character of the institution and the Assistant Charity Commissioner and the Charity Commissioner found that the institution was a public trust and all the forty items of property belonged to that trust. The High Court on appeal by the appellant has, however, recorded the following findings: 709 (1) Haveli Mandir at Junagad is a public trust within the A meaning of section 2(13) read with section 2(17) of the Act. (2) The moveable and immoveable properties appearing in the appendices A and in the judgment of the Charity Commissioner excepting two items of immoveable property covered by Exhibits 265 and 268 belong to the trust. In the absence of any challenge against exclusion of the two items from the purview of the trust, the same are no more in dispute. (3) The appellant is the trustee of the temple and its properties, Succession to trusteeship is by inheritence without the sanction of the State Government. (4) Guruseva Bhet and Charanseva Bhet offered by the devotees of Vallabha cult form part of the public trust. While recording these specific findings the High Court has affirmed the findings of the Charity Commissioner on all other issues. Shrimad Vallabhacharyaji, the founder of Pushti Margi Sampradaya is usually referred to as Mahaprabhuji. The lineal descendants of Mahaprabhuji are known as Goswami Maharajshree. Goswami Madhavraiji, a direct lineal descendant of the founder of the cult was living at Chittal now in Amreli district of Gujarat. Some time in 1776 A.D., the Hindu Diwan Amarji of the Muslim Nawab of Junagad extended invitation to Madhavraiji to come to Junagad and he came there with his own deity. The Muslim Nawab was impressed by the attainments of Madhavraiji, made grants of property both for residence as also cultivation, and on the property gifted for residential purpose, Madhavraiji raised the Haveli. It houses the deity in the ground floor and in the first floor thereof Goswami Maharajshree and members of his family have been living generation after generation. Indisputably, the devotees of the Sampradaya hold the Maharaj in great esteem and reverence and consider him as the living representative of the Lord. Before the High Court long and detailed arguments appear to have been canvassed and on the basis thereof, the High Court formulated the following points for determination: 710 (i) Whether the Haveli Mandir of Madan Mohanlalji situated at Junagad is a public charitable trust within the meaning of section 2(13) read with section 2(17) of the Act? (ii) Whether the moveable and immoveable properties described in appendices A and in the judgment of the Charity Commissioner belong to the said public trust? (iii) What is the mode of succession to trusteeship of the trust? (iv) What are the sources of income of the said trust? The High Court went into the matter at great length, settled the tests to be applied for determining the character of the institution by carefully referring to several decisions of the Judicial Committee of the Privy Council, different High Courts and this Court; examined the documentary as also the oral evidence analytically and relied upon the following features for coming to the conclusion that the Haveli and the thirty eight properties constituted a public trust: (1) Grants of property by the State of Junagad for construction of Haveli and its upkeep; gifts of immoveable properties from time to time by devotees. (2) Donations for repairs, renovation and expansion from the devotees of the Sampradaya; (3) Tablets placed on the walls of the Haveli showing particulars of substantial donations; (4) Right of darshan enjoyed by devotees at large; (5) Holding of religious festivities and performances on grand scale; (6) Placing of Golaks (hundies) in different parts of the haveli for collection of offerings from devotees visiting the temple; (7) Service rendered by the devotees for maintenance and upkeep of the haveli; MANOHAR 711 (8) Treatment meted by the State over the years towards A the temple; (9) The get up of the Haveli; and (l0) The contents of the application for registration of the haveli (Exh. 36) and the stand of the appellant with reference to the same. While dealing with these features, the High Court considered certain other aspects some connected with the above and others not and in an elaborate and well considered judgment came to the conclusions which have already been indicated. In this Court intervention by devotees was asked for mainly on the ground that the High Court had dealt with and relied upon religious customs and practices of the Pushti Margi Cult and the treatment given by the High Court was wrong. This Court permitted intervention confined to written submissions. Eleven thousand and twelve affidavits came to be filled by the devotees of the cult and at the hearing, one of them on his persistent request, was heard for some time. A plea was made that the questions in dispute could be disposed of without going at length into the religious philosophy of the Cult. Admittedly Pushti Margi Vaishnavas following the Vallabha Cult are Hindus and the Hindu law of religious endowments is applicable to their havelis. It is, therefore, unnecessary to scan their religious philosophy at length to decide the present dispute. This Court had occasion twice to deal with disputes relating to the nature of temples of this cult and it is appropriate that we refer to them at this stage. A five Judge Bench in Tilkayat Shri Govindlalji Maharaj vs The State of Rajasthan and others, [1964] 1 SCR 561 was called upon to adjudicate the character of the famous Nathdwara Temple. It had been canvassed on behalf of the Tilkayat that it was against the tenets of the Vallabha School to worship in public temples. This Court held: "Therefore, we are satisfied that neither the terms nor the religious practices of the Vallabha School necessarily postulates that the followers of the School must worship in a private temple, some temples of this cult may have been private in the past and some of them may be private even 712 today. Whether or not a particular temple is a public temple must necessarily be considered in the light of the relevant facts relating to it. There can be no general rule that a public temple is prohibited in Vallabha School. " This conclusion appeals to us and we are also bound to accept the same as a correct proposition. In Goswami Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas and ors. ; , where the dispute related to the character of the Haveli at Nadiad, a three Judge Bench followed the conclusion in Tilkayat 's case (supra) that there was no restriction on worship in public temples in the Vallabha tenets. It was further stated: "Yet another contention taken on behalf of the appellant is that the architecture of the building in which Gokulnathji is housed and the nature of that building is such as to show that it is not a public temple. It was urged that building does not possess any of the characteristics of a Hindu temple. It has not even a dome. This contention again has lost much of its force in view of the decision of this Court refer red to earlier (Tilakayat 's case). Evidence establishes that Vallabha 's son and his immediate successor Vithaleswar had laid down a plan for the construction of temples by the Vallabha Sampradayes. He did not approve the idea of constructing rich and costly buildings for temples. Evidently he realized that religious temple buildings were not safe under the Mohamedan rule. For this reason he advised his followers to construct temples of extremely simple type. The external view of those temples gave the appearance of dwelling houses. It appears to be a common feature of the temples belonging to the Vallabha Sampradayes that the ground floor is used as the place of worship and the first floor is used as the residence of Goswami Maharaj . " The Haveli at Nadiad was held to be a public trust notwithstanding its appearance of a residential house and the fact that in the upper floor, the Goswami Maharaj had his living abode. In Mahalaxmi 's case (supra) this Court again said: "If a temple is proved. to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have 713 originated as a private temple or its origin is unknown or A lost in antiquity, then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In these cases the Courts have to address themselves to various questions such as: (i) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (ii) Are the members of the public entitled to worship in that temple as of right? (iii) Are the temple expenses met from the contributions made by the public? (iv) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples? (v) Have the management as well as the devotees been treating that temple as a public temple?" The High Court has found in this case that the Haveli was a public temple from the inception. It took into account the fact that the haveli was built upon the land donated by the Ruler of Junagad and for its upkeep sumptuous provisions had been made by the State. The material on record justifies the inference drawn by the High Court that when Goswami Madhavraiji came to Junagad in response to the invitation carrying his deity with him, he obviously did not come with the mental frame of raising a haveli. That became possible on account of the gifts made by the Ruler. Therefore, it would be quite appropriate to affirm the finding of the High Court that the haveli was built out of the grants made by the Nawab and gifts and offerings made by the devotees around that time. Mr. Mehta, learned counsel for the appellants seriously challenged the finding of the High Court that the haveli and its properties constituted a public trust. We have given a close look to the judgment and are of the view that the High Court scrutinised the evidence both documentary and oral keeping the proper perspective in view. The five way test formulated by this Court in Mahalaxmi 's case (supra) and the other relevant features referred to by Dr. B.K. Mukherjea in the 714 Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts for use as tests in determining the character of a Hindu temple have been appropriately utilised by the High Court while assessing the evidence. The large contributions by the devotees evidenced by tablets placed on the walls of the haveli, contributions by members of the public for its repairs and expansion, the clear evidence regarding the manner and scale in which festivities are celebrated at the haveli, public grants of property made for the upkeep of the institution, interference with the management of the haveli by the State when a minor succeeded to trusteeship, the fact that the members of the public had darshan freely and without let or hindrance from the appellant and her predecessors (the two instances of obstruction having rightly been rejected by the High Court), placing of golaks or hundies at different places within the haveli for collection of contributions from the devotees, that the State had either remitted the rent or adopted a quit rent basis for the lands granted to the haveli, the fact that the Junagad State levied and collected a cess for the maintenance of the haveli, the other havelis or temples of the Sampradaya under the control of the disputed haveli had been accepted as public trusts and were registered as such and the like were justifiedly utilised by the High Court as features and materials for holding that the haveli was a public trust. The High Court did take into account certain other features from which support was sought by the appellant for her stand that the haveli was a private trust and did not come within the ambit of the Act. These are the features like some of the grants being personal, the Barkhali Abolition compensation not having been settled on annuity basis, the upper portion of the haveli being used as private residence of the Goswamiji, the mode of accounting, the income being shown as personal in the returns under the Income tax Act and the like. We find that the High Court has also appropriately taken note of the position that Goswami Maharaj enjoyed among the devotees as their spiritual leader and upon an assessment of the total evidence, it has reached its conclusions. In a dispute of this type; a single or a few features would not provide the conclusive basis for the decision to be arrived at. On the other hand, the entire material has to be scanned and the ultimate conclusion has to rest on the sum total view. That is exactly what the High Court has done. The tests to be applied for deciding whether a temple is public or private have been laid down in a catena of cases by this Court and reference to them was made by learned counsel for the parties in course of the hearing. Since we are recording a judgment of affirmance 715 and the tests are well known, we do not propose to advert to them A now. In agreement with the High Court we hold that the Haveli and the listed thirty eight items of property constitute a public trust under the Act and we also affirm the finding that succession to trusteeship is by inheritance without sanction of the State. We have now to examine the correctness of the conclusion reached by the High Court regarding the character of the guruseva bhet and charanseva bhet. The High Court has found that these also are a part of the source of income and according to it, these constitute an important source of income of the trust. It is the accepted situation that Vallabha and his descendants enjoyed a special position in the community of the devotees. In Tilkayat 's case. (supra) this Court pointed out: "It is significant that this denomination does not recognise the existence of Sadhus or Swamis other than the descendants of Vallabha . " It is the practice of Goswami Maharaj to lead collective and congregational prayers within the haveli and act as the religious preceptor of the devotees. It is customary for the devotee to make offerings at the feet of the Guru when he meets the Maharaj. Such offerings are known as charanseva or offerings at the feet of the Guru. It is also the accepted position that the Guru moves about among the devotees living in different areas coming within the territorial limits of the haveli. It is equally customary for devotees who meet the Guru while he is on the move outside the headquarters to make similar offerings and these are known as Pradesh Seva. The High Court has towards the end of its judgment adverted to these gifts and said: "In addition thereto. Gurubhet and Charanseva bhets given to the concerned Maharaj also formed substantial portion of the temple income. As the evidence shows more than 70% of the temple income springs from the source of pradesh seva and guruseva bhet. We fully concur with the finding of the Charity Commissioner in this aspect." This finding of the High Court has been seriously assailed by appellant 's learned counsel. Support has been sought from the observations of the Constitution Bench judgment of this Court in the Commissioner., Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [ ; to contend that 716 the bhets to the Guru are offerings to him as distinct from offerings to the deity and in consideration of the feature that the Vallabha Sampradayin Guru enjoys a special position, these offerings must be held to be his and not of the deity. The High Court has taken the view that once Bramha Sambadha is established, the Guru as also every devotee in the cult loses his individuality and his very existence (apart From the physical) merges with the Lord. This has been an over stretching of the doctrine. Though we do not intend to enter into the religious rites and practices of the cult; nothing has been shown from the record to justify the conclusion that the Guru is only a conduit pipe between the devotee at one end and the Lord on the other so as to lead to the conclusion that whatever is offered at the feet of the Guru Belongs to the Lord. In Shirur Mutt case (supra), this Court was considering the vires of the provision in section 30 of the Madras Hindu Religious and Charitable Endowment Act, 195l, which required the personal gifts (Pada Kanikkais) to be duly accounted for and to be spent for the Purpose of the Mutt. The gifts were taken for granted to be personal and examination was not undertaken to ascertain whether such gifts laid at the feet of the Guru were personal or otherwise. Yet inferentially support is available for the view that what is laid at the feet of the J Guru is intended to be an offering to him and not to the deity. There is a distinction between an offering made before the deity or put into the Golak and put at the feet of the Guru. In the earlier case, it is clearly a gift to the deity while in the latter, in the absence of anything more, it would be one to the Guru. The High Court, by accepting the doctrine of Bramha Sambadha reached the conclusion that such gifts were also to the deity. Though the character of pada Kannikaris was not in issue before this Court in Shirur Mutt case, the fact that the Court proceeded on the footing that such gifts were personal is a feature which cannot be overlooked. The preceptor has his position and if he is not a conduit pipe in the sense stated above, what is laid at his feet out of reverence by the devotee must belong to him. We are not in a position to uphold the finding of the High Court on this score and would conclude that the proceeds of the Guruseva and Pradesh Seva do not constitute part of the public trust. The High Court has said that these two sources contribute seventy per cent of the income of the trust. No argument was raised on this aspect by either side. We, however, hope and trust that the Goswami Maharaj or in his absence, his lawful heir succeeding him, will continue in his discretion to allow the trust of which he is the administrator to draw upon this source as and when necessary. 717 The appeal is partly allowed. Parties are directed to bear their respective costs throughout. Ajanta Estate Agency, the appellants in the connected appeal entered into an agreement with the trustee to purchase certain properties during the pendency of the litigation arising out of the enquiry under the Act. Once the properties are held to belong to the public trust, the appellants would have no claim to enforce and the appeal has to fail. We dismiss the appeal without any direction for costs in this Court P.S.S. Appeal dismissed. [/INST]Shrimad Vallabhacharyaji was the founder of Pushti Margi Sampradaya. Goswami Madhavraiji was a direct lineal descendant of the founder. He came over to Junagad in Saurashtra from Amreli district of Gujarat in the year 1776 with his own deity on the invitation of the Muslim Nawab. Impressed by his attainments the Nawab made grants of property both for residence as also cultivation. On the property gifted for residential purpose Madhavraiji raised a Haveli. It housed the deity in the ground floor and in the first floor thereof Goswami Madhavraiji and after him his descendants and members of their families have been living generation after generation. The Bombay Public Trusts Act, 1950 was extended to Saurashtra area of Gujarat State in the year 1961. The appellant. the widow of Maharajshree Purshottamlalji, a lineal descendant of the founder, who had been in charge of the management of the Haveli and its assets, both moveable and immoveable, ever since the demise of her husband in 1955, made an application to the Assistant Charity Commissioner under section 18 of the Act in October, 1961 contending that the Haveli and its properties did not constitute a public trust. The Assistant Charity Commissioner and the Charity Commissioner found that the institution was 706 a public trust and that all the forty items of property belonged to the trust. In appeal by the appellant, the High Court held that (i) the Haveli Mandir was a public trust within the meaning of section 2(13) read with section 2(17) of the Act; (ii) the moveable and immoveable properties which were thirty eight in number belonged to the trust; (iii) the appellant was the trustee of the temple and its properties, and the succession to the trusteeship was by inheritance without the sanction of the State, and (iv) Guruseva and Charanseva Bhets offered by the devotees of Vallabha cult formed part of the public trust, on the view that once Brahma Sambadha is established, the Guru as also every devotee in the cult loses his individuality and his very existence (apart from the physical) merges with the Lord. In the appeal to this Court intervention by devotees was permitted mainly on the ground that the High Court had dealt with and relied upon religious custom and practice of the Pushti Margi cult and the treatment given by the High Court was wrong. It was contended for the appellants that the bhets to the Guru were offerings to him as distinct from offerings to the deity and in consideration of the feature that the Vallabha Sampradayin Guru enjoyed a special position, these offerings must be held to be his and not that of the deity. Allowing the appeal in part and dismissing the connected appeal, the Court, ^ HELD: 1. Pushti Margi Vaishnavas following the Vallabha Cult are Hindus and the Hindu Law of religious endowments is applicable to p their havelies. lt was, therefore, not necessary in the instant case, to scan their religious philosophy to decide the issue. [711E] 2. The High Court was right in holding that the Haveli and the listed thirty eight items of property constituted a public trust under the Bombay Public Trusts Act, 1950 and that succession to trusteeship was by inheritance without sanction of the State. In reaching that conclusion the Court has scrutinised the evidence, both documentary and oral, keeping the proper perspective in view, appropriately utilised the five way test formulated by this Court and the other features relevant in determining the character of a Hindu temple, and taken note of the position that Goswami Maharaj enjoyed among the devotees as their spiritual leader. In a dispute of this type, a single or a few features 707 would not provide the conclusive basis for the decision to be arrived at. A The entire material has to be scanned and the ultimate decision has to rest on the sum total view. [715A B; 714F G] Tilkayat Shri Govindlalji Maharaj vs The State of Rajasthan and others, 119641 1 SCR 561; Goswami Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas and Ors., ; ; and Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts by Dr. B. K. Mukherjea, refereed to. 3.1 The proceeds of the Guruseva and Pradeshseva do not constitute part of the public trust. [716G] 3.2 Vallabha and his descendants enjoyed a special position in the community of devotees. They have been leading collective and congregational prayers within the Haveli and acting as the religious preceptor of the devotees. It is customary for a devotee to make offerings at the feet of the Maharaj when he meets him in the Haveli or during his visits to areas coming within the territorial limits of the Haveli. [715D E] 3.3 There is a distinction between an offering made before the deity or put into the Golak and that put at the feet of the Guru. In the earlier case, it is clearly a gift to the deity while in the latter, in the absence of anything more, it would be one to the Guru, for what is laid at the feet of the Guru is intended to be an offering to him and not to the deity. [716E] 3.4 The doctrine of Brahma Sambadha is not applicable to the instant case, for nothing has been shown from the record to justify the conclusion that the Guru is only a conduit pipe between the devotee at one end and the Lord on the other so as to lead to an inference that whatever is offered at the feet of the Guru belongs to the Lord. The preceptor has his position and if he is not a conduit pipe in the sense stated, what is laid at his feet out of reverance by the devotee must belong to him. In view thereof the finding of the High Court on this issue cannot, therefore . be sustained . [7l6B C] Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. ; , referred to. </s>
<s>[INST] Summarize the judgementetition (Criminal) No. 8061 of 1981. (Under article 32 of the Constitution of India.) Dr. N.M. Ghatate for the Petitioner. O.P. Rana and R.N. Poddar for the Respondent. The Judgment of the Court was delivered by SEN, J. By this petition under article 32 of the Constitution, one Ashok Kumar seeks issuance of a writ of habeas corpus challenging the validity of the order of detention dated August 11, 1981, passed by the Commissioner of Police, Delhi under sub section (2) of section 3 of the (for short 'the Act ') on being satisfied that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of 710 public order". The main issue is as to whether the activities of the petitioner fall within the realm of 'public order ' or 'law and order '. It appears that on August 12, 1981 while the detenu was held at the Central Jail, Tihar in connection with some of the offences committed by him, he was served with the aforesaid order of detention passed a day earlier i.e. on August 14, 1981. Two days later i.e. on August 14, 1981 he was furnished with the grounds of detention as well as with copies of documents and statements relied upon in the grounds of detention. It seems that the Commissioner of Police forthwith made a report to the Administrator about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same. The said report and the other particulars were considered by the Administrator and he, by his order dated August 20, 1981, approved of the detention order under sub section (4) and sent a report to the Central Government as required under sub section (5) of section 3 of the Act. The Administrator by his order dated August 20, 1981 informed the petitioner that his order of detention had been approved by him and that he had a right to make a representation. The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for the detention of the petitioner and accordingly the Administrator by his order dated September 15, 1981 confirmed the aforesaid detention order under sub section (1) of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention i.e. w.e.f. August 12, 1981. In support of the petition, four points are canvassed. First of these is that there was a denial of the constitutional imperatives of article 22(5) read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention" inasmuch as there was unexplained delay of two days in furnishing the grounds of detention; secondly, there was a failure on the part of the Commission of Police as well as the Administrator to apply their mind and specify the period of detention while making the order of detention under sub section (2) of section 3 of the Act and therefore the impugned order of detention is invalid; thirdly, the grounds of detention served on the detenu are not connected with "maintenance of public order", but they relate to "maintenance of law and order" and fourthly, the facts as set out in the grounds of detention did not 711 furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further they were vague, irrelevant and lacking in particulars. We are afraid, none of these contentions can prevail. There is no substance in the contention that there was denial of the constitutional imperatives of article 22(5) read with section 8 of the Act, because there was unexplained delay of two days in furnishing the grounds of detention and it was imperative that the detenu should be furnished with the grounds of detention along with the order of detention. It is said that delay even for a day, if it remains unexplained ' means deprivation of liberty guaranteed under article 21, and this is impermissible except according to procedure established by law. The contention that the constitutional safeguards in article 22(5) were not complied with merely because the detenu was not 'simultaneously ' furnished with the grounds of detention along with the order of detention and was thereby deprived of the right of being afforded 'the earliest opportunity of making a representation against the order of detention ' as enjoined by article 22(5) read with with section 8 of the Act, cannot be accepted. The language of article 22(5) itself provides that where a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, "as soon as may be", communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Sub section (1) of section 8 of the Act which is in conformity with article 22(5) provides that when a person is detained in pursuance of a detention order made under sub section (1) or sub section (2) of section 3 of the Act, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made. Parliament has thus by law defined the words "as soon as may be" occurring in article 22(5) as meaning normally a period of five days. The matter is no longer res integra. Chandrachud, C.J. in A.K. Roy vs Union of India observed : "This argument overlooks that the primary requirement of section 8(1) is that the authority making the order of 712 detention shall communicate the grounds of detention to the detenu "as soon as may be". The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by section 8(1) to record its reason in writing. We do not think that this provision is open to any objection. " Under our constitutional system, therefore, it is not the law that no person shall be detained in pursuance of an order made under a law providing for preventive detention without being informed of the grounds for such detention. The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the grounds on which the order of detention has been made. That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case. Admittedly, the detenu here was served with the grounds of detention within a period of two days i.e. within the period allowed by section 8 of the Act and that was "as soon as practicable". This is not a case where the detenu alleges that his detention was for non existent grounds. Nor does he attribute any mala fides on the part of the detaining authority in making the order. The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later. We find it difficult to conceive of any discernible principle for the second submission. It is submitted by learned counsel appearing for the detenu that the right to make a representation under article 22(5) of the Constitution read with section 8 of the Act means what it implies, "the right to make an effective representation". It is urged that unless the period of detention is specified, there can be no meaningful representation inasmuch as the detenu had not only the right of making a representation against the order for his detention but also the period of detention. On this hypothesis, the contention is that the impugned order of detention is rendered invalid. The 713 entire submission rests on the following observations of Chandrachud, C.J. in A.K. Roys case, supra : "We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention. The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period. The detaining authority can always exercise its discretion regarding the length of the period of detention. " The majority decision in A.K. Roys case, supra, as pronounced by Chandrachud, C.J. is not an authority for the proposition that there is a duty cast on the detaining authority while making an order of detention under sub section (1) or (2) to specify the period of detention. The learned Chief Justice made the aforesaid observations while repelling the contention advanced by learned counsel for the petitioner that section 13 of the Act was violative of the fundamental right guaranteed under article 21 read with article 14 as it results in arbitrariness in governmental action in the matter of life and liberty of a citizen. The challenge to the validity of section 13 of the Act was that it provides for a uniform period of detention of 12 months in all cases, regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed. In repelling the contention, the learned Chief Justice observed that there was no substance in that grievance because, any law of preventive detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence. In upholding the validity of section 13 the learned Chief Justice observed : "We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the grounds of detention". And then went on to say : "It must also be mentioned that under the proviso to section 13, the appropriate government has the power to revoke or modify the order of detention at any earlier point of time. " 714 It would thus be clear that the Court was there concerned with the validity of section 13 of the Act and it is not proper to build up an argument or by reading out of context just a sentence or two. There is no doubt in our mind that the Court has not laid down that the detaining authority making an order of detention under sub section (1) or sub section (2) of section 3 of the Act or the authority approving of the same, must specify the period of detention in the order. It is plain from a reading of section 3 of the Act that there is an obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention. It will be noticed that sub section (1) of section 3 stops with the words "make an order directing that such person be detained", and does not go further and prescribe that the detaining authority shall also specify the period of detention. Otherwise, there should have been the following words added at the end of this sub section "and shall specify the period of such detention". What is true of sub section (1) of section 3 is also true of sub section (2) thereof. It is not permissible for the courts, by a process of judicial construction, to alter or vary the terms of a section. Under the scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of. It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act. The most crucial question on which the decision must turn is whether the activities of the detenu fall within the domain of 'public order ' or 'law and order '. The contention is that the grounds of detention served on the detenu are not connected with 'maintenance of 'public order ' but they relate to 'maintenance of law and order ' and therefore the impugned order of detention purported to have been passed by the detaining authority in exercise of his powers under sub section (2) of section 3 of the Act is liable to be struck down. It is urged that the facts alleged in the grounds of detention tend to show that he is engaged in criminal activities and it is an apparent nullification of the judicial process if, in every case where there is a failure of the prosecution to proceed with a trial or where the case ends with an order of discharge or acquittal, the Executive could fall back on its power of detention because the verdict of the Court goes against it. Put differently, the contention is that resort cannot be had to the Act to direct preventive detention of a person under sub section (2) of section 3 of the Act for the Act is not a law for the 715 preventive detention of gangsters and notorious bad characters. The detention here, it is said, is not so much for the "maintenance of public order" but as a measure for the past criminal activities of the detenu. It is further urged that the grounds of detention have no rational connection with the object mentioned in the Act for which a person may be detained. Further, that there is no sufficient nexus between the preventive action and the past activities of the detenu which are not proximate in point of time but are too remote. There is no substance in any of these contentions advanced. The true distinction between the areas of 'public order ' and 'law and order ' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case. Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city of Delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence. There is a constant struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public 716 order. It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose. The prejudicial activities of the detenu leading to public disorder, as revealed in the grounds of detention, consist of a consistent course of criminal record. Although the criminal activities of the detenu in the past pertained mostly to breaches of law and order, they have now taken a turn for the worse. From the facts alleged it appears that the detenu has taken to a life of crime and become a notorious character. His main activities are theft, robbery and snatching of ornaments by the use of knives and firearms. The area of operation is limited to South Delhi, such as Greater Kailash, Kalkaji and Lajpat Nagar. A perusal of the F.I.Rs. shows that the petitioner is a person of desperate and dangerous character. This is not a case of a single activity directed against a single individuals. There have been a series of criminal activities on the part of the detenu and his associates during a span of four years which have made him a menace to the society. It is true that they are facing trial or the matters are still under investigation. That only shows that they are such dangerous characters that people are afraid of giving evidence against them. To bring out the gravity of the crimes committed by the detenu, we would just mention four instances. On November 19, 1979 Smt. Anupam Chander of B 5/10, Safdarjang Enclave reported that she was robbed of her gold chain near East of Kailash and on investigation the petitioner along with his associates was arrested for this high handed robbery and there is a case registered against them which is pending trial. Just a month after i.e. on December 11, 1979, one Munna of Lajpat Nagar reported that he was robbed of his wrist watch and cash by three persons who were travelling in a three wheeler. On investigation, the petitioner and his associate Rajendra Kumar were arrested and the police recovered the stolen property. They are facing trial in these cases. On July 18, 1981 717 Kumari G. Radha reported that she had been robbed of her gold chain and a pair of tops in Lajpat Nagar at the point of knife by persons in the age group of 21/22 years. On investigation, the petitioner and his associate Rajendra Kumar were arrested and the entire booty was recovered. The case is still under investigation. It appears that the detenu was enlarged on bail and two days after i.e. on July 20, 1981, he was again arrested on the report of Smt. Ozha that she was robbed of her gold chain near Shanti Bazar, Khokha Market, Lajpat Nagar by two persons in the age group of 21 25 years at the point of knife. On investigation, the petitioner and his companion Rajendra Kumar were arrested and she identified them to be the culprits and the booty was recovered from them. The case is under investigation. There have been similar incidents of a like nature. What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control. Whenever there is an armed hold up by gangsters in an exclusive residential area like Greater Kailash, Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist watch or cash, or ladies relieved of their gold chains or ornaments at the point of a knife or revolver, they become victims of organised crime. There is very little that the police can do about it except to keep a constant vigil over the movements of such persons. The particular acts enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order. The contention that the facts alleged in the grounds of detention did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further that they were vague, irrelevant or lacking in particulars, cannot be accepted. A bare perusal of the grounds of detention along with the particulars 718 of the 36 cases furnished in the accompanying chart, shows that the grounds furnished were not vague or irrelevant or lacking in particulars or were not adequate or sufficient for the subjective satisfaction of the detaining authority. In the result, the petition must fail and is dismissed. N.V.K. Petition dismissed. [/INST]The respondents were the heirs and legal representatives of one of the directors of a Company in liquidation. When the company was ordered to be wound up, the Official Liquidator took out summons under section 543 (1) of the Companies Act against its directors for a declaration that the said directors were guilty of misfeasance and breach of trust and also for an order directing them to repay or restore the money or property of the company in liquidation which they were alleged to have retained wrongfully. During the pendency of the proceedings one of the directors died intestate leaving behind the respondents as his heirs and legal representatives. At the instance of the Official Liquidator the Company Judge passed an order substituting the respondents in place of the deceased director. Allowing the respondents ' appeal, a Division Bench of the High Court held that no further action in the misfeasance proceedings could be taken against the legal representatives of the deceased director. In coming to this conclusion the High Court purported to follow the decision of this Court in Official Liquidator vs P.A. Tendolkar (dead) by L. Rs.; , Allowing the Appeal, ^ HELD: The liability arising under the misfeasance proceedings is founded on the principle that a person who has caused loss to the company by an act amounting to breach of trust should make good the loss. Section 543 of the Act provides for a summary remedy for determining the amount payable by such person on proof of the necessary ingredients. The section authorises the Court to direct such persons chargeable under it to pay a sum of money to the Company by way of compensation. This is not a provision intended to punish a man who has been found guilty of misfeasance but is only intended for compensating the company in respect of the loss occasioned by his misfeasance. Whenever there is a relationship based on contract, quasi contract, some fiduciary relation or a failure to perform a duty, there is no 212 abatement of the liability on the death of the wrong doer. When once the liability is declared, it is open to the Official Liquidator to realise the amount due by resorting to section 634 of the Act and section 50 of the Code of Civil Procedure. In Tendolkar 's case this Court did not consider the effect of section 634 of the Act which made the relevant provisions of the Code of Civil Procedure relating to execution of decrees applicable to orders passed by the Court under the Act. [223 C F] At the conclusion of the proceedings under section 543 a declaration of the liability is made. Such declaration partakes of the character of a decree in a suit. When once such declaration is made it can be enforced under section 634 of the Act and where the order made by one court has to be executed by another court the procedure prescribed by section 635 of the Act has to be followed. In the course of such execution proceedings the provisions of section 50 of the Code of Civil Procedure have to be applied when the person who is made liable dies before the order is satisfied and the liability of the legal representatives should be determined accordingly. [223 G H] Official Liquidator, Supreme Bank Ltd. vs P.A. Tendolkar (dead) by L.Rs, & Ors. ; , , applied. Aleykutty Varkey Tharakan & Anr. vs Official Liquidator Shiwalik Transport Co. Ltd. (in liquidation) vs Thakur Ajit Singh & Ors., [1978] 48 Comp. 465, approved. </s>
<s>[INST] Summarize the judgementl Appeal No. 1827 of 1967. Appeal by special leave from the judgment and order dated the '29th April 1966 of the Rajasthan High Court at Jodhpur in D. B. ,Civil Regular First Appeal No. 57. U. N. Trivedi and Ganpat Rai, for the Appellants. Sobhagmal Jain, for the respondent. The Judgment of the court was delivered by MATHEW, J. This is an appeal by special leave against the judgment and decree of the High Court of Rajasthan, setting aside decree for recovery of damages under the Patel Accidents Act, 1855 hereinafter referred to as the 551 Navneetlal was a resident of Udaipur. He was in the employment of the State of Rajasthan and was, at the material time, working in the office of the Executive Engineer, Public Works Department, Bhilwara as a Store Keeper. In connection with the famine relief works undertaken by the department he was required to proceed to Banswara. For that purpose he boarded truck No. RJE 131 owned by the department from Bhilwara on May 19, 1952 and reached Chittorgarh in the evening. Besides himself, there were Fateh Singh Fundilal and Heera Singh, the driver, cleaner and a stranger in the truck. On May 20, 1952, they resumed the journey from Chittorgarh at about 11 A. M. and reached Pratapgarh in the same evening. The truck started from Pratapgarh to Banswara at about 10 A.M. on May 21, 1952. After having travelled for 4 miles from Pratapgarb, the engine of the truck caught fire. As soon as the fire was seen the driver cautioned the occupants to jump out of the truck. Consequently, Navneetlal and the other persons jumped out of the truck. While doing so, Navneetlal struck against a stone lying by the side of the road and died instantaneously. Parwati Devilwidow of Navneetlal brought a suit against the State of Rajasthan for damages under the provisions of the Act, The plaintiff alleged that it was on account of the negligence of the driver of the truck that a truck which was not road worthy was put on the road and that it caught, fire which led to the death of Navneetlal and that the State was liable for the negligence of its employees in the course of his employment. The plaint also alleged that the decreased had left behind him his widow, , namely, the plaintiff, two minor sons,one minor daughter and his parents. The plaintiff claimed damages to the tune of Rs. 20,000./ and prayed for a decree for that amount. The State contended that the truck was quite in order when it started from Bhilwara and even when it started from Pratapgarh to Banswara and that if it developed some mechanical troubles suddenly which resulted in its catching fire, the defendant was not liable as there was no negligence the part of the driver. The trial court found that the act of the driver in putting the truck on the road was negligent as the truck was not roadworthy and since the driver was negligent, the, State was vicariously liable for his act. The Court assessed the damages at Rs. 14,760/ and granted a decree for the amount to this plaintiff. It was against this decree that the State appealed to the High Court. The High Court came to the conclusion that the plaintiff had not proved by evidence that the driver was negligent, that the mere fact that the truck caught fire was not evidence of negligence on his part and that the maxim res ipsa loquitur had no application. The Court said that the truck travelled safely from Bhilwara to Pratapgarh and that the engine caught fire after having 552 travelled a distance of 4 miles from Pratapgarh and that there was nothing on record to show that the engine of the truck was in any way defective or that it was not functioning properly. The Court was of the view that the mechanism of an automobile engine is such that with all proper and careful handling it can go wrong while it is on the road for reasons which it might be difficult for a driver to explain. The Court then discussed the evidence and came to the conclusion that no inference of negligence on the part of the driver was possible on the basis that the engine of the truck got heated of and on and that water was put in the radiator frequently, or that it took considerably long time to cover the distance between Bhilwara and Chittorgarh and that between Chittorgarh and Pratapgarh. The High Court therefore, allowed the appeal. The main point for consideration in this appeal is, whether the fact that the truck caught fire is evidence of negligence on the part of the driver in the course of his employment. The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damage,,, if the proper inference to in drawn from the circumstances which are known is that it was caused by the negligence of the defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies. The maxim is stated in its classic form by Erle, C. J. " Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. " The maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that if the phrase had not been in Latin nobody would have called it a principle (2). The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebutting from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the dependent responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant. But though the parties ' relative access to evidence is an influential factor, it is not controlling. Thus the fact that (1) See SCOtt vs London St. Katherine Docks ; , 601. (2) See Ballard vs North British Railway Co. 1923 section C. (H.L.) 43. 553 the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him if the odds otherwise point to his negligence (see John G. Fleming, The Law of Torts, 4th ed., p. 264). The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway vs section Wales Transport(1). The plaintiff merely proves a result, not any particular act or. omission producing the result. If the result in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff Will be entitled to succeed unless the defendant by evidence rebuts that probability. The answer needed by the defendant to meet the plaintiff Is case may take alternative forms. Firstly, it may consist in a positive explanation by the defendant of how the accident did in fact occur of such a kind as to exonerate the defendant from any charge of negligence. It should be noticed that the defendant does not advance his case inventing fanciful theories, unsupported by evidence, of how the event might have occurred. The whole inquiry is concerned with probabilities and facts are required, not mere conjecture unsupported by facts. As Lord Macmillan said in his dissenting judgment in Jones vs Great Western (2) "The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for it sessense is that it is a mere guess. An inference, inthe, legalsense, on the other hand,is a deduction from the evidence, and if it is are a sonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved. " In other words, an inference is a deduction from established facts.and an assumption or a guess is something quite different but not necessarily related to established facts. (1) [1950] 1 All England Reports 392, 399. 7 M 45 Sup CI/75 (2) 554 Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm. Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipssa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance (1). Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John, G. Fleming, The Law of Torts,4th ed., p. 260). We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver. Generally speaking, an ordinary road worthy vehicle would not catch fire. We think that the driver was negligent in putting the vehicle on the road. From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle, took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh. The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there v as some defect in it. The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara. It is clear that the driver was in the, management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident. In these circumstances, we think that the maxim res ipsa loquitur is attracted. It was, however, argued on behalf of the respondent that the State was engaged in performing a function appertaining to its character as sovereign. as the driver was acting in the course of his employment in connection with famine relief work and therefore, even if the driver (1) See Millner : "Negligence in Modern Law". 555 was negligent, the State would not be liable for damages. Reliance was placed on the ruling of this Court in Kasturilal Ralia Ram Jain vs State of Uttar Pradesh (1) where this Court said that the liability of the State for a tort committed by its servant in the course of his emp loyment would depend upon the question whether the employ ment was of the category which could claim the special characteristic of sovereign power. We do not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today. Its historic and jurisprudential support lies in the oftquoted words of Blackstone(2) : "The king can do no wrong. The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing : in him is no folly or weakness". In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court(3) : "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. " Today hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so called sovereign and proprietary or commercial functions for determining the liability of the State. We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work. In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff respondent there were not impleaded within the period of limitation. In the result, we set aside the decree of the High Court, restore the decree and judgment passed by the District Judge and allow the appeal with costs. S.B.W. (1) ; (2) Blackstone, Commentaries (10th ed., 1887) (3) Kawananaka V. Polyblank, ; , 353. Appeal allowed. [/INST]V, the father of the appellants had a brother R who died childless leaving behind him his widow, N. After R 's death a series of litigation started between V & N. V filed a suit in 1913 against R. for waste committed by her husband 's estate and was appointed a receiver in that suit. In that suit, he got a decree, V as receiver filed 3 suits on the foot of 3 mortgages in favour of R. In execution of the decrees, 3 valuable properties were purchased. These three properties are the subject matter of the present appeal. V died in 1947 and N in 1951 after executing a will bequeathing in favour of her brother S all her properties. S filed the suit out of which this appeal arises, for pos session of the properties bequeathed to him under the will and for mesne profits. The Sub judge held that the said properties became accretions to the main estate of R and therefore, the plaintiff was entitled only to an account of the income from these properties till the death of V. On appeal, the High Court allowed the appeal in part. Before this Court four points were raised by the appellants : (I) The High Court committed an err or in not hearing the whole appeal but confining the hearing merely to the points on which the finding was called for from the lower court. (2) a portion of the properties which was lost to the estate due to N 's negligence of not paying the land revenue, should be debited against her share in them. (3) the cost incurred by V in the suit and in the execution proceedings should have been taken into account in allocating the properties between the appellants and the respondents and (4) that the widow N, bad treated the properties as accretion to the husband 's estate and therefore, the appellants are entitled to the whole of the property. Allowing the appeal, HELD : (1) When a finding is called for on the basis of certain issues framed by the Appellate Court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance. [597 E) Gopi Nath Shukul vs Sal Narain Shukul, A.I.R. 1923 Allahabad 384, referred to. (2) A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wilful waste, she is answerable to no one. In her lifetime, the reversionary right is a mere possibility or spes successionis. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, there , fore, impossible to contend that for any loss to the estate due to the negligence on the part of the widow, he should be compensated from out of the widow 's separate properties. He is entitled only to the property left on the date of the death of the widow. [599 C; FG] (3) The income received by V and the amounts spent for the suit and the execution proceeding were taken into account at the time of settlement of accounts and it was open to V to realise the excess amount from the estate of R. It is not now open to the appellants to claim that these amounts should be separated from the amount of the decree and should be added to the amount of principal and interest accrued during the lifetime of R. [600 A C] (4) From the evidence, it is clear that the widow did not show any intention to treat the income from, the husband 's estate as an accretion to that estate. [601D] Akkanna vs Venkayya, I.L.R. , referred to. The appeal was sent back to High Court for hearing afresh. </s>
<s>[INST] Summarize the judgements Nos. 98, 99, 100 and 101 of 1950. 139 Appeals from the orders of the High Court of Judicature at Patna (Manohar Lall and Imam JJ.) in Miscellaneous Ap peals Nos. 108 to 111 of 1948. Shambhu Barmeswar Prasad and Ramanugrah Prasad for the appellants. H.J. Umrigar for the respondents. January 12. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. The decision of these four ap peals, which are connected with each other and which have arisen out of orders made by the High Court of Patna in four Miscellaneous Appeals, depends on the interpretation of section 7 of the Bihar Moneylenders (Regulation of Transac tions) Act, 1939. The facts which have led to the appeals are found brief ly stated in the petition filed by the present appellants in the 3rd Court of Sub Judge, Patna, and may be re stated here for convenient reference : "The father of the petitioners borrowed Rs. 40,000 from the guru (ancestor) of the decree holder under mortgage bond, dated 11 1 1893. Out of Rs. 40,370 7 6 interest and compound interest up to 4 1 1910, Rs. 32,370 7 6 was paid in cash and for the balance Rs. 8,000 interest and Rs. 40,000 principal, i,e., for Rs, 48,000 a Mortgage Suit No. 14 of 1910 was filed in1st Court of the Sub Judge, Patna, and in lieu of the claim and cost of the said suit two fresh mortgage bonds were executed on 11 7 1910, viz., one for Rs. 40,000 and the other for Rs. 9,488 and the latter bond was satisfied by payment of Rs. 15,835 in cash. With respect to the above bond of Rs. 40,000, dated 11 7 1910 the petitioners paid Rs. 38,530 13 6. Mort , gage Suit No. 110 of 1927 was brought in the 3rd Court of the Sub Judge, Patna, and a decree for Rs. 58,012 2.0 was passed on 9 7 1929. Out of this Rs. 5,000 was paid in cash and for the balance of Rs. 53,012 12 0 one mortgage bond dated 6 10 1931 was executed for Rs. 42,000 and on the same date two 140 hand notes were executed, viz., one for Rs. 5,000 and one for Rs. 6012 2 0. One Suit No. 14 of 1933 for both the hand notes was brought in 3rd Court of the Sub Judge and a decree for Rs. 15,008 2 0 was passed on 28 2 1935. This decree is under execution. " When the decree holder sought to execute the money decree by attachment and sale of the judgmentdebtors ' properties stating that they were subject to a mortgage lien of Rs. 62,272 13 0 under the mortgage bond dated 6 10 1931, the two judgment debtors, who are brothers, filed objec tions under sections 11 and 16 of the earlier Bihar Money lenders Act III of 1938 and section 47 of the Civil Procedure Code. The petitions (two by each of them) were filed separately by the brothers. They urged that on a proper calculation under section 11 no lien was subsisting on the properties owing to payments made towards the mort gage debt amounting to Rs. 92,394 2 0. The Subordinate Judge held that this plea of the judgment debtors could not be entertained in the Miscellaneous case before him relating to the execution and all that could be done was to notify the mortgage encumbrance without deciding anything as to the correctness of the amount claimed to be due under it; and this conclusion was partly based on the fact that section 16 of the Act had been declared by the High Court void. Ap peals taken to the High Court were dismissed. The judgment debtors thereupon preferred an appeal to the Feder al Court, contending that sections 7 and 13 of the new Act (corresponding to sections 7 and 11 of the old Act)were applicable and that it was the duty of the court to estimate the value of the property after making the necessary calcu lations under section 7 with reference to the lien. The decision of the Federal Court is reported in Ramnandan Prasad Narain Singh and Another vs Kulpati Shri Mahanth Goshwarni Madhwanand Ramji(1). The case was remitted back to the High (1) 141 Court, giving liberty to the appellants to file an applica tion under section 13. In answer to a fresh application for execution dated 2 7 1042, the two brothers filed the same objections as before. Miscellaneous Cases Nos. 45 and 46 of 1942 related to sections 7 and 13 of the Bihar Money lenders Act and Miscellaneous Cases Nos. 50 and 52 of 1042 related to the objections under section 47 of the Code of Civil Procedure. The Subordinate Judge held that the amount of the loan should be taken as the amount mentioned in the mortgage deed of 1931 and not the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond. He determined the market value of the several properties given as security, adopting 16 times the net income as the basis. Appeals to the High Court were numbered as M.A. 108 to 111 of 1943 and they were heard by Manohar Lall and Imam JJ. They modified the order of the lower Court in certain re spects. Even according to them the amount of the loan was what was mentioned in the mortgage bond of 6 10 1931, but as a sum of Rs. 11,855 3 0 had been repaid expressly towards the principal amount after the date of the bond, that amount became reduced to Rs. 28,150. Adding an equal sum by way of interest which according to them was the maximum amount, permitted to be allowed under section 7 of the Act, the total liability was stated to be Rs. 56,300 and a charge was declared on the property for this amount. They also directed that the valuation of the property should be fixed at twenty times the net income and not sixteen times. It is from this order that the present appeals have been preferred. Two points were urged on behalf of the appellants, namely (a) that the decree holder was barred by construc tive res judicata from contending that the construction placed upon section 7 by the judgmentdebtors was wrong; and (b) that in applying section 7, we must consider the origi nal amount of loan of Rs. 40,000 given in the year 1893 and allow the claim 142 of interest only for that maximum sum, after taking into account all sums paid by the appellants and their predeces sors towards interest since 1893. The first point is entirely without substance. When the decree holder contended that section 11 of the Bihar Money lenders Act, 1938, was declared void and ultra vires and that therefore section 7 of the new Act which corresponded to section 11 was also inapplicable, the judgment debtors pleaded that they were entitled to the benefit of section 7 of the new Act. The Federal Court held in Ramnandan Prasad Narain Singh and Another vs Kulpati Shri Mahanth Goshwami Madhwanand Ramji(1) that the judgment debtors (present appellants) were entitled to claim the benefit of the provi sions of the new Act when the executing court proceeded under section 13 to determine the value of the properties to be sold. The correct interpretation of section 7 was not in question between the parties. To say that the appellants were entitled to take advantage of the provisions of section 7 is entirely different from the contention that the inter pretation sought to be put by them on section 7 was the right one. The Federal Court was not dealing with any question of interpretation at all. It is impossible to see where the doctrine of constructive res judicata comes in, so as to be of help to the appellants. The second question raised on their behalf relates to the true meaning of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act VII of 1939, which is in these terms: "7. Notwithstanding anything to the contrary con tained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money lender before or after the commencement of this Act in respect of a loan advanced before or after the com mencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, (1) 143 which together with any amount already realised as interest through the court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by, such document. " In the present case, the original loan of Rs. 40,000 was advanced as early as 11 1 1893. The appellants j contend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest. On the other hand, the decree holder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mortgage bond dated 8 10 1931, namely Rs. 42,000. Whichever method of calculation is adopted, it must be remembered that it has to be made not for the purposes of passing any decree on the mortgage loan, but for estimating under section 13 of the Act the value of the properties to be brought to sale in execution of the money decree against the appellants. As pointed out by Sir Maurice Gwyer C.J. in Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Otherse), "Section 7 of the Act of 1937 is no doubt extremely obscure and illdrawn. " The true intention of the framers of the Act is somewhat difficult to gather. But the Patna High Court has been consistently placing upon the section an interpretation which is opposed to the contention of the appellant in these proceedings. The point came up expressly for decision in Singhesh war Singh and Others vs Madni Prasad Singh Others(2) where a mortgage bond was executed on 31 8 1922 for a sum of Rs. 2,000 which was the balance of the principal and inter est due under a mortgage bond of the 11th of October, 1912, for (1) (2)A.T.R. 1940 Pat. 65. 19 144 Rs. 1,391. The judgment debtors raised the plea that the court should go back to the earlier bond of 1912 and that as a sum of Rs. 1,512 had been paid as and by way of interest towards that bond, no decree could be passed against them for more than the principal sum of Rs. 1,391. The learned Judges rejected this contention and took the amount stated in the document of 1922, namely Rs. 2,000, as the loan and they held that the plaintiffs were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond. The same view was taken in Lal Singh vs Ramnarain Ram and Others(1) and the plain tiffs were awarded a decree on the basis that the loan was to be taken as Rs. 2,909 8 0 which was the amount for which the hand note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand note of the year 1924. The case reported in Madho Prasad Singh vs Mukutdhari Singh and Others(2) lays down the same position. The Full Bench decision in Deo Nandan Prasad vs Ram Prasad (3) rei terates the same view, pointing out the distinction between sections 7 and 8 of the Act and stating that while under section 8 we can go to the original loan in spite of a later document, under section 7, the loan must relate to the document on which the suit is based, that is, the final document and not the original one. In each one of these cases, the question of the true meaning of section 7 was pointedly considered. This construction no doubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount. Gwyer C.J. points out this difficulty at page 59 in the case Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Others(4). If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legis lature to intervene. But far from doing so, it has (1) , Patna 618. (2) (1941) 193 I.C.661. (4) [1940] F.C.R.39. 145 acquiesced, during all these years in the construction which the Patna High Court has been placing upon the section from the very next year after the enactment of the statute. Having regard to the great obscurity in the language em ployed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the intention of the Legislature. The appeals fail and are dismissed with costs, only one set in all of them together. Appeals dismissed. Agent for the respondent ': R.C. Prasad. [/INST]A preliminary decree was passed in the appellant 's suit for redemption of a mortgage. The decree specified the amounts due as principal and interest, provided for payment of future interest at 3 % from the date of decree till date of realisation, and payment of the amount due by a certain date. It also provided that, if payment was made by that date, a final decree would be passed in favour of the appellant, but that, if the payment was not so made, the respondent would be entitled to apply for a final decree for foreclosure. The appellant appealed against the preliminary decree to the High Court and applied for stay of the order requiring him to deposit the decretal amount within the date fixed by the trial court, and the High Court granted stay on his undertaking to pay 9 % interest instead of 3 %, during the period of stay. Subsequently, the High Court dismissled the appeal and confirmed the preliminary decree, but, the additional amount due for the period of stay on account of the undertaking, was not included by the High Court in the preliminary decree. The appellant then applied for a final decree in his favour, after depositing a sum which was more than the amount to be deposited when calculated according to the preliminary decree, but was less than the amount when circulated according to the condition imposed by the High Court in its stay order. The trial Court however directed that a final decree for foreclosure in favour of the respondent be drawn up. On appeal, the lower appellate court ordered that a final decree be drawn up in favour of the appellant. In second appeal, the High Court took the view that the appellant had to deposit the entire amount due on the date of the deposit, as per its direction in the stay order, and as there, was a shortage on the date of deposit though the shortage was made up after the judgment of the lower appellate court only a final decree for foreclosure could be passed in the respondent 's favour. In appeal to this Court, HELD:The appellant was entitled to a final decree. In order that a final decree may be passed in favour of the appellant, he had to carry out before a final decree is passed, the terms of the preliminary decree and to pay "the amount adjudged due in respect of the subsequent costs, charges, expenses and interests" under O.XXXIV, r. 7(1) (e) (i) and (ii) of the Civil Procedure Code. The appellant had carried out the terms of that decree by the deposit made by him and he had nothing to pay on account of Subsequent charges, costs, expenses and interest, because, the extra interest of 6% was not made a part of the decree, and it could not come within the words "in respect of subsequent costs, charges, expenses and interests. " as it arose out of an independent order of the High Court 110 and was only payable on account of the undertaking for purposes of stay. Further, such subsequent costs. charges, expenses and interest have to be adjudged before the mortgagor is asked to deposit the amount. As regards the appellant 's undertaking in the stay matter the court could insist on his honouring it before the final decree is passed. [112 F 113 C]. </s>
<s>[INST] Summarize the judgementons Nos. 439 & 440 of 1955. Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. H. J. Umrigar and R. A. Govind, for the petitioner in Petition No. 439 of 1955. J. B. Dadachanji, for the petitioner in Petition No. 440 of 1955, M. C. Setalvad, Attorney General of India, B. Sen and R. H. Dhebar, for the respondents. May 8. The judgment of section R. Das C. J. and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment, SINHA J. These petitions under article 32 of the Constitution challenge the constitutionality of some of the provisions of the Bombay Police Act, XXII of 1951, (which hereinafter will, be referred to as "The Act"), with special reference to section 56, as also of the orders passed against them externing them under that section of the Act. In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana, the Deputy Superintendent of Police and Sub Divisional Police Officer, Bhivandi Division, Bhivandi, District Thana, and the State of Bombay are respondents 1, 2 and 3. The petitioner is a citizen of India and carries on trade in grass at Bhilad, a railway station on the Western Railway. On 21st January 1955 the Deputy Superintendent of Police and Sub Divisional Police Officer, Bhiwandi Division, served a notice under section 56 of the Act in the following terms: 535 No. Ext. 3/1 of 1955 Office of the S.D.P.O. Bhiwandi, Bhiwandi, dated 21 1 1955. (I) I, Shri C. V. Bapat, Deputy Superintendent of Police and Sub Divisional office Bhiwandi Division, District Thana, do hereby issue a notice to you, Shri Bhagu Dubai Bhandari alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad District Thana, that it is proposed that you should be removed outside the District of Thana and you should not enter or return to the said district for a period of two years from the date of the order to be made under section 56 of the Bombay Police Act, 1951 for the following reasons: (II) Evidence is forthcoming that your following activities have caused and are calculated to cause alarm, danger and harm to person and property in Bhilad and the surrounding areas: (III) You have been dealing in smuggled foreign liquor and maintained a veil of secrecy by criminal intimidation and physical violence to the villagers and other right thinking persons. (2) Your activities have been in continuation of your similar activities for the. last five years, given as under: (a) You criminally assaulted persons with the help of your associates and did violent acts in order to strike terror into the hearts of the villagers, so that they should not challenge you or your men. (b) You have been criminally assaulting and intimidating Central Excise and Custom officials with the help of your gang, so as to stop them from looking into your anti national, anti social and illegal activities. As a result of your unlawful and dangerous activities you are held in terrific awe by the Central Excise and Custom Officers and men and villagers in Bhilad area who are continuously labouring under grave apprehension of danger to their per son and property. (c) You and your associates were and are making use of criminal intimidation against the villagers in order to prevent them from having recourse to legal means. 536 (III) That you and ' your associates are also understood to be in possession of unlicensed firearms which has been causing considerable alarm and spreading a feeling of insecurity of life and property in the mind of villagers from Bhilad and neighbouring villages and Central Excise and Customs employees. (IV) The witnesses are not willing to come forward and to give evidence against you by reason of apprehension of danger and harm to their person and property. (V) Now, I Shri C. V. Bapat, Deputy Superintendent of Police and Sub Divisional Police Officer, Bhiwandi Division, District Thana in exercise of the authority conferred upon me under section 59 of the Bombay Police Act, 1951 by the District Magistrate Thana under his number,MAG. 2/ EX dated 17 1 1955 do hereby direct you to appear before me at 11 a.m. on 27 1 1955 at Dahanu in the office of the Sub Divi sional Police Office Dahanu for tendering your explanation regarding the said allegation. You are also entitled to appear before me by advocate for the purpose of tendering your explanation and examining witnesses, produced by you. Signed and sealed this day of 21st Jan. 1955. Sd. . . . . Deputy Superintendent of Police & Sub Divisional Police Officer, Bhiwandi. To Shri Bhagu Dubal Bhandari @ Bhagwanbhai Dullabhai Jadhav of Bhilad, District Thana". By that notice the petitioner was called upon to appear before the said police officer on the 27th January 1955 in order to enable the former to offer such explanation and examine such witnesses as he may be advised. In pursuance of that notice the petitioner appeared, before the police officer aforesaid and the hearing of his case took place on different dates. The petitioner claims to have examined seven "respectable persons" to testify on his behalf. Ulti mately on the 11th July 1955 an order was passed by the District Magistrate of Thana externing the petitioner outside the Thana District. The order of 537 externment is exhibit D to the petition and contains the recitals that after considering the evidence before him and the explanation offered by the petitioner the District Magistrate of Thana (the 1st respondent), was satisfied that the petitioner "engages in giving threats and assaulting Central Excise and Customs Officials men and residents of Bhilad and surrounding villages and indulges in illicit traffic of foreign liquor from Daman" and that in his opinion "witnessess are not willing to come forward to give evidence in public against the said Shri Bhagubhai Dul labhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad by reason of apprehension on their part as regards the safety of their person and property". It is this order which is challenged as illegal and ultra vires and against which the petitioner has moved this Court for an appropriate writ, direction or order against the respondents " prohibiting them, their servants and agents from acting upon or taking any steps in enforcement, furtherance or pursuance of the said order and from interfering in any manner with the petitioner 's right to reside in Bhilad and carry on his business. The petitioner had preferred an appeal to the Government against the said order of externment. But the appeal was dismissed on the 9th September 1955. Against the said order the petitioner moved the High Court of Judicature at Bombay under article 226 of the Constitution, but the said application was also dismissed in limine by the High Court by its order dated the 7th November 1955, The District Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in this Court in answer to the petition. He swears that he had passed the externment order complained against after perusing the police reports and going through the explanation offered by the petitioner and the statements of the witnesses produced by him and on hearing his advocate. He further states in the affidavit that the general nature of the material allegations against the petitioner was given to him, that the material given to him was clear and by no means vague. Only the names of the persons who had given the, 538 information against the petitioner were not disclosed to him inasmuch as those persons were not prepared to. come out in the open and depose against him in public as witnesses. He was satisfied that witnesses were unwilling to come forward to give evidence in public against the petitioner. He also affirms that the petitioner 's movements and acts were not only causing alarm, danger or harm to personal property of the general public round about Bhilad, but also that his movements and acts were causing danger and alarm to public servants of the police force and the Central Excise who were doing very responsible work at Bhilad which is on the borderline of the Indian territory adjoining Daman area which is Portuguese territory. He admits that the petitioner was discharged by 'the Judicial Magistrate, First Class, Umbergaon because the witnesses did not appear and depose against 'him for fear of the petitioner. In Petition No. 440 of 1955, Kunwar Rameshwar Singh is the petitioner and the respondents are 1. Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch (I) C.I.D., Greater Bombay, 2. The Commissioner of Police, Greater Bombay, and 3. The State of Bombay. The petitioner is a citizen of India and claims to be a "social worker" connected with several social organisations. He alleges that his main social activity has been the improvement of the lot of prostitutes and singing girls in certain quarters 'of Bombay On the 2nd November, 1954 the petitioner was served with a notice under section 56 read with section 59 of the Act (exhibit A to the petition) setting out the allegations against him and calling upon him to ex plain those matters. In pursuance of the said notice the petitioner appeared before the Superintendent of Police to show cause against the proposed action against him. Ultimately on the 4th January, 1955 the Commissioner of Police, the second respondent, passed an order to the effect that the petitioner should remove himself from the limits of Greater Bombay 539 within seven days. That order is marked exhibit H and is to the following effect. " Order of Externment (Section 56 of the Bombay Police Act, 1951) Police Station: Nagpada No. 7/c/43/1955. Whereas the Commissioner of Police, Greater Bombay, has directed by his order, dated the 13th August, 1954 and 11th December 1954, made under sub section (2) of section 10 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) that the powers, functions and duties under the said Act shall also be exercised by the Deputy Commissioners of Police, Greater Bombay. And whereas evidence has been placed before me, Deputy Commissioner of Police, Crime Branch (1), against the person known as Kunwar Rameshwar Singh, to the following effect: I. That since October, 1953 in the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay his movements and acts are causing alarm and harm to the persons residing in, carrying 'on business in, or visiting the said locality in that: (i) He with assistance of his associates some of them being Sk. Makbool Sk. Hussain, Abdul Rahiman, Suleman alias Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others, extort Money from women residing in and carrying on business either as prostitutes or singing girls in the said locality on threats of assault and of causing bodily injury to them; (ii) That he with the assistance of the said associates assault or threaten with assault the aforesaid women who do not comply with his demands for money; (iii) That in order to compel the aforesaid women to pay him the money demanded by him he also posts his associates at or near the places of business of the aforesaid women and prevent customers from entering the rooms of, such women; 70 540 (iv) That he with the assistance of his associates extort money from shopkeepers, hotel keepers, merchants and hawkers carrying on business in the said locality and from rent collectors of buildings occupied by the aforesaid prostitutes and singing girls by assaulting them or threatening them with assault and dislocation of business; (v) That he causes damage to the property of the said hotelkeepers and hawkers of the said locality who do not pay him money demanded by him; (vi) That he accosts persons visiting the rooms of singing girls in the said locality for the purpose of entertainment and demand money from them under threats of assault and of preventing them from visiting the said locality; (vii) That he has committed several acts of the nature mentioned above. That witnesses to the above incidents are not willing to come forward to give evidence in public against him as they apprehend that they will be assaulted by him and/or by his associates if they do so. And whereas I have heard the said person and considered the explanation tendered by him and also the evidence given by the witnesses produced by him and have heard his counsel. And whereas after considering all the evidence and explanation detailed above, I am satisfied that: The Movements and acts of Kunwar Rameshwar Singh since October, 1953, are causing alarm and harm to the persons residing in carrying on business in or Visitin the locality known as Falkland Road, Foras Road Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining thereto in Greater Bombay and that he indulges in activities mentioned above. And whereas in my opinion witnesses are unwilling to come forward to give evidence in public against the said person by reason of apprehension on their part as regards the safety of their persons; Now, therefore, in exercise of the powers vested in me under section 56 of the said Act, 1, Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch 541 (1) C.I.D., Greater Bombay himself hereby direct that the said Kunwar Rameshwar Singh shall remove outside the limits of Greater Bombay by Central Rly. (route) within seven days from the date of service of this order and I further direct that he shall not enter the said area of Greater Bombay for a period of two years from the date of this order without a permission in writing from the Commissioner of Police Greater Bombay, or the Government of Bombay. W. K. Patil, Dy. Commissioner of Police, Crime Branch (I) C.I.D. Greater Bombay". The order quoted above is a self contained one and discloses the nature of the allegations against him which he bad been called upon to explain. The petitioner preferred an appeal to the third respondent, the State of Bombay. But his appeal was dismissed on the 17th January 1955. The petitioner challenged the validity of the said order passed by the respondents by a petition under article 226 of the Constitution to the Bombay High Court, but it was dismissed on the 14th March 1955 after hearing. The judgment of the High Court is Exhibit D. The learned Judge of the Bombay High Court who dealt with the petition has set out briefly the main allegations of the petitioner and the affidavit in answer to the petition sworn to by the 1st respondent here. The learned Judge observed in the course of his judgment that in view of the averments in the petition and those in the affidavit in reply it was impossible for him to hold that the Deputy Commissioner of Police knew that witnesses were willing to give evidence against the petitioner. The petitioner went up on Letters Patent Appeal and a Division Bench consisting of the Chief Justice and another Judge of the Bombay High Court dismissed the appeal holding that once the opinion has been formed by the authority that witnesses were unwilling to give evidence in public against the petitioner, the court could not go behind that opinion. They also negatived the plea of want of bona fides in the 1st respondent who had initiated the proceedings. 542 The petitioner removed himself outside the limits of Greater Bombay. Having come to know that a warrant of arrest had been issued Against him in a certain pending case before the Presidency Magistrate, Fourth Court, at Girgaum, Bombay, on the 6th April 1955, the petitioner entered Greater Bombay to attend court but he was arrested under the Act for committing a breach of the externment order. He was prosecuted before the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under section 142 of the Act. He was convicted by the Magistrate and sentenced to nine months rigorous imprisonment by a judgment dated the 8th September 1955. The Magistrate 's judgment is Exhibit to the petition. The learned Magistrate overruled the petitioner 's contention that the order of externment passed against him was illegal, relying chiefly upon the judgments of the High Court referred to above, upholding the constitutionality of that order. As regards his defence that he had entered Greater Bombay in obedience to the warrant issued against him, the learned Magistrate observed that as a matter of fact, according to the statement of the petitioner 's counsel before him he had taken that step "to test the validity of the order". Secondly, the learned Magistrate has rightly pointed out that the petitioner should have obtained the previous permission of the Police Commissioner before returning to Bombay, as otherwise the order of externment would be rendered nugatory. The learned Magistrate also observed in the course of his judgment that no allegations of mala fides had been made against the police officers who bad initiated the proceedings against the petitioner. The petitioner went up in appeal to the High Court of Bombay which by its judgment dated the 5th October 1955 upheld the conviction and the sentence. The judgment of the High Court is Exhibit G to the petition. A Division Bench of the Bombay High Court repelled the contention on behalf of the appellant that the order of externment was invalid, relying chiefly upon the previous judgment of that very court upholding the constitutionality of the very order 543 impugned. Another matter referred to in the judgment of the High Court is rather significant. On behalf of the appellant reliance had been placed upon a letter alleged to have been sent to the petitioner by the Secretary to the Chief Minister granting permission to him to return to Bombay in order to see the Home Secretary. It was found on enquiry by the learned Government Pleader who intimated to the court that the alleged letter had not been signed by the Secretary to the Chief Minister and that no such letter had actually been sent to him. On that statement being made, the petitioner 's counsel did not press his contention that his return was after permission. The petitioner moved this Court for special leave to appeal against the said judgment of the High Court in Petition No. 601 of 1955. One of the grounds in the petition was that the High Court should have held that the externment order was illegal and that therefore the petitioner 's entry was lawful. A Constitution Bench of this Court by its order dated the 21st November 1955 dismissed the petition for special leave to appeal. This completes the statement of the case made on behalf of the petitioner. In answer to this petition the first respondent has sworn to the affidavit filed in this Court. It is necessary to state in some detail the facts stated in this affidavit which furnish the background to the whole case against the petitioner. The petitioner is said to be a native of Balrampur, District Gonda, Uttar Pradesh. After passing his school examination in 1940, he joined the then Royal Indian Navy in 1942. In the year 1946 while he was attached to section section Talwar in Bombay, be was "released from service". In 1947 he joined the B. B. & C. 1. Railway as a clerk and was removed from his post in July 1947 for having made baseless allegations against his superior officer. In 1949 he made an attempt to enter the police force of Greater Bombay, but that failed as he was found to be unreliable. Subsequently, in August 1950 he joined the State Transport Department as a clerk but had again to be removed from that post in April 1951. Later on, the petitioner obtained accommodation in 544 Bombay on a false representation that he was a refugee from Pakistan. He was prosecuted and convicted and sentenced to pay a fine of Rs. 30 or three months rigorous imprisonment in default. His appeal from that order of conviction and sentence to the High Court of Bombay was dismissed by a Division Bench in September 1954. On a similar false repre sentation he had obtained from the Custodian of Evacuee Property two shops in Bombay. Necessary proceedings had to be taken against him for evicting him from those shops. After his removal from Government jobs as aforesaid, the petitioner "came forward" as a social worker directing his activities mainly to "the redlight district" in certain quarters of Greater Bombay inhabited by over 10,000 public women. Along with his associates he started a norent campaign and resorted to violence with the help of so called volunteers who were themselves bad characters, externees, drunkards and persons with previous convictions. With the help of associates like those he moved in the "redlight district" and realised money from his victims by threat and intimidation. Thus by all questionable means the petitioner started extorting moneys by harassing the inmates of that district and those who frequented those quarters. The rest of the long affidavit running into 29 paragraphs is devoted to denying the allegations made by the petitioner that he had been a victim of police combination against him or that the procedure laid down by the law had not been followed or that the petitioner had not a fair and full opportunity of explaining his case to the authorities. The affidavit further asserts that witnesses who had given their statements to the police against the petitioner were not willing to come forward openly to depose against him and some of those witnesses who did turn up were prevailed upon by the petitioner to change their original statements made during the preliminary inquiries. On those averments it was submitted by the 1st respondent that the proceedings against him were regular and in accordance with the provisions of 545 the Act and that there was no merit in his contentions. These two petitions were heard along with Petition No. 272 of 1955 which is being disposed of by a separate judgment. In that case the order impugned had been passed under section 57 of the Act. Sections 56 to 59 of the Act are closely connected. The common arguments addressed to us by Shri Purshotham challenging the validity of sections 56 to 59 have been dealt with in that judgment and need not be repeated here. It is only necessary to deal with the provisions of the section impugned in these two cases, namely, section 56 of the Act, which is in these terms: "Whenever it shall appear in Greater 'Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section to the District Magistrate, or the Sub Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an. Offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit., direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the, outbreak or spread of such disease or to remove himself outside the area Within the local limits of his jurisdiction by 546 such route and within such time as the said officer may prescribe and not to enter or return to the said area from which he was directed to remove himself". In order to attract the operation of the section quoted above with special, reference to the portions relevant to these cases, it is necessary (1) that the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in that behalf, as the case may be, should be satisfied that the movements or acts of any person are causing or calculated to, cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force of violence or an offence punishable under Chapter XII, XVI or XVII, Indian Penal Code, or in the abetment of any such offence, and (2) that in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their parts as regards the safety of their person or property. When the officer concerned is satisfied about these two essential matters, he may direct such person to remove himself outside the local limits of his jurisdiction and not to return to the said area for a period not exceeding two years as laid down in section 58. But before passing such orders the person proceeded against under section 56 has to be given an opportunity of explaining matters against him by adducing such evidence as he may tender after he has been informed in writing as to the "general nature of the material allegations against him". Such a person is entitled to appear before the officer by an advocate or attorney for the purpose of tendering his explanation. and evidence. It has not been contended on behalf of the petitioners that they had not been given the opportunity contemplated by section 59. But grievance was sought to be made of the fact that particulars of the evidence against the petitioners and of their alleged activities have not been given to them. That argument has 547 been dealt with in the judgment in the other case. It is necessary therefore to deal only with the particular arguments advanced on behalf of each petitioner peculiar to his case. In Petition No. 439 of 1955, it was said that this Court had laid down in the case of Gurbachan Singh vs State of Bombay(1) as follows: "The law is certainly an extraordinary, one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein". The words "no witnesses" have been emphasized as supporting the argument that unless all the witnesses before the police are unwilling to give evidence in open court the provisions of section 56 cannot be taken recourse to. In our opinion, it is reading too much into the observations of this Court quoted above, made by Mukherjea, J. (as he then was). The learned Judge did not mean to lay down, and we do not understand him as having laid down, that unless each and every witness is unwilling to give evidence in open court, the provisions of section 56 are not available to the police. The words of section 56 quoted above do not lend themselves to that extreme contention. If such an extreme interpretation were to be put on that part of section 56, it is not difficult to imagine a situation where it will become almost impossible to apply that section to any case. It was next contended on behalf of the petitioner in this case that the section contemplates witnesses other than members of the police force and employees and officers of the Customs Department. It is said that it is the duty of the police force as of the employees of the Customs Department to brave all danger and to come out in the open even against desperate criminals to give evidence against them in court and to subject themselves to cross examination. That is a counsel of perfection which every member (1) 71 548 of the police force or every employee of the Customs Department may not be able to act up to. Furthermore, the terms of the section do not justify any such restricted meaning being given to the word "witness". Hence, in our opinion, there is no justification for the contention that members of the police force and employees and officers of the Customs Department must always come in the open and give evidence against criminals or potential criminals. If the officer concerned is satisfied that witnesses of whatever description they may be, are not willing to come out in the open, one of the essential conditions of the application of section 56 is fulfilled and it is no more necessary for them to stop to consider as to which class of persons those witnesses may come from. In Petition No. 440 of 1955 the learned counsel for the petitioner had a more uphill task in view of the fact that this very order impugned bad been examined in the criminal prosecution against the petitioner by the Presidency Magistrate and by the High Court on appeal and the petition for special leave to appeal to this Court had been refused. But it was argued on behalf of the petitioner that section 56 itself wag invalid as contravening the provisions of article 19 of the Constitution an argument which has already been dealt with by this Court in Gurbachan Singh vs State of Bombay(1) referred to above. In that case, Mukherjea, J. (as he then was) delivered the judgment of the court after examining the constitutionality of section 27(1) of the City of Bombay Police Act, (Bombay Act IV of 1902). The operative words of that section are almost exactly the same as those of section 56 of the Act. It is not therefore necessary to re examine the constitutionality of those very provisions in this case. It is enough to point out that no attempt was made in this Court to ;bake the authority of that decision. Shri Dadachanji, who appeared on behalf of the petitioner in this case faintly suggested that the petitioner had been proceeded against under the penal sec (1) ; 549 tion of the Act notwithstanding the fact that he had entered Greater Bombay in order to look after the case pending against him in which a warrant of arrest had been issued. But that is a closed chapter so far as the courts including this Court also are concerned inasmuch as his conviction stands conformed as a result of the refusal of this Court to grant him special leave to appeal from the, judgment of the Bombay High Court. He further contended that his conviction for his ' having entered Greater Bombay itself is an indication of the unreasonableness of the restriction and of the law under which the order of externment had been passed against him. But if the petitioner had only taken the course indicated by the law, namely, of obtaining the previous permission of the prescribed authority, he could have avoided the prosecution and the conviction. It must therefore be held that there is no merit in this contention also. For the reasons aforesaid it must be held that section 56 of the Act is not unconstitutional and that the orders passed against the petitioners are not invalid. These applications must stand dismissed. JAGANNADHADAS J. In view of the decision of this Court in Gurbachan Singh vs The State of Bombay(1), I agree that these petitions should be dismissed. But I think it right to add that if the matter were res integra I should have felt difficulty in upholding the validity of section 56(b) of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters, serious either because of the nature of the offence contemplated or the circumstances under which it is to be committed and so forth. I should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a (1) ; 550 period as two years. it has been said that there is a power of cancellation at any time vested in the officer concerned. Even so, I should have thought that the vesting of a power to extern, a person out of his home for so long a period without the obligation to review the order at some stated periodical intervals, say once in three months or six months, is prima facie unreasonable. Externment might appear on the surface not to be as serious an interference with personal liberty as detention. But in actual practice it may be productive of more serious injury to the person concerned or the rest of his family if he is the earning member. An externed person is virtually thrown on the streets of another place where be has got to seek his livelihood afresh. He has to start in a new society with the black mark of externment against him and may be driven thereby to more criminality. On the other hand, in the case of a person under detention, the State normally takes or is bound to take care of him, and in appropriate cases provides also for his family. In view, however, of the previous decision of this Court which is binding on me, I am prepared to accept the validity of section 56 of the Bombay Police Act, 1951, and of the orders of externment passed thereunder in these two cases. Petition dismissed. [/INST]Section 56 of the Bombay Police Act, 1951, is not unconstitutional and does not contravene the provisions of article 19 of the Constitution. Gurbachan Singh vs State of Bombay ( ; , followed. In order to attract the operation of the section the Officer concerned should be satisfied that the witnesses are not willing to come forward to give evidence in public, but it is not necessary to show that all the witnesses are unwilling to give evidence. The terms of the section do not justify any restricted meaning being given to the word "witnesses" and it is applicable to members of the police force and employees and officers of the Customs Department also. Gurbachan Singh vs State of Bombay ( ; , explained. Under the provisions of section 56 of the Bombay Police Act, 1951, an order of externment was passed against the petitioner by which he was directed to remove himself outside the limits of Greater Bombay and not to enter the said area for a period of two years without the prescribed permission; and subsequently he entered Greater Bombay in order to attend Court in a case pending against him in which a warrant of arrest had been issued. He was convicted for committing the breach of the externment order and he contended that his conviction was in itself an indication of the unreasonableness of the restriction. Held, that the restrictions cannot be said to be unreasonable, as the petitioner could have avoided the prosecution. and the conviction by obtaining the previous permission of the prescribed authority. Per JAGANNADHADAS J. If the matter were res integra should have felt difficulty in upholding the validity of section 56(b) of 534 the Bombay Police Act, 1951, in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters. I.should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a period as two years. </s>
<s>[INST] Summarize the judgementSpecial Leave Petition [Civil) Nos. 1 l(i50 58 of 1987. From the Judgment and Order dated 3 1.7. 1987 of the Madras High Court in Appeal against Order Nos. 54 1 to 544 and 558 to 562 of 1981. A.K. Sen, V. Krishnamurthy and V. Balachandran for the Petitioner. A. V. Rangam for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These are petitions under Article 136 of the Constitution seeking leave to appeal against the judgment and order of the High Court of Madras dated 31st July, 1987. The petitioner company undertook the work of widening and strengthening pavements in Nation Highway No. 7, Madurai Kanya kumari Road from Reaches 37.6 k.m. to '1 ', k.m. on the Madurai Kanyakumari Road and the work was divided into fourteen Reaches and 14 separate agreements were entered into between the petitioner and the Superintending Engineer, National Highways, Tirunelveli. respondent No. 3 to the present petitions. There is not much dispute on this point. At the relevant time, according to, the petitioner, the Superintending Engineer. National Highways, Salem was one Thiru Mohan. He entered into reference. He took up the matter for arbitration and called for statements from the parties. Statements were filed before him and evidence were also adduced before him. But before he could complete the adjudication he was transferred and was succeeded by one Thiru J.R. Cornelius, Superintending Engineer. The contention of the petitioner in this case was that he had no Jurisdiction to, proceed and complete the arbitration. It appears however, that he entered into the task of adjudication with the knowledge and consent of the petitioner and the petitioner had participated actively in the proceeding before him. From the notices served by Thiru Mohan previously and subsequently by Thiru Cornelius. it is apparent that the petitioner had knowledge of the change of the incumbent of the Superintending Engineer who was to arbitrate in the matter. This is evident from the documents appearing at pages 164 PG NO 465 and 165 of the present paper book and both the parties had notice of the succession in office. The arbitrator could not complete the award within time and there was need for extension of time. He wrote a letter to the petitioner on lst May 1977 stating "extension of time was necessary to pass orders on reference and hearing has been concluded". In reply to that fetter on 11th May, 1977 the petitioner agreed to such extension. The petitioner was content with that situation and never asked for any further or fresh opportunity either to make any submission or to adduce any evidence. In that light the arbitrator has made the award. This was challenged before the learned District Judge by means of a suit under sections 30 and 33 of the that the previous arbitrator Thiru Mohan having entered into reference and Thiru Cornelius had no jurisdiction to conclude. It was violative of the principles of natural justice, it was submitted. But as mentioned hereinbefore, the petitioner had knowledge of the change of the incumbent. He did not protest and the proceedings went on before Thiru Cornelius. It is apparent from the terms of the agreement between the parties that the Superintending Engineer of the Circle for the time being was the named arbitrator. The learned District Judge held that Thiru Cornelius was competent to pass the award. The High Court also upheld that and rejected the challenge to the award on this ground made by the petitioner. Shri A.K. Sen, learned counsel for the petitioners, urged before us that once an arbitrator had entered into reference, the next incumbent could not conclude the said arbitration proceeding without a fresh agreement. In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely, Thiru Cornelius; we are of the c,pinion, that this contention of Shri Sen cannot be entertained. It was contended that there was violation of the principles of natural justice. This objection cannot be entertained. If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiescence in the appointment made with full knowledge of all the circumstances. they will be precluded from objection~ to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence, explains Russell on Arbitration. 18th Edition at page 105. This was stated by the Judicial Committee long ago in Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa, 3 I.A. 209. See also the observations of P.B. Mukherji, J. in the decision of the Calcutta High Court PG NO 466 Calcutta, A.I.R. 1456 Calcutta 470 at 472. This Court held in N. Challappan vs Secretary, Kerala State Electricity Board and another; , that acquiescence defeated the right of the appellant at a latter stage. See also the observations of this Court in Prasun Roy vs The Calcutta Metropolitan Development Authority and another; , See Russell on Arbitration, 20th Edition, pages 432 435. Shri Sen contended that no notice was issued after the appointment of the new arbitrator. This was factually incorrect, as mentioned before. Then, it was said that the award was bad as it did not consider all the claims. This also cannot be entertained. It must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the award. There is no legal proposition which is the basis of the award, far less any legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The Court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitrator See Champsey Bhara B Company vs Jivray Ballo Spinning and Weaving Company Ltd., 50 I.A. 324 and the observations of Bachawat, J. in Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore, [ l967] 1 section C. R. 105 of this Court. In the facts and circumstances of the case, in our opinion, this award is not assailable. The High Court was, therefore, right in upholding the learned District judge 's dismissal of the challenge to the award. These petitions, therefore, fail and are dismissed accordingly ,without any order as to costs. N.P.V. Petitions dismissed. [/INST]In compliance with the decision of the Supreme Court in Dr. Pradeep Jain etc. vs Union of India B Ors. ; , and on the basis of the scheme approved by the Court, respondent No. 2 held an All India Entrance Examination for filling up 25 per cent seats in different Post Graduate Medical Colleges in the States and Union Territories and those run by public authorities. The scheme provided that cut off base should be 50 per cent marks. Out of about 2100 seats, only 500 could be filled. In the Writ Petition filed before this Court, the petitioner, an unsuccessful candidate at the aforesaid examination sought (1) a direction that clauses 11 and 15(g) of the Bulletin of Information, published by respondent No. 2 in this regard were illegal, unconstitutional and incompetent, (2) a writ of certiorari to quash the list of successful candidates for admission within 25% reserved quota, and (3) a writ of mandamus to the respondents to admit the petitioner and similarly placed other candidates against the 1500 odd seats left out due to the arbitrary decision/action of the respondents, contending that no seat should go unfilled. Disposing of the Writ Petition and a pending CMP in other disposed of Writ Petitions, HELD: 1.1 It is well settled that judicial determination is not to be tested by the touchstone of Article 14 of the Constitution. [388B] In the instant case since the bulletin is in accordance with the scheme approved by this Court, and the examination PG NO 385 PG NO 386 has been held following the terms thereof, the petitioner is not entitled to ask for quashing a part of the bulletin and the list of selected candidates. There is no tenable challenge against the examination. [387H, 388A] 1.2 Since in the very first year of implementing the scheme, a stalemate has arisen, it is appropriate to give certain directions, which may in the facts and circumstances, be appropriate and adequate to meet the situation to the extent possible. Sufficient number of qualified doctors are not available. Every step should, therefore, be taken to turn out as many doctors with Post Graduate qualification as possible. Since about 1600 seats have reverted to the States and medical colleges located within them, and have to be filled up, it is in the interest of the parties that this should be done as quickly as possible so that the academic time schedule may be stuck to. [388B C, F, 389D] 1.3 Respondent No. 2 is directed to supply to each State and/or Union Territory from where candidates had appeared at the entrance test, candidate wise particulars confined to such State. Once these particulars are available, the Selection Committee operating in the State and/or Union Territory or in the respective medical colleges covered by the scheme, as the case may be, shall draw up a list of the remaining candidates seeking admission as against the 75 per cent of the seats and the candidates who had taken the All India Entrance examination, but have not been found fit on the basis of the marks secured in their respective selection tests or at the MBBS examination, in States where there is no such selection test relating 75 per cent seats. This shall be on the footing that marks in the respective selection tests or the test and the examination are at par and admission would be on the basis of merit. No doubt, the All India Selection test had been a stricter one, but it would not be possible for this Court now to direct what weightage is to be added on that score. Once the common list is drawn up on the basis of performance, admission to remaining seats can be taken up. [389F G] [The admissions already effected inclusive of seats in the reserved quota shall continue. But further admissions in respect of unfilled seats as against the 25 per cent quota shall be deferred now and again taken up after the list of eligible candidates is drawn up as per the time schedule now indicated.] [389H, 390B] Dr. Pradeep Jain etc. vs Union of India & Ors. etc. ; , , referred to. PG NO 387 </s>
<s>[INST] Summarize the judgementminal Appeal No. 177 of 1963. Appeal from the judgment and order dated May 14, 1963 of the Calcutta High Court in Criminal Appeal No. 380 of 1962. section C. Das Gupta and Sukumar Ghose, for appellants. C. K. Daphtary, Attorney General, A. N. Sinha and P. K. Mukherjee, for the respondent. The Judgment of MUDHOLKAR and SATYANARAYANA RAJU JJ. was delivered by MUDHOLKAR J. BACHAWAT J. delivered a separate Judgment. Mudholkar, J. This is an appeal by certificate from a judg ment of the High Court of Calcutta setting aside the acquittal of M/s. Baburally Sardar of Steward Hogg Market, Calcutta, appellant No. 1 and of Abdul Razzak, a partner of that firm, appellant No. 2, in respect of an offence under section 16 (1) (a) (i) of the read with section 7(1) of that act. The facts which are not in dispute are briefly these : On June 1, 1960 a Food Inspector of the Corporation of Calcutta visited the shop of the appellants. At that time Abdul Razzak was in charge. He took samples of Comela Brand condensed milk from the shop, one of which was sent to the Public Analyst. Upon an analysis made by the Public Analyst the milk fat content of the condensed milk was found to be 3.4% which did not conform to the prescribed standard in respect of condensed milk. A complaint was thereupon lodged against the firm before the Municipal Magistrate and Additional Chief Presidency Magistrate, 817 Calcutta. Apart from the firm five other persons, including Abdul ' Razzak were also named as accused persons. One of the accused persons, Mohd. Yasin did not appear but it was represented to the learned Magistrate that the person was not mentally fit. Thereupon the counsel for the Corporation gave him up. The other accused persons pleaded not guilty and were eventually acquitted by the Magistrate. Against that order an appeal was preferred before the High Court under section 417 of the Code of Criminal Procedure. The High Court, however, allowed the appeal only against the appellants but dismissed it against the remaining accused persons. The defence of the appellants was based upon section 19(2) of the Act and was briefly this : The tins of condensed milk were purchased by the firm on May 3, 1960 from Messrs section Choudhury Brothers under a document of sale exhibit A. At that time the firm had demanded a warranty from the traders, that is, Messrs. Choudhury Brothers, but they did not furnish a written guarantee on the ground that a certificate and a warranty had been given on each tin of condensed milk. The appellants further pleaded that the tins were in the same condition in which they were when they were purchased from Messrs Choudhury Brothers and that they had no reason to believe that there was any alteration in their nature, substance or quality subsequent to the purchase of the tins. It may be mentioned that an attempt was made to secure the appearance of section Choudhury of Messrs. Choudhury Brothers, but it failed because he could not be traced at the address given in the cash memo. Section 16(1) (a) (i) of the Act, amongst other things, pro vides that if any person, whether by himself or by any person on his behalf stores or sells any article of food in contravention of any provisions of the Act or of the rules made thereunder he shall 'be punishable for the first offence with imprisonment for a term which may extend to one year and/or with fine which may extend to Rs. 2000 or both. Section 2(i) defines the word "adulterated". According to the definition an article of food shall be deemed to be adulterated in various circumstances, one of which is where the quality or purity of the article falls below the pres cribed standard. In the Act "prescribed" means prescribed by the rules. Rule 5 of the Rules framed by the Central Government under section 23(1) of the Act read with section 4(2) thereof runs thus "Standards of quality of the various articles of food specified in Appendix B to these rules as defined in that appendix. " 818 The definition of standard of quality for condensed milk is give in A. 1 1.07 of Appendix B and runs thus : "Condensed milk means milk which has been con centrated from full cream milk by removal of part of its water with or without the addition of sugar, and includes the article commonly known as 'evaporated milk ' but does not include the article commonly known as 'dried milk ' or 'milk powder '. It shall be free from preservatives other than sugar and contain at least 31 per cent of milk solids of which at least 9 per cent shall be fat. " As already stated, the Public Analyst found that the fat content of the condensed milk was only 3.4% whereas the minimum prescribed in the Appendix is 9%. It is, therefore, clear that the condensed milk stored by the appellants for sale was adulterated and, therefore, there was a breach of the provisions of section 16(1)(a) (i) of the Act. In view of the provisions of section 19(1) it was not open to the appellants to contend that they were ignorant of the nature, substance and quality of the condensed milk sold by them. Subsection (2) of section 19, however, furnishes a defence to a vendor ignorant of the nature, substance and quality of food sold by him provided he satisfies the requirements of that provision. Omitting the second proviso thereto, which is not relevant in the present case, sub section (2) of section 19 reads thus : " (2) A vendor shall not be deemed to have committed an offence if he proves (i) that the article of food was purchased by him as the same in nature, substance and quality as that demanded by the purchaser and with a written warranty in the prescribed form, if any, to the effect that it was of such nature, substance and quality; (ii) that he had no reason to believe at the time when he sold it that the food was not of such nature, substance and quality; and (iii)that he sold it in the same state as he purchased it : Provided that such a defence shall be open to the vendor only if he has submitted to the food inspector or the local authority a copy of the warranty with a written notice stating that he intends to rely on it and 819 specifying the name and address of the person from whom he received it, and has also sent a like notice of his intention to that person. " The aforesaid defence was available to the appellants provided that they showed, in the first place, that what was stored by them for sale to purchasers demanding condensed milk was in fact milk which had been concentrated from full cream milk so as to conform to the standard of quality given in A. 1 1.07 of Appendix B. For, it would be milk which satisfies the standard prescribed therein which can be regarded as 'condensed milk ' under the Act. Upon analysis, however, it was found that the so called condensed milk contained in the samples taken by the Food Inspector from the appellants was far inferior to that prescribed for "condensed milk". It could, therefore, not be regarded as "the same in nature, substance and quality as that demanded by the purchaser". Nor again, had the appellant obtained a warranty in the prescribed form. Rule 12 A provides that every trader selling an article of food to a vendor shall deliver to the vendor a warranty in form 6 A, if required to do so by the vendor. No such warranty was demanded by the appellants, nor given by Messrs. section Chaudhury Brothers. No doubt, under the proviso to the aforesaid sub rule no warranty in the prescribed form is necessary if the label on the article of food or cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Mr. Das Gupta for the appellants, says that the labels on the tins satisfy the requirements of the proviso and faintly suggested that the cash memo also satisfies the conditions. The contents of the label upon which reliance is placed by him are as follows : " 'Comela ' Full Cream sweetened condensed milk made on formula of Holland Product. 'Comela Brand ' 'The contents of the tin are scientifically preserved, pure and produced from healthy Cow 's milk. Comela full cream condensed milk easily digestable and are ideal food for babies. Special care is taken to maintain freshness Prepared by Kwality Diary. " This label contains no warranty of the kind referred to in the proviso. Moreover, it is not even in the form given for a label 820 prescribed for "Sweetened condensed milk". Under r. 42 B(b) the label prescribed is as follows CONDENSED FULL CREAM MILK (Sweetened) This tin contains the equivalent of . litres of milk with sugar added. It may be that the inscription on the prescribed label "This tin contains an equivalent of. . litres of milk with sugar added" was meant to serve the purpose of a warranty though it is couched in different language. For, it may be possible to ascertain by reference to standard tables the quantity of milk solids and fat from the quantity of milk condensed and from the quantity of condensed milk contained in the tin. It would not be possible even to do this on the basis of the particulars given on the labels borne on the tins which were taken as samples by the Food Inspector from the appellants. Mr. Das Gupta strongly relied upon the words "Full Cream" and said that where condensed milk is said to have been obtained from full cream the requirements of law must be deemed to have been satisfied. For one thing "Full cream" has nowhere been defined in the Act or the rules. Moreover, without knowing the quantity of "Full cream" which was condensed in the milk contained in each tin it is impossible even to calculate the quantity of milk solids and fat in each tin. The label, therefore, is of little assistance to the appellants. Moreover, when a vendor accepts from the trader tins purported to be of condensed milk bearing a label of this kind he cannot be said to have "had no reason to believe" that it was not condensed milk of the prescribed nature, substance and quality. It may be that the appellants sold them in the same state as they purchased them. But this fact is by itself not sufficient to absolve them. As for the so called cash memo it is sufficient to point out that all that it specifies is : Quantity Description Rate Per Amount 1 C/C Comela Milk C 70/ Case Rs. 70 00 There is not a whisper of any warranty on it. In the circumstances, therefore, the High Court was right in setting aside the acquittal of the appellants and convicting them of the offence under section 1 6 (1) (a) of the Act and sentencing them to pay fine of Rs. 2,000 each. The appeal is without merit and is dismissed. 821 Bachawat, J. The defence under section 19(2) of the cannot succeed, as the appellants failed to prove that they purchased the articles of food with a written warranty in the prescribed form. The label on the tin container gave a description of the article of food, but it did not give a warranty certifying that the food is the same in nature, substance and quality as demanded by the vendor. In the absence of such a warranty, the appellants have failed to establish the defence under section 19 (2) read with R. 12 (a) and Form VI A. Had there been such a written warranty on the label, the appellants would have established the defence. I agree that the appeal be dismissed. Appeal dismissed. [/INST]The appellant company was assessed to tax in the assessment years 1948 49, to 1953 54, in respect of its profits, and was allowed rebate on the undistributed profits. It was resolved to voluntarily wind up the company with effect from October 1, 1957. The liquidator, during the years 1957 to 1959 distributed, from time to time, the accumulated profits to the shareholders and also issued income tax refund certificates. The Income tax Officer, under section 35(10) of the Income Tax Act, 1922, withdrew the rebate granted in respect of each of the assessment years 1948 49 to 1953 54 and demanded payment of tax. The company applied for a writ quashing the order, but the High Court dismissed the petition. In appeal to this Court, the company contended that : (i) Section 35(10) did not authorise the Income tax Officer to bring to tax the amount on which rebate tax was granted in assessment years commencing prior to 1st April 1956, and (ii) the distribution by the liquidator of accumulated profits could not be regarded as declaration of dividend by the company within the meaning of section 35(10). HELD : (i) The power to withdraw rebate was exercisable within 4 years from the end of the financial year in which the amount on which rebate was allowed was availed of by the company for declaring dividends. 1735 B C] Ahmedabad Manufacturing and Calico Printing Co. Ltd. vs S.G. Mehta, [1963] Supp. 2 S.C.R. 92, followed, (ii) Distribution of accumulated profits by the liquidator together with the income tax refund certificates, in the course of voluntary winding up, can be regarded as declaration of dividend, so as to attract the applicability of provisions enabling the withdrawal of rebate and demand for tax. [739 C] On the passing of a resolution for voluntary winding up the company does not stand dissolved and its property does not vest in the liquidator. lit distributing the assets, including accumulated profits, the liquidator acts merely as an agent or administrator for and on behalf of the company. Therefore, distribution by the liquidator is distribution by the company. [736 B C, E] There is nothing in section 35(10) which suggests that the expression dividend was to have a meaning different from the meaning assigned to it by section 2(6A) in the interpretation clause. By the omission of the proviso to section 2(6A)(c) by the Finance Act, 1955, distribution of accumulated profits, whether capitalised or not and without any restriction as to time, was brought within the definition of dividend. The provisions of sections 35(10) and 2(6A)(c) are part of a single scheme to declare distribution of accumulated profits, capitalized or not, as dividends, and 733 to bring the undistributed profits on which rebate was granted to tax, if availed of by the liquidator of the company for distributing dividends. [737 F, H; 738C D] Power under section 35(10) may be exercised if accumulated profits are availed of by the company "for declaring dividends in any year", that is, after following the procedure in article 95 of Table A of the Companies Act, 1913, under which the assessee was registered. But, the distribution made by the liquidator, was a distribution of interim dividend, and, in the matter of distribution of interim dividend, the Companies Act does not set up any special machinery nor does it impose any special condition before power in that behalf may be exercised. [739 A C] </s>
