judgement:
Appeal No. 181 of 1956.
Appeal by special leave from the judgment and order dated September 5,1955, of the Judicial Commissioner 's Court, Ajmer, in Civil Writ Petition No. 108 of 1955.
M. M. Kaul and R. H. Dhebar, for the appellants.
The respondent did not appear.
November 15.
The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal with special leave from the judgment of the Judicial Commissioner, Ajmer, restraining the District Magistrate, Ajmer, from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955.
The respondent claimed to be a voter of the Ajmer Municipality.
By an order dated March 12, 1953, the Ajmer Municipal Committee had been suspended and that suspension was to continue till September 11, 1955.
In view of the impending elections after the period of suspension was over, the Chief Commissioner, Ajmer, the appellant before us, framed the Ajmer State Municipalities Election Rules, 1955, in exercise of the powers conferred by section 43 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) and published them in the Government Gazette dated August 4, 1955.
On August 8, 1955, he notified an election programme and also authenticated and published an electoral roll.
This electoral roll had been corrected and altered by the orders of the Sub Divisional Officer on certain days prior to August 8, 1955, but the respondent 's name was alleged to have been incorrectly described therein, his father 's name having been mentioned as Ratan Lal instead of Chitar Mal.
On August 10, 1955, he applied for the correction of his father 's name in the Parliamentary Electoral Roll and on August 16, 1955, he filed his nomination paper.
His nomination was, however, rejected on August 17, 1955, 70 the Returning Officer stating that he was not one of the electors according to the roll.
His application for rectification of the mistake in the Parliamentary Electoral Roll was also rejected on August 18, 1955, by the Electoral Registration Officer on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made.
The respondent thereupon filed on August 26, 1955, a writ petition being Civil Writ Petition No. 108 of 1955 in the Court of the Judicial.
Commissioner at Ajmer against the appellant and the District Magistrate, Ajmer, inter alia for a mandamus against the appellant to reconstitute the Ajmer Municipal Committee by a properly made and published notification under section 8(1) of the Regulation and an order against the District Magistrate, Ajmer, restraining him from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955, as notified.
The learned Judicial Commissioner upheld the contention of the respondent in regard to the reconstitution of the Committee but did not issue any directions in regard to the same in view of the fact that the appellant had already before that date issued a notification under section 8(1) of the Regulation to reconstitute the Committee.
He also held that Rule 7 of the Election Rules was not in consonance with and was in contradiction to section 30, sub section
(2), of the Regulation and was in excess of the rule making power conferred upon him, and the elections proposed to be held on September 9, 1955, were not lawful.
He, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955.
On an application made by the appellant for a certificate under article 133(1)(c) of the Constitution, the learned Judicial Commissioner was of opinion that the direction given by him against the District Magistrate, Ajmer, was merely not to hold elections on September 9,,1955, and as that date had already passed when the application was disposed of by him, no useful purpose would be served by granting him a certificate and he accordingly refused to grant the same.
The appellant, 71 however, approached this Court and obtained special leave under article 136 for filing an appeal against the, decision of the learned Judicial Commissioner.
When the appeal came up for hearing before us, the respondent communicated to us his desire not to appear and contest the appeal with the result that the appeal has been heard by us exparte.
At the outset we pointed out to the learned counsel for the appellant that the appeal had become academic.
The appellant had in fact reconstituted the Ajmer Municipal Committee by a proper notification under section 8(1) of the Regulation and the date on which the elections and the poll to the Ajmer Municipal Committee were to he held, viz., September 9, 1955, had also passed.
The learned counsel for the appellant, however, urged before us that the pronouncement of the learned Judicial Commissioner to the effect that Rule 7 of the Election Rules was not in consonance with and was in contradiction to section 30, sub section
(2), of the Regulation and was in excess of the rule making power conferred upon the appellant was a stumbling block in the way of the appellant holding further elections on the basis of the electoral roll as it had been authenticated and published by him on August 8, 1955.