<s>[INST] Summarize the judgementN: Criminal Appeal No. 335 of 1974. Appeal by special leave from the Judgment and Order dated 1 11 1973 of the Bombay High Court in Criminal Appeal No. 113 of 1972. O. P. Rana and M. N. Shroff for the Appellant. V. N. Ganpule and V. B. Joshi for the Respondents. The following Judgments were delivered: SARKARIA, J. This appeal by special leave preferred by the State of Maharashtra, is directed against a judgment dated November 1, 1973, of the Bombay High Court. Mohd. Yakub respondent 1, Shaikh Jamadar Mithubhai respondent 2, and Issak Hasanali Shaikh respondent 3, were tried in the court of the Judicial Magistrate First Class, Bassein, Bombay, in respect of three sets of offences punishable under section 135 read with section 135 (2) of the . The first charge was the violation of sections 12(1), 23(1) and 23 (d) of the Foreign Exchange Regulation Act, 1947, the second was violation of Exports (Council) Order No. 1 of 1968 E.T.C. dated March 8, 1968; and the third was the contravention of the provisions of Sections 7, 8, 33 and 34 of the . They were also charged for violation of the Exports (Control) Order No. 1/68 E.T.C. dated March 8, 1968 issued under sections 3 and 4 of the Imports and Exports (Control) Act, 1947 punishable under section 5 of the said 1161 Act. The gist of the charges was that the respondents attempted to smuggle out of India 43 silver ingots, weighing 1312.410 kgs., worth about Rs. 8 lakhs, in violation of the Foreign Exchange Regulation Act, the Imports & Exports (Control) Act, 1947, and the . The facts of the case were as follows: On receiving some secret information that silver would be transported in Jeep No. MRC 9930 and Truck No. BMS 796 from Bombay to a coastal place near Bassein, Shri Wagh, Superintendent of Central Excise along with Inspector Dharap and the staff proceeded in two vehicles to keep a watch on the night of September 14, 1968 at Shirsat Naka on the National Highway No. 8, Bombay City. At about mid night, the aforesaid jeep was seen coming from Bombay followed by a truck. These two vehicles were proceeding towards Bassein. The officers followed the truck and the jeep which, after travelling some distance from Shirsat Naka, came to a fork in the road and thereafter, instead of taking the road leading to Bassein, proceeded on the new National Highway leading to Kaman village and Ghodbunder Creek. Ultimately, the jeep and truck halted near a bridge at Kaman creek whereafter the accused removed some small and heavy bundles from the truck and placed them aside on the ground. The Customs Officers rushed to the spot and accosted the persons present there. At the same time, the sound of the engine of a mechanised sea craft from the side of the creek was heard by the officers. The officers surrounded the vehicles and found four silver ingots near the footpath leading to the creek. Respondent 1 was the driver and the sole occupant of the jeep, while the other two respondents were the driver and cleaner of the truck. The officers sent for Kana and Sathe, both residents of Bassein. In their presence, respondent 1 was questioned about his identity. He falsely gave his name and address as Mohamad Yusuf s/o Sayyad Ibrahim residing at Kamathipura. From the personal search of respondent 1, a pistol, knife and currency notes of Rs. 2,133/ were found. Fifteen silver ingots concealed in a shawl were found in the rear side of the jeep and twenty four silver ingots were found lying under saw dust bags in the truck. The truck and the jeep together with the accused respondents and the silver ingots were taken to Shirsat Naka where a detailed panchanama was drawn up. Respondent 1 had no licence for keeping a pistol. Consequently the matter was reported to Police Station Bassein, for prosecuting the respondent under the Arms Act. 1162 The respondents and the vehicles and the silver ingots were taken to Bombay on September 15, 1968. The statements of the respondents under section 108 of the were recorded by Shri Wagh, Superintendent of Central Excise. The Collector, Central Excise, by his order dated May 28, 1969, confiscated the silver ingots. After obtaining the requisite sanction, the Assistant Collector, Central Excise made a complaint against all the three accused in the court of the Judicial Magistrate, Bassein for trial in respect of the aforesaid offences. The plea of the accused was of plain denial of the prosecution case. They stated that they were not aware of the alleged silver and that they had just been employed for carrying the jeep and the truck to another destination. They alleged that they were driven to the creek by the police. The trial Magistrate convicted the accused of the aforesaid offences and sentenced accused 1 to two years ' rigorous imprisonment and a fine of Rs. 2,000 and, in default, to suffer further six months ' rigorous imprisonment. Accused 2 and 3 were to suffer six months ' rigorous imprisonment and to pay a fine of Rs. 500 and, in default, to suffer two months ' rigorous imprisonment. The accused preferred three appeals in the court of the Additional Sessions Judge, Thana, who, by his common judgment dated September 30, 1973, allowed the appeals and acquitted them on the ground that the facts proved by the prosecution fell short of establishing that the accused had 'attempted ' to export silver in contravention of the law, because the facts proved showed no more than that the accused had only made 'preparations ' for bringing this silver to the creek and "had not yet committed any act amounting to a direct movement towards the commission of the offence". In his view, until silver was put in the boat for the purpose of taking out of the country with intent to export it, the matter would be merely in the stage of 'preparation ' falling short of an 'attempt ' to export it. Since 'preparation ' to commit the offence of exporting silver was not punishable under the , he acquitted the accused. Against this acquittal, the State of Maharashtra carried an appeal to the High Court, which, by its judgment dated November 1, 1973, dismissed the appeal and upheld the acquittal of the accused respondents. Hence, this appeal. 1163 In the instant case, the trial court and the Sessions Judge con currently held that the following circumstances had been established by the prosecution: (a) The officers (Shri Wagh and party) had received definite information that silver would be carried in a truck and a jeep from Bombay to Bassein for exporting from the country and for this purpose they kept a watch at Shirsat Naka and then followed the jeep and the truck at some distance. (b) Accused 1 was driving the jeep, while accused 2 was driving the truck and accused 3 was cleaner on it. (c) Fifteen silver ingots were found concealed in the jeep and 24 silver ingots were found hidden in the truck. (d) The jeep and the truck were parked near the Kaman creek from where they could be easily loaded in some sea craft. (e) Four silver ingots from the vehicle had been actually unloaded and were found lying by the side of the road near the foot path leading to the sea. (f) On being questioned accused 1 gave his false name and address. (g) The accused were not dealers in silver. The trial Magistrate further held that just, when the officers surrounded these vehicles and caught the accused, the sound of the engine of a mechanised vessel was heard from the creek. The first appellate court did not discount this fact, but held that this circumstance did not have any probative value. The question, therefore, is whether from the facts and circumstances, enumerated above, it could be inferred beyond reasonable doubt that the respondents had attempted to export the silver in contravention of law from India ? At the outset, it may be noted that the Evidence Act does not insist on absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved ' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition 1164 that it exists. This definition of 'proved ' does not draw any distinction between circumstantial and other evidence. Thus, if the circumstances listed above establish such a high decree of probability that a prudent man ought to act on the supposition that the appellant was attempting to export silver from India in contravention of the law, that will be sufficient proof of that fact in issue. Well then, what is an "attempt" ? Kenny in his 'Outlines of Criminal Law ' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control. " This definition is too narrow. What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal ' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra vs State of Bihar(1) there is a distinction between 'preparation ' and 'attempt '. Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a particular offence ' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. Now, let us apply the above principles to the facts of the case in hand. The intention of the accused to export the silver from India by sea was clear from the circumstances enumerated above. They were taking the silver ingots concealed in the two vehicles under cover of darkness. They had reached close to the sea shore and had started unloading the silver there near a creek from which the sound of the engine of a sea craft was also heard. Beyond the stage of preparation, most of the steps necessary in the course of export by 1165 sea, had been taken. The only step that remained to be taken towards the export of the silver was to load it on a sea craft for moving out of the territorial waters of India. But for the intervention of the officers of law, the unlawful export of silver would have been consummated. The calendestine disappearance of the sea craft when the officers intercepted and rounded up the vehicles and the accused at the creek, reinforces the inference that the accused had deliberately attempted to export silver by sea in contravention of law. It is important to bear in mind that the penal provisions with which we are concerned have been enacted to suppress the evil of smuggling precious metal out of India. Smuggling is an antisocial activity which adversely affects the public revenues, the earning of foreign exchange, the financial stability and the economy of the country. A narrow interpretation of the word "attempt" therefore, in these penal provisions which will impair their efficacy as instruments for combating this baneful activity has to be eschewed. These provisions should be construed in a manner which would suppress the mischief, promote their object, prevent their subtle evasion and foil their artful circumvention. Thus, construed, the expression "attempt" within the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. The inference arising out of the facts and circumstances established by the prosecution, unerringly pointed to the conclusion, that the accused had committed the offence of attempting to export silver out of India by sea, in contravention of law. For reasons aforesaid, we are of opinion that the High Court was in error in holding that the circumstances established by the prosecution fell short of constituting the offence of an 'attempt ' to export unlawfully, silver out of India. We, therefore, allow this appeal, set aside the acquittal of the accused respondents and convict them under Section 135(a) of the read with Section 5 of the Imports and Exports Control Act, 1947 and the Order issued thereunder, and sentence them as under: Accused respondent 1, Mohd. Yakub is sentenced to suffer one year 's rigorous imprisonment with a fine of Rs. 2,000 and, in default, to suffer six months ' further rigorous imprisonment. Accused respondents 2 and 3, namely, Sheikh Jamadar Mithubhai and Issak Hasanali Shaikh are each sentenced to six months ' rigorous imprisonment 1166 with a fine of Rs. 500 and, in default to suffer two months ' further rigorous imprisonment. CHINNAPPA REDDY, J. I concur in the conclusion of my brother Sarkaria, J. in whose Judgment the relevant facts have been set out with clarity and particularity. I wish to add a few paragraphs on the nature of the actus reus to be proved on a charge of an attempt to commit an offence. The question is what is the difference between preparation and perpetration? An attempt to define 'attempt ' has to be a frustrating exercise. Nonetheless a search to discover the characteristics of an attempt, if not an apt definition of attempt, has to be made. In England Parke B described the characteristics of an 'attempt ' in Reg. vs Eagleton,(1) as follows: "the mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit but acts immediately connected with it are. . " The dictum of Parke B is considered as the locus classicus on the subject and the test of 'proximity ' suggested by it has been accepted and applied by English Courts, though with occasional but audible murmur about the difficulty in determining whether an act is immediate or remote. Vide Lord Goddard C.J. in Gardner vs Akeroyed.(2) ". it is sometimes difficult to determine whether an act is immediately or remotely connected with the crime of which it is alleged to be an attempt". Parke B. himself appeared to have thought that the last possible act before the achievement of the end constituted the attempt. This was indicated by him in the very case of Reg. vs Eagleton (supra) where he further observed: ". . . . and if, in this case . . any further step on the part of the defendent had been necessary to obtain payment. . we should have thought that the obtaining credit. . would not have been sufficiently proximate to the obtaining the money. But, on the statement in this case, no other act on the part of the 1167 defendant would have been required. It was the last act, depending on himself towards the payment of the money, and therefore it ought to be considered as an attempt". As a general principle the test of 'the last possible act before the achievement of the end ' would be entirely unacceptable. If that principle be correct, a person who has cocked his gun at another and is about to pull the trigger but is prevented from doing so by the intervention of someone or something cannot be convicted of attempt to murder. Another popular formulation of what constitutes 'attempt ' is that of Stephen in his Digest of the Criminal Law where he said: "An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case". While the first sentence is an attempt at defining 'attempt ', the second sentence is a confession of inability to define. The attempt at definition fails precisely at the point where it should be helpful. See the observations of Parker C.J. in Davey vs Lee(1) and of Prof. Glanville Williams in his essay on 'Police Control of intending criminals ' in 1955 Criminal Law Review. Another attempt at definition was made by Professor Turner in , and this was substantially reproduced in Archbald 's Criminal Pleading, Evidence and Practice (36th Edn.). Archbald 's reproduction was quoted with approval in Davey vs Lee(1) and was as follows: '. . . the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime". We must at once say that it was not noticed in Archbald 's (36th Edn.) nor was it brought to the notice of the Divisional Court which decided Davey vs Lee (supra) that Prof. Turner was himself not satisfied with the definition propounded by him and felt compelled to 1168 modify it, as he thought that to require that the act could not reasonably be regarded as having any other purpose then the commission of the specific crime went too far and it should be sufficient "to show prima facie ' the offender 's intention to commit the crime which he is charged with attempting". Editing 12th edition of Russell on Crime and 18th edition of Kenny 's Outlines of Criminal Law, Professor Turner explained his modified definition as follows: "It is therefore suggested that a practical test for the actus reus in attempt is that the prosecution must prove that the steps taken by the accused must have reached the point when they themselves clearly indicate that was the end towards which they were directed. In other words the steps taken must themselves be sufficient to show, prima facie, the offender 's intention to commit the crime which he is charged with attempting. That there may be abundant other evidence to establish his mens rea (such as a confession) is irrelevant to the question of whether he had done enough to constitute the actus reus".(1) We must say here that we are unable to see any justification for excluding evidence aliunde on the question of mens rea in considering what constitutes the actus reus. That would be placing the actus reus in too narrow a pigeon hole. In Haughten vs Smith,(2) Hailsham L. C. quoted Parke B from the Eagleton case (supra) and Lord Parker, C.J. from Davey vs Lee (supra) and proceeded to mention three propositions as emerging from the two definitions: "(1) There is a distinction between the intention to commit a crime and an attempt to commit it. . (2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted. (3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in Reg. vs Eagleton, as being 'proximate ' to the completion of the offence in 1169 Davey vs Lee , 370, as being 'immediately and not merely remotely connected ' with the completed offence. " In Director of Public Prosecutions vs Stonehouse,(1) Lord Diplock and Viscount Dilhorne, appeared to accept the 'proximity ' test of Parke B, while Lord Edmund Davies accepted the statement of Lord Hailsham as to what were the true ingredients of a criminal attempt. Whatever test was applied, it was held that the facts clearly disclosed and attempt in that case. In India, while attempts to commit certain specified offences have themselves been made specific offences (e.g. 307, 308 Indian Penal Code etc.), an attempt to commit an offence punishable under the Penal Code, generally, is dealt with under section 511 Indian Penal Code. But the expression 'attempt ' has not been defined anywhere. In Abhayanand Mishra vs The State of Bihar,(2) Raghubar Dayal and Subba Rao, JJ., disapproved of the test of 'last act which if uninterrupted and successful would constitute a criminal offence ' and summarised their views as follows: "A person commits the offence of 'attempt to commit a particular offence ' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence". In Malkiat Singh & Anr vs State of Punjab,(3) a truck which was carrying paddy, was stopped at Samalkha 32 miles from Delhi and about 15 miles from the Delhi Punjab boundary. The question was whether the accused were attempting to export paddy from Punjab to Delhi. It was held that on the facts of the case, the offence of attempt had not been committed. Ramaswamy. J., observed: "The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have 1170 been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha barrier and the Delhi Punjab boundary and not have proceeded further in their journey". We think that the test propounded by the first sentence should be understood with reference to the facts of the case. The offence alleged to be contemplated was so far removed from completion in that case that the offender had yet ample time and opportunity to change his mind and proceed no further, his earlier acts being completely harmless. That was what the Court meant, and the reference to 'the appellants ' in the sentence where the test is propounded makes it clear that the test is propounded with reference to the particular facts of the case and not as a general rule. Otherwise, in every case where an accused is interrupted at the last minute from completing the offence, he may always say that when he was interrupted he was about to change his mind. Let me now state the result of the search and research: In order to constitute 'an attempt ', first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be 'proximate ' to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention; but, that it must be, that is, it must be indicative or suggestive of the intention. For instance, in the instant case, had the truck been stopped and searched at the very commencement of the journey or even at Shirsad Naka, the discovery of silver ingots in the truck might at the worst lead to the inference that the accused had prepared or were preparing for the commission of the offence. It could be said that the accused were transporting or attempting to transport the silver somewhere but it would not necessarily suggest or indicate that the intention was to export silver. The fact that the truck was driven upto a lonely creek from where the silver could be transferred into a sea faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was 1171 not to be exported but only to be transported in the course of intercoastal trade. But, the circumstance that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported. In the result I agree with the order proposed by Sarkaria, J. P.B.R. Appeal allowed. [/INST]The expression "bhatha land" means land which forms part of the bed of a river on which vegetables, melon, cucumber etc. can be grown during the lean period after the rainy season is over, when the level of the water in the river is quite low. The cultivation of such land is possible only till the next rainy season as the land gets submerged under the river water. The occupancy rights over such land cannot ordinarily be granted on a permanent basis as in the case of cultivable lands, in view of the fact that the land gets submerged under the river water every year for 4 5 months. Till the year 1951 the cultivation rights over 'bhatha lands ' were disposed of by public auction and the successful bidders were treated as lessors of the lands for short periods. In the year, 1951 the State Government ordered that the leasehold rights over 'bhatha lands ' should be disposed of by selection, the order of priority being (1) bona fide agriculturists who had cultivated the land personally for five years or more, (2) adjacent land holders who had insufficient land for maintenance of their families, (3) cooperative farming societies and (4) priority holders under the Waste Land Rules. This order was however cancelled and superseded by the Government Resolution dated September 19, 1962 which provided that on the expiry of the then existing leases, not held by cooperative farming societies, bhatha land should be disposed of on the basis of five years ' lease by public auction. Experience showed that only the moneyed people were able to purchase the leasehold rights at the public auction and persons belonging to Scheduled Castes and Scheduled Tribes and the other weaker sections of society were not even able to participate in such auctions. Consequently, in the year 1964 leasehold rights over bhatha lands were disposed of on ekasal basis by public auctions. The question relating to the disposal of leasehold rights over bhatha lands was discussed at the meeting of the District Collectors held in 1965 1966 and in pursuance to the suggestions made at the meeting and after considering all relevant matters the State Government by a Resolution dated 28th December, 1966, directed that the existing procedure for disposal of bhatha lands by auction be discontinued with effect from January 1, 1967 and the disposal of such lands were ordered to be in the following priority: (1) bona fide agriculturists of the village who were holding land less than 5 acres, preference being given to harijans, adivasi and backward class people (2) holders of the land adjoining the 1183 bhatha land holding less than 16 acres and having genuine need of additional land for maintenance of their families; (3) cooperative farming societies of harijans, adivasi and backward classes people, (4) cooperative farming societies consisting of landless labourers or small holders and (5) any of the priority holders under the Waste Land Rules. In pursuance to the aforesaid Resolution, the Collector by his Order dated July 18, 1967, granted 22 members belonging to Waghari Harijan Community leasehold rights in respect of bhatha lands for a period of 10 years. The respondents questioned the validity of the Government Resolution dated December 28, 1966 and the Order of the Collector dated July 18, 1967 granting the lease, in their writ petitions. They alleged that some of them were in possession of portions of the land of which they had been dispossessed by the Order of the Collector by virtue of the eksal tenures created in their favour in the auctions held in or about the year 1964 and that they could not be dispossessed without following the procedure prescribed by section 79(A) read with section 202 of the Bombay Land Revenue Code, 1879. They also contended that the Government Resolution dated December 28, 1966 and the grants made by the Collector on the basis of the said Resolution were liable to be struck down on the ground that they were violative of Article 14 of the Constitution and that they had been arbitrarily deprived of an opportunity to offer bids at public auctions and to acquire leashold rights. The State Government contested the petitions on the ground that none of the respondents was in possession of the lands in question on the date of the writ petitions and that some of them who continued to remain in possession of certain portions of the land after the expiry of the eksal lease were dispossessed in accordance with law and that the lands have been handed over to the grantees as per the Kabza receipts. The Resolution dated December 28, 1966, was passed in order to grant lease in respect of bhatha lands in favour of the landless persons or persons having small extent of lands or persons belonging to Scheduled Castes, Scheduled Tribes and backward classes and members of cooperative societies at reasonable rent without being put to the necessity of offering bids at public auctions, where only moneyed persons could become successful bidders. The High Court quashed the Resolution on two grounds: (1) That the act of the State Government in passing the Resolution amounted to a fraud on the Statute as the power of the State under the Code which was a taxation measure had been utilized for a collateral purpose of achieving a welfare scheme and (2) that the Resolution was violative of Article 14 of the Constitution as there was no rational nexus between the object to be achieved by the Code viz. realisation of land revenue and the classification of persons eligible for the grant of lease hold rights in respect of bhatha lands into several groups. It further directed the State Government not to take into consideration the Government 's circular issued pursuant to the impugned Resolution while considering the question of renewal of leases or disposal of bhatha lands and not to dispossess the writ petitioners except in due course of law. Allowing the appeals, ^ HELD: 1(i) The Preamble of the Code provides that it had been passed as it was found expedient to consolidate and amend the law relating to Revenue 1184 Officers and to the assessment and recovery of Land Revenue and to other matters connected with Land Revenue Administration. [1193B]. (ii) The other provisions of the Code and the Rules made thereunder show that it is open to the Collector to dispose of unoccupied lands belonging to the Government either for cultivation or for any other purpose in favour of individuals or aggregate of individuals either free of charge or at an upset price to be fixed by him or by public auction. A review of the several Government orders passed under the Code shows that lands belonging to Government had been set apart free of charge for several public purposes such as free pasturage, burial grounds, roads, religious institutions, dhobies ' ghats, potters ' grounds, threshing floors etc. Land revenue was remitted when there were drought conditions. Forfeited holdings were often given back to defaulters who had not paid land revenue once again, on payment of arrears out of compassion. Tagavi loans were given by Government to occupants to improve lands. The dominant purpose of the Code, therefore appears to be public welfare, even though land revenue which was recoverable under the Code constituted an important source of revenue of the State Government. [1196A E] (iii) After India became independent, land reform measures had to be introduced by the States in India to prevent concentration of land in a few hands and to impose ceiling on the extent of land that could be held by an individual or a family, to take possession of land from individuals or families which was in excess of the ceiling so imposed and to distribute such excess land amongst persons belonging to Scheduled Castes, Scheduled Tribes and other weaker sections of society. All these laws were made in order to implement the Directive Principles of State Policy contained in Articles 38, 39 and 46 of the constitution by strengthening agrarian economy. Never before was there a greater need as during the post Constitution period for administering land revenue laws in an equitable manner so that the economic interests of the weaker sections of the society and in particular of members belonging to Scheduled Castes and Scheduled Tribes are protected and promoted. [1196F H] (iv) There is no provision in the Code or the Rules made thereunder which prohibits disposal of occupancy rights or leasehold rights in respect of unoccupied lands in any manner other than public auction. [1197A] (v) The conclusion reached by the High Court that the basic scheme of the Code was the realization of land revenue by disposing of unoccupied lands by public auction alone appears to be baseless. [1197B] (vi) The finding of the High Court that the impugned Resolution which provides for the disposal of bhabha lands amongst bona fide agriculturists, harijans, adivasis and backward class people and other persons mentioned therein without resorting to public auction but by having recourse to the procedure set out in it is contrary to the latter and the spirit of the Code is set aside. [1197C] 2(i) The Resolution is designed to bring about distribution of agricultural lands as best to subserve the common good thus eliminating concentration of wealth and means of production to the common detriment. It helps persons, who are in need of lands for their bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent. [1199D] 1185 (ii) The classification made in the impugned Resolution of persons or cooperative societies who are eligible to secure grants of leasehold rights, bears a reasonable relation to the object with which the Code is enacted. It cannot be characterised as arbitrary. There is no infirmity in the above classification. The Resolution aims at bringing about social and economic justice and assists people who are not strong enough to secure leasehold rights at a public auction for purposes of cultivation. The leases to be granted are not for any unlimited period. [1199E] (iii) The High Court was in error in holding that the Resolution was violative of Article 14 of the Constitution. [1199F] 3. The High Court did not record any firm finding on the question of possession of any part of the land by any of the writ petitioners. The direction issued by the High Court to the State Government and the Revenue authorities not to dispossess the writ petitions except in due course of law therefore becomes unsustainable. [1191H] </s>
<s>[INST] Summarize the judgementAppeal No. 2555 of 1966. Appeal from the judgment 'and order dated March 16, 1966 of the Calcutta High Court in Income Tax Reference No. 76 of 1962. section C. Manchanda. G. C. Sharma, R. N. Sachthey and B. D. Sharma, for the appellant. A. K. Sen, T. A. Ramachandran and D. N. Gupta, for the respondent. 775 The Judgment of the Court was delivered by Shah, J. The respondent Company appointed one Harvey its Managing Director. Under the terms of agreement, Harvey was to retire on attaining the age of 55 years. The Company arranged to provide a pension to Harvey on retirement, and executed a deed of trust on September 16, 1948 appointing three trustees to carry out that object. The respondent Company set apart in 1948 Rs. 1,09,643/ and in each of the six subsequent years Rs. 4,364/ , and delivered the various amounts to the trustees who were authorised to take out a deferred annuity policy to secure an annuity of pound 720 per annum payable to Harvey for life. from the date he attained the age of 55 years, and in the event of his death before that date an annuity of pound 611.12 annually to his widow. In its return for the assessment year 1949 50 the Company claimed that in the computation of its taxable income Rs. 1,09,643/ paid in 1948 to the trustees under the deed of trust were allowable as an amount wholly and exclusively,expended for the purpose of its business. In the subsequent years of assessment the Company claimed allowance of the annual payment of Rs. 4,364/ . The Income tax Officer disallowed the claim. The Company disputed the decision and carried it to the Income tax Appellate Tribunal. The Tribunal submitted a statement of case to the High Court of Calcutta on the question whether the payments . 'constituted 'expenditure ' within the meaning of that word in section 10(2)(xv) of the Indian Income tax Act, 1922, in respect of which a claim for deduction can be made subject to the other conditions mentioned in that clause being satisfied". The High Court answered the question in the negative. The view taken by the High Court was confirmed by this Court in appeal: Indian Molasses Co. (P) Ltd. vs Commissioner of Income tax, West Bengal(1). This Court held that the expenditure deductible for income tax purposes is one towards a liability actually existing at the time, but a sum of money set apart which may be deemed appropriated to a purpose for which it was intended on the happening of a future event was not expended within the meaning of section 10(2)(xv) of the Act, until the event occurs, and since the Company had dominion through the trustees over the funds and there was a possibility of a trust resulting in its favour, by setting apart. the funds no "expenditure" within the meaning of section 10(2)(xv) of the Indian Income tax Act, 1922, may be deemed incurred. During the pendency of those proceedings the Company ar ranged to give an "enhanced pension" to Harvey and executed a supplementary deed of trust on October 29, 1954 and set apart an additional sum of Rs. 47,607/ to enable the trustees to take out an annuity policy in the names of the trustees in favour of Harvey (1) , 776 and his wife to cover the "enhanced pension". The terms of the original trust deed were made applicable to the supplementary deed. Harvey died in May 1955 (before he was due to retire) and in the return of its taxable income for the assessment year 1956 57 the Company claimed that Rs. 1,83,434/ being the total amount paid by the Company to the trustees in terms of the original trust deed dated September 'I 6, 1 94 8 and the supplementary deed dated October 29, 1954, be allowed as a permissible expenditure in the computation of the Company 's business profits in the previous year ending December 31, 1955. The Income tax Officer disallowed the claim without assigning any reasons. In appeal the Appellate Assistant Commissioner confirmed the order observing that the amount paid long before the commencement of the previous year were not admissible under section 10(2)(xv) of the Income tax Act, 1922. The Income tax Appellate Tribunal in appeal reversed the order and allowed the claim of the Company holding that the amount of Rs. 1,83,434/ was "effectively disbursed during the accounting year" and was on that account an admissible allowance in the computation of the Company 's business profits. At the instance of the Commissioner of Income tax, the Tri bunal submitted a statement of the case to the High Court of Calcutta on the following two questions : "(1) Whether on the facts and in the circumstances of the case, the sum of Rs. 1,83,434/ was an expenditure effectively laid out or expended during the accounting year 1955 within the meaning of section 10(2)(xv) of the Income tax Act ? (2) If the answer to Question No. (1) is in the affirmative, then whether the said expenditure of Rs. 1,83,434/ represented a revenue expenditure ?" The High Court of Calcutta recorded answers in the affirmative on both the questions. With certificate granted by the High Court under section 66A(2) of the Indian Income tax Act, 1922, this appeal is preferred by the Commissioner of Income tax. Answer recorded by the, High Court on the first question was, in our judgment, correct. This Court had in the earlier decision Indian Molasses Co. (Private) Ltd. vs The Commissioner of Income tax( ') held that the Company had not parted with control over the amounts set apart between the years 1948 and 1954 for securing the 'pension benefit to Harvey, and on that account no amount was appropriated to make it expenditure within the meaning of section 10(2)(xv) of the Act. At the date when different sums of money were set apart there was no existing liability and the sums (1) 777 of money set apart to meet an obligation which may or may not arise on the happening of a future event, the Company did not lay out or expend the sums within the meaning of section 10(2)(xv). The amounts set apart became subject to the obligation to pay the pension arranged to be given only when Harvey died, and must be deemed expended then within the meaning of section 10(2)(xv) of the Indian Income tax Act, 1922. But on the materials before us we are unable to answer the second question, for the Tribunal has found no facts on which the admissibility of the allowance may be determined, and the High Court has declined to allow the argument to be raised by the Commissioner that in the circumstances of the case the amounts expended were not admissible under section 10(2)(xv) of the Act. Sections 10(1) and 10(2)(xv) of the Act, insofar as they are relevant, provide : section 10(1) "The tax shall be payable by an assessee under the head "profits and gains of business, profession or vocation, in respect of the profit or gains of any business, profession or vocation carried on by him." section 10(2) "Such profits or gains shall be computed after making the following allowances, namely (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 personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. " Sub section (4A) of section IO which was added by the Finance Act of 1956 with effect from April 1, 1956, may also be read : "Nothing in sub section (2) shall, in the computation of the profits and gains of a Company be deemed to authorise the making of (a) any allowance in respect of any expenditure which results directly or indirectly in the provision of any remuneration or benefit or amenity to a director or a person who has a substantial interest in the company within the meaning of sub clause (iii) of clause (6C) of section, 2, or (b) any allowance in respect of any assets of the company used by any person referred to in 778 clause (a) either wholly or partly for his own purposes or benefit. if in the opinion of the Income tax Officer any such allowance is excessive or unreasonable having regard to the legitimate business needs of, the company and the benefit derived by or accruing to it therefrom. Explanation. The provisions of this sub section shall apply notwithstanding that any amount disallowed under this sub section is included in the total income of any person referred to in clause ( a)." An amount proved to be expended by a tax payer carrying on business is (subject to sub section (4A) of section 10), a permissible allowance in the computation of taxable income of the business, if it be established that the allowance claimed is (a) expenditure which is not of the nature described in cls. (i) to (xiv) of section 10(2); (b) that it is not of the nature of capital expenditure or personal expenses of the assessee; and (c) that the expenditure was laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. The expenditure incurred by the Company is not allowance of the nature described in any of the clauses (i) to (xiv) inclusive of section 10(2), nor is it of the nature of capital expenditure or personal expenses of I the assessee. In our judgment, the argument advanced before the High Court that the expenditure resulting from the setting apart of the money for securing an annuity to provide pensionary benefit to Harvey and his wife was of a capital expenditure was rightly negatived by the High Court. To attract the exemption under section 10(2) (xv)it had still to beestablished that the amount set apart was laid out or expended wholly and exclusively for the purpose of the business of the Company. On this part of the case there is no discussion in the orders of the taxing authorities and the Tribunal. To recall, the Income tax Officer recorded no reasons for, disallowing the expenditure. The Appellate Assistant Commissioner disallowed it on the, ground that it was not debited in the profit and loss account of the Company in the previous year. The Tribunal assumed, and in our judgment erroneously, that this Court had in the earlier judgment pronounced upon the applicability of all the conditions of section 10(2)(xv) of the Act to the amount set apart when it became expenditure. This Court did not express any opinion on that question. , The language in which the question was framed in the earlier case clearly indicated that the enquiry contemplated was only whether the amounts set apart were expended and no other. 779 The judgment of this Court also does not imply that in the view of the Court if the setting apart of the amount was expenditure, the other conditions for the expenditure to be a permissible allowance under section 10(2) (xv) were satisfied. It cannot be, assumed that because on the death of Harvey the amounts previously set apart were deemed expended, the outgoing was admissible as expenditure under section 10(2)(xv) read with section 10(4A). The Tribunal considered two questions only : (1) whether the setting apart of the amounts amounted to expenditure within the meaning of section 10(2) (xv); and (2) if it was expenditure, whether it could be regarded as capital expenditure and not revenue expenditure. On both the contentions the Tribunal decided in favour of the Company. But before section 10(2)(xv) could be called in aid to support the claim of the company it had to be established that it represented expenditure laid out or expended wholly and exclusively for the purpose of the business, and that it was authorised under section 10(4A). The High Court was of the view that because before the Tri bunal the question was not expressly raised that "the other conditions inviting the application of section 10(2)(xv) were not satisfied, the allowance was not admissible", the Commissioner was incompetent to urge that plea before the High Court. In support of that view they relied upon the judgment of this Court in Commissioner of Income tax, Bombay vs Scindia Steam Navigation Co. Ltd(1). The High Court observed that before the Tribunal the plea that the expenditure was not laid out or expended wholly and exclu sively for the purpose of the business of the Company was not argued, and since the question raised and referred "was not wide enough to include that submission", the Commissioner could not urge it before them. 'We are unable to hold that the decision in Scindia Steam Navigation Company 's case( ') supports the opinion of the High Court. The plea that the amount claimed to have been expended was not admissible as an allowance was raised by the Department. The Appellate Assistant Commissioner had decided in favour of the Department and the order was sought to be supported before the Tribunal by the Departmental representative. Granting that an aspect of the question was not argued before the Tribunal, the question was on that account not one which did not ,arise out of the order of the Tribunal. In our judgment, the expression "question of law arising out of such order" in section 66(1) is not restricted to take in only those questions which have been expressly argued and decided by the Tribunal. If a question of law is raised before the Tribunal, even if an 'aspect of that question is not raised, in our judgment, that aspect may be urged before the High Court. The judgment of this Court in Scindia Steam Naviga tion Co. Ltd. 's case( ') does not only not lend any assistance to the (1) ; 780 view taken by the High Court, but negatives that view. In that case certain steamships belonging to the assessee Company were lost during the World War 11 by enemy action. The Government of India paid to the Company compensation which exceeded the written down value of the steamships. The Department sought to charge the excess amount to tax under the fourth proviso of section 10(2)(vii) of the Income tax Act, 1922 inserted by the Income tax (Amendment) Act, 1946, which came into force in the yea of assessment. The Income tax Officer held that the material date for the purpose of the fourth proviso to section 10(2)(vii) was the date when the compensation was in fact received and therefore the ' amount was assessable in the assessment year 1946 47. At the instance of the Company the Tribunal referred the question whether the difference between the written down value and compensation was properly included in the total income for the assessment year 194647. Before the High Court the Company for the first time raised the contention that the fourth proviso to section 10(2)(vii) did not apply to the assessment as it was not in force on April 1, 1946 and the liability of the Company had to be determined as on April 1, 1946, when the Finance Act, 1946 was brought into force. The Commissioner of Income tax contended that the question did not arise out of the order of the Tribunal within ' the meaning of section 66 as it was not raised before nor dealt with by the Tribunal, and it was not referred to the Court. The High Court overruled the objection. This Court held that the High Court had jurisdiction to entertain the Company 's contention raised for the first time before it, that the fourth proviso to section 10(2)(vii) did not apply to the as sessment as the contention was within the scone of the question as framed by the Appellate Tribunal and was really implicit therein. The Court in that case held that the question as framed was comprehensive enough to cover the question of the applicability. of the fourth proviso to section 10(2)(vii) of the Income tax Act. Venkatarama Aiyar, J., observed at p. 612 " Section 66 (I ) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one. trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that section 66(1) requires is that the question of law which is referred to the Court for decision and which the Court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects (1) ; 781 of the question which had been argued before the Tribunal. it will be an over refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66 (1) of the Act. " The second question raised in the present case, in our judg ment, permits an enquiry whether the amount claimed is an admissible allowance under section 10(2)(xv). We are unable to hold that it is restricted to an enquiry whether the expenditure is of a capital nature. The Tribunal did not consider whether the amount was laid out or expended wholly and exclusively for the purpose of the business of the Company. Expenditure is admissible as an allowance under section 10(2)(xv). if all the conditions prescribed thereby are satisfied and is authorised by section 10(4A). We are unable to hold that the question framed and referred excluded an enquiry Whether the expenditure was wholly and exclusively laid out or expended for the purpose of the business of the Company. Nor are we able to hold that because before the Tribunal stress was not pointedly laid upon the ingredients which enable an expenditure to be claimed and allowed, the question does not arise out of the order of the Tribunal. The matter in dispute before the Tribunal was whether the Company was entitled to the allowance under section 10(2)(xv) ,of the Indian Income tax Act 1922. The Tribunal considered whether the amount claimed to have been laid out or expended became expenditure within the meaning of section 10(2)(xv) on the death of Harvey, and whether it was capital expenditure. They did not consider whether the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the Company. Since the Tribunal gave no finding on this part of the case, we are unable to answer the question on the materials placed before US. The High Court was, in our judgment, in error in refusing to allow the argument to be raised that the requirements of section 10(2)(xv) were not satisfied, and the expenditure on that account was inadmissible. Two courses are now open to us : to call for a supplementary statement of the case from the Tribunal; or to decline to answer the question raised by the Tribunal and to leave the Tribunal to take appropriate steps to adjust its decision under section 66(5) in the light of the answer of this Court. If we direct the Tribunal to submit a supplementary statement of the case, the Tribunal will, according to the decisions of this Court, (New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax, Bombay North, Kutch and Saurashtra( '); Petlad Turkey Red Dye Works Co, Ltd. vs Com missioner of Income tax( '); and Keshav Mills Co. Ltd. vs Commissioner of Income tax, Bombay North, Ahmedabad( '), be res (1) (3) 782 tricted to the evidence on the record and may not be entitled to take additional evidence. That may result in injustice. In the circumstances we think it appropriate to decline to answer the question on the ground that the Tribunal has failed to consider and decide the question whether the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the Company and has not considered all appropriate provisions of the statute applicable thereto. It will be open to the Tribunal to dispose of the appeal under section 66(5) of the Income tax Act, 1922, in light of the observations made by this Court after determining the questions which ought to have been decided. There will be no order as to costs in this appeal. [/INST]The appellant was a leaseholder in respect of tolls of a public ferry crossing the river Damodar. The respondent filed a complaint against him alleging that the appellant used to realise illegally 20 np per cart from the cultivators who used to drive their carts across the dry bed of the river. After hearing of the respondent 's complaint on November 29, 1964 the appellant realised double the amount of toll from the respondent. The appellant was, thereafter convicted for offences under sections 23 and 24 of the Bengal Ferries Act, 1885. In revision, the Additional Sessions Judge recommended acquittal of the appellant in respect of his conviction under both the provisions. As to the conviction under section 24, according to the Additional Sessions Judge, the collection of money from the people using the river bed and not the ferry might amount to extortion under the Indian Penal Code but it would not attract the provisions of section 24. Although the High Court accepted the recommendation with respect to the acquittal under section 23, it rejected the reference in respect of the conviction under section 24. In the appeal to this Court by special leave, it was contended that the realisation of 40 np per cart from those who did not use the ferry could not as a matter of law fall within the mischief of s, 24. HELD: dismissing the appeal. Section 24 of the Bengal Ferries Act does not speak of taking toll in excess of the lawful limit only from those persons who use the ferry. This Act was enacted for regulating ferries but that does not mean that an illegal demand under the pretext of claim by way of toll under this Act, when it is not legally claimable, was not intended by the legislature to be prohibited and made punishable by the language of section 24. Demanding or receiving more than lawful dues and unduly delaying persons, animals, vehicles or things in crossing the river are both rendered penal and punishable. Whether the person from whom the amount is demanded or received is under no obligation to pay anything by way of toll while crossing the river bed or is bound by law only to pay 20 ps per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due. [181 C F] To exclude cases like the present from the operation of section 24 would unduly restrict its effectiveness and would indeed facilitate illegal recoveries prohibited by it. To that extent it would defeat the object and purpose which this section is intended to achieve. [182 A] </s>
<s>[INST] Summarize the judgementAppeals Nos. 429 439, 591, 592, 597, 689, 694, 724, 725 and 727 of 1962 and 15, 139, 140, 159, 267 to 269, 331, 334, 337, 340, 342, 343, 347, 352, 389, 746 and 748 of 1963. Appeals from the judg ments and order dated December 19, 1958, March 7, 1959, March 11, 1959, April 22, 1959, April 24, 1959 in Writ Appeals Nos. 135, 122 of 1957 etc. T. V. R. Tatachari, for the appellants (in C.A. Nos. 429 to 434 and 694 of 1962 and C.A. No. 269/63). M. C. Setalvad, P. Kodandaramayya, E. V. Bhagarathi Rao and T. V. R. Tatachari, for the appellants (in C.A. Nos. 438 and 439/62). M. C. Setalvad, and R. Ganapathi Iyer, for the appellants (in C. A. Nos. 436, 437, 724, 725 and 727/62). 458 K. Srinivasamurthy and Naunit Lal, for the appellants (in C. As. Nos. 591, 582, 597, and 689/62 and 140, 267 and 268/63). K. Jayaram and R. Thiagarajan, for the appellants (in C.A. Nos. 139, 159, 330, 334, 337, 340, 342, 343, 347 and 352/63). K. R. Chaudhuri, for the appellants (in C.A. Nos. 15 and 389 of 63). A. Vedavalli and A. V. Rangam, for the appellant (in C. As. 746, and 748 of 63). D. Narsaraju, T. Anantha Babu, M. V. Goswami and B. R. G. K. Achar, for the respondents (in C. As. 435437, 724, 725 and 727/62). D. Narsaraju, T. Anantha Babu, Yogeshwar Prasad and B. R. G. K. Achar, for the respondents (in C. As. Nos. 429434, 438, 439 and 694/62 and 269 of 63). D. Narsaraju, T. Anantha Babu, M. section K. Sastri and B. R. G. K. Achar, for the respondents (in C.A. Nos. 591, 597 and 689/62 and 140, 267 and 268/63) and respondent No. 1 (in C.A. No. 592/62). J.V.K. Sharma and T.Satyanarayana, for respondent No. 2 (in C.A. No. 592/62). D. Narsaraju, T. Anantha Babu, R. Gopalakrishnan and BR. G. K. Achar, for the respondents (in C. As. Nos. 15, 139, 331, 334, 337, 340, 342, 343, 347, 352, 159, 389 and 746 748 /63). March 25, 1964. The judgment of the Court was delivered by GAJENDRAGADKAR, C. J. The principal question of law which arises in this group of 37 civil appeals relates to the construction of section 3 of the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 (No. 29 of 1949) (hereinafter called 'the Act '). The dispute which has given rise to these appeals centres round the validity of two notified orders issued by the respondent, State of Andhra Pradesh on the 28th January, 1955, and 30th January, 1955 respectively, and it is the contention of the appellants that the said notified orders are outside the purview of section 3. The appellants in all these appeals are supplied electricity by the respondent for many years past, and several individual agreements have been passed between them and the respondent during the period 1946 to 1952 prescribing the terms and conditions on which the said supply would be made to them. One of these terms stipulated the rate at which the supply of electricity had to be charged 459 against the consumers. The impugned orders have purported to increase this rate, and the appellants contend that the respondent had no authority to change this important term of the contract to their prejudice by taking recourse to section 3(1) and issuing notified orders in that behalf. That, in substance, is the nature of the controversy between the parties before us. It appears that the Government of Madras, and subsequently, its successor, the respondent, had a single power grid system for the whole State comprising Tungabhadra and Machkund Hydro Electric System and the Thermal System of Nellore. The entire energy was integrated into one power system. The Government of Madras entered into agreements with several consumers in the State, including the appellants, for the supply of energy in bulk at the specified rates which were called tariffs, for the years 1951 and 1952. These agreements were to be in operation for ten years. It is common ground that these agreements did not contain any provision authorising the Government to increase the rates during their operation. The charges fixed were calculated at graded regressive rates according to increasing slabs of consumption units, and the overall unit rates including the demand charge were not to exceed 66 annas without prejudice to the monthly minimum payment and the guaranteed consumption. The Government of Andhra then issued the two impugned orders relating to Machkund and Nellore, and Tungabhadra and Chittoore District areas respectively, enhancing the agreed rates. These enhanced rates were specified in Schedules A and B attached to the said orders. According to these orders, these increased tariffs were to take effect from the date on which meter readings were to be taken in the month of February, 1955 and were to operate for the future. The increase in the rates effected by these orders was thus to operate not retrospectively, but prospectively. The impugned orders indicate that the main reason which inspired the said orders was the knowledge that the existing electricity tariffs which were formulated nearly 15 years before, had become completely uneconomic; the charges of labour and the price level of all material had enormously increased; and that in evitably meant continuously growing loss to the Government. The Accountant General made queries in respect of this recurring loss and drew pointed attention of the State Government to the deficits in the working of the Power System. Accordingly, the question of revision of tariffs was considered in the State of Madras, but was not decided because reorganisation of the States was then in contemplation. After the respondent State wits born, its Chief Engineer sumbitted proposals for 460 revisions of tariffs in all the areas covered by the relevant schemes. That is how the impugned notified orders came to be issued by the respondent. The appellants were naturally aggrieved by these orders, because they added to their liability to pay the rates for the supply of electricity by the respondent to them. Accordingly, a large number of consumers moved the Andhra Pradesh High Court under article 226 of the Constitution, and challenged the validity of the two impugned orders. The learned single Judge who heard these writ petitions upheld the appellants ' plea and came to the conclusion that the impugned orders were not justified by the authority conferred on the respondent by section 3 of the Act, and were unauthorised, illegal and inoperative. In the result, the writ petition filed by some of the appellants before us were allowed and an appropriate order was issued against the respondent restraining it from enforcing the revised tariff rates. These decisions were challenged by the respondent by preferring several Letters Patent Appeals. The Division Bench which heard these Letters Patent Appeals took a different view; it held that on its fair and reasonable con struction, section 3 did confer authority on the respondent to issue the impugned orders, and so, the challenge made to the validity of the said orders could not be sustained. That is why the Letters Patent Appeals preferred by the respondent were allowed and the writ petitions filed by the appellants were dismissed. It is against these orders that the appel lants have come to this Court with a certificate issued by the said High Court. After the Division Bench had pronounced its decision on this point, several other writ petitions were filed by other consumers, and naturally the single Judge who heard them followed the decision of the Division Bench and dismissed the said writ petitions. The consumers who were aggrieved by the decision of the learned single Judge were then allow ed to come to this Court directly by special leave, because the points which they wanted to raise were exactly the same as were raised by the other consumers who had come to this Court against the principal decision of the Division Bench. The present group of appeals thus consists of matters which have been decided by a Division Bench of the Andhra Pradesh High Court, as well as those which have been decided by a learned single Judge, and they all raise the same common question about the construction of section 3 of the Act, and the validity of the impugned notified orders. Before addressing ourselves to the question of construing section 3, it is necessary to recapitulate the legislative history of the Act. It will be recalled that during the Second World 461 War, the Government of India passed the Defence of India Act (No. 35 of 1939) on the 29th of September, 1939. By virtue of the powers conferred on the Central Government by section 2 of the said Act, several Rules came to be framed by Central Government known as the Defence of India Rules. Amongst these Rules was Rule 81(2) which clothed the Central Government with power to issue orders which may appear to the Central Government to be necessary or expedient for securing "the defence of British India, or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community". These Rules were in operation during the continuance of the war. After the war came to an end, it was realised that the eco nomic situation in the country continued to be serious, and for the proper regulation of economic affairs, it was thought necessary to continue the orders issued under the Defence of India Rule 81(2), because shortage of supply of essential articles was very much in evidence then. The purpose of continuing the orders was to ensure the supply of essential articles to the community at large at reasonable prices and to secure their equitable distribution. In due course, the Defence of India Act came to an end in 1946, but the Central Legislature thought it necessary to pass another Act to take its place and that was the Essential Supplies (Temporary Powers) Act, 1946 (No. 24 of 1946). On the same lines, the Madras Legislature passed an Act in 1946 (No. 14 of 1946). Later, it was replaced by Act No. 29 of 1949 with which we are concerned in the present appeals. After the respondent State was created under the Scheme of Reorganisation of States, it passed Act No. 1 of 1955 and this Act received the assent of the President on the 21st of January, 1955. By this Act, the Legislature of the respondent State virtually adopted the Madras Act. As a result, the impugned orders are, in substance, referable to section 3 of the Madras Act. Before we part with this topic, it may be mentioned that when the Madras Act was passed, its Schedule gave a list of the essential articles as defined by section 2(a) and these articles were 12 in number. When the Andhra Legislature passed Act No. 1 of 1955 and adopted the Schedule of essen tial articles for its purpose, the number of these articles was reduced to two; they are charcoal and electrical energy. The Andhra Act was originally intended to be in operation until the 25th January, 1956, but it was later continued from time to time. It is common ground that when the impugned orders were passed, section 3 of be Act was in operation and the present appeals have been argued on the basis that the said section is constitutionally valid, so that the main point which calls for our decision is the construction of the said section. 462 Mr. Setalvad for the appellants contends that in construing section 3, we ought not to concentrate on the words used in section 3 in isolation, but must look at the said section along with the other provisions of the Act. The rule of harmonious construction, he urges, requires that we must so construe all the provisions of the Act as to avoid any conflict or repugnancy between them. So construed, section 3, according to him, cannot be said to confer power on the respondent to enhance the tariff rate chargeable against the appellants in respect of the supply of energy made by the respondent to them. The whole scheme of the Act indicates clearly that the power to regulate the supply of an essential article which has been conferred on the State Government has to be applied in regard to transaction between citizens and citizens and cannot be applied to an essential article: which the State itself supplies. It would be odd, he suggests, if the State Government is given the power to issue a notified order regulating the rates at which it should supply energy which it itself produces. Therefore, the dealings by the State Government in the matter of supply of energy to the consumers should be deemed to be outside the provisions of section 3, and that would make the impugned orders invalid. The question as to whether the State Government would be bound by the provisions of legislative enactments passed by the State Legislature has sometimes led to difference in judicial opinion; but the decision of this Court in the Director of Rationing and Distribution vs The Corporation of Calcutta and Ors.(1) must be taken to have settled this question. The effect of the majority decision rendered in that case is to recognise the validity of the rule of interpretation of statutes enunciated by the Privy Council in Province of Bombay vs Municipal Corporation of the City of Bombay (2) and that rule is that the State is not bound by a statute unless it is so provided in express terms or by necessary implication. In applying this rule, it is obviously necessary that the Court must attempt to ascertain the intention of the Legislature by considernig all the relevant provisions of the statute together and not concentrating its attention on a particular provision which may be in dispute between the parties. If, after reading all the relevant provisions of the statute, the Court is satisfied that by necessary implication the obligation imposed by the statute should be enforced against the State, that conclusion must be adopted. If there are express terms to that effect, there is, of course, no difficulty. In dealing with this vexed question, sometimes it is necessary also to enquire whether the conclusion that the State is not bound by the specific provision of a given statute, (1) ; (2)73 I.A. 271. 463 would hamper the working of the statute, or would lead to the anomalous position that the statute may lose its effi cacy, and if the answer to either of these two questions indicates that the obligation imposed by the statute should be enforced against the State, the Court would be inclined to infer by necessary implication that the State, in fact, is bound by the statute. Where, however, the question is not so much as to whether the State is bound by the statute, but whether it can claim the benefit of the provision of a statute, the same rule of construction may have to be applied. Where the statute may be for the public good, and by claiming the benefit conferred on it by its provisions the State may allege that it is serving the public good, it would still be necessary to ascertain whether the intention of the legislature was to make the relevant provisions applicable to the State. This position is also established by the decision of the Privy Council in Province of Bomboy(1) and it still continues to be a law in this Country. Incidentally, we may add that where the Crown seeks to take advantage of a statute and urges that though it is not bound by the statute, it is at liberty to take advantage of it, English Law does not easily entertain such a plea, though there are observations made in some judicial pronouncements to the contrary. As Halsbury points out, "it has been said that, unless it is expressly or impliedly prohibited from doing so, the Crown may take advantage of a statute not withstanding that it is not bound thereby. " Having made this statement, Halsbury has added a note of caution by ,,saying that "there is only slender authority for this rule, and since both the rule and such authority as does exist have also been doubted, the rule cannot, perhaps, be regarded as settled law(2)". To the same effect is the comment made by Maxwell when be quotes with approval the view expressed by Sir John Simon that the decisions which recognise the right of the Crown to take advantage of a statutory provision "start with a passage in an unsuccessful argument of a law officer which was not even relevant to the case before the court, but which has been taken out by a text writer and repeated for centuries until it was believed that it must have some foundation(3)". Therefore, in construing section 3 of the Act, we cannot permit the respondent to rely upon the artificial rule that since (1) 73 T.A. 271. (2)", Halsbury 's Laws of England, Vol. 36, p. 432, para 654. (3) Maxwell on Interpretation of Statutes, 11th Ed. p. 136 464 the respondent claims a benefit under section 3, that construc tion should be adopted which supports such a claim. Thus, the position is that when we construe section 3, we must adopt the usual rule of construction; we must not read section 3 in isolation, but must consider it in its proper setting and must have due regard for the other provisions of the Act, and its general scheme and purpose. Reverting then to Mr. Setalvad 's main argument, it may be conceded that when the Act was passed in 1949, mainly and primarily the power conferred by section 3 on the State Government must have been intended to regulate the supply of essential articles made by one citizen to another. The State had not then entered commercial activities on a large scale and when section 3(1) contemplated notified orders issued for the purpose of securing equitable distribution and availability at fair prices of essential articles, the legislature could not have in its mind supply of essential articles made by the State itself. That is one point in favour of Mr. Setalvad 's construction. If we examine the scheme of the Act, it may also have to be conceded that some of the provisions may not be applicable to the State. Take, for instance, the provision of section 4 which relate to the powers of requisitioning and acquisition of properties, and the subsequent two sections that deal with payment of compensation and release from requisition respectively; these provisions may not be applicable to the State. Take, again, the control of agriculture which is contemplated by section 7; it would not be applicable to the State. Section 12 which deals with penalties may also be inapplicable to the State, and so, would section 13 be inapplicable, because it deals with abetment and assistance of contravention of the provisions of the Act. Therefore, the general scheme of the Act and some of its provisions seem to suggest that the State may not have been within the contemplation of the Act. But it is obvious that the rule of harmonious construction on which Mr. Setalvad has solely rested his case, can be invoked successfully by him only if the words used in section 3 are capable of the construction which he suggests. If the said words are capable of two constructions one of which supports the appellants ' case and the other that of the res pondent, it would be legitimate to adopt the first construc tion, because it has the merit of harmonising the provisions of section 3 with the general scheme and purpose of the Act. On the other hand, if the words used in section 3(1) are not reason ably capable of the construction for which the appellants contend, then it would be unreasonable and illegitimate for the Court to limit the scope of those words arbitrarily solely for the purpose of establishing harmony between the 465 assumed object and the scheme of the Act. Therefore, it is necessary to examine the words used in section 3 very carefully. Let us first read section 3(1): "The State Government so far as it appears to them to be necessary or expedient for maintaining, increasing or securing supplies of essential articles or for arranging for their equitable distribution and availability at fair prices may, by notified order, provide for regulating or prohibiting the supply, distribution and transport of essential articles and trade and commerce therein". Sub section (2) provides that without prejudice to the gene rality of the powers conferred by sub section (1), an order made thereunder may provide for objects specified in clauses (a) to (k). The majority of these objects may not be appli cable to the State, while, conceivably, some may be appli cable to it. Section 3(1) is obviously intended to secure supplies of essential articles and to arrange for their equitable distribution and availability at fair prices. If electrical energy is one of the essential articles mentioned in the Schedule, there can be no difficulty in holding that a notified order can be issued under section 3(1) for regulating the supply of the said energy and making it available at a fair price. Indeed, it is not disputed and cannot be disputed that if electrical energy is produced by a private licensee and is then supplied to the consumers, such a supply would fall within the mischief of section 3(1), and the terms on which it can and should be made to the consumers can be regulated by a notified order. There can also be no serious dispute that the terms of a contract entered into between a private supplier of electrical energy and the consumer could be modified by a notified order. Section 3(1) undoubtedly confers power on the State Government to vary and modify contractual terms in respect of the supply or distribution of essential articles. If that be so, on a plain reading of section 3(1) it seems very difficult to accept the argument that the supply of electrical energy which is included in section 3(1) if it is made, by a private producer should go outside the said section as soon as it is produced by the State Government. The emphasis is not on who pro duces and supplies, but on the continuance of the equitable distribution and supply of essential articles at fair prices. If the object which section 3(1) has in mind is such equitable distribuiton and availability at fair prices of essential articles, then that object would still continue to attract the provisions of section 3(1) even though the essential article may be produced by the State and may be supplied by it to the consumers. 466 The words used in section 3(1) are so clear, unambiguous and wide that it would be unreasonable to limit their scope arti ficially on the ground that by giving effect to the wide language of the section, we might reach a result which is not completely harmonious or consistent with the assumed object and purpose of the Act. Indeed, as we have just indicated, if the purpose of the Act is to secure the supply of essential articles at fair prices, it would be irrelevant as to who makes the supply; what is relevant is to regulate the supply at a fair price. Therefore, we are not prepared to accede to Mr. Setalvad 's argument that section 3(1) does not confer on the respondent the power to modify the terms of agreements between it and the appellants. Mr. Setalvad, no doubt, contended that in construing section 3(1), we may have regard to the fact that most of the clauses under section 3(2) would be inapplicable to the respondent State, and so, he virtually suggests that even though the words in section 3(1) may be wide, their width should be controlled by the limited scope of the clauses prescribed by subsection (2). We are not prepared to accept this argument. After the decision of the Privy Council in King Emperor vs Sibnath Banerjee(1), it is well settled that the function of a clause like clause (2) of section 3 merely illustrative (vide also Santosh Kumar Jain vs The State(3)). In other words, the proper approach to adopt in construing clauses (1) and (2) of section 3 is to assume that whatever is included in clause (2) is also included in clause (1). That is not to say that if the words of clause (1) are wide enough to include cases not included in clause (2), they must, for that reason, receive a narrower construction. Therefore, we must ultimately go back to clause (1) to decide whether the supply of electrical energy made by the respondent to the appellants can be regulated by a notified order issued under it or not, and the answer to that question must, in our opinion, be in the affirmative. In this connection, it may be pertinent to refer to section 3(2)(b) which provides for controlling the prices at which any essential article may be bought or sold. It is not easy to see why this clause cannot take in articles which may be purchased or sold by the State. The clause is so worded that the transactions of sale and purchase of all essential articles would be included in it. It is true that where the State wants to sell its essential articles, it may be able to regulate the prices and control them by means of an executive order; but that is not relevant and material in construing the effect (1) 72 I.A. 241 at p. 248. (2) ; 467 of the words; if the words take within their sweep essential articles sold by the State, there is no reason why it should not be competent to the State to issue a notified order con trolling the prices in that behalf. In regard to the purchase of essential articles by the State, the position is still clearer. If the State wants to purchase essential articles, power to regulate the prices of such, articles would seem to be clearly included in section 3(2)(b). In ' deed, during the course of his arguments, Mr. Setalvad did not seriously dispute this position. Therefore, when the State wants to purchase essential articles, it can regulate the price in that behalf by means of a notified order issued under section 3(1) and that shows that in the cases of both sale and purchase of essential articles by the State, section 3(2)(b) read with section 3(1) would clothe the State with the power to issue the relevant notified order. Then, it was faintly argued by Mr. Setalvad that the power to regulate conferred on the respondent by section 3(1) cannot include the power to increase the tariff rate; it would include the power to reduce the rates. This argument is en tirely misconceived. The word "regulate" is wide enough to confer power on the respondent to regulate either by in creasing the rate, or decreasing the rate, the test being what is it that is necessary or expedient to be done to maintain, increase, or secure supply of the essential articles in question and to arrange for its equitable distribution and its availability at fair prices. The concept of fair prices to which section 3(1) expressly refers does not mean that the price once fixed must either remain stationary, or must be reduced in order to attract the power to regulate. The power to regulate can be exercised for ensuring the payment of a fair price, and the fixation of a fair price would inevitably depend upon a consideration of all relevant and economic factors which contribute to the determination of such a fair price. If the fair price indicated on a dispassionate consideration of all relevant factors turns out to be higher than the price fixed and prevailing, then the power to regulate the price must necessarily include the power to increase the price so as to make it fair. That is why we do not think Mr. Setalvad is right in contending that even though the respondent may have the power to regulate the prices at which electrical energy should be supplied by it to the appellants, it had no power to enhance the said price. We must, therefore, hold that the challenge to the validity of the impugned notified orders on the ground that they are outside the purview of section 3(1) cannot be sustained. That takes us to the next question as to whether the im pugned notified orders are invalid, because they contravene 468 the provisions of article 19(1)(f) and (g) of the Constitution. The impugned orders have been notified by virtue of the fore, be treated as law for the purpose of article 19. We may also assume in favour of the appellants that the right to receive the supply of electricity at the rates specified in the agreements is a right which falls within article 19(1)(f) or (g). Even so, can it be said that the impugned notified orders are not reasonable and in the interests of the general public '? That is the question which calls for an answer in dealing with the present contention. It is true that by issuing the impugned notified orders, the respondent has successfully altered the rates agreed between the parties for their respective contracts and that, prima facie, does appear to be unreasonable. But, on the other hand, the evidence shows that the tariff which was fixed several years ago had become completely out of date and he reports made by the Accountant General from time to time clearly indicate that the respondent was supplying electricity to the appellants at the agreed rates even though it was incurring loss from year to year. Therefore, it cannot be said that the impugned notified orders were not justified on the merits. The prices of all commodities and labour charges having very much increased meanwhile, a case had. certainly been made out for increasing the tariff for the supply of electrical energy. But it could not be possible to hold that the restriction imposed on the appellants ' right by the increase made in the rates is reasonable and in the interests of the general public solely because the impugned orders have saved the recurring loss incurred by the respondent under the contracts. If such a broad and general. argument were accepted, it may lead to unreasonable and even anomalous consequences in some cases. This question, however, has to be considered from the point of view of the community at large; and thus considered, the point which appears to support the validity of the impugned orders is that these orders were passed solely for the pur pose of assuring the supply of electrical energy and that would clearly be for the good of the community at large. Unless prices were increased, there was risk that the supply of electrical energy may itself have come to an end. If the respondent thought that the agreements made with the appel lants were resulting in a heavy loss to the public treasury from year to year, it may have had to consider whether the supply should not be cut down or completely stopped. It may well be that the respondent recognised its obligation to the public at large and thought that supplying electrical energy to the consumers who were using it for profit making purposes, at a loss to the public exchequer would not be reasonable and legitimate, and it apprehended that the legislature may well question the propriety or wisdom of such 469 a course; and so, instead of terminating the contracts, de cided to assure the supply of electrical energy at a fair price and that is why the impugned notified orders were issued. We ought to make it clear that there has been no suggestion before us that the prices fixed by the impugned notified orders are, in any sense, unreasonable or excessive, and it is significant that even the revised tariff has to come into operation prospectively and not retrospectively. Therefore,( having regard to all the circumstances in this case, we are disposed to hold that the change made in the tariff by the notified orders must be held to be reasonable and in the interests of the general public. Mr. Setalvad also attempted to challenge the validity of the impugned orders on the ground that they contravene article 14 of the Constitution. In support of this contention, he invited our attention to the allegation made in Writ Petition No. 923 of 1956. In that writ petition, one of the petitioners stated that the rate prescribed under the agree ments had not changed and had remained stationary as far as consumers under the State Government 's licensees were concerned. The affidavit appears to concede that certain ,other licensees had increased their rates, but that increase, it is claimed, was negligible or nominal; and so, the argument was that the rates which are widely divergent between consumer and consumer constitute a contravention of article 14. Mr. Setalvad fairly conceded that these allegations are vague and indefinite and no other material has been pro duced either by the petitioner who has made this affidavit, or by any of the other petitioners who moved the High Court for challenging the validity of the impugned orders. In fact, we do not know what the rates charged by other licensees are and have been, and how they compare with the rates prescribed by the original contracts as well as the rates enhanced by the impugned notified orders. We ought to add that the Division Bench of the High Court appears to be in error when it assumed that the respondent was the sole supplier of electrical energy in the State of Andhra. It is true that the bulk of the energy is supplied by the respon dent; but there are some other private licensees which are licensed to supply electrical energy to the consumers and in that sense, at the relevant time the respondent was not a monopolist in the matter of supply of electricity. This Court has repeatedly pointed out that when a citizen wants to challenge the validity of any statute on the ground that it contravenes article 14, specific, clear and unambiguous alle gations must be made in that behalf and it must be shown that the impugned statute is based on discrimination and that such discrimination is not referable to any classification 470 which is rational and which has nexus with the object in tended to be achieved by the said statute. Judged from that point of view, there is absolulety no material on the record of any of the appeals forming the present group on which a plea under article 14 can even be raised. Therefore, we do not think it is necessary to pursue this point any further. The result is the appeals fail and are dismissed with costs. One set of hearing fees. Appeals dismissed. [/INST]The petitioner was serving as an officiating Teleprinter Supervisor at Jaipur when the employees of the Posts and Telegraphs Department went on strike from the midnight of July 11, 1960, throughout India and there was a similar strike at Jaipur. The petitioner 's case was that he was on duty that day from 12 noon to 8 p.m. and after his duty was over, he did not go home but went to the dormitory where he fell asleep as he was tired. On hearing some noise he woke up at 11 30 p.m. and wanted to go home but was arrested by the police under the Essential Services Maintenance Ordinance, No. 1 of 1960. The criminal charge was however withdrawn. On July 21, 1960, a chargesheet was served on the petitioner in the following terms: "That Shri Radhey Shyam Sharma I C/S Telegraphist, CTO Jaipur committed gross misconduct in that on the midnight of the 11th July, 1960, he took part in a demonstration in furtherance of the strike of the P. & T. Employees in violation of the orders dated 8 7 1960 issued by the Government of India under the 'Essential Services Maintenance Ordinance, 1960 (1 of 1960) ' prohibiting strikes in any Postal, telegraph or telephone service". The enquiry officer found him guilty of the charge and ordered that his pay should be reduced in the time scale by three stage,% for a period of two years and on restoration the period of reduction was not to operate to postpone his future increments. 0n appeal, the Director General considered the whole matter on merits and rejected the appeal. In this Court it was urged that the punishment imposed upon the petitioner was violative of his fundamental rights under articles 19(1)(a) and (b), reliance being placed on two cases of this court in Kameshwar Prasad vs State of Bihar and O. K. Ghosh vs E. X. Joseph; that sections 3, 4 and 5 of the Ordinance were ultra vires, as they contravened article 19(1.)(a) and (b) and that in any case there was no evidence on which it could ' be found that the charge against him had been proved. Held: The provisions of the Ordinance in sections 3, 4 and 5 did not violate the fundamental rights enshrined in article 19(1)(a) and (b). A perusal of article 19(1) shows that there is no fundamental right to strike, and all that the ordinance provided was with respect to any illegal strike as provided in the Ordinance. There was no provision in the Ordinance which in any way restricted those fundamental rights. It was not in dispute that Parliament had the competence to make a law in the terms of the Ordinance and therefore the President had also the power to promulgate, such an Ordinance. 404 The competence of the legislature therefore being not in dispute it cannot be held that the Ordinance violated the fundamental rights guaranteed under article 19(1)(a) and (b). All India Bank Employees Association vs National Industrial Tribunal, ; , referred to. The two cases relied on by the petitioner have no relevance in connection with the charge in the present case. The punishment given to the petitioner cannot therefore be set aside on the ground that the charge was in violation of the fundamental rights guaranteed under article 19(1)(a) and (b). Kameshwar Prasad vs State of Bihar, [1962] Supp. 3 S.C.R. 369 and O. K. Ghosh vs E. X. Joseph, [1963] Supp. 1 S.C.R. 789, held inapplicable. If on the undisputed facts the authorities came to the con clusion that the petitioner acted in furtherance of the strike 'Which was to commence half an hour later and was thus guilty of gross misconduct, it could not be said that there was no evidence on which the authorities concerned could find the charge framed against the petititoner proved. </s>
<s>[INST] Summarize the judgementvil Appeal No. 2931 (N) of 1981. From the Judgment and Order dated 7.10.1980 of the Madhya Pradesh High Court in Miscellaneous First Appeal No. 78 of 1974. L.M. Singhvi, D. Bhandari and A.K. Sanghi for the Appellant. T.S. Krishnamurthy Iyer and S.K. Gambhir for the Respondent. The Judgment of the Court was delivered by K.N. SAIKIA, J. This Civil Appeal by special leave is from the order dated 7.10.1980 of the High Court of Madhya Pradesh, Jabalpur in Misc (F) Appeal No. 78 of 1974, allow ing the appeal and enhancing compensation for land acquired by the Improvement Trust, Bhopal. The Improvement Trust, Bhopal, hereinafter referred to as 'the Trust ', acquired 152 acres of land of Village Jamal pura by Notification dated 30th April, 1965 issued under Section 68 of the Madhya Pradesh Town Improvement Trust Act, 1960, hereinafter referred to as 'the Act ', and took posses sion of the land sometimes in June, 1967. Out of these acquired land the instant appellant owned 12.62 acres where upon stood a house, a well and some trees. The whole of the acquired land including that of the appellant was within the limits of Bhopal Municipal Corporation. On 25.3.1966 Notifi cation under Section 71 of 911 the Act was issued vesting the land in the Trust. The Trust offered compensation at the rate of Rs.950 per acre (@ 14 paise per sq. ft.) amounting to Rs.11,997.00; for the well Rs.3,108; and for the trees Rs.815 and for compulsory acqui sition 15% amounting to Rs.2,400. The appellant made refer ence, No. 8 of 1970 to the Compensation Tribunal under Section 72(3) of the Act. The Tribunal awarded compensation at the rate of Rs.6,000 per acre (Rs.0.28 Paise per sqr. ft.) for the land, Rs.5,000 for the building, Rs.3,000 for the well and Rs.815 for the trees. Thus the Tribunal by its award dated 25th November, 1972 awarded a total sum of Rs.1,20,060 inclusive of interest as compensation to the appellant, as against his claim at the rate of Rs.20,000 per acre for the land, Rs.20,000 for the building, Rs.5,000 for the well, Rs.2,500 for the trees and Rs. 10,000 for loss of business and earnings, his total claim amounting to Rs. 13,39,560. On appeal, being Misc. (F) Appeal No. 78 of 1974, the High Court maintained the award in respect of the Build ing, well and the trees, but enhanced the compensation in respect of the land determining the market value at Rs. 12,000 per acre and the total area being 12.62 acres the total compensation inclusive of that allowed for the house etc. and 15% solatium worked out to Rs. 1,84,293. Dissatis fied, the appellant obtained leave and filed this appeal. Dr. L.M. Singhvi learned counsel for the appellant submits, inter alia, that the house and the well were gross ly undervalued; that both the Tribunal as well as the High Court misdirected themselves in treating the land as agri cultural land but not as urbanised developed land on the erroneous ground that there was no building activity of substantial nature at the time of acquisition in spite of the fact that a part of the land was already converted to Abadi, that both the Tribunal as well as the High Court failed to take into consideration the potential value of the land; and that evidence of sales of similar plots was not accepted on the ground that those pertained to small plots; and that the High Court committed an error when it deducted the development charge from the agreed price instead of adding it to the agreed price while calculating the market value. Mr. Krishnamurthi learned counsel for the respondent Trust submits that the house and the well were properly valued; that it was not correct that the Tribunal did not correctly consider the question of the nature of the land which it held to be agricultural because it did not find therein any building activity of substantial nature. At any rate, counsel submits, the High Court took into considera tion the potential value of the land and as such there was no omission to consider any 912 relevant material or misdirection in this regard. Counsel, however, fails to explain the reason of deducting the devel opment charge from the agreed price, instead of adding it, while calculating market value of the lands on the basis of evidence produced by the claimant. This, however, according to counsel, is not a sufficient ground for our interference in this appeal under Article 136 of the Constitution of India. In an appeal under Article 136 of the Constitution of India involving the question of valuation of acquired land, this Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied, as was held in Atmaram Bhagwant vs Collector of Nagpur, A.I.R. 1929 P.C. 92. In Dollar Company, Madras vs Collector of Madras, the Land Acquisition Officer awarded Rs. 800 per ground as compensation and the City Civil Court on reference awarded at the rate of Rs. 1,000 pet ground, and the High Court on appeal awarded Rs.1800 per ground. The appellant himself purchased the suit land about 10 months before the Notification under Section 4 was made at a price of Rs.410 per ground whereafter the appellant has spent a little money on filling up a pond. Dismissing the appeal it was observed that this Court interferes with the judgment of the High Court only if the High Court applies a principle wrongly or because some important point affecting valuation has been overlooked or misapplied. A Court of appeal inter feres not when the judgment under attack is not right, but only when it is shown to be wrong. As there was no error in principle in the High Court judgment nor had any of the limited grounds on which that Court 's jurisdiction could be legitimately exercised was made out, the appeal was dis missed. Therefore, it is for the the appellant to show that there is ground for interference in this case. As regards the value of the house, the Land Compensation Tribunal clearly observed that it visited the spot and found that the house 'was in extremely dilapidated condition having big cracks in foundation, walls and pillars. The foundation was getting loose. The roof of asbestos sheets was sagging, indicating that the wood rafters had been badly damaged. Doors and windows were in bad condition. The two verandahs of the house were temporary, with roof of asbestos sheets. ' The house, according to the Tribunal might be 20 to 25 years old and depreciation would be 5% per year. Considering the above factors 913 we are of the view that the compensation awarded, namely, Rs.5,000 is reasonable. Also from evidence we find that Rs.3,000 for the well was reasonable. There was no error of principle and hence there can be no grievance on these counts. Regarding nature of the land the Tribunal noted that the claimants in most of the references asserted that the ac quired land should be valued as urban house site because of alleged potential value and had claimed compensation between the Rs.3 to Rs. 1 per sqr. The Trust disputed the claim and urged that the lands at the time of acquisition, were either agricultural or merely fallow land and they had absolutely no urban site value. The claimants also urged that the lands were situated within Corporation limits and lands of some of the claimants were already diverted (con verted). We agree with Mr. Krishnamurthi that though the Tribunal treated it as agricultural, the High Court proceed ed on the principle of developed land. It is true that the market value of the land acquired has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. Dr. Singhvi argues that failing to consider potential value is an error of principle. It is an accepted principle as was laid down in Gajapatiraju vs Rev. Divisional Officer, A.I.R. 1939 P.C. 98 that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from willing purchaser. The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded. Neither must be considered as acting under compulsion. The value of the land is not to be estimated at its value to the purchaser but this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth. Any sentimental value for the vendor need not be taken into account. The vendor is to be treated as a vendor willing to sell at the market price. Section 23 of the Land Acquisition Act, 1894, enumerates the matters to be considered in determining compensation The first to be taken into consideration is the market value of the land on the date of the publication of the Notification under Sec tion 4(1). Market value is that of a willing vendor and a willing purchaser. A willing vendor would naturally take into consideration such factors as would contribute to the value of his land including its unearned increment. A will ing purchaser would also consider more or less the same factors. There may be many ponder 914 able and imponderable factors in such estimation or guess work. Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining compensation. Section 25 provides that the amount of compen sation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. As was observed in Gajapatiraju (supra) sometimes, it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentiali ty. In such a case the court has to ascertain as best as possible 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 that particular potentiality. In the instant case also the ac quired land possesses Some important features being located within the Corporation area and its potentiality for being developed as a residential area. In such a situation in determining its market value, where there was no sufficient direct evidence of market price, the Court was required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in this par ticular position and with this particular potentiality. It is an accepted principle that the land is not to be valued, merely by reference to the use to which it has been put at the time at which its value has to be determined, that is, the date of the notification under Section 4, but also by reference to the use to which it is reasonably capable of being put in the future. A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however willing a vendor he is. is not likely to be content to sell the land for its value as waste or agricultural land as the case may be. The possibility of its being used for building purposes would have to be taken into account. However, it must not be valued as though it had already been built upon. It is the possibilities of the land and not its realised possibilities that must be taken into considera tion, In other words, the value of the land should be deter mined not necessarily according to its present disposition but laid out in its lucrative and advantageous way in which the owner can dispose it of. It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken, is an important element to be taken into consideration in determining the market value of the land. In such a situation the land might have already been valued at more than its value as agricultural land, if it had any other capabilities. However, only rea sonable and fair capabilities but not far fetched and hypo thetical capabilities are to be taken into consideration. In sum, in estimating 915 the market value of the land all of the capabilities of the land, and all its legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas. The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of the imagination. In Mahabir Prasad Santuka vs Col lector, Cuttack, [1987] 1 S.C.C. 587 the evidence on record was that the land was being used for agricultural purposes but it was fit for non agricultural purposes and it had potentiality for future use as factory or building site and that on industrialisation of the neighbouring areas the prices increased tremendously, and that aspect, it was held, could not be ignored in determining compensation. On the question as to whether the land was urbanised developed land or not we find that the Tribunal consolidated all the 15 references arising out of the acquisition for the purpose of recording evidence and, that is, how it came to consider the Exts. P 1, P 2, P 3, and P 8 being agreements of sale executed by Phool Chand Gupta who was father of the claimant in reference No. 1 of 1970 while the petitioners reference was No. 8 of 1970. Similarly the Ext. D 1 to D 6 also pertained to small plots of land out of land in refer ence No. 1 of 1970. The High Court rightly held that the Exts. P 1, P 2, P 3 and P 8 and the sale deeds Exts. D 1 to D 6 furnished a more reliable data for working out the market value. If those lands were the urban developed house site lands, their prices would have reflected the same. It cannot, therefore be said that High Court was in error in taking the above Exts. into consideration. However, poten tial value was not separately considered. P 1, P 2, P 3 and P 8 were agreements of sale executed on 29th July, 1961 in respect of small parcels of land wherein the vendor agreed to sell the land at that time at the rate of 14 annas per sqr. to Rs. 1 per sqr. It was further agreed that the vendees would pay development charges at the rate of 4 annas per sqr. The vendor and the respective vend ees were examined It should be noted that the Exts. were agreements to sell and not sales. The High Court observed. that the idea behind those transactions was that the vendor would apply to the revenue authority for diversion and the town planning authority for sanction of lay out plan and the sale deeds would be executed after the land was developed. The High Court also noted that 916 there was nothing to show that the agreements were prepared only to be used later as evidence of market value. In Decem ber 1960 Phool Chand Gupta applied for diversion of his land to the Sub Divisional Officer. In January 1961 application was also made to the Town Planning Authority for sanction of the lay out plan but in the meantime the land was notified for acquisition under the Land Acquisition Act sometimes in 1962 and Phool Chand Gupta tried to extricate his land from acquisition which, however, did not materialise and, as already noted, on 30.4.65 the instant notification to ac quire under Section 68 of the Act was issued. Rejecting the contention that the agreements were spurious, the High Court observed that the very fact that applications were made for diversion and for sanction of lay out plan went to show that the owner was interested in the development in the land and in selling it after dividing it into plots. Thus, the High Court, rightly took into consideration the above Exts, which pertained to a part of the acquired land of 152 acres. The High Court also considered the sale deeds Exts. D 1 to D 6 which pertained to small plots of lands out of land in reference No. 1 of 1970. Those sale deeds were registered in 1966 67, but the agreements to sale were entered into in 1959 62. The respective purchasers and the vendors were examined. The market value on the basis of Ext. D 2 made in the sale deed of 1962 selling only to 12.50 sqr. for Rs.260 which worked out to Rs.8712 per acre. The High Court did not say that these Exts. were rejected. By Ext. P 5, P 6 and P 32 small parcels of land, at Kumharpura were sold. Kumharpura was noted to be two to three furlongs away from the acquired land. The market rate according to these Exts. ranged from Rs. 1.88 to 2.34 per sqr. The High Court observed that these sales could not be a useful guide for determining the market value of land acquired. We are of the view that compared to Exts. P 1, P 2, P 3 and P 8 Exts. P 5 and P 6 and P 32 were less indicative of the market value of the acquired land. We feel that the appellant should have no grievance for rejection of these sales of Kumharpura. We find force in the contention of Dr. Singhvi that potential value was not taken into account in this case to the extent it should have been done. From the award dated 25.11.1972 it appears that the acquired land was situated at Village Nissatpura, within Corporation limits of Bhopal Town and consisting of Khasra No. 190/ 73, 136/74, 178/74, 135/75 76, the total area being 12.62 acres. The High Court found that the land was bounded on three sides by three roads: towards the eastern side by Berasia road; towards the western side by Sultania road; and towards the northern side by P.G.B.T. College Road. Southern boundary of the land was a Nala. The High 917 Court also noticed that the land abutted to roads, namely, Berasia road and P.G.B.T. College road and the claimant had a house on the land and that the claimant had stated that he had obtained water and electricity connection from the Corporation and the electricity Board. : 7.60 acres of land out of 12.62 acres had been diverted and the land was even. At paragraph 14 of the special leave petition it is stated that the land is approachable from two different and important localities of Bhopal Town. From Bajaria Chowk Shahjanabad, a road, called Sultania Infantry road, proceeds Military Lines called Sultania Infantry lines. On both sides of this road, there is the thickly habited locality of Shahjahanabad, till about two furlongs. Slightly ahead is the enterance porch gate of the Military lines. Just before the gate, a tarred road bifurcates on the right hand side and it enters the acquired land of Swatantra Kumar Ref. No. 1/70. This tarred road was constructed by the Trust after acquisition of the lands. It goes on all sides of village Jamalpura, which is surrounded on all sides by the lands of Ref. No. 1/70. A part of land of Ref. No. 1/70 was developed after acquisition, and the tarred road reaches the developed plots. We have to note that such detail evidence was not there before the Tribunal and no benefit of development pursuant to and after the acquisition can be taken into consideration. Even so, from the map and juxtaposition we have no doubt that the acquired land had potentialities which deserved to be counted. In U.P. Government vs H.S. Gupta, A.I.R. 1957 S.C. 202 where in computing compensation for acquisition of an estate outside the Municipal area the High Court had given valid and weighty reasons for adopting the principle that the valuation should be on plot wise though there was certain advantages in computing the value at the block rate where vast area of land was acquired, this Court held that in the circumstances of that case the proper mode of valuation was plot rate basis. In the instant case the application of the principle that if the land has to be sold in one block consisting of a large area, the rate likely to be fixed per sq. ft. would be lower than if an equal extent of land is parcelled out into smaller bits and sold to different pur chasers could not be found fault with. The price fetched for smaller extent of land similarly situated with the same kind of advantages and drawbacks can also be applied to a large area valued plot wise instead of block wise. In the instant case relying on Exts. P 1, P 2, P 3 and P~8 and considering the fact that applications were made for diversion and for sanction of a lay out plan the High Court found that it went to show that the owner was interested in developing the land and in selling it by 918 dividing it into plots. The lowest rate of price in these agreements was 14 annas per sqr. and the agreements mentioned that 4 annas per sqr. ft. Would be needed for developing the land. This charge was to be paid by the purchaser. So the price of developed land would be Rs. 1/2 per sqr. The evidence of M.P. Jain (D.W. 9), Senior Draftsman of the Improvement Trust went to show that ex penses for improvement of land ranged from Rs. 1.50 to 2 per sqr. The statement of Shri Jain was recorded in 1972. Making some allowance for the increase in the rate the High Court considered it proper to hold that in 1965 when this land was acquired the charges for improvement would have worked at 75 paise (12 annas) per sqr. It had also come in the evidence of Shri Jain that 50 to 60 per cent of the land had to be left for roads, drainage, gardens, school etc. and it was only then that the lay out plan was sanc tioned. High Court, accordingly, deducted improvement charges at the rate of 12 annas per sqr. ft., and the market rate for unimproved land in the light of these agreements worked out to 6 annas per sqr. As 50% of the land at least had to be left out for roads etc; so the market rate of 3 annas per sqr. ft. was applied for the entire unde veloped land. Market rate thus worked out to Rs.8,000 per acre approximately. However, the High Court awarded Rs. 12,000 per acre. There was an additional factors in the calculation. Mr. Krishnamurthi therefore submitted that the High Court took into consideration the potential value of the land as a developed area but while making calculation it may have committed mistake. To our mind the error was in wholly overlooking the basic price agreed to be paid by the purchaser and the standard of development they visualised. The whole of the basic price could not be expected to be eaten up by the development of the land to the standard contemplated by the vendor and purchaser. When the willing vendor has agreed to sell land at 14 annas per sqr. after development and the development charge was to be paid by the willing purchaser, it could be reasonable to deduct only 50% on account of the land to be set apart for roads, drains etc. and not beyond that. Considering this aspect of the matter and the potential value of the land as urban developed area we are of the view that the compensation may justly be enhanced by 1/6th to Rs. 14,000 per acre and we do so. We maintain 15% solatium but raise the rate of interest to 9% on the enhanced compensation from today till payment. We leave it open for the appellant to move for higher inter est and solatium if entitled by virtue of subsequent judg ment of this Court, if any. In the result, this appeal is allowed as above. We make no order as to costs. Y.L. Appeal allowed. [/INST]On 20th February, 1975, the State Government published a joint seniority list of teachers of subordinate Education Service belonging to the Boys branch, and the Higher Second ary Teachers of the Subordinate Educational Service. This joint gradation list was challenged before the High Court, but the writ petition was dismissed as also an application for review of the dismissal. The Special Leave Petition against the aforesaid decision was dismissed by this Court on 30th March, 1981. The aforesaid single cadre known as Secondary Education Service was difurcated by the State Government by its Noti fication dated 8th November 1986 under which the Subordinate Education Service (Teaching Branch) Determination of Senior ity Rules, were framed under the proviso to Article 309 of the Constitution This bifurcation scheme was challenged in the High Court. The stand of the Government was that the demand for such bifurcation was taken up in the legislature and in terms of the decision of the Implementation Committee of the Bihar Legislative Council, the new scheme for bifurcation had to he implemented. The High Court by its decision dated 27th November, 1987 quashed the Notification dated 18th November, 1986 under which the bifurcation was done. The High Court was of the view that though the authority of the state to frame rules in terms of the proviso to Article 309 was unquestionable, yet notice had to he tam of time fact that those who stood 659 together and fell in line to proceed further in the seniori ty list have to he provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the grade may not go down in due course of service, and held that the rules in the Notification dated 18th November, 1986 were ultra vires Articles 16(1) and 14 of the Constitution. Dismissing the Special Leave Petition to this Court, HELD: The High Court, rightly found fault with the State Government action, and holding that the rules in the Notifi cation dated 18th November, 1986 are ultra vires Articles 16(1) and 14 of the Constitution. [660F] Counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. [661C] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 1170 of 1973. (From the judgment and order dated the 25 4 1973 of the Andhra Pradesh High Court in Election Petition No. 4 of 1972) P. Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs. Vimala Markendeyulu, for the appellant. B. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and K. Venkata Ramiah, for the residents. The Judgment of the Court was delivered by FAZAL ALI,J. This is an appeal under section 116A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') by Venkata Reddy who was Respondent No. 1 in the election petition filed before the High Court of Andhra Pradesh. The appeal arises out of the general elections held to the Andhra Pradesh Legislative Assembly in March 1972 from Gooty Assembly Constituency. The appellant Venkata Reddy, T. Papa Sab and R. Sultan (the election petitioner before the High Court) applied for Congress ticket for the Gooty Assembly Constituency seat. The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did not recommend the name of the appellant The Andhra Pradesh Provincial Congress Committee, however; recommended. the name of R. Sultan the first respondent alone. This recommendation appears to have been accepted by the All lndia Congress Committee which gave the Congress ticket to the first respondent R. Sultan oh February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (O) ticket. The polling to the aforesaid constituency was held on March 8, 1972 and counting was done on March 12, 1972 on which date the result was also declared. The appellant was declared elected having secured 19,974 votes polled in the constituency. Respondent No. 1 R. Sultan lost by a narrow margin of 471 votes having polled 19,503 votes. The other respondents were accordingly defeated and we are not at all concerned with their cases. Respondent No. 1 R. Sultan filed an election petition before the Andhra Pradesh High Court on April 20, 1972 which was assigned to Sriramulu, J., who tried the election petition. For the sake of convenience we shall refer to Venkata Reddy as the appellant and R. Sultan who was the election petitioner before the High Court as the contesting respondent. The contesting respondent sought to challenge the election of the appellant on various grounds and alleged that the appellant had indulged in a large number of corrupt practices as envisaged by section 123 of the Act. namely, bribery, corruption, communal propaganda, impersonation of voters, excessive expenses, improper rejection and reception of ballot papers etc. The contesting respondent also filed an application before the Trial Judge that as number of irregularities were committed in tho rejection and acceptance of the ballot paper, the Court should allow scrutiny 450 and recounting of the votes. The Court, after considering the evidence of the parties on this point, eventually allowed the application, but ultimately it held that even if there was any irregularity it had not caused any material . change in the election. The petition was resisted by the appellant who emphatically denied all the allegations made by the contesting respondent and submitted that the elections were free and fair and that the appellant had not indulged in any corrupt practice at all. The appellant further pleaded that all the allegations made by the contesting respondent were figment of his imagination and were totally untrue. On the question of corrupt practices, particularly the distribution of objectionable pamphlets, as the contesting respondent had not given full and material particulars in his election petition,.the appellant filed an application on July 7, 1972 praying that the Court may direct the contesting respondent to file better particulars by way of amendment. The Court directed the contesting respondent to supply fresh particulars and accordingly the contesting respondent filed his application for amendment by incorporating material particulars on August 29, 1972. On the pleadings of the parties the High Court framed as many as 35 issues in the present case. After taking the evidence of the parties the Court decided all the issues against the contesting respondent except issues Nos. 7, 26 and 27 which were decided in favour of the con testing respondent. In view of the findings given by the learned Judge the election of the appellant was set aside, but the learned Judge refused to grant the relief to the contesting respondent for being declared as duly elected to the seat in question. It is against this decision that the appellant has come up to this Court in appeal. Mr. P. Basi Reddy learned counsel for the appellant has assailed before us the findings of the High Court on issues Nos. 7, 26 and 27 as these were the only issues which affected the appellant. Mr. B. Shiv Sankar, learned counsel for the contesting respondent has endeavoured to,support the judgment of the High Court by submitting that the findings arrived at by the High Court were based on a correct and proper appreciation of the evidence and the facts and circumstances or the record. In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances. therefore, election results cannot be lightly brushed aside in election disputes. At the same time it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the People by undue influence. fraud, communal propaganda, bribery or other corrupt practices as laid down in the Act. 451 Another principle that is equally well settled is that the election A petitioner in order to succeed must plead all. material particulars ' and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt. Where the election petitioner seeks to prove the charge by purely partisan evidence ? consisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection, and would, as a matter of prudence r though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit worthy and true, spotless and blemishless, cogent and consistent, that no corroboration to lend further assurance is necessary. It has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the election set aside by means fair or foul and the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which should be acted upon only if the Court is satisfied that the evidence is true and does not suffer from any infirmity. Where, however, the evidence led by the election petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies, the Court may refuse to accept such evidence, because consistency alone is not the conclusive test of truth Judicial experience shows that sometimes even r a tutored or parrot ' like evidence can be consistent and free from discrepancies and yet not worthy of credence. It is, however, difficult to lay down a rule of universal application because each case will have to be decided on its own facts, but in appreciating the evidence the broad features mentioned above must be borne in mind and have been emphasised by this Court in a large catena of decisions a few of them may be refer red to here. In Bhanu Kumar Shastri vs Mohan Lal Sukhadia and others,(l) this Court observed as follows: "Allegation of corrupt practice is a charge of criminal nature. The provisions in the Representation of the People Act are intended to preserve the purity of the election, but at the same time these provisions should not be subverted for the impure purposes of maligning candidates who happen to be in the Government on the eve of the election, X X X The Court is always vigilant to watch not only the conduct of the candidates and to protect their character from being defamed hut also to see that the character and conduct of the public is not corroded by corrupt motive or evil purposes of candidates. The genuine and bona fide aims and aspirations of candidates have to be protected on the one hand and mala fide abuse and arrogance of power will have to be censured on the other. " (1) 119711 I S.C.C. 370. 452 Similarly in Rahim Khan vs Khurshid Ahmed & ors.(l) Krishna Iyer, J., speaking for the Court most lucidly and aptly observed as follows: "An election once held is not to be treated in a light hearted manner and defeated candidates or disgruntled electors should ' not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, there by introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a , politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the court to uphold the corrupt practice allege against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded. " To the same effect is the decision of this Court in Abdul Hussain Mir vs Shamsul huda and Another(2) where this Court observed as fol lows: "Even so, certain basic legal guidelines cannot be lost sight of while adjudging an election dispute. The verdict at the polls wears a protective mantle in a democratic polity. The Court will vacate such ballot count return only on proof beyond reasonable doubt of corrupt practices. Charges, such as have been imputed here, are viewed as quasi criminal, carrying other penalties from losing a seat, and strong testimony is needed to subvert a Returning officer 's declaration. x x x x x When elections are challenged on grounds with a criminal taint the benefit of doubt in testimonial matters be longs to the returned candidate. Similarly in Ghasi Ram vs Dal Singh & others(3) while emphasizing the standard of proof in an election case for a corrupt practice of bribery, Hidayatullah, J., as he then was, speaking for the Court observed thus: "In Anjaneya Reddy vs Gangi Reddy and others 21 E.L.R. 247 it was held that the proof required to establish a corrupt practice must be almost of the character required to establish a criminal charge. In our opinion the law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or (1) ; (2) ; (3) ; 453 indirectly was made to an elector to vote or refrain from voting at an election. " A We have gone through the judgment of the High Court, particularly on issue Nos. 7, 26 and 27 and find that although in his prelude to the discussion on issue No. 7 the learned Judge has referred to the various authorities and has correctly adumbrated the legal propositions he does not appear to have applied the principles enunciated in the decisions correctly to the facts or the evidence covered by this issue. It also appears that the learned Judge has applied two different standards in appreciating the evidence with respect to issues Nos. 7, 26 & 27 and other issues on which he has given findings against the contesting respondent. For instance, while he has refused to accept the evidence of a partisan or an interested witness being staunch supporters of the contesting respondent on other issues, particularly issue No. 8, he has, while dealing with the evidence of the witnesses on issue No. 7 which suffers. from the self same infirmity, readily accepted their evidence without even noticing the deep interest that these witnesses had in supporting or bolstering up the case of the contesting respondent. We shall, however, refer to this aspect of the matter after we have dealt with the evidence led by the parties on these issues. In the light of the principles enunciated by us we shall now proceed to discuss and examine the findings of the High Court on issue No. 7 and the evidence led thereon by the parties. Issue No. 7 was cast by the Trial Judge thus: "Did the 1st respondent (the appellant) commit a corrupt practice under section 123(1) of the Representation of the People Act by making an offer to pay Rs. 25,000/ to the petitioner and trying to induce him not to contest the election ?" To begin with we would like to refer to the pleadings of the contesting respondent in order to show the exact material particulars averred in the election petition itself. The allegation which is the subject matter of issue No. 7 is to be found in paragraph 12 of the election petition appearing at p. 23 of the Paper Book (Vol. R. Sultan the contesting respondent had alleged that he had applied for a Congress ticket for Gooty Assembly constituency and. was ultimately granted the said ticket by the Central Election Committee, Delhi on February 1, 1972. Although the D.C.C. ad hoc Congress Committee, Anantapur, had recommended the name of the contesting respondent and others, the Provincial Congress Committee `recommended the name of the contesting respondent alone which was finally accepted by the Central Election Committee at Delhi. After having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2, 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper. The contesting respondent told Mustafa that he would be reaching Gooty on February 4, 1972, for filing his nomination papers for the Gooty Assembly constituency and that Mustafa also should reach Gooty on the morning of February 4, 1972. We might pause for a little while 454 here and notice two important averments. In the first place it was the definite case of the contesting respondent that his visit to Gooty on February 4, 1972, was for the purpose of filing his nomination papers, but it appears from the evidence that he did not file his nomination on this date but some time later. Secondly during his talk with Mustafa on the telephone the contesting respondent did not ask him to bring P.W. 29 Nabi Saheb and P.W. 33 Chinna Bhemanna with him to Gooty. Resuming the thread of averments in the election petition, the further facts are that the contesting respondent reached Gooty on February 4, 1972 at about 10 00 A.M. and proceeded to Bharat Sewak Samaj hereafter referred to as 'B.S.S. ' Building which is sometimes described as an office and sometimes as a Guest House in the evidence. P.Ws. 29 and 33 and some others were waiting for the contesting respondent at the B.S.S. Building. The contesting respondent then, along with P.Ws. 29 and 33 went to Taluk office for obtaining a copy of the voters list for the Gooty Assembly constituency and reached the Taluk office at about 11 00 A.M. While he was returning from the Taluk office the appellant met the contesting respondent and wished him and after talking for some time he made an offer of Rs. 25,000/ to be paid to the contesting respondent if he agreed to withdraw from the election and help the appellant. This offer is said to have been made in the presence of P.Ws. 29 and 33. Even after the contesting respondent refused the offer he was again persuaded by the appellant to consider the same and on his final refusal the appellant threatened that the contesting respondent was bound to face defeat in the elections. It was also alleged that the appellant took the refusal of the offer as a challenge and spent money lavishly to win the election. The last part of the averment which forms the subject matter of issue No. 8 and certain other issues has not been accepted by the High Court. These are the only particulars mentioned in the petition with respect to the offer of bribe which is the subject matter of issue No. 7. In the course of the evidence. however, a new fact was sought to be introduced by the contesting respondent, namely, that P Ws. 29 & 33 returned to the B.S.S. Building after the contesting respondent refused the offer of the appellant and then the two witnesses P.Ws. 29 & 33 narrated the entire incident to P.W. 34 Mustafa and P.W. 22 Ramachandraiah and others. This fact was introduced in order to lend corroboration to the evidence of the contesting respondent and that of P.Ws. 29 and 32. But as this was undoubtedly a material particular or an additional fact pertaining to the averments in paragraph 12 of the election petition and the same not having been mentioned has to be completely excluded from consideration. We shall. however. dilate on this matter when we deal with the evidence led by the contesting respondent on this point. In short, therefore, the story regarding the offer of bribery and the occasion for it may be conveniently divided into three stages: Stage No. 1. This stage starts with the decision of the Central Election Committee, Delhi, in giving the Congress ticket to the contesting respondent and as consequence there of his arrival at Hyderabad on February 2, 1972. On reaching Hyderabad the contesting respondent 455 who is P.W. 16 received a telephone call from Mustafa who was asked to go to Gooty on February 4, 1972 in order to meet the contesting respondent. Accordingly the contesting respondent reached Gooty on February 4, 1972 and accompanied by P.Ws. 29 and 33 left for the Taluk office. This is the end of the drama enacted in Stage No. I. The facts are proved by P.W. 16 the contesting respondent himself, by Mustafa P.W. 34 and by P.Ws. 29 and 33. It may be mentioned here that all the witnesses examined to prove the facts covered by this stage are interested witnesses who are staunch supporters of the contesting respondent and there appears to be a serious discrepancy in the evidence led on this point. It appears from the evidence that when the contesting respondent reached B.S.S. Building apart from P.Ws. 29 and 33, P.Ws. 34 and 22 were also present. P.Ws. 34 and 22 however did not accompany the contesting respondent to the Taluk office. P.W. 22 Ramachandraiah says that he did not go tor the Taluk office because of ill health and P.W. 34 Mustafa says that he did not go as he had some work at the Railway Station. It may 'also be noticed that in paragraph 12 of the election petition where the material particulars are given by the contesting respondent, while it is clearly mentioned that when the contesting respondent reached Gooty P.Ws. 29 & 33 were there, the name of P.W. 22 is not specifically mentioned as being present at Gooty. It would appear from the evidence of P.W. 22 that he was a great friend and supporter of the contesting respondent and even the learned Judge has commented on the deep interest which P.W. 22 had shown in order to support the case of the contesting respondent. It is, therefore, difficult to believe that if P.W. 22 would have been present at the B.S.S. Building how could the contesting respondent have omitted to mention the name of his most confident friend and supporter in paragraph 12 of his election petition. This taken together with the fact that P.W. 22 had given a lame excuse for not having accompanied the contesting respondent to the Taluk office clearly throws a considerable amount of suspicion on the presence of P.W. 22 at Gooty on February 4, 1972. Similarly, while P.W. 34 Mustafa gives a specific reason why he had not accompanied the contesting respondent to the Taluk office. namely, that he had some work at the Railway Station, which is also deposed to by P.W. 16 himself, yet this fact which was within the knowledge of the contesting respondent at that very time is not mentioned in the election petition. Another important circumstance that has to be noticed is that whereas in the election petition it is the definite case of the contesting respondent that he had to go to Gooty on February 4, 1972 for filing his nomination papers the evidence shows that the did not file the nomination papers at all on that date but he merely applied for the voters list of the constituency. This is important, because, while it may have been relevant for P.Ws. 29 & 33 to accompany the contesting respondent to the Taluk office if it was the question of his filing nomination papers, their presence at the Taluk office was not at all necessary if the contesting respondent had merely to take a copy of the voters list which could have been done by him alone. P.W. 16 the contesting respondent has no doubt proved the facts mentioned above. Similarly P.W. 34 has supported the contesting 456 respondent regarding his having a talk with the contesting respondent on the telephone and his being asked to go to Gooty on February 4, 1972. P.Ws. 29 and 33 have also said that they were asked by P.W. 34 Mustafa to accompany him to Gooty in order to meet the contesting respondent. Thus so far as the facts in stage No. I are concerned, whether they are true or not, they do not appear to be very relevant for the purpose of issue No. 7. Stage No. 11 This brings us to stage No. 2 which is the bulwark aud the bedrock of the case of the contesting respondent regarding the offer of bribe said to have been made by the appellant to him. So ar as this stage is concerned the only evidence that the contesting respondent has given consists of the testimony of P.Ws. 29 and 33 apart from his own evidence. We would first deal with the evidence of P.Ws. 29 and 33 before coming to the evidence of the contesting respondent himself. P.W. 29 Nabi Saheb appears to be one of the most interested witnesses and a great friend and supporter of the contesting respondent. He admits at p. 498 of the Paper Book (Vol. Ill) that both the witness and Mustafa P.W. 34 worked for the contesting respondent during the recent general elections. He then says that Mustafa approached him on February 3, 1972 and requested him and W. 33 Chinna Bhemanna to accompany him to Gooty. The witness further admits that the contesting respondent R. Sultan and he had been friends for the last ten years. A suggestion was given by the appellant that his younger brother Khaja Hussain was godown keeper of the B.S.S. at Guntakal and he was arrested on the charge of sling goods and that the contesting respondent Sultan had helped him. The witness admits at p. 501 of the Paper Book (Vol. III) that the police had no doubt arrested his younger brother who was a Godown Keeper of the B.S.S. and he further admits that the case was later shown out. He, however, denied the suggestion that Sultan helped his brother. It is, however, admitted by Sultan P.W. 16 at p. 307 of the Paper Book (Vol. II) that he was the Secretary of the B.S section and was, therefore, obviously in a position to help the brother of the witness. In these circumstances, therefore, to begin with, the Court has to approach the evidence of this witness with great care and caution because be was not only a close friend of the contesting respondent, but was also his supporter and worker and he was interested in giving evidence which may result in the election of the appellant being set aside He states that when the contesting respondent decided to go to the Taluk office on February 4, 1972, P.W. 34 Mustafa did not accompany the party because he had some work at the Railway Station with the result that P.W. 33 and the witness only accompanied the contesting respondent. The witness further stated that he accompanied the contesting respondent to the Taluk office but P.W. 33 Ramachandraiah stayed behind as he was not keeping good health. Thereafter when the contesting respondent came out of the Taluk office the party went towards the place where the car was parked when on the way the appellant met them and greeted the contesting respondent. There the appellant is said to have offered Rs. 25,000/ if the contesting respondent agreed not to contest the election. Sultan laughed and 457 spurned the offer. The witness as also P.W. 33 Chinna Bheemanna told the appellant that Sultan the contesting respondent did not require the money, when the appellant repeated the offer which was again refused. Thereafter the party returned to the B.S.S. Building where P.W. 22 Ramachandraiah and P.W. 34 Mustafa and others were waiting in the office of the B.S.S. Both the witness and P.W. 33 narrated the incident relating to the offer of bribe to Mustafa P.W. 33 and Ramachandraiah P.W. 22. P.W. 33 Chinna Bheemanna who is the other witness has narrated more or less the same facts regarding their reaching the B.S.S. Building at Gooty, their accompanying the contesting respondent to the Taluk office, the offer of bribe made by the appellant and the narration of the facts to P.Ws. 22 and 34. P.W. 16 the contesting respondent had also deposed to these facts. C The learned Judge has accepted the evidence of these witnesses because he thought that there was no major discrepancy in the testimony of these witnesses. Further more, the learned Judge, has, on a consideration of the evidence of P.Ws. 23, 38, 39 and 41, held that both the contesting respondent and the appellant were present at Taluk office on February 4 1972 near about 12 Noon and from their presence he appears to Lave presumed that the offer of bribe must have been made. We are, however, unable to agree with this somewhat unusual process of reasoning. The mere fact that the contesting respondent and the appellant happened to be present at the Taluk office on February 4, 1972, at about the same time does not necessarily lead to the inference that the appellant must have made the offer of bribe which is quite a different fact and has to be proved separately and independently. Indeed if one has to wander in the domain of conjectures, then it can be equally said of the contesting respondent that the presence of the appellant at the same day and time at the Taluk office furnished him an occasion to concoct and bolster up a case of the alleged offer of bribe by the appellant to the contesting respondent and in order to prove this allegation the contesting respondent had no difficulty by enlisting the support not of any independent witness but his own stooges hirelings or friends and supporters. While, therefore, we agree with the finding of the learned Judge that the appellant and the contesting respondent were no doubt present at the Taluk office on February 4, 1972 it by no means follow that the story of the offer of bribe is true on this ground alone. In fact the learned counsel for the appellant also has not disputed the fact that the contesting respondent or the appellant were actually present in the Taluk office on February 4, 1972 at the relevant time a fact which is proved by independent witnesses and documentary evidence. What the learned Judge has overlooked is the fact that while it is very easy to make an allegation of an offer of bribe, it is very difficult for the person against whom the allegation is made to rebut the same. The learned Judge also failed to consider that the actual offer alleged to have been made by the appellant to the contesting respondent has been proved only by the partisan and highly interested testimony of P.Ws. 29 and 33 which was sought to be corroborated by equally interested testimony of P.Ws. 22 and 34, and no attempt was made to examine any independent witness even 458 though the evidence was that at the B.S.S. Building, apart from P.Ws. 22 and 34 other persons were also present. So far as P.W. 29 is concerned we have shown that he is a thoroughly interest ed witness being a close friend of the contesting respondent. P.W. 33 Chinna Bheemanna is also a partisan witness. He admits that he was a worker of Sultan during the last elections. He further admits at p. 536 of the Paper Book (Vol. III) that he tried to procure the B ' evidence of one Sunkanna for the contesting respondent in this respect. The witness deposed thus: "Sultan asked Sunkanna to come and give evidence in this case. Yesterday when I was coming here I approached Sunkanna. But at that time he was not in his house. Then I sent another person to Sunkanna asking him to come to Hyderabad to give evidence. " This shows the extent to which the witness could go in order to support the case of the contesting respondent. The witness further admits that he was a member of the B.S.S. and therefore a colleague of Sultan. It seems to us that the evidence of P.Ws. 16, 29 and 33 regarding the offer of bribe in the circumstances mentioned by them is inherently improbable. In the first place it would appear from the topography of the spot where the talk between the contesting respondent and the appellant took place that the place was a crowded one and was situated in the heart of the Taluk office surrounded by the District Munsif Court. According to P.W. 16 apart from the District Munsif 's Court there were four other offices in that compound and that there was a crowd near the District Munsif 's Court. He also admits that there was a canteen in between the Taluk office and the District Munsif 's court where people were sitting. Similarly P.W. 29 has admitted that the canteen was situated only at a distance of 10 to 15 yards from the place where the talk regarding the offer of bribe took place and that the District Munsif 's Court was at some distance from the canteen. He also admits that the litigant public sit under the trees near the Munsif 's Court. The distance between the Munsif 's Court and the place where Sultan 's car was parked would be about 30 to 40 yards. In view of these surroundings it is most unlikely that the appellant would make an offer of bribe to the contesting respondent in such an open and crowded place where he could be exposed by Sultan at any time. The offer of bribe was undoubtedly a criminal act and the Munsif 's Court being near at hand , the appellant would have faced a grave risk in making such an offer. Further more, ' it appears that the appellant was not fully acquainted with Sultan the contesting` respondent though he may have seen him once or twice. No one makes an offer of bribe to strangers without knowing their reaction. Further more, it is impossible to believe that even if the offer of the bribe is made it would be made in the presence of the witnesses who were accompanying Sultan so that the person who makes the offer of bribe would be a party to the creation of clear evidence against him. It is absolutely against the normal and prudent human conduct to make such an offer at a crowded place in the presence of the two witnesses who were known to be the supporters of the contesting respondent and persist in making the offer in site of the blunt refusal of the same by the contesting respondent. On the other hand the natural conduct of the appellant would have 459 been to take the contesting respondent to a secluded spot where he A would not be seen or heard by any body ' and then make the offer. In fact P.W. 16 clearly suggests that the appellant had taken him aside but he says that the other witnesses did not part with his company and also came ' there and yet the appellant did not object to their presence. We find it difficult to believe that the offer of bribe would be made by the appellant in these circumstances. The learned Judge, however, has tried to draw an artificial distinction between an offer of bribe and a payment of actual bribe. He seems to think that whereas an offer of bribe could be made in a crowded place in the presence of the witnesses as no money was`to be passed, yet when actual payment of bribe was to be made it should have been done in a secluded place. This reasoning of the learned Judge is not at all intelligible to us. Under the provisions of section 123(1)(A) of the Act an offer of bribe or payment of actual bribe are both electoral offences amounting to corrupt practices which are to be visited with similar consequences. The offences of an offer of bribe or of actual payment of bribe were of the same nature and it cannot be said that one is a lesser crime and the other is a graver one. Neither the criminal law nor the election statute seek to draw any distinction between an offer of bribe or actual payment of bribe. In these circumstances, therefore, whether it is an offer of bribe or it is a payment of actual bribe, normal human conduct requires that if a person intends to commit such an offence he would not do so in a crowded place but would try to find out a secluded spot so that complete secrecy is maintained. Another important circumstance that makes the story put forward by the witness regarding ' the offer of bribe absolutely incredible is the absence of any genesis or occasion for the presence of the witnesses at the Taluk office or for that matter for accompanying the contesting respondent Sultan to the Taluk office. To begin with we have already indicated that in paragraph 12 of the election petition the main purpose of the visit of the contesting respondent Sultan to the Taluk office was to file his nomination papers. Indeed if this was the purpose of his visit one could have understood the significance of Sultan 's asking his supporters accompanying him to the Taluk office because the filing of nomination papers is one of the most important and momentous steps in the electoral process. From the evidence of the witnesses as also that of Sultan the contesting respondent it is clear that Sultan did not at all go to the Taluk office for the purpose of filing his nomination papers but had only applied for a copy of the voters list: For this purpose the presence of P.Ws. 29 and 33 was not at all necessary. Even P.W. 29 says at p. 502 of the Paper Book (Vol. III) that Sultan had told the witness that he was going to the Taluk office to purchase the voters list. Further more, even though the witnesses accompanied Sultan they do not appear to have given him any worthwhile assistance Both P.Ws. 29 and 33 categorically state that they did nothing at all at the Taluk office except sitting in the verandah. P.W. 29 states as follows: "We sat in the front verandah of the Taluk office along with Sultan. With whom Sultan spoke and what he did in the Taluk office, I do not know. " 460 It would, therefore, be clear from the evidence of this witness that except for sitting in the verandah there was absolutely no occasion for their presence at the Taluk office, nor there was any earthly reason why Sultan should have taken them to the Taluk office except for the fact that he wanted them to witness the offer of bribe. This, however, could not be possible, because there was nothing to show that Sultan knew before hand that he would meet the appellant at the Taluk office and that the appellant would make an offer of bribe to him. This circumstance, therefore, which is in some variance from the allegation made in the pleadings smacks of a concoction and throws a good deal of doubt on the presence of these two witnesses at the Taluk office. We have already indicated ' that both P.Ws. 29 and 33 are thoroughly interested witnesses. P.W. 33 apart from being a worker of Sultan is a member of the B.S.S. Of which the contesting respondent Sultan is the Secretary. The only other witness so far as the facts in Stage No. II are concerned is P.W. 16 the contesting respondent himself. P.W 16 is the most interested witness who also bears serious animus against, the appellant. It would appear from his evidence that the appellant held, at the instance of one K. Suryanarayana Reddi, filed a complaint against the contesting respondent for cheating and that the contesting respondent had filed a petition in the High Court for quashing the 3, investigation in pursuance of the complaint. He further stated that , he had also filed a criminal complaint against Suryanarayana Reddi in the Magistrate 's Court at Gooty and. P.Ws. 22 and 29 had been cited as witnesses in that case. Apart from the animus, it would also appear that P.Ws. 22 & 29 are stock witnesses of the contesting respondent to be utilised wherever and whenever necessary. Further more, P.W. 16 narrates an incident at the Travellers Bungalow at Anantapur which happened before the general elections of 1972 in the presence of Challa Subbarayudu, where again the appellant seems to have requested him not to contest the elections. This fact is not mentioned in the election petition at all and it seems to us that it has been concocted for the first time in the evidence of P.W. 16 in order to give credence to his version that the appellant had made an offer of bribe. Another inherent improbability in the version given by P.W. 16 and P.Ws. 29 & 33 regarding the offer of bribe is that the appellant i himself was aspiring for the Congress ticket and was therefore fully conscious and aware that the influence that the Congress party wielded and the resources it possessed. He was also aware that the contenting respondent Sultan was a Congress nominee having been granted the Congress ticket by the Central Election Committee and he had, therefore, the support of such a big party behind him. Would he, under these circumstances ever dare to think of making an offer of bribe and that too at a crowded place in the presence of the witnesses, of all persons to` the contesting respondent and persist in that offer even after the same was refused by the contesting respondent. These two circumstances appear to introduce an element of intrinsic infirmity in the evidence led by the contesting respondent on this point and the story appears to us to be too good to be true. 461 Another important circumstance that makes the story of the contesting. respondent on this point improbable and untrue is the fact that the appellant should have made an offer of bribe as early as February 4, 1972. According to the evidence the last date for filing nomination papers was February 8, 1972 and for withdrawal was February 11, 1972. If the appellant had succeeded in persuading the contesting respondent to accept his offer and withdraw from the Contest, even then that would not have served the purpose of the appellant because with the resourcefulness that the Congress party possessed it could have set up any other nominee immediately who would have filed the nomination papers by February 8. In these circumstances if the appellant was really bent upon seeing that no Congress candidate entered the field he would have made the offer of bribe, if any, either on February 7, 1972 or February 8, 1972, so that no chance was given to any party to sponsor any other candidate. Lastly the conduct of the contesting respondent is a clear pointer to the incredibility of the version propounded by him and his witnesses on this point. Assuming that the version given by the contesting respondent is true, then it was a very serious matter so far as the prestige of the Congress party was concerned. By offering bribe to a Congress nominee the appellant had sought to throw a challenge to the party itself. In his election petition P.W. 16 has also mentioned the fact that the appellant had thrown a challenge on his refusal that he would be defeated. It would appear from the evidence of P.W. 22 at p. 428 of the Paper Book (Vol. III) that after returning from the Taluk office and having lunch, the witness, Sultan and Mustafa r went to Anantapur. It would appear from paragraph 12 of the election petition that the District Congress Committee office is situated at Anantapur. P.W. 29 also states at p. 500 of the Paper Book (Vol. III) that P.W. 22, Mustafa P.W. 34 and Sultan left for Anantapur. P.W. 34 Mustafa also states at P. 548 of the Paper Book (Vol. III) that when the incident about the offer of bribe by the appellant was narrated to him he said that it was monstrous to sell away the Congress ticket. Indeed if this was the feeling of P.W. 16 and his supporters, then it is impossible to believe that had the offer been made by the appellant at Gooty either Sultan or his supporters would not make a complaint of this serious incident to any of the office bearers of the District Congress Committee at Anantapur, particularly when they went to Anantapur soon after the incident from Gooty. The fact that no such report or information was sent to the District Congress Committee at Anantapur or any where else, throws a mountain of cloud of suspicion and doubt on the version put forward by the contesting respondent. The learned Judge has noticed some of the improbabilities mentioned above but not all of them and seems to have brushed them aside on trivial grounds and has readily accepted the evidence of the P. Ws merely because there was no major discrepancy in the evidence of the witnesses. In our opinion, the approach made by the learned Judge was not correct. If the broad probabilities and the unusual conduct of the contesting respondent and the witnesses rendered the version presented by them unbelievable or doubtful, then the Court could not refuse to take notice of such 15 522SCI/76 462 circumstances. For these reasons, therefore, we find ourselves unable to agree with the learned Judge that the offer of bribe at Gutty Taluk office as alleged by P.W. 16 and P.Ws. 29 & 33 was made by the appellant to P.W. 16. We therefore disbelieve the facts sought to be proved by the contesting respondent in Stage No. II. This bring us to the last scene of the drama, namely Stage No. Ill. According to the contesting respondent, after the offer made by the appellant to the contesting respondent was refused by him in the Taluk office, the contesting respondent along with P.Ws 29 and 33. returned to the B.S.S. Building at Gooty. On return to the B.S.S. Building they found P.Ws. 22 Ramachandraiah and P.W. 34 Mustafa there. According to P.Ws 29 and 33 the witnesses were laughing and when they were asked by P.Ws. 22 & 34 they narrated the entire incident which had happened at the Taluk office. According to P.W. 16, however, when he arrived at the B.S.S. Office after his visit to the Taluk office P.Ws 22 and 34 asked him as to what is the news, and instead of replying to them P.Ws 29 & 33 narrated the incident which happened at the Taluk Office, namely, the offer of the bribe. P.Ws 29 & 33 have, however, given a slightly different version. But what is most extraordinary in this incident is that whereas in ordinary circumstances we would have expected Sultan the contesting respondent himself who was the hero of the whole show and to whom the offer of the bribe had been made by the appellant to narrate the facts to his friends P.Ws. 22 and 34, but instead of that Sultan remained absolutely silent and P.Ws. 29 & 33 were assigned the role of doing the talking. This conduct of the contesting respondent is not at all understandable. Again there does not appear to be any good reason why P.W. 22 Ramachandraiah and P.W. 34 Mustafa were left behind and not taken to the Taluk office. According to P W. 22 he did not go because of ill health. This appears to us to be a figment of his imagination. If P.W. 22 in spite of his ill health could come all the way from his house to the B.S.S. Office and waited there right from morning until the afternoon, there was no reason why he should not have accompanied the contesting`respondent to the Taluk office. P.W. 34 gives a lame excuse that he had some work at the Railway station and, therefore, he could not accompany the party to the Taluk office. It seems to us that as the allegation regarding the offer of bribe was a totally untrue one and no independent witnesses would have been prepared to support this version, the contesting respondent hit upon a plan to prove this allegation through his supporters and friends by making two of them to overhear the alleged offer of bribe and the other two namely P.Ws. 22 & 34 to remain at the B.S.S. Office to hear the narration of the said offer and thereby produce a corroborative evidence. ` otherwise we do not see any earthly reason why P.W. 34 Mustafa who was playing a leading part in the drama enacted on February 4, 1972 and who was responsible for getting the programme from the contesting respondent and collecting his other friends at Gooty should not have accompanied the contesting respondent to the Taluk office in order to help him in getting the forms and stayed away on the lame excuse that he had some work at the Railway Station. It appears to us that according 463 to the evidence of P.W. 16 as also the averments made by him in the election petition P.W. 34 Mustafa was taking a very prominent part in the affairs of the contesting respondent on his return to Hyderabad. It was he who telephoned the contesting respondent, brought his companions to Gooty, stayed at Gooty and accompanied the contesting respondent and others to Anantapur, and yet he did not accompany the contesting respondent to the Taluk office. It seems to us that P.Ws. 22 & 34 were deliberately made to stay at the B.S.S. Office so 4 as to corroborate the story put forward by P.Ws. 16, 29 and 33 being persons to whom the story was immediately narrated. Apart from this there does not appear to be any object for keeping these two persons at the B.S.S. Office. Finally the evidence shows that apart from P. Ws. 22 & 34 there were other persons present at the B.S.S. Office but none of them has been examined to support the version given by P.Ws. 22 & 34. These two witnesses were close friends and supporters of P.W. 16 and their evidence would not inspire any confidence. So far as P.W. 22 is concerned he admits that he worked for the election of Sultan at Gooty and supported the Congress party. He further admits that he toured various villages with Sultan. He was also the counting agent of Sultan having been appointed by him as per Ext. He was also an employee of the B.S.S. and had been appointed by Sultan. Sultan was the Managing Director of Brim Stone Rubber Products Ltd. The witness was a partner of the firm which had the sole agency for the products of the aforesaid firm. Apart from that the witness admitted that he was a staunch supporter of the Congress. Even the learned Judge has clearly observed that this witness was keenly interested in the future of Sultan and in this connection, while dealing with issue No. 8, the learned Judge observed as follows: "Because of the great enthusiasm shown by this witness (P.W. 22) in the witness box while giving evidence on be half of the petitioner, which is still fresh in my mind, I am unable to accept the evidence of this witness as disinterested evidence. " The learned Judge, however, appears to Have readily believed the evidence of this witness on issue No. 7 forgetting the scathing remarks which he himself had made on the demeanour of this witness with regard to the issue No. 8. Similarly P.W. 34 Mustafa is also an equally interested witness and admits that he worked for the Congress and he had been a friend of Sultan for ten years. He also admits that he had worked for Sultan even in the 1962 elections. In these circumstances, we are unable to place any reliance on the evidence of this witness. In fact if the evidence of P.Ws. 16, 29 & 33 is disbeileve do the question of the offer of bribe, then the evidence of P.Ws. 32 & 34 also falls automatically, because if there was no offer of bribe there was nothing to be narrated to these witnesses. Finally, the most important ground on which the evidence of these two witnesses has to be completely excluded is the fact that P.Ws. 29 & 33 narrated the incident 464 to these two witnesses which is undoubtedly a very material particular and it is conspicuous by its complete absence in paragraph 12 of the election petition where the facts on which issue No. 7 was framed have been pleaded. The facts deposed to by P.Ws. 22 and 34 are not merely a matter of evidence but a very important material particular which seeks to corroborate the interested evidence of P.Ws. 16, 29 & 33 and it is difficult to believe that had this been true the contesting respondent would not have cared to mention this fact in his petition. In This connection it may be interesting to note that P.W. 16 has admitted in his evidence at p. 303 of the Paper Book (Vol. II) that on 15th or 16th of March, 1972 the Returning officer had suggested to the contesting respondent to file an election petition if he was defeated and since then the witness was making enquiries to collect material for filing an election petition. If this was really so and the contesting respondent was careful enough to gather the materials long before he filed his election petition, it is difficult to comprehend that he would make no mention of this important fact in his petition. Lastly the contesting respondent states in his evidence at p. 304 of the Paper Book (Vol. II) that in respect of the threats said to have been administered by the appellant on 5th or 6th of March, 1972, he had drawn the attention of the police officer and had contacted the Deputy Superintendent of Police of Guntakal. Indeed if the contesting respondent was so vigilant would he not have drawn the attention of any police officer of Gooty to the offer of bribe made by the appellant or the threats or challenge thrown by him to the contesting respondent ? In view of the improbabilities and the compelling circumstances mentioned above, we are clearly of the opinion that the contesting respondent has not been able to prove his allegation regarding the offer of bribe made by the appellant to the contesting respondent at the Taluk office as alleged by him beyond any shadow of doubt. The learned Judge has observed that as against the evidence produced by the contesting respondent there is a bare denial by the appellant. The learned Judge seems to have laid stress on the words that the appellant alone has denied the allegation and seems to suggest that he has not examined any witnesses in support of the denial. The learned Judge failed to appreciate that according to P.Ws. 16, 29 & 33 there was no one else at the time when the appellant had made the offer of bribe to the contesting respondent excepting four persons, namely, P.W. 16 Sultan, P.W. 29 Nabi Saheb, P.W. 33 Chinna Bheemanna and the appellant. The three persons deposed in support of the story of the contesting respondent and the appellant was, therefore, left alone who denied the story completely. It could not be expected of the appellant to concoct or procure witnesses when there could be none. As the offer of bribe was an electoral offence amounting to a corrupt practice which partakes of a quasi criminal nature, the onus was initially on the contesting respondent to prove this fact. As the contesting respondent has failed to prove this fact. he must fail. Indeed if such serious and momentous allegations made against successful candidate are allowed to be proved by interested and partisan evidence as in the present case without any corroboration and where 465 the evidence adduced is highly improbable and unworthy of credence, it would give an easy handle to any defeated candidate to unseat a duly elected candidate by collecting evidence of his friends and supporters which will undoubtedly destroy the very sanctity and purity of the electoral process. Thus in view of the cumulative effect of the compelling circumstances, the inherent improbabilities me intrinsic infirmities and ;` the unnatural human conduct disclosed by the evidence produced by the contesting respondent leads us to the inescapable conclusion that the contesting respondent has failed to prove the allegation of the offer of bribe which is the subject matter of issue No. 7 beyond any shadow of doubt. Therefore issue No. 7 is decided against the contesting respondent and the finding of the learned Judge in favour of the contesting respondent on issue No. 7 is set aside. This bring us now to the discussion of issues Nos. 26 & 27, the only other issues which remain to be decided in the present appeal. Issues Nos. 26 and 27 may be extracted thus: (26) "Whether the 1st respondent (the appellant) committed a corrupt practice under section 123 (3 A) of the Representation of the People Act by issuing a pamphlet dated 20 2 1.972 to create ill feelings among the voters on religious D grounds and if so, has it materially affected the result of the b election of the petitioner as stated in para 39 of the Election Petition ?" (27) "Whether the said persons distributed the pamphlet with the consent of the 1st respondent (the appellant) ?" The facts comprising issues Nos. 26 & 27 are mentioned in paragraph 39 of the election petition and relate to two separate and independent allegations (1) The distribution of objectionable pamphlets of the nature of Ext. A l, which contained communal propaganda and sought to persuade the voters to vote on purely communal grounds, personally by the appellant to various persons in various villages; and (2) the distribution of such pamphlets by the workers and agents of the appellant with his consent to a number of persons belonging to a large number of villages. It would, therefore, be seen that the two types of allegations are essentially different and cannot be said to form one composite allegation. We have adverted to this aspect of tile matter because Mr. Basi Reddy for the appellant has vehemently con tended before us that no foundation has been laid by the contesting respondent in his election petition regarding the distribution of the pamphlets by the workers and agents of the appellant as indicated in item (2) supra. It was further contended that this matter does not merely constitute a material particular of a specific fact which should have been mentioned in the petition but is a separate item of fact itself and as there is no allegation to this effect in the election petition the same should be excluded from consideration and the evidence given by the contesting respondent on this point must be completely ignored. The learned counsel for the contesting respondent, how ever, sought to repel this argument on the ground that a broad construction of the petition filed by the contesting respondent would 466 clearly show that sufficient foundation has been laid in the petition for these allegations which were later amplified by giving the material particulars after the application for amendment of the petition was made by the contesting respondent before the High Court. In these circumstances we would like to dispose of the contention of the parties on this point before proceeding to the merits of issues Nos. 26 & 27. In paragraph 39 of the election petition, as it stood before the amendment, the contesting respondent alleged that the appellant had issued a pamphlet dated February 20, 1972 in furtherance of his election prospects and the pamphlet issued was distributed among the voters throughout the Gooty Assembly constituency which caused ill feelings among the voters on Religious grounds. It was further alleged that by distributing the pamphlet the appellant indulged in creating hatred and ill feelings among the voters in the constituency and there fore committed corrupt practice. In order to understand the import of the allegations made in paragraph 39 of the petition it may be necessary to extract the relevant part of it thus: "39. The petitioner states that 1st respondent (the appellant) issued a pamphlet dated 20 2 72 for the furtherance of his election prospects and the pamphlet issued and distributed among the voters `throughout the Gooty Assembly. Constituency has caused lot of set back and it created ill feelings among the voters on religious grounds. He criticised the Muslim voters on religious and communal lines. * * The petitioner received several complaints in the village that the pamphlet issued and distributed by 1st respondent has caused feelings of enmity, hatred between Hindus and Muslims and this has created disharmony among the voters. * * The pamphlet issued and distributed by the Ist respondent is herewith enclosed as annexure No. 5. " We have underlined the portions on which we propose to lay particular emphasis. It would be seen from the perusal of the allegations made in paragraph 39 extracted above that there is absolutely no averment that the pamphlet issued by the appellant was distributed by the agents, workers of supporters or friends of the appellant. The only fact averred in pagagraph 39 of the petition is that the pamphlet in question was distributed by the appellant alone. This fact is clearly evident from the portions extracted and underlined by us. In these circumstances it was rightly contended by the learned counsel for the appellant that there was no pleading at all by the contesting respondent that the pamphlet was distributed by his agents, workers or supporters and therefore the particulars supplied by the contesting respondent in his application for amendment on this point must be completely disregarded. In order to appreciate this contention it may be necessary to examine the concerned provisions of the Act. Section 81 of the Act clearly provides that the election petition shall be filed within forty five days from the date of election of the returned candidate and runs thus: 467 "81. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if There are more than one returned candidate at the election and the dates or their election are different, the later of those two dates. " It is obvious, therefore, that any allegation of corrupt practice which is not made in the election petition filed within the time allowed by the statute cannot be allowed by way of an amendment under section 86(5) of the Act, because that would amount to extending the period of limitation peremptorily fixed by the Act. Power of amendment of the election petition as contained in section 86(5) of the Act is clearly confined to allowing the particulars of any corrupt practice which has been set out and clearly alleged and specified in the election petition. Subsection (5) of section 86 of the Act runs thus: "The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which have the effect of introducing particulars of a corrupt practice not previously alleged in the petition". It would be seen that the ambit of this statutory provision is extremely narrow so that the power of amendment or amplification is restricted only to amplify the material particulars of any corrupt practice which had been previously alleged in the election petition. In other words, the sub section requires three essential conditions to be fulfilled before an amendment could be allowed (1) that the amendment seeks merely to amplify the particulars of a corrupt practice; (2) that the corrupt practice whose particulars are to be given must have been previously alleged in the election petition itself; and (3) that the amendment is, in the opinion of the Court, necessary For ensuring a fair and effective trial of the petition. Thus the three conditions mentioned above are the sine qua non for the exercise of the power by the court under sub s (5) of section 86 of the Act. It is, therefore, manifest that the Court has no power to allow the amendment by permitting the election petitioner to amplify a material particular of a corrupt practice which is not specifically pleaded in the election petition itself for that would amount to introducing a new corrupt practice after the expiry of the period of limitation a result which was never envisaged or contemplated by the statute. This matter fell for determination of this Court in Samant N. Balakrishna etc. vs George Fernandez and others etc. ,(1) where Hidayatullah, C.J., speaking for the Court observed as follows: (1) ; 468 The power of amendment is given in respect of particulars but there is a prohibition against an amendment which have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice he cannot br permitted to give particulars of the corrupt practice. * * * In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action. Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. if it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on * * * * If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later nut where the material facts themselves are missing if is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition" In our opinion the facts of the present case and the nature of the averment contained in the election filed by the contesting respondent is clearly covered by the ratio of the decision cited above. It may be pertinent to note that in this case also the question is whether publication of false statements was by the candidate himself or by his agents and since what has been pleaded is only the distribution of the pamphlet by the appellant/candidate alone and not by his agents or workers with his consent, the court had no jurisdiction to allow particulars to be given with respect to the fact that pamphlet was distributed by the agents and supporters of the appellant to various persons in various villages as given in the schedule. The learned counsel for the contesting respondent conceded the central weakness in this part of the case but he tried to persuade us to hold that the words "pamphlet issued and distributed among the voters throughout the Gooty Assembly Constituency" tend to include not merely the distribution of the pamphlet by the appellant himself but also by his agents and workers. We are, however, unable to agree with this contention because reading the averments contained in paragraph 39 as a whole, however the broadly or liberally the same may be construed, the irresistible 469 inference is that the contesting respondent has laid special stress on the fact of distribution of the pamphlet by the appellant alone. At least at three places underlined by us in the extracted. portion of the pleadings of the contesting respondent he has over emphasized the fact that the distribution of the pamphlet was made by the appellant him self. Wherever the averment of distribution of the pamphlet is made in the election petition it is said that the same was done by the 1st n respondent before the High Court, namely the appellant. In these circumstances, therefore, we are not in a position to agree with the r interpretation sought to be placed by Mr. Shiv Shankar learned counsel for the contesting respondent on the pleadings of the contesting respondent which in fact is not borne out by the allegations mentioned in paragraph 39 as extracted above. The learned counsel for the con testing respondent with fairness and ingenuity did not pursue the matter further and submitted that if his contention regarding the wider interpretation which he sought to put is not accepted, then he would concede that the amendment in respect of issue No. 27 should not have been allowed and the particulars mentioned by the contesting respondent on this item must be disregarded and the evidence given by the contesting respondent should be excluded from consideration. It appears, however, that as the attention of the learned Judge does not appear to have been drawn to this aspect of the matter he allowed 11 ' the amendment as also the evidence on issue No. 27 and also proceeded to give his finding thereon. As, however, this is a pure question of law and amounts to violation of the statutory mandate contained ill section 86 (5) of the Act, this Court has to give effect to the violation of the statutory provision. For those reasons, therefore, we hold that there is no pleading by the contesting respondent that the pamphlet was distributed by the agents or workers of the appellant with his consent to various persons. The, order of the High Court, therefore, along with the particulars given by the contesting respondent in item 1A in the schedule to the application for amendment is set aside and the said amendment is deleted from the election petition. As a legal consequence thereof the evidence given by the contesting respondent on issue NO. 27 has to be excluded from consideration and the finding of the learned Judge on issue No. 27 is hereby set aside and issue No. 27 is deleted. This disposes of the finding of the High Court so far as issue No. 27 is concerned. Before dealing with the facts comprising issue No. 26 it may be necessary to mention a few circumstances which may be extremely relevant for examining the probative value of the case of the contesting respondent on this issue. The election petition was filed before the High Court on April 20, 1972 i.e. about a month and a few days after the results of the election were announced. The contesting respondent has clearly admitted in his evidence at p. 303 of the Paper Book (Vol. II) that as far back as March 15, 1972 he had started making enquiries and collecting materials for filing the election petition. The witness stated thus: "All this talk metween Ravindra Choudhary and myself took place at about 3 00 P.M. at the Gutti Bus Stand on 15th or 16th of March 1972. It was on the very day when the 470 Returning officer suggested to me on phone to file an Election Petition that that idea entered into my mind to file an election petition in case I was defeated. Since then I was making enquiries to get material for filing an election petition. Whenever I used to get any information regarding the elections, I used to go to those places to make enquiry." To begin with, therefore, the contesting respondent had started making full and frantic preparations for filing election petition a month before he filed the same. In these circumstances it can be safely presumed that before filling the election petition the contesting respondent must have collected all the materials which enabled him to give the necessary details and material particulars of the corrupt practices which he sought to allege against the appellant and which formed the bedrock of his case. Against this background therefore we should have expected the contesting respondent to mention not only the corrupt practices committed by the appellant but also to give various particulars thereof without taking recourse to the necessity of having to amplify the particulars by virtue of an amendment and that too when reminded of the same by the appellant himself. So far as the allegations in paragraph 39 are concerned it would appear that prior to the amendment no particulars or detail of distribution of the pamphlet had been mentioned by the contesting respondent at all. All that was said was that the appellant had distributed the pamphlet of a communal nature in order to incite communal feelings between the Hindus and the Muslims. It was not stated to whom the pamphlets were distributed by the appellant and on what dates were the pamphlets distributed by the appellant, to the villagers. Neither the names of the villages nor of the persons to whom they were distributed were mentioned. In fact when we deal with the evidence on this point it would appear that before filing the election petition the contesting respondent had been fully apprised of the fact that the pamphlets had been distributed to various persons in various villages and yet he failed to give any further particulars in the election petition. Continuing the historical background of the election petition the position is that two days after the election petition was filed the High Court closed for vacation on April 22, 1972 and re opened on June 10, 1972. Even after the re opening no attempt was made by the contesting respondent to file an application for amendment nor to amplify the material particulars of the corrupt practices which he alleged in paragraph 39 of the petition. Strangely enough it was the appellant who filed an application on July 27, 1972, i.e. after about a month and a half later, where r ' in he prayed to the Court that the contesting respondent may be directed to file better particulars of the corrupt practice alleged by him. Even after the contesting respondent was reminded by the appellant through his application the contesting respondent took full one month to file his application for amendment which was subsequently allowed by the Court. By virtue of the amendment the only particulars that the contesting respondent gave were the names of the villages given in a schedule where the appellant distributed the pamphlet and the dates on which the pamphlet was distributed. In spite of having been given a full and complete opportunity to disclose the essential details 471 and the material particulars of the distribution of the pamphlet by the A appellant the contesting respondent did not mention the name of a single person to whom the pamphlet had been distributed by the appellant, whereas the evidence led by him shows that some of the individuals to whom the pamphlet is alleged to have been given by the r appellant had actually informed the contesting respondent of this fact well before the election petition was filed and quite a few months before the amendment was asked for. This belated conduct on the part of the contesting respondent speaks volumes against the credibility of the 'material particulars which appear to have been given by him through the amendment. The learned Judge in approaching the veracity of the witnesses produced by the contesting respondent on this point has attached great importance to those witnesses who have themselves produced the pamphlet Ext. A l and seems to be of the opinion that but for the evidence of such witnesses, the evidence of other witnesses who gene rally spoke about the pamphlet having been given to them by the appellant should not be accepted. We are, however, of the opinion, , that the approach made by the learned Judge on this aspect of the matter is not legally sound. The basic fact which had to be deter mined was whether the pamphlet was in existence before or during the elections, because there was no dispute that the pamphlet was undoubtedly printed somewhere. If the test applied by the learned Judge was that the pamphlet should be produced by the witnesses to whom the same was given it would be very easy for the contesting respondent to hand over the pamphlet to the witnesses before they came to depose before the Court and ask them to produce the same in the Court. This sort of a computerised approach cannot be a safe criterion for determining the truth of the allegation that the pamphlet was actually distributed by the appellant to the witnesses concerned. Before going to the evidence, we would like to discuss the law on the subject. Distribution of an objectionable pamphlet is undoubtedly a corrupt practice within the meaning of sub section (4) of section 123 of the Act which runs thus: "(4). The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election. " In fact on the allegations of the contesting respondent, publication of the pamphlet containing communal propaganda would also attract sub section (3A) of section 123 of the Act. The allegation of publishing an objectionable pamphlet is indeed very easy to make but very difficult to rebut. At the same time it puts the 'Court on the ' strictest possible scrutiny because objectionable pamphlet can be printed by any body in any Press with utmost secrecy and if a corrupt practice can be sought to 472 be proved merely by publication of a pamphlet then it will amount to giving a free licence to any defeated candidate to get an objectionable pamphlet published and circulated to his supporters and to make them say that such pamphlet was printed or published or circulated by the successful candidate. In these circumstance therefore, the Court frowns on the evidence regarding the publication of the pamphlet which s comes from tainted or interested sources. In Baburao Bagaji Karemore and others vs Govind & others(L) this Court laid down certain tests to judge the evidence regarding the publication or distribution of objectionable pamphlet and observed as follows: "It appears to us that when an election of a successful candidate is challenged, particularly on ground of corrupt practice, it is not unknown that attempts are made to manufacture or bring into being subsequent to the declaration of the result, documents or other material, which could be used for unseating a successful candidate. At any rate, when any impugned document is hotly contested on that ground and it is the case of the respondent that it was brought into existence subsequently, the onus on the petitioner who challenges the election on that ground is all the more heavy. " In the instant case the appellant has emphatically denied the publication of the pamphlet of the nature of Ext. A l or the distribution of the same to any body. Thus both the publication of the pamphlet and distribution thereof appears to be hotly contested by the appellant in this case. In these circumstances, therefore, it was the bounden duty of the contesting respondent on whom lay the initial onus to prove that the pamphlet was published and distributed by the appellant. There is absolutely no direct evidence to prove that the pamphlet concerned was in fact published, printed or caused to be published or printed through any agency of the appellant. On the other. hand there is evidence to show that the contesting respondent has a press of his own and the possibility that he might himself have got the pamphlet printed with a view to set at naught the election of the appellant cannot be reasonably excluded. The High Court seems to think that as the pamphlet contained communal propaganda and incited the Hindus against the Muslims the same could not be printed by the contesting respondent who was a Muslim himself. This argument fails to consider that if an unsuccessful candidate whatever be his caste or creed, files an election petition with the avowed object of unseating the successful candidate he generally stoops to all devices in order to show that the successful candidate was guilty of such corrupt practices which may lead the Court to unseat him. If an unsuccessful candidate is motivated by this consideration, the religion or caste to which he belongs is wholly irrelevant for the purpose which is sought to be achieved. We do not mean to suggest for a moment that the pamphlet in question was in fact printed or published by the contesting respondent but if the contesting respondent wanted to print such a pamphlet there as nothing to stop him from doing that since he had a press of his own and as he was the owner of the press the matter (1)[1947] 3 C.C. 719. 473 could have been kept absolutely secret. On the other hand there is no evidence to show that the appellant owned any press at all. The dominant fact in such a case which had to be proved was whether the pamphlet had come into existence either before or during the elections. Unless we believe the evidence of the witnesses produced by the contesting respondent ' on this point in toto it will be difficult to hold that the pamphlet was published or distributed by the appellant. the appellant has produced respectable witnesses to show that if such an objectionable pamphlet as Ext. A l had been published and circulated, the witnesses would have know about it. In other words, the appellant sought to prove the negative aspect of the existence of the pamphlet and that is all that he could have done. The learned Judge appears to have brushed aside the evidence of these witnesses merely on the ground that their evidence does not exclude the possibility of there being a pamphlet like Ext. A l which was not brought to their notice. Indeed if this artificial approach is made to the evidence of such a nature, then it would be asking the successful candidate to prove the impossible. We shall, however, advert to this aspect of the matter when we deal with the evidence produced by the appellant on this point. With this preface we shall now proceed to consider the evidence produced by the contesting respondent in proof of issue No. 26. By virtue of the application for amendment filed by the contesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many as 26 villages but at the trial the contesting respondent had adduced evidence only to show that the pamphlet was distributed by the appellant to various persons on various dates at four places namely, Gooty, Yadiki, Gundala and Guntakal. There were some other villages mentioned where the workers of the appellant are alleged to have distributed the pamphlet but that has to be ignored in view of our finding on issue No. 27. The evidence adduced by the parties on this question may be reduced in the form of the following chart. In this chart the witnesses examined by the petitioner/contesting respondent are for short referred to as "P.Ws." and the witnesses examined by the appellant as "R.Ws.". Name of Village Date Persons to whom Evidence of witnesses pamphlet distributed Gooty 27 2 72 PWs 21&22 BY p. Ws 21 & 22 R.Ws.2,14,15,22 and 24. Yadiki 28 2 72 P.Ws.27,28,35, By P.Ws. 27,28,35 37 and 40 37 & 40 R.Ws 11 12, 13,16, 17 & 32 Gundala 5 3 72 P.Ws 1, 2, 3, 4, By P.W.s 1 4 & 8 and 8. R.Ws. 1 & 32 Guntakal 22 2 72 P.Ws. 24, 25, By P.Ws. 24, 25 33 & 36 33 & 36 R.Ws. 3, 5, 7,8,9,10, 25, 27, 28 & 30 474 Before taking up the evidence of the parties led on the allegations regarding the distribution of pamphlet by the appellant personally it may be necessary to set out a few important principles in the light of which the evidence has to be appreciated. In the first place it may be necessary to extract the relevant portions of the pamphlet itself to show the offensive and objectionable nature of the same with a view to find out whether a person like the appellant could go to the extent of publishing such a clumsy pamphlet, which runs thus: "Everywhere Muslims are given importance by the congress and the Congress is ruining the future of Hindus. In every election Muslims always vote for a Muslim candidate. When that is the case, what is there wrong if all Hindus vote for me who is a Hindu candidate ? Muslims have committed many atrocities and still the Congress is giving importance to the Muslims. For example, Mr. Baraktullah Khan is made Chief Minister in Rajasthan and Mr. Mohd. Ismail who is not well known in Andhra Pradesh is made the President of the Congress in the State. * * * In Hyderabad Muslims are given too much importance. The said Ismail in order to give representation and importance to his Muslim religion, has given in our State nearly 20 seats to Muslims. This is an act of are to the Hindus. Is it not atrocities of Pakistan, horrible incidents of Bangladesh, murders of Navakhali an insult to the Hindu race and religion for ever ?" A perusal of the recitals of the pamphlet would clearly reveal the fact that it is couched in a most offensive language which is bound not only to hurt and injure the sentiments of the Muslims of the constituency but has also the effect of inciting one community towards another on purely communal grounds. The allegations made in the pamphlet are sufficient to alienate not only the sympathy of the Muslim community completely but also of a large number of Hindus who have a secular outlook which is the very fundamental feature of our Constitutional set up. In the first place the evidence led by both the parties clearly disclosed that there was a considerable section of Muslim population whose votes could not have been ignored or over looked by any candidate who really wanted to succeed. The first premise to start with, therefore, is whether the appellant could have taken the risk of offending the entire Muslim community and a sizable section of the Hindus also by publishing and circulating the pamphlet in question. Secondly, the language of the pamphlet is so strong and conspicuous that it is difficult to believe that the Government officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet Ext. A l if in fact it was published and widely circulated in many villages. Thirdly, we must not forget that the appellant had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the appellant by any possible means. 475 Finally, if the pamphlet like Ext. A 1 was really distributed and circulated and the contesting respondent had come to know about the same, it is not at all probable to believe that he would have failed to give the names of the persons from whom he got the knowledge of The pamphlet in the material particulars which he has set out in support of his allegations in paragraph 39 of the election petition. It is against the background of these admitted facts that we now come to the evidence led by the parties. So far as the village Gooty is concerned the contesting respondent has examined only two witnesses to prove that the pamphlet Ext. A l was distributed by the appellant personally. These two witnesses are P.Ws. 21&22. The evidence of P.W. 21 need not detain us because the learned Judge has disbelieved the evidence of this witness and has observed as follows: "In my opinion, the evidence of Kulleyappa (P.W. 21) is not trustworthy. I do not, therefore, consider it proper to rely upon the evidence of this witness. I, accordingly reject it. " After having gone through the evidence of this witness, we find ourselves in complete agreement with the opinion of the learned Judge as disclosed above. The only other witness who remains is P.W. 2 ', who, as we have already pointed out while dealing with the allegation of bribery, is the most interested witness and a staunch supporter of the contesting respondent. Even the learned Judge has commented adversely on the interested nature of the evidence of this witness as indicated by us in our judgment while dealing with issue No. 7. It would appear that P.W. 22 was not only a supporter of the Congress and of the contesting respondent but was also employed by Sultan in the B.S.S. He acted as the counting argent of Sultan and was a partner in a firm which was the sole agent on Brim Stone Rubber Products a company belonging to Sultan. The learned Judge while dealing with the evidence of this witness even on this point has clearly observed that he was prepared to fill in all the missing links in the case put forward by the contesting respondent. In this connection the learned Judge observed as follows: "This witness has, no doubt, tried to plug in the loop holes, or come to the aid of the petitioner, Sultan, whenever there was none to offer the missing links in the evidence adduced on behalf e petitioner. Y. Ramachandraiah was also a business partner and an employee of the B.S.S. (Bharat Sevak Samaj). Those facts, in my opinion, show that he is an interested witness. " Having made these comments, the learned Judge has still accepted the evidence`of this witness. This would have been sufficient to dislodge the evidence of this witness completely. But even on its intrinsic merits the evidence of this witness does not inspire confidence. To begin with, the witness admits that the appellant had come to his house at 8 A.M. On Sunday February 27, 1972 and requested him to help the appellant. In the first place it is difficult to believe that the 476 appellant would of all persons try to enlist the help of P.W. 22 knowing fully well that he was an old friend and a staunch supporter and a close and intimate friend of the contesting respondent. P.W. 22 narrates a most interesting and incredible story. According to him when the appellant went to him and asked for his support the witness refused and despite his refusal the appellant was foolish enough to give him the pamphlet Ext. A l although the witness told him clearly that he was supporting the Congress and that he was an important person of Gooty and, therefore, it was not good for him to ask for the witness 's support. Thereafter the appellant is said to have made a communal appeal to the witness more or less on the same lines as mentioned in the pamphlet. Thereafter the witness gave a sermon to r the appellant and advised him not to seek votes on the basis of religion and caste. Even after all this happened, the appellant is said to have given the pamphlet to the witness. This story appears to us to be wholly improbable and against normal human conduct. Thus, in these circumstances the appellant would not have handed over the best evidence against him to his enemies, namely the pamphlet, knowing fully well that he was a staunch supporter of the contesting respondent. Lastly the witness states thus: "On that evening I went to Guntakal, met Sultan and , narrated to him what all had transpired between Venkatareddy and myself. I also showed to Sultan the pamphlet that was given to me by Venkatareddy. I read the pamphlet carefully and I gave that pamphlet to Sultan. " Indeed if what witness stated was true and the contesting respondent " was apprised of the entire story on the evening of February 27, 1972 i.e. about two months before the election petition was filed, would he have failed to mention the name of P.W. 22 and the story revealed by him in the allegations made in paragraph 39 of the petition regarding the distribution of the pamphlet ? Even if he had failed to do that; would the contesting respondent not gave at least mentioned the name of the witness as also the details narrated by him in the material particulars in support of the allegations in paragraph 39 which were inserted by virtue of the application for amendment ? All these facts are completely absent from the averments made in paragraph 39 either before or after the amendment. All this shows that the witness has deposed to a cock and bull story which cannot be believed for a moment. For these reasons, therefore, we are not at all impressed with the evidence P.W. 22 ? and we reject the same. P.W. 21 having been disbelieved by the Court below and P.W. 22 by us there is absolutely no evidence left to prove the allegation that the pamphlet Ext. A l was distributed by the appellant personally in the village Gooty. Thus the contesting respondent initially failed to discharge the onus which lay on him to prove the distribution of the pamphlet by the appellant to P.Ws. 21 and 22. In the above view of the matter it may not have been necessary to deal with the evidence led by the appellant which is more or less of a negative character. Nevertheless we would only refer to the evidence r of four respectable witnesses who have been examined by the appellant which throws a flood of light on the question. 477 R.W. 2 was a sub Inspector of Police at Gooty and states that he had accompanied the procession taken out by the appellant. The categorically states that no pamphlet like Ext. A l was distributed. The witness had made arrangements for the procession and it is obvious that if any pamphlet like Ext. A l had been distributed, the same would have come to his notice. The witness further deposes that many pamphlets were distributed by various contesting candidates and all the pamphlets coming to his notice were sent to the Superintendent of police. The learned Judge has commented on the fact that the witness did not keep an account of the pamphlets distributed nor were the same called for from the office of the Superintendent of Police to whom they were forwarded. When the witness has categorically stated that no pamphlet like Ext. A l ever came to his notice, though he would have come to know of the same because he was making all the arrangements in the procession and was in charge of the election duty, that fact itself lends indirect sup port to the case of the appellant that no such pamphlet was ever distributed. We do not mean to suggest that the evidence of this witness is conclusive but it is an important circumstantial evidence to support the case of the appellant particularly when the contesting respondent has not adduced satisfactory evidence to prove his plea. R.W. 15 is a certified clerk of Shri Kona Venkata Reddy, Advocate of Gooty and was a worker of the appellant. This witness states that a procession was taken out at Gooty in which the appellant had merely r asked the public to vote for the Cycle symbol and that the witness along with others had taken part in the procession. The witness denied that any pamphlet like Ext. A 1 was distributed to any body in the procession. He has been subjected to a searching cross examination but nothing of much importance has been elicited. It is true that the witness has denied the knowledge of other pamphlets like A 70 to A 78 but that by itself is not sufficient to throw out his evidence. The next witness is R.W. 22 who is an Advocate practising at Gooty since 1921. He appears to be a respectable witness and does not bear any animus against the contesting respondent. He has, however, frankly admitted that he was working for the appellant and had participated in the procession which was taken out at Gooty. The witness categorically states that the pamphlet like Ext. A l was not distributed either during the procession or later on or at any time. Although the witness was no doubt a support of the appellant, but being an Advocate he is a respected have must the strong reason to reject his evidence. In cross examination nothing much of importance has been elieited. The denied the suggestion that he was in any way related to the appellant. The last witness on this point is R.W. 24 who was a Special Branch Headconstable with headquarters at Gooty. According to him Gooty Police Circle was within his jurisdiction. The witness has categorically stated that his duty was to cover political activities, agitations, movements and secret enquiries. The witness further emphasised the fact that it was his duty to collect any pamphlets which related to political matters or contained objectionable language and pass on the same to his superior officers. The witness was shown Ext. A l and he has categorically stated that no such pamphlet ever came to his notice either 16 L522 SCI/76 478 during the election or afterwards, nor did any pamphlet distributed in Gooty by any candidate come to his notice. This witness is undoubtedly an independent one and was not at all interested in any particular candidate. The only comment against this witness was that he has not produced the daily reports about the existence of the pamphlet. It is obvious that if no such pamphlet came to his notice there was no occasion for mentioning the same in his report. The other comment made . ' > by the learned Judge was that although he had forwarded the pamphlets to his superior officers, no attempt was made by the appellant to call for the record from the superior officers. That fact would not by itself falsify the evidence of this witness. We have already observed that the or language of the pamphlet was so offensive and hurting that if such a pamphlet would have been in circulation, it would be impossible to be lieve that an officer like R.W. 24 who was deputed expressly for the purpose of finding out such pamphlets would not have been able to notice the same or would have missed the pamphlet if the same was 3 distributed in Gooty. This circumstance, therefore, lends support to the case of the appellant that no such pamphlet was ever distributed by the appellant in Gooty and reinforces the case of the appellant particularly when we have seen that the two witnesses examined by the con testing respondent in support of his case have been disbelieved as unworthy of credence. This brings us to the other limb of the corrupt practice alleged by the contesting respondent regarding distribution of the pamphlet by the appellant in village Yadiki. The evidence led by the contesting respondent is a composite one consisting of the witnesses who speak not only about distribution of the pamphlet by the appellant alone but also by his workers. We have already indicated above that due to want of proper pleadings the allegation about the pamphlet having been distributed by the appellant through is workers, agents supporters and friends has to be completely excluded from consideration. In these circumstances we would only confine our assessment to that part of the evidence led by the parties which relates to the question af distribution of the pamphlet by`the appellant personally. r The contesting respondent has examined P.Ws. 27, 28, 35 and 37 to prove (1) that a procession was taken out by the appellant in Yadiki on February 28, 1972; and (2) that the appellant personally distributed the pamphlet to various persons in the course of the procession. So far as the appellant is concerned he has denied that he ever took out any procession in Yadiki on February 28, 1972. It was further narrated that February 28, 1972 being Monday was a "Shandy Day" on which the village market fair was held and it was therefore, not possible to take out a procession on that day. appellant 's further case was that he had merely gone from house to house in the village in order to solicit votes for him. This is undoubtedly permissible under the election law. In view of the unsatisfactory nature of the evidence led by the contesting respondent on this point, it is not necessary for us to enter into an arena of controversy regarding the question whether or not the appellant to ok out a procession. Assuming that he did, the sole question is whether the appellant personally distributed any pamphlet to any body at Yadiki on February . 479 28, 1972 as alleged by the contesting respondent. The evidence of A PWs. 27 & 28 is almost identical because both of them alleged to be paid workers of the appellant had participated in the procession and saw the appellant distributing the pamphlet. The appellant however, seriously disputed the fact that these witnesses had ever been hired or engaged by him for doing his election work. On the question of the issue relating to the expenses incurred by the appellant, the learned Judge clearly found that it was not proved that P.Ws. 27 & 28 had been appointed by the appellant. Even, while considering the evidence of these two witnesses on this point, the learned Judge observed thus: "Since there were discrepancies in the matter of talking cf the terms and the place where they were talked over, and the person before whom such terms were talked over, I held that it was unsafe to include the salaries of those persons in the return of election expenses filed by Venkatareddy, i.e. Ext. Though P.W. 27 and P.W. 28 did not prove that they were appointed by the 1st respondent, D. Vankatareddy, for the purposes of writing on the walls of various villages on behalf of respondent No. 1. " The learned Judge, however, chose to act on the evidence of these witnesses because according to him P.Ws. 35 & 37 had corroborated the evidence of these witnesses. We will deal with the evidence of P. Ws. 35 & 37 a little later, but the fact remains that as the appellant has emphatically denied having ever appointed these witnesses as his workers, and the Judge having himself held that this fact was not proved, it was not open to the learned Judge to have still speculated that they might have been the workers of the appellant. Thus there can be only two possibilities: either these two witnesses were not employed by the appellant at all in which case there would be absolutely no occasion for their presence in the procession, which according to them was only in their capacity of being workers of the appellant. If this is so then the entire evidence of these witnesses falls to the ground. Assuming, however, that they worked for the appellant, then their evidence appears to be of a turn coat type which is interested and tained and cannot be acted upon without corroboration. While commenting upon the credibility of a turn coat witness this Court in Rahim Khan vs Khurshil Ahmed and others(1) observed as follows: r "But more curious is the turn coat type of witnesses who claimed to be and often were the polling agents or workers of the appellant ti11 the election was over, but, in the post election period when the Respondent No. l 's party had formed a Government, quietly shifted their loyalty and gave evidence in proof of the averments in the petition. it is conceivable that these persons who had collaborated with the appellant in the malpractices alleged were possessed of the urge to unburden their bosoms of the truth of their own evil doing and hurried into the witness box to swear veraciously to what took place actually. But the (1) [1974] 2 S.C.S. 660 480 more probable explanation would be that these swivel chair witnesses with India rubber consciences came under the influence of Respondent No. 1 for invisible consideration and spoke dubiously in support of their present patron. " Moreover it seems to us that even on its intrinsic merits the evidence of these two witnesses does not inspire confidence. They have only in a general way stated that they had participated in the procession and that the pamphlet Ext. A l was distributed by the appellant and a number of other persons. They did not give any details as to whom the pamphlets were distributed and at what place. So far as P.W. 27 is concerned he admits that he is an illiterate person and identifies the pamphlet only by colour and by alphabets. This is, however, a very unconvincing identification and it is not safe to act on the same P. W. 27 further admits that 8 or 10 days after the election Sultan had come over to the house of Radhakrishna who had sent for both the P.Ws. 27 & 28 and they were asked to give evidence regarding the work they had done for the appellant. The witness further stated that he accepted the offer and wrote down something on the paper He also admits that Radhakrishna had helped Sultan the contesting respondent in the elections. It is, therefore, clear that both P.Ws. 27 & 28 were procured by P.W. 35 Radhakrishna who was a supporter of the contesting respondent in the election. The witness (P.W. 27) had voluntarily worked for the appellant and appears to have readily accepted the offer of the contesting respondent to depose for him against the appellant without having any sense of decorum or decency and appears to have transferred his loyalty to the contesting respondent. In these circumstances, the evidence of P.W. 27 is not worthy of credence. The evidence of P. 28 also suffers from the same infirmity as that of P.W. 27. Apart from that the evidence of P.W. 28 does not appear to be reliable, because he admits that he was brought to Hyderabad fol ' giving evidence and stayed there for 10 days. He further admits that Sultan the contesting respondent was meeting his expenses. In these circumstances, therefore, it is clear that the witness was fully tutored and then brought to give evidence for the contesting respondent. In these circumstances we do not choose to place any reliance on the evidence of P.Ws. 27 & 28. The next witness on the point is P.W. 35 who is undoubtedly an interested witness inasmuch he is a supporter of Sultan who had worked for him in the election and was also his polling and counting agent. This witness states that a procession was taken out by the appellant at Yadiki on February 28, 1972 which was headed by drummers followed by a band set. He says in a general manner that the appellant and his workers were distributing the pamphlets. He identifies Ext. A l as a pamphlet given to him. But in cross examination at P. 561 of the Paper Book (Vol. III) he clearly admits that the pamphlet was given to him by a worker of the appellant Venkata. Reddy and not by Venkata Reddy himself. As the evidence regarding distribution of the pamphlet by the workers has to be excluded from consideration his evidence clearly shows that the appellant himself did not give any pamphlet to him. Thus his evidence does not appear to be of any assistance to the contesting respondent and we fail to understand how the learned Judge has read the 481 statement of this witness as corroborating the evidences of P.Ws. 27 1 and 28 which is the sole ground on which the evidence of this witness has been accepted by the learned Judge. It seems to us that the learned Judge has completely overlooked the important admission made by P.W. 35 in his evidence which shatters the case of the contesting respondent regarding distribution of the pamphlet by the i` appellant to this witness. The last witness on the point is P.W. 37. He is also an interested witness and bears an animus against the appellant inasmuch . as he is said to have filed a complaint against the appellant who is alleged to have beaten him during the election. It appears that the police did not register any case on the basis of his complaint and according to the witness the matter is still pending in revision. The witness further deposes that he knew the appellant since about 20 to 25 years although he gives his age as only 28 years. This demonstrates the utter falsity of his statement. He further admits that he was working for Sultan and that the appellant Venkata Reddy saw him working for Sultan even prior to the date when the procession was taken out at Yadiki. According to the witness, the pamphlet was given to him by the appellant. It is difficult to believe that the appellant after having known that the witness was working for Sultan would have given such an offensive pamphlet to him and create adverse evidence against him. Lastly, the witness admits at pp. 577 578 of the Paper Book (Vol. III) that five or six days after the procession was taken out by the appellant Sultan had come to Yadiki and he had told Sultan about the incident. Thus, according to the witness, Sultan came to know about the distribution of the pamphlet Ext. A l to the witness near about the end of February and yet it is astounding that he did not make any mention of this fact either in paragraph 39 of his petition or even in the material particulars which he gave by virtue of the amendment. We have already indicated that the evidence discloses that Sultan was informed long before he filed the election petition that the pamphlet was distributed by the appellant to the named persons who were known to the appellant and yet this fact was not mentioned in the particulars given by the contesting respondent. This conduct clearly shows that the entire story is purely a figment of imagination of the contesting. respondent and his sup porters and has been bolstered upto unseat the appellant. For these reasons, therefore we are not in a position to place implicit reliance on the testimony of this witness also. It would thus appear that even in Yadiki the contesting respondent could not get hold of any independent witness to prove the distribution of the pamphlet by the appellant. According to the P.Ws. Yadiki is a big village and if a procession was taken out by the appellant there must have been a r. large number of persons present in the procession and it is impossible to believe that the appellant could not get hold of a single person who was in any way unconnected with him to prove that the pamphlet like Ext. A l was distributed to any such person. Both on the charge of the offer of bribe as also on the charge of distribution of objectionable pamphlet the contesting respondent has chosen to examine only those witnesses who are in some way or the other totally interested in the contesting respondent or connected with him. Thus the evidence of the witnesses referred to above does not satis 482 factorily prive that the appellant had distributed the pamphlet Ext. A l to any body in Yadiki on February 28, 1972 as alleged by the contesting respondent. The contesting respondent has, therefore, failed to prove this part of his case. In view of this finding it is not necessary to go to the evidence produced by the appellant. Never theless R. Ws. 11, 16 and 17 have deposed on oath that no procession was taken out in Yadiki and that no pamphlet like Ext. A l was ever distributed by the appellant. Even if we ignore the evidence of these witnesses, as the contesting respondent has not proved his allegation c on this part of the case he must fail. We will now deal with the allegation of the contesting respondent regarding distribution of the pamphlet by the appellant in village Gundala on March 5, 1972. On this point the contesting respondent relies on the evidence of P.Ws. 1, 2, 3, 4 and 7. Here also the evidence of these witnesses is a composite one seeking to prove the distribution of the pamphlet not only by the appellant but also by his workers, and we have got to ignore that part of the evidence which relates to the distribution of the pamphlet by the workers of the appellant. To begin with, the evidence of P.Ws. 1 and 3 has been disbelieved by the learned Judge having regard to other items regarding payment of the bribe by the appellant to these witnesses and the Judge has held that they were in the nature of accomplices. In this connection the learned Judge has observed, at pp. 1319 1320 of the Paper Book (Vol. VI) as follows: "Since P.Ws. 1 and 3 also say that they had actively helped Venkatareddy in the distribution of the offensive pamphlets, and thus they helped the 1st respondent in committing a corrupt practice under section 123(3) and Section 123 (3 A) of the Representation of the People Act, even in regard to this corrupt practice, P.Ws. 1 and 3 can either be equated to "accomplices" or regarded as person who actively helped Venkatareddy in the commission of a corrupt practice. Their evidence, even in this behalf, requires corroboration in material particulars by independent testimony. " Indeed if this is the character and tenor of these witnesses it would be difficult to place any reliance on the evidence of these witnesses on any point. Further more, according to the evidence of these two witnesses they had actively helped the appellant in the election and now they are coming forward against the appellant and in favour of the contesting respondent in order to unseat the appellant. Their evidence is also of a turn coat type and therefore tainted. In these circumstances no reliance can be placed on the evidence of such witnesses. However. even on merits they do not appear to be reliable witnesses. P.W.l states that he belongs to Gundala and then ten days prior to the polling the contesting respondent Sultan had contacted him in the village and asked him and others to cast their votes in his favour. The witness and others assured the contesting respondent that they had always been voting for the Congress and they will, therefore, vote for him. After the contesting respondent had left the village the appellant Venkata Reddy came 483 to the village in a jeep and he asked the witness and other persons A to vote for him. But the witness and other persons explained to the appellant that on earlier occasions all of them had voted for the Congress and so this time too they will do the same. Thereupon the appellant is said to have made an appeal on communal grounds saying that the Congress is always in the habit of giving tickets to the Muslims and not to Hindus and tried to wean them away from the Congress fold. There was thus an exchange of words between the witness and others and ultimately the appellant paid some money to the witness. This allegation has been disbelieved by the learned Judge. Therefore, to start with the very genesis on the basis of which the witness has deposed disappears, and there was no occasion for the appellant to have given any pamphlet to the witness. The witness proceeds to state that after the exchange of these talks, the appellant gave the pamphlet to the witness and he took the pamphlets to village Ammenapalli and gave the pamphlets to the voters of that village. We are, however, not concerned here with the distribution of the pamphlets by the workers of the appellant. The witness identifies the pamphlet Ext. A l as the one having been given to him. According to the witness the appellant had gone to him ten days before the polling and the witness states thus at p. 125 of the Paper Book (Vol. II): D "It was for the first time that I came to know Venkata Reddi on the day when he visited our village i.e., ten days prior to the polling date. " This would mean that the appellant had contacted the witness on or about February 20, 1972. But the definite case made out by the contesting respondent in his petition is that so far as the village Gundala is concerned the pamphlet was distributed by the appellant on March 5, 1972 i.e. Only four days before the polling. In these circumstances, therefore the evidence of this witness is falsified by the particulars given by the contesting respondent in his petition and on this ground alone his evidence has to be rejected as being contrary to the pleadings. Further more, it appears that the witness is a staunch supporter of the Congress and on his own showing he had been voting for the Congress in all the elections. The witness admits at p. 134 of the Paper Book (Vol. II) that in the previous election also the witness had worked for the Congress. In these circumstances, therefore, the evidence of this witness does not appear to be creditworthy. The next witness on the point is P.W. 2 who states that the con testing respondent Sultan had visited the locality and had asked him to vote for him. Thereafter the appellant came to his village and was accompanied by P.W. 1. The witness states that the appellant Venkata Reddy asked him to vote for the Swatantra Party. This knocks the bottom out of the evidence of this witness because it is nobody 's case that the appellant was the candidate sponsored by the Swatantra Party and it is the admitted case that the appellant was an independent candidate. This also reveals the falsity of the story narrated by the witness. The witness then states that after having asked the witness to vote for the Swatantra Party the appellant gave 484 him a paper which contained the cycle symbol. On seeing Ext; A l the witness identified it as the same paper which was given to him. The witness further admits that he is illiterate and it is, therefore, not understandable how he identified the pamphlet Ext. The witness did not show that paper to any body on that day and later on he showed it and got it read over to him and thereafter he decided to vote for the appellant as the Muslims were bad people. In fact in an unguarded moment he has said that he decided to vote for the Congress and then changed his statement as appears from the endorsement made by the Court. In cross examination the witness admits that ten days after the elections were over, Sultan had come to his village and asked him why he did not vote for the Congress. There upon the witness told him that the appellant Venkata Reddy had distributed the pamphlet and asked him to vote for him. The witness further categorically states that he showed the pamphlet given to him by the appellant to Sultan and he was asked by Sultan to preserve . the pamphlet so that it may be used in the Court as and when necessary. According to the witness this event took place only ten days after the election i.e. some time in the middle of March 1972 and well before the election petition was filed. Indeed if what the witness says was absolutely true, then Sultan had come in possession of the most damaging evidence against the appellant long before the petition was filed and yet he did not choose to mention this fact either in his petition before amendment or after. Even the pamphlet was not produced along with the documents as being the pamphlet shown to him by the witness but the appellant rest contented by asking the witness to keep the pamphlet with him. It is not at all understand r able or intelligible as to why the pamphlet was not produced by the . witness when he came to the witness box for his examination in chief and it was left only to the question to be put by the Court after lunch break when the pamphlet was produced. Could the contesting respondent, having known those facts, take the risk that if the Court did not ask any question then the pamphlet would not be produced by the witness at all? All this, therefore, shows that the evidence of this witness is untrue and is a frame up in order to support the allegation made by the contesting respondent against the appellant. This brings us to the evidence of P.W. 3. The learned Judge has also seriously commented on the credibility of this witness, so far as other allegations were concerned, and therefore to begin with the evidence of this witness is tainted. Further more, the evidence of 1` this witness is of a turn coat type because he is said to have worked for the appellant and after the election he deposed for the contesting respondent. P.W. 3 also gives almost a similar story as P.W. 1 regarding the communal appeal said to have been made by the appellant. He also states that the appellant paid him Rs. 500/ for working and helping him in the election. This allegation has been disbelieved by the learned Judge. Another factor which impairs the credit of this witness is his admission that at the time of the polling he was instrumental in getting the false votes cast. In this connection the witness states at p. 149 of the Paper Book (Vol. II) thus: "Boya Nagamma and Venkatappa were residents of my village. They were dead before the polling date. The 485 votes were cast in their names. Myself and P.W. 1 got the votes cast in their names. Votes were cast in the names of persons who were not present on the polling date. Myself and P.W. 1 got such votes cast in the names of the villagers who were absent from the village on the polling date. " It would thus appear that the witness was of such low morals and characterless as he went to the extent of getting votes cast in the names of persons who were already dead or who were not at all present at the polling booths. It is difficult to place any reliance on the evidence of a witness of such character. For these reasons therefore we are not in a position to place any faith this witness. According to P.W. 4 Sultan had come to his village in order to solicit votes in his favour and he was accompanied by P.Ws. 1 & 3 and P.W. 22. In the presence of these witnesses Sultan asked the witness lo vote in favour of the Congress and he assured Sultan that all the villagers had decided to vote for the Congress. It would thus be seen that when Sultan had gone to the witness 's residence P.Ws. 1 & 3 who had been the workers of the appellant had accompanied the adversary of the appellant even at that time. Thereafter according to the witness when Venkata Reddy came to him and asked him to vote for him and here also the P.Ws. 1 & 3 had accompanied the appellant. This shows the unreliable character of P.Ws. I & 3. The witness again narrates the same story that the appellant made a communal appeal to the witness and asked him on ground of religion to vote for him. Thereafter the appellant give him the pamphlet. It might be mentioned here that no case has been set out by the contesting respondent either in his petition or in the particulars given by him that the appellant had made any oral appeal of a communal nature to any person either before or after distributing the pamphlet Ext. In these circumstances the evidence of P.Ws. t to 4 on the point that the appellant had made an oral appeal cannot be accepted as being contrary to the pleadings and thus the most integral part of the evidence of these witnesses falls to the ground. According to P.W. 4 the pamphlet was given by the appellant to the witness and thereafter he left. We find it very difficult to believe that if the appellant was really serious in getting the votes of these persons he would just hand over the pamphlet and go away without trying to explain the purpose and the contents of the pamphlet, particularly when he knew that P.W. 5 and others had their inclination towards the Congress. In the first place if he knew that P.W. 4 and other villagers had their inclination towards the Congress and had decided to vote for the Congress, he would not risk giving the pamphlets to such persons at all, and even if he did, it is difficult to believe that he will distribute the pamphlets in such a casual and cavalier manner. Finally P.W. 4, just like other witnesses, also states that ten days after the elections were over, Sultan had come to his village and he was informed by the witness about the distribution of the offensive pamphlet and the Oral appeal made on communal grounds made by the appellant and yet we do not find the name of any of these witnesses including P.W. 4 in the petition as being the persons lo whom the pamphlets were distributed. This appears to be a very substantial ground on which the evidence of these witnesses should 486 be rejected, because it proved the intrinsic falsity of the evidence. There does not appear to be any earthly reason why, after having been informed by P.Ws. l to 4 and others whose case has been discussed above, the contesting respondent would not mention these facts in his election petition when the same came to his knowledge well before filing of his election petition. The learned Judge appears to have completely overlooked this aspect of the matter which introduces an intrinsic infirmity in the evidence of the witnesses. For these reasons we reject the evidence of P.W. 4. The last whitens on the point is P.W. 8. His evidence is almost identical with that of P.W. 4. According to the witness the contesting respondent Sultan came to the village ten days prior to the date of polling. That would be near about February 28, 1972 and asked the witness to vote for the Congress. The witness assured the contesting respondent that he would vote for the Congress. Three days prior to the date of polling the appellant came to the village accompanied by P.Ws. 1 & 3 and the witness informed him that they had decided to vote for the Congress. Thereupon the appellant again made a communal appeal to them, gave him a pamphlet and walked away. Thus the evidence of this witness also suffers from the very same infirmities which we have pointed out in respect of P.W. 4. At p. 231 of the Paper Book (Vol. II) the witness contradicts himself and states that the appellant merely gave him a pamphlet and asked him to vote for him. He did not say anything more. Thus the story of an oral appeal is given a complete go by in the later part of his evidence. It is impossible to believe that the appellant would try to procure the vote of the witness knowing fully well that he had decided to vote for the Congress and quietly parted from the witness after giving him the most damaging evidence against him. For these reasons, therefore, we are not in a position to place any reliance on the evidence of P.W. 8. This is all the evidence that the contesting respondent has led in proof of the fact that the appellant had personally distributed the pamphlets in the village Gundala on March S, 1972. After careful consideration of the evidence produced by the contesting respondent we are clearly of the opinion that the evidence is not worthy of credence and the contesting respondent has failed to prove by clear and cogent evidence that the pamphlets were distributed by the appellant personally to any person in Gundala or for that matter to P. Ws. 1, 2, 3, 4 and 8. In view of our finding that the evidence led by the contesting respondent on this point is unsatisfactory it is not necessary for us to refer to the evidence given in rebuttal by the appellant which is necessarily of a negative nature. The last limb of the case comprises the alleged distribution of the pamphlet Ext. A l by the appellant. to persons in village Guntakal on February 22. P.W. 24 is Thirupathi Rao a registered medical practitioner Guntakal. To start with the witness admits that he worked for the Congress. The witness goes on to state that the appellant had come to his dispensary and had asked for his support, but P.W. 24 told him that he belonged to the Congress, and therefore he could not help others. Thereafter the appellant is said to have given him the pam 487 phlet Ext. A l and the witness pointed out that the pamphlet was very offensive. Thereupon the appellant is said to have made some sort of a communal appeal to the witness and having left the pamphlet with him walked away. The witness has categorically stated that after the oral communal appeal was made by the appellant, the witness told him that he saw no difference of religion, caste, creed and that he could not support him. It is impossible to believe that the appellant knowing full well that the witness was an educated person and a Doctor practising at Guntakal and not a mere illiterate voter would make any communal appeal to him, much less when he was told in plain terms by the witness that he was a Congress worker. In these circumstances, would the appellant still have given the pamphlet to this witness and created an unimpeachable evidence against him. There is no doubt that the witness is not an independent witness but is an interested one, because not only he Cr was a Congress worker but also acted as a counting agent for Sultan as he admitted in his evidence. Further more, the oral appeal said to have been made by the appellant is not at all mentioned in the election petition. Apart from being a Congress worker he held an important position in the Congress party being the Vice President of the Town Congress Committee right from 1967. The witness further admitted that being the Vice President of the Town Congress Committee he was an important member of the Congress party at Guntakal. The witness further states that when Sultan came to Guntakal he showed the pamphlet to him and this happened even before the date of the polling. In fact he showed the pamphlet to Sultan five or six days before the date of the polling. It surpasses our imagination that if an important congressman like P.W. 24 would have informed Sultan four or five days before the polling that an offensive pamphlet like Ext. A l was given to him by the appellant, the contesting respondent would take it lying down and would refrain from taking any action in the matter. We have already pointed out that Sultan was not of a quiet type of men but had made several complaints to the police officers and it is impossible to believe that if he had known from, such an important source like P.W. 24 that an offensive pamphlet was being distributed during the election he would have taken no action against the appellant by moving the authorities concern ed or in informing the police and the congress circles. Far from it he did not even mention this fact either in his election petition or in the particulars which he gave thereafter. We fail to understand how the contesting respondent could have failed to mention such an important incident in his pleadings at any stage. This clearly shows that the evidence bf P.W. 24 is not correct. The appellant who appears to be a responsible man would not have been so foolish as to have left in the hands of P.W. 24 the pamphlet in question knowing full well his strong views in the matter. The witness further admitted that he was deposing to this point for the first time in the Court and he had not told this fact to any one else. How can we believe that P.W. 24 holding such an important post in the Congress organisation would have failed to draw the attention of the authorities in the Congress Party regarding the distribution of an offensive pamphlet by the appellant which may have seriously impaired the election prospects of the candidate of the Congress. For these reasons, therefore, we are not in a position to place any reliance on the evidence of this witness. 488 The next witness is P.W. 25. This witness admits that he voted for the Congress candidate Sultan and supported his candidature during the election. According to him fifteen days prior to the date of polling he along with Sultan and others were moving in the ward canvassing for votes in favour of Sultan. Eight days prior to the date of polling, which would mean near about the. 1st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram chandra Gaud who was supporter of the appellant told the witness to > help Vellkata Reddy. The witness, however, explained to them that he had always been supporting the Congress and stood committed to Sultan and therefore he could not support the appellant. Thereafter Ramchandra Gaud threatened the witness that he would destroy the partner ship business in which he was a partner if he did not help the appellant. In view of the threat given by Ramchandra Gaud the witness decided to work for the appellant. Thereafter the appellant gave a bundle of pamphlets containing the cycle symbol to be distributed to various persons. That is how, according to the witness, the pamphlet came in his pos session. In order to prove that he was a worker of the appellant he produce Ext. A 40 which is a polling agent form assigned by the appellant. To begin with this witness also appears to be of a turn coat type and his evidence is tainted and cannot be accepted without any corroboration. It is difficult to believe the story that it was because of duress that he agreed to work for the appellant because if that was so, then the partnership which is still continuing while the threat remains, the k witness would not have dared to depose against the appellant in order to help Sultan and yet he has done it. The witness has clearly admitted that the partnership is still continuing and therefore the danger with which the witness was faced and which made him work for the appellant still continues and it is not understandable how the witness could suddenly change colours. Further more the witness admits at p. 474 of the Paper Book (Vol. III) that the appellant had given the pamphlet to the witness eight days prior to the date of polling which would mean near about February 28 or March 1, 1972, but according to the material particulars given by the contesting respondent in the election petition as amended the date of distribution of the pamphlet at Guntakal is mentioned as February 22" 1972. Thus the evidence of this witness being contrary to the pleadings must be disregarded. In these circumstances therefore we are not in a position to place any reliance on the evidence of this type. This bring us to the evidence of P.W. 33. We have fully discussed the evidence of this witness on issue No. 7 on the allegation of bribery and have disbelieved him. We have also pointed out that P.W. 33 was a staunch supporter of the contesting respondent and appears to be an omnibus witness so as to support the contesting respondent on all points and supply the missing links. The witness states that P.W. 18 and Venkata Reddy the appellant went from house to house in the ward soliciting votes. Both these persons came to the house of the witness while he was standing in front of his house. Both of them distributed pamphlets and went away. The witness being a staunch supporter; of the con testing respondent it is most unlikely that the appellant would distribute the pamphlet of all persons, to him. Further more the witness only deposed in a very general manner that both P.W. 18 and the appellant 489 gave the pamphlet to him. The witness admits that he had read the pamphlet and yet he states that he did not complain to the police that the pamphlet may lead to communal trouble, particulary when the pamphlet was distributed, according to the witnes about fourteen or fifteen days prior to the date of polling. The witness further admits that four or five days prior to the date of polling Sultan had come to Guntakal and the witness had informed him about the pamphlet and yet Sultan also did not mention this fact in the material particulars given in his election petition after the amendment. For these reasons therefore, we are satisfied that this witness has merely tried to oblige the contesting respondent being his intimate friend and staunch supporter. The last witness on this point is P.W. 36 Abdul Jabbar. Having regard to the offensive contents of the pamphlet Ext. A l it is impossible to believe that the appellant, even as a person of ordinary prudence, would have distributed the pamphlet to a Muslim and a person who had also worked for Sultan. By distributing such a pamphlet to a Muslim he would not only hurt the feelings of such a Muslim but would alienate the entire sympathy of the Muslim community. Only a mad person can do a thing like that or take such a suicidal step. According to this witness, the appellant had come to Guntakal where the witness stayed, gave him the pamphlet and went away. Thus the very short and summary manner in which the appellant handed over the pamphlet and went away clearly shows that the story of the distribution of the pamphlet by the appellant is a complete myth. According to the witness he was i11iterate and he ' showed the pamphlet to P.W. 24 Thirupati Rao who read it out to him. P.W. 24 does not say that P.W. 36 Abdul Jabbar had come to him with the pamphlet or that he had read out its, contents and explained the same to the witness. It was suggested by Mr. Shiv Shankar for the contesting respondent that it is possible that the appellant may not have known that the witness was a Muslim. We are, however, unable to accept this contention because according to the witness he was an Ayurvedic Medical Practitioner and an important person in Guntakal. It is also difficult to believe that the appellant would distribute pamphlets indiscriminately without trying to find out whether the persons to whom the pamphlets were given were Muslims or not. P.W. 36 is also a staunch supporter of the contesting respondent. Thus the evidence of this witness does not appear to be worthy of credence. Thus on a consideration of the evidence of the witnesses mentioned above, we are satisfied contesting respondent has not proved that any pamphlet was distributed by the appellant personally to P.Ws. 24, 25, 33 & 36 in Guntakal or to any other person for that matter. In view of our finding that the contesting respondent has failed to prove this part of the case it is not necessary to refer to the evidence led by the appellant which is of a negative character. Reference may be made to the evidence of R.W. 28 who is a Labour Leader and whose evidence shows that no such pamphlet was ever distributed by the appellant. The witness states that he is a senior stenographer attached to the D.M.O., Southern Railway and is also the Assistant General Secretary of one of the Unions of the Railway employees at Guntakal. The witness on being shown the pamphlet Ext. A l emphatically denied that any such pamphlet was given to him or was distributed by or on behalf of the appel 490 lant in the whole of the railway colony which consists of as many as 6000 to 8000 voters. Indeed if the appellant had distributed the pamphlets with a view to secure votes on communal grounds, he would not have missed to distribute the pamphlets to the voters in the Railway colony and if this was done the witness would have undoubtedly come to know about it. This is undoubtedly an intrinsic circumstance which supports the case of the appellant that no pamphlet of the type of Ext. A 1 was ever distributed in GuntakaI. Apart from this, we may overemphasize even at the risk of repetition that there are two important infirmities appearing in the evidence led by the contesting respondent on the charge of distributing the pamphlet Ext. A l at various places which are sufficient to prove the falsity of the charge. In the first place the evidence of P. Ws. I to 4, 8, 22, 24, 33 and other witnesses discussed above clearly discloses that the contesting respondent had come to know not only during the election but even a few days before polling that such a pamphlet like Ext. A l was in existence and was also shown to the contesting respondent by the witnesses mentioned above and he was also plainly told that this pamphlet was distributed by the appellant personally. In spite of this neither the contesting respondent mentioned these facts in his petition giving the full details nor in the material particulars nor did he take any action against the appellant by reporting the matter about the pamphlet to the authorities concerned. He did not disclose this fact even to his own Congress organization although this was a matter which on his own showing ruined his election prospects and in all probability the Congress should have been informed about this fact. Mr. Shiv Shankar appearing for the contesting respondent realized the weight of this circumstance which went to falsify the case of the contesting respondent and submitted that the inaction on the part of Sultan was due to the fact that he was advised by his lawyers not to take any action in the matter. Sultan as no doubt deposed to this effect in his evidence. Indeed if this was a fact then we should have expected that the contesting respondent should have given this explanation in his election petition or should have examined the lawyer who had given him such an advice. Secondly, even if this explanation be accepted there does not appear to be any reason why the contesting respondent should not have mentioned the names of the persons who had told him that an offensive pamphlet had been distributed to them by the appellant, in his petition or in the material particulars when Sultan was definitely informed of those facts. These two infirmities, apart from other defects, are sufficient to dislodge the case of the contesting respondent on issue No. 26, and lead us to the inevitable inference that these facts were not true and were clearly an after thought and had been introduced for the first time in the evidence through the aid and support of purely partisan witnesses. Lastly it was also urged by Mr. Shiv Shankar learned counsel for the contesting respondent that the evidence of P. W. 11 clearly shows that the pamphlet in question was in existence during the election. The learned Judge has disbelieved the evidence of this witness as being based on hearsay. The witness alleges to have received the pamphlet from his wife who was not examined as a witness. Thus the very 491 source from which he is said to have got the pamphlet disappears and that being an integral part of his evidence we find it extremely unsafe to rely on the evidence of this witness and fully agree with the reasons given by the learned Judge for disbelieving this witness. Mr. Shiv Shankar learned counsel for the contesting respondent submitted that the evidence shows that pamphlets like Exts. A 70 to A 78 were undoubtedly printed by the contesting respondent and they contain the name of the Printing Press. He argued that if the contesting respondent would have printed the pamphlet Ext. A l then he would have mentioned the name of the Press. We cannot accept this argument because the pamphlet is so offensive in nature that any person who printed the same would never try to disclose publicly the name of the Press lest action in law may be taken against the Press. It was then contended that the contesting respondent being a Muslim is not likely to say such offensive and communal things against his own community. This is also a matter of pure speculation. Various persons react to different circumstances in different ways and if a person is motivated or animated by a particular purpose he can go to any length to achieve his end. Therefore the mere fact that the contesting respondent belonged to the Muslim community cannot by itself exclude the possibility of his having circulated the pamphlet Ext. A l and printing it so as to use it as a powerful instrument against the appellant by putting the blame on him. The contesting respondent undoubtedly owns a Press and if he wanted to do such a thing there was nothing to prevent him from achieving his object. These are speculative matters and in the view we take of the evidence led by the parties in this case, it is not necessary for us to give a clear finding. as to who printed the pamphlet in question. All that is necessary to be determined in view of the pleadings of the parties was whether the pamphlet in question was printed by the appellant or distributed by him personally. The contesting respondent has not adduced any satisfactory evidence on this point whereas the appellant has through his evidence which is of a negative character shown that the probabilities were that the appellant had not distributed this pamphlet Ext. On a careful consideration of the entire evidence and circumstances of the case, whether we apply the standard of proof by virtue of the benefit of doubt or that of preponderence of probabilities the conclusion is inescapable that the contesting respondent has failed to prove his allegations regarding the payment of bribe contained in issue No. 7 and the distribution of the pamphlet by the appellant personally comprised in issue No. 26. The learned Judge in accepting the case of the contesting respondent overlooked certain fundamental features, inherent improbabilities, intrinsic infirmities, the weak and interested nature of the evidence and other facts, which we have fully elaborated in our judgment. We, therefore, hold that the appellant Venkata Reddy was not guilty of any corrupt practices as alleged by the contesting respondent. In these circumstances we are not in a position to allow the judgment of the High Court to stand. 492 The appeal is accordingly allowed and the order of the single Judge declaring the election of the appellant Venkata Reddy void and setting aside the same is hereby quashed. The appellant would be 1 entitled to his costs throughout. [/INST]The appellants bid at auction sales of some toddy shops. The conditions of the sales, notified in pursuance of the statutory provisions, were: (a) It was incumbent upon the bidder to pay immediately 10% of the amount due; (b) The successful bidder had to deposit 30% of the amount payable, on demand by the Assistant Commissioner, and to execute agreements before getting the necessary licences; and (c) If the contract could not be executed, the whole amount was to be forfeited and the shop itself was to be resold. The appellants deposited the necessary amounts on demand and were allowed to start business even before agreements were executed or licences were issued. But the appellants failed to pay the balance due to the State. The amounts were sought to be recovered under section 28, and the proceedings were challenged, but the High Court held against the appellants. In appeal to this Court, the appellants contended that as no agreement was executed between the appellants and the Government in the manner prescribed by article 299 of the Constitution, the appellants had not become the `grantees ' of any privilege and hence were not liable to pay the amounts sought to be recovered Dismissing the appeal, ^ HELD : The Government had to perform its duty of granting licences as soon as the appellants fulfilled the conditions by paying up the remainder of the amounts due. In the present case, Government had performed its part by allowing the appellants to start selling liquor even before execution of the agreements and the grant of licences. The appellants, therefore, became liable and bound to perform their corresponding obligations. This reciprocity of obligations, quite apart from its basis in agreement, had thus acquired an operative force resting on statutory sanction and equity. [784G 785B] (1) It is not a condition precedent to recovery of an amount due and recoverable under the Act that it should be due under a formally drawn up and executed contract. Under the notification, in the event of the non execution of a contract, even if due to the unwillingness or inability of a bidder to pay, the whole amount due could be forfeited. [782C; 783E F] 2(a) The acquisition of the status of a grantee for the purpose of section 18A, does not depend on the actual receipt of a licence. Section 18A(2) lays down that no grantee of any privilege under sub section (I) shall exercise it until the has received a licence. This provision contemplates the statutory status of a `grantee ' even before the successful bidder becomes entitled, as of right, to exercise the privileges of a grantee on receipt of a licence even before he receives his licence he is described as a grantee. [783F G, H 784A] 781 (b) The word `grantee ' used in section 28 carries this wider connotation of persons who have been permitted by the excise authorities, in recognition of their rights to receive and in anticipation of the receipt of licences, to exercise the privileges of grantees, and not necessarily only those who have executed the written contracts and received licences. [784A C] Madhavan vs Assistant Excise Commissioner, Palghat I.L.R. [1969] 2 Kerala 71, approved. </s>
<s>[INST] Summarize the judgementN: Special Leave Peti tion (Criminal) No. 216/1977. (From the Judgment and Order dated 28 9 1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl. Appeal No. 17/72). S.J.S. Fernandez, amicus curiae, for the petitioner. The Order of the Court was delivered by KRISHNA IYER, J. A death sentence, with all its dreadful scenario swinging desperately out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu tioner 's rope. Even so, judges must enforce the laws, whatever they be, and decide according to the best of their lights, but the laws, are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice. We are bound by the Penal Code and the Criminal Procedure Code, by the, very oath of our office. Section 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term. It is true that in the present Code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons to be stated (Edige Annamma, , AIR). Even so, the discretion is limited and courts can never afford to forget Benjamin ' Cardozo 's wise guidance: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roam ing at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by sys tem, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of dis cretion that remains." (Cardoze: The Nature of the Judicial Proc ess: Wale University Press ( 1921 ) ). We have heard counsel on the merits and.perused the paper book with some care and see no ground to disturb the conviction. The question of 'sentence ' projects sharply before us and what we. have stated above turns our focus on cicumstances justifying the graver sentence. The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence. The guidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty. When discretion has been exercised by the trial Court and it is difficult to fault that 773 court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demol ish the discretionary exercise of power by the inferior court. So viewed, it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence. We are unable to, grant leave on, this score either. Counsel for the petitioner has urged that the affirma tion by the Judicial Commissioner 's court of Goa, Diu and Daman, of the Death sentence is illegal. According to. him section 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner. The said section reads: "377. In every case so submitted the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." This section means, as we understand it, that when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them. This provision obviously applies only to situations where the court, at the time of the confirmation of the death sentence. , consists of two or more judges. It is true that section 4 (1) (i) in relation to a Union Territory brings within the definition of the 'High Court ' the highest court of criminal appeal for that area viz. the Judicial Commissioner 's court. It therefore follows that if, at the time the case for confirmation of the death sentence is being heard, the Judicial Commission er 's court consists of more than one judge, at least two judges must attest the confirmation. In the present case it is common ground that when the case was heard and judg ment pronounced there was. only one Judicial Commissioner, although the sanctioned strength was two. So long as one Judicial Commissioner alone functioned in the court, section 377 was not attracted. The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial Commissioner deciding the refer ence. We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a death sentence involves is because of the law 's grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are. applied. Even so, exceptional situations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened. We cannot fault the judgment on this ground either. Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law which prevails against the general. On that footing he argues that under Regulation, 8 (1) the Court of the Judicial Commissioner shall have only such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao. According to him, the said Tribunal did not have the powers of confirmation of death sentence, and, 774 therefore, the judicial Commissioner cannot exercise such power. He also argues that under the said provision the Judicial Commissioner ' is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powers under section 377 of the old Crimi nal Procedure Code. We see no force in these twin submis sions. A Code is complete and that marks the distinction between a Code and an ordinary enactment. The Criminal Procedure Code, by that canon, is serf contained and com plete. It defines a High Court which takes in a Judicial Commissioner 's Court. (Section 4(1)(i). We need not and indeed may not travel beyond the Code into the territory of the Regulation. Even otherwise, there is nothing in Regulation 8 ( 1 ) which helps the petitioner. It pro vides that the Judicial Commissioner shall be the highest criminal 'Court, Appeal and Revision ' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level. Referral jurisdiction, under section 377, is skin to appeal and revision and we think that Regulation 8(1) does not disentitle the Judicial Commissioner from exercising power under section 377 of the Code: nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did not have the power to confirm death sentences, and, there fore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power. Regulation 8(1) does not limit the jurisdiction of the. Judicial Commission er in the sense counsel wants us to accept. We therefore hold that the Judicial Commissioner 's confirmation of the death sentence is not without jurisdiction. Undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis ingly for around six years. May be that such a long spell of torment may be one circumstance in giving the lesser sen tence. Even s0, we have to be guided by the rulings of this Court which have not gone to the extent of holding that based on this circumstance alone, without other supplement ing factors or in the face of surrounding beastly circum stances of the crime, judicial clemency can attenuate the sentence. Possibly, Presidential power is wider but judicial power is embanked. We refuse special leave and dismiss the petition. Petition dismissed. [/INST]The respondent was the adopted son of the testatrix who made a will in 1935 declaring that her properties were dedicated to a private temple of hers in her house and would remain so for all times to come. In 1938, however, she revoked the earlier will and dedicated a part of the house and certain other items for the benefit of the temple. But she expressly prohibited the respondent from performing her funeral rites and gave certain rights over the property to the appellant and his wife. In 1947 she again revoked the will made in 1938 and bequeathed her properties to the appellant without right of alienation and had also clearly stated that the respondent should have no concern with her estate and should not be allowed to touch her dead body. On her death, though the original will was not found, a draft will which was almost of the same time was discovered. The recitals in the draft were almost the same as in the will of 1947. In the appellant 's petition before the District Judge for grant of letters of administration or probate the respondent contended that the testatrix was not of sound disposing mind at the time of the alleged execution of the will and that the appellant had exercised undue influence over her in the execution of the will. It was further alleged that the will was subsequently revoked and that was the reason why it was not found in the house despite search. The District Judge accepted the respondent 's version and rejected the petition for probate. On appeal a single Judge of the High Court found that the will was genuine and had not been revoked. On further appeal the Division Bench restored the order of the District Judge dismissing the appellant 's application for probate by drawing a presumption that the testatrix had revoked the will by destroying it before her death. In appeal to this Court it was contended on behalf of the appellant that the High Court was in error in drawing a presumption of revocation of the will in view of the express provisions of section 70 of the and in the alternative even if the presumption was available to the respondent the same being a rebuttable one. was sufficiently rebutted by facts and circumstances proved in the case. Allowing the appeal, ^ HELD: The presumption that the will was revoked by the testatrix had been sufficiently rebutted and the respondent had failed to discharge the onus which lay on him to prove that the will was revoked. The will being a product of free will of the testatrix there must be strong and cogent reasons for holding that it was revoked. The fact that the will was not found, despite search, was not 874 sufficient to justify a presumption that the will was revoked. Having regard to the fact that the respondent was interested in destroying the will and had access to the house, the presumption would be that the will was either stolen or misplaced by him or at his instance. [890C E] The correct legal position may be stated thus: (i) Where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people. (ii) Such a presumption is a rebuttable one and can be rebutted by the slightest possible evidence, direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted. (iii) In view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully. (iv) Where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the Act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn. (v) In view of the express provision of section 70 of the the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will. (vi) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by the interested persons. [887B 888A] Anna Maria Welch & Lucy Allen Welch vs Nathaniel Phillips, ; , Padman & Ors. vs Hanwanta & Ors., AIR 1915 P.C. 111; Finch vs Finch, 1 P & D 371; Anil Behari Ghosh vs Smt. Latika Bala Dassi & Ors., ; ; Kaikhushru Jehangir vs Bai Bachubai Jehangir Jullundur vs Dev Raj Vir Bhan & Anr., AIR 1963 Pun. 208; Halsbury 's Laws of England, Third Edition, Vol. 39 at 896; Jarman on Wills; Corpus Juris Secundum Vol. 95; referred to. Babu Lal Singh & Anr. vs Baijnath Singh & Anr., ; Brundaban Chandra vs Ananta Narayan Singh Deo, AIR 1956 Orissa 151; Satya Charan Pal vs Asutosh Pal & Ors., AIR 1953 Cal. 657 at 659 660; Efari Dasya vs Podei Dasya, ILR at 486; Shib Sabitri Prasad & Ors. vs The Collector of Meerut, ILR 1907 All 82 at 87; Anwar Hossein vs Secretary of 875 State for India, at 892, Chouthmal Jivarjee Poddar vs Ramachandra Jivarjjee Poddar, AIR 1955 Nag. 126 at 136 and Pt. Devi Charan vs Durga Porshad Chanu Lal & Ors., AIR 1967 Delhi 128 at 132; approved. </s>