If that pronouncement stood, it would be incumbent on the appellant to authenticate and publish another electoral roll and incur the expenses which were inevitable in that process.
He, therefore, pressed upon us that we should set aside that pronouncement so that the Municipal elections may be held hereafter without straining the attenuated finances of the Municipality.
The relevant provisions which fall to be considered by us are the following: " Section 30.
(1): A person shall not be deemed to be an elector for any purpose of this Regulation or of any rule unless he is enrolled as an elector.
(2)as amended by Act LX V of 1950: Every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if 72 that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality shall be entitled to be enrolled as an elector of the Municipality.
Section 43: The Chief Commissioner may, by notification, make rules consistent with this Regulation for the purpose of regulating all or any of the following matters, namely, : (a). . . . . (b). . . . . (c)the preparation and revision of electoral rolls, and the adjudication of claims to be enrolled and objections to enrolment; Section 248.
(4): On publication in the official Gazette of any rules made under this Regulation, such rules shall have effect as if enacted in this Regulation.
Elections Rules: Rule 7 Electoral rolls: In accordance with the provisions of sub section (2) of section 30 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) the electoral roll of the particular Municipality shall be the same as the final printed roll for a Parliamentary Constituency representing the area covered by that Municipality.
9 Electors: No person shall be deemed to be an elector for the purposes of these rules unless his name appears in the electoral rolls.
mentioned above It is clear from section 30, sub section
(2), of the Regulation that in order to be entitled to be enrolled as an elector of a Municipality, a person has to fulfill two conditions, viz., (1) that he should be entitled under the Re. presentation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality ' nd (2) that his name should be registered in the electoral roll for a Parliamentary Constituency comprising the Municipality.
If 73 both these conditions are fulfilled he would be entitled to be enrolled as an elector of the Municipality.
In regard to the first condition reference need be made to the qualifications prescribed for being registered in the electoral roll for the Parliamentary Constituency and it is only if these qualifications are possessed by the person that he would be entitled to be so registered.
In order, therefore, to determine whether a person is entitled to be enrolled as an elector of a Municipality, it would be necessary to ascertain in the first instance whether he is entitled to be registered in the electoral roll for the Parliamentary Constituency.
Once that condition is fulfilled, it would be further necessary to consider whether his name is registered in the electoral roll for the Parliamentary Constituency.
If, in spite of his fulfilling the condition that he is entitled to be registered in the electoral roll for the Parliamentary Constituency, his name is not registered in the electoral roll for the same, he would not be entitled to be enrolled as an elector of the Municipality.
The latter condition does not require any scrutiny for its fulfillment.
The fact of his being registered in the electoral roll for the Parliamentary Constituency would be apparent on the face of the electoral roll itself.
The fulfillment of the first condition, however, would be subject to scrutiny and it would be open to any resident of the Municipality to object to the enrolment of a particular person as an elector of the Municipality.
Even in the case of the electoral roll for the Parliamentary Constituency it would be open to a person to apply for a revision of that roll by applying for a correction of the mistakes or mis descriptions which might have crept therein as also to have his name registered in the roll if it had not been so registered provided he fulfilled the first condition, viz., that he was entitled to be registered in the electoral roll for the Parliamentary Constituency.
Objections could also be filed to the enrolment of particular persons as electors in the Parliamentary Constituency and also in the Municipality.
Apart from the preparation of the electoral roll for the Municipality it would, therefore, be necessary to have a, revision of such electoral rolls and 19 74 also the adjudication of claims to be enrolled therein and objections to such enrolment.
This was clearly envisaged by the framers of the Ajmer Merwara Municipalities Regulation, 1925, and with that end in view it was provided in section 43(c) that the Chief Commissioner may by notification make rules consistent with the Regulation for the purpose of regulating inter alia the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and the objections to enrolment.