<s>[INST] Summarize the judgementCriminal Appeal No. 221 of 1978. From the Judgment and Order dated 30.3.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 252 of 1975. A.N. Mulla, R.L. Kohli, Harjinder Singh and R.C. Kohli for the Appellants. R.S. Sodhi for the Respondent. Judgment of the Court was delivered by BALAKRISHNA ERADI, J. This is yet another unfortunate instance of gruesome murder of a young wife by the barbaric process of pouring kerosene oil over the body and setting her on fire as the culmination of a long process of physical and mental harassment for extraction of more dowry. Whenever such cases come before the Court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and 1223 strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti social crimes. Amandeep Kaur, deceased, was married to Avtar Singh who figured as the first accused in the case in the Sessions Court. Kailash Kaur, the appellant, is the mother in law of the deceased and Mahinder Kaur who figured as the third accused in the case is the sister of Avtar Singh. The hus band and his parents were allegedly unhappy about the quan tum of dowry brought by the deceased and she was being subjected to severe harassment and maltreatment with a view to extract more dowry from her parents. Exhibit PK is a letter written by the deceased to her father Avtar Singh (P.W. 3) in which she has set out the details of the harass ment and maltreatment and expressed her grave apprehension that unless she was immediately taken back to the father 's house, her life itself was in imminent danger. On may 30, 1974, in the evening. Kailash Kaur and Mahinder Kaur started quarreling with the deceased and severely abused and threat ened her. Thereupon, the deceased went to her room and bolted its door from inside. Sometime later Avtar Singh, husband of the deceased, came to the house and started knocking at the door of the said room with great force because of which the door got unbolted. It would appear that after the door was opened Avtar Singh went away from the house. It is the prosecution case that immediately thereaf ter Mahinder Kaur caught hold of the deceased and Kailash Kaur (appellant) poured kerosene oil on her and set her on fire. The deceased started screaming on hearing which the people residing in the locality rushed to the house. Avtar Singh, the husband also reached there in the meantime, As she was engulfed in flames, somebody put a blanket on Aman deep Kaur and extinguished the flames. Thereafter she was carried to the Civil Hospital, Hoshiarpur. Dr. Har Parkash Bhatia (P.W. 2), who examined her sent information to the local police station on receipt of which Head Constable Naranjan Singh (P.W. 7), went over to the hospital. The doctor sent everybody other than the Head Constable out of the room where the patient was lying. He told the deceased that he would put her questions about the cause of her death. On the basis of the questions put by the doctor, Head Constable Naranjan Singh (P.W. 7) recorded her statement, on the basis of which formal First Information Report was lodged at Police Station, Hoshiarpur. Amandeep Kaur expired on June 1, 1974. At the trial the prosecution relied on exhibit PF/3, the dying declaration made by the deceased Amandeep Kaur, the letter exhibit PK writ 1224 ten by her to her father Atar Singh (P.W. 3) and the evi dence of P.W. 3 wherein he stated that the appellant, her son and daughter were dissatisfied about the quantum of dowry brought by Amandeep Kaur and on that account they had been torturing her. The learned trial Judge acting on the aforesaid evidence convicted Kailash Kaur and Mahinder Kaur of the offence under Section 302 I.P.C. and acquitted Avtar Singh, the husband, accused giving him the benefit of doubt. Kailash Kaur and Mahinder Kaur carried the matter in appeal before the High Court of Punjab and Haryana. The High Court confirmed the conviction of the appellant herein namely, Kailash Kaur, but acquitted Mahinder Kaur giving her the benefit of doubt. Aggrieved by the said judgment, the appellant has preferred this appeal before this Court after obtaining special leave. Notwithstanding the learned and persuasive arguments advanced before us by Shri A.N. Mulla, Senior Counsel ap pearing on behalf of the appellant, we find absolutely no merit in this appeal. There is no reason whatever not to act upon the dying declaration of the deceased wherein she has given a clear and vivid account of the pouring of kerosene oil over body and her being set on fire by the appellant. She had also implicated Mahinder Kaur as the person who held her while the kerosene oil was being poured on her body by the appellant. We have very grave doubts about the legality, propriety and correctness of the decision of the High Court in so far as it has acquitted Mahinder Kaur by giving her the benefit of doubt. But since the State has not preferred any appeal, we are not called upon to go into that aspect any further. In addition to the dying declaration there is also clear circumstantial evidence furnished by the fetter exhibit PK and the testimony of Atar Singh (P.W. 3) father of the deceased regarding the demands for dowry and the harassment and torture inflicted on the deceased by the accused as part of the endeavour to extract more dowry. The dying declaration made by the deceased has the ring of truth and the testimony of the doctor P.W. 2 and of the Head Constable P.W. 7 clearly establishes that she was in a fit condition to make the statement. The conviction of the appellant by the High Court was, therefore, fully justified and there is absolute ly no ground for interference with the same by this Court. We only express our regret that the Sessions Judge did not treat this as a fit case for awarding the maximum penalty under the law and that no steps were taken by the 1225 State Government before the High Court for enhancement of the sentence. The appeal is accordingly dismissed. The bail bond of the appellant will stand cancelled and she will be taken into custody forthwith to serve out the remaining portion of her sentence. P.S.S. Appeal dis missed. [/INST]The election of the respondent, who was returned to the Lok Sabha in a bye election in 1981, was challenged by the appellant under section 80 of the Representation of the People Act, 1951, on a number of grounds, including the allegations of corrupt practice of undue influence, hiring and procuring of vehicles for carrying voters and obtaining the assistance of Government servants and incurring expenses at the elec tion in excess of the permissible limit. Upon a preliminary objection raised by the respondent the High Court struck off the pleadings as vague, general, unnecessary, frivolous and vexatious within the meaning of Order VI Rule 16 of the Code of Civil Procedure and rejected the petition under Order VII Rule 11 read with section 87 of the Act on the ground that it did not disclose any cause of action. In the appeal under section 116 A of the Act against the order of the High Court, it was contended for the appellant that the High Court had no jurisdiction to entertain prelim inary objections under Order VI Rule 16 or to reject the election petition under Order VII Rule 11 of the Code before the respondent had filed his written statement to the peti tion, which deprived him of the opportunity of amending the petition by supplying material facts and particulars, that allegations contained in various paragraphs of the petition constituted corrupt practices which disclosed cause of action within the meaning of section 100 of the Act and the High Court committed error in holding that the petition was detective, on the premise that it did not disclose any triable issue, and that the election petition disclosed primary facts regarding corrupt practice and 370 if there was absence of any particulars or details the High Court should have afforded opportunity to the appellant to amend the petition. The respondent was subsequently returned to the Lok Sabha in the general election held in 1984 and the validity of that election has been upheld in Azhar Hussain vs Rajiv Gandhi, ; and Bhagwati Prasad vs Rajiv Gandhi, ; The relief of setting aside the impugned election had thus become infructuous by lapse of time as the subsequent election could not be set aside on the grounds raised in the petition. But since section 98 read with section 99 of the Act mandates investigation of charges of corrupt practice, if any, raised against the returned candi date, and as proof thereof entails incurring of disqualifi cation from contesting subsequent election for a period of six years, the Court heard the appeal at length. On the questions: Whether the High Court had jurisdic tion to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject an election petition under Order VII Rule 11 of that Code at the preliminary stage, even though no written statement had been filed by the respondent, whether in the instant case in entertaining the preliminary objections and rejecting the election peti tion the High Court deprived the appellant of an opportunity to amend the petition and to make good the deficiencies by supplying necessary particulars and details of the corrupt practices alleged in the petition, and whether the various paragraphs of the said election petition disclosed any cause of action. Dismissing the appeal, HELD: 1.1 Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 1951, which is a complete and self con tained Code. Outside the statutory provisions, there is no right to dispute an election. The provisions of the Civil Procedure Code are applicable to the extent as permissible by section 87 of the Act. [387H 388B] 1.2. The scheme of the Act shows that an election can be questioned under the statute as provided by section 80 on the grounds as contained in section 100. The pleadings are regulated by section 83, which lays down a mandatory provision in providing that an election petition shall contain a COncise statement of material facts and set forth full particulars of 371 corrupt practices with exactitude. [388C] 1.3 Since allegations of corrupt practice are in the nature of criminal charges, it is necessary that each and every corrupt practice must be clearly and specifically pleaded and it should be complete in itself so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings the trial of the election petition cannot proceed for want of cause of action. [388DE] N.P. Ponnuswami vs Returning Officer, ; ; Jagan Nath vs Jaswant Singh, ; and Jyoti Basu vs Debi Ghosal, ; , referred to. 2.1 A combined reading of sections 81, 83, 86 and 87 of the Act makes it apparent that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds speci fied in section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contem plated by section 100 and if the allegations do not conform to the requirement of sections 81 and 83 the pleadings are liable to be struck off under Order VI Rule 16 of the Code of Civil Procedure. If after striking out defective pleadings the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order VII Rule 11 of the Code. [382H, 386A C] Azhar Hussain vs Rajiv Gandhi, ; ; Bhag watii Prasad vs Rajiv Gandhi, ; ; Udhav Singh vs Madhay Rao Scindia, ; and Charan Lal Sahu to. 2.2 In the instant case, the appellant failed to plead complete details of corrupt practices which could constitute a cause of action as contemplated by section 100 of the Act. He also failed to give the material facts and other details of the alleged corrupt practices. The High Court, therefore, rightly exercised its power in rejecting the election peti tion under Order VII Rule 11 of the Code. [401G, 403G H] 3. I Order VI Rule 16 of the Civil Procedure Code per mits striking out of pleadings which are unnecessary, scan dalous, frivolous, or vexatious or which may tend to preju dice, embarrass or delay a fair trial at any stage of the proceedings. It does not admit of any exception that the respondent must file written statement before the 372 preliminary objections could be entertained. If, therefore, a preliminary objection is raised before commencement of the trial, the court is duty bound to consider the same. It need not wait for the filing of the written statement by the defendant and point out defects. Instead it can proceed to hear the preliminary objection and strike out the pleadings. [387BC, 386D, 383AB, CD] 3.2. The High Court, therefore, had jurisdiction in the instant case to strike out pleadings at the preliminary stage even though no written statement had been filed by the respondent. [382CD] K. Kamaraja Nadar vs Kunju Thevar & Ors., , referred to. Union of India vs Surjit Singh Atwal, ; , distinguished. Vidya Charan Shukla vs G.P. Tiwari & Ors., AIR 1963 MP 356 overruled. 4.1 The Court did not deprive the appellant of the opportunity to amend the petition and to make good the deficiencies by supplying the necessary particulars and details of the corrupt practices alleged in the petition. He was free to file amendment application, but at no stage did he express any desire to make any amendment application nor he made any application to that effect before the High Court. It was open to him to have made that application but he himself did not make any such application. [387DE] 4.2 The High Court was under no legal obligation to direct the appellant to amend pleadings or to suo moto grant time for the same. Moreover, the allegations of corrupt practice as required by Section 83 were not complete and did not furnish any cause of action. [387E] 5.1 The petition was drafted in a highly vague and general manner. Various paragraphs of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. [401H] 5.2 The allegations contained in paragraphs 1 to 7 contain narration of facts as to when the election took place and the petitioner 's desire to file his nomination paper and the obstruction raised by the authorities and the allegation that the police were shadowing the appellant do not make out any ground under section 100 of the Act. [388H] 5.3 The allegation in para 8 that food was given to the workers of the respondent at some places assuming to be true does not make out a 373 case of corrupt practice or any other ground of challenge under section 100 of the Act. A corrupt practice as contemplated by section 123(6) contemplates incurring or authorising expendi ture beyond the prescribed limit. The impugned allegation does not contain any averment that the respondent incurred or authorised expenditure beyond the prescribed limit. [389B D] 5.4 Paras 9 to 19 merely show that a number of vehicles were plying with party flags of the respondent in the con stituency on different dates which by itself do not consti tute any corrupt practice. The basic ingredients to make out a ground for challenging the election under section 100 of the Act in these paras were totally lacking. They, therefore, disclosed no cause of action. [389E G] 5.5 The allegations in paras 20 and 21 that the mother of the returned candidate, who was the Prime Minister, had toured the constituency alongwith him and in her speeches had appealed to the voters to vote for him do not constitute undue influence or any other corrupt practice. It is always open to a candidate or his supporters to appeal to the electors to vote for a particular candidate for the develop ment and progress of the area. This would be a legitimate appeal, [389H 390A] 5.6 The allegations in paras 22 to 26 of the petition relate to the relationship of the appellant with his agent. These do not make out any ground under section 100 of the Act. [390BC] 5.7 The statement in para 27 that the appellant as we11 as his election agent were being followed by police does not refer to any violation of law or rule or commission of any electoral offence by the returned candidate or his workers with his consent. [390C] 5.8 The allegation in para 28 that on the polling day a lady went to the polling booth alongwith a voter where he affixed stamp on ballot paper and returned with her does not amount to any corrupt practice with consent of the returned candidate unless it could be shown that it materially af fected the result of the election. [390D] 5.9 The allegation in para 29 that on the polling day drinking water and batashas were being distributed to the voters at the polling station does not show that it was being done with the consent of the respondent or that he spent money over it or that the said action influenced the voters or that it materially affected the result of the election. In the absence of such allegations it disclosed no cause of action. [390F] 374 5.10 The allegations in paras 31 to 35 that workers of the respondent helped voters to cast their votes in favour of the respondent, do not amount to any corrupt practice unless there was further allegation that it materially affected the result of the election. [390G] 5.11 The averments made in paras 37 and 38 contain narration of facts which have no bearing on any corrupt practice. [391A] 5.12 The allegations in paras 39 to 49 that neither the appellant nor his election agent had appointed any counting agents but a number of persons had acted as his counting agents in an unauthorised manner and that complaints made by him were not considered by the Returning Officer, even if assumed to be true do not make out any case of commission of corrupt practice. [391B] The High Court, was, therefore, justified in striking out all these paragraphs. 6.1 In order to constitute a corrupt practice as contem plated by sections 77 and 123(6) it is necessary to plead requi site facts showing authorisation or undertaking of reim bursement by the candidate or his election agent. A mere vague and general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to con stitute corrupt practice. [392G 393A] Rananjaya Singh vs Baijnath Singh, ; ; Smt. Indira Gandhi vs RaI Narain, and Kunwar Lal Gupta vs A.N Chawla, , referred to. 6.2 Any voluntary expense incurred by a political party, well wishers, sympathisers or association of persons does not fail within the mischief of section 123(6), instead only that expenditure which is incurred by the candidate himself or authorised by him is material for the purpose ors. [392B] Dr. P. Nalla Thampy Terah vs Union of India & Ors., [1985] Supp. SCC 189, referred to. 6.3 The allegations contained in various sub paras of para 50 merely allege that a number of vehicles were plying with the flags of the party to which the returned candidate belonged and food was served in connection with the election meetings, distribution of badges and 375 leaflets. There is no allegation that the returned candidate incurred or authorised incurring of expenditure for the aforesaid purposes. Unless the allegations are specific that the candidate or his election agent authorised the expenses before the money was actually spent and that the candidate or his election agent reimbursed or undertook to reimburse the same the necessary ingredient of corrupt practice would not be complete and it would provide no cause of action to plead corrupt practice. The High Court was justified in striking out the same. [393G 394A] 7.1 If some developmental activity was carried on in the constituency and if it was completed during the election period it could not amount to any gift or promise to the voters. [394G] 7.2 The allegation in para 53(1)(A) does not disclose any material fact or particular regarding the alleged cor rupt practice of making gift which may amount to bribery within the meaning of section 123(1)(A). It merely states that Amethi railway station was being constructed and during the election its work was speeded up which persuaded the voters to cast their votes in favour of the returned candidate. There is no allegation that ,he returned candidate or his workers with his consent made any gift, offer or promise to any elector to vote or refrain from voting at an election. [394EF] 8.1 A candidate, his workers and supporters have every right under the law to canvass for the success of a particu lar candidate saying that if elected he would work for the development of the constituency. Such a promise does not in any way interfere with the free exercise of electoral right of the electors. [395E] 8.2 The allegations in paras 53(1)(B) and (C) that the returned candidate, his mother and their workers with their consent made promise through newspapers, pamphlets and speeches that voters should cast their votes in favour of the respondent for the sake of progress and development of the constituency, merely amounts to a representation being made by the party leader and the returned candidate and his workers. Such a statement of promise is a legitimate one and it does not fail within the definition of bribery and undue influence under section 123(1)(A) or section 123(2). [395B, D] 8.3 Declaration of public policy or a promise of public action or promise to develop the constituency in general do not interfere with free exercise of electoral rights as the same do not constitute bribery or undue influence. [396B] 376 Shiv Kirpal Singh vs V.V. Giri, [1971] 2 SCR 197 and H.V. Kamath vs Ch. Nitiraj singh; , , referred to. 9.1 Hiring or procuring of a vehicle by a candidate or his agent or by any other person with his consent is the first essential ingredient of the corrupt practice under section 123(5), the second such ingredient is that the hiring or procuring of the vehicle must be for conveyance of the voters to and from the polling station, and the third that conveyance of electors is free from any charge. If any of the three ingredients is not pleaded to make out a case of corrupt practice under section 123(5) the charge must fail. [397E, 399C] 9.2 The allegations contained in para 30 and 53(1)(D) conspicuously do not contain any pleading regarding hiring and procuring of the vehicles by the returned candidate or any of his workers with his consent for conveyance of the voters to and from polling station free of cost. No particu lars of any kind have been ' specified. The paras, therefore, do not make out any charge of corrupt practice as contem plated by section 123(5) and the High Court was justified in striking out the same. [399G 400A] Joshbhai Chunnibhai Patel vs Anwar Beg A. Mirza, ; ; Ch. Razik Ram vs Ch. J.S. Chouhan & Ors., ; Balwant Singh vs Lakshmi Narain, ; ; Dadasaheb Dattatraya Pawar & Ors. vs Pandurang Raoji Jagtap & Ors., ; ; Dharmesh Prasad Verma vs Faiyazal Azam, ; ; Rajendra Singh Yadav vs Chandra Sen & Ors., AIR 1979 SC 882 and Balwan Singh vs Prakash Chand & Ors., ; , referred to. 10.1 In order to constitute a corrupt practice under section 123(7), it is essential to clothe the petition with a cause of action which would call for an answer from the returned candidate and it should, therefore, plead mode of assist ance, measure of assistance and all facts pertaining to the assistance. The pleading should further indicate the kind or form of assistance obtained and in what manner the assist ance was obtained or procured or attempted to be procured by the candidate. for promoting the prospect of his election. The petitioner must state with exactness the time of assist ance, the manner of assistance and the persons from whom assistance was obtained or procured by the candidate. [400DE] 10.2 The allegations in sub paras 1, 2 and 3 of para 53(1)(E) that though the appellant had not appointed any counting agent but still 377 certain persons acted as his counting agents and the return ing officer did not hold any inquiry into his complaint, in sub para 4 that there was fear psychosis and it looked as if the police and other government officials wanted to help the returned candidate, in sub para 5 of certain persons helping the voters to cast their votes on the polling day and that some persons cast votes 100 to 200 times and their signa tures were not obtained do not make out any charge of cor rupt practice within the provisions of section 123(7). [400FG] 11. The allegations in para 53(2) that the presiding officers did not perform their duties in accordance with law inasmuch as they failed in their duty to remove the posters and other propaganda material from the polling booth and that the election symbol of the returned candidate was displayed within 100 metres of the polling booth in viola tion of the rules do not make out any charge of corrupt practice. If at all, it could be a ground under section 100(1)(d)(iv) for setting aside election on the ground of its being materially affected but no such plea was raised. [401EF] 12. The allegation in para 52 that the returned candi date had polled cent per cent votes in his favour in certain villages of the constituency do not make out any corrupt practice or any ground of challenge under section 100 and it was rightly struck off by the High Court. [394B] 13. Order VI Rule 17 of the Code of Civil Procedure permits amendment of an election petition but the same is subject to the provisions of the Act. Section 81 prescribes a period of 45 days from the date of the election for pre senting election petition calling in question the election of the returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in section 81 would amount to contravention of these provisions and is beyond the ambit of section 87 of the Act. A new ground cannot, thus, be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. [402CD] In the instant case, the election petition was presented to the Registrar of the High Court on the last day of the limitation. The amendments claimed by him are not in the nature of supplying particulars instead those seek to raise new grounds of challenge. Various paras of the election petition which are sought to be amended do not disclose 378 any cause of action. Therefore, it is not permissible to allow amendment after expiry of the period of limitation. [402A, E] 14.1 Court should not undertake to decide an issue unless it is a living issue between the parties, for if an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in decid ing it. [380D] Sun Life Assurance Company of Canada vs Jervis, , referred to. 14.2 Election is the essence of democratic system and purity of elections must be maintained to ensure fair elec tion. Election petition is a necessary process to hold inquiry into corrupt practice to maintain the purity of election. But there should be some time limit for holding this inquiry. [381E] 14.3 Parliament should consider the desirability of amending the election law to prescribe time limit for in quiry into the allegations of corrupt practice or to devise means to ensure that valuable time of this Court is not consumed in election matters which by afflux of time are reduced to mere academic interest. [381D] </s>
<s>[INST] Summarize the judgementivil Appeal No. 5483 of 1983. From the Judgment and Order dated 7.10. 1982 of the Madhya Pradesh High Court in M.P. No. 169 of 1982. R.F. Nariman and P.H. Parekh for the Appellants. V.N. Ganpule, V.M. Tarkunde, S.K. Agnihotri, S.K. Sinha, Rajinder Narain, R.S. Singh, and Rameshwar Nath for the Respondents. The appellant, a partnership firm filed the writ petition seeking writ of mandamus and other direction to remove Rajdhani Distilleries Corporation, the 7th respondent in the writ petition in the High Court and 6th respondent in this appeal for short 'respondent ' or his 'servants ' or 'agents ' and to deliver vacant and peace ful possession of U j jain Distillery and warehouses at tached to it and the plant and machinery mentioned in the schedule Annexure P 3 to the writ petition. It also sought for mandamus or other order to have the valuation of the plant and machinery in Annexure P 3 assessed or direction to return the goods or things described in Annexure P 7 or on its failure to pay a sum of Rs.8,48,179.28 and a mandamus directing the State Govt. to terminate the licence granted on August 25, 1981 to the respondent and to issue licence to the appellant under section 13 of the M.P. Excise Act, 19 15, for short 'the Act ', etc. Thus this appeal. The material facts, to dispose of the point arose in this appeal, lie 482 in a short compass as stated hereunder: In the State of Madhya Pradesh nine distilleries for the manufacture of spirit were established and one of which was situated at Ujjain. The appellant and its predecessors continuously had licence under sections 13 and 14 of the Act in form D 2 to distil rectified spirit or denatured spirit or liquor and D I licence for wholesale supply of country made liquor in the distillery to retail vendors in the area attached to the distillery. The licence was for a period of 5 years. The last licence of which was for the period from April 1, 1977 to March 31. The normal procedure in vogue was to call for tenders and the lowest was being accepted, though sometimes highest was also preferred. Next licensing period commenced from April 1, 198 1 to March 31, 1986 and the respondent became the successful tenderer which the appellant impugned in Misc. Petition No. 701/81 and obtained stay of dispossession from the distillery and the attached warehouses, The interim stay was later vacated and the petition was dismissed on August 20, 198 1. We may also mention here that the writ petition was also dismissed and the special leave petition was dismissed by this court. Thus grant of licence to the respondent under D 1 and D 2 li cences became final. On August 21, 1981 the Officer in Charge of the distillery wrote a letter to the appellant calling upon them to be present on August 22, 1981 to deliv er the distillery, plant, machinery, etc. to the respondent. The appellant neither received it nor cooperated to deliver possession of the distillery, etc. to the respondent. In stead it locked the distillery and went away. In the mean while the Excise Department also put their locks on the distillery etc. On August 27. 1981 the District Excise Officer again called upon the appellant to be present on August 28, 1981 to deliver possession of the distillery, etc. to the respondent. But the appellant remained absent. Consequently possession was taken of the distillery and warehouses, after taking inventory of stock in hand in the presence of the witnesses and the same were handed over to the respondent on August 28, 1981. The appellant sent a letter on February 23, 1982 valuing the goods taken posses sion of at Rs.8,36,988.61. On August 8, 1982 the appellant demanded redelivery of the distillery, plant and machinery and warehouses and the value of the stock in trade or pay the amount. On March 16, 1982 the appellant filed the writ petition in the High Court but was dismissed. The appellant contended in the High Court that it had been in exclusive possession of the distillery, plant and machinery at Ujjain and the attached warehouses and dispossession was unlawful and that, 483 therefore, the appellant was entitled to restitution of the plant and machinery and also to the grant of licence after cancellation of the licence granted to the respondent. The High Court found that the appellant had no exclusive posses sion which always remained with the Excise Department. The appellant worked out the contract of manufacturing rectified spirit or spirit (country made liquor) in the distillery and wholesale supply to the retail vendors within the area attached to the distillery. Due to non cooperation of the appellant possession was taken and delivered to the incoming licensee, the respondent, as per rules and the appellant was not entitled to restitution. The other findings are not necessary as they are not pressed before this court. The appellant had given up the reliefs of valuation of the plant and machinery and stock in trade. During the pendency of the appeal on an application made by the appellant this court directed the state to make over payment of a sum of Rs. 10 lacs deposited by the respondent with the State Govt. and also further directed the respondent to deposited sum of Rs.5 lacs in the Registry of this court and directed the Registry to keep that amount in fixed deposit to earn inter est thereon subject to adjustment at the final hearing. Despite issuance of several notices by the department, the appellant did not cooperate in the estimate of the value of the plant and machinery of the distillery and warehouses. the Committee appointed in terms of the conditions of the licence, fixed a sum of Rs. 10,53,016.45 as total value payable to the appellant. Since a sum of Rs. 10 lacs had already been paid, the appellant is still entitled to the balance amount of Rs.53,016.45. R.F. Nariman, learned counsel for the appellant, in his thorough and analytical arguments based on record made a shift in the stand and now contended that on a read ing of several clauses in the licence exhibit P 2, in particu lar, clause 50 enjoins the state to fix the valuation of all materials like buildings, still, machinery, etc. belonging to the appellant as an outgoing licensee; should be pur chased by the respondent before the expiry of the contract and commencement of the succeeding contract of the respond ent; the Committee appointed by the Excise Department in this behalf should estimate fair valuation and payment thereto be made to the appellant before taking over posses sion and handing over the plant and machinery of the dis tillery and the attached warehouses to the respondents as a condition precedent to dispossess the appellant and start the operation of the contract by the respondent which admit tedly were not done. This is in contravention of the manda tory conditions of the licence and the rules. The 484 appellant, therefore, is entitled to restitution of the plant and machinery of the distillery and the attached warehouses illegally taken possession of by the respondent and the state. In support thereof he placed strong reliance in Godhra Electricity Co. Ltd. & Anr. vs State of Gujarat & Ors. , ; He also referred to us in support of his contention various documents. In our view it is not necessary to dwelve deep into them. Sri Ganpule and Sri Tarkunde, the learned senior counsel for the State and the respondent. contended that the appellant was requested twice to be present for delivery of the plant and machinery in the distillery and warehouses to the respondent and due to its non cooperation possession was taken. Even for the assess ment of the valuation, before the expiry of the contract. the appellant was given several notices requesting it to furnish the evidence of the value of the plant and machinery stock in trade, etc., and due to its non cooperation. the valuation could not be made. Prior valuation and payment are not condition precedent to work out the licence. The appel lant has no right to the restitution after the expiry of the licence. Sri Tarkunde, in particular, emphasised that the restitution prayed for became infructuous on account of the subsequent events, namely, pursuant to December 1984 Govt. policy the respondents established their distillery at U j jain at their own expenses. The second period of licence also expired in 1991. There was further change in the policy of the Govt. , namely each District was made a supply area under a separate licence for two years. Under these circumstances the appellant is not entitled to any reliefs. It is also further contended that the conditions in the licence in exhibit P 2 marked in the High Court should be read harmoniously. It is clear that prior fixation of the valuation and the payment of the price is not a condition precedent. The ratio in Godhra Electricity Co. Ltd. case is inapplicable to the facts of this case. The sole question is whether fixation of the price of the plants and machinery at Ujjain and the attached ware houses and stock in trade and payment thereof to the appel lant is a condition precedent to take possession and deliv ery thereof to the respondent on August 28, 1981. At the outset we may make it clear that, though Sri Nariman con tended that the grant of licence to the respondent was in gross violation of the conditions of the tender as the respondent did not comply with any of the mandatory condi tions stipulated therein and the delivery of the possession of the distillery in pursuance of the illegal contract is without jurisdiction, we decline to go into this question, though prima facie may be plausible to be countenanced, for the 485 reasons that the grant of licence for the period of 1981 to 1986 to the respondent became final and expired by efflux of time. It was also contended by Sri Nariman that the valua tion made at Rs. 10,53,0 16.45 was not proper and contrary to the tender 's conditions which stipulated deposit of a minimum of Rs. 19 lacs by the respondent as a condition to grant licence, and that, therefore, the appellant is enti tled to valuation of at least Rs. 19 lacs. We decline to go into that question also since the relief of valuation was given up in the High Court. It is also clear from the record that the appellant had not cooperated in estimating the value and the Committee of designated officers, namely the Addl. Collector, the District Excise Officer, Astt. Commis sioner of Excise and Accounts Officers was compelled to go into the question and made an assessment of the value on January 5, 1984. That valuation was also not questioned in the writ petition. To find whether it is a condition precedent to fix the valuation of the plants and machinery of the distillery and the warehouses and the stock in trade and payment thereof before taking over possession and handing over the same to the incoming licencee, the material clause 50 to be looked into reads thus: "All the materials like buildings, still, machinery, drums, wood fuel, coal, mahua, bottling, machinery, bottles, spices, red sealing wax, coaltar, pilfer proof seals, crown corks, alongwith alu capsules, etc. belonging to the outgoing licensee purchased for the use of distillery and warehouses attached thereto, shall be valued before the expiry of the old contract and the commence ment of the new one by a committee appointed by the Excise Department in this behalf. The committee aforesaid shall be appointed by the Excise Commissioner under the previous sanc tion of the Government (Separate Revenue Department) and it shall consist of five members, namely (1) Collector or Additional Collector convenor, (2) Assistant Commissioner of Excise of the Division concerned member (3) Executive Engineer Technical member, (4) Accounts Officer of the Excise Department Member, and (5) Representative of the licensee Member. If the representative of the licensee remains absent in the committee at the appointed time, the remaining four members shall begin their work in his absence and no objection of the licensee in this respect shall be heard. The valuation made and agreed upon by the Committee shall be sanc tioned by the Excise Commis 486 sioner with such necessary changes as he deems fit and in case of difference of opinion amongst the members, the Excise Commissioner shall pass orders relating to disputed valua tion. The orders of Excise Commissioner shall be final and binding upon the licensee. Note: The valuation of sanctioned plant at the warehouses may be done by a committee consisting of some of the members of the above referred committee, subject to the orders of the Excise Commissioner, which shall be final and binding on the licensee. Prima facie, if the clause by itself is read in isola tion, it would indicate that prior fixation of the value and payment is a condition precedent. But in our view all the conditions of the licence, policy of the Act and Rule of the possession, manufacture, supply, sale and distribution of the rectified spirit or denatured spirit or liquor from the stage of manufacture in Distillery till retail sale to the consumer be viewed as an integrated whole and the human behaviour of the outgoing licensee also has to be kept in view. Any other view would disrupt smooth transition from the outgoing to the incoming licensee; hampers the continui ty of supply and sale of intoxicants and cause collosal loss of public revenue. So let us consider the relevant proposi tions from this background. Section 13 of the Act requires a licensee to manufacture intoxicants: (a) Licence is required for manufacture, etc. of intoxicants; (b) No intoxicant shall be manufactured or collected . . . (f) No person shall induce, keep in his possession any material. . for the purpose of manufacture of intoxicants, other than tari, except under the authority and subject to the terms and conditions of the licence granted in that behalf. Section 14 provides that: (a) establish a distillery in which spirit may be manufactured under licence granted under section 13 on such conditions as the Govt. may impose. 487 (C) license on such conditions as the State Govt. may impose the construction and working of the distillery and brewery; (c) establish or licence warehouses wherein any intoxicant may be deposited and kept without payment of duty, subject to payment of such fee as the State Govt. may direct. . Section 17 provides inter alia that no intoxicant shall be sold except under the authority and subject to the terms and conditions of licence granted in that behalf. Thus it is clear that establishment of a distillery or a warehouse; manufacture of intoxicants, spirit (country made liquor), the possession and distribution and sale thereof are regulated under the Act. The Govt. in exercise of its power under section 62 of the Act made rules regulating the control of distilleries and warehouses by Officers of the Excise Department, especially appointed by the Excise Commissioner for that purpose. Therefore, any licensee, under the Act and the Rules, be it incoming or outgoing, should have D 2 and D I licences for establishment of distillery and warehouses, possession of raw materials, manufacture of liquor or rectified spirit or denatured spirit and supply to the retail vendors of the area attached to the distillery. Any infraction is an of fence. It is settled law by several decisions of this court that there is no fundamental right to a citizen to carry on trade or business in liquor. The state under its regulatory power, has power to prohibit absolutely any form of activity in relation to an intoxicant, its manufacture, possession, import and export. No one can claim, as against the state, the right to carry on trade or business in any intoxicants, nor the state be compelled to part with its exclusive right or privilege of manufacture, sale, storage of liquor. Fur ther when the state has decided to part with such right or privilege to the others, then state can regulate consistent with the principles of equality enshrined under article 14 and any infraction in this behalf at its pleasure are arbitrary violating Article 14. Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of the liquor through any agency other than the state would be subject to rigour of Article 14. Vide Har Shankar & Ors. vs Dy. Excise & Taxation Commissioner & Ors., and State of M. P.v. Nandial Jaiswal. ; , 488 When the state was dealing with the grant of the privi lege of establishing or manufacturing intoxicants, rectified spirit or denatured spirit, spirit (country made liquor) in a distillery owned or regulated by it, and invites tenders in this regard it should conform to the rigour of article 14 of the Constitution. Admittedly, the licence of the appellant expired on March 31, 1981 and thereafter it had no right to manufacture and store at distillery in Ujjain and distribu tion as wholesaler of the country made liquor from the attached warehouses to the retail vendors within that area granted to the respondent. But for the stay granted by the High Court the operation of the respondent 's licence was to begin on April 1,198 1. The outgoing licensee, the appel lant, had to hand it over to the respondent on that date. The conditions in the licence P 2 postulate of mutual rights and obligations between the outgoing licensee to sell and the incoming licensee to purchase the plant and machinery of the distillery, stock in trade and also the machinery in the warehouse including the apparatus, etc. enumerated in the conditions either at the price fixed or agreed directly between the parties or fixed by the committee of the desig nated officers. In case of any difference in the valuation between the members, the Commissioner of the Excise or the State Govt. would fix the valuation, which was made final. The Committee designated was to be constituted with prior approval of the Govt. as per condition 50 to evaluate the plant and machinery of the distillery and some of them of the warehouses. Outgoing licensee also is entitled to repre sent in the Committee. On his non cooperation the rest of the four members of the Committee are empowered to determine the value. Clause 23(iii) provides that any dispute relating to valuation of the sanctioned plant shall be referred to the State Government and the decision of the State Govt. shall be final and binding on the parties to the dispute. Clause 2 thereof refers that the licensee shall made over the said distillery and warehouses buildings on the termination of the licence in as good condition as they were at the com mencement hereof excluding reasonable wear and tear. Clause 36(4) provides that any dispute relating to the sale of spirit or plant by the licensee or the valuation of the plant shall be referred to the State Govt. and the decision of the State Govt. shall be final and binding. Clause 39(1) in particular, mentions that at the commencement of the term of this licence, the licensee shall buy all sanctioned plant at the U j jain distillery including spare parts, furniture, motor trucks and fittings at a price to be fixed by the State Government. Licensee shall pay the price thereof within 30 days of the communication. Similarly, clause 41, 42(1) and clause 44 provide that the incoming licensee shall take on lease all 489 other buildings structures attached to the distillery at Ujjain on such conditions and terms as per Public Works Department Manual Vol. II within a period of one month of the intimation of the acceptance of the tender. Then comes clause 50 quoted hereinabove. The incoming licensee shall make payment within 30 days from the date of communication of the value. Therefore, the courts should adopt realism, pragmatism, practicality and the purpose envisaged under the Act and the rules in construing the relevant clauses in the licence. The purpose of the Act the rules made therein is to regulate the manufacture, distribution sale of the intoxicants, rectified spirit or denatured spirit, liquor, sale to consumers within the state of Madhya Pradesh. It is an on going process conducted through the licensing system, an exclusive privi lege of the state through the licences granted under form D 1 and D 2 in this behalf. The duration of the licence is fixed one. On expiry of the licence the outgoing licensee shall be bound to handover the distillery plant and machin ery therein, and warehouses attached thereto, the stock in trade and other apparatus and goods used for the manufac ture, storage and distribution. The outgoing contractor is entitled continue his business activity till the last date of the licence, namely March 31, of the ending year. The succeeding licensee would take over the business from the outgoing licensee on April 1 of the year of licence. Thus there should be no hiatus between taking over and handing over the manufacture, possession. storage of the wholesale business of the spirit (country made liquor) or rectified spirit or denatured spirit. Under these circumstances it will well nigh be impossible to assess the valuation of the entire stock in trade or plant and machinery in the distill ery or the warehouses till the last date. In addition the cooperation of the outgoing licensee is also necessary and expected as he would be in possesssion of the records of the previous purchases of the materials, or plant or machinery if any new additions are made etc. Unless they are made available, it is not possible to assess the value after giving due rebate or depreciation, etc. to the incoming licensee. The human nature and conduct would be such that the outgoing licensee, being the unsuccessful tenderer, would not cooperate in handing over possession of the dis tillery and stock in trade and would approach the High Court under article 226 of the Constitution as was done in this case. The incoming licensee has time of thirty days in case of stock in trade or three months in the case of plant and machinery from the date of communication to him to pay the value to the outgoing licensee. Keeping those circumstances at the back of our mind we decline to adopt lexographic strict construction of clause 50 which 490 would thwart continuity; create hiatus in smooth operation of manufacture, storage, distribution and sales of the intoxicants. Moreover, after the assessment is made and in case of any difference of opinion in the valuation or the outgoing licensee claims higher value the final arbiter would be in some cases like stock in trade, the Commissioner of Excise and in case of plant and machinery or warehouses the State Govt. After the decision of the Commissioner or the State Government, it shall be communicated to the suc ceeding licensee, who has been given maximum period of three months to make payment to the outgoing licensee. In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, we hold that strict construction would lead to innumerable complications and loss of public reve nue. We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated. In all other cases it could be done even after the expiry of the stipulated period. In that perspective we have no hesitation to hold that prior valua tion of plant and machinery in the distillery, stock in trade therein or the value of the machinery in the ware houses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent. Therefore, taking over possession from the appel lant on August 28, 1981 and handing over the plant and machinery, etc. to the respondent is not illegal. Undoubtedly this court, in Godhra Electricity case held that it is mandatory that a person who is deprived of his property, before its taking over, the value should be esti mated and the payment made or else it is illegal. But the ratio would be considered in the light of the setting there in. The licence granted under section 6 of the as amended in 1959 to produce electrical energy was acquired by the Electricity Board. Section 6(6) provides that where a notice exercising the option of purchasing the undertaking has been served upon the licence, the licensee shall deliver the undertaking to the State Electricity Board on expiry of the relevant period referred to in section 6(1). In that case the constitutional validity of section 6(6) was ques tioned which did not provide for payment before taking over of the undertaking as offending Article 19(1)(f) and (g) and article 14 of the constitution. While considering the constitu tional validity of section 6(6) this court held that valuation and payment is a condition precedent since the Act did not envisage any payment of interest subsequent thereto. Accord ingly this court directed redelivery of the undertaking 491 to the licensee subject to follow the procedure as per law laid down therein. In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which the appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitu tion of the plant and machinery of the distillery at Ujjain and the attached warehouses. The appellant though claimed that the value of the plant and machinery was too low, contrary 'to the specification in this behalf in tender condition and though we decline to go into the question, the appellant appeared to have smarted under apprehension that it had to face the plea of acquies cence, if it were to cooperate earlier. So it is open to the appellant to make a representation to the Govt. and any officer not below a Secretary preferably of the concerned Department would go into the matter and decide the value as per the material on record. It is open to the appellant to place all its material. It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly. As regards deposit now made in the Registry of this Court, the Registry is directed to make payment of a sum of Rs.53,016.45 and inter est accrued thereon to the appellant and the balance amount and the interest accrued on the residual to the respondent and the respondent 's liability would be subject to the decision by the Secretary as indicated in the judgment. The appeal is accordingly allowed to the above extent and since the appellant substantially failed there would be no order as to costs. Y.L. Appeal partly allowed. [/INST]The appellants and its predecessors continuously held licences under Sections 13 and 14 of the Madhya Pradesh Excise Act to distil rectified spirit or denatured spirit or liquor. The last of such licence which the appellant had related to the period from 1.4.1977 to 31.3.1981. The next licensing period commenced from 1.4.1981 to 31.3.1986 and the respondent Rajdhani Distilleries Corporation became the successful tenderer in respect thereof which the appellant impugned by means of a writ petition before the High Court but failed both before the High Court as also in this Court in a special leave petition. Thereupon the appellant was called upon twice to be present to deliver the possession of the distillery to the respondent but the appellant did not co operate. Likewise the appellant did not co operate in fixing the value of the plant and machinery of the distill ery and warehouses as a result of which a committee was appointed in terms of the licence which fixed a sum of Rs.10,53,016.45 p. as the total value payable to the appel lant. Due to the non cooperation of the appellant, the Excise Department took over the possession of the distillery after making inventory of stock in hand in the presence of the witnesses and the same was handed over to the respond ent. The appellant thereafter demanded redelivery of the distillery and on his failure to get the same it filed a writ petition in the High Court praying for a writ of manda mus seeking inter alia restitution of the distillery and the warehouses etc., challenging the quantum of valuation fixed. The High Court dismissed the writ petition. The High Court found that the appellant had no exclusive possession which always remained with the excise Department; the appellant worked out the contract of manufacturing rectified spirit etc. and that due to non cooperation of the appellant, possession was taken and delivered to the incoming licensee as per rules and the 479 480 appellant was not entitled to restitution. Hence this appeal by special leave. It is contended on behalf of the appellant that clause 50 enjoins the State to fix the valuation of all the materials belonging to the appellant and pay the same to it as an outgoing licensee, before taking over possession and handing over the distillery and the attached warehouses to the respondents. According to it, it is a condition precedent under clause 50 to dispossess the appellant and start the operation of the contract by the respondent which admittedly were not done. This is a contravention of the mandatory conditions of the licence and the rules. The respondents on the other hand contend that the appellant is not entitled to restitution as it was due to its non cooper ation, possession was taken. According to them prior valua tion and payment are not condition precedent to work out the licence. Partly allowing the appeal, this Court, HELD: In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, the Court held that strict construction (of clause 50) would lead to innumerable complications and loss of public revenue. We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated. In all other cases it could be done even after the expiry of the stipulated period. In that perspective the Court had no hesitation to hold that prior valuation of plant and machin ery in the distillery, stock in trade therein or the value of the machinery in the warehouses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent. Therefore, taking over possession from the appellant on August 28, 1981 and handing over the plant and machinery, etc. to the respondent is not illegal. [490C E] In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitution of the plant and machinery of the distillery at Ujjain and the attached warehouses. [491A B] It is open to the appellant to make a representation to Government and any officer not below a Secretary preferably of the concerned 481 Department would go into the matter and decide the value as per the material on record. It is open to the appellant to place all its material. It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly. [491D] Godhra Electricity Co. Ltd. and Anr. vs State of Gujarat and Ors. , ; ; Hat Shankar & Ors. vs Dy. Excise of M. P.v. Nandial Jaiswal; , , Referred to. </s>
<s>[INST] Summarize the judgementivil Appeal No. 799 of 1963. Appeal by special leave from the judgment and decree dated March 1, 1961 of the Allahabad High Court in Special Appeal No. 205 of 1958. section P. Varmaa for the appellant. C. B. Agarwala, O. P. Rana and Atiqur Rehman, for the respondents. 337 The Judgment of the Court was delivered by Subba Rao J. This appeal by special leave raises the ques tion of the scope of the retrospective operation of the U.P. Agricultural Income tax (Amendment) Act, 1956 (U.P. Act No. 14 of 1956). The facts are simple and they are as follows: On January 10, 1953, for the assessment year 1952 53, the Additional Collector, Banaras, assessed the appellant to agricultural income tax under the U.P. Agricultural Income tax Act, 1948 (U.P. Act 3 of 1949). On February 9, 1956, U.P. Agricultural Income tax (Amendment) Ordinance, 1956 (2 of 1956) was passed enacting that the word "Collector" shall always be deemed to include Additional Collector. That Ordinance was later replaced by the U.P. Agricultural Income tax (Amendment) Act 14 of 1956. On an application filed by the appellant, the Collector by his order dated May 9, 1956, revoked his earlier order and directed the Additional Collector to proceed to assess the appellant in accordance with law. Thereupon, the Additional Collector resumed proceedings and on June 7, 1956, passed a fresh assessment order imposing a tax of Rs. 42,761 on the appellant, and on July 4, 1956, he issued a notice to the appellant for payment of the tax. On August 7, 1956, the appellant filed a petition under article 226 of the Constitution in the High Court of Judicature at Allahabad for quashing the order of assessment and the notice issued pursuant thereto. The petition was heard, in the first instance, by Tandon J., who dismissed the same with costs. The appeal preferred by the appellant against that order to a Division Bench was also dismissed. Hence the present appeal. Mr. section P. Varma, learned counsel for the appellant contended that (i) the respondent 's right to assess the appellant to tax was barred by limitation and, therefore, the Act could not have the effect of reviving the said right; and (ii) the amount of malikhana could not be in law the subject matter of assessment. The second point was not raised in the High Court. We did not permit the learned counsel to raise the point for the first time before us. The first point turns upon the relevant provisions of Act 3 of 1.949 and Act 14 of 1956. Under Act 3 of 1949 the defi nition of "Collector" did not include "Additional Collector". Act 14 of 1956 received the assent of the Governor on April 17, 1956, and was published in the U.P. Gazette (Extraordinary) 338 dated May 19, 1956. Section 2 of Act 14 of 1956 reads: "In section 2 of the U.P. Agricultural Income Tax Act, 1948 (hereinafter called the Principal Act), for clause (4), the following shall be and be deemed always to have been substituted "(4 a) 'Collector ' shall have the meaning as in the U.P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act. " Section 11 of the Act reads "Where before the commencement of this Act any Court or authority has, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector or Additional Assistant Collector incharge of a sub division merely on the ground that the assessing authority had no jurisdiction to make the assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the Court or authority for a review of the proceedings in the light of the provisions of this Act, and the Court or authority to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made, as may be necessary to give effect to the provisions of the Principal Act as amended by sections 2 and 8 of this Act. " A combined reading of the said provisions establishes that if an application for review was filed within the time prescribed, the previous proceedings would be restored and the parties would be relegated to the position which they had occupied before the proceedings were quashed on the ground of want of jurisdiction. In this case proceedings were initiated by the Additional Collector on January 10, 1953, for the purpose of assessing the appellant for the assessment year 1952 53. There was no flaw in the said proceedings except that the Additional Collector was not authorized by Act 3 of 1949, as it then stood, to make the said assessment. The, Collector quashed those proceedings by his order dated November 26, 1955. After the amending Act was passed, within 90 days therefrom the appropriate income tax authority had filed an application before the Collector to review his order. The Collector reviewed the order and 339 set aside the same. The result was that the proceedings before the Additional Collector were restored. As by the amendment the Additional Collector must be deemed to have been the Collector from the inception of the Principal Act itself, the said proceedings must be deemed to have been initiated before the proper authority under the Principal Act. In this view no question of limitation could possibly arise, for the proceedings were initiated in time and must be deemed to have been pending throughout and the fresh assessment was made in the said proceedings. The decisions cited by the learned counsel are really beside the mark. He relied upon the judgments of this Court in section C. Prashar vs Vasantsen(1), and Commissioner of Income tax Bihar vs Lakhmir Singh(2). One of the questions raised in those cases was whether an amending Act revived a remedy which had become barred before the amendment was introduced. That aspect of the question has no relevance to the present enquiry. Here we are dealing with an Act whose constitutionality is not questioned. It has expressly conferred power on the appropriate authority to review its previous order if an application was filed within the time prescribed. When once that power of review was exercised, the proceedings were reopened. In this view, no question of the application of an amending Act to a barred claim would arise. In the result we hold that the order of the High Court is correct and dismiss the appeal with costs. Appeal dismissed. (1) [1964] 1 S.C.R. 29. (2) [1964] 1 S.C.R. 148. [/INST]Cash and ornaments worth Rs. 1,06,000 were robbed by dacoits from the Ramnagar branch of the Nainital Bank Ltd., a public limited company carrying on the business of banking. The loss was claimed by the bank as a trading loss for the assessment year 1952 53. The claim was disallowed by the Income tax Officer on the ground that the loss was not incidental to the business. The finding being confirmed by the Appellate Assistant Commissioner and the Incom tax Appellate Tribunal, a reference was made to the High Court of Judicature at Allahabad which held that the loss by dacoity was incidental to the banking business and was, therefore a trading loss which the assessee could claim as a deduction under section 10(1) of the Indian Income tax Act, 1922. Appeal to this Court on behalf of the Revenue, came by way of a certificate under article 133 of the Constitution of India. It was contended on behalf of the appellant that the risk of burglary was not incidental to the business of banking, and the loss in the present case fell on the assessee not as a person carrying on the business of banking but as an owner of funds. HELD : Cash is the stock in trade of a banking company. and its loss is therefore a trading loss. But every loss is not deductible in computing the income of a business unless it is incurred in the carrying out of the operation of the business and is incidental to the operation. Whether in a particular case an item of loss claimed as a deduction under section 10(1) of the Act is incidental to the operation of the assessee 's business or not is a question of fact to be decided on the facts of that case, having regard to the nature of the operations carried on and the nature of the risk involved in carrying them out. The degree of risk or its frequency is not of much relevance but its nexus to the nature of the business is material. [344 A; 349 D E]. It is an integral part of the business of banking that sufficient moneys should be kept in the bank duly guarded to meet the demands of the constituents. Retention of the money in the bank is part of the operation of banking. Retention of money in the bank carries with it the ordinary risk of its being the subject of embezzlement, theft, dacoity or destruction by fire and such other things. Such risk of loss is incidental to the carrying on of the operation of the business of banking. Loss incurred by dacoity in the present case is incidental to the carrying on of the business of banking. [349 F G]. Case law discussed. Motipur Sugar Factory Ltd. vs Commissioner of Income tax, Bihar and Orissa, Charles Moore & Co. (W.A.) Pvt. Ltd. vs Federal Commissioner of Taxation, ; and Gold Band Services Ltd. vs Commissioner of Inland Revenue, , relied on. 341 Badridas Daga vs Commissioner of Income tax [1959] S.C.R. 690 distinguished. Ramaswamy Chettiar vs Commissioner of Income tax, Madras I.L.R. (1930)53 Mad. 904, disapproved. </s>
<s>[INST] Summarize the judgementAppeal No. 213 of 1967. Appeal from the Judgment and order dated February, 17th 1965 of the Patna High Court in First Appeal No. 113 of 1960. M. C. Chagla, D. P. Singh, section C. Agarwal, V. J. Francis, R. Goburdhun and D. Goburdhun, for the appellant. M. C. Setalvad, Sarjoo Prasad, A. G. Ratnaparkhi and Rajiv Shah, for respondent No. 1. The Judgment of the Court was decided by Hegde, J. In this appeal by certificate we are to consider the effect of the will executed by one Raghunath Prasad Singh, on August 31, 1938. The said testator died very soon after the execution of the will leaving behind him his widow Jageshwar Kuer, 72 his daughter Satrupa Kuer and his two grand daughters Talkeshwari Devi (the appellant herein) and Sheorani. The appellant and Sheorani are the daughters of Sukhdeo Prasad Singh, the son of the testator who had predeceased the testator. Jageshwar Kuer died in November 1948 and Sheorani Devi on November 1, 1949 without leaving any issue. The dispute in this case is as to who is entitled to the properties devolved on Sheorani under the provisions of the will left by the testator. For deciding that question we have to refer to the relevant provisions of the will. the genuineness or validity of which is not in dispute. The will in question provides that after the death of the testator a portion of his properties (detailed in the will) was to devolve on Jageshwar Kuer absolutely and the remaining properties are also to devolve on her but therein she was to have only a life interest. The will further provides that after her death "the entire property will be treated as 16 annas property out of which 5 annas 4 pies(five annas four pies) share constituting proprietary interest will pass to Shrimati Satrupa Kuer alias Nan daughter of me, the executant and her heirs as absolute owners and the remaining 10 annas 8 pies (annas ten and eight pies) share will pass to both the minor grand daughters, (1) Shrimati Talkeshwari Kuer alias Babu and (2) Shrimati Sheorani Kuer alias Bachan in equal shares as absolute proprietary interest" (cf. 4 of the will). Clause 5 of the will says : "That if one of the two grand daughters named above, dies issueless, then under such circumstances the other living grand daughter will enter into possession and occupation of the entire 10 annas 8 pies and become the absolute owner thereof. " At the time of the death of the testator, the appellant as well as Sheorani Kuer were minors. After the death of Jageshwar Kuer, the appellant and her sister Sheorani Kuer divided the ten annas eight pies share of the properties which devolved on them in equal shares and each one came into possession of her share of the properties. Immediately after the death of Sheorani Kuer, the appellant instituted a suit for possession of the properties that fell to the share of Sheorani Kuer purporting to base her claim on clause 5 of the will to which we have earlier made reference. That suit was resisted by the first defendant, the husband of Sheorani. He claimed that he was entitled to those properties as the heir of his wife. The trial court dismissed the plaintiff 's suit and the decision of the trial court was upheld by the High Court. It was contended on behalf of the appellant that in view of clause 5 of the will, the appellant is entitled to the suit properties 73 as Sheorani Kuer had died issueless. This contention, as mentioned earlier, did not find favour either with the trial court or with the appellate court. They have held that on a proper leading of the will as a whole, it is clear that clause 5 ceased to be operative on the death of Jageshwar Kuer, thereafter caluse 4 of the will was the only operative clause so far as the rights of the appellant and Sheorani ware concerned. It is undisputed that the duty of the court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. I+ is clear from clause 4 of the will that the testator wanted to give to his grant daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are, unable to accept the contention of Mr. M. C. Chagla, learned Counsel for the appellant that there is an , conflict between clause 4 and clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devoted on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand daughters dies issueless before the devolution took place then the entire property should go to the other granddaughter. To our mind the intention of the testator is plain from the language of the will. To find out the effect of the will before us we have to look to sections 1 4 and 131 of the . Section 124 says : "Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for be occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable." L864 Sup. CI/72 74 Illustration (ii) to that section says "A legacy is bequeathed to A, and in the case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect. " If section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is section 131. That section says: "A bequest may be made to any person with the condition super added that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person." had already vested. It speaks of an estate going over to another person. As seen earlier clause 5 of the will is not a defeasance clause. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and anr. vs Kamal Basini Dasi(1) Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions "My three sons shall be entitled to enjoy all the movable and immoveable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally". Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testator 's death. In arriving at this conclusion, the Judicial Committee relied on section 111 of the Indian Succession Act, 1865. That provision is similar to section 124 of the . For the reasons mentioned above we are in agreement with the courts below that the suit brought by the appellant is un sustainable. This appeal is accordingly dismissed with costs. Appeal dismissed. K.B.N. Appeal dismissed. [/INST]By clause 4 of a will the testator bequeathed to his grand daughters T and S an absolute right in the properties that were to devolve on them after the death of his wife. , Clause 5 further provided that if one of the two grand daughters were to die issueless the other living grand daughter was to enter into possession of the entire property as absolute owner. After the death of the testator 's wife T and S divided the properties which devolved on them in equal shares. On S dying issueless T instituted a suit for possession of the properties that fell to the share of S basing her claim on clause 5 of the will. The suit was dismissed. Dismissing the appeal, HELD : Clause 5 of the will relates to devolution, it does not provide for any divestment of an estate which had vested. The estate that vested in S under clause 4 of the will was not a conditional estate, it was an absolute one. The will does not provide for the divestment of that estate. Clause 5 would have come into operation if the contingency mentioned therein had happened before the properties absolutely devolved on T and section What the testator intended was that if any of his grand daughters died issueless before the devolution took place then the entire property should go to another grand daughter. The intention of the testator is plain from the language of the will. [73 E] Section 124 of the applies to the facts of the case and not section 131. The legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 131 provides for the divestment of an estate which had already vested; it speaks of an estate going over to another person. [74B] Norendra Nath Sircar and anr. vs Kamal Basini Dasi, I.L.R. , referred to. </s>
<s>[INST] Summarize the judgementCivil Appeal No. 852 of 1968. Appeal by Special Leave from the Judgment and Order dated the 9th August, 1967 of the Punjab & Haryana High Court in L.P. A. No. 199/67. Naunit Lal and R. N. Sachthey for the Appellants. Madan Bhatia for Respondent. The Judgment of the Court was delivered by GUPTA, J. The respondent Jiwan Singh who is a displaced person from Pakistan was allotted 55.80 standard acres of land in village Neza Dali Kalan in Sirsa Tehsil of Hissar District in lieu of the land left by 211 him in Pakistan. The second appellant, Collector Surplus Area, Sirsa, in determining the surplus area under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act) left only 100 ordinary acres with the respondent as his permissible area and declared the rest of the land measuring 78.57 ordinary acres, equivalent to 25.99 standard acres, as surplus. Permissible Area as defined in sec. 2(3) of the Act is as follows: "Permissible area" in relation to a land owner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres: Provided that (i) no area under an orchard at the commencement of this Act, shall be taken into account in computing the permissible area: (ii) for a displaced person (a) who has been allotted land in excess of fifty standard acres, the permissible area shall be fifty standard acres or one hundred ordinary acres, as the case may be. (b) who has been allotted land in excess of thirty standard acres, but less than fifty standard acres, the permissible area shall be equal to his allotted area. (c) who has been allotted land less than thirty standard acres, the permissible area shall be thirty standard acres, including any other land or part thereof, if any, that he owns in addition. " There is an explanation to this definition which is not relevant for the present purpose. Surplus Area would be the area in excess of the permissible area. According to the respondent the surplus area in his case cannot exceed 5.80 standard acres in view of the proviso (ii) (a) to sec. 2(3), and being aggrieved by the order of the Collector preferred an appeal to the Commissioner. The Commissioner remanded the case to the Collector for a fresh determination of the respondent 's surplus area observing that in the case of a displaced person if the allotment was in standard acres, 50 standard acres would be the permissible area and if the allotment was in ordinary acres the permissible area would be 100 ordinary acres. On remand the Collector upheld his own previous order and the appeal taken by the respondent from this order was dismissed by the Commissioner. The respondent filed a revision petition before the Financial Commissioner, Punjab, who also upheld the order of the Collector and dismissed the petition. The respondent thereafter filed a writ petition in Punjab and Haryana High Court which was allowed. The learned Judge who heard the writ petition held following a full Bench decision of the same High Court, Khan Chand vs State of Punjab, (1) that it was "not legitimate for the authority to treat as surplus 212 area anything more than 5.80 standard acres of the petitioner 's land". The Letters Patent appeal preferred against the decision of the learned single Judge by the State of Haryana and the Collector Surplus Area, Sirsa, was dismissed. The correctness of the High Court 's decision is challenged before us in this appeal by special leave. The case turns on the true meaning of proviso (ii) (a) to sec. Counsel for the appellants submits that this provision means that the permissible area in the case of displaced persons who were allotted land in excess of 50 standard acres can be determined either in terms of standard acres or in terms of ordinary acres, as the authority concerned chooses. Counsel contends that the words "as the case may be" refer to the discretion of the authority in this matter. We do not find it possible to accept this contention. There is no specific provision in the Act giving a discretion to the Collector or any other authority under the Act to determine the permissible area for a displaced person was in standard acres or in ordinary acres. On a plain reading proviso (ii) (a) seems to indicate that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres, and where the land was allotted not in standard acres the permissible area would be 100 ordinary acres. The nature of the original allotment whether it was in standard acres or in ordinary acres seems to be the determining factor. The Full Bench decision of the Punjab and Haryana High Court, Khan Chand vs State of Punjab (supra), on which the Judgment under appeal relies, reads proviso (ii) (a) to mean: "For a displaced person who has been allotted land in excess of 50 standard acres or in excess of 100 ordinary acres the permissible area shall be 50 standard acres or 100 ordinary acres, as the case may be. " We agree that this is the correct meaning to be given to this provisions; it is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage. Clauses (b) and (c) of proviso (ii) lend assurance to this construction. Clauses (b) deals with the case of a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres and provides that the permissible and in his case shall be equal to his allotted area. Clause (c) fixes the permissible area for a displaced person who has been allotted land less than thirty standard acres providing that it shall be thirty standard acres including any other land or part thereof, if any, that he owns in addition. Clauses (b) and (c) both deal with cases where the original allotment was in standard acres, and there is nothing in either of them sanctioning the conversion of the permissible area in standard acres into ordinary acres, though perhaps any other land which a displaced person whose case in covered by clause (c) might own in addition to the 30 standard acres allotted to him may be in ordinary acres requiring conversion of such land into standard acres to determine the permissible area in standard acres in his case as provided in clause (c). But this does not mean that the permissible area in cases covered by clauses (b) and (c) can also be fixed 213 in ordinary acres. Proviso (ii) to sec. 2(3) appears to group displaced persons into two categories, those who were allotted land in standard acres and those whose allotment was in ordinary acres. Clause (a) deals with both these categories and limits the permissible area of those who were allotted land in standard acres at 50 standard acres and those who were allotted land in ordinary acres at 100 ordinary acres; clauses (b) and (c) deal only with those who were allotted land in standard acres. Those whose allotment was in ordinary acres, their permissible area is fixed at 100 such acres, but those who were allotted land in standard acres, in their case the permissible area varies as provided in clauses (a), (b) and (c) though the measure in each case would be in standard acres. This appears to be the scheme. In defining "Permissible area" sec. 2(3) of the Act provides differently for land owners and tenants covered by the substantive part of the definition, and displaced persons mentioned in proviso (ii), and also makes a distinction between displaced persons inter se as provided in the different clauses of the proviso. In the course of argument questions were raised about the logical basis for such differentiation, but the policy of the Act being clear we have to interpret the provision as we find it; if there is any anomaly in the policy itself, it is for the legislature to remove that defect. In this case the land allotted to the respondent being admittedly 55.80 standard acres, the permissible area for him would be 50 standard acres under clause (a) and that being so, the High Court was right in holding that it was not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres. The appeal is accordingly dismissed but in the circumstances of the case without any order as to costs. S.R. Appeal dismissed. [/INST]The appellant 's tender for mining rights for mica was accepted in 1951. The appellant deposited the premium demanded and took possession of the land. The lease was for a period of twenty years but no lease was executed. In 1967, the State Government directed that the appellant should vacate the land within a month from the date of the receipt of their order. The appellant challenged the order under article 226. but the High Court dismissed the petition. Allowing the appeal to this Court, ^ HELD: (1) In view of the facts, that the period of the purported lease had already expired, and no proper lease had been executed, there was no question of issuing a writ for granting the lease, or the appellant exercising an option to renew the lease. [224H] (2) The appellant, however, was entitled to a refund of the illegally realised premium deducting the sum received on account of compensation for the unexpired period. The State Government was under a legal obligation to act in accordance with the statutory rules applicable, namely, the Mineral Concession Rules, 1949, made in exercise of the power conferred under section 5 of the Mines and Minerals (Regulation and Development) Act, 1948 when granting a lease. It could not impose terms and conditions according to its own whims ignoring or disregarding statutory rules which are binding on it, and could not exercise a power unknown to the rules. There is no provision in the rules authorising the realisation of premium. Rule 41, providing for conditions of the lease, specifically mentions royalty, dead rent and surface rent but not premium. Under r. 41(3) a mining lease may contain any other special conditions subject to the prior approval of the Central Government; but no such prior approval was given in the present case, for the realisation of the premium. [225A F] </s>
<s>[INST] Summarize the judgementCivil Appeal Nos. 1565 1569/73. Appeals by Special Leave from the orders Nos. 4844 4848 of 1972 dated 25th November 1972 of the Central Govt., Ministry of Finance, Govt. of India. D. V. Patel and K. R. Nambiyar for the Appellant. G. L. Sanghi and Girish Chander for the Respondents. The Judgment of the Court was delivered by UNTWALIA, J. The appellant company in these appeals by special leave is a manufacturer of rubber tyres and tubes. It imports several raw materials including Pyratex Vinyl Pyridine Latex used in the manufacture of rubber tyres and tubes. The Customs authorities of the Government of India have been charging custom duty on V. P. Latex under the residuary item 87 of the Indin Tariff Act, 1934 instead of ICT 39 an item meant for charging duty on raw rubber. The custom duty charged under item 87 is much more than the one chargeable under item 39. A countervailing duty under item 15 A of the Central Excise Tariff in accordance with the Central Salt and Excise Act, 1944 is also charged if the article imported is not treated as raw rubber. On five consignments of V. P. Latex imported by the appellant in the year 1968 custom duty was charged under item 87 by the Appraiser pursuant to his order of assessment. Since he was an officer lower in rank than the Assistant Collector of Customs the appellant filed five applications before the Assistant Collector under section 27 (1) of the Customs referred to as the Act, for refund of the excess amount of duty charged. In other words, the appellant took the stand that if a custom duty would have been charged on V. P. Latex under item 39 then the amount would have been less to the extent of Rs. 3,74,879.49 on the five consignments in question. It, therefore, claimed the refund of the said amount, the details of which are as follows: ___________________________________________________________ Bill No. and date Date of Delay Amount claim for refund ____________________________________________________________ 1. D. NO. 1644 dated 8 4 69 31/4 Months 50,305.53 24 6 1968 2. D. No. 1024 dated 27 6 69 3 Months 60,339.97 18 9 1968 3. D. No. 1132 dated 8 4 69 2 Months 1,61,615.10 21 8 1968 4. D. No. 1931 dated 10 4 69 1 Months 50,512.71 23 7 1968 5. D. No. 68 dated 10 4 69 4 Months 52,106.18 1 6 1968 ____________ 3,74,879.49 ____________________________________________________________ Under section 27(1) of the Act the application for refund had to be made before the expiry of six months from the date of payment of duty, the date of payment being the date of the bill in each case. Thus there was a delay varying between 1 month to 4 months in the filing of each of the applications for refund. The Assistant Collector of Customs dismissed the applications on the ground that they were filed out of time. The appeals to the Appellate Collector of Customs filed under section 128(1) (b) of the Act failed. The appellant took the matter in revision to the Central Government under section 131. The revisions were dismissed by the Central Government by their order dated November 29, 1972 stating therein: "The Govt. of India have carefully considered the reasons advanced by the petitioners for their failure to prefer the claims for refund within the time stipulated under section 27 of the , but see no justification to interfere with the appellate orders. The revision applications are, therefore, rejected. " These appeals were filed from the said order after obtaining special leave of this Court. Mr. D. V. Patel learned counsel for the appellant submitted that in view of the recent decision of this Court in Dunlop India Ltd. etc. vs Union of India & Ors. V. P. Latex was chargeable to duty under item 39 only. The applications filed by the appellant for refund of the excess amount have erroneously been dismissed on the ground of having been filed out of time. Counsel submitted that the appellant used to pay custom duty not as and when a particular consignment was received but by making deposits in a running account. Hence no parti 866 cular date of payment could be assigned in respect of a particular consignment. He further submitted that the duty was paid under protest and hence under the proviso to sub section (1) of section 27, the limitation of six months did not apply. Mr. G. L. Sanghi, learned counsel for the respondents contended that no case of running account had been made before the authorities below and that there was nothing to show that the duty had been paid under protest in relation to any of of the five consignments. It is no doubt true that in view of the decision of this Court mentioned above the custom duty was chargeable on import of V. P. Latex under item 39. The authorities below do not seem to have decided the refund applications of the appellant on merits. They have dismissed them merely on the ground of limitation. The only question, therefore, which falls for determination by us is whether the applications for refund were filed out of time. Section 27 reads as follows: "27. (1) Any person claiming refund of any duty, paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty: Provided that the limitation of six months shall not apply where any duty has been paid under protest. Explanation Where any duty is paid provisionally under section 18, the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof. (2) If on receipt of any such application the Assistant Collector, of Customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly. (3) Where, as a result of any order passed in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. (4) Save as provided in section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions section. The appellant 's case obviously and admittedly was not covered by sub section (3) as it had not challenged the order of assessment in any appeal or revision. Nor was it a case where any duty was paid provisionally under section 18. The appellant 's case was governed by sub section (1) of section 27. No. case of any running account was set up by the appellant nor was there anything in the records of this case to substantiate it. Custom duty was paid in respect of each of the five consignments on the date of its respective bill. Ultimately this 867 position could not be disputed before us. The appellant, however, contended that the duty was paid always under general protest which covered the cases of these five consignments also. Hence under the proviso to sub section (1) the limitation of six months does not apply. Our attention was drawn to several letters in the records of the appeals before us to substantiate the plea of payment under protest, but none of them helps the appellant. We may refer to only two of them. The appellant wrote a letter on February 8, 1968 to the Assistant Collector of Customs, Madras making out a case therein that V. P. Latex was assessable to duty under item 39 ICT. Finally in this letter a protest was made for the assessment of duty under item 87 on V. P. Latex imported by the company in the past. This letter was written before the five consignments in question were imported and duty paid thereon. The protest, therefore, embodied in the letter aforesaid was not in respect of any of these consignments. A letter written on July 15, 1968 was a letter written at a point of time when two out of the five consignments had been imported; but three were imported after the writing of this letter by the appellant to the Asstt. Collector of Customs, Madras. This letter relates to a consignment of 59 drums of V. P. Latex which could not be connected with any of the five consignments in question. Thus there is nothing to show that duty on them was paid under protest, general or specific. It was lastly contended on behalf of the appellant that in view of the recent decision of this Court, the Govt. should be directed to refund the excess amount of Rs. 3,74,879.49 charged on the five consignments. We are unable to do so because the present appeals arising out of the orders made by the Government of India in proceedings under section 27(1) of the Act have got to fail on the ground that the view taken by the authorities below on the question of limitation could not be shown the incorrect. In the result the appeals fail and are dismissed. There will be no order as to costs. S.R. Appeals dismissed. [/INST]On 4 3 1968, the date of the accident. Karnal Singh, the accused was driving the truck No. MRS 7372. purchased out of the loan advanced by the ex serviceman Co operative Society to one Sutar who entrusted the vehicle to Balwant Singh, the brother of the appellant, a co accused, under a contract for hire against a monthly payment of Rs. 2000 2200, after incurring all expenses over the truck. The payment was regular up to December, 1967, and, thereafter, Balwant Singh avoided Sutar. Though Balwant Singh met Sutar on 9 3 1968 and 12 3 1968 ie. after the date of accident and promised to meet him later, The actually absconded resulting in the lodging of a First Information Report by Sutar on 20 4 1968 at 12.30 p.m. against Balwant Singh Uttam Singh for taking appropriate action under section 408, I.P.C. Since Balwant Singh was absconding and the vehicle was found in the possession of Karnal Singh, the police apprehended him and filed the charge sheet. The Presidency Magistrate, 6th Court, Mazagaon, Bombay, charged the appellant under section 408 read with section 114 of the Indian Penal Code, but, actually convicted him and sentenced him to six months R.I. and a fine of Rs. 500/ under section 411 Indian Penal Code without appreciating the effect of either the value of Exhibit Dl dated 12 3 1968 written by Sutar indicating that he was agreeable to pay the total costs of the repair of the damaged vehicle, with the admission of its execution by Sutar in cross examination and failure to explain these or of the explanation given by the accused in his 342 statement to how he came into possession of the lorry for repairing it. The High Court mainfained the conviction and the sentence. Allowing the appeal by special leave, the Court, F ^ HELD. (1) the presumption from recent possession of stolen property is an optional Prescription of fact under section 114 of the Indian Evidence Act. It is open to the Court to convict the appellant by using the presumption when the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the appellant is open to the prosecution. [751 D] (2) In the instant case, there was no mention of the appellant 's name in the F.I.R. there was no change under s 411, I.P.C. against him and he was not asked to explain it possession of the truck, but still he did explain it. The appellant 's answer to the omnibus question under section 342, Criminal Procedure Code, without giving him an intimation of the offence of which he was likely to be convicted, on the face of it, was quite reasonable and credible. The prosecution had been unable to repel the effect of this fairly acceptable explanation. The explanation which the appellant had given was good enough to raise serious doubts about the susceptibility of a charge under section 411, Indian Penal Code. The principle of benefit of doubt on questions of fact applies whether the verdict is of a Jury or the finding is to be given by a Judge or a Magistrate.[751,AB.E H] Otto George Gfeller vs The king, AIR 1943 PC 211 @ 214 </s>
<s>[INST] Summarize the judgementivil Appeal No. 2468 of 1982. From the Judgment and Order dated 8.3.1982 of the High Court of Andhra Pradesh in C.R.P. Nos. 3726, 3727, 3910 and 4883 of 1979. PG NO 202 Dr. Y.S. Chitale and G. Narasimhulu for the Appellant. T.S. Krishnamurti Iyer, Krishan Kumar and Rajeshwar Rao for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. This appeal by special leave by a tenant arises out of a common judgment rendered by the High Court of Andhra Pradesh in four Civil Writ Petitions. Two of the Revision Petitions were filed by the appellant herein and the other two were filed by one Narsimha Murthy, the second respondent herein. By a common judgment the High Court d_missed all the four revision Petitions. While Narsimha Murthy has not preferred any appeal the appellant has filed this appeal by special leave to question the legality and propriety of the decree for eviction passed against him on the ground he had unauthorisedly sublet the leased premises to the second respondent for running a hotel. Originally the building bearing door nos. 7 2 606, 607, 617 and 618 (old door No. 2540) Rashtrapati Road, Secunderabad belonged to one Bhima Rao. The appellant took the ground floor of the premises on lease in the year 1953 from the said Bhima Rao on a monthly rent of Rs.250 for running a hotel in the name and style of Sharada Bhavan. In or about September 1967 Bhima Rao conveyed the premises by means of a Deed of Gift to his daughter Manga Devi, the first respondent herein and the appellant duly attorned his tenancy and was paying her the rent. After August l969 the hotel came to be run by the second respondent instead of the appellant. As the first respondent had reasons to believe that the appellant had either transferred his rights under the lease or sublet the leased premises to the second respondent, she terminated the tenancy by means of notice with effect from 31st January, l97 l and called upon the appellant to surrender possession thereafter. The appellant refused to vacate and sent a reply refuting the allegations contained in the notice issued to him. This led to the first respondent filing a petition under Section 10 of the Andhra Pradesh Buildings (Lease. Rent and Eviction) Control Act. 1960 (for short the Act ' hereafter) to seek the eviction of the appellant and the second respondent on three grounds viz. (1) wilful default in payment of rent, (2) unauthorised subletting and (3) causing waste to the property. The Rent Controller ordered eviction on the second and third grounds. The appellant and the second respondent preferred seperate appeals to the Appellate Authority and both the appeals were dismissed. Thereafter the two affected parties filed two PG NO 203 revisions each against the dismissal of the appeals and the High Court clubbed all the four revisions and rendered a common judgment dismissing all the revision petitions. The High Court, however, affirmed the finding of the courts below only on the ground of sub letting and consequently, the sole question for consideration in this appeal is whether the High Court has erred in law in upholding the order for eviction passed by the first two Courts on the ground of sub letting. Dr. Chitale, learned counsel for the appellant took us through the terms of the agreement Exhibit R 14 entered into between the appellant and the second respondent as well as the relevant portions of the judgments of the Courts below and the High Court and argued that this was a case where the appellant had only transferred the managing rights of the hotel to the second respondent and hence there was no basis or material for the Rent Controller or the Appellate Court to hold that the appellant had sublet the leased premises to the second respondent and therefore the High Court too was in error in confirming the order of eviction passed against the appellant and the second respondent. The learned counsel further contended that neither the agreement nor the conduct of the parties afforded any ground for taking the view that the appellant had transferred his rights under the lease or had sublet the premises to the second respondent, and on the other hand there was adequate material to show that the appellant had retained his rights in the leased premises notwithstanding his placing the hotel business in the hands of the second respondent. To substantiate these contentions Dr. Chitale laid stress on certain clauses in the agreement which seek to emphasise that the transfer of rights pertained to the business alone and not the leasehold rights of the appellant in the leased premises. The clauses referred to are as follows. Clause 2 sets out that the first party (the appellant) 'has agreed to allow the second party (the second respondent) to manage the said Sharada Bhawan with all the furniture etc.". Clause 7 interdicts the second party from permitting "the use of the premises for any purpose other than that for which it is being used viz. as a vegetarian restaurant" without the consent in writing of the first party. Clause 8 enjoins the second party to "maintain the standard and reputation which the said business has earned and acquired". Clause 9 prohibits the second party from assigning or underletting or otherwise parting with the business without the permission in writing of the first party. Clause 11 stipulates that the second party shall observe all the rules and regulations governing the licences granted to the first party by the Municipality, Police etc. and further sets out that if any breach is committed by the PG NO 204 second party he should indemnify the first party. Under Clause 13 the first party has reserved a right to inspect the business at all reasonable times to satisfy himself that The second party was fulfilling the conditions set out in the agreement. Clause 15 provides that on the expiry of the agreement the second party should "peacefully and quietly surrender and hand over possession of the business to the first party together with all the furniture, fixtures, utensils etc. " Clauses 16 and 17 are of significance for both parties and, therefore, they are extracted in full: "Clause 16 The lease of the premises wherein the said business is being run, shall continue to be enjoyed exclusively by the first party at all times, and first party shall be liable to pay the monthly rent of Rs.250 or any other enhanced rent that may be Agreed upon between the first party and the landlord and in such event the second party shall pay to the first party the difference between the present rent of Rs.250 and the enhanced rent along with the monthly amounts payable vide clause (2) hereof, and shall observe faithfully all terms and conditions of the agreement of tenancy between the first party and the owner of the premises. It is clearly understood and agreed this agreement is only with respect to the running of the said business on a "MUNAFA" basis to the second party and not subletting or underletting of the premises housing the said business. Clause 17 The essence of this agreement is that the second party shall run the said business on his own account making use of the existing property such as furniture, fixture, etc. which continue to belong to the first party with out any proprietory rights or interest to the second party on any of the said property. It is distinctly understood and agreed between the parties here to that the second party shall not be entitled to obtain any credit or accommodation from any third party on the security of the said business. The parties hereto agree that the second party shall carry on the said business on his own account and responsibility and the first party shall not be liable in any manner or to any extent in respect of the second party 's liabilities arising out of his running the said business or otherwise. " Placing reliance on these clauses it was seriously canvassed on behalf of the appellant that the agreement was PG NO 205 explicit in its terms and there was no ambiguity and as per the terms the transfer effected was only the business of running the hotel and not the appellant 's interest in the leased property and no sub tenancy was created in favour of the second respondent. The appellant 's counsel urged that in almost identical circumstances this Court has held in Md. Salim vs Md. Ali, ; that the transfer effected was only the right to manage the business run by the lessee and there was no transfer of any interest of the lessee in the business premises. It was the further contention of Dr. Chitale that in all such cases the Courts must look to the dominant intention of the parties while effecting the transfer to find out whether the transfer amounted to a sub letting of the leased premises. A reference was made to the decision in Dwarka Prasad vs Dwarka Das Saraf; [ 19761 1 SCR 277 in this behalf. Disputing the contentions of Dr. Chitale Mr. Krishnamurthy Iyer, learned counsel appearing for the first respondent, stated that the intention of the parties and the true nature of the transaction between them was the handing over of the hotel on a permanent basis to the second respondent together with the tenancy rights of the appellant. Mr. Iyer said that for obvious reasons the parties had to camouflage the real nature of the transaction, by making it appear that the managing rights of the business alone were transferred but the truth could not be suppressed and hence the lower courts had rightly held that the transfer had all the trappings of sub letting and the appellant was therefore liable for eviction. It was urged that in view of the concurrent findings rendered against the appellant by the Rent Controller and the Appellate Authority, the High Court could have very well declined to go into the merits of the findings without reappraisal of the evidence but even so the High Court had given the appellant the indulgence of a detailed examination of the evidence for itself and has after such exercise confirmed the findings of the Courts below and as such, there is no need or justification for any further examination the contentions of the appellant. The learned counsel submitted that if nevertheless the case of the appellant has to be considered once ever again, then the agreement. though subtly worded, provided adequate material to show that the transfer of the business had brought about a subletting of the premises also. The manner in which the hotel had been run by the second respondent, it was added, afforded additional material to prove the factum of sub letting of the premises. Krishnamurthy Iyer drew our attention to several terms in the agreement, to which we PG NO 206 shall advert to in due course, to substantiate his contentions. The learned counsel also placed for our consideration a decision of Alagiriswamy, J., as he then was, in M. Rodgers vs Prakash Rao Naidu, and of this court in Bhagwan Das vs Rajeev Singh, Since both the parties lay emphasis upon the terms of the agreement to support their respective contentions, it is necessary that we look into the terms of the agreement for ourselves. The preamble sets out that the terms "first party" and "second party", cannoting the appellant and the second respondent, will wherever the context permits include their heirs, successors, administrators and assigns. The agreement would say that the first party, as the owner of the vegetarian restaurant "Sharada Bhawan" has agreed to allow the second party to manage the said hotel with all the furniture etc. The agreement is for a period of eleven months from the 1st day of September 1969 and thereafter the same could be renewed or extended for any further period by mutual consent except in the event of the first party being evicted, in which event the second party would not be entitled to any compensation for any loss or damage caused to him by reason of the eviction. Clause 2 provides that "in consideration of obtaining on hire on munafa basis of the business together with all the furniture etc. the second party should pay to the first party a sum of Rs.750 per month during the period of first eleven months and thereafter at the rate of Rs.900 per month during the subsequent renewed or extended period. " As per Clause 3 the second party should pay all taxes, tees, rates and other statutory outgoings in respect of the business and ii any loss is caused to the first party by non payment, the latter was entitled to recover all such charges from the second party and would also be entitled to cancel or terminate the agreement forthwith. According to Clause 4 the second party was responsible for not only payment of all expenses and charges relating to the running of the business but also for carrying out "repairs to business premises, painting, colour wash. and the like". The same Clause empowers the second party to appoint, dismiss, promote or otherwise deal with all members of the staff and employees of all categories ' ' and makes him liable for all claims and demands relating to the period covered by the agreement. ' Clause 7 prohibits the second party from using the premises for any purpose other than for running a vegetarian restaurant without the consent of the first party. Clause 9 interdicts the second party from assigning or under letting or otherwise parting with the business without the written permission of the first party. Clause 13 stipulates that the second party should allow the first party to inspect the business at all reasonable times to satisfy himself that the PG NO 207 second party was fulfilling the conditions governing the agreement. Clause 15 sets out that "the second party shall on the expiry of the agreement peacefully and quietly surrender and hand over possession of the said business to the first party with all the furniture and fixtures, utensils, etc. " Clause 16 which has already been extracted states that the lease of the premises shall continue to be enjoyed exclusively by the first party at all times, and the first party shall be liable to pay the monthly rent of Rs.250 or any other enhanced rate that may be agreed upon between the first party and the landlord and in such an event the second party shall pay to the first party the difference between the present rent of Rs.250 and the enhance rent along with the monthly amounts payable by him. There is an explanatory clause stating that the agreement is only with respect to the running of the business and not to any subletting or underletting of the premises. Clause 17 stipulates that the business was to be run by the second party on his own account making use of the existing property such as furniture, fixture etc. belonging to the first party without any proprietory rights or interest and that the second party was not entitled to obtain any credit or accommodation from any third party on the security of the business and that he was to run the business on his own account and responsibility. Clause 18 makes the second respondent solely responsible for any consequences arising out of non compliance with the orders passed by the competent authorities or for contravention of any of the provisions of the laws in force Clauses 19 and 20 provide for the second respondent furnishing a cash security of Rs.5000 and the first respondent being entitled to reimburse himself from out of the deposit amount any loss or damages suffered by him on account of any default committed by the second party On a reading of the various provisions of the agreement unable to accept the contentions of the appellant that what was transferred was only the hotel business and not the appellant 's interest in the leased premises as a lessee. Though the agreement is initially for a period of 11 months the renewal clause would enable the parties to go on extending the lease for any length of time and as per the preamble such extensions of lease would be binding upon the heirs, successors, administrators and assigns of both parties. The appellant had handed over the furniture, utensils etc. to the second respondent and received a sum of Rs.5,000 as security and he was entitled to reimburse himself for any loss or damage caused to the furniture and the utensils. Though the agreement states that the appellant will continue to be the lessee of the property it is obvious that the rent of Rs.250 per month was really to be paid by PG NO 208 the second respondent through the appellant. There is a specific provision in Clause 16 that in the event of the landlord enhancing the rent, the second respondent should pay "the difference between the present rent of Rs.250 and the enhanced rent along with the monthly amounts payable as per clause 2. " It is therefore patent that the burden of paying the rent has been passed on to the second respondent and this can occur only if the premises had been sublet to him. The agreement confers proprietory rights on the second respondent over the hotel business inasmuch as he is made the sole authority to appoint the staff as well as terminate their services and also take disciplinary action against them. He is empowered to run the business on his own account and responsibility so long as he pays the appellant a sum of Rs.750 per month or the first eleven months and thereafter a sum of Rs.900 per month All the taxes, fees, rates and other statutory outgoings are to be paid by the second respondent himself. Even the cost of effecting repairs to the business premises and painting and colour washing etc. are to be borne by him alone. Clauses 7 and although appearing to interdict the second respondent from changing the user of the premises or from assigning or subletting the business, really permit him to do so, if he obtains the consent or permission in writing of the appellant. If what was transferred to the second respondent was only the right to manage the hotel business, it is incomprehensible that he would be called upon to effect repairs to the leased premises or to undertake painting, colour washing etc. at his own expense. Similarly the question of the second respondent changing the user of the premises or assigning or subletting or parting with the business with the written consent or the appellant will not arise if his rights under the agreement were restricted to the management of the business alone. Clause 15 is curiously worded because it speaks about the second respondent peacefully and quietly surrendering and handing over possession of the business to the first party with all the furniture, fixtures, utensils etc. ' ' The clause would show that what was really meant was surrendering the possession of the building but in order to conceal matters, the word 'business has been used in the place of 'building '. On a conspectus of all the terms of the agreement we feel that the High Court was fully justified in taking the view that the appellant and the second respondent had used all the ingenuity at their command to camaflouge the real nature of the transaction and make it appear that there was only a transfer of the managing rights of the business and not a transfer of the business in toto together with the right to occupy the leased premises The clauses on which the appellant 's counsel placed reliance to project the PG NO 209 appellant 's case are only make believe clauses which have been introduced with a design and purpose viz. to conceal the real nature of the contract so that the landlord may not seek the eviction of the appellant on the ground of subletting the premises. In spite of the introduction of a few cleverly worded clauses the other clauses are self revealing and go to show that the parties were fully aware of the vulnerability of their action and the risk of eviction ensuing therefrom. It is on account of such awareness the appellant has carefully provided in the agreement that in the event of his being evicted from the premises he will not be liable to pay any compensation for any loss or damage resulting to the second respondent. Besides the agreement, the manner in which the second respondent had been conducting the business would also show that he was not a transferee of the managing rights alone but he was a transferee of the business together with the appellant 's interest in the leased premises also. The business turnover increased from Rs.200 to 250 per day to Rs.700 to 800 per day. The second respondent was assessed to income tax and sales tax in his own name as the proprietor of Sharada Bhawan and not as the manager of the hotel. He was recognised as the proprietor of the hotel and admitted to membership of the Hotel Owner 's Association. He exercised absolute control over the business and over the members of the staff and was the sole authority to appoint them or terminate their services or take disciplinary action against them. He was not bound to render accounts to the appellant or share with him the profits or losses of the business. He became solely responsible to bear all the expenses and to pay all the taxes, public charges etc. Thus even the conduct of the parties afford material to conclude that what was transferred to the second respondent was much more than the right to run the hotel business for a limited period. It is therefore futile for the appellant to say he had not parted with his interests in the leased premises to the second respondent. As regards the decisions cited by Dr. Chitale we do not think that either of them can advance the appellant s case m any manner. In Md. Salim vs Md. Ali (supra) the facts were perceptibly different. That was also a case where the right of management of a shop run by a tenant was conferred on one Md. Salim and it was agreed between the parties that from out of the amount paid by Md. Salim, the lessee was to pay the rent to the landlord. The agreement, however, expressly stated that the transferer will remain the proprietor of the business, and that the licence for the business should stand in his name and that after a period of two years the transferee will restore the business along with the articles PG NO 210 in good condition to the transferor. The transfer agreement had been attested by the landlord himself. It was on these facts it was decided in that case that there was no transfer of interest in the business premises and what was transferred was only the right to manage the business. In the present case the agreement provides for the second respondent being allowed to run the business for any length of time as his own proprietory concern and to have all the benefits exclusively for himself. In the other case of Dwarka Prasad (supra) the court dealt with the application of the ' dominant intention" test with reference to the facts of that case. The question in there was whether a cinema theatre equipped with projectors and other fittings and ready to be launched as an entertainment house was "accommodation", as defined in Section 2(1)(d) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, and if so, whether the Act "barricades eviction by the landlord because the premises let constitutes an accommodation" It was in that context the Court observed that where the lease is composite and has a plurality of purpose the decisive test is a dominant purpose of the demise. There is no occasion in this case for the test of 'dominant intention being applied because there was and there can be no lease of the managing rights of the hotel business as such and on the contrary what was transferred was an outright transfer of the hotel together with the furniture, equipment etc. as well as the lease hold right of the erstwhile hotelier in the leased premises. The facts of this case bear a close similarity to the facts noticed in Bhagwan Das v .S. Rajdev Singh, (supra) That was a case where the premises let out to one Usha Sales was put under the occupation of one Bhagwan Das and when the landlord sought the eviction of the tenant on the ground of sub letting the plea raised was that Bhagwan Das had been appointed as an agent by Usha Sales for displaying and selling the protect o Usha Sales and Bhagwan Das was in the occupation of the premises on his own behalf for the purposes of his business as an agent. The Court after perusing the agreement entered into between Usha Sale and Bhagwan Das held that the appellant was given complete control and supervision of the premises, and that the agreement was a curious mixture of inconsistencies and was plainly a clumsy attempt to camouflage the sub tenancy which was intended to be created thereby. The facts of the present nt case, have a striking similarity to the facts noticed in that case and. therefore, the same conclusion should be reached in this case also. Besides the above said decision Mr. Iyer referred us to a decision of the Madras High Court in M. Rodgers vs N. Prakash Rao Naidu. (supra) where a tenant who was running a printing press in a leased building stopped the business and the manager began running the press as the lessee of the machinery without the tenant having any PG NO 211 share in the business. On the landlord sueing the tenant for eviction on the ground of subletting, the High Court held that since the machinery cannot be run unless it is placed in the premises where it is situated, the lessee of the machinery would get the advantage of the use of the business premises also and as such the lease amount stipulated for the lease of the machinery would also include the lease amount payable for the building and hence the transaction would clearly amount to the lessee subletting the building simultaneously with the leasing out of the machinery. The present case warrants the same view being taken especially in the light of the recitals in the agreement which stipulate that the amount payable by the second respondent would comprise in it the rent payable by the appellant landlord for the leased premises. At the end of the arguments it was represented at the bar that the second respondent has since vacated the premises and handed over the business to the appellant and that the appellant himself is now running the hotel through his son. We do not think the changed circumstances can affect the rights of the first respondent in any manner to have the appellant evicted on the ground of subletting. In the light of our conclusions, the appeal fails and is dismissed. However, having regard to the fact that the appellant would require some time to find an alternate place to shift his hotel, he is granted six month 's time from today to vacate the premises subject to his filing an undertaking within four weeks from today on the usual terms. There will be no order as to costs. R.S.S. Appeal dismissed. [/INST]In the ceiling proceedings under the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 the petitioner alleged that there was no surplus land in the holding of his family Unit as certain lands had been leased out to various tenants and the same had been transferred to them under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 and, therefore, the tenanted lands should be excluded from his total holdings as the orders of the Tenancy Authorities had become final and were binding on the Ceiling Authorities. Rejecting the claim of the petitioner the sub Divisional officer held that the orders passed by the Tenancy Courts conferring tenancy rights and issuing certificates in favour of the tenants were not justified and declared 58.28 acres of land as surplus. This finding was maintained by the Revenue Tribunal. The challenge made by the petitioner before the Single Judge as well as the Division Bench of the High Court also failed. In the special leave petition under Article 136 of the Constitution to this Court, on behalf of the petitioner it was contended that in view of sub section (2) of section 100 of the Bombay Act, the Tenancy Tahsildar had exclusive jurisdiction to decide the issue of tenancy, and section 124 of the Bombay Act bars the jurisdiction of the Civil Court to deal with any question covered by section 100 and, therefore, determination of the question of tenancy by the Ceiling Authorities was without jurisdiction. Dismissing the Special Leave Petition, this Court, HELD: l. Land had been transferred to the various tenants under the Bombay Tenancy & Agriculture (Vidarbha Region) Act, 1958 in the name of the respective tenants by the order of the Tenancy Tahsildar. [272F] PG NO 270 PG NO 271 2.The Ceiling Authority had to determine the land holdings of the petitioner. [274C] 3.Where a transfer is made by the land holder creating a tenancy, whether the transfer was made bona fide or made in anticipation to defeat the provisions of the Ceiling Act, is a question which falls for determination squarely by the Ceiling Authorities, to give effect to or implement the Ceiling Act. [274C D] 4. Unless the Acts, the Ceiling Act and the Tenancy Act, with the intention of implementing various socio economic plans, are read in a complementary manner, the operation of the different Acts in the same field would create contradiction and would become impossible. It is, therefore, necessary to take a constructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the Court. [274E F] 5. In the Ceiling Proceedings it has been held that the transfer to the tenant was not bona fide and was done in anticipation of the Ceiling Act. This Court finds no ground to interfere with the Order of the High Court. [275A] </s>
<s>[INST] Summarize the judgementCivil Appeal No. 483 of 1958. Appeal by special leave from the decision dated March 20, 1956, of the Labour Appellate Tribunal of India, Madras, in Appeal No. Bom. 90 of 1952 arising 145 out of the Award dated December 28, 1951, of the Industrial Tribunal, Madras, in Industrial Dispute No. 48 of 1951. February 11, 12. M. C. Setalvad, Attorney General of India, B. Ganapathy lyer and G. Gopalkrishnan, for the appellants. This appeal arises from an Industrial Dispute between M/s. Swadesamitran and their workmen. Three items of dispute were referred for adjudication to the Industrial Tribunal at Madras. One of them being whether the retrench ment of 39 workmen affected by the appellant in May 1951, was justified, and if not, what relief the retrenched workmen were entitled to. The modified award directed the reinstatement of 15 of the retrenched workmen and the question is whether such direction is correct. It has to be remembered that the direction was given on March 28, 1956, in respect of retrenchment made in May 1951, with half their back wages. The Tribunal erred in applying the rule "last come first go " as if it were an inflexible rule. The management is the best Judge as to who were fit to be retained and who should be sent out. No doubt, if the selection of persons disclosed that the management was guilty of any unfair labour practice, that would have been ground for interference. Tribunal and the Appellate Tribunal found that the action of management in selecting the personnel was not at all malafide. It cannot be said to be unreasonable if persons are selected for discharge because they had reached an age which would affect their efficiency and so fit for being retrenched. It cannot be the rule that once a workmen is entertained he should be kept on for ever. Moreover, the evidence shows that a committee of three sat for the purpose of making a, selection and they applied their minds to the problem and took into account all factors, viz. length of service, efficiency, defect in eye sight with regard to very small types and general aptitude for the new kind of work on lino machines. Further, the workmen had themselves settled accounts with the management and drawn whatever was due to them and their claims having been satisfied it was unfair 19 146 and unjust to direct that they should be reinstated in their old jobs with back wages. The others were found inefficient and irregular in attendance and therefore the selection by the management should not have been interfered with at all by the Tribunal. Principles of social justice do not compel an employer to keep an inefficient or unsuitable and superannuated workman in his service. The principle of I last come first go ' should not have been so strictly applied on the facts of this case. The Labour Appellate Tribunal erred in law in directing reinstatement when it did not differ from the conclusion of the Industrial Tribunal that the strike of the respondents was unjustified and that the appellants had acted bona fide in coming to the conclusion that retrenchment of 39 workmen was necessary. It is only if the Industrial Tribunal was satisfied that in retrenching its employees the appellant had acted malafide that it would be open to the Tribunal to interfere with the order of retrenchment passed by the appellant. The order of reinstatement in substance is inconsistent with the findings about the bona fides of the appellant. The Tribunal further erred in preparing a pooled seniority list to determine the seniority. The management must be given the discretion to run the business in its best interests and it is not for the Tribunal to say that the work done in the several sub sections of composing department was similar and the workmen can be inter shifted. Merely because no record was maintained as to the fitness or otherwise of each individual worker prior to the retrench ment, it was not right to infer that there was no material for the management to judge of the comparative fitness of the workmen under it. In entertaining the grievance of the workmen against their order of retrenchment the Labour Appellate Tribunal has exceeded its jurisdiction. Retrenchment is and must, be held to be a normal management function and privilege, and as soon as a case for retrenchment has been made out liberty and discretion must be left to the employer to select which employee should in fact be retrenched. In holding an enquiry about the Validity of reasonableness of retrenchment of certain 147 specified persons the appellate tribunal had trespassed on the management function and as such exceeded its jurisdiction. C. Anthoni Pillai, (President, City Printing Press Workers ' Union), for the respondents was not called upon to reply. March, 1. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave arises from an industrial dispute between Messrs. Swadesamitran Ltd., Madras (hereinafter called the appellant) and their workmen (hereinafter called the respondents). On November 3, 1951, three items of dispute were referred for adjudication to the Industrial Tribunal at Madras by the Madras Government under section 10(1)(c) of the (Act XIV of 1947) (hereinafter called the Act). One of these items was whether the retrenchment of 39 workmen effected by the appellant in May 1951 was justified, and if not, what relief the retrenched workmen were entitled to. It would be relevant to mention briefly the material facts leading to this dispute. It appears that on August 26, 1950, the respondents addressed a charter of demands to the appellant in which eleven demands were made, and they intimated to the appellant that, if the said demands were not granted, they would go on strike. The appellant pointed out to the respondents that it was working at a loss and that proposals for retrenchment and rationalisation were then under its active consideration. It promised the respondents that as soon as its financial condition improved their demands would be Sympathetically considered. Thereupon the demands were withdrawn; but on January 24, 1951, another communication was addressed by the respondents making as many as thirteen demands coupled with the same threat that if the said demands were not granted the respondents would go on strike. A copy of this communication was sent to the State Govern ment which was requested to refer the said demands for adjudication to the industrial tribunal. The Government, however referred the matter to the Conciliation Officer who found that the demands were 148 not justified. He accordingly made a report on February 22, 1951. Immediately thereafter the respondents wrote to the Government repeating their request for reference, but on April 24, 1951, the Government ordered that no case for reference had been made. Meanwhile the appellant was taking steps to effect retrenchment in the staff owing to the steep rise in the prices of newsprint and scarcity of supplies, the imposition by the Government of India of a price page schedule and the progressive introduction of mechanisation in the composing section by installation of lino type machines. When the respondents came to know about this their Union called for a strike ballot and as a result of the ballot the respondents decided to go on strike. A notice in that behalf was issued on May 9, 1951. The appellant then appealed to the respondents not to precipitate matters, promised to consider their demands as soon as its financial position improved and warned them that, if they refused to report for work in accordance with the strike notice, it would deem to amount to resignation of each one of the strikers of his job. The Conciliation Officer who was approached by the appellant also advised the respondents not to go on strike. Nevertheless the respondents went on strike on May 30, 1951. Before the respondents thus went on strike services of 39 members of the staff had been terminated by a notice as a measure of retrenchment with effect from May 18, 1951. It is the retrenchment of these 39 workmen which led to the industrial dispute with which we are concerned in the present appeal. Before this dispute was thus referred for adjudication the respondents had filed a writ petition in the Madras High Court asking for a writ calling upon the Government to make a reference under section 10(1)(c) of the Act. This writ application was allowed; but on appeal the Court of Appeal modified the order issued by the original court by substituting a direction that the Government should discharge its duties under section 12(5) of the Act. On June 12, 1951, the strike was called off by the respondents and they offered to resume work; but by then the appellant had engaged 149 new hands and so it was able to re engage only some of the respondents who offered to resume work. The failure of the appellant to take into service all its workmen is another item of dispute between the parties; but with the said dispute the present appeal is not concerned. It was as a result of the order passed by the Madras High Court that the present dispute was ultimately referred for adjudication to the industrial tribunal. The tribunal held that the strike declared by the respondents was not justified and that the appellant was justified in retrenching 39 workmen in question. According to the tribunal, though in retrenching 39 workmen the principle of I last come first go ' was not strictly followed, the appellant was justified in departing from the said principle because it was entitled to give preference to " persons mechanically inclined and having good eyesight. " That is why the tribunal rejected the respondents ' plea that in effecting retrenchment the appellant had indulged in any unfair labour practice. Since the tribunal was satified that the retrenchment of 39 workmen was effected in the usual course for good and sufficient reasons it ordered that the said retrenched workmen were not entitled to any relief. The respondents challenged this award by an appeal before the Labour Appellate Tribunal. The appellate tribunal was satisfied that the impugned finding about the bona fides and the validity of the retrenchment was not justified. It, therefore, remanded the proceedings to the industrial tribunal for deciding afresh the four points formulated by it. Two of these points are relevant for our purpose. One was whether the formula I last come first go ' had been complied with, and if it was not, the tribunal was asked to scrutinise in relation to each individual whether the reasons for breaking the said rule were sufficient in his case; and the other was whether the management was motivated by any unfair labour practice or victimisation. Pursuant to this order of remand the industrial tribunal allowed an opportunity to the appellant to lead evidence, and, on considering the evidence, it came to the conclusion that the appellant had made 150 out a case of necessity for retrenchment and that it had justified the extent of retrenchment as pleaded by it. No mala fides in that behalf had been established according to the tribunal. It, however, held that the principle of 'last come first go ' had not been observed in selecting the personnel for retrenchment; and it rejected the explanation given by the appellant in retrenching 15 out of the said 39 workmen. That is why it ordered the.appellant to reinstate the said 15 workmen without any back wages. In regard to the remaining 24 workmen no order was made by the tribunal in respect of any compensation payable to them. On receipt of the findings recorded by the tribunal the matter went back to the Labour Appellate Tribunal. Both parties had filed objections against the findings in question. The appellate tribunal considered these objections and held that the appellant had made out a case for retrenching 39 of its employees; but it agreed with the industrial tribunal that the principle of 'last come first go ' had not been observed and that no case had been made out to depart from the said principle. That is why it confirmed the finding of the tribunal that the 15 named employees should be reinstated and added that they should be given half the amount of their back wages. In regard to the remaining 24 workmen who had been retrenched, the appellate tribunal directed that they should be awarded compensation at the rate of half a month 's wages including dearness allowance for each year of service. It is against this decision that the present appeal has been preferred by special leave. The first point which the learned Attorney General has raised before us in this appeal on behalf of the appellant is that the Labour Appellate Tribunal erred in law in directing reinstatement when it did not differ from the conclusion of the industrial tribunal that the strike of the respondents was unjustified and that the appellant had acted bona fide in coming to the conclusion that retrenchment of ' 39 workmen was necessary. It is urged that it is only if the industrial tribunal is satisfied that in retrenching its employees the appellant had acted mala fide that it would be open to the 151 tribunal to interfere with the order of retrenchment passed by the appellant; and the argument is that s the order of reinstatement in substance is inconsistent with the findings about the bona fides of the appellant. In our opinion this argument is misconceived. There are two aspects of the question with which the appellate tribunal was concerned in the present proceedings: Was the appellant justified in coming to the conclusion in exercise of its management function and authority that 39 workmen had to be retrenched; if yes, has the retrenchment been properly carried out ? The first question has been answered in favour of the appellant by both the tribunals below. It has been found that the respondents ' strike was unjustified and that for the reasons set out by the appellant retrenchment to the extent pleaded by it was also called for and justified. It is in regard to this aspect of the matter that the appellant 's bonafides have Do doubt been found; but the bonafides of the appellant in coming to the conclusion that 39 workmen had to be retrenched have no material bearing nor have they any relevance in fact with the question as to whether the appellant acted fairly or reasonably in selecting for retrenchment the 39 workmen in question. It is in regard to this latter aspect of the matter that concurrent findings have been recorded against the appellant that it acted without justification and the retrenchment of the 15 workmen in question amounts to an unfair labour practice. Therefore, it is not possible to accept the argument that there is any inconsistency in the two findings. They deal with two different aspects of the matter and so they cannot be said to conflict with each other at all. It is then urged that in entertaining the grievance of the respondents against their order of retrenchment the Labour Appellate Tribunal has exceeded its jurisdiction. The, case presented before us on this ground assumes that retrenchment is and must be held to be a normal management function and privilege, and as soon as a case for retrenchment had been made out liberty and discretion must be left to the employer to select which employees should in fact be retrenched. In holding an enquiry about the.validity 152 or reasonableness of retrenchment of certain specified persons the appellate tribunal has trespasser on the management function and as such has exceeded its jurisdiction. We are not impressed by this argument. It may be conceded that if a case for retrenchment is made out it would normally be for the employer to decide which of the employees should be retrenched; but there can be no doubt that the ordinary industrial rule of retrenchment is I last come first go ', and where other things are equal this rule has to be followed by the employer in effecting retrenchment. We must, however, add that when it is stated that other things being equal the rule I last come first go ' must be applied, it is not intended to deny freedom to the employer to depart from the said rule for sufficient and valid reasons. The employer may take into account considerations of efficiency and trustworthy character of the employees, and if he is satisfied that a person with a long service is inefficient, unreliable or habitually irregular in the discharge of his duties, it would be open to him to retrench his services while retaining in his employment employees who are more efficient, reliable and regular though they may be junior in service to the retrenched workmen. Normally, where the rule is thus departed from there should be reliable evidence preferably in the recorded history of the workmen concerned showing their inefficiency, unreliability or habitual irregularity. It is not as if industrial tribunals insist inexorably upon compliance with the industrial rule of retrenchment; what they insist on is on their being satisfied that wherever the rule is departed from the departure is justified by sound and valid reasons. It, therefore, follows that, wherever it is proved that the rule in question has been departed from, the employer must satisfy the industrial tribunal that the departure was justified; and in that sense the onus would undoubtedly be on the employer. In dealing with cases of retrenchment it is essential to remember that the industrial rule of I last come first go ' is intended to afford a very healthy safeguard against discrimination of workmen in the matter of retrenchment, and so, though the employer may depart from the rule, he should able to justify 153 the departure before the industrial tribunal whenever an industrial dispute is raised by retrenched workmen on the ground that their impugned retrenchment amounts to unfair labour practice or victimisation. It appears that in 1946 the Government of India, in its Department of Labour, formulated certain rules for retrenchment and commended, them to the attention of all employers of labour and trade unions so that disputes on that score may be minimised. Rule 4 amongst the said rules was that as a rule discharge of personnel who are still surplus to requirements should be in accordance with the principles of short service, that is to say, last man engaged should be the first man to be discharged. Due notice or wages in lieu thereof should be given. The same principle has been accepted and applied by industrial tribunals on several occasions (Vide : Indian Navigation & Industrials, Alleppey And Certain Workmen (1); Cuttack Electric Supply Co. Ltd. And Their Workmen (2) ; and Shaparia Dock and Steel Company And Their Workers (3) ). We ought to add that the same principle has. now been statutorily recognised by section 25(g) of the Act. This section provides inter alia that where any workman in an industrial establishment, who is a citizen of India, is to be retrenched, the employer shall ordinarily retrench the workman who was the last person to be employed in the same category, unless, for reasons to be recorded, the employer retrenches any other workman; in other words, by this section a statutory obligation is imposed on the employer to follow the rule, and if he wants to depart from it to record his reason for the said departure. In support of his contention that the Labour Appellate Tribunal has exceeded its jurisdiction in examining the merits of the retrenchment effected by the appellant, the learned Attorney General has relied upon certain observations made by this Court in the case of J. K. Iron & Steel Co. Ltd. vs Its Workmen (4). Dealing with the argument of the appellant that the order of retrenchment should be left to the management and that the decision by the management that (1) (1952) II L.L.J. 611. (2) (3) (1954) II L.L.J. 208. (4) Civil Appeal No, 266 of 1958 decided on 11 2 1960. 20 154 some employees are better qualified than others should not be questioned by the adjudicator unless he came to the conclusion that the preferential treatment was deemed to be malafide, this Court observed that the proposition involved in the argument was unexceptionable, it was added, that, if the preferential treatment given to juniors ignores the well recognized principles of industrial law of 'first come last go without any acceptable or sound reasoning a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. We do not see how either of the two propositions set out in this judgment can support the appellant 's argument before us. The position under the industrial law seems to us to be fairly clear. The management has the right to retrench the workmen provided retrenchment is justified. In effecting retrenchment the management normally has to adopt and give effect to the industrial rule of retrenchment. For valid reasons it may depart from the said rule. If the departure from the said rule does not appear to the industrial tribunal as valid or satisfactory, then the action of the management in so departing from the rule can be treated by the tribunal as being mala fide or as amounting to unfair labour practice; in other words, departure from the ordinary industrial rule of retrenchment without any justification may itself, in a proper case, lead to the inference that the impugned retrenchment is the result of ulterior considerations and as such it is mala fide and amounts to unfair labour practice and victimisation. That is precisely what this Court has held in the case of J. K. Iron & Steel Co. Ltd. (4). We are, therefore, satisfied that there is no substance in the appellant 's contention that the tribunals below have exceeded their jurisdiction in enquiring into the validity of the retrenchment of the 39 workmen in question. There is one more point which may briefly be mentioned in this connection. After the matter was remanded the industrial tribunal has carefully considered the evidence given by the appellant. In fact it is clear from the record that at the original enquiry no evidence had been led by the appellant to justify (1) Civil Appeal No. 266 of i958 decided on 11 2 6o. 155 the departure from the rule even though it was conceded that the rule had not been followed. The Labour Appellate Tribunal, therefore, fairly gave a chance to the appellant to justify the said departure, and accordingly evidence was led by the appellant. This evidence consists of the testimony of Mr. Lakshminarasimlian, who has been working with the appellant for 32 years. He works as an Assistant Editor, and in addition attends to press work. He stated that he was having a personal supervision of the entire work and that when retrenchment was actually effected a committee was appointed consisting of himself, the Manager Mr. Ayyangar and the Press Manager Mr. Rajagopala Ayyangar. At the time of the enquiry the Manager was dead. According to the. witness the committee took the advice of the Foremen of various sections in deciding which workmen should be retained and which should be retrenched. The witness gave evidence about the defects in the cases of the 39 workmen who were retrenched; and in support of his oral testimony he filed two statements T 1 and T 2 giving material particulars in respect of all the said workmen. It is admitted that no records were made at the time when the cases of these workmen were examined and so the witness was driven to give evidence merely from memory. The tribunal has held that having regard to the nature of the defects attributed to the several workmen to which the witness deposed it was impossible to accept his testimony as satisfactory, and the tribunal was also not satisfied that it was likely that the witness should have any personal knowledge in regard to the said defects. In the result the tribunal rejected this testimony. It also examined some cases 'in detail, and it was satisfied that the reasons given for retrenching them were demonstrably unsatisfactory. It is on these findings that 'the tribunal came to the conclusion that the appellant had not shown any valid or reasonable ground for departing from the usual rule, and this finding has been accepted by the Labour Appellate Tribunal. In such a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment 156 of the 15 workmen amounts to an unfair labour practice and victimisation. That leaves two minor questions which were formulated for our decision by the learned Attorney General. He contended that, even if the impugned retrenchment of the 15 workmen in question was not justified, reinstatment should not have been directed ; some compensation instead should have been ordered; and in the alternative he argued that the order directing compensation to the remaining 24 retrenched work men was also not justified. We do not see any substance in either of these two contentions. Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen ; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide: The Punjab National Bank Ltd. vs The All India Punjab National Bank Employees ' Federation (1); and National Trans.port and General Co. Ltd. vs The Workmen (2). Then as to the compensation awarded to the 15 and 24 workmen respectively, it is a matter of discretion and as such is not open to challenge in the present appeal. In the result the appeal fails and is dismissed with costs. Appeal dismissed (1) [1960] I S.C.R. 806. [/INST]The management by a notice terminated the services Of 39 workmen as a measure of retrenchment. The workmen went on strike which led to an industrial dispute. The Industrial Tribunal interalia held that the strike was not justified and that the management had made out of a case of necessity for retrenchment and no malafides had been established; but the principle of last come first go had not been observed in selecting the personnel for retrenchment and ordered the reinstatement Of 15 out of the 39 workmen retrenched. The Appellate Tribunal confirmed the findings of the Industrial Tribunal with certain modifications by way of compensation. The management came up in appeal by special leave. Held, that where a case of retrenchment is made out the employer has normally to follow the industrial rule of retrenchment last come and first go; for valid reasons he may however depart from the said rule; in that case he has to show by reliable evidence, preferably from the recorded history of the workmen concerned showing their inefficiency, unreliability or habitual irregularity and can satisfy the Tribunal that the departure from the rule was justified by sound and valid reasons; otherwise the departure from the rule could be treated as being malafidc or amounting to unfair labour practice. Held, further that once it was found that retrenchment was unjustified and improper it is for the Tribunal to consider to what relief the retrenched workmen will be entitled; ordinarily retrenched workmen would be entitled to claim reinstatement, and the fact that in the meantime the employer has engaged other workmen would not necessarily defeat the claim for reinstatement, nor would the fact that protracted litigation in regard to the dispute has inevitably meant delay defeat such a claim for reinstatement. Therefore the conclusion that 15 workmen were improperly retrenched cannot be sucessfully challenged. </s>
<s>[INST] Summarize the judgementivil Appeal No. 1659 of 1990. From the Judgment and Order dated 31.12. 1987 of the Andhra Pradesh Administrative Tribunal, Hyderabad, in Repre sentation Petition No. 3339 of 1987. K. Madhava Reddy, T.V.S.N. Chari, Ms. Sunita Rao and Ms. Manjula Gupta for the Appellants. H.S. Guru Raja Rao, Vimal Dave and B. Rajeshwar Rao for the Respondent. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special leave granted. The respondent in this appeal K. Ratnagiri was at the material 235 time Circle Inspector of Police attached to Sanjeeva Reddy Nagar Police Station, Hyderabad. In that police station one U. Narasimha died in Police lock up. Pending prosecution with regard to that offence, the Director General of Police made an order keeping the respondent under suspension. The order reads: "Shri K. Ratnagiri, Circle Inspector of Police, Sanjiva Reddy Nagar P.S. Hyderabad is placed under suspension with immediate effect in public interest until further orders pending prosecution against him in the case of death of U. Narasimha in Police lock up". The respondent appealed to the Andhra Pradesh Adminis trative Tribunal. The Tribunal has set aside the suspension order holding that the respondent shall be deemed to be in service from the date of issue of suspension order. The Tribunal, however, has reserved liberty to the Government to transfer him to any other Police Station. It has been held that the order of suspension becomes invalid after the period of six months since the Government did not make a fresh order extending the period of suspension. It has been further stated that the Director General has no power to keep the respondent under suspension pending investigation of the case against him. Both these conditions are rested solely on the scope of Rule 13(1) of the A.P. Civil Service (CCA) Rules, 1963. For immediate reference we may set out the Rule hereunder: 13(1) A member of service may be placed under suspension from service pending investigation or enquiry into grave 'charges, where such suspension is necessary in the public interest. Provided that where a member of a service has been suspended by an authority other than the Government and the investiga tion has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months of the date of suspension, the fact shall be reported to the Government, for such orders as they may deem fit. 13.2 to 13.4 xxx xxx xxx 13(5) An order of suspension made or deemed to have been made under this rule may, at any time, be revoked by 236 the authority which made or is deemed to have been made the order or by any authority to which that authority is subor dinate." Rule 13(1) provides power to keep an officer under suspen sion from service pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest. Proviso thereunder requires the authority who made the order of suspension to report to the Government where the investigation into the charges and the action proposed to be taken against the officer has not been com pleted within the period of six months from the date of suspension. Upon receipt of the report, the Government may make such orders as they deem fit having regard to the circumstances or development in the case. Proviso thus imposes only an obligation on the authority to report to the Government, but it does not limit the period of suspension. It does not state that the suspension order comes to an end by the end of six months. It may be noted that the suspen sion order is not an interim suspension. Nor the Rule 13(1) limits its operation only for six months. Rule 13(5) pro vides that the order of suspension may, at any time, be revoked by the authority who made or is deemed to have been made the order or by any authority to which that authority is subordinate. That apparently suggests that the order of suspension once made will continue to operate till it is revoked by an appropriate order. Therefore, there appears to be no justification to contend that the order of suspension would not last beyond six months. It has been passed by the competent authority who shall report to the Government if the action is not completed within six months. The Govern ment may review the case and make further or other order but the order of suspension will continue to operate till it is rescinded by an appropriate authority. Similar was the view expressed by this Court in Civil Appeal No. 1064 of 1990 in Government of A.P.v. V. Sivaraman, disposed of on 12 January 1990 to which one of us was a party (K. Jagannatha Shetty). There it was observed: "Where the rules provide for suspending a Civil servant and require thereof to report the matter to the Government giving out reasons for not completing the investigation or enquiry within six months, it would be for the Government to review the case but it does not mean that the suspension beyond six months becomes automatically invalid or non est. The only duty enjoined by such a rule is that the officer 237 who made the order of suspension must make a report to the Government and it would be for the government to review the facts and circumstances of the case to make a proper order. It is open to the Government to make an order revoking the order of suspension or further continuing the suspension. The Order of suspension however, continues until it is revoked in accordance with the law. " It was also observed: "That the order of suspension will continue till it is revoked, though it is necessary to review the case once in six months in the light of the instruction 18 contained in Appendix VI of the APCS (CCA) Rules, 1963 and the circular of the Chief Secretary dated February 13, 1989. " The opposite view taken by the tribunal in the instant case therefore, cannot be sustained. This brings us to the second conclusion reached by the Tribunal to invalidate the order of suspension. Precisely, it is also rested on the statutory framework of Rule 13(I) coupled with the terms of the order by which the respondent was kept under suspension. The Tribunal has observed that Rule 13(1) empowers the authority to make an order of sus pension pending investigation or enquiry into charges, but not pending prosecution with regard to the charges. It seems to us that the Tribunal has taken a hypertech nical view of the matter. The factual background of the case may now be shortly stated: On 10 July 1986, U. Narasimha died in the police custody of Sanjeeva Reddy Nagar Police Station where the respondent was then working as a Circle Inspector of Police. Next day morning the infuriated mob attacked the Police Station and there was similar attack at the Bodabanda Outpost in whose limits Narasimha was resid ing. On the same day, a First Information Report was issued registering the offence of murder but without mentioning the name of any accused. The accused could not be named since there was then no authentic information as to how U. Nara simha died and who were responsible for his unnatural death. In order to clear the mist surrounding the incident, on 19 July 1986 the State Government constituted a Commission of Inquiry under Section 3 of the Commission of Inquiry Act, 1952 (Central Act 60 of 1952). Shri A.D.V. Reddy, retired Judge of the High Court of Andhra Pradesh was constituted as a Single Member 238 of the Commission of Inquiry. The Commission was asked to find out the circumstances leading to the lock up death of U. Narasimha and to identify the person, if any, responsible for the incident. The Commission was also required to point out lapses on the part of any authority or person or per sons, in connection with that incident. On 29 November 1986 the Commission submitted its report indicating certain police officials including the respondent. It was inter alia observed that the respondent and other police officials have mercilessly beaten and tortured U. Narasimha and that has resulted in his lock up death. It has been further observed that the officials were also responsible for certain other offences like illegal detention of the deceased, disrobing of Smt. Chandrakala, the wife of the deceased, house tres pass, misappropriation etc. The Government after examining the report, has accepted it and decided to initiate prosecu tion against the officers. The Director General of Police was asked to take immediate action in that regard. There then the Director General of Police made the order keeping the respondent under suspension pending prosecution against him. The Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges where such suspension is necessary in the public interest. When the first information report is issued, the investigation commences and indeed it has com menced when the respondent was kept under suspension. The order of suspension cannot, therefore, be said to be beyond the scope of Rule 13(1) merely because it has used the word 'prosecution ' instead of investigation into the charges against the respondent. A wrong wording in the order does not take away the power if it is otherwise available. The tribunal seems to have ignored this well accepted principle. In stating this conclusion, we do not of course express any opinion about the need to make a fresh order of suspen sion. We however make it clear that the original order of suspension need not be given effect to since the respondent has already been reinstated into service and transferred to some other station. The appeal is accordingly allowed setting aside the order of the Tribunal. N.P.V. Appeal allowed. [/INST]The first appellant made an order under Rule 13(1) of the A.P. Civil Service (CCA) Rules, 1963 keeping the re spondent, a Police Inspector, under suspension pending prosecution against him in the case of death of a person in lock up in the Police Station to which the respondent was attached. The respondent challenged the order before the State Administrative Tribunal. The Tribunal set aside the suspension order, holding that the order became invalid after six months since the Government had not made a fresh order extending the period of suspension, and that the first appellant had no power to suspend the respondent pending prosecution against him. Hence the appeal, by Special Leave. Allowing the appeal, this Court, HELD: 1.1 Rule 13(1) of the A.P. Civil Service (CCA) Rules, 1963 provides power tO keep an officer under suspen sion from service pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest. Proviso thereunder requires the authority who made the order of suspension to report to the Government where the investigation into the charges and the action proposed to be taken against the officer has not been com pleted within the period of six months from the date of suspension. Upon receipt of the report, the Government may make such orders as they deem fit having regard to the circumstances or development in the case. Proviso thus imposes only an obligation on the authority to report to the Government, but it does not limit the period of suspension. It does not state that the suspension order comes to an end by the end of six months. The suspension order is not an interim suspension. Nor Rule 13(1) limits its operation only for six months. The order of suspension once made will continue 234 till it is revoked by an appropriate order under Rule 13(5). [236B D] Government of A.P.v. Sivaraman, Civil Appeal No. 1064 of 1990, decided on January 12, 1990, referred to. 1.2 It is a well accepted principle that a wrong wording in the order does not take away the power if it is otherwise available. [238E] Rule 13(1) empowers the authority to keep the respondent under suspension pending investigation or enquiry into the criminal charges. When the First Information Report was issued registering the offence of murder, names of the accused could not be mentioned since there was no authentic information as to how the death occurred and who were responsible for it. However, after the Commission of Inquiry submitted its report, indicting certain police officials including the respondent, the State Government decided to initiate prosecution against the officers and asked the first appellant to take immediate action in that regard. Thus, the first appellant made the order keeping the re spondent under suspension pending prosecution against him. Merely because the word 'prosecution ' has been used instead of 'investigation ', the order of suspension cannot be said to be beyond the scope of Rule 13(1). The investigation commenced when the First Information Report was issued, and indeed it has commenced when the respondent was kept under suspension. [237G H; 238B, C D] </s>
<s>[INST] Summarize the judgementAppeal No. 38 of 1953. Appeal under article 132(1) of the Constitution of India from the Judgment and Order dated the 13th December, 1951, of the High Court of Judicature, Madras, in Civil Miscellaneous Petition No. 2591 of 1951. 1007 V.K.T. Chari, Advocate General of Madras (B. Ganapathy Iyer, with him) for the appellant. B. Somayya and C.R. Pattabhi Raman (T. Krishna Rao and M.S. K. Sastri, with them) for the respondent. T. N. Subramania Iyer, Advocate General of Travancore Cochin (T. R. Balakrishna Iyer and Sardar Bahadur with him) for the Intervener (State of Travancor,Cochin). March 16. The Judgment of the Court was delivered by MUKHERJIA J. This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December, 1951, by which the learned Judges allowed & petition, presented by the respondent under article 226 of the Constitution, and directed a writ of prohibition to issue in his favour prohibiting the appellant from proceeding with the settlement of a scheme in connection with a Math, known as the Shirur Math, of which the petitioner happens to be the head or superior. It may be stated at the outset that the petition was filed at a time when the Madras Hindu Religion Endowments Act (Act II of 1927), was in force and the writ was prayed for against the Hindu Religious Endowments Board constituted under that Act, which was the predecessor in authority of the present appellant and had initiated proceedings for settlement of a scheme against the petitioner under section 61 of the said Act. The petition was directed to be heard along with two other petitions of a similar nature relating to the temple at Chidambaram in the district of South Arcot and questions were raised in all of them regarding the validity of Madras Act 11 of 1927, hereinafter referred to as the Earlier Act. While the petitions were still pending, the Madras Hindu Religious and Charitable Endowments Act,, 1951 (hereinafter called the New Act), was passed by the Madras Legislature and came into force on the 27th of August, 1951. In view of the Earlier Act being replaced by the new one,, leave was given to all the petitioners to amend their petitions and challenge the validity of the. New Act as well. 1008 Under section 103 of the New Act, notifications, orders and acts under the Earlier Act are to be treated as notifications, orders and acts issued, made or done by the appropriate, authority under the corresponding provisions of the New Act, and in accordance with this provision, the Commissioner, Hindu Religious Endowments, Madras, who takes the place of the President, "Hindu Religious Endowments Board under the Earlier Act, was added as a party to the proceedings. So far as the present appeal is concerned, the material facts may be shortly narrated as follows: The Math, known as Shirur Math, of which the petitioner is the superior or Mathadhipati, is one of the eight Maths situated at Udipi in the district of South Kanara and they are reputed to have been founded by Shri Madhwacharya, the well known exponent of dualistic theism in the Hindu Religion. Besides these eight Maths, each one of which is presided over by a Sanvasi or Swami, there exists another ancient religious institution at Udipi, known as Shri Krishna Devara Math, also established by Madhwacharya which is supposed to contain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the coast of Tulava. There is no Mathadhipati in the Shri Krishna Math and its. affairs are managed by the superiors of the other eight Maths by turns and the custom is that the Swami of each of these eight Maths presides over the Shri Krishna Math in turn for a period of two years in every sixteen years. The appointed time of change in the headship of the Shri Krishna Math is the occasion of a great festival, known as Pariyayam, when a vast concourse of devotees gather at Udipi from all parts of Southern India, and an ancient usage imposes a duty upon the Mathadhipati to feed every Brahmin that comes to the place at that time. The petitioner was installed as Mathadhipati in the year 1919, when he was still a minor, and he assumed management after coming of age some time in 1926. At that time the Math was heavily in debt. Between 1926 and 1930 the Swami succeeded in clearing off a large portion of the debt. In 1931, however, came the 1009 turn of his taking over management of the Shri Krishna Math and he had had to incur debts to meet the heavy expenditure attendant on the Pariyayam ceremonies, The financial position improved to some extent during the years that followed, but troubles again arose in 1946, which was the year of the second Pariyayam of the Swami. Owing to scarcity and the high prices of commodities at that time, the Swami had to borrow money to meet the expenditure and the debts mounted up to nearly a lakh of rupees. The Hindu Religious Endowments Board, functioning under the Earlier Act of 1927, intervened at this stage and in exercise of its powers under section 61 A of the Act called upon the Swami to appoint a competent manager to manage the affairs of the institution. The petitioners case is that the action of the Board was in stigated by one Lakshminarayana Rao, a lawyer of Udipi, who wanted to have control over the affairs of the Math. It appears that in pursuance of the direction of the Board, one Sripath Achar was appointed an agent and a Power of Attorney was executed in his favour on the 24th of December, 1948. The agent, it is alleged by the petitioner, wanted to have his own way in all the affairs of the Math and paid no regard whatsoever to the wishes of the Mahant. He did not even submit accounts to the Mahant and deliberately flouted his authority. In this state of affairs the Swami,, on the 26th of September, 1950, served a notice upon the agent terminating his agency and calling upon him to hand over to the Mathadhipati all account papers and vouchers relating to the institution together with the cash in hand. Far from complying with this demand, the agent, who was supported by the aforesaid Lakshminarayans Rao, questioned the authority of the Swami to cancel his agency and threatened that he would refer the matter for action to the Board. On the 4th of October, 1950, the petitioner filed a suit against the agent in the Sub,Court of South Kanara for recovery of the account books and other articles belonging to the Math, for rendering an account of the management and also for an injunction restraining the said agent from interfering with the affairs of the Math under colour of the 1010 authority conferred by the Power of Attorney which the plaintiff had cancelled. The said Sripath Achar anticipating this suit filed an application to the Board on the 3rd of October, 1950, complaining against the cancellation of the Power of Attorney and his management of the Math. The Board on the 4th October, 1950, issued a notice to the Swami proposing to inquire into the matter on the 24th of October following at 2 p.m. at Madras and requesting the Swami either to apppear in person or by a pleader. To this the Swami sent a reply on 21st October, 1950, stating that the subject matter of the very enquiry was before the court in the original suit filed by him and as the matter was sub judice the enquiry should be put off. A copy of the plaint filed in that suit was also sent along with the reply. The Board, it appears, dropped that enquiry, but without waiting for the result of the suit, initiated proceedings suo moto under section 62 of the Earlier Act and issued a notice upon the Swami on the 6th of November, 1950, stating that it had reason to believe that the endowments of the said Math were being mismanaged and that a scheme should be framed for the administration of its affairs. The notice was served by affixture on the Swami and the 8th of December, 1950, was fixed as the date of enquiry. On that date at the request of the counsel for the Swami, it was adjourned to the 21st of December, following. On the 8th of December, 1950, an application was filed on behalf of the Swami praying to the Board to issue a direction to the agent to hand over the account papers and other documents, without which it was not possible for him to file his objections As the lawyer appearing for the Swami was unwell, the matter was again adjourned till the 10th of January, 1951. The Swami was not ready with his objections even on that date as his lawyer had no t recovered from his illness and a telegram was sent to the Board on the previous day requesting the latter to grant a further adjournment. The Board did not accede to this request and as no explanation was filed by the Swami, the enquiry was closed and orders reserved upon it. On the 13th of January, 1951, the Swami, it appears sent a written 1011 explanation to the Board, which the latter admittedly received on the 15th On the 24th of January, 1951, the Swami received a notice from the Board stating inter alia that the Board was satisfied that in the,, interests of proper administration of the Math and its endowments, the settlement of a scheme was necessary. A draft scheme was sent along with the notice and if the petitioner had any objections to the same, he was required to send in his objections on or before the 11th of February, 1951, as the. final order regarding the scheme would be made on the 15th of February, 1951. On the 12th of February, 1951, the peti tioner filed the petition, out of which this appeal arises, in the High Court of Madras, praying for a writ of prohibition to prohibit the Board from taking further steps in the matter of settling a scheme for the administration of the Math. It was alleged inter alia that the Board was actuated by bias against the petitioner and the action taken by it with regard to the settling of a scheme was not a bona fide act at all. The main contention, however, was that having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, the law regulating the framing of a scheme interfering with the management of the Math and its affairs by the Mathadhipati conflicted with the provisions of art icles 19(1) (f) and 26 of the Constitution and was hence void under article 13. It was alleged further that the provisions of the Act were discriminatory in their character and offended against article 15 of the Constitution. As has been stated already, after the New Act came into force, the petitioner was allowed to end his petition and the attack was now directed against the constitutional validity of the New Act which replaced the earlier legislation. The learned Judges, who heard the petition, went into the matter with elaborate fullness, both on the constitutional questions involved in it as well as on its merits. On the merits, it was held that in the circumstances of the case the action of the Board was a perverse exercise of its jurisdiction and that it should 1012 not be allowed to proceed in regard to the settlement of the scheme. On the constitutional issues raised in the case, the learned Judges pronounced quite a number of sections of the New Act to be ultra vires the Constitution by reason of their being in conflict with the fundamental rights of the petitioner guaranteed under articles 19(1)(f), 25, 26 and 27 of the Constitution. In the result, the rule nisi issued on the petition was made absolute and the Commissioner, Hindu Religious Endowments, Madras, was prohibited from proceeding further with the framing of a scheme inregard to the petitioner 's Math. The Commisioner has now come up on appeal before us on the strength of a certificate granted by the High Court under article 132(1) of the Constitution. The learned Advocate General for Madras, who appeared in support of the appeal, confined his arguments exclusively to the constitutional points involved in this case. Although he had put in an application to. urge grounds other than the constitutional grounds, that application was not pressed and he did not challen the findings of fact upon which the High Court based its decision on the merits of the petition. The position, therefore, is that the order of the High Court issuing the writ of prohibition against the appellant must stand irrespective of the decision which we light arrive at on the constitutional points raised before us. It is not disputed that a State Legislature is competent to enact laws on the subject of religious and charitable endowments, which is covered by entry 28 of List III in Schedule VII of the Constitution. No question of legislative incompetency on the part of the Madras Legislature to enact the legislation in question has been raised before us with the exception of the provision, relating to payment of annual contribution contained in section 76 of the impugned Act. The argument that has been advanced is, that the contribution is in reality a tax and not a fee and consequently the State Legislature had no authority to enact a provision of this character. We will deal with this point separately later on. All the other points canvassed 1013 before us relate to the constitutional validity or otherwise of the several provisions of the Act which have been held to be invalid by the High Court of Madras on grounds of their being in conflict with the fundamental rights guaranteed under articles 19(1) (f), 25, 26 and 27 of the Constitution. In order to appreciate the contentions that have been advanced on these heads by the learned counsel on both sides, it may be convenient to refer briefly to the scheme and the salient provisions of the Act. The object of the legislation, as indicated in the preamble, is to amend and consolidate the law relating to the administration and governance of Hindu religious and charitable institutions and endowments in the State of Madras. As compared with the Earlier Act, its scope is wider and it can be made applicable to purely charitable endowments by proper notification under section 3 of the Act. The Earlier Act provided for supervision of Hindu religious endowments through a statutory body known as the Madras Hindu religious Endowments Board. The New Act has abolished this Board and the administration of religious and charitable institutions has been vested practically in a department of the Government, at the head of which is the Commissioner. The powers of the Commissioner and of the other authorities under him have been enumerated in Chapter II of the Act. Under the Commissioner are the Deputy Commissioners, Assistant Commissioners and Area Committees. The Commissioner, with the approval of the Government, has to divide the State into certain areas and each area is placed in charge of a Deputy Commissioner, to whom the powers of the Commissioner can be delegated. The State has also to be divided into a number of divisions and an Assistant Commissioner is to be placed in charge of each division. Below the Assistant Commissioner, there will be an Area Committee in charge of all the temples situated within a division or part of a division. Under section 18, the Commissioner is empowered to examine the records of any Deputy Commissioner, Assistant Commissioner, or Area Committee, or of any trustee not being the trustee 131 1014 of a, Math, in respect of any proceeding under the Act, to satisfy himself as to the regularity, correctness, or propriety of any decision or order. Chapter III contains the general provisions relating to all religious institutions. Under section 20, the administration of religious endowments is placed under the general superintendence and control of the Commissioner and he is empowered to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. Section 21 gives the Commissioner, the Deputy and Assistant Commissioners and such other officers asmay be authorised in th is behalf, the power to enter the premises of any religious institution or any place of worship for the purpose of exercising any power conferred, or discharging any duty imposed, by or under the Act. The only restriction is that the officer exercising the power must be a Hindu. Section 23 makes it obligatory on the trustee of a religious institution to obey all lawful orders issued under the provisions of this Act by the Government, the Commissioner, the Deputy Commissioner, the Area Committee or the Assistant Commissioner. Section 24 lays down that in the administration of the affairs of the institution, a trustee should use as much care as a man of ordinary prudence would use in the management of his own affairs. Section 25 deals with the preparation of registers of all religious institutions and section 26 provides for the annual verification of such registers. Section 27 imposes a duty on the trustee to furnish to the Commissioner such accounts, returns, reports and other information as the Commissioner may require. Under section 28, power is given to the Commissioner or any other officer authorised by him to inspect all movable and immovable properties appertaining to a religious institution. Section 29 forbids alienation of all immovable properties belonging to the trust, except leases for a term not exceeding five ,,ears, without the Sanction of the Commissioner. Section 30 lays down that although a trustee may incur expenditure for making arrangements for securing the health and 1015 comfort of pilgrims, worshippers and other people, when there is a surplus left after making adequate provision for purposes specified in section 79(2), he shall be guided in such matters by all genera or special instructions which he may receive from the Commissioner or the Area Committee. Section 31 deals with surplus funds which the trustee may apply wholly or in part with the permission in writing, of the Deputy Commissioner for any of the purposes specified in section 59(1). Chapter IV deals specifically with Maths. Seetion 52 enumerates the grounds on which a suit would lie to remove a trustee. Section 54 relates to what is called " dittam " or scale of expenditure. The trustee has got to submit to the Commissioner proposals for fixing the "dittam" and the amounts to be allotted to the various objects connected with the institution. The proposals are to be published and after receiving suggestions, if any, from persons interested in the instution, they would be scrutinised by the Commissioner. If the Commissioner thinks that a modification is necessary, he shall submit the case to the Government and the orders of the Government would be final. Section 55 empowers the trustee to spend at his discretion and for purposes connected with the Math the "Pathakanikas " or gifts made to him personally, but he is required to keep regular accounts of the receipts and expenditure of such personal gifts. Under section 56, the Commissioner is empowered to call upon the trustee to appoint a manager for the administration of the secular affairs of the institution and in default of such appointment, the Commissioner may make the appointment himself. Under section 58, a Deputy Commissioner is competent to frame a scheme for any religious institutions if he has reason to believe that in the interests of the proper administration of the trust any such scheme is necessary. Sub section (3) of this section provides that a scheme settled for a Math may contain inter alia a provision for appointment of a paid executive officer professing the Hindu religion, whose salary shall be paid out of the funds of the institution. Section 59 makes provision for application of the "cy pres" doctrine when the specific 1016 objects of the trust fail. Chapter VI of the Act, which comprises sections 63 to 69, deals with the notification of religious institutions. A religious institution may be notified in accordance with the provisions laid down in this chapter. Such notification remains in force for five years and the effect of it is to take over the administration and vest it in an executive officer appointed by the Commissioner. Chapter VII deals with budgets, accounts and audit and Chapter VIII relates to finance. Section 76 of Chapter VIII makes it compulsory for all religious institutions to pay annually to the Government a contribution not exceeding 5 per cent. of their income on account of the services rendered to them by the Government and their officers functioning under this Act. Chapter IX is not material for our purpose, and Chapter X deals with provisions of a miscellaneous nature. Section 89 in Chapter X prescribes the penalty for refusal by a trustee to comply with the provisions of the Act. Section 92 lays down that nothing contained in the Act shall be deemed to confer any power or. impose any duty in contravention of the rights conferred on any religious denomination under clauses (a), (b) and (c) of article 26 of the Constitution. Section 99 vests a revisional jurisdiction in the Government to call for and examine the records of the Commissioner and other subordinate authorities to satisfy themselves as to the regularity and propriety of any proceeding taken or any order or decision made by them These, in brief, are the provisions of the Act material for our present purpose. The learned Judges of the High Court have taken the view that the respondent as Mathadhipati has certain well defined rights in the institution and its endowments which could be regarded as rights to property within the meaning of article 19(1)(f) of the Constitution. The provisions of the Act to the extent that they take away or unduly restrict the power to exercise these rights are not reasonable restrictions within the meaning of article 19(5) and must consequently be held invalid. The High Court has held in the second place that the respondent, as the head and 1917 representative of a religious institution, has a right guaranteed to him under article 25 of the Constitution to practise and propagate freely the religion of which he and his followers profess to be adherents. This right, in the opinion of the High Court, has been affected by some of the provisions of the Act. The High Court has held further that the Math in question is really an institution belonging to Sivalli Brahmins, who are a section of the followers of Madhwacharya and hence constitutes a religious denomination within the meaning of article 26 of the Constitution. This religious denomination has a fundamental right under article 26 to manage its own affairs in matters of religion through the Mathadhipati who is their spiritual head and superior, and those provisions of the Act, which substantially take away the rights of the Mathadhipati in this respect, amount to violation of the fundamental right guaranteed under article 26. Lastly, the High Court has. held that the provision for compulsory contribution made in section 76 of the Act comes within the mischief of article 27 of the Constitution. This last point raises a wide issue and We propose to discuss it separately later on. So far as the other three points are concerned, we will have to examine first of all the general contentions that have been raised by the learned Attorney General, who appeared for the Union of India as an intervener in this and other connected cases, and the questions raised are, whether these articles of the Constitution are at all available to the respondent in the present case and whether they give him any protection regarding the rights and privileges, of the infraction of which he complains. As regards article 19(1)(f) of the Constitution, the question that requires consideration is, whether the respondent as Mathadhipati has a right to property in the legal sense,, in the religious institution and its endowments which would enable him to claim the protection of this article ? A question is also formulated as to whether this article deals with concrete rights of property at all ? So far as article 25 of the Constitution is concerned, the point raised is, whether this 1018 article which, it is said, is intended to protect religious freedom only so far as individuals are concerned, can be invoked in favour of an institution or Organisation ? With regard to article 26, the contention is that a Math does not come within the description of a religious denomination as provided for in the article and even if it does, what cannot be interfered with is its right to manage its own affairs in matters of religion only and nothing else. It is said, that the word it religion ", as used in this article, should be taken in its strict etymological sense as distinguished from any kind of secular activity which may be connected in some way with religion on but does not form an essential part of it. Reference is made in this connection to clause (2)(a) of article 25 and clause (d) of article 26. We will take up these points for consideration one after another. As regards the property rights of a Mathadhipati, it may not be possible to say in view of the pronouncements of the Judicial Committee, which have been accepted as good law in this country ever since 1921, that a Mathadhipati holds the Math property as a lifetenant or that his position is similar to that of a Hindu widow in respect to her husband 's estate or of an English BishoP holding a benefice. He is certainly not a trustee in the strict sense. He may be, as the Privy Council(1), says, a manager or custodian, of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be right to describe Mahantship as a mere office. " A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property. It was held by a Full Bench of the Calcutta High Court(2), that Shebaitship. itself is property, and this decision was approved of by the Judicial Committee in Ganesh v Lal Behary(3), and again in Bhabatarini vs Ashalata(4). (1) Vide Vidya Varuthi vs Balusami, 48 I. A. 302 (2) Vide Monahai vs Bhupendra, (3) 63 I.A. 448. (4) 70 I.A. 57. 1019 The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the propriet ary element in the Shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into Hindu ,law from an early date. This view was adopted in its entirety by this court in Angurbala vs Debabrata (1), and what was said in that case in respect to Shebaiti right could, with equal propriety, be applied to the office of a Mahant. Thus in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with .the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. It is true that the Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut of, the ordinary rules of succession do not apply. There is no reason why the word "property", as used in article 19(1) (f) of the Constitution, should not be given a liberal and wide connotation and should not be extended to those well recognised types of interest which have the insignia or characteristics of proprietary right. As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a Mahant altogether. It is true that the beneficial interest which he enjoys is appurtenant to his duties (1) 1020 and as he is in charge of a public institution, reasonable restrictions can always be placed upon his rights in the interest of the public. But the restrictions would cease to be reasonable if they are calculated to make him unfit to discharge the duties which he is called upon to discharge. A Mahant 's duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents. This purpose cannot be served if the restrictions are such as would bring the Mathadhipati down to the level of a servant under a State department. It is from this standpoint that the reasonableness of the restrictions should be judged. A point was suggested by the learned AttorneyGeneral that as article 19(1) (f) deals only with the natural rights inherent in a citizen to acquire, hold and dispose of property in the abstract without reference to rights to any particular property, it can be of no real assistance to the respondent in the present case and article 3l of the Constitution, which deals with deprivation of property, has no application here. In the case of The State of West Bengal vs Subodh Gopal Bose(II) (Civil Appeal No. 107 of 1952, decided by this court on the 17th December, 1953), an opinion was expressed by Patanjali Sastri C. J. that article 19(1) (f) of the Constitution is concerned only with the abstract right and capacity to acquire, hold and dispose of property and that it has no relation to concrete property rights. This, it may be noted, was an expression of opinion by the learned Chief Justice alone and it was not the decision of the court ; for out of the other four learned Judges who together with the Chief Justice constituted the Bench, two did not definitely agree with this view, while the remaining two did not express any opinion one way or the other. This point was not raised before us by the Advocate General for Madras, who appeared in support of the appeal, nor by any of the other (1) (1954] S.C.R. 587 1021 counsel appearing in this case. The learned Attorney. General himself stated candidly that he was not prepared to support the view taken by the late Chief Justice as mentioned above, and he only raised the. point to get an authoritative pronouncement upon it by the court. In our opinion, it would not be proper to express any final opinion upon the point in the present case when we had not the advantage of any arguments addressed to us upon it. We would prefer to proceed, as this court has proceeded all along, in dealing with similar cases in the past, on the footing that article 19(1) (f) applies equally to concrete as well as abstract rights of property. We now come to article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word "persons" here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. it is his duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under article 25. Institutions as such cannot practise or propagate religion; it can be done only by individual persons and whether these person propagate their personal views or the tenets for which the institution stands is really immaterial for purposes. of article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting. As regards article 26, the first question is, what is the precise meaning or connotation of the expression 132 1022 "religious denomination" and whether a Math could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean 'Ca collection of individuals classed together under the same name: a religious sect or body having a common faith and Organisation and designated by a distinctive name. It is well known that the practice of setting up Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub sects can certainly be balled a religious denomination, as it is designated by a distinctive name, in many cases it is the name of the founder, and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article. The other thing that remains to be considered in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management " of its own affairs in matters of religion ?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not 1023 It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies. What then are matters of religion ? The word "religion " has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case(1), it has been said " that the term religion has reference to one 's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter. " We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of "religion" as given above could have been in the minds of our Constitution makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else, but a (1) Vide Davie vs Benson ; at 342. 1024 doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression " practice of religion " in article 25. Latham C. J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations(1) : " It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinion&, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts. done in pursuance of religious belief as part of religion. " These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order,. morality and health. Clause (2)(a) of article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub clause (b) under which the State can (1) Vide Adelaide Company V. The Commonwealth 67 C.L.R. 116, 127 1025 legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious. practices and should be regarded as matters of religion within the meaning of article 26(b). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices. We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as "Jehova 's Witnesses." This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme Authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other Constituted 1026 human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of " Jehova 's Witnesses " incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations(1). These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery. The courts of America were at one time greatly agitated over the question of legality of a State regulation which required the pupils in public schools on pain of compulsion to participate in a daily ceremony of saluting the national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula. The question arose in Minersville School District, Board of Education, etc. vs Gobitis(2). In that case two small children, Lillian and William Gobitis, were expelled from the public school of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The Gobitis family were affiliated with "Jehova 's Witnesses" and had been (1) Vide Adelaide Company vs The Commonwealth, ; , 127. (2) ; 1027 brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by the scripture. The point for decision by the Supreme Court was whether the requirement of participation in such a ceremony exacted from a child, who refused upon sincere religious ground, infringed the liberty of religion guaranteed by the First and the Fourteenth Amendments ? The court held by a majority that it did not and that it was within the province of the legislature and the school authorities to adopt appropriate means to evoke and foster a sentiment of. national unity amongst the children in public schools. The Supreme Court, however, changed their views on this identical point in the later case of West Virginia State Board of Education vs Barnette(1). There it was held overruling the earlier decision referred to above that the action of a State in making it compulsory for children in public schools to salute the flag and pledge allegiance constituted a violation of the First and the Fourteenth Amendments. This difference in judicial opinion brings out forcibly the difficult task which a court has to perform in cases of this type where the freedom or religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization. As regards commercial activities, which are prompted by religious beliefs, we can cite the case of Murdock vs Pennsylvania(2). Here also the petitioners were "Jehova 's Witnesses" and they went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets, all published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax as a condition to the pursuit of their activities. The petitioners were convicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as constituting a denial of freedom of speech, press and religion; (1) ; (2) ; 1028 and it was held further that upon the facts of the case it could not be said that "Jehova 's Witnesses" were engaged in a commercial rather than in a religious venture. Here again, it may be pointed out that a contrary view was taken only a few years before in the case of Jones vs Opelika(1), and it was held that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pamphlets on the streets from house to house, was applicable to a member of a religious Organisation who was engaged in selling the printed propaganda, pamphlets without having complied with the provisions of the ordinance. It is to be noted that both in the American as well as in the Australian Constitutions the. right to freedom of religion has been declared in unrestricted terms with. out any limitation whatsoever. Limitations, therefore, have been introduced by courts of law in these countries on grounds of morality, order and social protection. An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and a difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of religious freedom were involved. Our Constitution makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26(b), therefore, a religious denomination .or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to (1) ; 1029 interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of article 26. Having thus disposed of the general contentions that were raised in this appeal, we will proceed now to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with the fundamental rights of the respondent. The concluding portion of the judgment of the High Court where the learned Judges summed up their decision on this point stands as follows: " To sum up, we hold that the following sections are ultra vires the State Legislature in so far as they relate to this Math: and what we say will also equally apply to other Maths of a similar nature. The sections of the new Act are: sections 18, 209 21, 25(4), section 26 (to the extent section 25(4) is made applicable), section 28 (though it sounds innocuous, it is liable to abuse as we have already pointed out earlier in the judgment), section 29, clause (2) of section 30, section 31, section 39(2), section 42, section 53 (because courts have ample powers to meet these contingencies), ,section 54, clause (2) of section 55, section 56, clause (3) 133 1030 of section 58, sections to 69 in Chapter VI, clauses (2), (3) and (4) of section 70, section 76, section 89 and section 99 (to the extent it gives the Government virtually complete control over the Matadhipati and Maths). It may be pointed out at the outset that the learned Judges were not, right in including sections 18, 39(2) and 42 in this list, as these sections are not applicable to Maths under the Act itself This position has not been disputed by Mr. Somayya, who appears for the respondent. Section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the Mathadhipati occupies the position of a trustee with regard to the Math, which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant. We do not agree with the High Court that the result of this provision would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested, with powers to pass orders, but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in section 91 of the Act makes the position quite clear. An apprehension that the powers conferred by this section may be abused in individual cases does not make the provision itself bad or invalid in law. We agree, however, with the High Court in the view taken by it about section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of 1031 any religious institution or place of worship for the purpose of exercising any power conferred, or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary the Holy of Holies" as it is said, the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head. the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the Constitution. Our attention has been drawn in. this connection to section 91. of the Act which, it is said, provides a sufficient safeguard against any abuse of power under section 2 1. We cannot agree with this contention. Clause (a ) of section 91 excepts from the saving clause all express provisions of the Act within which the provision of section 21 would have to be included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and in what manner the question of interference with the, religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, section 21 has been rightly held to be invalid. Section 23 imposes a duty upon the trustees to obey all lawful orders issued be the Commissioner or any subordinate authority under the, provisions of the Act. No exception can be taken to the section if those 1032 provisions of the Act, which offend against the fund&mental rights of the respondent, are left out of account as being invalid. No body can make a grievance if he .is directed to obey orders issued in pursuance of valid legal authority. The same reason would, in our opinion, apply to section 24. It may be mentioned here that sections 23 and 24 have not been specifically mentioned in the concluding portion of the judgment of the High Court set out above, though they have been attacked by the learned Judges in course of their discussion. As regards section 25, the High Court has taken exception only to clause (4) of the section. If the preparation of registers for religious institutions is not wrong and does not affect the fundamental rights of the Mahant,one fails to see how the direction for addition to or alteration of entries in such registers, which clause (4) contemplates and which will be necessary as a result of enquiries made under clause (3), can, in any sense, be held to be invalid as infringing the fundamental rights of the Mahant. The enquiry that is contemplated by clauses (3) and (4) is an enquiry into the actual state of affairs, and the whole object of the section is to keep an accurate record of the particulars specified in it. We are unable, therefore, to agree with the view expressed by the learned Judges. For the same reasons, section 26, which provides for annual verification of the registers, cannot be held to be bad. According to the High Court section 28 is itself innocuous. The mere possibility of its being abused is no ground for holding it to be invalid. As all endowed properties are. ordinarily inalienable, we fail to see why the restrictions placed by Section 29 upon alienation of endowed properties should be considered bad. In our opinion, the provision of clause (2) of section 29, which enables the Commissioner to impose conditions when he grants sanction to alienation of endowed property, is perfectly reasonable and to that no exception can be taken. The provision of section 30(2) appears to us to be somewhat obscure. Clause (1) of the section enables 1033 a trustee to incur expenditure out of the funds in his charge after making adequate provision . for the purposes referred to in section 70(2), for making arrangements for the health, safety and convenience of disciples, pilgrims, etc. Clause (2), however, says that in incurring expenditure under clause (1), the trustee shall be guided by such general or special instruction as the Commissioner or the Area Committee might give in that connection. If the trustee is to be guided but not fettered by such directions, possibly no objection can be taken to this clause; but if he is bound to carry out such instructions, we do think that it constitutes an encroachment on his right. Under the law, as it stands, the Mahant has large powers of disposal over the surplus income and the only restriction is that he cannot spend anything out of it for his personal use unconnected with the dignity of his ,office. But as the purposes specified in sub clauses (a) and (b) of section 30(1) are beneficial to the institution there seems to be no reason why the authority vested in the Mahant to spend the surplus income for such purposes should be taken away from him and he should be compelled to act in such matters under the instructions of the Government officers. We think that this is an unreasonable restriction on the Mahant 's right of property which is blended with his office. The same reason applies in our opnion to section 31 of the Act, the meaning of which also is far from clear. If after making adequate provision for the purposes referred, to in section 70(2) and for, the arrangements mentioned in section 30(2) there is still a surplus left with the trustee, section 31 enables him to spend it for the purposes specified in section 59(1) with the previous sanction of the Deputy Commissioner. One of the purposes mentioned in section 59(1) is the propagation of the religious tenents of the institution, and it, is not understood why sanction of the Deputy Commissioner should be necessary for spending the surplus, income for the propagation of the religious tenets of the order which is one of the primary duties of a Mahant to discharge. The next thing that strikes one is, whether sanction is necessary if the trustee 1034 wants to spend the money for purposes other than those specified in section 59(1) ? If the answer is in the nega tive, the whole object of the section becomes meaningless. If, on the other hand, the implication of the section is that the surplus can be spent only for the purposes specified in section 59(1) and that too with the permission of the Deputy Commissioner, it undoubtedly places a burdensome restriction upon the property rights of the Mahant which are sanctioned by usage and which would have the effect of impairing his dignity and efficiency as the head of the institution. We think that sections 30(2) and 31 have been rightly held to be invalid by the High Court. Sections 39 and 42, as said already, are not applicable to Maths and hence can be left out of consideration,. , Section 53 has . been condemned by the High Court merely on the ground that the court has ample jurisdiction to provide for the contingencies that this section is intended to meet. But that surely cannot prevent a competent legislature from legislating on the topic, provided it can do so without violating" any of the fundamental rights guaranteed by the Constitution. We are unable to agree with the High Court on this point. There seems to be nothing wrong or unreasonable in section 54 of the Act which provides for fixing the standard, scale of expenditure. The proposals for this purpose would have to be submitted by the trustee ; they are then to be published and suggestions invited from persons having interest in the amendment. The Commissioner is to scrutinise the original proposals and the . suggestions received and if in his opinion a modification of the scale is necessary, he has to submit a report to the Government, whose decision will be final. This we consider to be quite a reasonable and salutary provision. Section 55 deals with a Mahant 's power over Pathakanikas or personal gifts. Ordinarily a Mahant has absolute power of disposal over such gifts, though if he dies without making any disposition, it is reckoned as the property of the Math and goes to the succeeding Mahant. The first clause of section 55 lays down that such Pathakanikas shall be spent only for the 1035 purposes of the Math. This is an unwarranted restriction on the property right of the Mahant. It may be that according to customs prevailing in a particular institution, such personal gifts are regarded as gifts to the institution itself and the Mahant receives them only as the representative of the institution; but the general rule is otherwise. As section 55(1) does not say that this rule will apply only when there is a custom of that nature in a particular institution, we must say that the provision in this unrestricted form is an unreasonable encroachment upon the, fundamental right of the Mahant. The same objection can be raised against clause (2) of the section; for if the Pathakanikas constitute the property of a Mahant, there is no justification for compelling him to keep accounts of the receipts and expenditure of such personal gifts. As said already, if the Mahant dies without disposing of these personal gifts, they may form part of the assets of the Math, but that is no reason for restricting the powers of the Mahant over these gifts so long as he is alive. Section 56 has been rightly invalidated by the High Court. , It makes provision of an extremely drastic ,character. Power has been given to the Commissioner to require the trustee to appoint a manager for administration of the secular affairs of the institution and in case of default, the Commissioner can make the appointment. himself. The manager thus appointed though nominally a servant of the trustee, has practically to do everything according to the directions of .the Commissioner and his subordinates. It is to be noted that this power can be exercised at the mere option of the Commissioner without, any justifying necessity whatsoever and no pre requisites like mis management of property or maladministration of trust funds are necessary to enable the trustee to exercise such drastic power. It is true that the section contemplates the appointment of a manager for administration of the secular affairs of this institution. But no rigid demarcation could be made as we have already said between the spiritual duties of the Mahant 1036 and his personal interest in the trust property. The effect of the section really is that the Commissioner is at liberty at any moment he chooses to deprive the Mahant of his right to administer the trust property even if there is no negligence or maladministration on his part. Such restriction would be opposed to the provision of article 26(d) of the Constitution. It would cripple his authority as Mahant altogether and reduce his position to that of an ordinary priest or paid servant. We find nothing wrong in section 58 of the Act which relates to the framing of the scheme by the Deputy Commissioner. It is true that it is a Government officer and not the court who is given the power to settle the scheme, but we think that sample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section 61 provides for an appeal to the Commissioner, against the order of the Deputy Commissioner and there is a right of suit given to a party who is aggrieved by the order of the Commissioner ,with a further right of appeal to the High Court. The objection urged against the provision of clause (3)(b) of section 58 does not appear to us to be of The executive officer mentioned in much substance that clause could be nothing else but a manager of the properties of the Math, ad the cannot possibly be empowered to exercise the functions of the Mathadhipati himself. In any event, the trustee would have his remedy against such order of the Deputy Commissioner by way of appeal to the Commissioner and also by way of suit as laid down in sections 61 and 62. Section 59 simply provides a scheme for the application of the cy pres doctrine in case the object of the trust fails either from the inception or by reason of subsequent eve*. Here again the only complaint that is raised is, that such order could be made by the Deputy Commissioner. We think that this objection has not much substance. In the first place, the various objects on, which the trust funds could be spent are laid down in the section itself and the jurisdiction of the Deputy Commissioner is only to make a choice out of the several heads . 1037 Further an appeal has been provided from an order of the Deputy Commissioner under this section to the Commissioner. We, therefore, cannot agree with the High Court that sections 58 and 59 of the Act are invalid. Chapter VI of the Act, which contains sections 63 to 69, relates to notification of religious institutions The provisions are extremely drastic in, their character and the worst feature of it is that no access is allowed to the court to set aside an order of notification. The Advocate General for Madras frankly stated that he could not support the legality of these provisions. We hold therefore, in agreement with High Court that these sections should. be hold to be void. Section 70 relates to the, budget of religious institu tions. Objection has been taken only to clause (3.) which empowers the Commissioner and the Area Committee to make any additions to or alterations in the budget as they deem fit. A budget is indispensable in all public institutions and we do not think that it is per be unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area Committee. It is to be noted that if the order is made by an Area Committee under clause (3), clause (4) provides an appeal against it to the Deputy Commissioner. Section 89 provides for penalties for refusal by the trustee to comply with the provisions of the Act. If the objectionable portions of the Act are eliminated, the portion that remains will be perfectly valid and for violation of these valid provisions, penalties can legiti mately be provided. Section 99 vests an overall revisional power in the Government. This, in our opinion, is beneficial to the trustee, for he will have an opportunity to approach, the Government in case of an irregularity, error or omission made by the Commissioner or any other subordinate officer. The only other point that requires consideration is the constitutional validity of section 76 of the Act which runs as follows: "76. (1) In respect of the services rendered by the Government and their officers, every religious institution shall, from the income derived by it, pay to the 134 1038 Government annually such contribution not exceeding five per centum of its income as may be prescribed. (2)Every religious institution, the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub section (1), is hot less than one thousand rupees, shall pay to the Government annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income as the Commissioner may determine. (3)The annual payments referred to in sub sections (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned. (4)The Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants (other than executive officers of religious institutions) employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the cost of auditing the accounts of religious institutions. " Thus the section authorises the levy of an annual contribution on all religious institutions, the maximum of which is fixed at 5 per cent. of the income derived by them. The Government is to frame rules for the purposes of fixing rates within the permissible maximums and the section expressly states that the levy is in respect of the I services rendered by the Government and its officers. The validity of the provision has been attacked on a two fold ground: the first is, that the contribution is really a tax and as such it was beyond the legislative competence of the State Legislature to enact such provision. The other is, that the contribution being a tax or imposition, the proceeds of which are specifically appropriated for the maintenance of a particular religion or religious denomination, it comes within the mischief of article 27 of the Constitution and is hence void. 1039 So far as the first ground is concerned, it is not disputed that the legislation in the present case is covered by entries 10 and 28 of List III in Schedule VII of the Constitution. If the contribution payable under section 76 of the Act is a "fee", it may come under entry 47 of the Concurrent List which deals with " fees" in respect of any of the matters included in that list. On the other hand, if it is a tax, as this particular tax has not been provided for in any specific entry in any of the three lists, it could come only under entry 97 of List I or article 248(1) of the Constitution and in either view the Union Legislature alone would be competent to legislate upon it. On behalf of the appellant, the contention raised is that the contribution levied is a fee and not a tax and the learned Attorney General, who appeared for the Union of India as intervener in this as well as in the other connected appeals made a strenuous attempt to support this, position. The point is certainly not free from doubt and requires careful consideration. The learned Attorney General has argued in the first place that our Constitution makes a clear distinction ,between taxes and fees. It is true, as be t has pointed out, that there are a number of entries in List I of the Seventh Schedule which relate to taxes and duties of various sorts; whereas the last entry, namely entry 96, speaks of "fees" in respect of any of the matters dealt with in the list. Extractly the same is with regard to entries 46 to 62 in List II all of which relate to taxes and here again the last entry deals only with "fees" leviable in respect of the different matters specified in the list. It appears that: articles II 0 and 1 19 of the Constitution which deal with "Money Bills" lay down expressly that a bill will not be deemed to be a "Money Bill" by reason only that it provides for the imposition of fines. . or for the demand or payment of fees for licences or fees for services rendered, whereas a bill dealing with imposition or regulation. of a tax will always be a Money Bill. Article 277 also mentions taxes, cesses and fees separately. It is not clear, how ever, whether the word "tax" as used in article 265 has not been used in the wider sense as including all other 1040 impositions like ceases and fees; and that at least seems to be the implication of clause (28) of article 366 which defines taxation as including the imposition of any tax or impost, whether general, local or special. It seems to us that though levying of fees is only a particular form of the exercise of the taxing power of the State, our Constitution has placed fees uder a separate category for purposes of legislation and at the end of each one of the three legislative lists, it has given a power to the particular legislature to legislate on the imposition of fees in respect to every one of the items dealt with in the list itself. Some idea as to what fees are may be gathered from clause (2) of articles 110 and 119 referred to above which speak of fees for licences and for services rendered. The question for our consideration really is, what are the indicia or special characteristics that distinguish a fee from a tax proper ? On this point we have been referred to several authorities by the learned counsel appearing for the different parties including opinions expressed by writers of recognised treatises on public finance. A neat definition of what "tax" means has been given by Latham C. J. of the High Court of Australia,in Matthews vs Chicory Marketing Board(1). A tax", according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered". This definition brings out, in our opinion, the esential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer 's consent and the payment is enforced by law(2). The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected revenues of the State. As the (1) ; , 276. (2) Vide Lower Mainland Dairy vs Crystal Dairy Ltd. 1041 object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the public authority(1). Another feature of taxation it; that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. Coming now to fees, a 'fee ' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the vary abilities of different recipients to pay(2). These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. As regards the distinction between a tax and a fee, it, is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he wants certain ' services from the Government; but there is no obligation on his part to seek such services and if he does not want the services, I he can avoid the obligation. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition. though in different degrees and that it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to conceive of a tax except it be something like a poll tax, the incidence of which falls on all persons within a State. The house tax has to be paid only by those who own houses, the land tax by those who possess lands, municipal taxes or rates will fall on those who have properties within a (1) see Findlay Shirras on "Science of Public Finance", Vol. (2) Vide Lutz on "Public Finance" p. 215. 1042 municipality. Persons who do not have houses,land or Properties within municipalities, would not have to pay these taxes, but nevertheless these impositions come within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties so that there is no compulsion on them to pay taxes at all. Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent ; and this element is present in taxes as well as in fees. Of course, in some cases whether a man would come. within the category Of a service receiver may be a matter of his choice, but that by itself would not constitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied he a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advan tage, as for example in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest(1). Public interest seems to be at the basis of all impositions but in a fee it is some special benefit which the individual receives. As seligman says it is the, special benefit accruing to the indivitual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it; exists at all is an incidental result of State action(2). If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be co related to the expenses incurred by Government in rendering the services. As indicated in article 1 10 of the Constitution ordinarily there are two classes of cases where Government imposes fees upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something, which otherwise that person would not be competent to do and extracts fees either (1) Vide Findlay Shirras on "Science of Public Finance" Vol. (2) Vide Seligman 's Essays on Taxation, P. 408. 1043 heavy or moderate from that person in return for the privilege that is conferred. ; A most common illustration of this type of cases is furnished. by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incur. red by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant(1), and if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax. In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public,, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments,fees and taxes(2). Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters. Section 76 of the Madras Act speaks definitely of the contribution being levied in respect rendered by the Government; so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it (1) Vide Spligman 's Essays on Taxation, p. 409 (2) lbid, P. 406, 1044 may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned Attorney General that, in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. lf in the larger,interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not(1) It may be noticed, however, that the contribution that has been levied under section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions,, which come under the lower income group and have income less than Rs. 1,000 annually, are excluded from the liability to pay the additional charges under clause (2) of the section. These are undoubtedly some of the characteristics of a 'tax ' and the imposition bears a close analogy to income tax. But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not ear marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fund of the State and all the expenses have to be met not out of these collections but out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absences of any co relation between the expenses incurred by the Government and the amount raised by contribution under the provision of section 76 and in these circumstances the theory of a return or counter payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under section 76 is a tax and not a fee and consequently it was beyond the power of the State Legislature to enact this provision. (1) Vide Findlay Shirras on "Science of Public Finance" Vol. 1045 In view of our decision on this point, the other ground hardly requires consideration. We will indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to article 27 of the Constitution is that the word "taxes", as used therein, is not confined to taxes proper but is inclusive of all other impositions like cesses, fees, etc. We do not think it necessary to decide this point in the present case, for in our opinion on the facts of the present case, the imposition, although it is a tax, does not come within the purview of the latter part of the article at all. What is forbidden by the article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the ,Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under section 76 of the Madras Act is not the fostering or preservation of the Hindu religion or any denomination within it. The purpose is to see that religious trusts and institutions,, wherever they exist, are properly administered. It is a secular administration of the religious legislature seeks to control and the in the Act, is to ensure that the institutions that the object, as enunciated endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no qustion of favouring any particular religion or religious denomination in such cases . In our opinion, article 27 of the Constitution is not attracted to the facts of the present case. The result, therefore, is that in our opinion sections 21, 30(2), 31,55,56 and 63 to 69 are the only sections which should be declared invalid as conflicting with the fundamental rights of the respondent as Mathadhipati of the Math in question and 135 1046 section 76(1) is void as beyond the legislative competence of the Madras State Legislature. The rest of the Act is to be regarded as valid. The decision of the High Court will be modified to this extent, but as the judgment of the High Court is affirmed on its merits, the appeal will stand dismissed with costs to the respondent. Appeal dismissed. [/INST]S who was Sub Agent of a Phospate company was convicted for a contravention of the Fertiliser Control Order read with section 7(1) of the Essential Commodities Act. The fertiliser seized during investigation was sold by the order of the Court and the sale proceeds held in deposit. The trial Magistrate ordered the fertiliser to be returned to the company but S filed an appeal under section 520 of the Code of Criminal Procedure and on December 23, 1963 the Sessions Judge directed the Magistrate to deliver the amount to S upon his furnishing security and executing a bond to the satisfaction of the District Magistrate. On January 3, 1964 S produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond. The Magistrate recommended its acceptance and it was then accepted by the Additional District Magistrate. On January 11, 1964 the Magistrate directed the issuance of a pay order. S received it on the same day and deposited it with his bankers on January 13. The Company meanwhile had filed a revision petition before the High Court and asked the Sessions Judge to stay his order of December 3, 1963. The Sessions Judge passed an order of stay on January 14. 1964 which was received in the District Magistrate 's office on January 16, 1964. Even after the receipt of that order in the District Magistrate 's office a communication was sent to the trial magistrate on 20th January,1964 directing him to carry out the Sessions Judge 's order dated December 23, 1963. The High Court charged the District Magistrate and other appellants for contempt and held that contempt of the Court of the Sessions Judge had been committed because : (a) The Magistrate accepted S 's bond which was not in proper form and thus failed to carry out the Sessions Judge 's order of December 23, 1963; (b) The bond was accepted by the Additional District Magistrate whereas the Sessions Judge had ordered that the bond should be to the satisfaction of the District Magistrate; (c) The District Magistrate directed that the Sessions Judge 's order of December 23, 1963 be carried out although the Sessions Judge 's stay order had been received in his office before that. The High Court held that there had been gross delay in the communication and execution of the orders of the superior courts by the District Magistrate and the subordinates and that there was a well knit conspiracy to pay the amount in deposit to S in defiance of the orders of the superior courts. Against their conviction by the High Court the appellants came to this Court. HELD : (i) There is nothing in section 517 Criminal Procedure Code which excluded the use of an indemnity bond such as was executed in the case. The Sessions Judge did not order that the bond should be taken in 305 the name of any particular court. A bond in the name of the Government of West Bengal substantially complied with the order of the Sessions Judge as it could be enforced against S without any trouble [308 F G] (ii) In holding that the District Magistrate alone could accept the bond the High Court ignored the powers of the Additional District Magistrate under the Code of Criminal Procedure. The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by the Additional District Magistrate [308 G H] (iii) The High Court went wrong in holding that there was a conspiracy by the officials concerned. For a conspiracy to be hatched there must be some foundation of gain or purpose. The conspirators would at least know that there was nothing to be gained by delaying the orders since the money was already paid out. The stay orders were ineffective since there was nothing to stay. There was no doubt some delay but it could be dealt with in other ways than punishment for an imaginary contempt of court. L309 G H,[310 A] In the circumstances of the case the High Court was also wrong in taking into account against the appellants their failure to make an apology.[1310 B] A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises, that the condemner must be punished [310 F] [The Court, however, cautioned all concerned that orders of stay, bail, injunctions received from superior courts must receive close and prompt attention and unnecessary delay in dispatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matter born of indifference and sometimes even of contumaciousness. [311 A B] </s>
<s>[INST] Summarize the judgementvil Appeal Nos. 93794 1 of 1980. From the JUdgment and Order dated 22.2.1980 of the Madras High Court in C.R.P. Nos. 934/78, 602/77, 110/78 and 111/78 and dated 29.2.1980 in C.R.P. No. 601 of 1977. A.V. Rangam for the Appellant. section Srinivasan for the RespOndents. The following Order of the Court was delivered: These are five Civil Appeals by Special Leave against identical orders of a learned Single Judge of the Madras High Court. In relation to Civil Appeal No. 937 of 1980 the Regional Transport Authority, out of two permits, granted one permit on the route Salem to Poolambadi to the appellant State Transport Undertaking and the other to the first respondent, Safe Service Ltd. In Civil Appeal No. 938 of 1980 there was only one permit for the route Salem to Pallipatti which was granted to the State Transport Undertaking. 1n other words, it was denied to the Second respondent, R.P. David. In Civil Appeal No. 939 of 1980, on the route Salem to Poolambadi, out of two permits, one permit was granted to the State Transport Undertaking and the other to another private operator, Suganeswara Motor Service denying the permit to R.P. David respondent herein. In Civil Appeal No. 940 of 1980, on the route Salem to Erode, the objection of the State Transport Undertaking on the renewal sought by Parsu raman Pillai respondent was sustained and the permit was granted to the State Transport Undertaking, leaving the private operator aggrieved. In Civil Appeal No. 94 1 of 1980, on the route Salem to Tiruchangode, the renewal appli cation of K. Ramaswamy respondent operator was declined on objection by the State Transport Undertaking, who in turn, on its application, was granted the permit leaving the private operator K. Ramaswamy respondent aggrieved. All the aggrieved parties preferred appeals before the State Trans port Appellate Tribunal. The Tribunal identically in all these Cases took the view that since a draft scheme under Section 68C of the had been pub lished by the ' State Government and was under 711 consideration at the time when the matter was pending in appeal, sub section 1 D of Section 68 F of the Act stood in the way for any relief 'being granted to the private opera tors and thus dismissed the appeals. That provision forbids permits being granted or renewed during the period interven ing between the date of publication of any draft scheme under Section 68 C of the Act, and the date of publication of the approved or modified scheme, in favour of any person, or for any class of road transport service, in relation to an area, or route, or portion thereof, covered by such scheme. However, the proviso thereto permits that where the period of operation of a permit in relation to any area, route or portion thereof specified in the scheme published under Section 68 C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of Section 68 D of the Act. As is evident, the Appellate Authority applied sub section(1 D) of Section 68F to all the five cases and not the proviso. The High Court on revision preferred by the private operators upset the orders of the Appellate Authori ty directing the Regional Transport Authority to re consider the matter on merit. While doing so it relied on a judgment of the Madras High Court in K.A. Natarajan vs M. Naina Mo hammed & Anr., AIR 1978 Madras 280 to the effect that appeal before the Appellate Authority was maintainable even though a draft scheme within the terms of Section 68C of the Act had appeared on the scene. The State Transport Undertaking being aggrieved is before us by Special Leave. We have heard learned counsel on both sides. So far as Civil Appeal Nos. 937 939/80 are concerned, these are cases of non grant of permits to the aggrieved private operators. To their cases sub section (D) of Section 68F of the Act was clearly attracted. No permit could be granted on their asking in the presence of the draft scheme. And when none could be granted the exercise of consideration of the claim of the aggrieved. private operators on merit, was itself a futility. When the law forbade the grant of a permit in the aforesaid duration, merits of grant stood nowhere. In this view of the matter, we are inclined to take the view that the High Court was in error in accepting the related revi sion petitions of the private operators and remitting their cases to the Appellate Authority for reconsideration on merits. And as a consequence it was further in error in ordering that till such orders were passed by the Appellate Authority, both the State Transport Under 712 taking and private operators could be allowed to run, in view of the facts which glare out on the record. So far as Civil Appeal Nos. 940 941 of 1980 are con cerned, the respective private operators were functioning and had sought renewal of their existing permits on the routes in question and, on denial of the same, and corre sponding grant thereof to the State Transport Undertaking, grievance arose to those private operators to take the matter in appeal. Theirs were cases which could perhaps fall within the proviso to sub section (1 D) to Section 68F of the Act. Their permits were capable of being renewed for a limited period provided they had expired after the publica tion of the draft scheme under Section 68C of the Act. The controverted plea of the State Undertaking however is cate goric that the renewal application was rejected on 30th August, 1974 in one case and on 19th October, 1974 in the other, and on such rejection both the permits were granted to the State Transport Undertaking, and when the matter was in appeal before the Appellate Tribunal, the draft scheme was, much later, published on 4.6.1976. Mr. section Srinivasan, learned counsel appearing for the private operators in Civil Appeal NOs. 940 941 of 1980 contends that when an appeal was taken to the Appellate Authority, the provisions of subsection (1 A) of Section 134 of the Act were invoked and orders were obtained, notwith standing the expiration of the term of the permit, so as to continue the permit to be valid until the appeals before the Appellate Authority were disposed of. On that basis it is contended that the proviso to sub section (1 D) of Section 68F of the Act comes to his rescue, on the strength of orders in terms of sub section (1 A) of Section 134 of the Act, as valid permits were continuing and were capable of being renewed for a limited period, so as to cease being effective on the publication of the final scheme under sub section (3) of Section 68D of.the Act. It may not require examining the contention because it is fractionally factual. The necessary factual data has not been placed before us in the form of a counter or the suggestive orders as such. We are thus left in the dark. Still, lest we cause any injus tice to Mr. section Srinivasan 's clients, we are goaded to take the view that even though these two appeals shall also meet the same fate as that of Civil Appeal Nos. 937 939 of 1980 they shall remain subjected to an alternate that in the event of orders under sub section (1 A) of Section 134 being existent, the Appellate Authority shall examine the question and pass such orders in relation to the appeals of these private operators in accordance with law; but in case there were no such 713 orders earlier, the view of the Appellate Authority dismiss ing the appeals shall stand affirm,ed. In view of what has been said above, we allow Civil Appeal Nos. 937 939 of 1980 unqualifedly and Civil Appeal Nos. 940 941 of 1980 qualifiedly in the terms above stated. Parties shall bear their own costs in all these appeals. V.P.R. Appeals al lowed. [/INST]In Civil Appeal No. 937 of 1980 the Regional Transport Authority, out of two permits, Wanted one permit an the route Salem to Poolambadi to the appellant State Transport Undertaking and tie other to the first respondent. In Civil Appeal No. 938 of 1980 them was only one permit for the route Salem to Pallipatti, which was Wanted to the State Transport Undertaking, denying the second respondent. In Civil Appeal No. 939 of 1980, on the route Salem to Poolambadi, ant of two permits, one permit was granted to the State Transport Undertaking and the other to another private operator, denying the permit to the respondent therein. In Civil Appeal No. 940 of 1980, on the route Salem to Erode, the objection of the State Transport Undertaking on the renewal sought by the respondent was sustained and the permit was granted to the State Transport Undertaking. In Civil Appeal No. 941 of 1980, an the route Salem to Tiruchangode, the renewal application of the respondent was declined on objection by the State Transport Undertaking, who in turn, an its cation, was granted the permit. All the aggrieved parties preferred appeals before the State Transport Appellate Tribunal, which dismissed the appeals, holding that since a draft scheme under Section 68C of the had been published by the State Government and was under consideration at the time when the matter was pending in appeal, subsection (1 D) of Section 68 F of the Act stood in the way for any relief being granted to the private operators. 709 The High. Court allowing the revision preferred by the private operators, upset the orders of the Appellate Author ity, directing the Regional Transport Authority to re con sider the matters on merit against which the State Transport Undertaking approached this Court by Special Leave. The appellants the private operators in C.A. Nos. 940 941 of 1980 contendeed that Section 68(F)(1 D), proviso of the was applicable to their cases on the strength of orders in terms of Section 134(1 A), as valid permits were continuing and were capable of being renewed for a limited period, so as to cease being effective on the publication of the final scheme under .section 68D(3). Allowing C.A. Nos. 937 939 of 1980 unqualifiedly and C.A. Nos. 940 941 of 1980 qualifiedly, this Court, HELD 1. To the cases of non grant of permits to the ag grieved private operates, sub section (1 D) of Section 68F of the Act was clearly attracted .No permit could be granted on their asking in the presence of the draft scheme. And when none could be granted the exercise of consideration of the claim of the private operators on merit, was itself a futlifty. When the law forbade the grant of a permit, merits of grant stood nowhere. [711F G] 2. The private operators in C.A. Nos. 940 941 of 1980 were functioning and had sought renewal of their existing permits on the routes in question and, on denial of the same, and corresponding grant thereof to the State Transport Undertaking, grievance arose to those private operators to take the matter in appeal. Their cases fail within the proviso to sub section (1 D) to Section 68F of the Act. Their permits were capaable of being renewed for a limited period provided they had exlpired after the publication of the draft scheme under Section 68C of the Act, [712B C] 3. Even though the two appeals in C.A. Nos. 940 941 of 1980 shall also meet the same fate as that of C.A. Nos. 937 939 of 1980, they shall remain subjected to an alternate that in the event of orders under sub section (1 A) of Section 134 being existent the Appellate Authority shah examine the question and pass such orders in relation to the appeals of these private operators in accordance with law; but in case there were no such orders earlier, the view of the Appellate Authority dismissing the appeals shall stand affirmed. [712G 713A] 710 K.A. Natarajan vs M. Naina Mohammed & Ant., AIR 1978 Madras 28O, referred to. </s>
<s>[INST] Summarize the judgementN: Criminal Appeal No. 745 of 1983 From the Judgment and Order dated the 20th, 21st, 22nd, 23rd September 1983 of the Bombay High Court in Criminal Appeal No. 265 of 1983 with confirmation case No. 3/83. Ram Jethmalani, M.S. Ganesh, F. N. Ranka and Ms. Rani Jethmalani for the Appellant. K.G. Bhagat, Addl. Solicitor General, M.N. Shroff and U.A. Jadhavrao for the Respondent. The following Judgments were delivered FAZAL ALI, J. This is rather an unfortunate case where a marriage arranged and brought about through the intervention of common friends of the families of the bride and bridegroom though made a good start but ran into rough weather soon thereafter. The bride, Manju, entertained high hopes and aspirations and was not only hoping but was anxiously looking forward to a life full of mirth and merriment, mutual love and devotion between the two spouses. She appears to be an extremely emotional and sensitive girl at the very behest cherished ideal dreams to be achieved after her marriage, which was solemnised on February 11, 1982 between her and the appellant, Sharad Birdhichand Sarda. Soon after the marriage, Manju left for her new marital home and started residing with the appellant in Takshila apartments at Pune. Unfortunately, however, to her utter dismay and disappointment she found that the treatment of her husband and his parents towards her was cruel and harsh and her cherished dreams seem to have been shattered to pieces. Despite this shocking state of affairs she did not give in and kept hoping against hope and being of a very noble and magnanimous nature she was always willing to forgive and forget. As days passed by, despite her most laudable attitude she found that "things were not what they seem" and to quote her own words "she was treated in her husbands house as a labourer or as an unpaid maid servant". She was made to do all sorts of odd jobs and despite her protests to her husband nothing seems to have happened. Even so, Manju had such a soft and gentle frame of mind as never to complain to her parents in law, not even to her husband except sometimes. On finding things unbearable, she did protest, and ex 99 pressed her feelings in clearest possible terms, in a fit of utter desperation and frustration, that he hated her. Not only this, when she narrated her woeful tale to her sister Anju in the letters written to her (which would be dealt with in a later part of the judgment), she took the abundant care and caution of requesting Anju not to reveal her sad plight to her parents lest they may get extremely upset, worried and distressed. Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and she thought that a point of no return had reached. At last, on the fateful morning of June 12,1982, i.e., nearly four months after her marriage, she was found dead in her bed. As to the cause of death, there appears to be a very serious divergence between the prosecution version and the defence case. The positive case of the prosecution was that as the appellant was not at all interested in her and had illicit intimacy with another girl, Ujvala, he practically discarded his wife and when he found things to be unbearable he murdered her between the night of June 11 and 12, 1982, and made a futile attempt to cremate the dead body. Ultimately, the matter was reported to the police. On the other hand, the plea of the defence was that while there was a strong possibility of Manju having been ill treated and uncared for by her husband or her in laws, being a highly sensitive and impressionate woman she committed suicide out of sheer depression and frustration arising from an emotional upsurge. This is the dominant issue which falls for decision by this Court. Both the High Court and the trial court rejected the theory of suicide and found that Manju was murdered by her husband by administering her a strong dose of potassium cyanide and relied on the Medical evidence as also that of the chemical examiner to show that it was a case of pure and simple homicide rather than that of suicide as alleged by the defence. The High Court while confirming the judgment of the trial court affirmed the death sentence and hence this appeal by special leave. Before discussing the facts of the case, it may be mentioned that although the High Court and the trial court have gone into meticulous and minutest matters pertaining to the circumstances leading to the alleged murder of Manju, yet after going through the 100 judgments we feel that the facts of the case lie within a very narrow compass. The story of this unfortunate girl starts on 11.2.1982 when her marriage was solemnised with the appellant preceded by a formal betrothal ceremony on 2.8.8. after the marriage, Manju, for the first time, went to her parents ' house on 22.2.82 for a very short period and returned to Pune on 26.2.82. It is the prosecution case that on 17.3.82 the appellant had called Manju at Pearl Hotel where he introduced her to Ujvala and told her that she must act according to the dictates and orders of Ujvala if she wanted to lead a comfortable life with her husband. In other words, the suggestion was that the appellant made it clear to his wife that Ujvala was the real mistress of the house and Manju was there only to obey her orders. After this incident, Manju went to her parents ' house on 2.4.82 and returned to Pune on 12.4.82. This was her second visit. The third and perhaps the last visit of Manju to her parents ' house was on 25.5.82. from where she returned to Pune on 3.6.82, never to return again. The reason for her return to Pune was that her father in law insisted that she should return to Pune because the betrothal ceremony of Shobha (sister of the appellant) was going to be held on 13.6.82. The last step in this unfortunate drama was that Manju, accompanied by Anuradha (wife of A 2) and her children, returned to the flat on 11.6.82 near about 11.00 p.m. Her husband was not in the apartment at that time but it is alleged by the prosecution that he returned soon after and administered potassium cyanide to Manju. Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat and brought Dr. Lodha (PW 24) who was living at a distance of 11/2 Kms from Takshila Apartments. At the suggestion of Dr. Lodha Dr. Gandhi (PW 25) was also called both and of them found that Manju was dead and her death was an unnatural one and advised the body to be sent for postmortem in order to determine the cause of death. Ultimately, Mohan Asava (PW 30) was approached on telephone and was informed that Manju had died at 5.30 a.m. Subsequently, the usual investigation and the postmortem followed which are not very germane for our purpose at present and would be considered at the appropriate stage. The plea of the appellant was that Manju was not administered potassium cyanide by him but she appears to have committed 101 suicide out of sheer frustration. In order to prove his bona fide the accused relied on the circumstances that as soon as he came to know about the death of his wife he called two Doctors (PWs 24 & 25) and when they declared that Manju had died an unnatural death, as the cause of death was not known, and therefore the body had to be sent for postmortem, he immediately took steps to inform the police. He flatly denied the allegation of the prosecution that there was any attempt on his part to persuade Mohan Asava (PW 30) to allow the body of the deceased to be cremated. We might state that the High Court has mentioned as many as 17 circumstances in order to prove that the circumstantial evidence produced by the prosecution was complete and conclusive, Some of 13 these circumstances overlap, some are irrelevant and some cannot be taken into consideration because they were not put to the appellant in his statement under section 313 of the Code of Criminal Procedure in order to explain the effect of the Code of Criminal Procedure in order to explain the effect of the same as we shall presently show. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of this Court as also of the High Courts, The locus classicus of the decision of this Court is the one rendered in the case of Hanumant vs The State of Madhya Pradesh where Mahajan, J. clearly expounded the various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus: "The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. . it must be such as to show that within all human probability the act must have been done by the accused. " This decision was followed and endorsed by this Court in the case of Dharambir Singh vs The State of Punjab. We shall however discuss Hanumant 's case fully in a later part of our judgment. Coming now to the question of interpretation of sec. 32(1) of The Evidence Act, this Court in the case of Ratan Gond vs State of Bihar S.K. Das, J. made the following observations: 102 "The only relevant clause of section 32 which may be said to have any bearing is cl.(1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. " In the 'Law of Evidence ' by Woodroffe & Ameer Ali (Vol. II) the authors have collected all the cases at one place and indicated their conclusions thus: "To sum up, the test of the relevancy of a statement under Section 32(1), is not what the final finding in the case is but whether the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression 'any of the Circumstances of the transaction which resulted in his death '; is wider in scope than the expression 'the cause of his death '; in other words, Clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death. The words, 'resulted in his death ' do not mean 'caused his death ', Thus it is well settled that declarations are admissible only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the res gestae." (P. 952) It would appear that the solid foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows: 103 (1) Written dying declaration by the deceased in her letters, two of which were addressed to her sister Anju and one her friend Vahini, (2) The oral statements made by the deceased to her father (PW 2), mother (PW 20), Sister (PW 6) and her friend (PW 3) and also to PWs 4 and 5 showing her state of mind shortly before her death and the complaints which she made regarding the ill treatment by her husband, (3) evidence showing that the appellant was last seen with the deceased in the room until the matter was reported to the police. (4) the unnatural and incriminating conduct of the appellant, (5) the medical evidence taken alongwith the Report of the chemical examiner which demonstrably proves that it was a case of homicide, completely rules out the theory of suicide as alleged by the appellant. Mr. Jethmalani, learned counsel for the appellant, has vehemently argued that there was a very strong possibility of the deceased having committed suicide due to the circumstances mentioned in her own letters. He has also questioned the legal admissibility of the statements contained in the written and oral dying declarations. He has submitted that the so called dying declarations are admissible neither under section 32 nor under s.8 of the Evidence Act it was submitted by the appellant that the present case is not at all covered by cl.(1) of section 32 of the Evidence Acts. The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami vs Emperor where Lord Atkin has laid down the following tests: "It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and 104 where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence. It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant." These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar & Ors vs The State of Uttar Pradesh where the following observations were made: "It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence The phrase "circumstances of the transaction" is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" (See Pakala Narayana Swami vs The King Emperor AIR 1939 PC 47). The aforesaid principles have been followed by a long catena of authorities of almost all the courts which have been noticed in this case. To mention only a few important once, in Manoher Lal 105 & ors. vs The State of Punjab, the Division Bench of the Punjab & Haryana High Court observed thus: The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act. " We fully agree with the above observations made by the learned Judges. In Protima Dutta & Anr. vs The State while relying on Hanumant 's case (supra) the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximity and has observed that in some cases where there is a sustained cruelty, the proximity may extend even to a period of three years. In this connection, the High Court observed thus: "The 'transaction ' in this case is systematic ill treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence. This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within "circumstances of transaction. " "In that case the allegation was that there was sustained cruelty extending over a period of three years interspersed with exhortation to the victim to end her life." His Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. "Thus evidence 106 of cruelty, ill treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide." Similarly, in Onkar vs State of Madhya Pradesh while following the decision of the Privy Council in Pakala Narayana Swami 's case (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by section 32 of the Evidence Act thus: "The circumstances must have some proximate relation to the Actual occurrence and they can only include the acts done when and where the death was caused. Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime." In Allijan Munshi vs State, the Bombay High Court has taken a similar view. In Chinnavalayan vs State of Mad ras two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances ' observed thus: "The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as that the statement must be made after the transaction has taken place, that the 107 person making it must be at any rate near death, that the circumstances can only include acts done when and where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. " In Gokul Chandra Chatterjee vs The State the Calcutta High Court has somewhat diluted the real concept of proximity and observed thus: 'In the present case, it cannot be said that statements in the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible under section 32(1), Evidence Act. They cannot be said to be circumstances of the transaction which resulted in death. " We, however, do not approve of the observations made by the High Court in view of the clear decision of this Court and that of the privy Council. With due respect, the High Court has not properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are, therefore, of the opinion that this case does not lay down the correct law on the subject. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of cl.(1) of 32, viz. "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question" is not be found in the English law. This distinction has been clearly pointed out in the case of Rajindera Kumar vs The State where the following observations were made: "Clause (1) of section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves rele 108 vant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person 's death comes into question. It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death. And in the case of State vs Kanchan Singh & Anr. it was observed thus: "The law in India does not make the admissibility of a dying declaration dependent upon the person 's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under section 32. Evidence Act. In these circumstances, therefore, it is futile to refer to English cases on the subject. Thus, from a review of the authorities mentioned above and the clear language of s.32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and 109 character of our people, has thought it necessary to widen the sphere of s.32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3 4 months the statement may be admissible under s.32. (3) The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that s.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell tale story, the said statement would clearly fall within the four corners of s.32 and, therefore, admissible. The distance of 110 time alone in such cases would not make the statement irrelevant. This now brings us to a close consideration of the contents of the letters (Exhs. 30, 32 and 33) written by Manju to her sister and friend. We propose to examine the contents of the letters for four purposes: 1) in order to find out the state of mind and psychological attitude of Manju, 2) the nature of Manju 's attitude towards her husband and in laws, 3) the amount of tension and frustration which seems to be clearly expressed in the letters and 4) to determine Manju 's personal traits and psychological approach to life to determine if she was ever capable of or prone to committing suicide. We start with the letter dated 8.5.82 (exhibit 30) which was addressed to her sister Anju and is printed at page 191 of Part I of the printed Paperbook. The learned counsel for the appellant in order to make our task easy has supplied the English translation as also the Roman script of the original letter. On a comparison of the two versions, we are of the opinion that by and large the English translation printed in the Paperbook is a true and faithful rendering of the contents of the original letter. It is not necessary for us to extract the entire letter but we propose to extract only the relevant portions which seek to explain and illustrate the four purposes mentioned above. "All read the letter with curiosity, or it may go to anybody 's hand. I do not want to take any risk. So I have taken up today for writing, the second letter to you." The Roman scripy runs thus: (P.191) "Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin aai. Isliye maine tumhe aaj doosra khat likhneko liya. " (P.17) An analysis of the above clearly shows that Manju was a highly secretive woman and wanted to keep her personal matters or 111 secrets to herself except giving a rough idea or a passing glimpse of her feelings only to those who were very close to her as friends or near relations. The extract shows that perhaps in a spell of heavy emotions she had written a very long letter to her sister whom she regarded as her best friend but on second thought she tore it off lest it may fall in anybody 's hands and she was not prepared to take such a risk. This mentality and noble nature would be of great assistance to us in assessing the probative value of the statements made by her to her parents, sister and friend during her last visit to Beed. The second paragraph, which is extracted below, reflects her state of mind and the tension and torture which she was undergoing: "Now in this letter, when (Out of) the things coming to my mind which cannot be written, I do not understand what is to be written, The State of mind now is very much the same. Enough. You understand (me). I am undergoing a very difficult test. I am unable to achieve it. Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right. " (P.191) She has hinted that hinted that she was passing through difficult times but was trying to control herself as much as she could. She has further indicated that if things did not improve then she may have to evolve some other method. The exact words used in the Roman script runs thus: "Jab tak sambhal sakti hoon theek hai jab assambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota hai," The words "some other way will have to be evolved" clearly gives a clue to her psychotic state of mind and seem to suggest that the other method to get rid of all her troubles was to commit suicide. It is pertinent to note that in the first two paragraphs of her letter extracted above there is no indication nor any hint about the conduct of her husband. In the third para of her letter she states her feelings thus: "I thought much that since the house of my husband 's parents is at Pune, I would do this and that or the people 112 from the house of my husband 's parents are free. However, I have gradually come to know that in that house, the worth of a daughter in law is no more than that of a laborer." (P.191) The relevant portion in the Roman script reads thus: "Is ghar mein bahu ki keemat majdoor se jyada nahin hai." (P. 18) At the end or the third paragraph she repeats her sad plight thus: "My state here however is like an unclaimed person. Let it be gone. I do not like to weep (over it). When we will meet, we will talk all the things. " In the middle of the 4th paragraph she comes out with an emotional outburst by indicating that all her hopes had been shattered and because of being neglected by her husband her health was adversely affected. In the Roman script she used the following words: "Sachmuch kya kya sapne rahte hain kuarepanmein, magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati mujhse bahut pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi. Tabiyat par uska asar dikh raha hai." (P. 19 20) In the latter part of the 8th paragraph while giving vent to her feelings she states thus: "Now Manju is moving, it is necessary to tell that she is alive. You don 't tell anybody about this letter. I felt like telling all this to Bhausab. What, however, is the use of making him sorry. One should test one 's fate, whatever may be the result. I want to tell you all. But I cannot tell. " The words used by her show her affectionate and secretive nature and the precaution taken by her not to tell any thing to her father, who is addressed as 'Bhausab '. The Roman script of the relevant portion runs thus: 113 "Dil tu karta tha Bai Bhau Sahab ko sab bataon, magar unko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai magar bata nahin sakti. " (P.22) These extracts throw a flood of light on the nature, character, mental attitude, suffering and shock of the deceased. One thing which may be conspicuously noticed is that she was prepared to take all the blame on her rather than incriminate her husband or her inlaws. The other portions of the letter (Ex.30) are not at all germane for the purpose of this case. Summarising the main contents of the letter, the following conclusions or inferences follow: (a) Manju was a highly emotional and sensitive woman, (b) She got the shock of her life when due to ill treatment by her husband and in laws she found that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed and disappointed woman, (c) she had been constantly ill treated by her in laws and her position in the house was nothing but that of an unpaid maid servant or a labourer, (d) she wanted to keep all her worries and troubles to herself and on no account was she prepared to disclose them to her parents or even to her sister, lest they also get depressed and distressed. (e) no serious allegation of cruelty had been made against the husband personally by her and she thought that she herself should suffer out of sheer frustration. Now we shall examine Ex.32 which is a letter dated 8.6.82 written by Manju to her sister Anju. This was perhaps her last letter to Anju and is very important and relevant for decision of the case. The letter begins with the words "I am happy here. " In the second paragraph she expresses her feelings as follows: "Shobhabai 's 'Sadi ' programme is fixed on 13th I do not know why there is such a dirty atmosphere in the house ? It is felt every moment that something will happen. 114 Everybody is in tension. No work has been started in the house. Let it go. I am out of mind. Still I am used not to pay need to it. Ala what about your law." (P.195) So far as the first part is concerned, the 'dirty atmosphere ' about which she speaks is totally unrelated to anything done by the husband or of any cruel treatment by him; it merely refers to the tension prevailing in the family as the 'Sadi ' (Kohl) was fixed on 13.6.82. Her anger is not so much towards her husband or herself as for the manner in which things were being done. She complained that no work had been started and being the eldest daughter in law of the family she felt it her duty to see that all arrangements were complete. It was conceded by the Additional Solicitor General that this portion of the letter does not refer to any ill treatment by the husband or his parents but relates only to the defective and unsatisfactory arrangements for such an important function. The relevant portion of the 3rd paragraph is also more or less innocuous but in between the lines it contains a tale of woe, a spirit of desperation and frustration and a wave of pessimism. the actual vernacular words are "Mera to aane ka kya hota hai dekna hai Buajike yahan se khat aur aaya to shahid chance mil sakta hai. Magar meri mangal ke dulhan ke roop mein dekhne ki bahut ichha hai. Dekhenge. " She was naturally apprehending some thing and was not very hopeful of going to her father 's place. This being her last letter, and that too a short one, it gives a clear inkling of the manner of how her mind was working. She did not lay any blame on her husband or anybody else but still she was afraid that something was going to happen and that she may not be able to go to her father and see the marriage of her sister in law for which preparations were being made. In our opinion, these words are extremely prophetic and seem to indicate that by that time she had almost made up her mind to end her life instead of carrying on her miserable existence. As brevity is the soul of wit, she directly hinted that she may not be able to meet her father or any body naturally because when a life comes to an end there can be no such question. 32, though a short letter, depicts her real feeling and perhaps a tentative decision which she may have already taken but did not want to disclose for obvious reasons. 