Such rules when framed and published in the official Gazette were, by virtue of section 248(4) to have effect as if enacted in the Regulation.
They were to have statutory effect and were to be treated as part and parcel of the Regulation and contained therein.
Before the amendment of section 30, sub section
(2), of the Regulation by Act LXV of 1950 there were in existence sub sections
(2) and (3) of that section which prescribed the qualifications for being enrolled as electors of the Municipality.
They were, however, substituted by the amended section 30, sub section
(2), set out hereinabove.
It thus substituted for the qualifications which had till then been considered requisite for such enrolment all the qualifications which were required.
for being registered in the electoral roll for the Parliamentary Constituency.
That, however, was a provision prescribing the qualifications for the purposes of such enrolment and the object of the amendment was to adopt the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality.
It did not eliminate the further steps in the matter of the revision of such electoral roll as also the adjudication of claims to be enrolled therein and objections to such enrollments.
The amendment did not obviate the necessity of taking these further steps inspite of the electoral roll for the Parliamentary Constituency being treated as the electoral, roll of the Municipality.
By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved 75 from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment.
When the Ajmer State Municipalities Election Rules, 1955, came to be framed in exercise of the power conferred by section 43 of the Regulation, the Chief Commissioner framed Rule 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality.
He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further.
Rule 9 provided that no person shall be deemed to be an elector for the purpose of the Rules unless his name appeared in the electoral rolls mentioned above.
That had reference obviously to the second condition prescribed in section 30, sub section
(2), of the Regulation but did not go far enough.
It did not say that a person whose name appeared in the electoral rolls for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first condition therein prescribed and rightly so, because, if it did say so, it would be in conflict with section 30, sub section
(2), of the Regulation.
These Rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency was in fact entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be so registered and whether he possessed the qualification prescribed in that Act in this behalf nor did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment.
It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll 76 opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications.
Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolnaent.
Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.
It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.
It was urged that the expression " the final printed roll for the Parliamentary Constituency " predicated that the electoral roll for the Parliamentary Constituency had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act, 1950 (XLIII of 1950) and, therefore, there was no necessity for making any further provision of that nature in the matter of the electoral roll of the Municipality.
This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer Merwar Muni cipalities Regulation, 1925 (VI of 1925).
Neither the Regulation nor the Rules which have been framed by the Chief Commissioner in exercise of the powers conferred under section 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules.
If Rules 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of section 30, sub section
(2), of the Regulation or were defective in so far as they 77 failed to provide the proper procedure for taking of the steps therein above indicated for finalising the electoral roll of the Municipality.
If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.
In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between section 30, sub section
(2), of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under section 43 of the Regulation, the section would prevail or the Rules.
Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955, was not in conformity with the provisions of section 30, sub section
(2), and the relevant provisions of the Regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.
Under the circumstances we see no substance in the appeal and dismiss the same.
There will be, however, no order as to costs of the appeal in so far as the respondent has not appeared and contested the appeal before us.
Appeal dismissed.

summary:
Sub section (2) Of section 30 of the Ajmer Merwara Municipalities Regulation, 925, as amended, provided that " every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality, shall be entitled to be enrolled as an elector of the Municipality"; and section 43 enabled the Chief Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and objections to enrolment.
In exercise of this power the appellant framed Rules which, inter alia, provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality.
He notified an election programme and also authenticated and published an electoral roll on August 8, 1955.
The respondent whose father 's name was recited wrongly in the electoral roll applied for rectification of the mistake in the Parlia mentary Electoral Roll, on August 10, 1955, but it was rejected on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made.
The respondent challenged the validity of the notification and the electoral roll.
Held, that under section 30 (2) Of the Ajmer Merwara Municipalities Regulation, 1925, the electoral roll for the Parliamentary constituency was only treated as the basis for the electoral roll of the Municipality and that the rules in so far as they made no provision for the revision of the electoral roll, for the adjudication of claims to be included therein or for entertaining objections to such inclusion, were defective and, therefore, the electoral roll of the Ajmer Municipality which was authenticated and published by the appellant on August 8, 1955, was not in conformity with the provisions of section 30 (2) and the relevant,provisions of the Regulation 69 and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.