115 Then we come to Exh.33 which is a letter dated 23.4.82 written by the deceased to her close friend, Vahini and which shows her exact feelings, changing, mood and emotions. This is the only letter where she had made clear complaints against her husband and the relevant portions may be extracted thus: "Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should have been near with me. All persons here are very good. Everybody is loving. Still I feel lonely. One reason is that, in the house there are many persons and they are elder to me and such I do not dare to do any work independently. Every time some fear is in mind which leads to confusion. God knows when I can come there ? The point on which we had discussion is as it was. Vahini. I swear you if you talk to anyone. I am much in pains. But what else can I do ? No other go than that, and the same mistake is done again and again by me. It is that I go ahead and talk for ten times, then I become angry if he does not speak. Vahini, there is nothing in my hands except to weep profusely. At least till now this man has no time to mind his wife, let it be, but Vahini, what shall I do?" (P.196) "Who knows what hardships be fall on me, so long I am alive. Why the god has become (unkind) towards me." (P. 197) "Since yesterday I have made up my mind not to speak a word even, till he speaks (to me). Let me see to what extent I control my feelings. Vahini, you also pray to god for me whether a girl like me should be put to such a difficult test. Vahini, I am so much afraid of him that the romantic enchantment during first 10 15 days after marriage has become like a dream." "I cannot dare to ask him whether his clothes be taken for wash. At present my status is only that of a maid servant without pay as of right. 116 Why so much indifference towards me only ? Vahini, I, feel to weep in your arms. Vahini come to Pune early. On getting up every morning I feel he will speak today but every day I am hoping against hope. Vahini, what will happen ? Now there is no ray of hope. Day before yesterday I became excited and uttered in rage. "You hate me, was I unable to get food in my parent 's house ? He was irritated due to word 'hate '. He said. if you talk more like this, I will be very bad man. If this goes on, I will not come to sleep. That means not permitted (to cry) also. How he says to me, are you tired of me so early ? What shall I say to such a man. Once I feel that he does not count me. On second thought, I feel he cares me much. But due to moody nature, it will take time to pacify the same. On the day on which self pride is lessened, no other person will be more fortunate than me But till that day it is not certain that I will be alive." (P. 197) In the second paragraph she starts by giving an indication that she was feeling uneasy and would have very much liked to have Vahini with her. In the third paragraph she clearly states that all persons in her father in laws ' place were very good and loving but due to a number of persons in the house she did not get a chance to work independently. The last line "every time some fear is in mind which leads to confusion" is the starting point of the first symptom of her invisible fear which she was unable to locate. The fourth paragraph is rather important which shows that whatever her feelings may have been she sought an oath from Vahini not to talk to anyone regarding the matters which she proposed to write in the said letter. She says that she was much in pains and hints that she weeps profusely and the reason given by her for this is that she went on committing mistakes and talked to her husband many times but his silence was extremely painful which made her angry. In the last portion, for the first time, she makes a direct complaint against her husband to the effect that he had no time to look after her (Manju). In the same paragraph she describes her hardships and complains 117 why God was unkind to her. She further expresses her sentiments that the romantic enchantment which she experienced during the first few days of her marriage had completely disappeared and looks like a lost dream or a "Paradise lost". Then she describes her plight as being a maid servant without pay. She again complains of indifference towards her. Ultimately, she hopes against hope that some day he will speak to her and discuss the problems but there is no response. Later, she refers to a particular incident and goes to the extent of telling him that he hates her. This seems to have irritated the husband who resented this remark very much. Again in the same breath towards the end of the paragraph, while she says that her husband does not care for her yet she at once changes her mind and says that he cares for her much but due to his moody nature it will take time to pacify him. Her feelings again take a sudden turn when she says that when her husband 's self pride is lessened none would be more fortunate than her. The next line is rather important because she hints that till the said heyday comes perhaps she might not be alive. A careful perusal of this letter reveals the following features (1) after going to her marital home she felt completely lost and took even minor things to her heart and on the slightest provocation she became extremely sentimental and sensitive. (2) She exhibited mixed feelings of optimism and pessimism at the same time. (3) it can easily be inferred that she did not have any serious complaint against her husband but she became sad and morose because she was not getting the proper attention which she thought she would get. (4) There is no indication that she expected any danger from her husband nor is there anything to show that things had come to such a pass that a catastrophe may have resulted. There may be certain concealed and hidden hints which she was not prepared to reveal in writing : what they were is not clear. (5) A close reading and analysis of the letter clearly shows at least two things 118 (a) that she felt extremely depressed, (b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide. This possibility is spelt out from the various letters which we have extracted. Indeed, if this was not so how could it be possible that while not complaining against her husband she gives a hint not only to Vahini but also to Anju that she might not live. She mentions of no such threat having been given to her by husband at any time or anywhere. (6) The contents of the letter lead us to the irresistible conclusion that Manju felt herself lonely and desolate and was treated as nothing but a chattel or a necessary evil ever since she entered her marital home. Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of her married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress our opinion, we would like to cite some passages of an eminent psychiatrist, Robert J. Kastenbaum where in his book 'Death, Society and Human Experience ' he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book : "The fact is that some people who commit suicide can be classified as psychotic or severely disturbed. (P.242) If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a relevant variable to consider. (P.243) 119 And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness. (P.243) "Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle like struggle. (P.243) The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death. (P.245) The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow. (P.245) Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress." (P.251) "People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect. xx xx xx The victim of suicide may also be the victim of self expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge though suicide However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated. If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made Warren Breed and his colleagues found that a sense of 120 failure is prominent among many people who take their own lives." (P.252) The above observations are fully applicable to the case of Manju. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that Manju was not only a sensitive and sentimental woman but was extremely impressionate and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book 'The Melancholy Marriage ' observe that "Studies of attempted suicides cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients interactions with others in their environment were considered." (P.5) Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced with disappointment or find their environment so unhealthy of unhappy, they seem to loose all the charms of life. The authors while describing these sentiments observe thus : "Hopelessness ', 'despair ', 'lousy, and 'miserable ' draw attention to the relationship of the depressed person to his environment. The articulate depressed person will often also struggle to put into words the fact that not only does there appear to be no way forward and thus no point to 121 life but that the world actually looks different." (P.7) Coleridge in `Ode to Dejection ' in his usual ironical manner has very beautifully explained the sentiments of such persons thus : "I see them all so excellently fair I see, not feel, how beautiful they are ;" At another place the author (Hinchliffe, Hooper & John) come to the final conclusion that ruptured personal relationship play a major part in the clinical picture and in this connection observed thus : "Initially we applied these ideas to study of cases of attempted suicide (Roberts and Hooper 1969) and although we did not assume that they were all necessarily depressed, we looked for distal and proximal causes for their behaviour and found that ruptured personal relationships played a major part in the clinical picture." (P.50) The observations of the authors aptly and directly apply to the nature, mood and the circumstances of the unfortunate life of Manju which came to an end within four months of marriage. We have pointed out these circumstances because the High Court has laid very great stress on the fact that the evidence led by the prosecution wholly and completely excludes the possibility of suicides and the death of Manju was nothing but a dastardly murder. We shall now deal with the next limb of the oral dying declaration said to have been made by the deceased to her parents and friends. Some of the statements which have a causal connection with the death of Manju or the circumstances leading to her death are undoubtedly admissible under s.32 of the Evidence Act as held by us but other statements which do not bear any proximity with the death or if at all very remotely and indirectly connected with the death would not be admissible. Unfortunately, however, the two kinds of statements are so inextricably mixed up that it would 122 take a great effort in locating the part which is admissible and the one which is not. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. This now takes us to a consideration of the evidence of the witnesses concerned which read together with the letters form a composite chain of evidence regarding the causes or the circumstance relating to the death of the deceased. According to the prosecution, the last visit of Manju to Beed was on 25.5.82 where she stayed till 3rd of June 1982 when she was brought back by the father of the appellant. In other words, the narration of the troubles and tribulations of Manju was made only during her last visit and not earlier. These statements are alleged to have been made to Rameshwar Chitlange (PW 2), Manju 's father, Rekha (PW 3), who was Manju 's friend and referred to as `Vahini ' in the letter Ex.33, Anju (PW 6), Manju 's sister to whom letters (Exhs. 30 and 32) were written, and PW 20, Bai, the mother of Manju. Meena Mahajan (PW 5) was also examined but we are not in a position to rely on the evidence of this witness for two reasons (1) she does not figure anywhere in any of the letters written by Manju, and (2) nothing was told to her by Manju directly but she was merely informed regarding the incidents mentioned by PW 2. This sort of indirect evidence is not worthy of any credence. 123 We would first deal with the evidence of PW 2, Rameshwar Chitlange (Manju 's father). We shall give a summary of the relevant part of his evidence because the other parts relate to how the marriage was performed and the spouses had gone for honeymoon which are not germane for our purpose. The witness states that when Manju came to Beed with her maternal uncle he found her somewhat uneasy and on making enquiries whether she was happy at her husband 's house she told him that she was not very happy with her husband since she noticed that her husband was not very much pleased with her and in fact hated her. These facts are the result of the usual domestic quarrels between a husband and a wife, hence this statement cannot be said to be so directly or proximately related to the death of Manju so as to be admissible under s.32 of the Evidence Act. It appears from his evidence that even after hearing the narration from his daughter he advised her to get herself adjusted to the situation and to the atmosphere of her new marital home. Apart from being inadmissible this does not appear to be of any assistance to the prosecution in proving the case of murder alleged against the appellant. The witness goes on to state that as the grandfather of the accused had died he visited Pune, accompanied by his wife and Manju. Since this was more or less a formal visit for expressing his condolences to the bereaved family, he left Manju at the house of the accused. The only part of his evidence on which reliance was placed by the prosecution is that he had noticed Manju very much disturbed and uneasy and requested Birdichand (father of the accused) to allow him to take Manju to the house of Dhanraj, which he did. On reaching the house of Dhanraj, the witness states that Manju completely broke down and started weeping and fell in the grip of her mother. This state of Manju, which the witness saw with his own eyes, would undoubtedly be primary evidence of what he saw and felt though not in any way connected with section 32 of the Evidence Act. But from this circumstance alone it cannot be safely inferred that Manju apprehended any serious danger to her life from her husband. The witness further states that he informed Birdichand about the grievances made to him by Manju. The appellant, Sharad, was sent for and he quietly listened to his father but the witness felt that whatever Birdichand may have told to his son that does not appear to have made any serious impact on him (appellant) and he left the 124 room. This is purely an opinion evidence and therefore not admissible. Even so, the accused perhaps did not think it necessary to enter into arguments with his father in law in the presence of his father and that is why he may have kept quiet. From this no inference can be drawn that he was in any way inimically disposed towards Manju or was animated by a desire to take her life. The witness further stated that he found that Manju was weeping every now and then during the night at Dhanraj 's place. Later, in the morning the witness took Manju back to her in laws house but his grievance was that Sharad did not care to meet or talk to them. These are however small circumstances which are incidents of any married life and from this no adverse inference can be drawn against the appellant. Another complaint made in the statement was that when he made a voluntary offer to solve the difficulties of Sharad, the appellant curtly told him that he did not want to get his difficulties solved by other persons and at this attitude of Sharad the witness was naturally very much disappointed. This conduct of the accused also is not of such an importance as to lead to any adverse inference. Some persons who have a keen sense of pride and self respect do not like anyone else not even their father or father in law to interfere in their personal matters. Perhaps this may be the reason for the somewhat cool and curt attitude of Sharad but that proves nothing. In fact, experience shows that where elders try to intermeddle in the affairs of a husband and his wife, this creates a serious obstruction in the relations of the married couple. Nothing therefore, turns upon this statement of PW 2. Again, the witness repeats that when Manju came down to see him off he noticed her weeping all the time. To cut a long story short, the witness came back to Beed and sent his son Pradeep to bring Manju from Pune to Beed. On reaching there he was informed that Manju and Sharad had gone on a holiday trip to Mysore, Triupati, etc. After the return of Pradeep to Beed, Dhanraj informed the witness that Sharad and Manju had returned to Pune and therefore, he sent his son, Deepak to Pune to bring back Manju. When Manju arrived at Beed, the witness found her totally disturbed and frightened. This statement would be admissible as primary evidence. What probative value should be attached to this small matter is a different issue. 125 Thereafter, the witness was told the incidents by his wife (PW 20) which had been narrated to her by Manju but that is of no value so far as this witness is concerned as the main evidence would be that of PW 20. However, in order to save the marriage from a a total break down the witness was extremely worried and therefore, he called one Hira Sarda, a close acquaintance of the family of accused, who told him (witness) that he was going to Hyderabad and after 4th 5th June some solution would be found out. At the same time, he advised the witness not to make any haste in sending back Manju to Pune. On the 2nd June 1982, Birdichand arrived at Beed and requested the witness to send Manju to Pune because the marriage of Birdichand 's daughter was fixed for 30th June 1982 and the Kohl (betrothal) ceremony was to be held on the 13th of June so that Manju may be present at the ceremony and look after the arrangements. The witness says that after hearing this he apprised Birdichand that Manju was extremely frightened and that she was not ready to go back to her husband 's house nor was he (witness) willing to send her back so soon. He suggested to Birdichand that as the marriage of his nephew was to be celebrated at Beed on 25th June, Sharad would come to attend the marriage and at that time he can take Manju with him. Birdichand, however, persuaded the witness to send back Manju and assured him that no harm of any kind would come to her and he also promised that Manju would be sent back to Beed, The most important statement in the evidence of this witness may be extracted thus : "I was having this talk with Birdichand on the first floor of my house. Manju heard this from the staircase, called me out in the ground portion of the house and told me that she was not in a position to go to the house of the accused. Since she was in a state of fear or extreme fear in her mind and she also told me that she was not prepared to go to the house of the accused. ** Therefore, after the meals I sent Manju with Birdichand. Birdichand, Manju and Kavita then left Beed by about 12.30 p.m. by bus on 3rd of June, 82. At that 126 time Manju was constantly weeping right from inside my house till the bus left. She was also in a state of extreme fear." (P. 197) The witness has said many times in his statement that Manju was always weeping and crying and the final crisis came when on hearing the talks between him and Birdichand she called him from the staircase and told him that she was not prepared to go to her husband 's house as she was in a state of extreme fear. It is difficult to believe this part of the evidence of the witness for two reasons (1) When the talks were going on between two elders would Manju be sitting near the staircase to listen their talks and call her father and give vent to her feelings and her decision not to go back to Pune at any cost. This conduct appears to be directly opposed not only to the tenor and spirit of the letters (Exhs. 30, 32 and 33) which we have discussed but also against her mental attitude and noble nature. (2) As indicated by us while discussing the letters could a woman who was so affectionate and reserved in nature and who would not like the contents of her letters to Anju and Vahini to be disclosed to her parents lest they feel worried, disturbed and distressed suddenly turn turtle, forgetting her sentiments not to worry them and come out in the open to declare before all by weeping and crying that she was in a state of extreme fear, seem to us to be inherently improbable. Once a mature woman develops a particular nature or habit or a special bent of mind she is not likely to forgo her entire nature in this case, her affection and love for her parents and the feeling of not doing anything which may cause distress or worry to them, and start telling her woeful story to everyone whom she met. Manju must have known fully that her husband 's sister 's 127 betrothal ceremony was to be held on 13th June and if her father in law was making request after request to take her to Pune to attend the said ceremony, and had given all sorts of assurances that no harm would come to her, would she still call her father and express her state of fear and go on repeating what she had already said. This seems to us to be an afterthought or an embellishment introduced in the evidence of the witness so as to add credence to the prosecution story and provide an imaginary motive for the murder of the deceased. Indeed, if she was bent on resisting all attempts of her father in law to take her to Pune she would not have gone at all. On the other hand, her subsequent conduct of ultimately going to Pune and making arrangements for the Kohl ceremony belies the story put forward by the witness. It is extremely difficult for a person to change a particular bent of mind or a trait of human nature unless there are substantial and compelling circumstances to do so. In the instant case, we find no such compelling circumstance even taking the statement of the witness at its face value. To take the other side of the picture, the witness says that when he reached Pune on 12.6.82 and visited the place where Manju had died, he found Sharad sleeping or lying on the cot and on seeing him he immediately started crying vigorously and making a show of the grief and shock they had received. The exact statement of the witness may be extracted thus : "I could notice that Sharad who was sleeping or lying on the cot in the said room on seeing me entering the room immediately started crying vigorously giving jerks to his body and making show of the grief and the shock he had received. Ultimately I asked him as to what had happened to Manju when he told me that since 11th it was the day of his marriage with Manju, he and Manju were in joyest mood. According to him they went to bed by about 12 midnight and he had a sexual act with Manju in such a manner which they never had enjoyed before. Ultimately according to him when they completely felt tired and exhausted both of them fell asleep. According to him by about 5.30 a.m. when he got up and after visiting the urinal, when returned to the room he found that Manju had not got up as usual since according to him, she used to wake up at the same time he used to wake up and so he 128 went near Manju and called her out when he found her dead. " It is rather strange that while the witness took whatever his daughter told him at its face value without making any further enquiry, he immediately jumped to the conclusion that the grief and tears in the eyes of his son in law were fake and that he was merely shedding crocodile tears. There is nothing on the record nor in the evidence to show any circumstance which may have led the witness to arrive at this conclusion. On the other hand, if the conduct of the appellant, as described by the witness, is seen from a dispassionate angle, it was quite spontaneous and natural because by the time the witness reached Pune the postmortem had been done and the death of Manju had come to light long before his arrival. There was no reason for the witness to have presumed at that time that Sharad must have committed the murder of the deceased. There were no materials or data before him which could have led him to this inference. This clearly shows one important fact, viz., that the witness was extremely prejudiced against Sharad and if one sees anything even the truth with a pale glass everything would appear to him to be pale. The second part of the statement made by the witness regarding having sexual intercourse near about midnight seems to us to be inherently improbable. However, educated or advanced one may be, it is against our precious cultural heritage for a person to utter such things in a most frank and rudimentary fashion to his father in law. We are clearly of the opinion that the story of having a sexual act, etc., was a pure figment of the imagination of the witness and this, therefore, goes a long way off to detract from the truth of the testimony of this witness. Furthermore, at page 175 the witness admits that during the life time of Manju, Anju and Rekha told him about the receipt of the letters from Manju but they never referred to the nature or the contents of the letters. This is a correct statement because both Anju and Vahini had been requested by Manju not to disclose to her parents the state of affairs or the tortures which she was suffering and perhaps they kept the sanctity of oath given to them by the deceased. This is an additional circumstance to show that even when Manju visited Beed for the last time she might tell something to her own sister Anju or to Vahini but she would never dare 129 to disclose all the details and put all the cards on the table before her parents a step which she deliberately desisted from coming into existence. We can understand the evidence of the witness that Manju was worried, distressed and depressed. Sometimes out of natural love and affection parents make a mountain of a mole hill and this is what seems to have happened in this case. Great reliance was placed by the Additional Solicitor General, on behalf of the respondent, on the relevance of the statements of PWs 2, 3, 6, and 20. He attempted to use their statements for twin purposes firstly, as primary evidence of what the witnesses saw with their own eyes and felt the mental agony and the distress through which the deceased was passing. Secondly, he relied on the statements made by the deceased (Manju) to these witnesses about the treatment meted out to her by her husband during her stay at Pune and furnishes a clear motive for the accused to murder her. As regards the first circumstance, there can be no doubt that the said evidence of the witnesses would undoubtedly be admissible as revealing the state of mind of the deceased. This would be primary evidence in the case and, therefore, there cannot be any doubt about the relevancy of the statement of the witnesses in regard to this aspect of the matter. As to what probative value we should attach to such statements would depend on a proper application of the context and evidence of each of the witnesses, As regards the second aspect which is in respect of what the deceased told the witnesses it would only be admissible under section 32 of the Evidence Act as relating to the circumstances that led to the death of the deceased. In view of the law discussed above and the propositions and the conclusions we have reached, there cannot be any doubt that these statements would fall in the second part of s.32 of the Evidence Act relating directly to the transaction resulting in the death of Manju, and would be admissible. Before, however, examining this aspect of the question we might at the outset state that the character, conduct and the temperament of Manju, as disclosed or evinced by the admitted letters (Exhs. 30,32 and 33), which demonstrate that it is most unlikely, if not impossible, for Manju to have related in detail the facts which the aforesaid witnesses deposed. If this conclusion is correct, then no reliance can be placed on this part of the statement of the aforesaid witnesses. We now proceed to discuss the evidence of PWs 3,4, 5, 6 and 130 20. As we have discussed the evidence of PW 2, father of Manju, it will be more appropriate to discuss now the evidence of PW 20 (Manju 's mother) from whom most of the matters spoken to by PW 2 were derived. Her evidence appears at page 305 of part I of the Paper Book. It is not necessary for us to go into those details which have already been deposed to by PW 2. The most relevant part of her evidence is about the visit of Manju to Beed on 2.4.82. She states that during this visit she found Manju cheerful and happy and she did not complain of anything during her stay for 8 10 days. In answer to a question whether she enquired from Manju or had any talk with her during that period she stated Manju told her that her husband was not taking any interest in her and used to leave the house early in the morning and return late at night on the excuse that he was busy with his factory work. It may be stated here that the accused had a chemical factory where he used to work from morning till late at night. The witness further deposed that Manju informed her that there was no charm left for her at the house of her husband. These facts however run counter to her first statement where she stated that Manju was quite happy and cheerful as expected of a newly married girl. Even so, whatever Manju had said does not appear to be of any consequence because she (the witness) herself admits that she did not take it seriously and told Manju that since she had entered a new family it might take some time for her to acclimatise herself with the new surroundings. She also warned Manju against attaching much importance to such matters. Thereafter she goes on to state that near about the 11th or 12th of April 1982 she (PW 20) alongwith her husband left for Pune to offer condolences on the death of the grand father of the appellant. She then proceeds to state that during their second visit to Pune on the 11th or 12th of May 1982 she stayed with her brother, Dhanraj and that while she was there Manju hugged at her neck and having lost her control, started weeping profusely. She further states that Manju requested her to take her to Beed as it was not possible for her to stay in her marital house where she was not only bored but was extremely afraid and scared. On the next day she (PW 20) met the mother of the appellant and told her plainly that she found Manju extremely perturbed, uneasy and scared and that she was experiencing tremendous pressure and restrictions from her husband. But the mother of the appellant convinced her that there was nothing to worry about, 131 and everything will be alright. The witness then narrated the fact to her husband and requested him to take Manju with them to Beed. PW 2 then sought the permission of Birdichand to take Manju to. Beed but he told him that as some guests were to visit him, he (PW 2) can send somebody after 4 5 days to take Manju to Beed. It may be mentioned here that the details about the sufferings and the mental condition of Manju was not mentioned by this witness even to her husband (PW 2) as he does not say anything about this matter. Further, her statement is frightfully vague. As already indicated that the letters (exhibit 30, 32, 33) clearly show that Manju never wanted to worry or bother her parents about her disturbed condition, it appears to be most unlikely that on the occasion of the death of her grandfather in law she would choose that opportunity to narrate her tale of woe to her mother. This appears to us to be a clear embellishment introduced by the prosecution to give a sentimental colour to the evidence of this witness. Ultimately, on May 25, 1982 Deepak brought Manju to Beed and this time she was accompanied by her cousin, Kavita. Here again, she states that on her arrival she found Manju extremely disturbed and under tension of fear and Manju was prepared to make a clean breast of all her troubles. However, as Kavita was there and did not give any opportunity to Manju to meet her mother alone, she (Kavita) was sent out on some pretext or the other. Thereafter, Manju told her mother that she was receiving a very shabby treatment from her husband and while narrating her miserable plight she told her about two important incidents which had greatly upset her (1) that she happened to come across a love letter written by PW 37, Ujwala Kothari to her husband which showed that the appellant was carrying on illicit relations with PW 37, (2) that on one occasion the appellant told Manju that he was tired of his life and did not want to live any more and, therefore wanted to commit suicide. Despite Manju 's enquiries as to why he wanted to commit suicide, he did not give any reason. She then informed her mother when this talk was going on, she (Manju) herself volunteered to commit suicide. Thereafter, Sharad put forth a proposal under which both of them were to commit suicide and they decided to write notes showing that they were committing suicide. On hearing this plan from Sharad, Manju told him that she was not inclined to commit suicide as she had not lost all hope of life and that she had expressed her desire to commit suicide only because he had said that he would do so. PW 20 would have 132 us believe that while in one breath she agreed to the suicide pact yet the next moment she made a complete volte face. This is hard to believe having regard to the nature of the temperament of Manju. The two statements said have been made by Manju to her mother appear to be contradictory and irreconcilable and smack of concoction. According to Manju, Sharad then prepared two notes one addressed to his father and another to his father in law and asked Manju to do the same but she refused to do anything of the sort. The witness admitted that she was not told as to what had happened to the notes written by the appellant. All this story of a suicidal pact seems to us nothing but a fairy tale. There is no mention nor even a hint in the letters (Exhs. 30, 32, 33) written by Manju about the aforesaid suicidal pact and the story narrated by the witness before the trial court, nor was the note produced in the court. This appears to us to be a make believe story and was introduced to castigate the appellant for his shabby treatment towards Manju. Another intrinsic circumstance to show the untruth of this statement is that although PW 2 was apprised of these facts yet he never mentioned them to Birdichand particularly when he was insisting that Manju should be sent back to Pune for attending the betrothal ceremony of his daughter Shobha. Indeed, if this fact, which is of very great importance so far as the lives of both the husband and the wife are concerned, would have been there, the first thing which PW 2 would have done is to tell Birdihand that matters had reached such a stage as to leave no doubt that her daughter was in an instant fear of death and it was impossible for him to allow his daughter to go to Pune where Sharad was bent on forcing her to commit suicide or even murder her, more particularly because PW 20 admits in her evidence that as all the things she had learnt from Manju were serious, she had informed her husband about the same who agreed with her. Apart from this grave incident, the witness deposed to another equally important matter, viz., that on the Shila Septami day, the appellant rang up his mother to send Manju alongwith Shobha to a hotel (Pearl Hotel), as has been deposed to by other witnesses) because he wanted to give a party to his friends. As Shoba was not present in the house, Manju 's mother in law sent her alone, in 133 a rickshaw to the hotel. On reaching the hotel she did not find any other person except a girl who was introduced by her husband as Ujavla Kothari. The most critical part of the incident is that the appellant is alleged to have informed Manju that she should take lessons from Ujvala as to how she should behave with him and also told her that Ujvala knew everything about him and he was completely in her hands. Subsequently the appellant went away and Ujvala told her that the appellant was a short tempered man and she should talk to him only if and when he wanted to talk to her. She (Ujvala) also told Manju that the appellant was completely under her command and she was getting every bit of information about the incidents happening between the husband and the wife. Finally, she was apprised of the fact by Ujvala that she and Sharad were in love with each other. Manju is said to have retorted and protested to Ujvala by saying that she was not prepared to take any lessons from her regarding her behaviour towards her husband as she (Manju) was his wedded wife while Ujvala was only a friend. Manju also told her mother that these facts were narrated by her to the appellant and accused No. 2. As a result of this incident, Manju became a little erratic which attracted double cruelty towards her by her husband and made her extremely scared of her life and in view of this development she requested her mother not to send her back to the house of the accused. One point of importance which might be noticed here and which shows that whatever be the relations with her husband and Ujvala, the picture presented by the witness is not totally correct because if such a point of no return had already been reached, there was absolutely no question of Birdichand and sending for the appellant and arranging a trip to Ooty, Mysore and other place nor would have Manju agreed to go to these places. The witness further stated that as soon as Manju came to know that Birdichand had come to take her away she was shocked and continuously kept saying that she was extremely afraid of going to her husband 's house and that she should not be sent back. The behavioral attitude of Manju depicted by the witness seems to us to be absolutely contradictory to and not at all in consonance with her temperament, frame of mind, psychological approach to things and innate habits. That is why no reference had been made even directly or indirectly in any of the letters written by 134 Manju, and she had expressly requested both Anju and Vahini not to disclose anything to her parents lest they may get worried and. distressed on her account. In other words, Manju was a woman who despite her troubles and tribulations, sufferings and travails, anxiety and anguish would never have thought of narrating her woeful story to her parents and thereby give an unexpected shock to them. This feeling is mentioned in the clearest possible terms in the letters (Exhs. 30, 32, 33) which we have already discussed. There is no reference at all in any of the letters regarding suicidal pact or the illicit relationship of her husband with Ujvala. Another important fact which the High Court has missed is that even according to the statement of this witness, the appellant had asked his mother to send Shobha along with Manju to the hotel and at that time he could not have been aware that Shobha would not be available. Indeed, if he had an evil intention of insulting or injuring the feelings of Manju by keeping Ujvala there he would never have asked his mother to send Shobha also because then the matter was likely to be made public. This is another inherent improbability which makes the whole story difficult to believe. Despite these serious developments both PW 2 and 20 tried to convince Manju to accept the assurances given by Birdichand that no harm would come to her and if anything might happen they will take proper care. We find if impossible to believe that the parents who had so much love and affection for their daughter would, after knowing the circumstances, still try to take the side of Birdichand and persuade her daughter to go to Pune. Rameshwar (PW 2) should have told Birdichand point blank that he would not send Manju in view of the serious incidents that had happened, viz., the suicidal pact, the cruel treatment of the appellant towards Manju, the constant fear of death which Manju was apprehending, the illicit relationship between the appellant and Ujvala, and the strong resistance of his daughter who was not prepared to go Pune at any cost and was weeping and wailing all the time. On the other hand, knowingly and deliberately they seem to have thrown their beloved daughter into a well of death. The fact that Manju 's parents tried to console her and believed the assurance of Birdichand knowing full well the history of the case shows that any statement made by Manju to her parents was not of such great consequence as to harden their attitude. This is yet another intrinsic circumstance Manju to which negatives the story of suicidal pact and the invitation to 135 come to the Pearl Hotel and the manner in which she was insulted in the presence of Ujvala. There is no doubt that relations between the appellant and Manju were extremely strained, may be due to his friendship with Ujvala, she may not have felt happy in her marital home as she has clearly expressed in her letters but she did not disclose anything of such great consequence which would have shocked the parents and led them to resist her going to Pune at any cost. This makes the version given by PWs 2 and 20 unworthy of credence. We now proceed to take up the evidence of PW 6, Anju, the sister of Manju. The statement of this witness is more or less a carbon copy of the evidence of PW 20 which has been discussed above and, therefore, it is not necessary to consider her evidence in all its details. So far as the first visit is concerned, she fully supports her mother that Manju was very happy as was expected of a newly married girl. When Manju came to Beed around 2nd April 1982 she stayed there for 8 10 days and during that period the witness noticed that she was somewhat dissatisfied and complained that her husband used to return late at night. She also complained against the callous attitude of the other members of her husband 's family. She also introduced the story of Ujvala Kothari and corroborated what PW 20 had said which we have discussed above. She also refers to the said suicidal pact and then to the fact that Birdichand had come to take away Manju to Pune so that she may be able to attend the betrothal ceremony of Shobha. Then she deposes to an incident which appears to be wholly improbable. According to her, on the 3rd of June, 1982, PW 2 invited his two friends, Raju and Rath, for lunch at which Birdichandi was also present, and told them that Manju was not prepared to go to Pune as she was afraid to go there but Birdichand, alongwith his two friends, assured him that nothing would happen. We do not think that in the course of things P 2 would be so foolish as to let the secret matters of the house known to others than the parties concerned. Thereafter the witness proves the letters (Exhs. 30 and 32). She stated one important statement to the effect that on some occasions Manju had a talk with her mother in her presence. Although Manju had requested Anju not to disclose anything to her parents yet everything was made known to them, During cross examination the witness was asked how as it that Manju was narrating these talks when the witness had been asked not to disclose the 136 same to her parents, which she explained away by saying that she did not ask Manju why she was disclosing these things to her mother. No satisfactory answer to this question seems to have been given by her. At another place, the witness states thus : "I did not tell all these informations I received from Manju to any body. Nor anybody enquired from me till my statement was recorded by the Police." Her evidence, therefore, taken as a whole is subject to the same infirmity as that of PW 20 and must suffer the same fate. PW 3, Rekha (who was addressed as `Vahini ' in Maju 's letter (exhibit 33), states that on the first occasion when Manju came home she was quite happy but during her second visit to Beed in the month of April, 1982 she did not find her so and Manju complained that her husband was avoiding her to have a talk with her on one excuse or another. Manju also informed the witness that the appellant had a girl friend by name Ujvala and the witness says that she tried to console Manju by saying that since her husband was a Chemical Engineer he may have lot of friends. While referring to Exh. 33 (letter written to her by Manju) she stated that the only complaint made in that letter was that her husband was not talking to her properly. She then deposed to an incident which happened when on her way to Bombay when the witness stayed at Pune for some time. She states that she had a talk with Manju for about half an hour when she narrated the story of the suicidal pact. She also stated that she was extremely afraid of the situation and almost broke down in tears and wept. The most important fact which may be noted in her evidence is a clear pointer to the frame of mind and the psychotic nature of Manju. At page 212 of Part I of the Paperbook while narrating the relationship of her husband with Ujvala she says that the appellant lost his temper and thereupon she spoke the following words to him : ,`I am not going to spare this, I will not allow this, his bad relations even though a blot may come to our family and I have decided likewise. " These significant and pregnant words clearly show that Manju was so much bored and disgusted with her life that she entertained a spirit of revenge and told the witness that she was not going to 137 tolerate this even though a blot may come to the family and that she had decided likewise. This statement undoubtedly contains a clear hint that she had almost made up her mind to end her life, come what may and thereby put to trouble her husband and his family members as being suspect after her death. This appears to be a culmination of a feeling which she had expressed in one of her letters to Anju in the following words: "Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right. " Similarly, in her letter (exhibit 33) to this witness she gives a concealed hint "But till that day it is not certain that I will be alive." Thus the feelings of death and despair which she orally expressed to the witness at Pune seems to have been fulfilled when on the morning of 12th June 1982 she was found dead. The evidence of PW 4, Hiralal Ramlal Sarda, is not that important. He merely states that in the last week of May 1982, PW 2 had called him and told him that Manju was being ill treated by her husband and therefore she was not prepared to go to her marital home. PW 2 also informed him about the suicidal pact affair. As the witness was in a hurry to go to Hyderabad he counselled PW 2 not to take any final decision in a hurry and that Manju should not be sent to Pune with Birdichand until his return when a decision may be taken. On return from Hyderabed he learnt that Birdichand had already taken Manju to Pune and thereafter he left for Pune. Indeed, if the matter was so grave and serious that a person like PW 4, who was a relation of the appellant rather than that of PW 2, had advised him not to make haste and take a final decision but wait until his return yet PW 2 seems to have spurned his advice and sent Manju to Pune. This shows that the matter was not really of such great importance or urgency as to take the drastic step of making a blunt refusal to Birdihchand about Manju 's not going to Pune. This also shows that the story of suicidal pact and other things had been introduced in order to give a colour or orientation to the prosecution story. Another fact to which this witness deposes in the narration by the appellant about his having sexual act with his wife. We have 138 already disbelieved this story as being hopelessly improbable and against the cultural heritage of our country or of our nature and habits. This is the only purpose for which this witness was examined and his evidence does not advance the matter any further. PW 5, Meena Mahajan, has also been examined to boost up the story narrated by PW 2 and other witnesses. She was not at all connected with the family of PW 2 but is alleged to be a friend of Manju and she says that she found Manju completely disheartened and morose and she started weeping and crying while narrating her said story. The witness goes on to state that Manju was so much terrified of the appellant that she was afraid of her life at his hands. No. witness has gone to the extent of saying that there was any immediate danger to Manju 's life nor did Manju say so to PWs 2, 6 and 20. This witness appears to us to be more loyal than the king. Even assuming that Manju was a friend of PW 6 but she never wrote to her any letter indicating anything of the sort. For these reasons we are not satisfied that this witness is worthy of credence. A close and careful scrutiny of the evidence of the aforesaid witnesses clearly and conspicuously reveals a story which is quite, different from the one spelt out from the letters (Exhs. 30, 32 and 33). In fact, the letters have a different tale to tell particularly in respect of the following matters: (1) There is absolutely no reference to suicidal pact or the circumstances leading to the same, (2) there is no reference even to Ujvala and her illicit relations with the appellant, (3) there is no mention of the fact that the deceased was not at all willing to go to Pune and that she was sent by force, (4) the complaints made in the letters are confined to ill treatment, loneliness, neglect and anger of the husband but no apprehension has been expressed in any of the letters that the deceased expected imminent danger to her life from her husband. (5) In fact, in the letters she had asked her sister and friend not to disclose her sad plight to her parents but 139 while narrating the facts to her parents she herself violated the said emotional promise which appears to us to be too good to be true and an after thought added to strengthen the prosecution case. (6) If there is anything inherent in the letters it is that because of her miserable existence and gross ill treatment by her husband, Manju might have herself decided to end her life rather than bother her parents. We are therefore unable to agree with the High Court and the trial court that the witnesses discussed above are totally dependable so as to exclude the possibility of suicide and that the only irresistible inference that can be drawn from their evidence is that it was the appellant who had murdered the deceased. Putting all these pieces together a general picture of the whole episode that emerges is that there is a reasonable possibility of Manju having made up her mind to end her life, either due to frustration or desperation or to take a revenge on her husband for shattering her dream and ill treating her day to day. Apart from the spirit of revenge which may have been working in the mind of Manju, it seems to us that what may have happened is that the sum total and the cumulative effect of the circumstances may have instilled in her an aggressive impulse endangered by frustration of which there is ample evidence both in her letters and her subsequent conduct. In Encyclopedia of Crime and Justice (Vol. 4) by Sanford H. Kadish the author mentions thus : "Other psychologically oriented theories ave viewed suicide as a means of handling aggressive impulses engendered by frustration." Another inference that follows from the evidence of the witness discussed is that the constant fact of wailing and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W. Brown and Tirril Harris in their book "Social Origins of Depression" thus: "1. Symptom data Depressed mood 140 1. Crying 2. feeling miserable/looking miserable, unable to smile or laugh 3. feelings of hopelessness about the future 4. suicidal thoughts 5. suicidal attempts Fears/anxiety/worry 15. psychosomatic accompaniments 16. tenseness/anxiety 17. specific worry 18. panic attacks 19. phobias Thinking 20. feelings of self depreciation/nihilistic delusions 21. delusions or ideas of reference 22. delusions of persecution/jealousy 23. delusions of grandeur 24. delusions of control/influence 25. other delusions e. g. hypochondriacal worry 26. auditory hallucinations 27. visual hallucinations. " Most of these symptoms appear to have been proved as existing in Manju both from her letters (Exhs. 30, 32 and 33) and from the evidence discussed. We might hasten to observe here that in cases of women of a sensitive and sentimental nature it has usually been observed that if they are tired of their life due to the action of their kith and kin, they become so desperate that they develop a spirit of revenge and try to destroy those who had made their lives worthless and under this strong spell of revenge sometimes they can go to the extreme limit of committing suicide with a feeling that the subject who is the root cause of their malady is also destroyed. This is what may have happened in this case. Having found her dreams shattered to pieces Manju tried first to do her best for a compromise but the constant ill treatment and callous attitude of her husband may have driven 141 her to take revenge by killing herself so that she brings ruination and destruction to the family which was responsible for bringing about her death. We might extract what Robert J. Kastenbaum in his book 'Death, Society, and Human Experience ' has to say: "Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress." After a careful consideration and discussion of the evidence we reach the following conclusions on point No. 1: 1) that soon after the marriage the relations between Manju and her husband became extremely strained and went to the extent that no point of return had been almost reached, 2) that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala which embittered the relationship between Manju and him, 3) That the story given out by PW 2 and supported by PW 20 that when they reached Pune after the death of Manju they found appellant 's weeping and wailing out of grief as this was merely a pretext for shedding of crocodile tears, cannot be believed, 4) that the story of suicidal pact and the allegation that appellant 's illicit relations with Ujvala developed to such an extreme that he was so much infatuated with Ujvala as to form the bedrock of the motive of the murder of Manju, has not been clearly proved, 5) the statement of PW 2 that the appellant had told him that during the night on 11th June 1982 he had sexual act with the deceased is too good to be true and is not believable as it is inherently improbable, 6) that despite the evidence of PWs 2, 3, 6 and 20 if has not been proved to our satisfaction that the matter had assumed such extreme proportions that Manju refused to go to Pune with her father in law (Birdichand) at any cost and yet she was driven by use of compulsion and persuasion to accompany him, 142 7) that the combined reading and effect of the letters (Exhs. 30, 32 and 33) and the evidence of PWs 2, 3, 4, 6 and 20 clearly reveal that the signs and symptoms resulting from the dirty atmosphere and the hostile surroundings in which Manju was placed is a pointer to the fact that there was a reasonable possibility of her having committed suicide and the prosecution has not been able to exclude or eliminate this possibility beyond reasonable doubt. We must hasten to add that we do not suggest that this was not a case of murder at all but would only go to the extent of holding that at least the possibility of suicide as alleged by the defence may be there and cannot be said to be illusory. 8) That a good part of the evidence discussed above, is undoubtedly admissible as held by us but its probative value seems to be precious little in view of the several improbabilities pointed out by us while discussing the evidence. We might mention here that we had to reappreciate the evidence of the witnesses and the circumstances taking into account the psychological aspect of suicide as found in the psychotic nature and character of Manju because these are important facts which the High Court completely overlocked. It seems to us that the High Court while appreciating the evidence was greatly influenced by the fact that the evidence furnished by the contents of the letters were not admissible in evidence which, as we have shown, is a wrong view of law, We now come to the second limb perhaps one of the most important limbs of the prosecution case viz., the circumstance that the appellant was last seen with the deceased before her death. Apparently, if proved, this appears to be a conclusive evidence against the appellant but here also the High Court has completely ignored certain essential details which cast considerable doubt on the evidence led by the prosecution on this point. The question of the appellant having been last seen with the deceased may be divided into three different stages: 1) The arrival of Anuradha and her children alongwith Manju at Takshila apartments, followed by the arrival of 143 the appellant and his entry into his bedroom where Anuradha was talking to Manju, 2) the calling of PW 29 by A 2 followed by the appellant and his brother 's going out on a scooter to get Dr. Lodha and thereafter Dr. Gandhi. 3) Sending for Mohan Asava (PW 30) and the conversation between the appellant, Birdichand and others as a result of which the matter was reported to the police. Although the aforesaid three stages of this circumstance cannot technically be called to mean that the accused was last seen with the deceased but the three parts combined with the first circumstance might constitute a motive for the murder attributed to the appellant. From a perusal of the judgment of the High Court on these points, it appears that the High Court has made a computerise and mathematical approach to the problem in fixing the exact time of the various events which cannot be correct as would appear from the evidence of the witnesses, including Dr Banerjee (PW 33) . The evidence of PW 7, the motor rickshaw driver shows that on the night of the 11th of June he had brought the deceased alongwith Anuradha and others and dropped them near the Takshila apartments at about 11.00 p.m. The witness was cross examined on several points but we shall accept finding of the High Court on the fact that on the 11th of June 1982 the witness had dropped the persons, mentioned above, at about 11.00 p.m. The rest of the evidence is not germane for the purpose of this case. It may, however, be mentioned that one should always give some room for a difference of a few minutes in the time that a layman like PW 7 would say. We cannot assume that when the witness stated that he had dropped Manju and others at 11.00 p.m., it was exactly 11.00 p.m. it would have been 10 15 minutes this way or that way. His evidence is only material to show the approximate time when Manju returned to the apartments. The next witness on this point is PW 28, K.N. Kadu. This witness corroborates PW 7 and stated he had heard the sound of a rickshaw near the apartments when the wife of A 2, Manju and 3 children entered the apartments and went to their rooms. He 144 further says that after about 15 minutes he saw the appellant coming on a scooter and while he was parking his scooter the witness asked him why did he come so late to which he replied that he was busy in some meeting. This would show that the appellant must have arrived at the apartments near about 11.30 or 11.45 p.m. It is very difficult to fix the exact time because the witness himself says that he had given the timings approximately. The High Court was, therefore, not justified in fixing the time of arrival of Manju and party or the appellant with almost mathematical precision for that would be a most unrealistic approach. The High Court seems to have speculated that Manju must have died at 12.00 a.m., that is to say, within 15 20 minutes of the arrival of the appellant. It is, however, impossible for us to determine the exact time as to when Manju died because even Dr. Banerjee says in his evidence that the time of death of the deceased was between 18 to 36 hours which takes us to even beyond past 12 in the night. At any rate, this much is certain that Manju must have died round about to 2.00 a.m. because when Dr. Lodha arrived at 2.45 a.m. he found her dead and he had also stated that rigor mortis had started setting in, It is. therefore, difficult to fix the exact time as if every witness had a watch which gave correct and exact time. Such an inference is not at all called for. The third stage of this matter is that while the witness was sleeping he heared the sound of the starting of a scooter and got up from his bed and saw appellant and A 2 going away. Therefore, he found 7 8 persons coming and going on their scooters. The High Court seems to suggest that this must have happened by about 1.30 p.m. Even so, this does not prove that Manju have died at midnight. As the witness had been sleeping and was only aroused by the sound of scooters, it would be difficult to fix the exact time when he saw the appellant and A 2 going out on their scooters. His evidence, therefore, was rightly relied upon by the High Court in proving the facts stated by him. PW 29, B.K. Kadu, who was serving as a watchman at the Takshila apartments says that near about the midnight he was called by Rameshwar, A 2 and on hearing the shouts he went to flat No. 5. He further says that A 2 directed him to unbolt or unchain the door but the door was not found closed from inside and hence A 2 went out and returned after some time. While the witness was 145 standing at the door A 2 returned and after his return the witness also came back to his house and went to sleep. Perhaps the witness was referring to the incident when A 1 and A 2 had gone on scooter to fetch Dr. Lodha. During cross examination the witness admitted that he did not possess any watch and gave the timings only approximately. We shall accept his evidence in toto but that leads us nowhere. This is all the evidence so far as the first stage of the case is concerned and, in all probability, it does not at all prove that A 1 had murdered the deceased. On the other hand, the circumstances proved by the three witness are not inconsistent with the defence plea that soon after entering the room Manju may have committed suicide. Part II of this circumstance relates to the coming of Dr. Lodha and then Dr. Gandhi on the scene of occurrence and we accept their evidence in toto. Dr. Lodha was a family doctor of the appellant 's family and it was quite natural to send for him when the appellant suspected that his wife was dead. Although Dr. Lodha (PW 24) was a family doctor of the appellant 's family yet he did not try to support the defence case and was frank enough to tell the accused and those who were present there that it was not possible for him to ascertain the cause of death which could only be done by a postmortem. In other words, he indirectly suggested that Manju 's death was an unnatural one, and in order to get a second opinion he advised that Dr. Gandhi (PW 25) may also be summoned. Accordingly, Dr. Gandhi was called and he endorsed the opinion of Dr. Lodha. Such a conduct on the part of the appellant or the persons belonging to his family is wholly inconsistent with the allegation of the prosecution that the appellant had murdered the deceased. The High Court seems to have made one important comment in that why Dr. Lodha and Dr. Gandhi were called from some distance when Dr. Kelkar, who was a skin specialist and another Doctor who was a child expert, were living in the same building. This comment is neither here nor there. It is manifest that Birdichand was a respectable person of the town and when he found that his daughter in law had died he would naturally send for his family doctor rather then those who were not known to him. 146 It appears that PW 30 Mohan Asava was also summoned on telephone and when he came at the scene of occurrence he found A 2, Birdichand sitting on the floor of the room and Bridichand hugged him out of grief, and told him that Manju had died of shock and the Doctors were not prepared to give a death certificate. In order to understand the evidence of this witness it may be necessary to determine the sequence of events so for as PW 30 is concerned. The witness has stated that while he was sleeping he was aroused from his sleep by a knock at the door by Ram Vilas Sharda (brother of appellant) at about 4.00 or 4.15 a.m. Ram Vilas told him that Manju had died and the doctors were not prepared to give any death certificate. After having these talks the witness, alongwith Ram Vilas, proceeded to the apartments and remained there till 5.15. Then he returned to his house, took bath and at about 6.30 a.m. he received a telephone call from Ram Vilas for lodging a report with the police with the request that the time of death should be given as 5.30 a.m. Consequently, he reached the police station near about 7.00 or 7.15 a.m. and lodged a report stating that Manju had died at 5.30 a.m. This witness appears to be of doubtful antecedents and, therefore, his evidence has to be taken with a grain of salt. He admitted in his statement at p. 387 that some proceedings about evasion of octroi duty were pending against him in the Court. He also admitted that he was convicted and sentenced to 9 months R.I under the Food Adulteration Act in the year 1973. Apart from this it appears that most of the statements which he made in the Court against Birdichand and the other accused, were not made by him before the police. These statements were put to him and he denied the same but they have been proved by the Investigation Officer, PW 40 whose evidence appears at p. 521 of Part II of the printed paperbook. These belated statements made in the Court may be summarised thus: While in his statement before the court the witness at p. 386 (para 19) states that the death of Manju was suspicious yet he made no such statement before the police on being confronted by the statement of PW 40. Another important point on which his statement does not appear to be true is that the dominent fact 147 mentioned to him by Birdichahd and others was that the doctors were not prepared to issue death certificate but he did not say so before the police. Similarly, he deposed in the court about the statement made to him by Birdichand that he would lose his prestige and therefore the body should be cremated before 7.00 a.m, but he advised him not to do so unless he has informed the police otherwise his whole family would be in trouble. Almost the entire part of his evidence in para 5 at p. 381 appears to be an afterthought, as PW 40 stated thus: "I recorded the statement of PW 30 Mohan Asava. He did not state before me that death of Manju was suspicious. He did not state before me that Accused No. 3 informed him that the Doctors were not prepared to issue the death certificate. He did not state before me that the demand was made of the death certificate from the Doctors or the Doctors refused to give the same. During his statement this witness did not make the statements as per para No. 5 excluding the portions from A to F of his examination in chief. " The portions referred to as 'A to F ' in para No. 5 of examination in chief of PW 30 may be extracted thus: "Birdichand then started telling me that Manju had died on account of shock and that he said that she died of heart attack under any circumstance he wanted to cremate Manju before 7.O ' clock when he said that he would spend any amount but wanted to cremate her before 7.00 a.m." This statement does not appear to be true for the following reasons. (a) Birdichand knew full well that PW 30 was a police contact constable and as he was not prepared to persuade the doctors to give a death certificate, his attitude was hardly friendly as he was insisting that the matter should be reported to the police. It is, therefore, difficult to believe that Birdichand would take such a great risk in laying all his cards on the table knowing full well that the witness was not 148 so friendly as he thought and therefore he might inform the police; thereby he would be in a way digging his own grave. (b) On a parity of reasoning it would have been most improbable on the part of the appellant, after having decided to report the matter to the police, to ask PW 30 to report the time of death as 5.30 a.m. knowing full well his attitude when he came to the apartments. It is not at all understandable how the witness could have mentioned the time of Manju 's death as 5.30 a.m. or, at any rate, when her death was known to her husband and when he himself having gone to the apartments near about 4.15 a.m. knew full well that Manju had died earlier and that Dr. Lodha and Dr. Gandhi had certified the same and advised Birdichand to report the matter to the police. In the original Ex 120 (in Marathi language), it appears that the time of death given by the witness is 'Pahate ' which, according to Molesworth 's Marathi English Dictionary at p. 497, means 'The period of six ghatika before unrise, the dawn ' i. e., about 2 hours 24 minutes before sunrise (one ghatika is equal to 24 minutes). This would take us to near about 3.00 a.m. Either there is some confusion in the translation of the word 'Pahate ' or in the words '5.30 a.m. ', as mentioned in the original exhibit 120. However, nothing much turns on this except that according to the witness Manju must have died around 3.00 a.m. which is consistent with the evidence of Dr. Lodha that when he examined Manju at about 2.30 a.m. he found her dead and rigor mortis had already started setting in. We are not concerned here with the controversy whether the report was admissible under section 154 or section 174 of the Code of Criminal Procedure but the fact remains that the policd did receive the information that the death took place at 5.30 a.m. The High Court seems to have made a capital out of this small incident and has not made a realistic approach to the problem faced by Birdichand and his family. Being a respectable man of the town, Birdichand did not want to act in a hurry lest his reputation may suffer and naturally required some time to reflect and consult his friends before taking any action. The allegation that A 3 told him to report the time of death as 5.30 a.m. is not at all proved but is based on the 149 statement of PW 30, before the police. Thus, the approach made by the High Court to this aspect of the matter appears to be artificial and unrealistic as it failed to realise that the question of the time of death of the deceased as 5.30 a.m. could never have been given by the appellant or any other accused because they knew full well that the two doctors had examined the whole matter and given the time of death as being round about 1.30 a.m. Having known all these facts how could anyone ask PW 30 to give the time of death at the police station as 5.30 a.m. Thus, it will be difficult for us to rely on the evidence of such a witness who had gone to the extent of making wrong statements and trying to appease both Birdichand and the prosecution, and, therefore, his evidence does not inspire any confidence. The last part of the case on this point is the evidence of PWs 2 and 4, where the appellant is said to have told them that he had sexual intercourse with his wife near about 5.00 a.m. on the 12th June 1982. Apart from the inherent improbability in the statement of the appellant, there is one other circumstance which almost clinches the issue. It appears that Kalghatgi (PW 20), Inspector in charge of the police station made a query from Dr. Banerjee which is extracted below: Whether it can be said definitely or not as to whether sexual intercourse might have taken just prior to death ?" The above query was made in exhibit 129 and the answer of the Doctor appears in exhibit 187 which is extracted below: "From clinical examination there was no positive evidence of having any recent sexual, intercourse just prior to death." This positive finding of the Doctor therefore knocks the bottom out of the case made out by the prosecution tion that the appellant had told PWs 2 and 4 about having sexual intercourse with his wife. Unfortunately, however, the High Court instead of giving the benefit of this important circumstance to the accused has given the benefit to the prosecution which is yet another error in the approach made by the Eight Court while assessing the prosecution evidence. Having regard to the very short margin of time between the arrival of the appellant in his bed room and the death of Manju, it seems 150 to be well nigh impossible to believe that he would try to have sexual intercourse with her. This circumstance, therefore, falsifies the evidence of PWs 2 and 4 on this point and shows the extent to which the witnesses could go to implicate the appellant. Finally, in view of the disturbed nature of the state of mind of Birdichand and the catastrophe faced by him and his family, it is difficult to believe that the grief expressed and the tears shed by the appellant when PW 2 met him could be characterised as fake. If it is assumed that the accused did not commit the murder of the deceased then the weeping and wailing and expressing his grief to PW 2 would be quite natural and not fake. There are other minor details which have been considered by the High Court but they do not appear to us to be very material. Taking an overall picture on this part of the prosecution case the position seems to be as follows: (1) if the accused wanted to give poison while Manju was wide awake, she would have put up stiffest possible resistance as any other person in her position would have done. Dr. Banerjee in his postmortem report has not found any mark of violence or resistance. Even if she was overpowered by the appellant she would have shouted and cried and attracted persons from the neighbouring flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short while before the appellant. (2) Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju in a glass of water, if she happened to ask for it. But if this was so, she being a chemist herself would have at once suspected some foul play and once her suspicion would have arisen it would be very difficult for the appellant to murder her. (3) The third possibility is that as Manju had returned pretty late to the flat she went to sleep even before the arrival of the appellant and then he must have tried to 151 forcibly administer the poison by the process of mechanical suffocation, in which case alone the deceased could not have been in a position to offer any resistance. But this opinion of the Doctor has not been accepted by the High Court which, after a very elaborate consideration and discussion of the evidence, the circumstances and the medical authorities, found that the opinion of the Doctor that Manju died by mechanical suffocation has not been proved or, at any rate, it is not safe to rely on such evidence. In this connection, we might refer to the finding of fact arrived at by the High Court on this point: "In view of the above position as is available from the evidence of Dr. Banerjee and from the observations made by the medical authorities it will not be possible to say that the existence of the dark red blood in the right ventricle exclusively points out the mechanical suffocation particularly when such phenomenon is available in cases of poisoning by potassium cyanide." (PB p. 147 48) "In view of this answer it will not be possible to say conclusively that this particular symptom of observation is exclusively available in case of mechanical suffocation. Thus we have discussed all the seven items on which Dr. Banerjee has relied for the purpose of giving an opinion that there was mechanical suffocation. In our view, therefore, those 7 findings would not constitute conclusive date for the purpose of holding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation." (P.150 151) It is not necessary for us to repeat the circumstances relied upon by the High Court because the finding of fact speaks for itself. 152 This being the position, the possibility of mechanical suffocation is completely excluded. (4) The other possibility that may be thought of is that Manju died a natural death. This also is eliminated in view of the report of the Chemical Examiner as confirmed by the postmortem that the deceased had died as a result of administration of potassium cyanide. (5) The only other reasonable possibility that remains is that as the deceased was fed up with the maltreatment by her husband, in a combined spirit of revenge and hostility after entering the flat she herself took potassium cyanide and lay limp and lifeless. When the appellant entered the room he must have thought that as she was sleeping she need not be disturbed but when he found that there was no movement in the body after an hour so, his suspicion was roused and therefore he called his brother from adjacent flat to send for Dr. Lodha. In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide, as alleged by the defence, can be safely ruled out or eliminated. From a review of the circumstances mentioned above, we are of the opinion that the circumstance of the appellant having been last seen with the deceased has not been proved conclusively so as to raise an irresistible inference that Manju 's death was a case of blatant homicide. This now brings us to an important chapter of the case on which great reliance appears to have been placed by Mr. Jethmalani on behalf of the appellant. Unfortunately, however, the aspect relating to interpolations in the postmortem report has been completely glossed over by the High Court which has not attached any importance to the infirmity appearing in the medical evidence in support of the said interpolations. Although the learned counsel for the appellant drew our attention to a number of interpolations in the postmortem report as also the report sent to the Chemical Examiner, we are impressed only with two infirmities which merit 153 serious consideration. To begin with, it has been pointed out that in the original postmortem notes which were sent to Dr. Banerjee (PW 33) for his opinion, there is a clear interpolation by which the words `can be a case of suicidal death ' appear to have been scored out and Dr. Banerjee explained that since he had written the words `time since death ' twice, therefore, the subsequent writing had been scored out by him. In other words, the Doctor clearly admitted the scoring out of the subsequent portion and we have to examine whether the explanation given by him is correct. In order to decide this issue we have examined for ourselves the original postmortem notes (exhibit 128) where the writing has been admittedly scored out by Dr. Banerjee. The relevant column against which the scoring has been done is column. No. 5 which runs thus: "5. Substance of accompanying Report from Police officer or Magistrate, together with the date of death, if known. Supposed cause of death, or reason for examination. " The last line indicates that the Doctor was to note two things (1) the date of death, if known, and (2) the supposed cause of death. This document appears to have been written by PW 33 on 12.6.82 at 4.30 p.m. The relevant portion of the words written by the Doctor are `time since dealt ' which were repeated as he states in his statement. After these words some other words have been admittedly scored out and his (PW 33) explanation was that since he had written `time since death ' twice, the second line being a repetition was scored out. A bare look at exhibit 128 does not show that the explanation given by the Doctor is correct. We have ourselves examined the said words with the help of a magnifying glass and find that the scored words could not have been `time since death '. The only word common between the line scored out and the line left intact is `death '. To us, the scored out words seem to be `can be a case of suicidal death '. Dr Banerjee however stuck to his original stand which is not supported by his own writing in the document itself. It seems ' to us that at the first flush when he wrote the postmortem notes it appeared to him that no abnormality was detected and that it appears to be a case of suicide rather than that of homicide. This, therefore, if the strongest possible circumstance to make the defence highly probable, if not certain. Furthermore, the Doctors 's explanation that the scored words were "time since death", according to the said explanation, the scored words ore only three whereas 154 the portion scored out contains as many as seven words. Hence the explanation of the Doctor is not borne out from the document. It is true that the Doctor reserved his opinion until the chemical examiner 's report but that does not answer the question because in column No.5 of postmortem note Dr. Banerjee has clearly written "can be a case of suicidal death" which indicates a that in the absence of the report of the chemical examiner, he was of the opinion that it could have been a case of suicide. In his evidence, PW 33 stated that in Exh. 128 in column No. 5 the contents scored out read `time since death ' and since it was repeated in the next line, he scored the words in the second line. Despite persistent cross examination the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter was of vital importance and we expected the High Court to have given serious attention to this aspect which goes in favour of the accused. Another interpolation pointed out by the learned counsel is regarding position of tongue as mentioned in Exh. In the original while filling up the said column the Doctor appears to have scored out something; the filled up entry appears thus `mouth is closed with tip (something scored out) seen caught between the teeth '. But in the carbon copy of the report which was sent to the Chemical Examiner (Exh. 132) he has added `caught between the teeth ' in ink but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the chemical examiner does not contain any interpolation against the said column where the filled up entry reads `Inside mouth '. The combined effect of these circumstances show that Dr. Banerjee (PW33) tried to introduce some additional facts regarding the position of the tongue. Perhaps this may be due to his final opinion that the deceased died due to mechanical suffocation which might lead to the tongue being pressed between the teeth. This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor, the entries must have been made after the copy was sent to the Chemical Examiner. However, this circumstance is not of much consequence because the opinion of the Doctor that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation has not been proved. 155 This aspect need not detain us any further because the High Court has not accepted the case of mechanical suffocation. So far as the other findings of Dr. Banerjee are concerned we fully agree with the same. A number of comments were made on behalf of the appellant about Dr. Banerjee 's integrity and incorrect reports but subject to what we said, we do not find any substance in those contentions. In para 90 of its judgment the High Court has given a number of circumstances which according to it, go to prove the prosecution case showing that the appellant had administered the poison during the night of 11th June, 1982. These circumstances may be extracted thus: (1) In the bed room Manju died of poisoning between 11.30 p.m. and 1. a.m. in the night between 11/12th June, 1982. (2) Accused No. 1 was present in that bed room since before the death of Manju i.e. since about 11.15 p.m. (3) Accused No, 1 did not return to the flat at 1.30 a.m or 1.45 a.m. as alleged. (4) The conduct of accused No. 1 in not calling for the immediate help of Dr. Shrikant Kelkar and/or Mrs. Anjali Kelkar is inconsistent with his defence that he felt suspicious of the health of Manju when he allegedly returned to the flat at 1.30 a.m. (5) In different conduct of accused No. 1 when Dr. Lodha and Dr. Gandhi went to the flat in Takshila apartment, Accused No. 1 did not show any anxiety which one normally finds when the doctor comes to examine the patient. Accused No. 1 should have accompanied the doctors when they examined Manju and should have expressly or by his behaviour disclosed his feelings about the well being of his wife. It was also necessary for him to disclose the alleged fact that he saw Manju in a suspicious condition when he returned at about 1.30 a.m. Or so. (6) An attempt of Birdichand to get the cremation of Manju done before 7 a. m. On 12. 6 82 even by spending any amount for that purpose. This conduct though 156 of Birdichand shows the conduct of a person to whom Accused No. 1 had gone and informed as to what had happened. (7) Delay and false information to police at the hands of Mohan Asava. Though the information is given by Mohan as per the phone instructions of accused No. 3 it is, presumed that accused No. 1 must have told accused No. 3 about the incident and on that basis accused No.3 gave instructions to Mohan Asava. (8) Accused No. 1 himself does not take any action either personally or through somebody else to give correct information to police. (9) Arrangement of the dead body to make show that Manju died a peaceful and natural death. (10) Accused No. 1 has a motive to kill Manju as he wanted to get rid of her to continue relations with Ujvala. (11) Absence of an anklet on left ankle of Manju is inconsistent with the defence that Manju committed suicide. (12) The conduct of the accused in concealing the anklet in the fold of the Chaddar is a Conduct of a guilty man. (13) The door of the bedroom was not found bolted from inside. This would have been normally done by Manju if she had committed suicide. (14) Potassium cyanide must not have been available to Manju. (15) Manju was 4 to 6 weeks pregnant. This is a circumstance which would normally dissuade her from committing suicide. (16) Denial of the part of accused No. 1 of admitted or proved facts. (17) Raising a false plea of absence from the bedroom at the relevant time. 152 155) 157 We have already discussed most of the circumstances extracted above and given our opinion, and have also fully explained the effect of circumstances Nos. 1,2,3,4,5 and 6. We might again even at the risk of repetition say that too much reliance seems to have been placed by the High Court on circumstance No. 4 as the appellant did not immediately call for Dr. Shrikant Kelkar (PW 26) and Dr. (Mrs.) Anjali Kelkar (PW 27). In a matter of this magnitude it would be quite natural for the members of the appellant 's family to send for their own family doctor who was fully conversant with the ailment of every member of the family. In these circumstances there was nothing wrong if the appellant and his brother went to a distance of 11/2 Km. to get Dr. Lodha. Secondly, Dr. Shrikant Kelkar was skin specialist whereas Dr. (Mrs) Anjali Kelkar was a Paediatrician and the appellant may have genuinely believed that as they belonged to different branches, they were not all suitable to deal with such a serious case. The High Court was, therefore, wrong in treating this circumstance as an incriminating conduct of the appellant. Circumstance No. 5 is purely conjectural because as soon as Dr. Lodha came he examined Manju and advised that Dr. Gandhi be called. We fail to understand what was the indifferent conduct of the appellant when he had sent for the two Doctors who examined the deceased. The appellant was in the same room or rather in an adjacent room when the deceased was being examined. From this no inference can be drawn that the appellant was indifferent to the state in which Manju was found. As regards circumstance No. 6 we have already explained this while dealing with the evidence of Mohan Asava, PW 30. As regards circumstance No. 7, the High Court has presumed that there being no dependable evidence that the information given to the police by PW 30 was false and that the appellant must have told A 3 about the incident on the basis of which he gave instructions to PW 30. This is also far from the truth as has been pointed out by us while dealing with the evidence of PW 30. Circumstance No. 8 is that PW 30 was asked to report the matter to the police. When the dead body was lying in the flat what action could the appellant have taken except reporting the matter to the police through one of his known persons. So far as 158 circumstances Nos. 9 and 10 are concerned, they do not appear to us to be of any consequence because, as shown by us, from a reading of the letters (Exhs. 30,32 and 33) and the conduct of the appellant, we do not find any evidence of a clear motive on the part of the appellant to kill Manju. Circumstances Nos. 11 and 12 are also of no assistance to the prosecution because whether the anklet was in the chaddar or elsewhere is wholly insignificant and does not affect the issue in question at all. Circumstance No. 13 is also speculative because if the bedroom was not found bolted from inside that would it self not show that Manju could not have committed suicide. Various persons may react to circumstances in different ways. When Manju entered her bedroom her husband had not come and since she went to sleep she may not have bolted the door from inside to enable her husband to enter the room. As regards circumstance No. 14, the High Court has overlooked a very important part of the evidence of PW 2 who has stated at page 178 of part I of the printed paperbook thus: "The plastic factory at Beed is a partnership concern in which two sons of Dhanraj, my wife and sister in law, i.e., brother 's wife are partners. " Dr. Modi 's Medical Jurisprudence and Texicology (19th Edn.) at page 747 shows that `Cyanide is also used for making basic chemicals for plastics '. Apart from the fact that the High Court in relying on this circumstance has committed a clear error of record, it is an additional factor to show that cyanide could have been available to Manju when she visited Beed for the last time and had stayed there for more than a week. Circumstance No.15 the fact that Manju was 4 to 6 weeks pregnant would dissuade Manju from committing suicide is also purely speculative. A pregnancy of 4 to 6 weeks is not very serious and can easily be washed out. Moreover, when a person has decided to end one 's life these are matters which do not count at all. On the other hand, this circumstance may have prompted her to commit suicide for a child was born to her, in view of her ill treatment by her husband and her in laws, the child may not get proper upbringing. Any way, we do not want to land ourselves in the field of surmises and conjectures as the High Court has done. 159 Circumstance No. 17 is wholly irrelevant because the prosecution cannot derive any strength from a false plea unless it has proved its case with absolute certainty. Circumstance No.17 also is not relevant because there is no question of taking a false plea of absence from the bedroom at the relevant time as there is no clear evidence on this point. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under s.313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat Singh vs State of Madhya Pradesh(1) this Court held that any circumstance in respect of which an accused was not examined under section 342 of the Criminal procedure code cannot be used against him ever since this decision. there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under s.342 of the or s.313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule vs State of Maharashtra(2) this Court held thus: "The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him." To the same effect is another decision of this Court in Harijan Megha Jesha vs State of Gujarat (3) where the following observation were made: "In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement 160 under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant. ': It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under s.313 of the Criminal Procedure Code have to be completely excluded from consideration. We might mention here an important argument advance by counsel for the appellant and countered by the Additional Solicitor General. It was argued before the High Court that it was highly improbable that if the betrothal ceremony of appellant 's sister, which was as important as the marriage itself, was going to be performed on the 13th of June, would the appellant clouse a day before that for murdering his wife and thereby bring disgrace and destruction not only to his family but also to her sister. We have already adverted to this aspect of the matter but it is rather interesting to note how the High Court has tried to rebut this inherent improbability, on the ground that in a case of administration of poison the culprit would just wait for an opportunity to administer the same and once he gets the opportunity he is not expected to think rationally but would commit the murder at once. With due respect to the Judges of the High Court, we are not able to agree with the somewhat complex line of reasoning which is not supported by the evidence on record. There is clear evidence, led by the prosecution that except for a week or few days of intervals, Manju always used to live with her husband and she had herself complained that he used to come late at night. Hence, as both were living alone in the same room for the last four months there could be no dearth of any opportunity on the part of the appellant to administer poison if he really wanted to do so. We are unable to follow the logic of the High Court 's reasoning that once the appellant got an opportunity he must have clung to it. The evidence further shows that both Manju and appellant had gone for a honeymoon outside Pune and even at that time he could have murdered her and allowed the case to pass for a natural death. However, these are matters of conjectures. The Additional Solicitor General realising the hollowness of the High Court 's argument put it in a different way. He submitted that as the deceased was 4 6 weeks pregnant the appellant realised 161 that unless the deceased was murdered at the behest it would become very difficult for him to murder her, even if he had got an opportunity, if a child was born and then he would have to maintain the child also which would have affected his illicit connections with Ujvala. This appears to be an attractive argument but on close scrutiny it is untenable. If it was only a question of Manju 's being 4 6 weeks pregnant before her death, the appellant could just as well have waited just for another fortnight till the marriage of his sister was over which was fixed for 30th June, 1982 and then either have the pregnancy terminated or killed her. Moreover, it would appear from the evidence of PW 2 (P.176) that in his community the Kohl ceremony is not merely a formal betrothal but a very important ceremony in which all the near relations are called and invited to attend the function and a dinner is hosted. We might extract what PW 2 says about this: "At the time of Kohl celebration of Manju, on 2.8.1981 my relatives i.e. my sister from outside had attended this function and many people were invited for this function. A dinner was also hosted by me. In that function the father of the bridegroom is required to spend for the dinner while the presentations made to the bride are required to be given or donned at the expenses of the side of bridegroom This programme is not attended by the bridegroom." (P.176) As Birdichand and others were made co accused in the case they were unable to give evidence on this point but it is the admitted case of both the parties that the accused belonged to the same community as PW 2. In these circumstances, it is difficult to accept the argument that the appellant would commit the murder of his wife just on the eve of Kohl ceremony, which he could have done the same long before that ceremony or after the marriage as there was no hurry nor any such impediment which would deny him any opportunity of murdering his wife. We now come to the nature and character of the circumstantial evidence. The law on the subject is well settled for the last 6 7 decades and there have been so many decisions on this point that the principles laid down by courts have become more or less axiomatic. 162 The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the present case which, as we shall show, are clearly distinguishable. The High Court was greatly impressed by the view taken by some courts, including this Court, that a false defence or a false plea taken by an accused would be an additional link in the various chain of circumstantial evidence and seems to suggest that since the appellant had taken a false plea that would be conclusive, taken along with other circumstances, to prove the case. We might, however, mention at the outset that this is not what this Court has said. We shall elaborate this aspect of the matter a little later It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant vs The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi vs State of Uttar Pradesh(2) and Ramgopal vs Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant 's case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the 163 first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should ' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved ' and 'must be or should be proved ' as was held by this Court in Shivaji Sahabrao Bobade & Anr. vs State of Maharashtra( ') where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be ' and 'must be ' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and 164 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King vs Horry,(l) thus: "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for." Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain '. This indicates the cardinal principle ' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry 's case (supra) was approved by this Court in Anant Chintaman Lagu vs The State of Bombay(2) Lagu 's case as also the principles enunciated by this Court in Hanumant 's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail 's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth vs The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh vs The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant 's case has not 165 been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed vs Delhi Administration(l). Mohan Lal Pangasa vs State of U.P.,(2) Shankarlal Gyarasilal Dixit vs State of Maharashtra(3) and M.C. Agarwal vs State of Maharashtra(4) a five Judge Bench decision. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra vs The State of Bihar(5), to supplement this argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: "But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation such absence of explanation of false explanation would itself be an additional link which completes the chain. " It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 166 If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal 's case (supra) where this Court observed thus: "Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." This Court, therefore, has in no way departed from the five conditions laid down in Hanumant 's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant 's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor General Moreover, in M.G. Agarwal 's case (supra) this Court while reiterating the principles enunciated in Hanumant 's case observed thus: "If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt." In Shankarlal 's (supra) this Court reiterated the same view thus: "Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment". We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, 167 one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram vs State of Himachal Pradesh,(l) this Court made the following observations: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence. " We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal 's case (supra) this Court held thus: "Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question ? (secondly), had the accused the poison in his possession ? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased ? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death. " So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased. 168 In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession. On the other hand, as indicated above, there is clear evidence of PW 2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extra ordinary finding of the High Court "It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that he had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact." (P.160) The comment by the High Court appears to be frightfully vague and absolutely unintelligible. While holding in the clearest possible terms that there is no evidence in this case to show that the appellant was in possession or poison, the High Court observes that this fact may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison. If the court seems to suggest that merely because the appellant had the opportunity to administer poison and the same was found in the body of the deceased, it should be presumed that the appellant was in possession of poison, than it has committed a serious and gross error of law and has blatantly violated the principles laid down by this Court. The High Court has not indicated as to what was the basis for coming to a finding that the accused could have procured the cyanide. On the other hand, in view of the decision in Ramgopal 's case (supra) failure to prove possession of the cyanide poison with the accused by itself would result in failure of the prosecution to prove its case. We are constrained to observe that the High Court has completely misread and misconstru 169 ed the decision in Ramgopal 's case. Even prior to Ramgopol 's case there are two decisions of this Court which have taken the same view. In Chandrakant Nyalchand Seth 's case (Criminal Appeal No. 120 of 1957 decided on 19.2.58) this Court observed thus: "Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the deceased was caused by poison, that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased. There is no direct evidence in this case that the accused was in possession of Potassium Cyanide or that he administered the same to the deceased. " The facts of the case cited above were very much similar to the present appeal. Here also, the Court found that circumstances afforded a greater motive to the deceased to commit suicide than for the accused to commit murder. This view was reiterated in Dharambir Singh 's case (Criminal Appeal No. 98 of 1958 decided on 4.11.1958) where the court observed as follows: "Therefore, along with the motive, the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the same to the deceased: (see Mt. Gujrani and another vs Emperor( '). It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, in a case of circumstantial evidence, that the poison was administered by the accused to the deceased resulting in his death. We feel that it was not right for the High Court to say, when this link in the chain had failed, that it could not be very difficult for anybody to procure potassium cyanide and therefore the absence of proof of possession of potassium cyanide by the accused was practically of no effect. On the facts as found by the High Court it must be held that the second of the three facts which have to be proved, in case of poisoning based on circumstantial evidence has not been proved, namely that the accused was in possession of the poison that had been found in the body Can it 170 be said in these circumstances when the proof of a very vital fact namely, that the accused was in possession of potassium cyanide, has failed that the chain of circumstantial evidence, is so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and that the evidence which remains after the rejection of this fact is such as to show that within all human probability the act must have been done by the accused. " We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open (1) that it may be a case of suicide, or (2) that it may be a case of murder and both are equally probable, hence the prosecution case stands disproved. We now proceed to deal with some of the judgments of this Court on which great reliance has been placed by the High Court. In the first place, the High Court relied on the case of Pershadi vs State of Uttar Pradesh( '). This case appears to be clearly distinguishable because no point of law was involved therein and on the facts proved and the very extraordinary conduct of the accused, the court held that the circumstantial evidence was consistent only with the guilt of the accused and inconsistent with any other rational explanation. Indeed, if this would have been our finding in this particular case, there could be no question that the conviction of the accused would have been upheld. The next on which the High Court placed great reliance is case Lagu 's case (supra). This case also does not appear to be of any assistance to the prosecution. In the first place, the case was decided on the peculiar facts of that case. Secondly, even though the corpus deliciti was not held to be proved yet the medical evidence and the conduct of the accused unerringly pointed to the inescapable conclusion that the death of the deceased was as a result of administration of poison and that the accused was the person who admini 171 stered the same. however, is not the case here. On the other hand, we have held that the conduct of the appellant has not been proved to be inconsistent with his guilt and on this ground alone the present case can be easily distinguished. If at all it is an authority it is on the point that this Court is not required to enter into an elaborate examination of the evidence unless there are very special circumstances to justify the same. At this Court in that case was clearly of the view that the High Court had fully considered the facts and a multitude of circumstances against the accused remained unexplained, the presumption of innocence was destroyed and the High Court was therefore right in affirming the conviction. Of course, Sarkar, J. gave a dissenting judgment. From a detailed scrutiny of the decision cited above (Lagu 's Case) we find that there is nothing in common between the peculiar facts of that case and the present one. Hence, this authority is also of no assistance to the prosecution. Reliance was then placed on the case of Ram Dass vs State of Maharashtra(l) but we are unable to see how this decision helps the prosecution. The High Court relied on the fact that as the accused had taken the deceased immediately to the Civil Hospital in order to stop the poison from spreading, this particular fact was eloquent enough to speak for the innocence of the accused. A careful perusal of that decision shows that this Court did not accept the prosecution case despite circumstances appearing in that case which are almost similar to those found in the present one. Moreover, here also the accused had immediately sent for their family Doctor after they had detected that Manju was dead. The reason for a little delay in lodging the FIR has already been explained by us while dealing with the facts. In the decision cited above, it was clearly held that the case against the accused was not proved conclusively and unerringly and that two reasonable views were possible, the relevant portion of which may be extracted thus: "On a consideration of the evidence and the circumstances referred to above, we are satisfied that this is a case in which the circumstantial evidence did not prove the case against the accused conclusively and unerringly, and at any rate two reasonable views were possible. " 172 We have already found in the instant case that taking the prosecution at the highest the utmost that can be said is that two views one in favour of the accused and the other against him were possible. Ram Dass 's case also therefore supports the appellant rather than the prosecution. The last case relied upon by the High Court is Shankarlal 's case (supra) but we are unable to see how this case helps the prosecution. The observations on which the High Court has relied upon appears to have been torn from the context. On the other hand, this decision fully supports the case of the appellant that falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. This decision has already been dealt with by us while considering the merits of the present case and it is not necessary to repeat the same. These are the only important cases of this Court on which the High Court seeks to rely and which, on a close examination, do not appear to be either relevant or helpful to the prosecution case in any way. On the other hand, some of the observations made in these cases support the accused rather than the prosecution. This now brings us to the fag end of our judgment. After a detailed discussion of the evidence, the circumstances of the case and interpretation of the decisions of this Court the legal and factual position may be summarised thus: (1) That the five golden principles enunciated by this Court in Hanumant 's decision (supra) have not been satisfied in the instant case. As a logical corollary, it follows that it cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of a criminal case which rests purely on circumstantial evidence. (2) That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It 173 may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal. (3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct of circumstantial evidence) and on this ground alone the prosecution must fail. (4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law: (5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable. (6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error of law. (7) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and in view of our finding it is absolutely clear that the High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits. (8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW 33) which shows that poison was 174 forcibly administered by the process of mechanical suffocation. (9) We also agree with the High Court that there is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arrayed as accused but they had to be acquitted by the High Court for lack of legal evidence. (10) That in view of our finding that two views are clearly possible in the present case, the question of defence being false dose not arise and the argument of the High Court that the defence is false does not survive. This was a fit case in which the High Court should have given at least the benefit of doubt to the appellant. Normally, this Court does not interfere with the concurrent findings of fact of the courts below, in the absence of very special circumstances or gross errors of law committed by the High Court. But where the High Court ignores or overlocks the crying circumstances and proved facts, violates and misapplies the well established principles of criminal jurisprudence or decisions rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own findings or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any Court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 175 It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof '. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made. Manju (from the evidence on the record) appears to be not only a highly sensitive woman who expected whole hearted love and affection from her husband but having been thoroughly disappointed out of sheer disgust, frustration and depression she may have chosen to end her life at least this possibility is clearly gleaned from her letters and mental attitude. She may have been fully justified in entertaining an expectation that after marriage her husband would look after her with affection and regard. This is clearly spelt out in the letters where she hinted that her husband a was so busy that he found no time for her. A hard fact of life, which cannot be denied, is that some people in view of their occupation or profession fined very little time to devote to their family. Speaking in a light vein, lawyers, professors, Doctors and perhaps Judges fall within this category and to them Manju 's case should be an eye opener. For the reasons given above we hold that the prosecution has failed to prove its case against appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the judgments of the courts below and acquit the appellant, Sharad Bridichand Sarda, of the charges framed against him and direct him to be released and set at liberty forthwith. VARADARAJAN, J. This appeal by special leave is directed against the judgment of a Division Bench of the Bombay High Court in Criminal Appeal No. 265 of 1983 and Confirmation Case No. 3 of 1983, dismissing the appeal and confirming the sentence of death awarded to the first accused Sharad Birdhichand Sarda (hereinafter referred to as the 'appellant ') by the Additional Sessions Judge, Pune in Sessions Case No. 203 of 1982. The appellant, Rameshwar Birdhichand Sarda and Ramvilas Rambagas Sarda were accused 1, 2 and 3 respectively in the Sessions Case. The appellant and the second accused are the sons of one Birdhichand of Pune whose family has a cloth business. In addition 176 the appellant who is said to be a graduate in Chemical Engineering had started a chemical factory at Bhosari, a suburb of Pune. The third accused is uncle of the appellant and the second accused. The appellant is the husband of Manjushree alias Manju while the second accused is the husband of Anuradha (P.W.35). Birdhichand 's family has its residential house at Ravivar Peth in Pune and owns a flat in a building known as Takshasheela Apartments in Mukund Nagar area of Pune. Manju, the alleged victim in this case, was the eldest amongst the five children of Rameshwar (P.W 2) and Parwati (P.W.20). Anju (P.W.6) is the second daughter of P.W.2 who is a Commercial Tax and Income Tax Consultant since 1960. P.W.2 is living in his own house situate in Subash Road in Beed city since 1973, prior to which he was living in a rented house in Karimpura Peth in that city. Meena (P.W.5) is a school and college mate and friend of Manju who passed the B.Sc. examination in Chemistry in the First Class in 1980 while P.W.5 who had passed the 10th standard examination together with Manju was still studying in college. Rekha (P.W.3) whom Manju used to call as Vahini is another friend of Manju. She is living with her husband Dr. Dilip Dalvi in a portion of P.W.2 's house in Subash Road, Pune as his tenant. P.W.20 's elder brother Dhanraj Rathi (P.W.22) is a resident of Pune where he is doing business in the sale of plastic bags for the manufacture of which he has a plastic factory called Deepak Plastics at Beed. It is a partnership concern of P.W.20 and some others including P.W.22 's third son Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20. After Manju passed her B.Sc. degree examination in 1980 her marriage with the appellant was settled by a formal betrothal ceremony which took place in June 1981. The marriage of the appellant and Manju was performed at the expense of P.W.2 at Beed on 11.2.1982. The appellant and Manju left for Pune on 12.2.1982 after the marriage. Subsequently, P.W.2 sent his elder son Deepak for fetching Manju from the appellant 's house at Pune and they accordingly came back to Beed on 22.2.1982. The appellant went to Beed four or five days later and took Manju back to Pune on the next day after pleading his inability to stay in P.W.2 's house for some more days. This was Manju 's first visit to her parents ' house after her marriage with the appellant. She is said to have been very happy during that visit. Thereafter Manju came to her parents ' house alongwith her maternal uncle Dhanraj Rathi (P.W.22) on or about 177 2.4.1982. It is the case of the prosecution that during that visit Manju was uneasy and had generally complained against the appellant to P.Ws.3 and 6. P.W.2 planned to keep Manju in his house for about three weeks on that occasion. But news of the death of the appellant 's grand father was received in P.W.2 's house in Beed and, therefore, P.Ws. 2 and 20 and Manju went to Pune for condolences on 11.4.1982. After meeting the appellant 's father and others at Pune, P.Ws. 2 and 20 returned to Beed leaving Manju in the appellant 's house in Pune. That was the second visit of Manju to her parents ' house after marriage with the appellant. P.Ws.2 and 20 came to Pune again on or about 13.5.1982. After staying for some time as usual in the house of P.W. 22, P.Ws. 2 and 20 visited the house of Birdhichand on that occasion. It is the case of the prosecution that P.Ws. 2 and 20 found Manju disturbed and uneasy and that they, therefore, took her to the house of P.W. 22 with the permission of Birdhichand. It is also the case of the prosecution that on reaching P.W. 22 's house Manju completely broke down and started weeping in the arms of P.W.20. P.Ws. 2 and 20 returned to Beed from Pune and sent their second son Pardeep four or five days later to fetch Manju, who had, however, by then gone with the appellant to Tirupati in Andhra Pradesh. After learning that the appellant and Manju had returned to Pune, P.W.2 sent his son Deepak to fetch Manju to Beed. Accordingly Deepak brought Manju to Beed accompanied by the third accused daughter Kavita on 25.5.1982. This was Manju 's third and last visit to her parents ' house after her marriage with the appellant. It is the case of the prosecution that Manju was totally disturbed and frightened during that visit and that she complained to her mother P.W.20 against the appellant and she in turn conveyed to P.W.20 what she heard from Manju. Birdhichand went to Beed on 2.6.1982 without any prior intimation for taking Manju to Pune on the ground that Manju 's presence in his family house at pune was necessary for the betrothal ceremony of his daughter Shobha fixed for 13.6.1982 as well as for her marriage fixed for 30.6.1982. It is the case of the prosecution that when Manju came to know that her father in law Birdhichand had come for taking her to Pune she was wept and expressed her unwillingness to go to Pune and that, however, on the assurance of Birdhichand that he would see to it that nothing happened to the life of Manju, P.W.2 permitted Manju to go to Pune alongwith Birdhichand and she accordingly went to Pune on 3.6.1982 alongwith Kavita and Birdhichand. 178 The family of Birdhichand and his sons including the appellant is joint. As stated earlier they have their family 's residential house at Ravivar Peth, Pune besides the flat which they owned in the Takshasheela Apartments situate at some distance from their family house. Their flat has two bed rooms besides a hall and other portions. Birdhichand 's two married sons, the appellant and the second accused used to go to the family 's flat in the Takshasheela Apartments for sleeping during the nights. The appellant and Manju used to sleep in one of the two bed rooms while the second accused and his wife Anuradha (P.W.35) and their children used to sleep in the other bed room. Manju had written amongst others, three letters, Ex.33 dated 25.4.1982 to her friend vahini (P.W.3) and exhibit p. 30 dated 8.2.1982 and p. 32 dated 8.6.1982 to her younger sister Anju (P.W.6). In exhibit 33 Manju has stated inter alia that she was feeling lonely though all persons in pune were very good and everybody was loving and that one reason is that there are many elderly persons in the house and, therefore, she does not dare to do any work independently and the fear which is in her mind every time leads to confusion. She has also stated in that letter though all person in Pune were very good that she becomes angry if he (appellant) does not speak to her when she goes and talks to him even ten times and that till now this man (appellant) had no time to mind his wife. She has stated in that letter that she dare not ask him (appellant) whether his clothes be taken for washing and that at present her status is only that of an unpaid maid servant. She has finally stated in that letter that on the day on which self pride in the appellant is reduced no other person will be more fortunate than her but it is not certain whether she will be alive until that date. In exhibit 30 she has stated inter alia that she was undergoing a very difficult test and was unable to achieve her object, that it would be well and good only if she controls herself and that some other way will have to be evolved when ' that becomes impossible. In exhibit 32 she has stated that though she was happy at Pune she does not know why there is such a dirty atmosphere in the house and it is felt every moment that something will happen. She has also stated in that letter that no work had been started in the house though Shobha 's 'sari ' function is fixed for 13.6.1982 and, therefore, she is out of her mind. The case of the prosecution as regards the alleged occurrence during the night of 11/12.6.1982 is thus: on 11 6 1982 at about 10.30 p.m. Manju accompanied by Anuradha, (P.W. 35) and 179 three children of the latter came to the Taksheela Apartments by an auto rickshaw. The night watchman of the Takshasheela Apartments, kerba (P.W. 28) has deposed about this fact. Syed Mohideen, (P.W. 7) an auto rickshaw driver residing in the border of Ganesh Peth and Ravivar Peth in Pune claims to have taken two ladies, three children and a baby by his auto rickshaw at about 11 p.m. on that day to Mukund Nagar. He has identified the photo of Manju published in a newspaper two or three days later as that of one of the two ladies who travelled by his auto rickshaw as aforesaid. The second accused had already gone to the flat in the Takshasheela Apartments. The appellant reached the flat about 15 minutes later by a scooter, whom the night watchman (P.W. 28) remarked that he was coming rather late he told P.W. 28 that it was because he had a meeting. After the appellant reached the flat he and Manju retired to their bed room while the second accused and P.W. 35 retired to their 'section Thereafter the appellant came out of his bed room at about 2 a.m. on 12.6.1982 and went to the second accused and both of them went out of that flat by scooters soon afterwards. The appellant proceeded to Ravivar Peth and called his father while the second accused went to call Dr. Uttam chand Lodha. (P.W. 24) who lives about one and a half kilo metres away from the Takshasheela Apartments without seeking the help of Dr. Anjali Kelkar,(P.W. 26) and her husband Dr. Shrikant Kelkar (P.W. 27) who lived close by in the same Takshasheela Apartments. P.W. 24 reached the appellant 's flat at about 2.30 a.m. and found Manju dead, with rigor motis having already set in and no external mark showing the cause of death. He, however, opined that it may be a case of unnatural death and suggested that the police may be informed. When Birdhichand who had arrived at the flat by then advised that some other doctor may be called as he was not satisfied with the opinion of P.W 24 suggested that Dr. Anil Gandhi, P.W 25 may be called if so desired. Thereafter, P.W. 24 and the third concerned who had come with Birdhichand went to call P.W. 25 who lives about 7 kilo metres away from the Takshasheela Apartments. On their way they contacted P.W. 25 over the phone and took him to the appellant 's flat where he examined Manju at about 4 a.m. and pronounced that she was dead. He opined that she might have died three or four hours earlier and stated that there was no external evidence showing the cause of death. He too suggested that the police should be informed to avoid any trouble. 180 The third accused went to Mohan Asava, (P.W. 30) at about 4.30 a.m. on 12.6.1982 and called him to the appellant 's flat after informing him that Manju was dead. P.W. 30, who accompanied the third accused, saw the body of Manju in the flat and left the place after suggesting that the police should be informed. The third accused contacted P.W. 30 over the phone at about 6.30 a.m. and asked him to go and inform the police that Manju had died at 5.30 a.m. P.W. 30 accordingly went to Maharishi Nagar Police Station at about 7 or 7.15 a.m. and informed the Head Constable, (P.W. 31) who thereupon made the entry exhibit 120 to the effect that Manju was found to be dead when the appellant tried to wake her a up at 5.30 a.m on 12.6.1982. P.W. 31 proceeded to the appellant 's flat at about 8 a.m. after informing the Inspector of Police, P.W. 40 telephonically about the suspicious death of Manju. On receipt of information from P.W. 22 by a lightning telephone call at about 6 a.m. on 12.6.1982 that Manju was extremely serious P.W. 2 went from Beed to Pune alongwith his wife P.W. 20 and his son Pradeep and Hiralal Sarda (P.W. 4) by jeep at about 1 P.m. on 12.6.1982. and learnt that Manju was dead. Thereafter P.W.2 went alongwith Hiralal Sarda to the Sasson Hospital where Manju 's body had been sent by the police for autopsy. Dr. Kalikrishnan Banerji, P.W. 33 who conducted autopsy on the body of Manju did not find any external or internal injury. He preserved the viscera, small intestines etc. of Manju and reserved his opinion about the cause of her death. On receipt of the Chemical Examiner 's report exhibit 130 to the effect that Manju 's viscera contained potassium cyanide poison P.W. 33 finally opined that Manju had died due to potassium cyanide poisoning and simultaneous mechanical suffocation. After completing the investigation P. W.40 filed the charge sheet against the appellant and the other two accused on 13.9.1982. The Additional Sessions Judge, Pune tried the appellant for offence under Sec. 302 IPC of murder of Manju by administering potassium cyanide poison or by suffocating her or by both, all the three accused for the offence under Sec. 120 B IPC of conspiring to destroy the evidence of the murder of Manju by giving a false report to the police about the time of her death and the third accused for the offence under Sec. 109 read with Sec. 201 IPC and Sec. 201 IPC for intsigating P.W.30 to give false information to the police and giving false information to P.W. 22 regarding the murder of Manju. 181 The appellant and the other two accused denied the charges framed against them. The appellant denied that he had anything to do with Ujvala (P.W. 37) with whom is alleged to have been in love at the relevant time. He admitted that Manju and P.W. 35 accompanied by some children went to their flat in the Takshasheela Apartments at about 10.30 p.m. on 11.6.1982 but denied that they travelled by any auto rickshaw and stated that they went there by their family 's car driven by the second accused. He denied that he went to the flat about 15 minutes later and stated that he returned to the fiat only at 1.30 or 1.45 a.m. on 12.6 1982 after attending a meeting in the Rajasthan Youth Club. He stated that after changing his clothes he looked at Manju and found something abnormal and became suspicious and then went to the second accused and that there after he went to call his father and uncle while the second accused went to call Dr. Lodha, P.W. 24. The Trial Court found all the three accused guilty as charged and convicted them accordingly and sentenced the appellant to death under s.302 IPC and all the three accused to rigorous imprisonment for two years and a fine of Rs. 2,000 each under s.120 B IPC but did not award any sentence under s.201 read with s.120B The appellant and the other two accused filed appeals against their conviction and the sentences awarded to them. The State filed a criminal revision application for enhancement of the sentence awarded to accused 2 and 3. These appeals, confirmation case and criminal revision application were heard together by the Division Bench of the Bombay High Court, which in a lengthy judgment. (195 pages of our paper book) allowed the appellant 's appeal in part regarding his conviction and sentence under s.120 B IPC but confirmed his conviction and sentence of death awarded under s 302 IPC and allowed the appeal of accused 2 and 3 in full and acquitted them and dismissed the criminal revision application. Hence, the appellant alone has come up before this Court on special leave against his conviction and the sentence of death. I had the benefit of reading the judgment of my learned brother Fazal Ali, J. I agree with his final conclusion that the appeal should succeed. The learned Judges of the High Court have relied upon 17 circumstances for confirming the conviction and sentence of death awarded to the appellant. My learned brother Fazal Ali, J. has rightly rejected every one of those circumstances as not conclusively pointing to the guilt of the appellant, including the 182 circumstance that the appellant was last seen with Manju before her death on the ground that the case of the prosecution based on evidence of Dr. Banerji (P.W. 33) that there was any mechanical suffocation of Manju has been disbelieved by the High Court itself and that some entries in the carbon copy exhibit 134 of P.W. 33 's report sent to the Chemical Examiner had been scored and interpolated after his report exhibit 132 to the Chemical Examiner had left his hands, that the original entry in the postmortem certificate exhibit 134 contained the words 'can be a case of suicidal death ' and, that the explanation of P.W.33. that he wrote the words 'time of death ' twice and not the words 'can be a case of suicidal death ' and, therefore, he scored off one of them is not acceptable at all. Doctors P.W.24 and 25 did not find any external injury on the body of Manju which they saw at about 2.30 and 4.30 a.m. on 12.6.1982. Even P.W.33. did not find any external or internal injury on the body of Manju. In these circumstances, unless the prosecution excludes the possibility of Manju having committed suicide by consuming potassium cyanide poison, as rightly pointed out by my learned brother Fazal Ali, J., (no adverse inference of guilt can be drawn against the appellant from the fact that he was last seen with Manju, he being no other than her own husband who is naturally expected to be with her during nights.) Some of these 17 circumstances cannot, by any stretch of imagination, be held to point to the quilt of the appellant. Circumstance No. 6 is an attempt of the appellant 's father Birdhichand to get the body of Manju cremated before 7 a.m. On 12.6.1982 by expressing such a desire to P.W.30. Circumstance No.9 is arrangement of the dead body of Manju to make it appear that she died a peaceful and natural death. Circumstance No. 11 is absence of an anklet of Manju from her leg. Circumstance No. 12 is the conduct of the appellant in allegedly concealing the anklet in the fold of the chaddar. Circumstance No. 15 is the fact that according to the medical evidence Manju was pregnant by four to six weeks and it would normally dissuade her from committing suicide. With respect to the learned judges of the High Court, in my view, by no stretch of imagination, can any of these circumstances be considered to point to nothing but the guilt of the appellant in a case resting purely on circumstantial evidence. However, since I am unable to persuade myself to agree with my learned brother Fazal Ali, J. on four points, I am writing this separate but concurring judgment, giving my view on those points, namely, (1) ill treatment of Manju by the appellant, (2) intimacy of 183 the appellant with Ujvala (P.W.37), (3) admissibility of Manju 's letters Exs. 30,32 and 33 and the oral evidence of P.Ws. 2,3,5,6 and 20 about the alleged complaints made by Manju against the appellant under section 32 (1) of the Evidence Act and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju. My learned brother Fazal Ali, J. has observed as follows at pages 3 and 96 of his judgment: "On the other hand the plea of the defence was that while there was a strong possibility of Manju having been ill treated and uncared for by her husband and her in laws, being a highly sensitive and impressionate woman, she committed suicide out of sheer depression and frustration arising from an emotional upsurge." (P 3) "On the other hand this circumstance may have prompted her to commit suicide, for if a child was born to her, in view of her ill treatment by her husband and her in laws the child may not get proper upbringing". (P.96) I do not recollect any admission by Mr. Ram Jethmalani, learned counsel for the appellant in the course of his arguments about any cruelty or ill treatment to Manju the part of the appellant or his parents. The evidence of P.W.3 is that during Manju 's second visit to Beed after her marriage with the appellant she found Manju not quite happy and very much afraid of the appellant. The evidence of P.W.5 is that during Manju 's second visit to Beed, Manju complained to her about the appellant returning home late in the night and avoiding to have a talk with her and that Manju told her that she was afraid of the appellant and apprehended danger to her life at his hands. The further evidence of the P.W.5 is that during her third visit to Beed she inferred from Manju 's face a spell of fear. The evidence of P.W.6 is that during Manju 's second visit to Beed, Manju told her that the appellant used to leave the house early in the morning and return late at night under the pretext of work in his factory and that he was even reluctant to talk with her. P.W.6 has stated that during Manju 's third visit to Beed she was extremely uneasy. disturbed and under a spell of fear, that Manju told her the appellant did not relish even her question as to why he was not prepared to have a simple talk with her, and that 184 during her third visit to Beed, Manju expressed her unwillingness to go to Pune when Birdhichand went to Beed on 2.6.1982 for taking her to Pune. To the same effect is the evidence of P.W section 2 and 20 about how Manju looked in spirit and what she stated during her last two visits. My learned brother Fazal Ali, J. has rightly rejected the oral evidence of P.Ws. 2, 3, 5, 6 and 20. He has extracted the relevant portions of the letters Exs. 30, 32 and 33 in his judgment and has observed at page 23 that one thing which may be conspicuously noticed in exhibit 30 is that Manju was prepared to take all the blame on herself rather than incriminating her husband or his rents at page 24 that it was conceded by the learned Additional Solicitor General that the relevant portion of Ex.32 does not refer to any ill treatment of Manju by the appellant or his parents; and at page 30 that it can be easily inferred from exhibit 33 that Manju did not have any serious complaint against the appellant except that she was not getting proper attention which she deserved from him. These three letters do not establish that Manju made any complaint of any ill treatment by the appellant or his parents. In my view, these three letters and the aforesaid oral evidence of P.Ws. 2, 3 5 6 and 20 are inadmissible in evidence under section 32(1) of the Evidence Act for reasons to be given elsewhere in my judgment. Thus there is no acceptable evidence on record to show that either the appellant or his parents ill treat Manju. The High Court also has not found any such ill treatment in its judgment. On the other hand, what has been found by the High Court in para 104 of its judgment is that the appellant treated Manju contemptuously. Even while setting out the case of the prosecution the High Court has stated in para 7 of its judgment that it is alleged that the appellant started giving contemptuous treatment to Manju and in para 20 that the appellant has denied in his statement recorded under s.313 Cr. P.C. that Manju was being treated contemptuously. No question has been put to the appellant in the course of his examination under s.313 Cr. P.C. about any ill treatment of Manju by the appellant or his parents. My learned brother Fazal Ali, J. has referred in pages 97 and 98 of his judgment to this Court 's decisions in Fateh Singh Bhagat Singh vs State of Madhya Pradesh, Shamu Babu Chaugale vs State of Mahararstra and Harijan Megha Jesha vs State of Gujarat(3) and has observed at page 98 of his judgment that circumstance not put to the appellant in his examination under section 313 Cr.PC. have to be completely excluded from consideration in view of those decisions. Therefore, since 185 no question has been put to the appellant in this regard in the course of his examination under s 313 Cr. P.C. even if there is any evidence about any ill treatment of Manju by the appellant or his parents it has to be completely excluded from consideration. I felt it necessary to say this in my judgment since I think that in fairness to the appellant it has to be done. My learned brother Fazal Ali, J. has set out the case of the prosecution in so far as it connects P,W. 37 with the appellant at page 3 of his judgment where he has stated that the positive case of the prosecution is that the appellant was not at all interested in Manju and had illicit intimacy with P.W.37. On this point there is the evidence of P.Ws. 3, 5 and 6. The evidence of P.W.3 is that during her second visit to Beed, Manju informed her that the appellant had a girl friend by name Ujwala Kothari and that he introduced her (Ujvala Kothari) to her and told her that she should learn from Ujvala Kothari about how she should behave with him. The evidence of P.W.5. is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl by name Ujvala Kothari and that she had seen Ujvala 's latter addressed to the appellant and an incomplete letter of the appellant addressed to that girl. No such letters have been produced in evidence. The evidence of P.W.6 is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl by name Ujvala Kothari and also introduced that girl to her in the Pearl Hotel saying that she has complete command over him and that she (Manju) should take lessons from her (Ujvala Kothari) about how she should behave with him. There is no other evidence regarding this alleged illicit intimacy between the appellant and P.W.37. This alleged illicit intimacy is totally denied not only by the appellant but also by P,W.37. The alleged incident in the Pearl Hotel, according to the case of the prosecution took place on 17.3.1982. But there is no reference whatever to any such incident in any of the subsequent three letters of Manju, Exs. 30, 32 and 33, dated 25.4.1982, 8.5.1982 and 8.6.1982 respectively. My learned brother Fazal Ali, J. has rightly rejected the oral evidence not only of P.Ws. 3, 5 and 6 but also of P.Ws.2 and 20 as untrustworthy at page 65 of his judgment. However, at page 68 he has stated that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala Kothari and it had embittered the relationship between the appellant and Manju. In my view, as already stated, the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and or his 186 family, and even her letters Exs. 30, 32 and 33 are inadmissible in evidence under s.32(1) of the Evidence Act. Thus, there is absolutely no reliable or admissible evidence on record to show that the appellant had any intimacy with Ujwala (P.W.37). I am, therefore, unable to share the view of my learned brother Fazal Ali, J. that the prosecution has proved to some extent that the appellant had some sort of intimacy with P.W.37 and it had embittered the relationship between the appellant and Manju. I think that I am bound to say this in fairness to not only the appellant but also P.W.37 who, on the date of her examination in the Court, was a 19 years old student and has stated in her evidence that she had known the appellant only as the President of the Rajasthan Youth Club in the year 1979 when she was a member of that Club for about 5 or 6 months in that year. My learned brother Fazal Ali, J. has referred to the oral evidence of P.Ws.2, 3, 5, 6 and 20 about Manju 's alleged complaint against the appellant and or his parents and also to the contents of Manju letters, Exs. 30, 32 and 33. I have mentioned above the gist of that oral evidence and those three letters. My learned brother has held the said oral evidence and those three latters to be. admissible under s.32(1) of the Evidence Act while rejecting the oral evidence to those five witnesses as untrustworthy at pages 64 and 65 of his judgment, mainly on the ground that the oral evidence is quite inconsistent with the spirit and contents of those letters. He appears of have relied upon those three letters for two purposes, namely, rejecting the oral evidence of those five witnesses as untrustworthy and supporting the defence version that it may be a case of suicidal death. In my opinion the oral evidence of those five witnesses about what Manju is alleged to have told them against the appellant and or his parents and the three letters, are inadmissible under section 32(1) of the Evidence Act, which reads thus: "32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances 187 of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question". The alleged oral statements of Manju to P,Ws. 2, 3, 5, 6 and 20 are said to have been made during her second and third visits to Beed in the end of February 1982 and end of May 1982 respectively before her death during the night of 11/12.6.1982. She had written the letters, Exs. 33, 30 and 32 on 25.4.1982, 8.5.1982 and 8.6.1982 as stated earlier. The oral evidence of these witnesses and these three letters are not as to the cause of Manju 's death or as to any of the circumstances of the transaction which resulted in her death during that night. The position of law relating to the admissibility of evidence under section 32(1) is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, fourteenth edition and Ratanlal and Dhirajlal in their Law of Evidence (1982) reprint). Those propositions are based mostly on decisions of courts for which reference has been given at the end. They are these: Woodroffe & Amir Ali 's Law of Evidence, fourteenth edition. Page 937 'Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second hand source". Page 941 "What is relevant and admissible under clause (1) of this section (Section 32) is the statements actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death". Page 945 946 "A statement must be as to the cause of the declarant 's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, 188 such independent transactions being excluded as not falling within the principle of necessary on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. ; Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person 's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause". (AIR 25 Bombay 45). Page 947 "Circumstances of the transaction resulting in his death; This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death ' do not mean 'caused his death '. The expression 'any of the circumstances of the transaction which resulted in his death ' is wider in scope than the expression 'the cause of his death. The declarant need not actually have been apprehending death." (AIR 1964 M.P. 30). Page 947 "The expression 'circumstances of the transaction ' . occurring in s.32, clause (1) has been a source of perplexity to Courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of their Lordships of the Privy Council in Pukala Narayanaswanmi vs Emperor (LR 66 IA 66) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the sense in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance 189 permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. " Page 948 "Circumstances of the transaction ' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence ' which includes the evidence of all relevant factors. It is on the other hand narrower than 'res gestae '. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose". Page 948 "The Supreme Court in the case of Shiv Kumar vs State of U.P. (1966 Criminal Appeal R. (SC) 281) has made similar observations that the circumstances must have some proximate, relation to the actual occurrence. and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible". Page 949 "The clause does not permit the reception in evidence of all such statement of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. (LR 66 IA 66). 'Circumstances of the transaction which resulted in his death ' means only such facts or series or facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible". (1974 CLJ (MP) 1200). Law of Evidence by Ratanlal & Dhirajlal (1982 Reprint) "Circumstances of the transaction; General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible" (LR 66 IA 66)(18 Part 234). Page 95 "Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant 's death comes into question. It is not necessary that statement must be made after the transaction has taken place or that the person making it must be near death or that the 'circumstance ' can only include the acts done when and where the death was caused. Dying declarations are admissible under this clause". The alleged oral statements of Manju and what she has stated in her letters, Exs 30, 32 and 33 may relate to matters perhaps having a very remote bearing on the cause or the circumstances of her death. Those circumstances do not have any proximate relation to the actual occurrence resulting in her death due to potassium cyanide poison, though, as for instance in the case of prolonged poisoning they may relate to dates considerably distant from the date of the actual fatal dose. They are general impressions of Manju indicating fear or suspicion. whether of a particular individual or otherwise and not directly related to the occasion of her death. It is not the case of the prosecution that the present case is one of prolonged poisoning. Since it is stated by the learned authors woodroffe and Amir Ali in their tratise at page 947 that the decision of their Lordships of the Privy Council in Pakala Narayanaswami vs Emperor (1) sets the limit of the matters that could legitimately be brought within the purview of the expression 'circumstances of the transaction and that decision is referred to in several other decisions of our courts, it would be necessary to extract the relevant passage in this judgment. The learned Lords have observed at pages 75 and 76 thus: "A variety of questions has been mooted in the Indian courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has 191 taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expression indicating fear of suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculapatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "re gestae" Circumstances most have some proximate relation to the actual occurrence: though, as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. " I am, therefore of the opinion that the oral evidence of these witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and or his parents and what the has stated in her letters, Exs. 30 32 and 33, are inadmissible in evidence under s.32(1) of the Evidence Act and cannot be looked into for any purpose. At this stage. it may be stated that Mr. Ram Jethmalani, learned counsel for the appellant submitted that the said oral evidence of those five witnesses is inadmissible under section 32(1) though at first he sought to rely upon the letters, Exs 30, 32 and 33 which seem to lend support to the defence theory that it may be a case of suicide, he ultimately conceded that what applies to the relative oral evidence of P.Ws. 2, 3, 5, 6 and 20 would equally apply to the letters, Exs. 30, 32 and 33 and that they too would be inadmissible 192 in evidence. The Additional Solicitor General who had strongly relied upon the said oral evidence of these five witnesses and the letters, Exs. 30, 32 and 33 at first proceeded in the end of his arguments on the basis that they are inadmissible in evidence. In these circumstances, I am firmly of the opinion that the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and or his parents as well as the letters, Exs. 32, 32 and 33 are inadmissible in evidence under section 32(1) of the Evidence Act. About Dr. Banerji (P.W. 33) who conducted autopsy on the body of Manju what my learned brother Fazal Ali, J. has said in his judgment is this: "In column 5 of postmortem notes Dr. Banerjee has clearly written 'can be a case of suicidal death ' which indicates that in the absence of the report of the Chemical Examiner he was of the opinion that it could have been a case of suicide. In his evidence P.W 33 has stated that in exhibit 128 in column No. 5 the contents scored out read 'time since the death ' and since it was repeated in the next line he scored out the words in the second line. Despite persistent cross examination the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter was of vital importance and expected the High Court to have given serious attention to this aspect which goes in favour of the accused. In the original while filling up the said column the Doctor appears to have scored out something. The filled up entry appears thus: 'mouth is closed with tip (something scored out) seen caught between the teeth. But in the carbon copy of the report which was sent to the Chemical Examiner (exhibit 132 he has written 'caught between the teeth ' in ink; but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the Chemical Examiner does not contain any interpolation against the 'said column where the filled up entry reads 'inside mouth '. These circumstances show that Dr. Banerjee (P.W.33) tried to introduce some additional facts regarding the position of the tongue . This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor 193 the entries must have been made after the copy was sent to the Chemical Examiner". I entirely agree with these findings of my learned brother Fazal Ali, J. But I am unable to share his view that these "circumstances are not of much consequence the opinion of the Doctor was that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation and that this aspect need not detain the Court any further because the High Court has not accepted the case of mechanical suffocation" and that though a number of comments were made on behalf of the appellant about Dr. Banerji 's integrity and incorrect report he does not find any substance in those contentions subject to what he has stated about him. The fact that the High Court has rejected the case of the prosecution based on Dr. Banerji 's report and evidence that it was also a case of mechanical suffocation is not one that could be taken into consideration as a mitigating circumstance in judging the conduct of the Doctor who had conducted the autopsy in a case of suspicious death. The fact that he had reserved his opinion about the cause of death and had then noted in his report that the tongue was inside the mouth but has interpolated the words 'mouth is closed with tip (something scored out) seen caught between the teeth ' and 'caught between the teeth ' only after receipt of the Chemical Examiner 's report to support the view that it was also a case of mechanial suffocation, is not a mitigating circumstance in favour of P: W. 33 The Doctor had scored out the words 'can be a case of suicidal death ' and has persisted in his reply that he had scored out only the words 'time since the death ' which he claims to have written twice, which explanation has been rightly rejected by my learned brother Fazal Ali. The conduct of the Doctor in making these later inter polations and alterations in the records of the postmortem examination in the case of suspicious death in which the appellant has been sentenced to death by the two courts below, deserves serious condemnation. The Doctor has tampered with material evidence in the case of alleged murder, may be at the instance of somebody else, ignoring the probable consequences of his act. In these circumstances, I am of the opinion that Dr. Banerji (P.W.33) is a person who should not be entrusted with any serious and responsible work such as conducting autopsy in the public interest. In this case the appellant would have gone to gallows on the basis of the evidence of P.W.33 as he would have the 194 court to believe it, and theo ther evidence, if they had been accepted, but they have been rightly discarded by my learned brother Fazal Ali, J. as unworthy of acceptance against the appellant. I agree with my learned brother Fazal Ali, J. that the High Court has clearly misdirected itself on many points in appreciating the evidence and has thus committed a gross error of law. I feel that something has to be stated in the judgment in this case about the way the Investigating officer and the learned Additional Sessions Judge, Pune who had tried the case had gone about a their business. Charge No. 3 is against the third accused for instigating Mohan Asava (P.W. 30) to give false information to the police regarding the offence of murder namely, that the appellant found Manju dead when he tried to wake her up at 5.30 a.m. on 12.6.1982. It is the case of the prosecution itself that P.W.30 informed the police accordingly at 7 or 7.15 a.m. on that day after receipt of telephonic instructions from the third accused at 6.30 a.m. though he had himself seen the dead body of Manju earlier in the appellant 's flat where he was taken by the third accused who had gone to his flat at about 4 or 4.15 a.m. and informed him that Manju was dead, and he (P.W.30) left the appellant 's flat a little later at about 5 or 5.15 a. m. after telling Dr. Lodha (P.W. 34) that he was going to report to the police. Thus, it would appear that the case of the prosecution itself is that P.W. 30 is the principal offender as regards giving false information to the police about the death of Manju. Yet the Investigating officer had not filed any charge sheet against P.W. 30 but has conveniently treated him as a prosecution witness. The Additional Sessions Judge, Pune appears to have exercised no control over the evidence that was tendered in this case and to have been oblivious of the scope of the examination of the accused under. section 313 Cr. P.C. This is reflected by some of the questions put to the appellant. Question No. 24 relates to P.W. 20 not maintaining good health and falling ill now and then. Question No. 25 relates to P.W. 22 being a patient of high blood pressure and having suffered a stroke of paralysis 7 years earlier. Question No. 30 relates to a reception held at Pune on 13.2.1982 in connection with the appellant 's marriage with Manju. Question No. 32 relates to P.W. 6 asking the appellant 's father Birdhichand for permission to take Manju to Beed with her when the party from P.W.2 's side started from Pune for Beed on 14.2.1982. Question No. 115 relates to P.W.30 indulging in criminal acts of rowdyism, tax evasion etc, and being known as a contact man of the police. section 313 Cr. P. C. 195 lays down that in every inquiry or trial for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him the Court may at any stage, without previously warning the accused, put such questions to him as the court considers necessary and shall, after the witnesses for the prosecution have been examined and before he is called for his defence, question him generally on the case. It is clear that the evidence on the basis of which the above questions have been put to the appellant is wholly irrelevant and that those questions do not relate to any circumstance appearing in the evidence against the appellant. The learned Additional Sessions Judge was bound to exercise control over the evidence being tendered in his court and to know the scope of the examination of the accused under section 313 Cr. P. C. In the end, as I said earlier, I agree with my learned brother Fazal Ali, J. that the appeal has to be allowed. Accordingly I allow the appeal and set aside the conviction and sentence awarded to the appellant and direct him to be set at liberty forthwith. SABYASACHI MUKHARJI, J. I have the advantage of having read the judgments prepared by my learned brothers Fazal Ali, J. and Varadarajan, J. I agree with the order proposed that the appeal should be allowed and the judgments of the courts below should be set aside and the appellant Sharad Birdhichand Sarda be acquitted of the charges framed against him and he should be released forth with. I do so with some hesitation and good deal of anxiety, because that would be interfering with the concurrent findings by two courts below on a pure appreciation of facts. The facts and circumstances have been exhaustively and very minutely detailed in the judgment of my learned Brother Fazal Ali, J. Those have also been set out to certain extent by my Brother Varadarajan, J. It will therefore serve no useful purpose to repeat these here. It is necessary, however, for me to make the following observations. It is a case of circumstantial evidence. It is also undisputed that the deceased died of potassium cyanide on the night of 11th and 12th June. 13th June was the date fixed for the betrothal of the sister of the accused. There is no evidence that the accused was in any way hostile or inamicable towards his sister. The deceased had a very sensitive mind and occasionally had suffered from mental depression partly due to the fact of adjusting in a new family and partly due to her peculiar mental make up but mainly perhaps due to the family set up of the accused husband. There is no direct 196 evidence of administering poison. There is no evidence either way that either the deceased or the accused had in her or his possession any potassium cyanide. In these circumstances my learned brothers, in view of the entire evidence and the letters and other circumstances, have come to the conclusion that the guilt of the accused has not proved beyond all reasonable doubt. As I have mentioned before, I have read the two judgments by my two learned brothers and on some points namely, four points mentioned in the judgment prepared by my Brother Varadarajan. J., he has expressed views different from those expressed by Fazal Ali, J. and these are: (1) ill treatment of Manju by the appellant; (2) intimacy of the appellant with Ujwala (P.W.37); (3) admissibility of Manju 's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the appellant under s.32(1) of the Evidence Act; and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju. On the three points, namely ill treatment of Manju by the appellant, intimacy of the appellant with Ujwala (P.W.37) and the conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju, I would prefer the views expressed by my learned brother Fazal Ali, J. On the question of admissibility of Manju 's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the accused under section 32(1) of the Evidence Act, my learned brother Fazal Ali, J. has observed about section 32(1) as follows: "The test of proximity cannot be too literally construed and practically reduced to a cut end dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama 197 would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3 4 months the statement may be admissible under s.32." (Emphasis by me). I would, however, like to state here that this approach should be taken with great deal of caution and care and though I respectfully agree with Fazal Ali, J. that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut and dried formula of universal application but it must be emphasised that whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purposes that for instance where a death takes place within a short time of marriage and the distance of time is not spread over three or four months, the statement would be admissible under section 32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstances like the circumstances in the present case such statements my be admissible and that too not for proving the positive fact but as an indication of a negative fact, namely raising some doubt about the guilt of the accused as in this case. For the purpose of expressing my respectful concurrence with the views of Justice Fazal Ali, it is not necessary for me to agree and I do not do so with all the detailed inferences that my learned brother has chosen to draw in respect of the several matters from the exhibits in this case. I am also with respect not prepared to draw all the inferences that my learned brother has chosen to draw in the paragraph beginning with the expression "the careful perusal of this letter revealed the following features". This my learned brother was speaking in respect of exhibit 33. I however, respectfully agree with my learned brother when he says that a close analysis and ading of the letter namely exhibit 33 clearly indicates: 198 (a) that the deceased was extremely depressed. (b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide. Similarly I have some hesitation about the English rendering of exhibit 32 which is letter dated 8th June, 1982 which has been set out by my learned brother and which has been set out in his judgment which contains the expression "I do not know why there is such a dirty atmosphere in the house?" As the original letter was read out in Court and we had the advantage of that, I am inclined to take the view that the correct and the more expressive expression would be "I do not know why there is such a foul atmosphere in the house?" Read in that light and in the context of other factors, this letter causes some anxiety. It the deceased was sensing foul atmosphere, why was it? But this again is only a doubt. It does not prove the guilt of the accused. In view of the fact that this is a case of circumstantial evidence and further in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him. In that view of the matter I agree with my learned brothers that the guilt of the accused has not been proved beyond all reasonable doubt. In the premises as indicated before, I agree with the order proposed. S.R. Appeal allowed. [/INST]The respondent, Secretary of the workers union of a construction company, D.W. 1, Vice President of the Union, the deceased and P.Ws. 5 and 7, officers of the company and P.W. 6, standing counsel of the company were all coming out of the office of an industrial tribunal after filing their written statements in a dispute raised by the workers. The prosecution case was that at the main gate of the tribunal 's building the respondent suddenly star ted firing from a pistol and shot dead the deceased. As firing was going on, a telephonic message conveying the fact that gunshots were being fired was sent to the nearby police station on receipt of the telephonic message the police arrived at the spot, seized the pistol and took the respondent and some of the witnesses to the police station where a formal FIR was registered. The Session Judge convicted the accused under section 302 IPC and section 25 (1) (a) of Indian Arms Act and sentenced him to life imprisonment and one years ' rigorous imprisonment respectively. On appeal the High Court reversed the judgment of the Sessions Judge. The High Court observed that if P.W. 7 had given the telephonic message, as stated by D.W. 1. he would have mentioned the name of the assailant because he was a full fledged eye witness but since his name had not been mentioned it was the strongest Possible circumstance to discredit the prosecution case. Hence this appeal. Allowing the appeal, ^ HELD: Normally this Court does not interfere against the judgment of 2 the High Court purely on appreciation of evidence. But this Court would interfere with the decision of the High Court if there appear to be very special circumstances which have been either overlooked or not considered by the High Court or the High Court does not appear to have examined the intrinsic merits of the evidence of the witnesses but has proceeded to acquit the accused on general grounds which are wholly untenable. [5B C] A cryptic information on telephone has been held by this Court to be of no value at all. The mere fact that the information was the first in point of time does not by itself clothe it with the character of first information report. Tapinder Singh vs State of Punjab, ; , referred to In the instant case the telephonic message was an extremely cryptic one and could not be regarded as a FIR in any sense of the term. The High Court has applied two different standards to assess the evidence of the prosecution and that of the defence. While the High Court accepts the uncorroborated evidence of D.W. 1, who is as much interested in the dispute as the deceased, if not more, being Vice President of the Union and also in possession of the brief case of the respondent, yet it disbelieves the evidence of P.Ws. 5 and 7 mainly on the ground that they were highly interested. [7H, 8A B] The High Court completely lost sight of two important facts (1) that P.Ws. 5 and 7 were high officers of the company and were not likely to depose falsely on a matter like this, and (2) that r. W. 6, who was the standing counsel of the company and other labour cases for more than 3 decades, fully corroborates the evidence of P.Ws. 5 and 7. We have examined the evidence of P.Ws. 5 and 7 with very great care and caution but we are unable to find any discrepancy or defect in their evidence so as to lead any court to reject the same. [8E F] The finding of the High Court that it is difficult to believe that after the respondent threw the pistol he continued to remain at the spot and did not make any attempt to escape is also most unrealistic. There is clear evidence of P.Ws. 5, 6 and 7 that after the respondent threw down the pistol he was surrounded by the three witnesses so that he could not escape. The High Court has failed to consider this important aspect of the matter. Moreover, if a person commits a cold blooded murder in the premises of a court which is bound to be full of other litigants also, he cannot think of escaping and is bound to be caught by some one or the other. [9A C] Relying on the evidence of D.W. 1, the conclusion reached by the High Court that it is extremely doubtful that the witnesses could see the incident from inside the court room as there was no door or window through which 3 the incident could be seen is purely speculative and against the weight of evidence on record. The evidence of D.W. 1, who was a highly interested witness, should not have been acted upon in the peculiar facts and circumstances of this case unless corroborated by independent evidence. [9D; F G] The High Court seems to have completely overlooked the fact that there was no reason for the three eye witnesses, one of whom was a standing counsel for about 30 years, to have falsely implicated the respondent merely because he was Secretary of the Union. The consistent course of conduct of the respondent speaks volumes against his innocence. He was caught red handed at the spot and was surrounded by the witnesses so that he could not escape, and the police arrived within fifteen minutes of the occurrence and took him to the police station. [9H; 10A] </s>
<s>[INST] Summarize the judgementiminal Appeal No. 17 of 1968. Appeal by special leave from the judgment and order dated August 17, 1967 of the Bombay High Court in Criminal Revision Application No. 668 of 1967. section Bhutani and Urmila Kapur, for the appellant. B. R. L. Iyengar and P. C. Bhartari, for the respondents. The Judgment of the Court was delivered by Shelat, J. At all material times respondent I had her office premises in Nawab Building, Fort, Bombay, which consisted of two cabins. On July 10, 1964, she entered into an agreement with the appellant permitting him, to occupy one of the cabins on leave 82 and licence for a period of eleven months. On June 9, 1965, the agreement was extended for a period of eleven months. The appellant 's case was that it was further extended for another eleven months as from May 10, 1966 and respondent 1 accordingly accepted Rs. 450 as compensation for May 1966. Respondent I thereafter demanded higher compensation which he refused to pay and thereupon respondent 1 refused to execute the renewal and threatened to eject him forcibly if he did not vacate. His case further was that in the morning of June 11, 1966 respondent 1 broke open the staple of the cabin, removed the door from its hinges, removed all his belongings lying in the cabin and dumped them in the passage outside. She then handed over possession of the cabin to respondents 2 and 3 purporting to do so under an agreement of licence dated June 1, 1966. When he went to the cabin he found the cabin occupied by respondents 2 and 3. On his asking them to place back his belongings and to restore possession to him, the respondents threatened him with dire consequences. He, therefore, went to the police station but the police refused to take action and only recorded his N.C. complaint. From the police station he and his friend, Mahomed Salim returned to the cabin when, on their demanding possession of the cabin, the respondents attacked them. In the course of that attack, the said Salim received injuries. He and the said Salim once again went to the police station but the police again refused to take action and recorded another N.C. complaint and sent Salim to the hospital for examination. Due to the persistent refusal by the police to help him to get back the cabin, the appellant approached higher authorities in consequence of which the police at last recorded a case of assault against respondent 1. They then arrested respondent 1 but released her on bail. Respondent 1, however, kept some persons near the cabin to prevent the appellant from recovering possession. There was, therefore, every likelihood of a breach of the peace had he gone to the cabin to regain possession. In these circumstances he filed an application before the Additional Chief Presidency Magistrate under section 145 of the Code of Criminal Procedure. The Magistrate then directed the parties to file affidavits and to adduce such further evidence as they desired. Accordingly, the parties filed affidavits of various persons who had their offices in the same building. The appellant, besides other affidavits, also filed an affidavit of one Nathani, the Manager of his company at whose instance, it was the case of respondent 1, the appellant had agreed to hand over and actually did hand over possession of the cabin in the morning of June 11, 1966. That affidavit, however, did not support respondent 1 but, on the contrary, denied that Nathani had agreed that the appellant could vacate or that the appellant at his instance had agreed to do so. 83 In her written. statement, respondent I denied that the said licence was renewed a second time in May 1966. Her case was that at the request of the appellant she had permitted him to continue in possession, till May 1966 on his promising to vacate by the end of that month, that on June, 11, 1966, the appellant vacated the cabin, kept his belongings in the passage and thereupon she permitted respondents 2 and 3 to occupy it as, relying on the appellant 's promise that he would vacate by the end of May 1966, she had already entered into an agreement of licence on June 1, 1966 with respondent 3. She denied that any incident, as alleged by the appellant, had occurred on that day or that the appellant or the said Salim was assaulted by her or by respondent 2 or 3. She, therefore, denied that any dispute existed on that day or that there was any likelihood of a breach of the peace. Respondents 2 and 3 also filed their written statements on the lines taken by respondent 1. But after filing them, they did not participate any more in the proceedings as they had since then vacated the said cabin. Possession, therefore, of the cabin since then remained with respondent 1. Respondent 1 in the meantime filed a suit in the City Civil Court and took out a notice of motion for restraining the appellant from, interfering with her possession of the cabin. The Court dismissed the notice of motion refusing to rely on the said agreement. In the proceedings before the Magistrate the main question was whether the appellant was in actual possession on June 11, 1966 and whether he was forcibly and worngfully dispossessed by respondent 1 or whether he had vacated and surrendered the cabin to respondent 1. After considering the affidavits and the evidence led by the parties, the Magistrate reached the following findings. (1) that respondent 1 started harassing the appellant from the beginning of June 1966 and gave threats to forcibly dispossess him if he did not vacate; (2) that the appellant 's version that the respondents had forcibly and wrongfully taken possession of the cabin in the morning of June 11, 1966 was true; and (3) that when the appellant and the said Salim went to the cabin, the respondents manhandled them as a result of which Salim received injuries. On these findings, he held that the appellant was in actual possession on June 11, 1966 and that under the second proviso to section 145 (4), though he had been dispossessed on June 1 1, he must be deemed to be in possession on June 20, 1966 when the Magistrate passed his preliminary order. By his final order dated ' June 22, 1967 passed under sub section (6), the Magistrate directed restoration of possession to the appellant till he would be evicted ' in due course of law and prohibited the respondents from interferring with his possession till then. In the revision before the High Court, the respondents raised two contentions : (1) that the Magistrate, in entertaining the said 84 application and passing the said preliminary order,. misconceived the scope of proceedings under section 145, and (2) that he had no jurisdiction to pass the said preliminary order as in the events that had happened there was no existing dispute likely to result in a breach of the peace. , The High Court accepted these contentions .and set aside the order of the Magistrate. In doing so, it observed that the object of section 145 was to, preserve peace and to provide a speedy remedy against a likely breach of peace where there is an existing dispute regarding possession of an immovable property until such dispute is adjudicated upon by a proper tribunal. That section, therefore, can be invoked where these two conditions exist, namely, an existing dispute and an apprehension of breach of peace. The Magistrate, therefore, had to be satisfied as to the existing of these two conditions when he passed the preliminary order. The High Court then observed that assuming that the appellant was forcibly and wrongfully dispossessed and the said Salim was assaulted by respondent 1 and her men, it could not even then necessarily mean that there was an existing dispute relating to possession of the cabin which was likely to cause breach of peace on June 20, 1966 when the Magistrate passed his preliminary order. The acts of respondent I might constitute an offence, for which the appellant had filed a complaint under section 341 of the Penal Code and the police had arrested respondent 1. and released her on bail, In the light of these facts the Magistrate ought to have held that on that day there did not any longer exist any dispute regarding possession of the said cabin which was likely to lead to a breach of the peace. The High Court, further, observed that the preliminary order did not also record the reasons for the Magistrate 's satisfaction as to the two conditions and that all that it stated was that on the facts stated in the said application, he was satisfied that there was a dispute which was, likely to cause breach of the peace. The High Court also observed that all that the application showed was that there was forcibly dispossession and an attempted assault; that from these two facts it was difficult to see bow, without any further enquiry, the Magistrate could come to the conclusion that there was likelihood of breach of peace unless it was assumed that in every case of a dispute over possession of an immoveable property and forcibly dispossession there would be continuous possibility of breach of peace. The High Court complained that the Magistrate did not call for a police report and simply relied on the bare allegations of an interested party. On this reasoning, it held that the Magistrate had misconceived the scope of proceedings under section 145 and passed the preliminary order as if it was a process issued by him in a non cognisable case. The High Court also noted that respondent I had placed respondent (3) in possession, that respondent 3 had remained in possession for nearly a year by the time the Magistrate passed his final order, that the final order would, therefore, affect his vested rights, and that 85 this fact coupled with the fact of the appellants complaint under section 341 of the Penal Code on June 13, 1966 ought to have been considered by the Magistrate before passing the final order. As aforesaid, the High Court set aside the Magistrate 's order whereupon the appellant obtained special leave and filed this appeal challenging the correctness of the High Court 's order. Before proceeding further, we may mention that respondents 2 and 3 had vacated the premises long before the Magistrate passed the final order. There was, therefore, no question of the Magistrate having to consider the question of their having been in possession for about a year or their having any vested rights under the agreement dated June 1, 1966. It may also be recalled that the City Civil Court had refused to rely on the said agreement and to pass an interim injunction restraining the appellant from disturbing the possession of respondent 1. The object of section 145, no doubt, is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined a competent court. The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute, regarding an immoveable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order under sub section (1) and thereafter to make an enquiry under sub section (4) and pass a final order under sub section It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties. Under the second proviso, the party who is found to have been forcibly and wrongfully dispossessed within two months next preceding the date of the preliminary order may for the purpose of the enquiry be deemed to have been in possession on the date of that order. The opposite party may of course prove that dispossession took place more than two months next preceding the date of that order and in that case the Magistrate would have to cancel his preliminary order. On the other hand, if he is satisfied that dispossession was both forcible and wrongful and took place within the prescribed period, the party dispossessed would be deemed to be in actual possession on the date of the preliminary order and the Magistrate would then proceed to make his final order directing the dispossessor to restore possession and prohibit him from interfering with that possession until the applicant is evicted in due course of law. This is broadly the scheme of 145. 86 The satisfaction under sub section (1) is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, ,has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub section is clear and unambiguous that he can .arrive at his satisfaction both from the police report or "from other information" which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate. The question is whether the preliminary order passed by the Magistrate was in breach of section 145(1), that is, in the absence of either of the two conditions precedent. One of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction. The section, no doubt, requires him to record reasons. The Magistrate has expressed his satisfaction. on the basis of the facts set out in the application before him and after he had examined the appellant on oath. 'That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction. The other reason which, according to the High Court, vitiated the order was that the Magistrate acted only on the allegations in the appellant 's application without making any further enquiry and issued the order as if he was issuing a process in a N.C. case. But counsel for the respondents conceded that before passing the order the Magistrate had examined the appellant on oath and it was then only that he made the order recording his satisfaction. But apart from the allegations in the application as to his forcible and wrongful dispossession and assault, there was the fact that on . June 11, 1966 the appellant had gone twice to the police station, requested the police to take action and had lodged two N.C. complaints. This material being before the Magistrate, it was hardly 'fair to blame the Magistrate that he had passed his preliminary order lightly or without being satisfied as to the existence of the 'two conditions required by the sub section. Was the High Court next justified in observing that the Magistrate ought to, have got a police report on the allegations made in the application before he passed his said order ? Such a view has been taken in some decisions. In Phutania vs Emperor(1) the view taken was that it was a safe general rule for a Magistrate to refuse to take action under section 145 except on a police report and that the .absence of such. a report is almost conclusive indication of the absence of any likelihood of breach of peace. A similar opinion has also been expressed in Ganesh vs Venkataswara(2) where, (1) (1924) 25 Cr. L.J.1109. (2) 87 relying on Raja of Karvetnagar V. Sowcar Lodd Govind Doss(1), the Mysore High Court observed that law and order being the, concern of the police it is but natural that the Magistrate should either be moved by the police or if moved by a private party, he should call for a police report regarding the likelihood of breach of peace. But the High Court of Madras in the case of Raja of Karvetnagar(1), did not lay down any such proposition but merely sounded a note of caution that in the absence of a police report the statements of an interested party should not be relied on without caution and without corroboration. ' the proposition that the Magistrate before proceeding under section 145 (1) must, as a rule, call for a police report where he is moved by a private party or that the absence of a police report is a sure indication of the absence of possibility of breach of peace, is not warranted by the clear language of the section which permits the Magistrate to initiate proceedings either on the police report or "on other information". The words "other information" are wide enough to include an application by a private party. The jurisdiction under section 145 being, no doubt, of an emergency nature, the Magistrate must act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section are. existent, he cannot initiate proceedings without a police report. The view taken in the aforesaid two decisions unnecessarily and without any warrant from the language of sub section (1) limits the discretion of the Magistrate and renders the words "other information" either superfluous or qualifies them to mean other information verified by the police. In our view, once the Magistrate, having examined the applicant on oath, was satisfied that his application disclosed the existence of the dispute and the likelihood of breach of peace, there was no bar against his acting under section 145(1). The next ground for the High Court 's interference was that assuming that the appellant was forcibly and wrongfully dispossessed and the said Salim was assaulted, the said dispossession was completed, a complaint of assault was lodged and the police had already taken action before the preliminary order was passed on June 20, 1966. Therefore, it was said, there was no longer any dispute on the date of the order likely to lead to breach of peace and consequently the order did not comply with the requirements of section 145(1) and was without jurisdiction. This reasoning would mean that if a party takes the, law into his hands and deprives forcibly and wrongfully the other party of his possession and completes his act of dispossession, the party so dispossessed cannot have the benefit of section 145, as by the time he files his application and the Magistrate passes his order, the dispossession would be complete and, therefore, there would be no existing, dispute likely (1) (1906) I.L.R .29 Mad.561. 88 to cause breach of peace. Such a construction of section 145, in our view, is not correct, for it does not take into consideration the second proviso to sub section (4) which was introduced precisely to meet such cases. The Magistrate has first to decide who is in actual possession at the date of his preliminary order. If, however, the party in de facto possession is found to have obtained possession by forcibly and wrongfully dispossession the other party within two months next preceding the date of his order, the Magistrate can treat the dispossessed party as if he was in possession on such date, restore possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law. The proviso is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law. So that it is not possible to say that such an act of dispossession was completed before the date of the order. To say otherwise would mean that if a party who is forcibly and wrongfully dispossessed does not in retaliation take the law into his hands, be should be at disadvantage and cannot have the benefit of section 145. The word "dispossessed" in the second proviso means to be out of possession, removed from the premises, ousted, ejected or Excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession : (of Edwick vs Hawkes(1) and jiba vs Chandulal) (2). Sub section (6) of section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law. In Jiba vs Chandulal (2) the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dispossessed party was in actual or demand possession under the second proviso. Similarly, in A. N. Shah vs Nageswar Rao(") it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under section 145 should be dropped. It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him. That does not mean that he is not to have the benefit of the remedy under section 145, The (1) (2) A.I.R. 1926 Bom. (3) A.I.R.1947 Mad. 133. 89 second proviso to sub section (4 ) and sub section (6) contemplate not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession: (of Subarna Sunami vs Kartika Kudal) (1) It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under section 145 and give direction permissible under sub section In our view, the High Court erred in holding that merely be cause dispossession of the appellant was completed before June, 20. 1966, there was no dispute existing on that day which was likely to lead to breach of peace or that the Magistrate was, therefore, prevented from passing his preliminary order and proceeding thence to continue the enquiry and pass his final order. In our view, reading section 145 as a whole, it is clear that even though respondent 1 had taken over possession of the said cabin, since that incident took place within the prescribed period of two months next before the date of the preliminary order, the appellant was deemed to be in possession on the date of that order and the Magistrate was competent to pass the final order directing restoration of possession and restraining respondent 1 from interfering with that possession until the appellant 's eviction in due course of law. We, therefore, allow the appeal, set side the High Court 's order and restore that of the Trial Magistrate. G.C. Appeal allowed. (1) (1954) I.L.R.Cuttak 215. [/INST]A postcard written by R to a lady M requesting her to ask another lady to meet him, was made over to the first appellant a Police SubInspector. The first appellant asked the second appellant his writer constable to fetch R. On his arrival, R was asked to pay money otherwise he would be harassed. R approached the Deputy Superintendent of Police, Anti Corruption Department, as a result of which a trap was laid and the currency notes treated with anthracene given to R for the payment R and one D went to the first appellant, who directed R to pay it to the second appellant. The first appellant took Out the postcard, tore it and burnt it, while R paid the money. Another police Sub Inspector and constable both belonging to the Anti Corruption Department were keeping a watch from nearby compound. The second appellant went to two shot)s and changed some currency notes there. The Dy. S.P. searched the first appellant but nothing incriminating was found. he seized the burnt pieces of postcard, sonic of the unburnt pieces were recognised by R. The Dy. S.P. seized the currency notes from the shops and their number tallied. The second appellant was arrested and considerable anthracene powder was found on his person. The appellants were tried tinder sections 161 ind 165A IPC and sections 5(1)(d) and 5(2) of the Prevention of Corruption Act by Special Judge, Ahmedabad. An objection was taken to the trial that in view of Bombay State Commissioner of Police Act, 1959, the investigation should have been made by a Superintendent of Police is there was a Police Commissioner in that city, which was upheld and it fresh investigation ordered by a Superintendent of Police. Because of the fresh investigation, in respect of most witnesses, the police diary contained two statements one recorded by the Dv. S.P. and the other by the S.P. While deposing in the trial Court, M asserted that she had destroyed the postcard as soon as she read it, and she was cross examined by the prosecution in reference to her earlier statement to the Dy, S.P, to the effect that he had Liven the postcard to the first appellant. The Trial Court accepted the prosecution case and convicted the appellants, which was upheld by the High Court. In appeal before this Court, the appellants contended that (i) in view of the order of reinvestigation, the record of the investigation made by the Dy. S.P.stood wiped out, and therefore M could not have been crossexamined with reference thereof; (ii) the conviction could not solely be,based on the evidence of R and Police witnesses, who were all interested witnesses; (iii) no offence. was made out under section 161 IPC, as the prosecution had to establish that they were public servants and had obtained illegal gratification for showing or forbearing to show in exercise of their official 'functions, favour, or disfavour to R; and (iv) the Prosecution was barred 23 by limitation by section 161(1)of the Bombay Police Act, 1951 as it was instituted more than six months of the offence. HELD : The appeal must be dismissed. (i)Though the first investigation was not in accordance law, but yet it was in no sense non est. Investigation includes laying of trap. That part of the investigation was done by the Dy. The Statements recorded by the Dy. S.P. in the course of his investigation, though the investigation in question was illegal, were still statements recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure and consequently they fell within the scope of sections 161 and 162 of the Code.[27C F] S.N. Bose vs State of Bihar, Cr. A. 109 of 1967 decided on March 26, 1968;H. N. Rishbud vs The State of Delhi. ; ; and The State of Bihar vs Basawan Singh, ; , followed. (ii) While in the case of evidence of an accomplice no conviction can be based on his evidence unless it is corroborated in material particulars but ,is regards the evidence of a partisan witness it is open to a court to convict an accused solely on that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for coroboration. In this case, R. and the police witnesses could not be said to be accomplices, and both the courts below have fully accepted their evidence. So it was open to them to convict the appellants on the basis of their evidence. That apart their evidence was substaintially coroborated by the evidence of D and the shopkeepers. [29B D] The State of Bihar vs Basawan Singh, ; ; followed. Rao Shiv Bahadur Singh vs State of Vindhya Pradesh, , overruled. Major E.G. Barsay vs The State of Bombay; [1962] 2 S.C.R. 195, distinguished. (iii) Offence under section 161 IPC was made out, The question whether there was any offence which the first appellant could have investigated or not was irrelevant. If he had used his official position to extract illegal gratification, the requirement of law was satisfied. [29F] Mahesh Prasad vs The State of U.P. ; ; Dhaneshwar Narain Saxena vs The Delhi Administration ; , followed. (iv) Section 161(1) of the Bombay Police, Act, 1951 was inapplicable to this case. The appellants could not be said to have received bribe under the colour of their duty. There was no connection between the duties to he performed by them and the receipt of the bribe in question. All that could be, said was that the first appellant a police officer, taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter M handed over to him coerced R to pay illegal gratification to him. This could not be said 4to have been done " under colour of duty". The charge against the second appellant was that he aided the first appellant in his illegal activity. [30G 31A] The State of Andhra Pradesh vs N. Venugopal, [1964] 3 S.C.R. 742, referred to. Virupaxappa Veerappa Kadampur vs The State of Mysore, [1963] Supp. 2 S.C.R. 6, held inapplicable. </s>
<s>[INST] Summarize the judgementminal Appeals Nos. 65 and 243 of 1964. Appeals by special leave from the judgment and order dated September 18, 1963 of the Andhra Pradesh High Court in Criminal Appeal No. 385 of 1962. section C. Agarwala, for the appellant (in Cr. A. No. 65/64) and respondent No. 2 (in Cr. A. No. 243/64). K. R. Chaudhuri, for the appellant (in Cr. A. No. 243/64) and respondent No. 1 (in Cr. A. No. 65/64). T. V.R. Tatachari, for respondent No. 2 (in Cr. A. No. 65/64) and respondent No. 1 (in Cr. A. No. 243/64). The Judgment of the Court was delivered by Hidayatullah, J. These are two appeals, one (Criminal Appeal No. 243 of 1964) by one Purna Chandra Rao who has been convicted under section 342, Indian Penal Code by the High Court of Andhra Pradesh but in lieu of the sentence the High Court released him under section 562(1 A) of the Criminal Procedure Code after due admonition, and the other (Criminal Appeal No, 65 of 1964) by one A. K. Mallu against the judgment of the Andhra Pradesh High Court releasing the respondent (who is the appellant 310 in the other appeal) after admonition under section 562 (1 A) of the Code of Criminal Procedure. The two appeals have been respectively filed by the complainant who had lodged a complaint against him on which the conviction resulted, and by the accused. In so far as the appeal of the accused is concerned, we have recorded an order separately which shows that Mr. K. R. Chaudhary, advocate of this Court appeared before us and told us that he would like to withdraw from the case. As the accused is not represented before us, there is no alternative but to dismiss his appeal in default. As regards the other appeal, Mr. section C. Aggarwal contends that section 562 (I A) is not applicable to an offence under section 342 of the Indian Penal Code. His reasons are: that section 562 (1 A) is concerned with offences concerning property and offences not so concerned cannot be subjected to treatment under that section. Section 562 (1 A) reads as follows: "In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years ' imprisonment and no previous conviction is proved against him the Court before whom he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. " Mr. Aggarwala contends that the Code has mentioned several offences by description, such as theft, theft in building, dishonest misappropriation and cheating which are offences connected with property and, therefore, words "any offence under the Indian Penal Code" which follow, must be given an interpretation, confining them to those sections of the Penal Code where property is either directly or indirectly involved. In our opinion, this submission is not correct and Mr. Aggarwala is not right in reading the section as he contends. The offences which are earlier mentioned in the section are punishable with imprisonment of more than two years and, therefore, it was necessary to mention them so as to include them in addition to offences under the Indian Penal Code punishable with not more than two years ' imprisonment. The words "any offence under the Indian Penal Code" therefore cannot be read ejusdem generis with the offences which are mentioned earlier. This clause stands by itself and indicates that all offences punishable with not more than two years ' imprisonment are also capable of 311 being dealt with under s.562 (1 A). Offences against property are all included in Ch. 17 of the Indian Penal Code and if it was desired to limit the operation of section 562(1 A) to offences against property, it would have been the easiest thing to have mentioned the Seventeenth Chapter of the Code. For these reasons, we do not accept the argument. As a result, both the appeals fail and are dismissed. V.P.S. Appeals dismissed. [/INST]The accused was convicted of the offence of wrongful confinement under section 342 I.P.C., and was released after due admonition under section 562(1 A), Criminal Procedure Code. On the question whether the latter section is concerned only with offences relating to property and was therefore not applicable in the present case, HELD : The clause "any offence under the Indian Penal Code punishable with not more than two years ' imprisonment" in section 562(1 A) Cr.P.C., stands by itself and indicates that all offences punishable with not more than two years ' imprisonment are capable of being dealt with under the section. The words "any offence under the Indian Penal Code" cannot be read ejusdem generis with the offences of theft etc. mentioned earlier in the section. Those offences had to be specifically mentioned so as to be included in the section, because, they are offences punishable with im prisonment of more than two years. [310 G H] </s>
<s>[INST] Summarize the judgementAppeal No. 108 of 1954. Appeal from the judgment and decree dated March 21, 1952, of the Calcutta High Court in Appeal from Appellate Decree No. 971 of 1950, arising out of the judgment and decree dated August 29, 1950, of the Court of District Judge of Zillah Burdwan in Title Appeal No. 247/16 of 1948 against judgment and decree dated September 25, 1948, of the Court of Additional Sub Judge, 1st Court, Burdwan, in Title Suit No. 7 of 1946/27 of 1947. 1311 N. C. Chatterjee and Sukumar Ghose, for the appellant. J. N. Banerjee and P. K. Ghose, for the respondents. September 18. The Judgment of the Court was delivered by VENKATARAMA AIYAR J. This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below dismissed his suit, which was one in ejectment. The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This village was granted by the Maharaja of Burdwan in Patni settlement to the predecessors in title of defendants I to 7. The exact date of this grant does not appear, but it is stated that it was sometime prior to the enactment of the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it. The Mahal with which this litigation is concerned, had been at or prior to the permanent settlement set apart as Chaukidari Chakaran lands; that is to say, they were to be held by the Chaukidars for rendering service in the village as watchmen. In 1870, the Village Chaukidari Act, 1870 (Ben. VI of 1870), hereinafter referred to as the Act, was passed, and section 48 of that Act provides that all Chaukidari Chakaran lands assigned for the benefit of any village shall be transferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act. Under section 50, the Collector is authorized to make an order transferring those lands to the Zamindar after determining the assessment payable thereon, and section 51 enacts that: " Such order shall operate to transfer to such zamindar the land therein mentioned subject to the amount of assessment therein mentioned, and subject 1312 to all contracts theretofore made, in respect of, under, or by virtue of, which any person other than the zamindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate. " In accordance with the provisions aforesaid, the suit properties were transferred to the Maharaja of Burdwan, and on June 3,1899, he granted the same to the predecessors in title of defendants I to 7, who at that time held the Patni interest in respect of lot Ahiyapur. Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Rs. 126 8 as., out of which Rs. 84 4 as., had to be paid to the Panchayat within the 7th of Baisakh for being credited to the Chaukidari Fund and the balance of Rs. 42 4 as., was to be paid to the Zamindar within the month of Chaitra. Exhibit B also provides that in default of payment of kist the lands are liable to be sold in proceedings taken under the Bengal Regulation VIII of 1819. Acting under this clause, the Maharaja applied under section 8 of the Regulation to bring the suit lands to sale for realisation of arrears, and at the auction held on May 15, 1937, himself became the purchaser. On February 13, 1941, he granted the lands again on Patni to the appellant, who filed the suit, out of which the present appeal arises, in the Court of the Subordinate Judge, Burdwan, to recover possession thereof from the defendants alleging that they had trespassed thereon. The respondents contested the suit on the ground that, in fact, there were no arrears of rent due under Exhibit B, and that the sale was therefore void. The Subordinate Judge held that there were arrears of rent due from the respondents, and that further as they had not sued to set aside the sale under section 14 of the Regulation within the time limited by law, they could not set up its invalidity as a defence to the action in ejectment. The defendants preferred an appeal against this judgment to the District Court of Burdwan, and there raised a new contention that under the grant, Exhibit B, the suit lands became part of lot Ahiyapur, and that a sale of those lands was 1313 illegal as being a sale of a portion of the Patni. The District Judge after observing that the point was taken for the first time, held on a construction of Exhibit B that it created a new Patni, and that it could therefore be brought to sale, and he also held that section 14 of the Regulation operated as a bar to the validity of the sale being questioned on the ground that the rent claimed was not, in fact, due. He accordingly dismissed the appeal. The respondents took the matter in second appeal to the High Court, and that was heard by a Bench consisting of Das Gupta and Lahiri JJ. who differed from the District Judge both on the construction of Exhibit B and on the bar of limitation based on section 14 of the Regulation. They held that the effect of Exhibit B was merely to make the suit lands part and parcel of the Patni lot Ahiyapur, and that, therefore, the sale of those lands only was bad, as being a sale of a part of the Patni. They further held that as such a sale was void, section 14 of the Regulation had no application. They accordingly allowed the appeal, and dismissed the suit. It is against this judgment that the present appeal has been brought on a certificate granted by the High Court under article 133(1)(a). Mr. N. C. Chatterjee for the appellant urged the following contentions in support of the appeal: (1) The defendants did not raise either in the written statement or during the trial, the plea that under the sanad, Exhibit B, the Chaukidari Chakaran lands comprised therein became part of the Patni settlement of lot Ahiyapur, and, in consequence, their sale was bad as being of a part of the Patni, and the learned Judges should not have allowed that point to be raised in appeal. (2) Exhibit B properly construed must be held to create a new Patni distinct from lot Ahiyapur, and its sale is therefore valid. (3) Assuming that the sale is invalid as being of a part of a tenure, the only right of the defendants was to sue to have it set aside, as provided in section 14 of the Regulation, and that not having been done, it is not open to them to attack it collaterally in these proceedings. We see no substance in the first contention. It is 1314 true that the defendants did not put forward in the trial Court the plea that the effect of Exhibit B was to incorporate the suit lands in lot Ahiyapur Patni, and that, in consequence, the sale was illegal as being of a part of the Patni. On the other hand, the written statement proceeds on the view that Exhibit B created a new Patni unconnected with lot Ahiyapur, and the only defence raised on that basis was that no arrears of rent were due under Exhibit B, and that the sale was therefore invalid. But the true nature of the grant under Exhibit B is a matter to be decided on a construction of the terms of the document, and that is a question of law. It is argued for the appellant that it would be proper in determining the true character of the grant under Exhibit B to take into account surrounding circumstances, that to ascertain what those circumstances are, it will be necessary to take evidence, and that, in consequence, a question of that kind could not be permitted to be agitated for the first time in appeal. But it is well settled that no evidence is admissible on a question of construction of a contract or grant, which must be based solely on the terms of the document, there being no suggestion before us that there is any dispute as to how the contents of the document are related to existing facts. Vide Balkishen Das vs Legge (1) and Maung Kyin vs Ma Shwe La (2). It should, moreover, be mentioned that when the defendants sought to raise this contention in their appeal in the District Court, no objection was taken by the plaintiff thereto. Under the circumstances, the learned Judges were right in allowing this point to be taken. This contention must therefore be rejected. The next point for determination is as to the true character of the grant under Exhibit B, whether it amounts to a new Patni with reference to the Chaukidari Chakaran lands as contended for by the appellant, or whether it incorporates those lands in the Patni of lot Ahiyapur, so as to make them part and parcel of the lands comprised therein, as is maintained by the respondents. To appreciate the (1) (1899) L.R. 27 I.A. 58, 65. (2) (1917) L.R 44 I.A. 236, 243. 1315 true position, it is necessary to examine what the rights of the Zamindar and of the Patnidar were with respect to Chaukidari Chakardan lands at the time of the grant, Exhibit B. These lands had been originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted to the Zamindar in permanent settlement, the income therefrom was not taken into account in fixing the jama payable by him, though they passed to him under the permanent settlement. Then came the Village Chaukidari Act, and under that Act the Government put an end to the services of the Chaukidars as village watchmen, resumed the lands and imposed assessment thereon, and, subject to it, transferred them to the Zamindar; and where the Zamindar had already parted with the village in which the lands were situate, by granting Patni, it became necessary to define the rights of the Zamindar and the Patnidar with reference to those lands. Dealing with this matter, section 51 of the Act provides that the title of the Zamindar on resumption and transfer by the Government shall be subject to " all contracts theretofore made ". Under this section, the Patnidar would be entitled to the Chaukidari Chakaran lands in the same right and on the same terms on which lie held the village in which they are situate. The nature of this right has been the subject of consideration in numerous authorities, and the law on the subject is well settled. In Ranjit Singh vs Maharaj Bahadur Singh (1), it was held by the Privy Council that though the reservation under section 51 is of rights under contracts made by the Zamindar and the word " contract " primarily means a transaction which creates personal obligations, it might also refer to transactions which create real rights, and that it was in that sense the word was used in section 51, and that accordingly the Patnidar was entitled to institute a suit against the Zamindar for possession of those lands and was not obliged to suit for specific performance. But this does not mean that the Patnidar is (1) (1918) L.R. 45 I.A. 162. 167 1316 entitled to hold the lands free of all obligations. He is under a liability to pay to the Zamindar the assessment due thereon, when it is fixed under section 50, and also a share of profits. Vide Bhupendra Narayan Singh vs Narapat Singh (1), where it was held by the Privy Council that when Chaukidari Chakaran lands included in a Patni settlement had been resumed and transferred to the Zamindar under section 51 of the Act, he is entitled to the payment of a fair and equitable rent in respect thereof, and that the fixing of the rent is a condition to the Patnidar being put in possession. Vide also Rajendra Nath Mukherjee vs Hiralal Mukherjee (2) and Gopendra Chandra vs Taraprasanna (3). These being the rights and obligations of the Zamindar and the Patnidar under section 51 of the Act, a grant of the Chaukidari Chakaran lands by the former to the latter serves, in fact, two purposes. It recognises that the grantee is entitled to hold those lands by virtue of his title as Patnidar of the village of which they form part, and it fixes the amount payable by him on account of assessment and share of profits. The question then arises as to what the exact relationship is in which the new grant stands to the original Patni grant. Now, when section 51 of the Act recognises and saves rights which had been acquired under contract with the Zamindar, its reasonable implication is that the rights so recognised are the same as under the contract, and that, in consequence, the settlement of the Chaukidari Chakaran lands in Patni must be taken to be a continuance of the Patni of the village in which they are included. But it is open to the parties to agree that the Chaukidari Chakaran lands should form a new and distinct Patni, and the result of such an agreement will be that while the grantee will hold those lands in Patni right, that is to say, the tenure will be permanent, heritable and alienable so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there is any default in the (1) (1925) L.R. 52 I.A. 355. (2) (3) Cal. 1317 payment thereof are concerned, the now grant will be an entity by itself independent of the original Patni. That that could be done by agreement of parties is well settled, and is not disputed before us. If that is the true position, then the real question to be considered is, what is the agreement of parties with reference to the Chaukidari Chakaran lands, whether they are to be constituted as an independent Patni or whether they should be treated as a continuation of the original Patni or an accretion thereto, and the answer to it must depend on the interpretation to be put on the grant. It is now necessary to refer to the material terms of Exhibit B under which the Chaukidari Chakaran lands were granted to the predecessors of respondents I to 7. It begins by stating that the Patnidars of lot Ahiyapur appeared before the Zamindar and ,prayed for taking Patni settlement of the said 84 Bighas 18 Cottas of land at a yearly rental of Rs. 126/8 as.", and then provides how the amount is to be paid. Then there is the following clause, which is important: "You will pay the rent etc., Kist after Kist according to the Kistbandi in accordance with law, and if you do not pay the same, I will realise the arrears together with interest and costs by causing the aforesaid lands to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws which are in force or will come into force. " Then follow provisions relating to the transfer by the Patnidars of " the aforesaid lands ", succession by inheritance or by will to " the aforesaid lands " and the registration of the name of the transferee or successor in the Sherista, and it is expressly stated that "so long as the name of the new Patnidar is not recorded in the Sherista, the former Patnidar whose name is recorded in the Sherista will remain liable for the rent, and on a sale of the Mahal by auction on institution of proceedings against him under Regulation VIII of 1819 or any other law that will be in force for realisation of arrears of rent, no objection thereto on the Part of the new Patnidar can be entertained." 1318 Then ,there are two clause on which on the respondents rely, and they are in these terms: " If in future it transpires that any other persons besides yourselves have Patni rights in the Patni interest of the, said lot Ahiyapur, such persons shall have Patni rights in these Chakaran lands also to the same extent and in the same manner as they will be found to have interests in the Patni of the aforesaid lot, and if for the said reason any person puts forward any claim against the Raj Estate and the Raj Estate has to suffer any loss therefor, you will make good the said claim and the loss without any objection. If in future the Patni interest in the said lot Ahiyapur be transferred for liability for arrears of rent or if the same comes to an end for any reason, then your Patni interest in these Chakaran lands also will be transferred or will come to an end alongwith the original Patni ,simultaneously. " It is on these two clauses that the learned Judges in the Court below have based their decision that the intention of the par ties was to treat the suit lands as part of the Patni of lot Ahiyapur. Now, it cannot be disputed that the two clauses aforesaid afford considerable support to the conclusion to which the learned Judges have come. The first clause provides that if besides the grantee under Exhibit B there were other persons entitled to Patni rights in lot Ahiyapur, those persons also shall have Patni rights in Chaukidari Chakaran lands to the same extent as in Patni Ahiyapur. That clearly means that the rights conferred on the grantees under Exhibit B have their roots in the Patni lot of Ahiyapur. Likewise, the provision in the last clause that the grantees will lose their rights to the Chaukidari Chakaran lands if their interest in Ahiyapur Patni was sold clearly suggests that the grant under Exhibit B is to be an annexe to the grant of Ahiyapur. As against this, the appellant argues that the other clauses in Exhibit B quoted above strongly support his contention, and that when the document is read as a whole, it unmistakably reveals an intention to treat the suit lands as a distinct Patni. We must now 1319 refer to these clauses. Exhibit B begins by reciting that the grantees desired to take a Patni settlement of 84 Bighas 18 Cottas, which is some indication, though not very strong, that it is to be held as a distinct entity. We have then the clause which provides that when there is default in the payment of kist, the lands are liable to be sold in proceedings instituted under the Regulation. Now, the law had long been settled that a sale of a portion of a Patni is bad, but that if by agreement of all the parties interested different portions thereof are held under different sadads, which provide for sale of those portions for default in pay ment of kist payable respectively thereon, then each of those sanads might be held to have created a separate Patni in respect of the portion comprised therein. Vide Mohadeb Mundul vs Mr. H. Cowell(1) and Monomothonath Dev and another vs Mr. G. Glascott (2). When, therefore, the Zamindar and the Patnidar agreed under Exhibit B that the lands comprised therein could be sold under the Regulation when there was default in payment of kist fixed therefor, they must clearly have intended that those lands should be constituted into a distinct Patni. Otherwise, the clause will be inoperative and void, and indeed, the learned Judges in the Court below have, on that ground, declined to give any effect to it. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim " ut res magis valeat quam per eat ". What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, (2) (1873) 20 Weekly Reporter 275. 1320 that no doubt posits the continuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees tinder the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni. Then there is the clause as to the cesser of interest of the grantees in the Chaukidari Chakaran lands when their title to lot Ahiyapur comes to an end, and according to the respondents, this shows that under Exhibit B the Chaukidari Chakaran lands are treated as part and parcel of the Ahiyapur Patni. If that were so, a sale of lot Ahiyapur must carry with it the Chaukidari Chakaran lands, they being ex hypothesi, part and parcel thereof, and there was no need for a provision such is is made in the last clause. But that clause would serve a real purpose if the Patni under Exhibit B is construed as separate from that of lot Ahiyapur. In that view, when the major Patni of lot Ahiyapur is sold, the intention obviously is that the minor Patni under Exhibit B, should not stand out but be extinguished, a result which could be achieved only by a special provision. We should finally refer to the clauses in Exhibit B providing for transfer of or succession to the Chaukidari Chakaran lands and for the recognition of such transferee or successor as a Patnidar of those lands. It is clear from these provision,s that such a transferee or successor is to hold the lands as a Patnidar, different from the Patnidar of lot Ahiyapur. Reading these clauses along with the last clause, it seems clear that the intention of the parties 1321 was that while a transfer of the Ahiyapur Patni by sale should extinguish the title of the holders of the Chaukidari Chakaran lands a transfer of these lands would have no effect on the title to the lot Ahiyapur Patni. Construing Exhibit B, as a whole, we are of opinion that the intention of the parties as expressed therein was that the Chaukidari Chakaran lands should be held as a distinct Patni. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi vs Umesh Chandra (1), the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. The Chaukidari Chakaran lands situated within that village were resumed under the Act and transferred to the Zamindar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B. In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Sint. Kanchan Barani Debi. She then sued as such purchaser to recover possession of the Chaukidari Chakaran lands. The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did not operate to vest in the purchaser the title in the Chaukidari Chakaran lands, as they formed a distinct Patni. Dealing with this contention, B. B. Ghose J. who delivered the judgment of the Court, observed : concerned to alter the terms of the original patni if they chose to do so; and what we have to see is whether that was done. In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee." The learned Judge then refers to the two clauses cor responding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purchaser was entitled to the Patni as it was created in 1820, (1) A.I.R. 1925 Cal. 807, 1322 and that the plaintiff was entitled to the possession of the Chaukidari Chakaran lands as being part of the Patni. Now, it is to be observed that in deciding that the Chaukidari Chakaran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of ret payable thereon under the deed, and that, in our opinion, deprives the deci sion of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakaran lands in default of the payment of jama, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Forbes vs Git (1), Lord Wrenbury stated the rule in the following terms : " If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later. " We accordingly hold that Exhibit B created a new Patni and that the sale of the lands comprised therein is not bad as of a portion of a, Patni. We are conscious that we are differing from the learned Judges of the Court below on a question relating to a local tenure on which their opinion is, by reason of the special knowledge and experience which they have of it, entitled to the greatest weight. It is also true that the decision in Kanchan Barani Debi vs (1) ,259. 1323 Umesh. Chandra (1) has stood now for over three decades, though it is pertinent to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High Court, prior to this litigation. But then, the question is one of construction of a deed, and our decision that the effect of an agreement of the kind in Exhibit B was to constitute the Chaukidari Chakaran lands into a distinct Patni will not result in any injustice to the parties. On the other hand, the rule that a portion of a Patni should not be sold being one intended for the benefit of the Patnidars, there is no reason why an agreement entered into by them with the Zamindars providing for the sale of a portion, thereof which is really to their advantage, should not be given effect to. Having anxiously considered the matter, we have come to the conclusion that Exhibit B creates a distinct Patni, that the sale thereof on May 15, 1937, is valid, and that the plaintiff has therefore acquired a good title to the suit lands under the grant dated February 13, 1941. In this view, it is unnecessary to express any opinion on the point that was the subject of considerable argument before us as to whether it is open to the defendants to raise the invalidity of the sale held on May 15, 1937, in answer to this action, they not having taken steps to have set it aside, as provided in section 14 of the Regulation. In the result, the appeal is allowed, the judgment of the lower Court reversed and that of the District Judge restored, with costs throughout. Appeal allowed. (1) A.I.R. 1925 Cal. [/INST]The Constitutional validity of similar provisions in the States of Kerala and Tamil Nadu which result in imposition of Sales Tax on cooked food sold only in luxury hotels while exempting the same from sales tax in modest eating houses was challenged by some hoteliers in both States on the ground that this amounted to hostile discrimination and therefore violative of Article 14 of the Constitution. While the Kerala High Court rejected the challenge, the High Court of Madras upheld it. Consequently one set of appeals and a Writ Petition under Article 32 of the Constitution have been preferred by the unsuccessful hoteliers of Kerala and the other set of appeals by the State of Tamil Nadu against the decision of the Madras High Court allowing the Writ Peti tions filed before it by the hoteliers. Upholding the constitutional validity of the impugned provisions in both States, while dismissing the appeals and Writ Petition filed by the hoteliers and allowing the ap peals by the State of Tamil Nadu, this Court, HELD: It is the substance and not form alone which must be seen. The difference in the cooked food classified dif ferently, taxed and taxfree, is as intelligible and real as the two types of customers to whom they are served at these different eating houses. This difference must also be avail able to support the difference in the incidence of the impugned sales tax. This classification does bear rational nexus with the 517 object sought to be achieved. The object clearly is to raise the needed revenue from this source, determined by the fiscal policy, which can be achieved by taxing sale of costly food on the affluent alone in the society. The clas sification is made by grouping together only those places where costly food is sold leaving out the comparatively modest ones. The classification is, therefore, rounded on intelligible differentia and has a rational nexus with the object sought to be achieved. In other words, those grouped together possess a common characteristic justifying their inclusion in the group, but distinguishing them from those excluded; and performance of this exercise bears a rational nexus with the reason for the exercise. [526B D] The scope for classification permitted in taxation is greater and unless the classification made can be termed to be palpably arbitrary, it must be left to the legislative wisdom to choose the yardstick for classification, in the background of the fiscal policy of the State to promote economic equality as well. It cannot be doubted that if the classification is made with the object of taxing only the economically stronger while leaving out the economically weaker sections of society, that would be a good reason to uphold the classification if it does not otherwise offend any of the accepted norms of valid classification under the equality clause. [526F G] The predominant object is to tax sale of cooked food to the minimum extent possible, since it is a vital need for sustenance. Those who can afford the costlier cooked food, being more affluent, would find the burden lighter. This object cannot be faulted on principle and is, indeed, laud able. In addition, the course adopted has the result of taxing fewer people who are more affluent in the society for raising the needed revenue with the added advantage of greater administrative convenience since it involves dealing with fewer eating houses which are easier to locate. This accords with the principle of promoting economic equality in the society which must, undoubtedly, govern formulation of the fiscal policy of the State. [532G H] The classification is made in the present case to bring within the tax next hotels or eating houses of the higher status excluding therefrom the more modest ones. A rational nexus exists of this classification with the object for which it is made ,and the classification is rounded on intelligible differentia. This being a relevant basis of classification related to the avowed object, the legislature having chosen an existing classification instead of resort ing to a fresh method of classification, it cannot be a ground of invalidity even assuming there are other better 518 modes of permissible classification. The classification made under the impugned provisions is neither discriminatory nor arbitrary. [533F G; 534B] Ganga Sugar Corporation Limited vs State of Uttar Pra desh & Ors. ; , ; M/s section Kodar vs State of Kerala, ; ; P.H. Ashwathanarayana Setty & Ors. vs State of Karnataka & Ors. , [1989] Suppl. 1 SCC 696; ITO vs K.N. Takim Roy Rymbai; Federation of Hotel and Res taurant Association of India & Ors. vs Union of India & Ors. , ; A.R. Krishna lyer & Ors. vs State of Madras, [1956] 7 STC 346; Kadiyala Chandrayya vs The State of Andhra, [1957] 8 STC 33 and Budhan Chowdhary vs State of Bihar; , , referred to. </s>
<s>[INST] Summarize the judgementAppeal No. 164 of 1964. Appeal from the judgment and decree dated December 15, 1959 of the Madras High Court in O.S. Appeal No. 22 of 1955. P. Ram Reddy and A. V. Velayudhan Nair, for the appellant. K. R. Chaudhuri, and K. Rajendra Choudhury, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought against the judgment of the High Court of Madras dated December 15, 1959 in O.S. Appeal No. 22 of 1955. The respondent was a trader at Madras in hides and skins. The appellant was a firm, Gordon Woodroffe and Company (Madras), Limited, doing business among other things as exporters of hides and skins. For the period of 8 months commencing from January, 1949, there were as many as 101 contracts entered into between the appellant and the respondent. The case of the respondent was that he entered into an agreement with the appellant to act as agents for shipping the goods (hides and skins) to United Kingdom and for finding purchasers there. It is alleged that the appellant used to make payment to the respondent in respect of the goods sent to it for shipment in the nature of advances and he 3 used to set off these advances when payment was made to the respondent after the goods were shipped. The respondent will hereinafter be referred to as the plaintiff and the appellant as the defendants. The plaintiff tentatively claimed a sum of Rs. 56,564/and odd as due to him as balance of the price of the goods and a further sum of Rs. 40,275/ as representing the loss sustained by him by reason of the defendants ' conduct in not shipping his goods under the "Shaik mark". The plaintiff accordingly prayed that an account should be taken of the dealings between the parties for the period in question. The defendants contested the suit on the ground that it was not an agent of the plaintiff but it purchased hides from the plaintiff for export and for resale in the United Kingdom. The case of the defendants was that there was an outright purchase of the goods from the plaintiff for the purpose of resale in the United Kingdom. The defendants also contended that a sum of Rs. 4,351 / and odd was due to it from the plaintiff and it prayed for a decree against the plaintiff for that amount by way of counter claim. The trial Judge held, by his judgment dated May 6, 1954 that the defendants were only purchasers of the goods from the plaintiff and the idea of agency was quite inconsistent with the nature of the transactions between the parties. The trial Judge came to the conclusion that the plaintiff was bound by the statements of account rendered by the defendants from time to time. After giving an opportunity to the parties to produce further evidence, the trial Judge held that since there was no fraud the accounts could not be reopened and the claim of the plaintiff with regard to Rs. 157/ in respect of the marine insurance alone was sustainable. The trial Judge accordingly dismissed the suit and decreed that counter claim of the defendants after deducting the said sum of Rs. 157/ . The plaintiff preferred an appeal to the High Court of Madras under the Letters Patent. By its judgment dated December 15, 1959 the High Court reversed the decision of the trial Judge and held that the defendants acted as del credere agents of the plaintiff for effecting the sale of the plaintiff 's goods in the United Kingdom. On this basis the High Court decreed the plaintiff 's suit and directed the taking of accounts, as prayed for, from the defendants, though in respect of some of the items the claim of the plaintiff was negatived. The High Court also held that the plaintiff was liable to pay to the defendants the amount claimed by them by way of counter claim. The first question presented for determination in this case is whether the defendants were acting as del credere agents of the plaintiff or whether the defendants were outright purchasers of the goods supplied to them by the plaintiff. In the approach to this question it is necessary to notice the distinction between a contract of sale and a contract of agency. The essence of sale is the transfer of the title to the goods for price paid or to be paid. The transferee in such case becomes liable to the transferor of the goods 4 as a debtor for the price to be paid and not as agent for the proceeds of the sale. On the other hand, the essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods and who is therefore liable to account for the proceeds. The true legal relationship between the parties in the present case has, therefore, to be inferred from the nature of the contract, its terms and conditions and the nature of respective obligations undertaken by the parties. It is necessary, at this stage, to set out briefly the course of the dealings between the parties which has been summarised by the High Court as follows: "The plaintiff used to purchase tanned hides of all sorts in Periamet (Madras), and in his godown assort them according to quality, pack them into bales and mark them with his mark, viz., Shaik or section M. A. Mark. Then the bales would be delivered into the defendants ' godown where the bales would be opened and re assorted so as to conform to London specification and standard. In the process of putting the goods into that shape, there used to be necessity for the defendants to cut and trim the pieces and sometimes call on the plaintiff for replacement of the pieces which fell below the standard. Thereafter, the defendants used to re pack them into bales each weighing 600 pounds and then ship the goods themselves as shippers and obtain the necessary shipping documents on the basis of c.i.f. contracts. The goods would be shipped to the defendants ' London Office where they were sold to London purchasers. All the expenses incurred in connection with the goods prior to shipment, such as carriage, trimming and assortment in the defendants ' godown were all to be borne by the plaintiffs. So also expense in connection with the shipment, such as freight, insurance, short weight, etc., were all to be home by the plaintiff. After the goods were shipped and as soon as the shipping documents were got ready. the price of the goods was calculated at the price fixed in the contract notes and after deducting the expenses and the advances with interest thereon, the balance, if any, was paid to the plaintiff either by cheque or by credit being given in his accounts. For every shipment a contract note was being sent by the defendants to the plaintiff. So also, a statement of account with a covering letter as well as a cheque for the balance found due to the plaintiff were being sent to the plaintiff from time to time. In all, there were 101 contract forms and several statements of accounts sent to the plaintiff 5 in respect of the shippers. To none of those contracts or statements of account did the plaintiff raise any objection at any time. " The question whether the defendants took delivery of the plaintiff 's goods as agents for sale or whether they purchased the goods outright must largely depend upon the terms of the contract of which a sample is exhibit P 1. All the 101 contracts were prepared in the same printed form. Exhibit P 1 is the contract dated January 21, 1949. It is in the form of a letter sent by the defendants to the plaintiff. It opens with the sentence "We confirm buying from you for resale the following subject to U.K. Import Licence". Then follows a description of the goods giving the number of bales, the average weight and range, the assortment and the price per lb. in pennies. The price quoted is said to be c.i.f. less 21 per cent. The goods were already shipped by the s.s. 'City of Florence '. The seller is said to be liable to pay brokerage at the rate of one pie per lb. Then follow the terms of the contract which are to the following effect: " Landed weight to be accepted, payment on presentation of documents in order. It is understood that the above goods are for re sale in United Kingdom. You are responsible irrespective of any inspection by us in Madras for selection and quality of the goods at destination where inspection and acceptance thereof will be made by our agents or the ultimate buyers. In the event of any dispute or claim in respect of goods covered by this contract, failing amicable settlement with buyers, such claim is to be submitted to arbitration according to the custom of the trade in the United Kingdom and the result of such settlement or arbitration is binding on you. We have a charge or lien on all goods covered by this contract for all moneys advanced by us including expenses incurred and interest thereon. Insurance through Gordon Woodroffe Company, Madras, Limited. Time is an essence of the contract. " In the first place, it is important to notice that the contract in the opening portion specifically makes a mention of the fact that the defendants were buying the goods for resale, and in the paragraph containing the terms of the contract it is reiterated that the goods were intended for resale in the United Kingdom. On the face of it, therefore, the contract is clearly not one of agency for sale but it reads as an agreement of sale. If the defendants were intended to be constituted as the agents for sale the terms of the contract would have been entirely different. Another important feature in this case is that there is a definite price fixed in the contract for the plaintiff 's goods. According to the plaintiff the rates fixed in the contract were the ones at which the goods were sold to London 6 purchaser and not a different rate and the defendants were agents who were obtaining for him only the price at which the goods were sold at London. It is true that the defendants admit that before fixing the price as between themselves and the plaintiff they used to ascertain the London price by cable. It is also true that the plaintiff was debited in the statement of account with the expenses of the cable. Even so, if the defendants were simply acting as agents for the sale there was no need at all to fix the price in the contract as between them and the plaintiff. It was contended for the plaintiff that according to the contracts the prices fixed are c.i.f. less 2 1/2 per cent and discount of 21 per cent was the commission for the defendants as agents. There is no use of the word " commission" in the contracts and we see no reason to hold that 2 1/2 per cent should be taken as commission and not as a margin of profit. The important point is that if the contract was one of agency there was no need to mention the price at all as between the plaintiff and the defendants. It may be that in most cases the prices which the defendants obtained from the London purchasers were the same as the prices stipulated in the contracts with the plaintiff but the fact remains that they obtained 21 per cent discount on the sale price, that is to say, they purchased the goods from the plaintiff 2 1/2% per cent less and sold them to their London purchasers at the full price, so that 2 1/2 per cent was their margin of profit. It is possible that sometimes they sold the goods to the London purchasers at a higher price in which case they would be entitled to the difference in prices as a profit in addition to the 2 1/2 per cent which they got from the plaintiff. In all there are 101 contract forms and in accordance with these contract forms statements of account were furnished by the defendants to the plaintiff. Exhibit P 1A is the statement of account dated January 25, 1949 based upon the contract note exhibit P 1. It is true that the plaintiff did not sign any one of the contract forms, but all of them were received by the plaintiff without any objection. Statements of account were Prepared in terms of these contracts and the plaintiff was receiving moneys from the defendants on the basis of these contracts and according to the price fixed therein. He did not, at any time, raise the slightest protest against the terms of the contract or against the price fixed therein. On the other hand, he received all the contract forms and statements of account as well as the moneys sent to him by cheque. The plaintiff cannot, therefore, be heard to say that he was not a consenting party to the contracts. There is also the circumstance that before the goods were shipped to London they were subjected to a process of trimming and reassortment in the godowns of the defendants with a view to make them conform to London standard and selection. In that process the defendants often called upon the plaintiff to replace the 7 pieces found defective. If the defendants were merely acting as agents the process of trimming and reassorting in the godowns to make the goods conform to London standards and specifications will be unnecessary, for in that case the defendants were merely bound to ship the goods as they were delivered to them. Another important feature of the transaction is that in several contracts time was fixed for delivery of the goods. In some cases like the contracts in forms like P 1 to P 3 the shipment has been effected before the contract forms were issued but there are some contracts which contained the stipulation that the bales were to be sent to the godowns of the defendants for shipment to be effected "promptly" which according to D.W. 1, Ayyalu Chetti meant two weeks. There were also some contracts like exhibit D 2(a) which required the goods to be sent for shipment to be effected within one month, and some other contracts within two months. All the contracts provided that time should be the essence of the contract. If the defendants were acting only as agents for the sale there is no reason why there should be a stipulation in the contract as to the time fixed for the delivery and the stipulation that time should be the essence of the contract. There is also a further condition in the contracts that the sales tax was on seller 's account, the seller being the plaintiff. This circumstance also indicates that the legal relationship between the parties was that of a seller and a purchases and not of a principal and agent. On behalf of the plaintiff it was argued that according to the contract the goods were to be marked with the plaintiff 's mark. It is true that in some of the defendants ' letters such as exhibit P 10 it was mentioned that the bales were sent with the plaintiff 's mark in some shipments but this circumstance has not significance. It only means that the buyer resold the goods to the London purchaser with the mark of the plaintiff. It was also contended on behalf of the plaintiff that "premium" was paid to the plaintiff in case the goods supplied were of special quality. It is in evidence, that the "premium" was extra price obtained in London if the Board of Control was satisfied about the special quality of the goods (vide D 1O). It was pointed out that if the defendants were purchasers the premium should go to them but in some cases the premium was paid to the plaintiff. Exhibits P 7, P 10 and P 1 8, show that for some shipments the premium was paid to the plaintiff. 'The explanation of D.W. 1, Ayyalu Chetti is that in some cases the premium was paid to the plaintiff ex gratia. If in London the quality of the goods was found particularly good the premium was obtained from the London purchaser, that is to say, the premium was obtained not as in terms of the contract but as a special payment if the goods happened to be of good quality. It is a payment therefore, L/S5SCI 3 8 made outside the terms of the contract and there is nothing significant if the defendants considered it fair and just to pay the whole of the premium to the plaintiff or to share it with him in some cases. It was also contended by the plaintiff that According to the terms of the contract the landed weight was to be accepted and the plaintiff was to be responsible for the selection and quality of goods at the destination where inspection would be made by the defendants ' agents or the ultimate London buyers. In some statements of account sent by the 'defendants the plaintiff has been debited various amounts for shortage in weight at London. The plaintiff was also informed about the claims made by the London purchasers on the ground of low standard and selection, that is to say, the plaintiff was made answerable for weight as well as quality. It is true that the liability of the, plaintiff is an additional burden thrown upon him under the terms of the contract but it is of 'no significance in considering the question as to whether the as transfer of title to the goods at the time of shipment from the plaintiff to the defendants. On behalf of 'the plantiff reference was also made to the fact that the contracts provided for a Hen on all the, goods covered by the contracts for all moneys advanced by the defendants, including expenses incurred and interest thereon. it is the admitted position that for purchasing skins and hides, the plaintiff was taking large sums of money as advances from the defendants. We find from the several statements of account that reference is made to all such advances. These advances together with interest thereon are deducted from the sale price payable to the plaintiff and for the balance alone cheques were sent: to him. It appears that on a later date, i.e., in June, 1949 the defendants took a regular hypothecation deed, exhibit P 19 from the plaintiff in respect of all the advances to be made by the defendants. But it should be noticed that in making such advances, the defendants were only acting as creditors of the plaintiff and were, therefore, entitled to charge interest on such advances till they actually purchased the goods from the plaintiff. After the purchase of the goods they did not charge any interest on the moneys paid by them. It appears from the statements of account that interest, was charged on advances upto the date of shipment. In other words the title in the goods passed to the defendants at the moment of shipment of the goods and the fact was that interest was charged on all advances only upto the date of shipment. The charge or lien on the, goods, therefore, subsisted till the time of shipment i.e., till the title in the goods passed to the defendants under the con. tract of sale. We are, therefore, unable to agree with the Counsel for the plaintiff that the clause with regard to the. lien is not consistent with the theory of the transactions being an outright sale,. There was also a suggestion on behalf of the plaintiff that there cannot be a contract of sale subject to c.i.f. terms if there was an out right sale at Madras between the parties. We do not think 9 there is any substance in this argument. The primary object of the contract was that there,was a purchase by the defendants from the plaintiff of the goods for resale in the United Kingdom and in keeping with this object the buyer stipulated with the seller for delivery of the goods abroad and for that purpose adopted a c.i.f. form of &de. It is also contended on behalf of the plaintiff that the term with regard to arbitration "according to the custom obtaining in United Kingdom" was not compatible with the theory of a sale between the parties. It is not possible to accept this argument as correct. It is open to the plaintiff to agree that even after the sale had taken place any dispute with regard to the quality of the goods and selection may be submitted to arbitration in the United Kingdom. It is true that a clause of this description is unusual but it is not inconsistent with the theory that there was a sale of goods between the parties at Madras. We have already observed that the contracts in this case were not c.i.f. contracts but the price alone was fixed on a c.i.f. basis. It is well established that even an agent can become a pur chaser when an agent pays the price to the principal on his own responsibility. In Ex parts White, In re Nevil(1) T & Co. were in the habit of sending goods for sale to N who was a partner in the, firm of N & Co., but received these, goods on his private account. The course of dealing between T & Co. and N was that the goods were accompanied by a price list. N sold the goods on what terms he pleased, and each month sent to T & Co., an ac. count of the goods he had sold, debiting himself with the prices named for, them in the price list, and at the expiration of another month he paid the amount in cash without any regard to the prices at which he had sold the goods, or the length of credit he had given. On these facts it was held by the Court of Appeal in Chancery that though both the parties might look upon the business as an agency, N did not, in fact, sell the goods as agent of T & Co., but on his own account, upon the terms of his paying T & Co. for them at a fixed rate if he sold them, and the moneys he received for them were therefore his own moneys, which T & Co., had no right to follow. A similar principle has been expressed in W. T. Lamb and Sons vs Goring Brick Company, Ltd.(1) In that case, certain manufacturers of ,bricks and other building materials, by an agreement in writing, appointed a firm of builders ' merchants as sole selling agents of all bricks and other materials manufactured at their works". The agreement was expressed to be for three years and afterwards continuous subject to twelve months ' notice by either party. While the ;agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent, (1) (2) L/S5SCI 3(a) 10 and thereafter they effected sales to customers directly. An action was then brought by the merchants for breach of the agreement. It was hold by the Court of Appeal that the effect of the agreement was to confer on the plaintiffs the sole right of selling the goods manufactured by the defendants at their works, so that neither the defendants themselves nor any agent appointed by them, other than the plaintiffs, should have the right of selling such goods. It was also held that the agreement was one of vendor and purchaser and not one of principal and agent. Though the term 'agent ' was used in the agreement, the Court of Appeal considered that the substance of the transaction was that the manufacturers sold their bricks to the so called agent who in turn sold them on their own responsibility to customers. The price charged by the manufacturers to the sole selling agents was the ruling market price and the sole selling agents were allowed a deduction of 10 per cent by way of commission on that price. The manufacturers had no concern at what rate the sole selling agents sold the goods to customers. It was clear from these facts that the sale by the selling agents to customers was a transaction in which the manufacturers were not interested and there was no privity of contract between the manufacturers and the ultimate purchasers. Reference may be made, in this connection to the following passage from Blackwood Wright, 'Principal and Agent '. Second Edn. page 5: "In commercial matters, where the real relationship is that of vendor and purchaser. persons are sometimes called agents when, as a matter of fact, their relations are not those of principal and agent at all, but those of vendor and purchaser. If the person called an 'agent ' is entitled to alter the goods, manipulate them, to sell them at any price that he thinks fit after they have been so manipulated, and is still only liable to pay for them at a price fixed beforehand, without any reference to the price at which he sold them, it is impossible to say that the produce of the goods so sold was the money of the consignors, or that the relation of principal and agent exists Ex parte White, In re Nevill (1871). 397A purchaser has not to account to his vendor , his only duty is to pay him; and all the other rights and duties which exist between principal, and agent do not exist between vendor and purchaser Ex parte Bright, In re Smith (1879), 10 Ch. 566; Ex parte White, In re Nevill (1871) 6 Ch. " For the reasons already given we are of the opinion that the defendants were purchasers of the plaintiffs goods under the several contracts and not his agents for sale and the view taken by the High Court on this aspect of the case is not correct and must be overruled. 11 We pass on to consider the second question involved in this viz., whether there was a settled account between the parties and whether it is open to the plaintiff to reopen it. It is admitted in this case that for almost every shipment the defendants prepared a statement of account and sent it to the plaintiff giving full particulars of the amount due to him together with the deduction and showing the net balance payable to him and enclosing a cheque for such balance or giving a credit for the sum the accounts. Copies of such accounts are exhibit P 1A,P 2A and P 3A corresponding to the contracts Exs. P 1, P 2 and P 3.Copies of other accounts have been filed by the defendants in the Court and marked exhibit D 18 series. The plaintiff in his evidence did not deny the receipt of these accounts. On the contrary, he admitted in cross examination that for every shipment he was getting accounts and cheques for the balance due. It is an admitted fact that to these statements of account no objection was raised by the plaintiff at any time. Nor a single document has been produced on his side to show that he ever wrote to the defendants raising an objection to the statements of account. Not only the plaintiff failed to raise objection to the several statements of account but at one stage sent a memorandum to the defendants accepting the accuracy of the accounts. On June 20, 1949, the defendants wrote a letter, exhibit P 16, to the plaintiff stating that there was a balance of Rs. 1,26,379/7/2 payable by him, and that against the balance they were holding certain goods belonging to the plaintiff and asking him to confirm the statements. On June 22, 1949 the defendants again wrote a letter exhibit D 5, en closing a statement of account exhibit P 17 showing the said balance of Rs. 1,26,379/7/2 and asking the plaintiff for confirmation. On receipt of this statement the plaintiff signed the memorandum, exhibit D 4 on June 22, 1949 and sent it to the defendants confirming the correctness of the balance as due by him and also confirming the stock of his goods remaining with the defendants. The plaintiff conceded in his evidence having signed exhibit D 4 after the receipt of the statement of account, exhibit P 17. The plaintiff explained that he did not look into the correctness of the figures but believed exhibit P 1 7 to be correct '&as it was sent by an English firm". The plaintiff also said that he was told by the defendants ' broker that if he did not sign it, it would be harmful to him. The trial Judge refused to accept the explanation of the plaintiff and held that the plaintiff had accepted all statements of account as correct and, therefore, it must be held in law that the accounts were settled and the plaintiff could be allowed to reopen it only by proof of fraud or mistake or any other sufficient equitable ground. The legal position is that the accounts are settled or stated if they are submitted and accepted as correct by the other side to whom the accounts have been rendered. Such a statement of 12 accounts need not be in writing, nor is it necessary that before the accounts are settled, they should be gone into by the parties and scrutinised and supported by vouchers. It is sufficient if the accounts are accepted and such acceptance may be inferred by conduct of parties. As observed in Diniell 's Chancery Practice, eighth edition, Vol. 1, p. 419: "The mere delivery of an account will not constitute a stated account without some evidence of acquiescence which may afford sufficient legal presumption of a settlement. " There is also the following passage in Bullen and Leake 's Prece. dents of Pleadings, ninth edition, p. 584: "It is not enough for the accounting party merely to deliver his account; there must be some evidence that the other, party has accepted ' it as correct But such acceptance need not be express; contemporaneous or subsequent conduct may amount to a sufficient acquiescence. Again, in Willis vs Jernegan(1) the Lord Chancellor was dealing with the two objections raised by ' the plaintiffs counsel to the defendant 's plea of a stated account. It was observed by the Lord Chancellor that there was no absolute necessity that the account should be signed by the parties who had mutual dealings to make it a stated account, for even where there were transactions, suppose, between a merchant in England and a merchant beyond sea, and an account was transmitted to England from the person who was abroad, it was not the signing which would make it a stated account, but the person to whom it was sent, keeping it by him any length of time, without making any objection which should bind him and prevent his entering into an open account afterwards. In another case, Tickel vs Short, (2) the Lord Chancellor expressed the opinion that it is the rule of the Court that where a merchant kept an account current by him for about two years without objection, the Court will consider that the accounts are stated or settled. The same principle has been expressed by the Bombay High Court in Seth Maneklal Mansukhbhai vs Jwaladutt Rameshwar Pillani(3) in which it was pointed out that it was sufficient if the accounts were accepted and such acceptance might be inferred by conduct of parties. The contention on behalf of the defendants is that there has been a "stated" or "settled" account in this case and in the ab. sence of fraud, mistake or any other sufficient equitable ground it is not liable to be reopened at the instance of the plaintiff. In connection it is necessary to state that the expression "account (1) ; (2)[1750 51) 2 Ves. (Son.) 239. (3) I.L.R. 13 stated" has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct An account stated in this sense is no more than an admission of a debt out of court, while it is no doubt cogent evidence against the admitting party, and throws upon him the burden of proving that the debt is not due, it may, like any other admission, be shown to have been made in error. Where the transaction is of this character, it makes no difference whether the account is said lo be " 'stated" or to be "stated and agreed";, the so called agreements is,without consideration and amounts to no more than an admission. There is however a second. kind of account stated where the, account contains items both of credit and debit, and the figures on both sides are adjusted between the parties and a balance struck. This is called by Mr. Justice Blackburn, in Laycock vs Pickkes(1) a "real account stated " and he describes it as follows: "There is a real account stated, called in old law an insimul computassent, that is to say, when several items of claim are brought into account on either side, and, being set against one another, a balance is struck, and the consideration for the payment of the balance is the discharge of the items on each side. It is then the same as if each item was paid and a discharge given for each, and in consideration of that discharge the balance was agreed. to be due. It is not necessary,. in order to make out a real account stated, that the debts should be debts in praesenti or that they should be regal debts. I think equitable claims might might be, brought into account, and I am not certain that a moral obligation is not sufficient. It is to be taken as if the sums had been really paid down on each side; and the balance is recoverable as if money had been really taken in satisfaction; subject to this, that where some of the items are such that, if they had been actually paid, the party paying them would have been able to recover them back as on a failure of consideration, the account stated would be invalidated. " In the present case, the "settled account" between the parties falls within the second kind of "account stated" and it is to an account of this description that the equitable doctrine of "settled account" has to be considered. This statement of the law has been affirmed by Lord Wright in delivering the opinion of the Judicial Committee in Bishnu Chan vs Birdhari Lal(2) as the follows: "Indeed, the essence of an account stated is not the ' character of the items on one side or the other, but the (1) 4 B. and B., 497. (2) A.I.R. 1934 P.C. 147, 14 fact that are cross items of account and that the parties mutually agree the several accounts of each. and by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral and creates a new debt and a new cause of action. There are mutual promises, the one side agreeing to accept the amount of the balance of the debt as true (because there must in such cases be. at least in the end, a creditor to whom the balance is due) and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to such and such an extent, so that there win be complete satisfaction on payment of the agreed balance. Hence, there is mutual consideration to support the pro mises on either side and to constitute the new cause of action. The account stated is accordingly binding. save that it may be re opened on any ground for instance. fraud or mistake which would justify setting aside any other agreement. " In the present case, the 'correctness of the statements of account furnished by the defendants has been challenged by the plaintiff under 13 heads. In view of our finding that the transactions between the parties were not on the basis of an agency but on the basis of an outright sale the accounts cannot be reopened under any of these heads of challenges. The trial court has already gone into the evidence and has reached the finding that there was no fraud, mistake or any other sufficient equitable ground for reopening the finality of the accounts. As regards one item, viz., rebate in marine insurance, the trial court has ordered that the plaintiff should be given credit for a small sum of Rs. 157/ though there was no evidence of fraud on the part of the defendants. The trial court has rejected the claim of the plaintiff for reopening the accounts on any other ground and in view of our finding that the legal relationship between the parties was not one of agency, we see no reason for interfering with the decision of the trial court on this aspect of the case also. For the reasons expressed, we allow this appeal and set aside the judgment and decree of the High Court in O.S. Appeal No. 22 of 1955 dated the 15th December, 1959 and restore the judgment and decree of the trial Judge dated May 6, 1954 dismissing the suit of the plaintiff and granting a decree for the counter claim of the defendants. The defendants are entitled to the costs of this appeal in this Court and in the High Court. Appeal allowed. [/INST]During consolidation proceedings in a village, under the Uttar Pradesh Consolidation of Holdings Act, 1954, a question of title arose, and the Consolidation Officer referred the question to the Civil Judge who referred it to an arbitrator appointed under section 37 of the Act. The Arbitrator submitted his award to the Court. The appellants filed objections under section 15 of the , and the Civil Judge modified the award. On appeal by the respondents, the District Court held that the appeal was maintainable and that the Civil Judge was not justified in modifying the award. A revision petition to the High Court filed by the appellants was dismissed. In appeal to this Court, it was contended that section 39 of the , which provides for appeals does not apply to arbitrations under section 37 of the U.P. Act. HELD:The decision of the Civil Judge modifying, the award was appealable under section 39 of the . [67 A]. The effect of section 37 of the U.P. Act read with sections 46 and 47 of the is, to apply sections 15 and 39 of the to the proceedings under the U.P. Act; and under section 12(5) of the U.P. Act what is made final is the decision of the arbitrator as it emerges after appropriate proceedings, under the provisions of the . [65 G H; 66 H]. Carju Prasad vs Civil Judge, Farrukhabad, I.L.R. [1959]. 1 All354 and Sayed Ulla Khan vs The Temporary Civil Judge, Sultanpur, , approved. Attar Singh vs State of u.p. [1959] Supp. 1 S.C.R. 928, explained. </s>
<s>[INST] Summarize the judgementminal Appeal No. 253 of 1968. Appeal by special leave from the judgment and Order dated April 12, 1968 of the Allahabad High Court in Criminal Govt. Appeal No. 13 of 1965 and Criminal Govt. Appeal No. 10 of 1966. B. P. Maheshwari and Sobhagmal Jain, for the appellant. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Mathew, J. This appeal , by special leave, is against a judgment of the High Court of Allahabad by which it restored the order of the Magistrate convicting the appellant of an offence under section 16 read with section 7. of the (Act 37 of 1954), hereinafter called the 'Act, and sentencing him to undergo one year 's rigorous imprisonment and pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for a further period of six months, after reversing the order passed by the Sessions Judge in appeal acquitting him of the offence. On June 13, 1963, Head Constable Baboo Khan was on patrol duty. He happened to come to the Chakki of one Abdul Razaaq. There he found a heap of Shakkar and some labourers mixing Shelkhari in it with spades. He went to the police station to inform the Station Officer about it but the Station Officer ' was not there. He then met the Sanitary Inspector and informed him about what he, saw at the Chakki. The Sanitary Inspector accompanied by the Food Inspector proceeded to the Chakki and there, they found the labourers mixing Shelkhari with Shakkar. The stock of Shakkar belonged to the appellant. The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant by way of sample after paying its price. He divided the sample into three parts, gave one to the appellant and retained the other two with him. One of the samples retained was sent to the Public Analyst for examination. The Analyst found, in his report dated July 11, 1963, that the Shakkar contained 2.4% moisture, 72.7% total sugar, 64.7% sucrose, 17% extraneous matter insoluble in water. According to him the extraneous matter insoluble in water, total ash and ash insoluble in Hydrochloric acid exceeded by 15,O%, 10.1% and 13.3% respectively as against the maximum prescribed standards of 2.0%, 6.0% and O.5% respectively. On the basis of a complaint filed by the Food Inspector of the Municipal Board, Saharanpur, the Magistrate who tried the ap 352 pellant for an offence under section 16 read with section 7 of the Act came to the conclusion that the appellant had stored the Shakkar for sale, that it was adulterated and that he was guilty of the offence and convicted and sentenced him as aforesaid. The appellant filed an appeal against the order before the Sessions Judge. The Sessions Judge acquitted him of the offence for the reason that the prosecution had notproved 'that the Shakkar stored by the appellant was for sale. He said that the appellant was mixing extraneous matter with the Shakkar for converting it into Rab and as such it cannotbe said that the Shakkar was stored for sale by the appellant. He also said that no standard of quality was prescribed by therules framed under the Act for Shakkar, that as an article of food, Shakkar was neither 'gur ' nor 'Jaggery ' and that the sale of Shakkar to the Food Inspector by the appellant was under duress and was not a sale in the eye of the law. The Municipal Board filed an appeal against the order to the High Court. The High Court held that Shakkar is same as 'jaggery ', that standard 'of quality has been prescribed by the rules framed under the Act for jaggery, that the Shakkar in question was adulterated, that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of section 2 (xiii) of the Act, that Food Inspector had power under the Act to get the sample even if the Shakkar was stored for being manufactured into Rab and not for sale and restored the order of the Magistrate convicting and sentencing the appellant as aforesaid. The first contention on behalf of the appellant was that Shakkar is not 'jaggery ', and since no standard of quality has been prescribed for Shakkar under the rules formed under the Act, the Shakkar was not adulterated. We find it difficult to accept the contention that Shakkar is not Jaggery. Para A.07.05 of Appendix B of the Rules reads "Gur or jaggery means the product obtained by boiling or processing juice pressed out of sugar cane or extracted from palmyra palm, date palm or coconut palm. It shall be free from substances deleterious to health and shall conform to the following analytical standards on dry weight basis (i)total sugars not less than 90 per cent and sucrose not less than 70 per cent. (ii) extraneous matter insoluble in water not more than 2 per cent. 3 5 3 (iii)total ash not more than 6 per cent. (iv) ash insoluble in hydrochloric acid (HCI) not more than O.5 per cent. Gur or jaggery other than that of the liquid or semi liquid variety shall not contain more than 10 per cent moisture. " It is not disputed that Shakkar is a product obtained by boiling or processing _juice pressed from out of sugarcane, and therefore, it is clear that Shakkar is jaggery. But counsel for the appellant submitted that Appendix B of the Rules does not define jaggery but only gives the description of what 'jaggery ' is and it cannot, therefore, be said that jaggery would comprehend all the varieties of products obtained by boiling or processing _juice pressed out of sugarcane. In other words, counsel said that Appendix B to the Rules only describes what jaggery or gur is and that it does not define what jaggery or gur is. We are unable to accept the contention for the reason that jaggery or gur is defined as any product obtained by boiling or processing juice pressed out of sugarcane and so any product so obtained would be comprehend within the definition. Quite apart from this, we find in Chambers Twentieth Century Dictionary (Revised Edition) the meaning of 'jaggery ' as : "A coarse dark sugar made from palm sap or otherwise. (Hindi Shakkar; Sanskrit Sarkara). " It is, therefore, clear that Shakkar is 'jaggery '; and the finding of the High Court, on the basis of the report of the Analyst, that the Shakkar has not conformed to the standard of quality prescribed for jaggery and, therefore, the food was adulterated, was correct and has to be maintained. The second contention on behalf of the appellant was that he had kept the Shakkar for manufacturing Rab out of it. The contention, in other words, is that he had not kept the Shakkar for sale but kept it for manufacturing Rab out of it and, therefore, the conviction under section 16 read with section 7 of the Act was bad. We do not think that there is any substance in this contention either. Section 7 of the Act, in so far as it is material, Provides "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute 354 (i) any adulterated food;" Section 16, which imposes the punishment, in so far as it is relevant, says : " 16 (1) If any person (a)whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;" The finding of the High Court is that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article, of food after mixing Shelkhari with it. We see no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar was for sale but for manufacturing Rab out of it, what follows ? If Shakkar is an article of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out of it, provided the appellant has sold it. Arid a sale to the Food Inspector is a sale for the purpose of section 16 of the Act. In The Food Inspector, Calicut Corporation vs Charukattil Gapalan and another(), this Court held that, if any articles of food are sold by any person, whether he be a dealer in them or not, and if the food is adulterated, he is liable to be convicted under section 16 read with section 7 of the Act. The respondents before this Court in that case were the manager and owner of a tea stall. The case against them was that they sold 600 grains of sugar to the appellant, the Food Inspector, for analysis and that the sugar was adulterated. The respondents pleaded that the sugar was not sold 'as such ' in the tea stall and was only used for preparing tea which alone was sold. The plea was accepted by the District Magistrate and the respondents were acquitted. The acquittal was confirmed by the High Court. In appeal to this Court by the Food Inspector, one of the arguments for the respondents, was that they were not dealers in sugar and the sugar was not kept for sale and so they cannot be convicted under section 16 read with section 7 of the Act. The Court held, inter alia, that sale to a Food Inspector is a sale for the purpose of section 16 of the Act, that the article of food sold to the Food Inspector need not have been taken from a larger quantity kept for sale, and that the person by whom the article of food was sold to the Food Inspector need not be a dealer as such in the article. (1) [1971] 2 S.C.C.322. 355 In that case it was assumed by this Court that the sugar was adulterated. Whether it was adulterated or not as a matter of fact, this _Court proceeded on the assumption that it was adulterated. it that be so, we see no reason to doubt the correctness of the ratio of the case. We think the High Court was right in its conclusion. We dismiss the appeal. G.C. Appeal dismissed. [/INST]Muslim jurisprudence, where theology and moral concepts are found sometimes mingled with secular utilitarian legal principles, contains a very elaborate theory of acts which are good (because they proceed from haana), those which are bad (because they exhibit 'qubuh '), and those which are neutral per se. It classifies them according to varying degrees of approval or disapproval attached to them. The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered "prohibited". The binding, force in future of such a ren uticiation would, even according to strict Muslim jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of equitable estoppel, far from being opposed to any principle of Muslim Law will he found, on investigation, to be completely in consonance with it. [306 F] Abdul Rahim, Muhammedan Jurisprudence, P. 106, referred to. K, a Muslim, had incurred debts so heavily that all his property would have been swallowed up to liquidate the debts. The appellant and two of his brothers, with their labour and money, rescued the estate of their father and paid up the debts. Two other sons of K who could not con tribute anything towards the clearing up of the debts of their father executed deeds acknowledging receipt of cash and moveable properties as consideration for not claiming any eights in future in the properties mentioned in the deeds. On K 's death the two sons who had executed the deeds instituted a suit for partition of the properties mentioned in the deeds. The first appellate court ,held that the deeds in question evidenced family settlements and that the sons were estopped from claiming their share in the inheritance. The High Court in second appeal, decreed the suit. It proceeded on the assumption that, if law had not prohibited the transfer of his right of inheritance by a muslim heir, an estoppel would have operated against the respondent on the findings given and held that the rule of Muslim Personal law on the subject had the same effect as Section 6 (a). of the Transfer of Property Act and the chance of a Mahomedan heir apparent succeeding to an estate could not be the subject of a valid transfer of lease. In coming to this conclusion, the High Court relied on the decision of the Madras High Court in Abdul Kafoor vs Abdul Razack (A.I.R. in preference to the view adopted by the Allahabad High Court in Latafat Hussain vs Bidayat Hussain (A.I.R. 1936 All. 573.) Allowing the appeal and setting aside the judgment and decree of the High Court, HELD: Upon the facts and circumstance in the case found by the courts below, the two sons could not, when rights of inheritance vested 301 in them at the time of, their father 's death, claim these rights as such a claim would be barred by estoppel. The object of the rule of Mahomedan law which does not recognise a purported transfer, of a spes successionis as a legally valid transfer at all, is not to prohibit anything but only to make it clear what is and what is not a transferable right or interest in property just as this is what Section 6(a) of the Transfer of Property Act is meant to do. Its purpose could not be to protect those who, receive consideration for what they do not immediately have so as to be able to transfer it at all. It is not possible to concur with the view of the Madras High Court in Abdul Kafoor 's case that a renunciation of an expectancy, as a purported but legally ineffective transfer, is struck by section 23 of the Indian Contract Act. As it would be void as a transfer at all there was no need to rely on section 23 of the Contract Act, If there was no "transfer" of property at all, which was the correct position, but a simple contract which could only operate in future, it was certainly not intended to bring about an immediate transfer which was all that the rule of muslim law invalidated. The real question is whether, quite apart from any transfer or contract, the declarations in the deeds of purported relinquishment and receipt of valuable consideration could not be parts of a course of conduct over a number of years which, taken as a whole, created a bar against a successful assertion of a right to property when that right actually, came into being. An equitable estoppel operates, if its elements are established as a rule of evidence preventing the assertions of rights which may otherwise exist. [304 D] While the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself, illegal or prohibited by Muslim law, the View of the Allahabad High Court in Latafat Hussain 's case, while fully recognising that "under the Mohammedan law relinquishment by an heir who has no interest in the life time of his ancestor is invalid and void", correctly lays down that such an aban donment may nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. Latafat Hussain vs Bidayat Hussain, A.I.R. 1936 All. 573, approved. View contra in Abdul Kafoor vs Abdul Ratack, A.I.R. 1959 Mad.131 and Asa Beevi vs Karuppan, (1918) 41 Madras I.L.R. 365, disapproved. Ameer Ali 's Mahomedan Law, Vol. 11, Hurmoot Ool Nisa Begum vs Allahdis Khan, (1871) 17 W.R.P.C. 108 and Mohammad Ali Khan vs Nisar Ali Khan, A.I.R. 1928 Oudh 67, referred to. (Since the Court was of opinion, that there was nothing in law to bar the application of the principle of estoppel contained in section 115 of the Evidence Act upon the totality of facts found by the final court of facts, it was found unnecessary to deal with at length with the question whether the facts found could give rise to an inference of a "family settlement" in a technical sense.) </s>
<s>[INST] Summarize the judgementCivil Appeal No. 1274 of 1988. From the Judgment and order dated 7.10.1986 of the Bombay High Court in W.P. No. 1143 of 1985. Masodkar and A.K. Gupta for the Appellant. V.S. Desai and A.S. Bhasme for the Respondents The Judgment of the Court was delivered by RANGANATHAN, J. 1. We grant special leave and proceed to dispose of the appeal after hearing both counsel 2. The point raised in the appeal is a very short one. The lands, belonging to the petitioners were among those sought to be acquired under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ') by means of a notification under Section 4 issued on 22nd June, 1982. This was followed up by a declaration under Section 6 dated 15th March, 1983. The petitioners challenged both the notification and the 443 declaration in writ petition No 947 of 1983 before the High Court The notification under Section 4 was challenged on the ground of mala fides and the declaration under Section 6 on the short ground that the petitioners ' objections had not been heard before the making of the declaration. When this writ petition came up for hearing, a statement was made on behalf of the Government that the notification under Section 6 was being withdrawn. On this statement being made, the writ petition was withdrawn and disposed of accordingly. Thereafter the petitioners were heard under Section 5 A of the Act and a fresh declaration under Section 6 was issued on 4th April, 1985. The petitioners again filed a writ petition in the High Court, being writ petition No. 1143 of 1985, the judgment in which forms the subject matter of the present appeal. In this writ petition they again challenged the notification under Section 4 as vitiated by mala fides and non application of mind. The High Court has found no merit in this contention and rejected the same. We see no reason to interfere with this conclusion of the High Court. However, another question was also raised by the petitioners, namely, that the withdrawal of the earlier declaration dated 15.3.1983 had the automatic effect of also rendering the notification under Section 4 dated 22.6.1982 ineffective and infructuous. On the strength of the decision of this Court in State vs Vishnu Prasad Sharma, ; , it was contended that, once a declaration under section 6 was issued, the notification under Section 4 exhausted itself. It made no difference, it was said, that the notification issued under section 6 had been withdrawn. Reliance was also placed on the decision of the Bombay High Court in Ajit Singh vs State, AIR 1972 Bombay 177 in support of this proposition. This contention, however, was rejected by the High Court and hence the present appeal. We are of opinion that the decision of the High Court is correct and should be upheld. The Bench has rightly pointed out that Ajit Singh 's case (supra) had failed to take note of the decisions of this Court in Girdhari Lal Amrit Lal vs State, ; State vs Haider Bux, ; and State vs Bhogilal Keshavlal, ; and therefore, does not represent the correct law. In Vishnu Prasad Sharma 's case (supra) the question for consideration of this Court was whether there could be successive declarations in respect of various parcels of land covered by a notification under Section 4(1). Considering the scheme of the Act as it then stood, 444 the Court held that the Act envisaged a single declaration under Section 6 in respect of a notification under Section 4 and that, when once a declaration under Section 6 particularising the area in the locality specified in the notification under Section 4(1) is issued, the remaining non particularised area stands automatically released. The Court also referred to the provisions of Section 48 of the Act in this context. The following observations appear in the judgment of Sarkar J. ". . It seems to me that if the correct interpretation is that only one declaration can be made under section 6, that also would exhaust the notification under section 4; that notification would no longer remain in force to justify successive declarations under section 6 in respect of different areas included in it. There is nothing in the Act to support the view that it is only a withdrawal under section 48 that puts a notification under section 4 completely out of the way. The effect of section 48 is to withdraw the acquisition proceedings. including the notification under section 4 with which it started We are concerned not with a withdrawal but with the force of a notification under section 4 having become exhausted " 7. The High Court was correct in pointing out that the above observations were made in the context of a valid declaration under S 6 The Court held that once there is a valid declaration under section 6, the scope of the notification under S 4 will got exhausted This principle cannot clearly apply to a case where the declaration under S 6 proves to be invalid. ineffective or infructuous for some reason. It has been so held by this Court in a number of decisions. In Girdhari Lal Amrir Lal 's case (supra) which was decided about a week earlier to Vishnu Prasad Sharma 's case, this Court held that. where a notification under section 6 is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under S 6 and that there is nothing in S 48 of the Act to preclude the Government from doing so This view has been repeated in State vs Haider Bux, ; and State vs Bhogilal Keshavlal, ; These decisions have clearly pointed out the distinction between a case where there is an effective declaration under section 6 (which precludes the issue of further declarations in respect of other parts of the land covered by the notification under section 4 not covered by the declaration issued under S 6) and a case where? for some reason, the declaration under S 6 is invalid. It is true that in the present case there was no occasion for the High Court in the earlier writ petition to pronounce the declaration 445 dated 15.3.1983 to be invalid. But the validity of the declaration had been challenged on the ground that the petitioners had not been heard under section 5A, an irregularity, which ex facie rendered the declaration invalid. The State Government obviously acknowledged this and withdrew the declaration on its own instead of obtaining a judgment to that effect from the Court. In principle, there is no distinction between a case where a declaration under section 6 is declared invalid by the Court and a case in which the Government itself withdraws the declaration under section 6 when some obvious illegality is pointed out. The point in issue in this appeal is thus directly governed by the three earlier decisions of this Court and the High Court was fully justified in dismissing the writ petition on this ground. Before concluding we must refer to one circumstance which was brought to our notice by learned counsel for the petitioners and which has also been noticed in the judgment of the High Court. It appears that, between the date of withdrawal of the earlier writ petition (namely, 23rd August, 1983) and the issue of the second declaration under section 6 (namely, 4.4.1985), the Government had issued a fresh notification under section 4 for the acquisition of certain lands. The lands in the two notifications under section 4 do not completely overlap but it appears that some fields are common in both. No declaration under section 6 appears to have been issued in furtherance of the second notification under section 4 when the High Court heard the matter. Learned counsel for the petitioners points out that, at least in respect of such of the lands comprised in the section 4 notification dated 22.6.1982 as are also covered by the subsequent notification under section 4, it is legitimate to infer that the State Government has superseded the earlier notification by the latter one. This contention is clearly well founded. We would, therefore, like to make it clear that in respect of the lands covered by the first notification under section 4 which are also covered by or comprised in, the second notification under section 4, further proceedings regarding acquisition should be taken, in accordance with law, only in pursuance of the latter notification and the proceedings initiated in respect of such lands by the first notification dated 22.6.1982 should be deemed to have been superseded. With the above clarification, we affirm the order of the High Court had dismiss this appeal. In the circumstances, however, we make no order to costs. G.N. Appeal dismissed. [/INST]The appellant was granted a permanent Commission in the Indian Army in 1958 and appointed as a Second Lieutenant. He rose to the level of Lt. Colonel on 27th February, 1975. In March, 1976 he was directed to report to the Military Hospital for his psychiatric examination, where his medical classification was reduced from shape I to shape III, and he was posted as GLO and treated as Major. There was however no specific order reducing him in rank. In December, 1976, appellant 's Classification was upgraded to shape II and in September, 1977 to shape I. But it was decided that he should be subjected to special review before restoration of his rank. In a special report the Brigade Commander recorded appreciation of the appellant 's work, and recommended his promotion as Lt. Colonel. But the Army Headquarters directed the appellant to the Military Hospital for further examination on the ground that an earlier incident of 1963 had been overlooked when the appellant was graded as shape I. On this examination, the appellant was permanently downgraded as shape II. In 1980, the appellant filed a writ petition in this Court, challenging the action of Army Headquarters and his downgrading. This Court directed that he should be restored to the rank of Acting Lieutenant Colonel from the date he was reverted and that his claims to advancement, pay, arrears of pay, etc. should be considered and disposed of within six months (See After lodging his claims, the appellant waited for a reasonable time and then filed a writ petition in the High Court. The respondent contended that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with. The High Court dismissed the writ petition. 647 In this appeal by special leave, the appellant contended that a prejudicial approach developed against him in the Headquarters establishment without any justification and he had been unduly subjected to psychiatric examination from time to time, and on the basis of the records built up against him adverse opinion had been forthcoming which resulted in recategorisation from shape I to shape II. To remove the apprehension of bias, this Court directed that the appellant may be examined by a Board consisting of three Experts with an outsider as Chairman. After considering the report of the Experts Committee this Court allowed the appeal in part and, ^ HELD: 1. The appellant 's medical category shall be taken as being continued to be shape I from 1977 and on that basis his promotional entitlements shall be finalised by the respondents within three months hence. It is open to the respondents to release the appellant from service after this has been done. [655F] 2. The report of the Expert Committee makes it clear that there was no justification for the appellant to be subjected to psychiatric test in 1978 following which he was recategorised as shape II. [654G] 3. This subject of categorisation on the basis of psychiatric test is technical and should ordinarily be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed. This Court has no intention to disturb the discipline of the Defence Department, but on the basis of material available on the record and on the basis of the report of the Committee of Experts, the appellant is entitled to limited relief. Though there was no order reducing him from the rank of Acting Lieutenant Colonel to Major, he was treated as having been so reduced. Then followed the frequent psychiatric examinations without any real justification. This recategorisation, in these circumstances, was without any justification. [654H; 655A B] [Reiterating that it would like the discipline of the Defence Department to be maintained by itself in the interest of the nation, this Court observed that this case may not be taken as a precedent.] [655F G] </s>
<s>[INST] Summarize the judgementAppeal No. 7 of 1964. Appeal from the judgment and decree dated January 7, 1955 of the Madras High Court in Appeal Suit No. 371 of 1959. 609 R. Ganapathy Iyer and R. Thiagarajan, for appellants. In the suit which is the subject matter of this appeal the plaintiffs alleged that Plaint 'A ' Schedule properties belonged to the second defendant and his son, the third defendant. The second defendant sold the village for Rs. 28,000/ to one Swaminatha Sarma by a sale deed exhibit A dated December 12, 1912 which he executed for himself and as guardian of the third defendant who was then a minor. The second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minor son 's half share should later on be set aside. Accordingly the second defendant executed the Indemnity Bond exhibit B in favour of Swaminatha Sarma. The sons of Swaminatha Sarma sold Plaint 'A ' Schedule village to the father of the Plaintiffs for a sum of Rs. 53,000/ . On the same date they assigned the Indemnity Bond exhibit B to the father of the plaintiffs under an Assignment Deed exhibit The third defendant after attaining majority filed O.S. No. 640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed exhibit A in respect of his share and for partition of joint family properties. The plaintiffs were impleaded as defendants 108 and 109 in that suit. The suit was decreed in favour of the third defendant and the sale of his share was set aside on condition of his paying a sum of Rs. 7,000/ to defendants 108 and 109, and a preliminary decree for partition was also granted. In further proceedings, the village was divided by metes and bounds and a final decree exhibit F was passed on October 6, 1936. Meanwhile, a creditor of the third defendant obtained a money decree and in execution thereof, attached and brought to sale the third defendant 's half share in the 'A ' Schedule village. In the auction sale Subbaiah Chettiar, the plaintiff 's brother in law purchased the property for a sum of Rs. 736/ subject to the liability for payment of Rs. 7,000/ under the decree in O.S. No. 640 of 1923. Thereafter, the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the 'A ' Schedule village and are entitled to recover the same from the second defendant personally and out of the 'B ' Schedule properties. The plaintiffs have claimed damages to the extent of half of the consideration for the sale deed exhibit C. minus Rs. 7,000/ withdrawn by them. The plaintiffs claimed a further sum of Rs. 500/as Court expenses making a total of Rs. 20,000. The suit was contested on the ground that the Court sale in favour of Subbaiah Chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half share of the 'A ' Schedule village and consequently the plaintiffs did not sustain any loss. The trial court held that Subbaiah Chettiar P.W. I was benamidar of 610 the plaintiffs who continued to remain in possession of the whole village. The trial court was, however, of the opinion that though the plaintiffs had, in fact, purchased the third defendant 's halfshare in the Court sale, they were not bound to do so and they could claim damages on the assumption that third parties had purchased the same. The trial court accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on 'B ' Schedule properties. The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs. 736/ paid for the Court sale and the sum of Rs. 500/ spent for the defence of O.S. No. 640 of 1923. The High Court accordingly modified the decree of the trial court and limited the quantum of damages to a sum of Rs. 1236/ and interest at 6 per cent p.a. from the date of the suit. The question presented for determination in this appeal is what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the Indemnity Bond exhibit B dated December 19, 1912. It was contended by Mr. Ganapathy Iyer on behalf of the appellants that in O.S. No. 640 of 1923, defendant No. 3 obtained a partition decree and a declaration that defendant No. 2 was not entitled to allenate his share in the 'A ' Schedule properties. It was submitted that on account of this decree the appellants lost title to half share of 'A ' Schedule properties and accordingly the appellants were entitled to get back half the amount of consideration under the Indemnity Bond exhibit The argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned. It was suggested that the purchase in court auction was an independent transaction and the defendants ,could not take the benefit of that transaction. We are unable to accept the contention of the appellants as correct. In the present case it should be observed, in the first place, that the Indemnity Bond exhibit B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son Chidambaram is set aside and you are made to sustain any loss". In the second place, it is important to notice that the sale deed exhibit A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties. The sale of the half share of defendant No. 3 was not void ab initio but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the 611 convenant can only occur on the disturbance of the vendee 's possession and so long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a convenant of the warranty of title. The view that we have expressed is borne out by the decision of the Madras High Court in Subbaroya Reddiar vs Rajagopala Reddiar (1) in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B, got a decree and obtained possession thereof in execution. In this state of facts it was held by Seshagiri Ayyar, J. that B 's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the Limitation Act. At page 889 of the Report Seshagiri Ayyar, J. states: "The cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carrried out by giving possession of the properties. In the first class of cases, the starting point of limitation will be the date of the sale. That is Mr. Justice Bakewell 's view in [Ramanatha Iyer vs Ozhapoor Pathiriseri Raman Namburdripad ; and I do not think Mr. Justice Miller dissents from it. However, the present case is quite. different. In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified. The cause of action will therefore arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat vs Hanuman Mandur (I Cal. 123 (P.C.) and in Bassu Kuar vs Dhum Singh (I 889) I.L.R. II All. 47 (P.C.) are authorities for this position. " A similar view has been expressed by the Allahabad High Court in Muhammad Siddiq vs Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram vs Survajirao Ganpatrao.(3) In the present case it has been found by the High Court that P.W. 1, the auction purchaser was the brother in law of the plaintiffs (1) I.L.R. (2) I.L.R. 52 All. 604. (3) A.I.R. 1950 Bom. 612 and that he was managing the estate of the plaintiffs and defending O.S. 640 of 1923 on their behalf It has also been found that P.W. I did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sum of Rs. 736/ paid at the Court sale and a sum of Rs. 5001 spent for the defence of O.S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land. Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1236/ which was the actual loss sustained by them and they are not entitled to any further amount. For these reasons we hold that there is no merit in this appeal which is dismissed with costs. Appeal dismissed. [/INST]The second defendant sold property belonging to himself and his minor son the third defendant. and also executed an indemnity bond in favour of the vendee agreeing to indemnify him for any loss that might be caused to him in case the sale of the third defendant 's half share should later on be set aside. vendee sold the property to the plaintiffs and assigned the indemnity bond in their favour and the plaintiffs took possession of the property. The third defendant, after attaining majority, sued for ,setting aside the sale in respect of his half share and for partition. The plaintiffs contested the suit but the third defendant 's suit was decreed. He, however, did not dispossess the plaintiffs. Meanwhile, a creditor of .the third defendant obtained a money decree against him and in execution ,thereof attached and brought to sale the third defendant 's half share, and, ,the brother in Law of the plaintiffs purchased the property, but ,the plaintiffs continued in possession of the property. The plaintiffs, thereafter, filed the suit for recovery of half the consideration paid by them, on the allegation that they sustained damage by the loss of one half of the property bought by them, and that they were entitled to recover damages from the second defendant. The suit was contested on the ground that the court sale in favour of the brothers in law of the plaintiffs was benami for the plaintiffs, and that as the plaintiffs never lost ownership or possession of the halfshare, they did not sustain any loss. .The trial court decreed the suit. The High Court, on appeal, confined the decree to the actual loss sustained, namely, the amount for the court sale and the amount spent for the defence of the third defendant 's suit. In appeal to the Court, on the question of the quantum of damages to which the plaintiffs were entitled, HELD : High Court was right in granting a decree to, the plaintiffs only for the sum which was the actual loss sustained by them. The sale of the half share of the third defendant was not void ab initio but was only voidable. In such a case the indemnity bond becomes enforceable only if the vendee is dispossesed from the properties, because, a breach of the covenant can only occur on the disturbance of the vendees possession. SD long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the indemnity bond or for the breach of a convenant of the warranty of title. [610 H 611 B] Subbaroya Reddiar vs Rajagopala Reddiar, Mad. 887 Muhammad Siddiq vs Muhammad Nuh, I.L.R. 52 All. 604 and Gulabchand Daulatram vs Suryaji Rao Ganpatrao, A.I.R. 1950 Bom. 401, approved. </s>
<s>[INST] Summarize the judgementCivil Appeal No. 577 of 1961. Appeal by special leave from the judgment and decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No. 448 of 1952. Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, for the appellants. C. B. Agarwala, and J. P. Goyal, for the respondent No. I. 1963. May 3: The judgement of the Court was delivered by RAGHBAR DAYAL J. The facts leading to this appeal, by special leave, are these. Nine 551 persons, including Kedar Nath, instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant No. I was the tenant inchief who had sub let the premises to defendant No. 2. The suit for ejectment was decreed against both the defendants and for arrears of rent against defendant No. 1. On appeal by defendant No. 2 the District judge set aside the decree for ejectment against defendant No. 2 and confirmed the rest of the decree against defendant No. 1. It is against this decree that the nine original plaintiffs filed the second appeal in the High Court on February 29, 1952. Kedar Nath, appellant No. 3, died on September 8, 1955. In view of rr. 3 and 11 of O. XXII of the Code of Civil Procedure, hereinafter called the Code, the appeal abated so far as Kedar Nath was concerned as no application for bringing his legal representatives on the record was made within the prescribed time. On October 1, 1956, two applications were filed in the High Court One was an application under section 5 of the Limitation Act for the condonation of the delay in filing the application for substitution of the heirs in placec of Kedar Nath. The other was the application for substitution in which it was prayed that Bithal Das and Banarsi Das, the sons of Kedar Nath, deceased, be substituted in place of the deceased appellant as they were his heirs and representatives. These two applications were dismissed on May 1, 1957, with the result that the appeal stood abated as against Kedar Nath. Bhagwati Prasad, appellant No. 9 also died on July 2,1956. His widow, Remeshwari Devi, was brought on the record in his place. When the appeals of the appellants other than Kedar Nath came up for hearing on September 1, 1958, a preliminary objection was taken for the, 552 respondent that the entire appeal had abated. Mr. jagdish Swarup, learned counsel appearing for the appellants, contended that the deceased belonged to a joint Hindu family and other members of the family were already on the record and that it was not necessary to bring on record any other person. He further stated that the appeal could not be said to have abated in the particular circumstances. The Court allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint Hindu family and other relevant facts. On September 8, 1958, an affidavit was filed by Suraj Prasad Misra pairokar of the appellants. Para 9 of the Affidavit stated that Lala Ram Chandra Prasad, appellant No. 8, managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was 'already on the record. A counter affidavit was filed stating that the allegations in para 9 of the affidavit were misleading, that there was no allegation in the affidavit that the family was a joint Hindu family and that the true facts were that the family of the plaintiffsappellants was not a joint family, that the members were separated, that Lala Ram Chandra Prasad was not karta of the joint Hindu family, that the plaintiffs were assessed to income tax separately and that the property in dispute was not joint family property or even joint property. A rejoinder affidavit was then filed by Sri Narain, general agent of the appellants stating that the aforesaid statements in the counteraffidavit were misleading and irrelevant and re affirming that Ram Chandra Prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family. 553 At the hearing of the appeal of the surviving appellants, the only point which was urged for consideration seems to have been that the surviving appellants were competent to continue the appeal in view of O.XLI, r. 4, C. P. C. This contention was repelled in view of the full Bench decision of the Allahabad High Court reported in Baij Nath vs Ram Bharose (1), as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and contradictory decrees. It accordingly dismissed the appeal. It is against this decree that this appeal has been filed after obtaining special leave. Mr. Sarjoo Prasad, learned counsel for the appellants, has raised two points. One is that the provision of r. 2 of O. XXII and not of r. 3 of that Order apply to the facts of this case as the nine appellants constitute a joint Hindu family and the surviving plaintiffs could continue the appeal. The second point is that if the provisions of r. 3 of O.XXII applied and the appeal of Kedar Nath had abated, the provisions of r. 4 of O.XLI have not been correctly construed in Baij Nath vs Ram Bharose (1) and Ramphal Sahu vs Babu Satdeo Jha (2). We see no force in the first contention. We have already referred to the contents of the various affidavits filed by the parties subsequent to the point being raised that Kedar Nath, the deceased appellant and the surviving appellants constituted a joint Hindu family. They clearly indicate that the affidavits filed on behalf of the appellants made no averment that Kedar Nath and the surviving appellants formed a joint Hindu family, even though time had been given to them for filing an affidavit stating such a fact. The inference is obvious, and (1) I.L.R. [1953) All, Pat, 870, 554 is that these people did not form a joint Hindu family as alleged by the respondents. It is further of significance that the application made on October 1, 1956, for substituting the sons of Kedar Nath in his place stated that they were his heirs and legal representatives. The application was on the basis that Kedar Nath was not a member of the joint Hindu family. We are, therefore, of opinion that it is not proved that Kedar Nath, deceased, and the other appellants constituted a joint Hindu family that the right to appeal survived to the surviving appellants alone and that they could have continued their appeal in view of r. 2 of of XXII of the Code. The second contention really is that the surviving appellants could have instituted the appeal against the entire decree in view of the provisions of O. XLI, r. 4 of the Code, that they were, therefore, competent to continue the appeal even after the death of Kedar Nath and the abatement of the appeal so far as he was concerned, that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief 'with respect to the rights and interests of Kedar Nath as well. We do not agree with this contention Rule 4 of O.XLI reads: "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and there upon the appellate Court may reverse or vary the decree in the favour of all the plaintiffs,or defendants, as the case may be." These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire 555 decree. The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of r. 4 O.XLI could apply. The appeal could not have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of O.XLI from the date when the appeal abated so far as Kedar Nath was concerned. If the appeal could be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal. At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath. The legal representatives could not have taken advantage of r. 4 of O. XLI. It follows that r. 4 of O. XLI would not be available to the surviving plaintiffs at that time. Further, the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an. appeal, represents all the other non appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath. Kedar Nath 's appeal has abated and the decree in favour of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that r. 4 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the 556 deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final. This Court said in State ' of Punjab vs Nathu Ram(1). "The abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken." No question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9 of O. XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of 0 XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable. Order XXII operates during the pendency of an appeal and not at its institution. If some party dies during the ' pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the previsions of r. 9 of O. XXII and those of r. 4 of O~. XLI, C.P.C. They operate at different stages and provide for (1) [1962] 2 S.C. R. 636 557 different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other. We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r. 3. See : Ramphal Sahu vs Babu Satdeo Jha (1); Amin Chand vs Baldeo Sahai Ganga Sahai(2), Baij Nath vs Ram Bharose (3); Nanak vs Ahmad Ali (4); Pyarelal vs Sikhar Chand (5); Raghu Sutar vs Nrusingha Nath (6); Venkata Ram Rao vs Narayana (7); Sonahar Ali vs Mukbul Ali (8). The Bombay,, Calcutta and Madras High Courts have taken a differentview : see Shripad Balwant vs Nagu KushebaSatulal Bhattachariya vs Asiruddin ShaikhSomasundaram Chettiar vs Vaithilinga Mudaliar OrderXLI, r. 33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well. This rule reads : "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, an( this power may be exer cised by the Court notwithstanding that the (1) I.L.R. [1953] 2 All. Lah.667 (3) I.L.R. [1953] 2 All. (6) A.I.R. 1959 Orissa 148. (7) A.I.R. 1963 A.P. 168 (8) A I.R. (9) I.R.R. (10) I.L.R. (11) I.L.R. 558 appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. " This rule is under the sub heading 'judgment in appeal '. Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled. The decree therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass such decrees and Orders as 559 the interests of justice demand. Such a power is to be exercised in exceptional cases when its non exercise will lead to difficulties in the adjustment of rights of the various parties. A case like the present is not a case of such a kind. When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always avoided. Rule 33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versa arises. In Mahomed Khaleel Shirazi & Sons vs Los Panneries Lyonnaises (1) it was held that O. XLI, r. 33 was not intended to apply to an appeal which was not a competent appeal against a party under the Code or under the Letters Patent 'of the High Court. This principle applies with equal force in the present case. The appeal by the surviving appellants is not competent in the circumstances of the case and, therefore, the provisions of 0. XLI, r. 33 are not applicable to it. We are, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had (1) 53 I.A 84 560 abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him. It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant. We, therefore, dismiss the appeal with costs. Appeal dismissed. [/INST]The validity of the election of the appellant to the House of the People at the third general elections held in the month of February, 1962, was challenged by two of the electors of the constituency from which the appellant was elected, by filing election petitions for setting aside the election. The nomination paper of B, one of the two electors aforesaid, had been rejected by the returning officer. The appellant who was one of the respondents to the two election petitions raised preliminary objections to the maintainability of the petitions and pleaded that they should be dismissed on the grounds, inter alia, (1) that B whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as a respondent to the election petition in contravention of the provisions of section 82 of the Representation of the People Act, 1951, (2) that there was non compliance with the provisions of section 81 (3) of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission, and (3) that there was non compliance with the provisions of section 83 of the Act inasmuch as (a) the election petition was not verified in the manner laid down in section 83, and (b) the affidavit in respect of corrupt practices which accompanied the petition was neither properly made nor in the prescribed from. Held (1) that where all the parties whom it was neces sary to join under the provisions of section 82 of the Representation of the People Act, 1951, were joined as respondents to the 574 petition, the circumstance that a person who was not a necesary party had also been impleaded did not amount to a contravention of section 82 of the Act; (2) the word "copy" in section 81 (3) of the Act did 'not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person; In re Hewer, Ex parte Kahan, (I 882) 1, relied on. (3)that a defect in the verification of an election petition as required by section 83 (1) (c) of the Act did not attract section 90 (3) and so was not fatal to the mintainability of the petition; and, (4)that a defect in the affidavit was not a sufficient around for dismissal of the petition. </s>
<s>[INST] Summarize the judgementvil Appeal No. 1306 of 1988. From the Judgment and Order dated 2.4.1987 of the Allahabad High Court in Writ Petition No. 1818 of 1984. H.N. Salve, P.P.Tripathi, Manoj Swarup and K.J. Johan for the Appellants. B.Sen, Gopal Subramaniam, Prashant Kumar and Mrs. section Dikshit for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. There was a time when, in almost every State in India, people were invited to avail of the supply of the electric energy produced in the State and offered special concessions when they agreed to 158 do so in bulk under long term contracts. A situation, however, has since developed when the demand for the energy increased so rapidly that, despite the quantity of available electric energy also having gone up tremendously the rates of supply agreed upon became uneconomical. The State and its instrumentalities, who were supplying the energy, found themselves without power to revise the rates to meet the altered situation until the legislature came to the rescue. It is this situation in the case of Kanoria Chemicals and Industries Ltd. (hereinafter referred to a `the appellant ') which has given rise to these appeals. The , (hereinafter referred to as `the 1948 Act ') entrusted the control over the generation and distribution of electric energy to Electricity Boards constituted under the Act. In the State of Uttar Pradesh, the U.P. State Electricity Board (hereinafter referred to as `the Board,) was constituted on 1.4.1959. At that time, the State Government (hereinafter referred to as `the State ') was in the process of establishing the Rihand Hydro Electric Generating Plant, which become operational w.e.f. 1.2.62, and attained an ultimate installed capacity of 300 M.W. The control of this remained with the State till 31.3.1965. Since the supply of electrical energy was then available in abundance and only the eastern area of the State was served by the plant, the State considered it expedient to enter into contracts with bulk purchasers both with a view to ensure maximum utilisation of the electricity available and with a view to the industrialisation of the eastern areas of the State. In particular the State was keen on the industrial development of the district of Mirzapur, which was considered to be an extremely backward area. The State was keen that power intensive units be set up in close proximity of Rihand so that electricity could be supplied to these units from the Rihand power plant. One feature of the supply of electricity from Rihand was that the metering was done at the point of generation so that transmission and distribution losses and costs could be borne by the consumers of electricity. The appellant set up an industry for manufacture of caustic soda at Renukoot sometime in 1964. According to the appellant, this industry involved the use of electricity as the main raw material, the other raw material needed being salt. It is said that there were considerable disadvantages in setting up the proposed caustic soda unit in the district of Mirzapur, principally due to its distant location from areas from which salt had to be transported. The appellant, it is said, could easily have set up its factory in some other State with greater facilities and advantages but it was induced to set up the caustic soda plant at Pipri in the district of Mirzapur on account of the assurance given by the State that it will supply hydro electric 159 power to the assessee from the Rihand power plant on a long term basis at a cheap rate. It is claimed that, but for this promise, the appellant would never have chosen Pipri or the district of Mirzapur for the location of this plant. After elaborate discussions between the State Government and the promoters of the appellant company, the plant was set up at Pipri and a contract was entered into between the State Government and the appellant on 30.9.1963 ensuring the supply of electricity from the point of generation to the appellant for a period of 25 years from 1.4.64. The supply, to the extent of 6.5 MW. was to be from Rihand hydel station at a fixed rates of 2.5 paise per unit. An additional supply of 1.5 MW was also promised from an inter connection at the rate of 5 N.P. per unit. The rates could be revised after the first sixteen years but any enhancement in rates was not to exceed 10 per cent of the rates agreed upon. The State agreed further to supply 4.5 MW to the appellant from the Obra Hydro Electric Project on such rates as would be fixed subsequently. It may be mentioned that this clause gave rise to disputes which were referred to arbitration. An award was made by justice D.P. Madan, a retired judge of this Court, which was made a decree of this Court by an order dated 1.4.1987. Under the award, the rate of supply was fixed at 8.69 paise per unit. The State 's grievance is that it incurred a loss of Rs. 10.55 crores by supplying electricity from Rihand between 1.4.64 and 19.5.83 at concessional rates instead of applying the uniform tariff applicable to other "bulk power" consumers, briefly referred to as "HV 2 rates. " It says also that it likewise suffered a loss of 12.4 crores due to the supply at 8.69 paise instead of normal rates, from Obra between 1.4.71 and 31.3.89, when the agreement, came to an end by efflux of time. Obviously, it was not economical to continue supplying energy at the preposterously low rates to which the State had committed itself in 1963 on account of the conditions that prevailed at the time of the agreement. The powers of the State or the Boards to revise contractual rates unilaterally were examined by this Court in Indian Aluminium Company Ltd. vs Kerala State Electricity Board [1976] 1 SCR 70. It is sufficient to say that, after considering the provisions of section 49 and 59 of the Supply Act, the Court held that the Electricity Board were not entitled to enhance charges in derogation of stipulations contained in agreement entered into between parties. This decision led to the provisions of the Supply Act being amended by various States. The State of Karnataka, Orissa and Rajasthan brought in amendments enabling the Electricity Board to supersede contracts and 160 revise the rates contained in earlier agreements. The U.P. Government, also enacted the Electricity Laws (Uttar Pradesh Amendment), Act, 1983, to vest the State 's agreement with the Board and to enable the Board to revise the contractual rates. The Act came into force from 20.5.1983. Section 7 of the said Act amended Section 60 of the Supply Act, 1948 by inserting the following sub sections (3) to (5) with retrospective effect from April 1, 1965 : (3) All expenditure which the State Government may, not later than two months from the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983, declare to have been incurred by it on capital account in connection with the purposes of this Act in respect of the Rihand Hydro Power System shall also be deemed to be a loan advanced to the Board under section 64 on the date of commencement of this sub section and all assets acquired by such expenditure shall vest in the Board with effect from such commencement. (4) The provisions of the sub sections (1) and (1 A) shall, subject to the provisions of sub section (5) apply in relation to the debts and obligations incurred, contracts entered into and matters and things obliged to be done by, with or for the State Government in respect of the Rihand Hydro Power system after the first constitution of the Board and before the commencement of this sub section as they apply in relation to debts and obligations incurred, contracts entered into, matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board. (5) All such contracts entered into by the State Government for supply of electrical energy based on or connected with the generation of electricity from the Rihand Hydro Electric Generating Station to any consumer and any contract entered into by the Board on or after April 1, 1965 for the supply of electrical energy to such consumer shall operate subject to the modifications specified in the following clauses, which shall have effect from the date of the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983 (hereinafter referred to as the said date): 161 (a) the rates to be charged by the Board for the energy supplied by it to any consumer under any contract for which the payment will be due for the first time on or after the said date shall be such as may with the previous approval of the State Government be fixed by the Board, having due regard to the geographical position of the area of supply, the nature of the supply and purpose for which supply is required and any other relevant factor. (b) If the State Government directs the Board under Section 22 B of or under any other law for the time being in force to reduce the supply of energy to a consumer and thereupon the Board reduces the supply of energy to such consumer accordingly, the consumer concerned shall not be entitled to any compensation for such reduction, and if the consumer consumes energy in excess of the reduced limit fixed under the said section 22 B or any other law for the time being in force as the case may be, then the Board shall have the right to discountinue the supply to the consumers without notice ,and without prejudice to the said right of the Board, the consumer shall be liable to pay for such excess consumption at double the normal rate fixed under clause (a); (c) Any arbitration agreement contained in such contract shall be subjects to the provisions of this sub section. Parliament also, at about the same time, amended section 59 of the Act by Act 18 of 1983. The amended section 59(1), which is sufficient for our purpose reads thus : 59. General principles for Board 's finance (1) The Board shall, after taking credit for any subvention from the State Government under Section 63, carry on its operation under this Act and adjust its tariffs so as to ensure that the total revenues in any year of account shall, after meeting all expenses properly chargeable to revenues, including operating, maintenance and management expenses, taxes (if any) on income and profits depreciation and interest payable on all debentures, bonds and loan, leave such surplus as is not less than three per cent, or such higher percentage, as the State Government may, by notification in the official Gazette, specify in this behalf, of the value of the fixed assets of the Board in service at the 162 beginning of such year. Explanation For the purposes of this sub section. "value of the fixed assets of the Board in service at the beginning of the year" means the original cost of such fixed assets as reduced by the aggregate of the cumulative depreciation in respect of such assets calculated in accordance with the provisions of this Act and consumer 's contributions for service lines. It has been pointed out to us that the U.P. State amendment is somewhat different from those of the other States. The Karnataka legislature amended section 49 of the 1948 Act and the Orissa and Rajasthan legislatures inserted section 49A in the said Act. These provisions enabled the Boards ' to prescribe tariffs and these rates were to prevail over those specified in the agreement. The latter two amendments actually declare the relevant clauses in the agreement void from inception. The U.P. amendment. however, retains the effectiveness of the earlier contracts and only reads into them the rates that may be prescribed by the Board. This is the first difference. The second is that while the other legislations affect all agreements entered into before a specified date, the U.P. amendment is restricted to contracts for supply of electricity from the Rihand Hydro Electric Generating Station. We are informed that, when the above amendment was sought to be effected, the only outstanding contract of the State for the supply of electricity from the Rihand Hydro Electric Generating Station was the contract with the appellant on the 30th of September, 1963. There had been two agreements entered into for supply of electricity from this power station but the other one with Hindustan Aluminium Company had become ineffective since that company gave up its claim to supply from the above power plant in 1975 76 having been successful in putting up a power plant for its captive use. Thus, though the Act purports to be one of general application, it was really intended to enable the State and the Board to modify the rates of supply of electricity to appellant under the contract of 30.9.1963. At this stage it may be useful to refer also to the terms of section 49 of the Act. It reads thus : (1) Subject to the provisions of this Act and or regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. 163 (2) In fixing the uniform tariffs the Board shall have regard to all or any of the following factors, namely : (a) the nature of the supply and the purposes for which it is required : (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee: (c) the simplification and standardisation of methods and rates of charges for such supplies : (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. (4) In fixing the tariff and conditions for the supply of electricity, the Board shall not show undue preference to any person. After the statute was thus amended, the Additional Chief Engineer of the Board wrote to the appellant on 6.2.1984 stating that, though the bills were being drawn on the basis of the agreement, the rates were subject to revision with effect from May 20, 1983 with the approval of the State Government and that a supplementary bill would be sent for the arrears as and when the rates were revised in pursuance of section 60(5) (a). On 5th April, 1984, the appellant filed Writ Petition No. 1818 of 1984 in the High Court of Allahabad assailing the validity of section 7 of the amending Act and the right of the Board to enhance the rates. While admitting the writ petition, the High Court passed an interim order to the effect that the State Government should provide an opportunity of hearing to the appellant before bringing about any change in the terms and conditions of the Agreement or tariff rates and that no revised rates shall be charged from the 164 appellant till it is heard, and the matter decided, by the State Government. On June 11, 1984, the Law Officer of the Board wrote to the appellant requesting it to give in writing the points which they wanted to urge before the rates were approved by the State Government. According to the appellant, this was not sufficient compliance with the court 's order and it moved the High Court for amending its petition and made further applications to the Court. It may be mentioned that the stand taken up by the Board in the writ petition was that the writ petition was premature as the State 's approval had not been obtained and no injury had been caused to the appellant. But, suddenly, on 31.1.85, the Board wrote to the appellant informing it that the State Government had approved the levy of rates as per Schedule HV 2 (as defined in the U.P. Gazette Notification dated 29th October, 1982) applicable to heavy power consumers in substitution of the rates mentioned in the agreement of 20th September, 1963. It was stated curiously enough that the approval of the State Government had been given on 28.9.1983. The effect of the revision was to oblige the petitioner to pay 57.71 paise per unit for 1983 84 and 61.60 paise per unit for 1984 85. An idea of the magnitude of the revision can be had by pointing out that supplementary bills raised on the basis of the revision for the period 20.5.83 to 31.12.1984 were to the tune of Rs. 3.07 crores. The appellant 's allegation is that no such approval had been given and it is asserted that the internal correspondence between Board and State would show that the legal Department of the Board had raised certain objections to the levy of HV 2 rates on the appellant, and that consequently Board had sent a fresh proposal in December 1983 seeking approval of the State Government for imposing a flat rate in respect of supplies to the appellant in place of earlier proposal. It is also stated no proposal was made, or approval sought, for imposing the revised rates w.e.f. 20.5.1983. The Board, however, proceeded to make demands against the appellant on the basis of the revised rates. According to the Board, reference was made to a resolution dated 30.1.85 to the withdrawal on that date of the proposal for a flat rate in place of HV 2 rates. Thus, demands on the basis of HV 2 rates were sought to be sustained. The demands amounted to several crores of rupees and disconnection was threatened in case of nonpayment. The appellant obtained certain interim orders from High Court (which have been subsequently considered and modified from time to time by this court during the pendency of these appeals). It is, however, not necessary to refer to these interim orders as the final liability of the appellant will have to be decided on the basis of the orders of this Court on the appeals. 165 The writ petition was heard by a Bench of two judges. Both judges repelled the challenge to the validity of the Amendment Act but differed on some of the points which came up for their consideration. Srivastava, J. was of the opinion that the intention and purpose of the Amendment Act was to revise the existing contractual rate of energy charges and charge higher rates upto the extent of uniform tariff rates for the supply of electricity to the consumers whose contract stood modified by the said statute. The rates so fixed had to be dependent upon the factors enumerated in section 60(5). According to him, the material on record showed that the factors enumerated in section 60(5) had not been taken into account by the Board before fixing the rates or by the State Government in according its approval to the same. The Board and the Government appeared to have acted upon a consideration of the factors mentioned in section 49(2) of the Act of 1948 while framing a uniform tariff but this was not sufficient compliance with the provisions of section 60(5). On the other hand, Mathur. J. was of the opinion that the move for amendment of the Act and enforcement of HV 2 tariff was initiated by the Board and that the notings contained a detailed justification for enforcing the said tariff. It also appeared from the statement of objects and reasons of the amending bill that the supply of electricity at concessional rates despite losses and the desirability of replacing the said rate by uniform tariff came up for discussion in the State Legislature and that the Board did not act wrongly or illegally if it felt that it had no option but to apply uniform rates in view of the statement contained in the objects and reasons of the bill and the discussion in the State Legislature. He was also of the opinion that the factors contemplated by section 60(5) (a) were similar to those envisaged by section 49(2), and since consideration had been given to the latter factors while farming the uniform tariff, no consideration of factors relevant to individual consumers was called for. The two learned judges thus differed on the following two points : (a) Whether the language of section 60 (5) (a) of U.P. Act No. 12 of 1983 required consideration of factors prescribed in section 60 (5) (a) viz., geographical position of the area of supply, the nature of supply and purpose for which supply is required and other relevant factors with reference to petitioner company for revising the existing contractual rate of H.C. tariff? (b) Whether the factors mentioned in section 49(2) of , having already been considered at the time of farming uniform tariff no fresh consideration of any factors mentioned in section 60(5)(a) of U.P. Act No. 12 of 1983 was required when the uniform tariff itself was being fixed while 166 revising the rate ? The difference of opinion was, therefore, referred to a third Judge, Mehrotra, J. This learned Judge answered that question referred to him as follows : (a) The language of section 60(5)(a) of U.P. Act 12 of 1983 requires consideration of factors prescribed in it with reference to the petitioner company for revising the existing contractual rate; and (b) Fresh consideration of the factors mentioned in section 60(5)(a) was required irrespective of the fact that factors mentioned in section 49(2) of the had already been considered at the time of framing of the uniform tariff which was being fixed for the petitioner company while revising the rates. Consequent on the opinion of this learned Judge the writ petition was allowed and a writ of certiorari was issued quashing the approval dated 28.9.1983 given by the State Government to the new rates and the consequent resolutions, sanctions, bills and demands of the Board and the State Government. A writ of mandamus was also issued commanding the respondents not to charge the uniform tariff rate for the period beginning from 20th May, 1983 till the rates were fixed in accordance with section 60(5) (a) of U.P. Act No. 12 of 1983. The Order disposing of the Writ petition finally is dated 2.4.1987. Immediately the judgement was pronounced the State Electricity Board and the State Government sought a certificate of fitness for preferring an appeal to this Court and the High Court granted the certificate, as prayed for. This appeal has not been numbered on account of delay. Though the High Court had quashed the revision of the rates, it had left it to the board and State to fix revised rates afresh. That apart, the appellant had also a grievance that, in applying the HV 2 rates which were applicable to other consumers, the Board and the State had not taken into account the special factors relevant to the supplies made to it. The appellant also, therefore, filed S.L.P. No. 13967 of 1987 for leave to appeal from the judgement dated 2.4.1987. Leave has been granted by this Court on 8.4.1988 and the appeal of the company had been registered as C.A. 1306 of 1988. In the meantime the Board and State were, apparently carrying on an 167 exercise for the revision of the rates afresh as directed by the High Court and, on 28.3.1988, the Board purported to fix the following revised rates for the supply from 20th May, 1983. Period Rate (Paise per unit) 20.5.1983 to 31.3.1984 70.21 1.4.1984 to 31.3.1985 74.93 1.4.1985 to 31.3.1986 85.14 1.4.1986 to 31.3.1987 88.60 It will be observed that rates thus fixed, and said to have been approved by the State Government, were much higher than the HV 2 rates fixed earlier, objected to by the appellant and quashed by the High Court. Having done this, this Board sought leave to withdraw the appeal preferred by it. So far the appellant 's appeal was concerned, it was contended that the appellant 's remedy was to challenge the revision of 28.3.1988, if so advised, in fresh proceedings. This was the position when these appeals came to be heard by us on April 10, 1991. We heard the appeals at length and reserved orders. In doing so we passed the following order : "The appeals pertain to the fixation of tariff rates for supply of electricity to the appellants caustic soda plant at Renukoot. The appellants originally came to court challenging the levy of the electricity charges on the basis of HV II rates applicable generally to consumers drawing supply from the U.P. State Electricity Board. However, the High Court held that the rates applicable to the appellants should be determined having regard to the individual circumstances of the appellants. This was by a majority judgement in the High Court. Subsequently, the Electricity Board had proposed, and the State Government has approved, certain rates for the period from 20.5.1983 to 31.3.1987 which are somewhat higher than the HV II rates originally approved. This is the bone of controversy between the parties. We find that the State Government and Board have filed no counter affidavits in regard to the challenge by the appellants to the revision of rates effected subsequent to the High Court 168 judgment. In the circumstances, before we pronounce our judgment we think that, in the interests of justice, it would be proper to direct the State Board and the State Government to reconsider the fixation effected by them on the basis of the following directions : 1. Within a period of three weeks from today, the appellants will file before the State Electricity Board (with a copy to the State Government) a representation setting out what, according to them, are the individual factors which should be taken into account in fixing the rates applicable to them within the meaning of section 60(5)(a), 1948 as amended in 1983. The State Electricity Board will consider this representation and make appropriate recommendations to the State Government. However, before doing so, and particularly if the Board intends to take into account any factors other than those mentioned in the appellants ' representation, they should indicate the factors which they so wish to take into account, in their recommendations to the State Government. A copy of the recommendations should be forwarded to the appellants within seven weeks from today. On receipt of the recommendations made by the Board, the appellants may submit to the State Government, if they so desire, any representation which they wish to make regarding the recommendations within a period of three weeks thereafter. The State Government will consider the recommendations of the State Board as well as the representations made by the appellants to the Board as well as to themselves and approve of the rates which they consider proper in the circumstances of the case by a reasoned order, giving a board indication of the factors which they have taken into account in fixing the rates. This decision should be arrived at within a period of four weeks from the date of the receipt of the representation of the appellants. As indicated above, since the High Court has decided that in fixing the rates the individual circumstances of the appellants should be taken into account, the State Board as well as the State Government should take into consideration the special 169 circumstances of the appellants in fixing the rates. The Government 's order may also, in case different rates for different periods are fixed, indicate the respective dates from which the several rates will come into operation. The rates and dates so fixed by the Government, will naturally be subject to the decision on these appeals. " Subsequent to our order, the appellant made a representation to the Board on 29.4.91. The Board made its recommendations thereon to the State Government on 26.6.91. Thereafter the appellant made its representation to the State Government on 22.7.91. The State Government has subsequently passed an order on 31.8.91 and submitted the same to us. It is perhaps sufficient to extract the concluding paragraphs of the order. "After analysing the contentions of Kanoria Chemicals and the State Electricity Board, the State Govt. comes to the conclusion that M/s. Kanoria Chemicals and Industries Ltd. has taken benefit of establishing this unit in a backward area for the last 19 years and there is no justification in giving this benefit in continuously future also because this area has been developed in comparison to earlier years. The request of M/s. Kanoria Chemicals and Industries Ltd. that the factors shown by State Electricity Board should be limited to Rihand Hydel Power Station, is without justification since at present, they are getting supply from U.P. Grid and not from Rihand Power Station. Hence, the point of view of the State Electricity Board is justifiable. After due consideration of representation dated 24.2.91 and 22.7.91 of M/s. Kanoria Chemicals and Industries Ltd. and the recommendations of the State Electricity Board dated 26.6.91, the State Govt. comes to the conclusion that M/s. Kanoria Chemicals and Industries Ltd. has failed to indicate any fact which comes under the provisions of Sec. 60(5)(a) of the and which has not been considered by the State Electricity Board while fixing the rates in March 88 has kept in mind the decision of Hon. High Court of Allahabad and 170 complied with the provisions of sec. 60(5)(a) of the . Since keeping in view the factors enumerated in sec. 60(5)(a) of the , the Rules were revised in March, 1988 in the following manner, hence there appears no necessity to change these rates : S.No. Period Rate 1. 20.5.83 to 31.3.84 70.21 paise/unit 2. 1.4.84 to 31.3.85 74.93 paise/unit 3. 1.4.85 to 31.3.86 85.14 paise/unit 4. 1.4.86 to 31.3.87 88.60 paise/unit In other words, the State and Board adhere to the rates fixed on 28.3.88. It may be interesting to set out a comparative table of the revisions effected by the Board originally (which was quashed by the High Court) and the rates now approved : Period HV 2 rate Revised rate Paise/unit paise/unit 20.5.83 to 31.3.84 55.71 70.21 1984 85 59.86 74.93 1985 86 63.89 85.14 1986 87 80.88 88.60 1987 88 84.64 88.60 1988 89 93.39 88.60 * The revised rates for 1987 88 and 1988 89 are stated to be provisional but so far till today no fresh rates have been fixed in respect of these periods. 171 The resultant position is that the appellant is now facing huge demands in respect of the period since 20.5.1983 and till 31.3.1989 when the agreement expires, at rates which will be higher than the HV 2 rates which had been sought to be applied in the first instance. The appellant vehemently challenges the fixation of rates on 28.3.88 and 31.8.91. A good part of the argument before us in these appeals, in the first instance, was addressed on the question whether the State Government was obliged to give a hearing to the consumer before revising the rates under section 60(5) and whether the factors relevant under s.60(5) can be said to have been taken into account on the ground that they had already been taken into account while fixing uniform rates under s.49. In this context, reference was made to several decisions and contentions where canvassed in regard to the nature of the process of fixation of rates of charges for supply of electricity. It is, however, unnecessary to go into all these aspects because, in pursuance of the directions of this Court dated 10.4.1991, the matter has been re considered by the Board and the State Government and fresh rates have been fixed along with the respective dates of operation after hearing the appellant 's representatives. Broadly two principal submissions have been addressed before us at this stage on behalf of the appellants. The first is that the fixation of rates as on 31.8.1991 is not valid as the respondents have not complied with the directions given by this Court in the order dated 10.4.1991. It is argued that the respondents have neither disclosed the factors based on which the rates were revised in March 1988 nor have they indicated the monetary incidence or impact of the factors taken into account, though a specific request was made in this regard by the appellant to the Board and to the State Government. The appellant, it is said, has been gravely prejudiced and handicapped, in the absence of any such disclosure, in making any effective representation. Further in the final order dated 31.8.91, the State Government has stated that the fixation of rate by the State Government was based upon the consideration of facts and data communicated by the Board to the State Government in March 1988 but, admittedly, no facts, data or basis had been placed before this court at the time of the original writ petition on the basis of which the State Government had fixed the rates in March, 1988 compelling this Court to remand the matter for fresh consideration. Suddenly the Board, while concluding its recommendation to the State Government on 26.9.91 reminded the State Government that prior approval of the State Government for the rates had already been obtained in March 88 and persuaded the State Government to mechanically uphold the pre determined rates. Finally, it is contended that even in this process of re fixation of the 172 rates there was no genuine exercise to consider relevant factors in determining the rate under section 60(5)(a). We do not think that there is any force in these contentions. By the time the matter came up before us for hearing in the first instance the State Government had already passed its order of revision dated March 28, 1988. The rates which had been recommended by the State Electricity Board and approved by the State Government were within the knowledge of the appellant. It was of course necessary and equitable that, before giving effect to these rates (if not even before they were recommended), the consumer should have had no opportunity of placing before the Electricity Board and the State Government its side of the picture. This opportunity has, however, been provided by to the appellant. The appellant has also filed its representation. After considering the representation, the Board made its recommendations to the State Government and a copy of these recommendations were also available to the appellant. The appellant also had full opportunity to meet the various points set out in the recommendations of the Board. The comments of both the Board and the appellant have been taken into account by the State Government before finally approving of the rates proposed by the Board. The grievance of the appellant seems to be that the Board has not set out anywhere the precise manner in which the rates recommended by them were arrived at and that this has considerably handicapped any effective representation being made by it to the Board and to the State Government. We do not think the proceedings are vitiated for this reason. It is true that the actual computations of the rates were not set out by the Board in its recommendations made in 1983 or 1985 or 1988 but the proper approach to the issue is not the one adopted by the petitioner. The section does not require the Board or the State Government to explain each and every step in its calculation. All that the State Government has to do is to take into consideration the factors relevant under section 60(5) and propose rates for fixation to the State Government. It is in order to ensure that these recommendations take into account all relevant factors that an opportunity has been provided to the consumer to satisfy the Board as well as the State Government that the fixation has not taken into account certain relevant factors. We, therefore, think the appellant must be held to have been given a fair opportunity under section 60(5)(a) so long as it had an opportunity to explain to the Board and the State Government the factors individual to its case and also as to how and why the rates recommended by the Board need modification. Moreover, the issue here was in a narrow compass for the following reason. On the passing of the Amendment Act, the Board decided to substitute the contract rates by the HV 2 rates. But this was rendered infructuous because of the terms of section 60(5)(a) which, it was said, were 173 different from those of section 49. If the factors under section 49 were alone to be taken into account then the consumers, one and all, would have been liable to pay for the electricity at the tariff rates. The claim of the appellant was that in applying these rates certain factors individual to it had not been taken into account. If one compares the two provisions, one will find that most of the elements are common to the two provisions. Both under section 49 and section 60 the authorities have to take into account the geographical position of any area, the nature of supply and purpose for which supply is required and any other relevant factor. The only difference between the two provisions is that since section 49 deals with a general fixation while section 60(5) deals with a fixation for a particular individual case, there may be some special factors to be taken into account which may or may not be germane while fixing the general tariff under section 49. Hence the only point which needed to be considered, when the matter was reexamined pursuant to our directions, was whether, having regard to the factors prevailing in the case of the appellant the rates to be fixed should be higher or lower than the HV 2 rates or whether they should be the same. It was open to the petitioner to contend, as it in fact did, that there are special features in its case which make it legitimate to fix some concessional rates as compared to other consumers. On the other hand, it is equally open to the State Electricity Board to contend that having regard to the prevalence of certain circumstances, the rates to be fixed should be higher than the tariff rates applicable generally. This is a short aspect on which both parties have made their positions clear. Apart from the general factors which have been taken into account in fixing the general tariff rates, the Board has, in making its recommendations, taken into account the purpose for which supply was required by the petitioner along with the factor of recurring losses incurred by the Board year after year and its statutory requirements to maintain a minimum surplus of 3 per cent as required under section 59 of the Supply Act, 1948. We are, therefore, satisfied that the appellant had full opportunity to place all its special features before the Board and the State Government and that all aspects have been fully considered by the authorities. The fixation of rates on 31.8.1991 is not, therefore, vitiated for the reasons urged by the appellant. The only other aspect that requires consideration is regarding the maintainability of the rates as now fixed by the Board and the State. Three questions arise in regard to this : (i) Can the Board fix rates higher than HV 2 rates in respect of bulk consumers like the company for whom a concessional rate had been granted on special considerations ? 174 (ii) Can the Board determine rates in 1991 and make them retrospective w.e.f. 1983? (iii)Was there material for the Board to fix rates which they have eventually fixed? We find that the answer to the first two questions posed only be in the affirmative. On the first issue, there are no obstacles, statutory or theoretical, standing in the way of the Board fixing rates for the company which will be higher than the rates applicable to bulk consumers. The provision in s.60(5)(a) is intended to enable the Board and State to cut off the shackles cast by an ancient contract entered into at a time when conditions were totally different. It confers an absolute and unrestricted enabling power to revise the rates in an appropriate manner and contains no restriction of the nature suggested for the appellant. In doing this, the only limitation which the statute requires the authorities to keep in mind are the factors mentioned in the section. Whether the revised rates for the consumer governed earlier by the contract should be higher or lower than, or equal to, the tariff rates would depend on a large number of considerations, in particular, the basis on which, and the point of time at which, those general rates were fixed. In principle, it is quite conceivable that, in an appropriate case, a consideration of the relevant factors may justify even a rate higher than the general tariff rates intended for the particular category of consumers. We shall examine later whether this was justified in the present case. At the moment, all we are concerned with is the legality of fixing such higher rates and we see no difficulty in this either on the language of the Statute or on other considerations. A retrospective effect to the revision also seems to be clearly envisaged by the section. One can easily conceive a weighty reason for saying so. If the section were interpreted as conferring a power of revision only prospectively, a consumer affected can easily frustrate the effect of the provision by initiating proceedings seeking an injunction restraining the Board and State from revising the rates, on one ground or other, and thus getting the revision deferred indefinitely. Or, again, the revision of rates, even if effected promptly by the Board and State, may prove infructuous for one reason or another. Indeed, even in the present case, the Board and State were fairly prompt in taking steps. Even in January 1984, they warned the appellant that they were proposing to revise the rates and they did this too as early as in 1985. For reasons for which they cannot be blamed this proved ineffective. They revised the rates again in March 1988 and August 1991 and, till today, the validity of their action is under challenge. In this 175 state of affairs, it would be a very impractical interpretation of the section to say that the revision of rates can only be prospective. The language of the section also supports this view. Slightly rearranging the syntax of the clause to facilitate easier understanding, what it provides is that the revised rates fixed by the Board shall be the rates to be charged by the Board for the energy supplied by it to any consumer for which the payment will be due for the first time on or after the 20th May, 1983. In other words, the rates eventually fixed will, by force of statute, apply to all supply of electricity for which the charges become payable in terms of the contract, after 20.5.1983. There are three objections suggested against this interpretation. The first is that it precludes the Board and State, where they choose to do so, from revising the rates prospectively or with effect from such dates, after 20.5.1983, which they may consider appropriate. We think this consequence does not flow from the language of the provision. The mandate is only that the rates to be charged on supplies for which payment becomes due after 20.8.83 shall be as fixed by the Board. The powers of the Board in fixing the rates including the dates from which they will be operative are not restricted in any manner. The Board is at complete liberty to fix different rates from different dates and that scheme of fixation will be read with the contract. Only the Board cannot revise the rates in respect of supplies for which payment under the contract, fell due before 20.5.83. The second objection, which is a follow up of the first, is that if the power u/s 60 is held exercisable more than once, the interpretation will permit successive revisions, each superseding the earlier one, a position that could lead to immense harassment. We have no doubt the power u/s 60 is exercisable more than once. All the same, the answer to the appellant 's objection is that, while this could be a basis of substantial harassment if repeated revisions are automatically dated back to 20.5.83 (as argued, on the first point, for the assessee), it loses all force on our interpretation leaving it open to the Board and State to fix the dates with effect from which revisions will be effective. In view of this, one can take in that, while making a subsequent revision, the authorities will not normally tamper with an earlier revision (s) or alter the dates of effectiveness fixed for the earlier revision (s) without a valid reason to do so. If this is done, it will be open to a court to examine the basis thereof and sustain it only where the earlier fixation was based on an error or misconception or the like and called for modification. The third objection is that the Hindi version of the Amendment Act is differently worded and does not contain the words "for the first time" found in the English version. Reliance is placed on the decision of a Bench of seven judges of the Allahabad High Court in Mata Badal Pandey vs Board of Revenue, (1974) U.P.T.C. 570 to 176 the effect that, where there appears a doubt or ambiguity on a plain reading of the English words as to the true intention of the legislature and the Hindi version is conflicting or different. the Hindi text will be the key for finding the answer. We do not think the Hindi version really alters the position; actually it is the presence of the words "for the first time" in the English version that create an ambiguity. Without these words, the clause clearly provides that all supply of electricity, for which payment is to be made after 20.5.83, will be charged at the rates to be fixed by the Board. We, therefore, reject the appellant 's contention and hold that the fixation by the Board of rates from 20.5.83 and, at different rates for different periods of time, is unexceptionable. This takes us to the real and crucial question in the case as to whether rates to be fixed in the present case should, on proper consideration, be less than, equal to or higher than the general HV 2 rates. The appellant contends that it should be charged at the cost of generation plus a reasonable margin of profit or at the rate at which the supply is made to the Madhya Pradesh State Electricity Board. At any rate, it is said, the rates charged to the appellant should be less than HV 2 rates. For this it relies on: (a) the special circumstance that the appellant, at great detriment to itself, agreed to set up a caustic soda plant in a backward area at the request of the State Government and in public interest only because of a promised concession in rates of electricity supply; (b) the fact that the supply to the appellant is metered at the point of generation with the result that the transmission and distribution losses, in so far as the appellant is concerned, are borne by the appellant and not by the Board as in the case of other consumers and (c) the important fact that electricity, in the case of the appellant, is one of the only two raw materials needed for its business. On the other hand, for the Electricity Board, it is contended that the appellant should be called upon to pay higher than HV 2 rates for the following reasons : (i) The appellant has been having substantial supplies of electricity at nominal rates of 2.5 paise and 2.75 paise per unit between 1963 and 1983. (ii) The supply to the assessee is being made only from the State Grid and there is no reason why it should draw the supply at lower rates than others : (iii) The Board had been incurring heavy losses over the years. This is to a considerable extent due to the spiraling demand for electricity, the Board 's responsibilities under the statute to co 177 ordinate development of the supply of energy throughout the State and the necessity to supply energy at concessional rates to certain sectors such as the agricultural sector. (iv) The Board is also entitled, under s.59 of the 1948 Act, to take into account the necessity of building up a surplus, statutorily fixed, in the fixation of rates of supply to all or any of its consumers. We have given careful thought to the considerations urged before us and we are of opinion that there is no material to justify any departure from the HV 2 rates in the case of the appellant. We find no force in the contentions put forward on behalf of the appellant to reduce the rates applicable to the appellant below HV 2 level. The special circumstances pleaded have lost their importance with the passage of time. It is obvious that the conditions that prevailed in 1963 are not valid and the appellant has had the benefit of concessional rates for twenty years. No doubt the benefits would have continued for five more years but for statutory intervention. But the statute permits a reconsideration of the situation as in May 1983 and it is unarguable, it seems to us, that the rate of 2.75 p. should continue even after 1983 or that the appellant should be entitled to any special concession. The consideration that electricity is a "raw material" in the assessee 's business is, again, irrelevant for it can mean nothing more than that the appellant needs substantial quantities of the energy and there is no reason why it should not pay for it at the normal market rates. The point regarding take off of supply at the generating point will no doubt have some relevance on the question of rates and we shall refer to this aspect later in the context of the pleas put forward by the Board. We are, therefore, of the view that the appellant has no valid justification for staking a claim to less than the HV 2 rates. Equally, it seems to us, the authorities have no case for seeking to raise the rates beyond the HV 2 rates. They are supplying energy to the appellant from the grid since 1968 and they cannot justifiably seek to demand higher rates from the appellant than from the HV 2 consumers. This is sought to be justified on the basis of the huge losses that the Board has been incurring and the statutory justification for escalation in the rates keeping in view the necessity to build up a surplus. This, however, is an aspect of working which should affect all the consumers equally. May be the Board can, in appropriate circumstances, seek to make up for a part of the losses by hiking up the rates to one particular category of consumers but that would not be justified here as the transmission and distribution losses 178 in respect of the supply to the appellant are borne by it and, in the absence of some special vital reason, it would not be equitable to fix the rates of supply to the appellant above the rates applicable to other HV 2 consumers. Some reference was made to the difficulties in completely fitting the scheme of computations for determining the HV_2 rates into the scheme under the appellant 's contract. It is, however, unnecessary to go into that aspect as we are only on the question of rates and holding that there is no justification for charging more than HV 2 rates from the appellant. Moreover, the appellant has been paying for the Obra supply at HV 2 rates since 1989. We have also been informed that in 1972 the appellant took a further additional supply of 8 MW and agreed to pay therefor at HV 2B rates as applicable to other Bulk Power Consumers in the State. In these circumstances, we have reached to the conclusion that there is no justification to charge more than HV 2 rates from the appellant. We, therefore, allow this appeal in part, quash the determinations of 1988 and 1991 and direct that the appellants should be charged from 20.5.83 to 31.3.89 at the HV 2 rates applicable to other consumers. The appeal of the appellant is partly allowed to the above extent. The Board 's appeal has not yet been numbered as it is delayed by a few days. It was, however, stated that the Board wishes to withdraw its appeal because of the subsequent developments. For these reasons and also in view of our above conclusion the Board 's appeal also stands dismissed. In the circumstances, we direct each party to bear its own costs. T.N.A. C.A. 1306/88 Partly allowed. C.A. 128/92 dismissed. [/INST]The respondent 's land admeasuring 5 acres 589 1/3 Sq. yards was acquired by the State Government in 1963 for a housing scheme and compensation at Rs.1.58 per Sq. yard was awarded. On reference, the Civil Court enhanced the compen sation to Rs. 10 per Sq. yard with solatium at 15 per cent and interest at 4 per cent. On appeal and cross appeals, the High Court confirmed the award. In the appeal before this Court, on behalf of the De partment, it was contended that the respondent had purchased the land in question in 1961 in three documents at Rs.0.42 p. per sq. yard and sold in 1963 one acre of the land at Rs.5 per sq. yard and, therefore, the deeds under which the transactions took place reflected the prevailing market value of the land in question, and courts below committed grave error in relying on a decision of the High Court awarding Rs. 10 per sq. yard in respect of another land acquired under a Notification of 1961, and that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, drainage and other amenities. Allowing the appeal, this Court, HELD: 1.1 The market value postulated in Section 23(1) of the Land Acquisition Act, 1894 is designed to award just and fair compensation for the lands acquired. The word "market value" would postulate price of the land prevailing on the date of the publication of the notifica 473 tion under Section 4(1). In determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land pos sessing similar advantages to the land in neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. [475E G] Periya & Pareekanni Rubbers Lief. vs State of Kerala, [1990] Supp. 1 SCR 362, referred to. 1.2 In the instant case, admittedly, the claimant pur chased land at Rs.0.42 p. and in a span of one year and four months, sold at Rs.5 per sq yard. When the claimants them selves sold as a willing seller of an acre of land @ Rs.5 per sq. yard, if a large extent of five acres and odd under acquisition is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate, if not the same market value of Rs.5 due to time lag of nine months. May be the payment of Rs. 10 per sq yard to the owner of another land acquired in 1961 was a windfall. Taking the totality of the facts and circumstances, the High Court committed grave error in completely ignoring the sale transactions of the lands under acquisition. In view of the time lag, the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard. [476B, E G] 1.3 In Building Regulations, setting apart the lands for development of roads, drainage and other amenities like electricity etc. are condition precedent to approve lay out for building colonies. Therefore, based upon the situation of the land and the need for development, the deduction shall be made. Where acquired land is in the midst of al ready developed land with amenities of roads, drainage, electricity etc. then deduction of 1/3 would not be justi fied. In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified. [477G H, 478A] Spl. Tehsildar, Vishakapatnam vs Rednam Dharma Rao & Ors., CA No. 4187 of 1982 decided on July 17, 1990; Tribeni Devi & Ors. vs Collector of Ranchi, ; at 213; Smt. Kaushalya Devi Bogre & Ors. vs The Land Acquisi tion Officer, Aurangabad; , ; Vijay Kumar Motilal vs State of Maharashtra, ; Vijay singh Liladhar vs Special Land Acquisition Officer, 760; Spl. Land Acquisition Officer, Bangalore vs T. Adinaray an Setty, [1959] Sppl. 1 SCR 404 and The Tehsildar, Land Acquisition, Vishakapatnarn P. Narasing Rao & Ors., , relied on. 1.4 In the instant case, 1/3 of the market value should be deducted for development of the lands. [478B] 1.5 The market value is determined at Rs.6 per sq. yard and after deducting 1/3 for development of lands, it would be Rs.4 per sq. yard. [478C] 2. It is settled law that when wrong application of a principle has been made or important points affecting valua tion have been overlooked or misapplied by the High Court or Reference Court, this Court would, under Article 136 of the Constitution, correct the same. The Spl. Land Acquisition Officer, Bangalore vs T. Adina rayan Setty, [1959] Suppl. 1 SCR 404; Dattatrayaya Shankarb hat Ambalgi and Ors. vs The Collector of Sholapur and Anr., ; The Dollar Co. Madras vs Collector of Madras, and Padma Uppal etc. vs State of Punjab & Ors. , ; , relied on. </s>
<s>[INST] Summarize the judgementAppeal No. 616 of 1963. Appeal from the judgment and order dated September 21, 1961 of the Bombay High Court (Nagpur Bench) at Nagpur in Special Civil Application No. 2 of 1961. section G. Patwardhan, G. L. Sanghi, J. B. Dadabhanji, O. C. Mathur and Ravinder Narain, for the appellant. A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Shah, J. The first respondent Tukaram was a protected lessee within the meaning of that expression in the Berar Regulation of Agricultural Leases Act 24 of 1951 hereinafter called "the Berar Act" in respect of certain land at Monza Karwand in the Vidarbha Region (now in the State of Maharashtra). The appellant who is the owner of the land served a notice under section 9(1) of the Berar Act terminating the tenancy on the ground that he required the land for personal cultivation, and submitted an application to the Revenue Officer under section 8(1)(g) of the Berar Act for an order determining the tenancy. The Revenue Officer determined the tenancy by order dated July 2, 1957 and made it effective from April 1, 1958. In the meantime the Governor of the State of Bombay (the Vidarbha region having been incorporated within the State of Bombay by the ) issued Ordinance 4 of 1957 which was later replaced by Act 9 of 1958 known as the Bombay Vidarbha Region Agricultural Tenants (Prosection from Eviction and Amendment of Tenancy Laws) Act, 1957. By section 3 of Act 9 of 1958 a ban was imposed against eviction of tenants, and by section 4 all proceedings pending at the date of the commencement of the Act, or which may be instituted during the period the Act remained in force, for termination of any tenancy and for eviction of tenants were to be stayed on certain conditions set out in that section. Bombay Act 9 of 1958 and the Berar Act 24 of 1951 were repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 99 of 1958, which may hereinafter be referred to as "the Tenancy Act". The appellant applied on May 15, 1958 to the Naib Tahsildar, Chikhli for an order for "restoration of possession" of the land. By order dated August 2, 1960 the Naib Tahsildar ordered "restoration of possession of the land" to the appellant. 597 In appeal the Sub Divisional Officer, Buldana set aside the order of the Naib Tahsildar because in his view the application was not maintainable in that the appellant had failed to comply with the requirements of section 38 of the Tenancy Act. The Revenue Tribunal confirmed the order of the Sub Divisional Officer. The appellant then moved the High Court of Judicature at Bombay praying for a writ or direction quashing the order of the Sub Divisional Officer, Buldana and of the Revenue Tribunal and for an order for restoration of possession of the land in pursuance of the order of Naib Tahsildar. The High Court set aside the order of the Naib Tahsildar, the Sub Divisional Officer and the Revenue Tribunal and remanded the case to the Tahsildar for dealing with the application made by the appellant in the light of the directions given in the judgment. The appellant appeals to this Court, with certificate under article 133 (1)(c) of the Constitution ranted by the High Court. The contention urged on behalf of the appellant is that the High Court should have restored the order passed by the Naib Tahsildar and should not have reopened the inquiry as directed in its judgment. It is necessary in the first instance to make a brief survey of the diverse statutory provisions in their relation to the progress of the dispute, which have a bearing on the question which falls to be determined. The land was originally in the Vidharbha region which before the Bombay Reorganisation, Act, 1956 was a part of the State of Madhya Pradesh, and the tenancy of the land was governed by the Berar Act. The first respondent was a protected lessee in respect of the land under section 3 of the Berar Act. Section 8 of the Act imposed restrictions. on termination of protected leases. It was provided that notwithstanding any agreement, usage, decree or order of a court of law, the lease of any land held by a protected lessee shall not be terminated except under orders of a Revenue Officer made on any of the grounds contained therein. Even if the landlord desired to obtain possession of the land for bona fide personal cultivation, he had to obtain an order in that behalf under section 8(1)(g). Section 9 enabled the landlord to terminate the lease of a protected lessee if he required the land for personal cultivation by giving notice of the prescribed duration and setting out the reasons for determination of the tenancy. A tenant served with the notice under sub section (1) could under sub section (3) apply to the Revenue Officer for a declaration that the notice shall have no effect or for permission to give up some other land of the same landholder in lieu of the land mentioned in the notice. Sub sections (4), (5), (6), (7) and (8) dealt with the proce 598 dure and powers of the Revenue Officer. The landlord had, after serving a notice under section 9 (1), to obtain an order under section 8 (1) (g) that possession was required by him bonafide for personal cultivation. Section 1 9 of the Berar Act prescribed the procedure for ejectment of a protected lessee. Sub section (1) provided: " A landholder may apply to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease has been passed under sections 8 or 9." Sub section (2) enabled a tenant dispossessed of land otherwise than in accordance with the provisions of the Act to apply to the Revenue Officer for restoration of the possession. By sub section (3) it was provided : "On receipt of an application under sub section (1) or (2), the Revenue Officer may, after making such summary enquiry as he deems fit, pass an order for restoring possession of the land to the landholder or the protected lessee as the case may be and may take such steps as may be necessary to give effect to his order." The appellant had obtained from the Revenue Officer concerned an order tinder section 8 ( 1) (g) determining the tenancy effective from April 1, 1958. But before that date Ordinance 4 of 1957 was promulgated. This Ordinance was later replaced by Bombay Act 9 of 1958. By section 4 of Bombay Act 9 of 1958 all proceedings either pending at the date of commencement of the Act or which may be instituted (during the period the Act remained in force) for termination of the tenancies were Stayed. The Tenancy Act (Bombay Act 99 of 1958) which was brought into force on December 30, 1958 repealed Bombay Act 9 of 1958 and the Berar Act and made diverse provisions with regard to protection of tenants. By section 9 of the Tenancy Act it was provided that no tenancy of any land shall be terminated merely on the round that the period fixed for its duration whether by agreement or otherwise had expired, and by section 19 it was provided that notwithstanding any agreement, usage, decree or order of a court of law, the tenancy of any land held by a tenant shall not be terminated unless certain conditions specified therein were fulfilled. Section 36 of the Tenancy Act set up the procedure to be followed, inter alia, for obtaining possession from a tenant after determination of the tenancy, and sub section (2) enacted that no landlord shall obtain possession of any ]an(], dwelling house 599 or site used for any allied pursuit held by a tenant except under an order of the Tahsildar. By sub section (3) it was provided that on receipt of an application under sub section (1) the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit provided that where an application under sub section (2) is made by a landlord in pursuance of the right conferred on him under section 38, the Tahsildar may first decide as preliminary issue, whether the conditions specified in cls. (c) and (d) of sub section (3), and cls. (b), (c) and (d) of sub section (4) of that section are satisfied. That takes us to section 38. By the first sub section, as it was originally enacted, it was provided : " Notwithstanding anything contained in section 9 or 19 but subject to the provisions of sub sections (2) to (5), a landlord may after giving to the tenant one year 's notice in writing at any time within two years from the commencement of this Act and making an application for possession under sub section (2) of section 36, terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fide requires the land for cultivating it personally :" (Amendment of this sub section by Maharashtra Act 5 of 1961 is not material for the purpose of this appeal.) By sub section (3) it was provided that the right of a landlord to terminate a tenancy under sub section (1) shall be subject to the conditions contained in cls. (a) to (e) (which need not, for the purpose of this appeal, be set out). Sub section (4) imposed on the right of the landlord certain restrictions in terminating the tenancy. A landlord may not terminate a tenancy (a) so as to reduce the area with the tenant below a certain limit, or (b) contravene the provisions of the Bombay Prevention of Fragmentation Act, or (c) where the tenant is a member of a co operative farming society, or (d) where the tenant is a co operative farming society. Sub section (4A) dealt with the special case of a member of armed forces ceasing to be a member of the serving force. Sub sections (5), (6) and (7) made certain incidental provisions. By sub section (1) of section 132, amongst others, the Berar Act and Bombay Act 9 of 1958 were repealed. By sub section (2) it was provided that nothing in sub section (1) shall, save as expressly provided in the Act, affect or be deemed to affect (i) any right, title, interest, obligation or liability already acquired, accrued before the commencement of the Act or (ii) any legal proceeding or remedy in respect of any, such right, title, interest, obligation or liability or anything done or suffered before the commencement of the Act, and any such 7Sup./65 10 600 proceedings shall be instituted, continued and disposed of, as if Act 99 of 1958 had not been passed. Sub section (3) provided : "Notwithstanding anything contained in sub section (1) (a) all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed, pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act, and (b). . . . As from December 30, 1958 the Berar Act ceased to be in operation. But by sub section (2) of section 132 any right, title, interest, obligation or liability already acquired before the commencement of the Tenancy Act remained enforceable and any legal proceedings in respect of such right, title, interest, obligation or liability could be instituted, continued and disposed of as if Bombay Act 99 of 1958 had not been passed. But to this reservation an exception was made by sub section (3) that a proceeding for termination of tenancy and ejectment of the tenant or for recovery or restoration of possession of the land under any repealed provisions, pending on the date of the commencement of Act 99 of 1958 before a Revenue Officer. was to be deemed to have been instituted and pending before the corresponding authority under the Tenancy Act and was to be disposed of in accordance with the provisions of that Act. Therefore when a proceeding was pending for termination 'of the tenancy and ejectment of a tenant the proceeding had to be disposed of in accordance with the provisions of the Tenancy Act, notwithstanding anything contained in sub section If the expression "proceedings pending on the date of commencement of this Act" in section 132(3)(a) be literally interpreted, a somewhat anomalous situation may result. An application under section 19 of the Berar Act pursuant to an order under sections 8 and 9, instituted before the Tenancy Act was enacted, will have to be disposed of in accordance with the provisions of the Tenancy Act, but if no proceeding under section 19 be commenced the proceeding would not be governed in terms by sub section (3) and would by the operation of sub section (2) be instituted and continued as if the Tenancy Act was not passed. This problem engaged 601 the attention of the Bombay High Court in Jayantraj Kanakmal Zambad and Another vs Hari Dagdu and Others(1), in which the facts were closely parallel to the facts in the present case. An order determining the lease under sections 8 & 9 of the Berar Act was obtained by the landlord before the Tenancy Act was enacted, and at a time when Bombay Act 9 of 1958 was in force, and proceedings were started by the landlord for obtaining possession from the tenant, after the Tenancy Act was brought into force. The High Court held that the application by the landlord for possession against the tenant whose tenancy was determined by an order under the Berar Act has, if instituted after the Tenancy Act was brought into force, to be decided according to the provi sions of the latter Act by virtue of section 132(3) and not under the Berar Act, and that an order for termination of the lease under section 8 does not come to an end until an order is made under sub s.(3) of section 19. The Court therefore in that case avoided the anomaly arising from the words of sub section (3) by holding that an order made under section 8 or under section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding, and it comes to an end when an order under section 19 of the Act is made. The High Court in the judgment under appeal, following the decision in Jayantroj Kanakmal Zambad 's case(1) held that the application filed by the appellant purporting to be under section 36(7) of the Tenancy Act must be regarded as an application under section 19 of the Berar Act and therefore be deemed to 'be a continuation of the application under sections 8 & 9 of the Berar Act. which was pending at the date when the Tenancy Act was brought into force, and to such an application section 38 (1) did not apply, but by virtue of sub section (3) cl. (a) of section 132 the application had to be disposed of in accordance with the provisions of the Tenancy Act, thereby making the provisions of section 38(3) and section 38(4) applicable thereto. Mr. Patwardhan for the appellant has, for the purpose of this appeal, not sought to canvass the correctness of the view of the judgment in Jayantraj Kanakmal Zambad 's case, but has submitted that the High Court has not correctly interpreted section 132(3) of the Tenancy Act. The appellant had acquired a right to obtain possession of the land on determination made by the Revenue Officer by order dated July 2, 1957 and a legal proceeding in respect thereof could be instituted or continued by virtue of sub section (2) of section 132 as if the Tenancy Act had not been passed. The exception made (1) I.L.R. F.B. 602 by sub section (3) of section 132 in respect of proceedings for termination of the tenancy and ejectment of a tenant which are pending on the date of the commencement of the Tenancy Act is limited in its content. Proceedings which are pending are to be deemed to have been instituted and pending before the corresponding authority under the Act and must be disposed of in accordance with the provisions of the Tenancy Act. By the use of the expression " shall be disposed of in accordance with the provisions of this Act" apparently the Legislature intended to attract the procedural provisions of the Tenancy Act, and not the conditions precedent to the institution of fresh proceedings. To hold otherwise would be to make a large inroad upon sub section (2) of section 132 which made the right, title or interest already acquired by virtue of any previous order passed by competent authority unenforceable, even though it was expressly declared enforceable as if the Tenancy Act had not been passed. The High Court was, in our judgment, right in holding that the application filed by the appellant for obtaining an order for possession against the first respondent must be treated as one under section 19 of the Berar Act, and must be tried before the corresponding authority. Being a pending proceeding in respect of a right acquired before the Act, it had to be continued and disposed of as if the Tenancy Act had not been passed [sub section (2)], subject to the reservation in respect of two matters relating to the competence of the officers to try the proceeding and to the procedure in respect of the trial. The appellant had obtained an order determining the tenancy of the first respondent. That order had to be enforced in the manner provided by section 19(1) i.e. the Revenue Officer had to make such summary inquiry as be deemed fit, and had to pass an order for restoring possession of the land to the landholder and to take such steps as may be necessary to give effect to his order. Since the repeal of the Berar Act the proceeding pending before the Revenue Officer would stand transferred to the Tahsildar. The Tahsildar was bound to give effect to the rights already acquired before the Tenancy Act was enacted, and in giving effect to those rights he had to follow the procedure prescribed by the Tenancy Act. Between sections 19(3) of the Berar Act and 36(3) of the Tenancy Act in the matter of procedure there does not appear to us any substantial difference. Under the Berar Act a summary inquiry has to be made by the Revenue Officer, whereas under the Tenancy Act the Tahsildar must hold an inquiry and pass such order (consistently with the rights of the parties) as he deems fit. But to the trial of the application for enforcement of the right acquired under the 603 Berar Act, section 38 of the Tenancy Act could not be attracted. Section 38 authorises the landlord to obtain possession of the land from a tenant, if the landlord bona fide required the land for cultivating it personally. In order to effectuate that right, the landlord must give a notice of one year 's duration in writing and make an application for possession under section 36 within the prescribed period. The section is in terms prospective and does not purport to affect rights acquired before the date on which the Tenancy Act was brought into force. The High Court was therefore also right in observing "The notice referred to in sub section (1) of section 38 could not obviously have been given in respect of proceedings which were pending or which are deemed to have been pending on the date of the commencement of this Act. It does not also appear that it was the intention of the Legislature that such proceedings should be kept pending for a further period until a fresh notice as required by sub section (1) of section 38 had been given. For the same reasons, the proviso to sub section (2) of section 36 will not apply in such cases. " But we are unable to agree with the High Court that sub sections (3) and (4) of section 38 apply to an application filed or deemed to be filed under section 19 of the Berar Act. The High Court appears to be of the view that by the use of the expression "shall be disposed of in accordance with the provisions of this Act" it was intended that "all the provisions of the Act, which would apply to an application made under sub section (2) of section 36, would also apply to application which are deemed to have been made under this section", and therefore it followed that sub sections (3) and (4) of section 38 applied to all applications for obtaining possession of the land for personal cultivation made under section 19 of the Berar Act which were pending or which were deemed to have been pending on the date of the commencement of the Tenancy Act. It may be noticed that sub section (3) of section 38 in terms makes the right of the landlord to terminate a tenancy under sub section (1), subject to conditions mentioned therein. If there be no determination of the tenancy by notice in writing under sub section (1), sub section (3) could have no application. The words of sub section (4) are undoubtedly general. But the setting in which the sub section occurs clearly indicates that it is intended to apply to tenancies determined under section 38(1). Large protection which was granted by section 19 of the Tenancy Act 604 has been withdrawn from tenants who may be regarded as con tumacious. By section 38(1) a landlord desiring to cultivate the land personally is given the right to terminate the tenancy, but the right is made subject to the conditions prescribed in sub section (3) and the legislature has by sub section (4) (a) sought to make an equitable adjustments between the claims of the landlord and the tenant. If sub section (4) be read as imposing a restriction on the determination of all tenancies, it would imply grant of projection to a contumacious tenant as well. The Legislature could not have intended that in making equitable adjustments between the rights of landlords and tenants contumacious tenants who have disentitled themselves otherwise to the protection of section 19 should still be benefited. Again if sub section (4) be read as applying to determination of every agricultural tenancy, its proper place would have been in sub section (3) of section 36, and the proviso thereto would riot have been drafted in the manner it is found in the Act. By cls. (c) & (d) of sub section (4) tenants who are cooperative societies or members of cooperative societies are not liable to be evicted, and if the opening words of sub section (4) are intended to be read as applicable to termination of all tenancies, whatever the reason, we would have expected some indication to that effect in section 19 of the tenancy Act. Again inclusion of sub sections (2) to (5) in the non obstante clause in sub section (1) supports the view that the expression "In no case a tenancy shall be terminated" being. part, of an integrated scheme means that a tenancy determined "or reasons and in the manner set out in sub section (1) of section 38 must be determined consistently with sub section (4), but where the determination of the tenancy is not under sub section (1) of section 38, sub section (4) has no application. The application made by the appellant is undoubtedly one for ejectment of the tenant and for recovery of possession. The Naib Tahsildar was competent to entertain the application. It is true that the application was orginally filed under sections 8 & 9 of the Berar Act on the ground that the, landlord required the land bona fide for his personal cultivation, but once an order was passed under section 8 (1) (g) by the Revenue Officer, the only inquiry contemplated to be made on an application under section 19 was a summary inquiry before an order for possession was made in favour of the landlord. At that stage, there was no scope for the application of the conditions and restrictions prescribed by sub sections (3) & (4) of section 38, for, in our view, those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation. 605 We therefore modify the order passed by the High Court and direct that the orders passed by the Tahsildar and the Revenue Tribunal will be set aside and the matter will be remanded to the Tahsildar for dealing with the application on the footing that it is an application to enforce the right conferred by sections 8 & 9 of the Berar Regulation of Agricultural Leases Act, 1951 and the provisions of section 38 of the Bombay Act 99 of 1958 have no application thereto. There will be no order as to costs in this appeal. Order modified and case remanded. [/INST]The land in dispute as in the Vidarbha region originally forming part of the State of Madhya Pradesh, to which the Berar Regulation of Agricultural Leases Act, 1951 (Berar Act) applied. Under the Act, a landlord requiring land for personal cultivation, could terminate a lease by issuing a notice to the lessee under section 9, and obtaining an order in that behalf from the Revenue Officer under section 8(1)(g) and then, applying to the Revenue Officer for ejectment of the lessee. On the landlord 's application, the Officer, after making such summary enquiry as he deems fit, may pass an order restoring possession to the landlord. After the merger of the Vidarbha region with the State of Bombay, the Bombay Tenancy and Agricultural Lands (Vidarbha region and Kutch Area) Act (Tenancy Act) was passed on December 30, 1958 repealing, the Berar Act. Section 36 of the Tenancy Act set up a procedure for obtaining possession from a tenant and provided that the landlord may apply to the Tahsildar who, after holding an enquiry, may pass such order as he deems fit. Section 38(1) authorised the landlord to obtain possession of land from a tenant, if the landlord, bona fide required the land for personal cultivation and in order to efecetuate that right, the landlord must give a notice of one year 's duration in writing and make an application for possession under section 36, within the prescribed period. By section 38(3) it was provided that the right of a landlord to terminate a tenancy under section 38(1) shall be subject to the conditions contained in cls. (a) to (e) of sub section (3) and sub ,section (4) imposed certain restrictions on the right of the landlord to terminate a tenancy. By section 132(2) any right already acquired before 30th December 1958 remained enforceable. and any legal proceeding in respect of such right, could be instituted, continued and disposed of as if the Tenancy Act had not been passed. But to this reservation an exception was made by section 132(3) that a proceeding pending on 30th December 1958, was to be deemed to have been instituted and pending before the corresponding authority tinder the Tenancy Act, and was to be disposed of in accordance with its provisions. The appellant had obtained from the Revenue Officer concerned an order, determining the tenancy of the respondent under section 8(1)(g) of the Berar Act. effective from 1st April 1958. On 15th May 1959 after the Tenancy Act had come into force the appellant applied to the Tahsildar under section 36 for an order for restoration of possession. The Tahsildar ordered restoration of possession. but on appeal the Sub Divisional Officer set aside the order on the ground that the appellant failed to comply with the requirements of section 38 of the Tenancy Act. and the Revenue Tribunal confirmed the order of the Sub Divisional Officer. In a petition for the issue of a writ, the High Court set aside all the orders of the subordinate tribunals and remanded the case to the Tahsildar for dealing with the application in the light of directions given in its judgment. The High Court 595 held that though section 36(1) of the Tenancy Act did not apply to the appellant 's application, by vitrue of section 132(3) the provision of section 38(3) and (4) were applicable to it. In his appeal to the Supreme Court, the appellant contended that the High Court had not correctly interpreted section 132(3) and that it should have restored the order passed by the Tahsildar Direct should not have reopened the enquiry. HELD : The Tahsildar was competent to entertain the appellant 's application for recovery of possession. Once an order was passed under section 8(1)(g) of the Berar Act by the Revenue Officer, the only enquiry contemplated to be made on an application under section 19 of the Act, was a summary enquiry before an order for possession was made in favour of the landlord. At that stage there was no scope for the application of the conditions and restrictions prescribed by section 38(3) and (4), for those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation. Therefore the Tahsildar should deal with the application on the footing that it was an application to enforce right conferred by sections 8 and of the Berar Act and that the provisions of section 38 of the Tenancy Act have no application thereto. [604 F H; 605 A B] The appellant had acquired a right to obtain possession of the land on the determination made by the Revenue Officer under section 8(1)(g) of the Berar Act. An order made under section 8 or section 9 of the Berar Act relating to termination of a lease does not terminate the proceeding it comes to an end only when an order under section 19 of the Act is made. Therefore, the application filed by the appellant purporting to be under section 36(2) of the Tenancy Act must be regarded its an application under section 19 of the Berar Act, and deemed to be a Continuation of the application under sections 8 and 9 of the Berar Act and pending at the date when the Tenancy Act was brought into force. Since the repeal of the Berar Act the proceeding would stand transferred to the Tahsildar, who was bound to give effect to the rights already acquired before the Tenancy Act was enacted under section 132(2), and in doing so, under section 132(3) he bad to follow the procedure prescribed by the Tenancy Act, But the exception made in section 132(3) is limited in its content. By the use of the expression 'shall be disposed of in accordance with the provisions of this Act '. the legislature intended to attract the procedural provisions of the Tenancy Act and not the conditions precedent to the institution of fresh proceedings. Therefore, a pending proceeding in respect of a right acquired before the Act, had to be continued and disposed of as if the Tenancy Act had not been passed, subject to the reservation in respect of two matters relating to the competence of the officers to try the proceedings and to the procedure in respect of the trial. Between section 19(3) of the Berar Act and section 36(3) of the Tenancy Act in the matter of procedure there is no substantial difference. But to the trial of the application for enforcement of the right acquired trader the Berar Act, section 38 of the Tenancy Act could not be attracted. Section 38(1) is in terms prospective and does not purport to affect rights acquired before the Tenancy Act was brought into force. Section 38(3) and (4) do not apply to an application filed or deemed to be filed under section 19 of the Berar Act. Section 38(3) in term makes the right of the landlord to terminate a tenancy under sub section subject to conditions mentioned therein. The words of section 38(4). are undoubtedly general, but the setting in which the sub section occurs indicating that it is also intended to apply to tenancies determined under section 38(1). Therefore where the determination of the tenancy is not under 38(1), sub sections (3) and (4) have no application. D, E, 60 A, B. F. G H, 603 B, E, F H] 596 Jayantraj Kanakanial Zambad vs Hari Dagdu, I.L.R. , approved. </s>

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