judgement:
etition (Criminal) No. 7207 of 1981.
(Under Article 32 of the Constitution of India) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
This petition for review and the petition for the issue of Writ under Article 32 were argued by Shri Jethmalani with, what appeared to us to be more than his customary vehemence and emotion.
Nonetheless, we confess, we are not impressed.
By our judgment dated August 12, 1981(1), we had set aside the judgment of acquittal passed by the High Court of Bombay and restored that of the learned Additional Chief Presidency Magistrate, 8th Court, Esplanade, Bombay, convicting the petitioner under different heads of charges and sentencing him to suffer imprisonment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000/ on each of different counts.
, Shri Jethmalani contended that though he had argued that the period during which the petitioner had been preventively detained under the maintenance of Security Act and the should be 'set off ' against the sentence of imprisonment imposed upon him, we had not touched upon the point.
He also drew our attention to a reference to set off ' in the written submissions given to us after the hearing of the case.
We may mention that what was argued before us was not that the petitioner was entitled to a 'set off ' but that the period of his detention might be taken into 63 account in considering the question of the appropriate sentence to A be imposed on the petitioner, which question was considered by us.
But, we will let that pass, accept Mr. Jethmalani 's word for it and proceed to consider the question straightaway.
It appears that the petitioner was detained first under the provisions of the MISA and later under the provisions of the COFEPOSA.
The periods of detention were September 17, 1974 to April 18, 1975, July 1, 1975 to November 21, 1975 and May 20, 1976 to March 22, 1977.
We are told that the orders of detention, which have not been produced before us, were based on facts which were the vary subject matter of the criminal case.
The learned Additional Chief Presidency Magistrate had convicted the petitioner by his judgment dated December 13, 1971 but that was set aside by the High Court by their judgment dated April 20, 1974.
The State of Maharashtra filed an application for special leave under article 136 of the Constitution on November 30, 1974 and special leave was granted by this Court on April 15, 1975.
It was noticed by this Court at the time of granting special leave that the petitioner was then in preventive detention and it was directed that in case he was released from detention but re arrested in connection with the case he should be released on bail on the same terms as those on which bail had been previously granted by the High Court.
The submission of Shri Jethmalani was that the total of the three periods of detention should be "set off ' against the sentence of imprisonment imposed upon him.
He relied upon the decision of this Court in Govt.
Of Andhra Pradesh & Anr.
vs Anne Venkateswara Rao etc.
etc.(l) We are unable to agree with the submission of Shri Jethmalani; In the very case cited by the learned counsel, the Court negatived the contention that the expression 'period of detention ' in Section 428 Code of Criminal Procedure included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act.
It was observed: "It is true that the section speaks of the period of.
detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the 64 case in which the accused person has been convicted.
The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the 'same case ' in which he has been convicted.
We, therefore, agree with the High Court that the period during which the Writ Petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them".
After holding that the period during which the petitioners therein were in preventive detention could not 'set off ' under Section 428 Code of Criminal Procedure against the term of imprisonment imposed on them, the Court went on to consider whether the period during which the petitioners were in preventive detention could for any reason be considered as period during which the petitioners were in detention as undertrial prisoners or prisoners serving out a sentence on conviction.
In the case of the prisoner A. V. Rao the Court held that the period commencing from the date when he would have normally been arrested pursuant to the First Information Report registered against him should be reckoned as period of detention as an undertrial prisoner.
In the case of another prisoner Krishnaiah it was held that the period during which he was in preventive detention subsequent to the conviction and sentence imposed upon him should be treated as detention pursuant to conviction and sentence.
The case before us is altogether different.
The petitioner had been acquitted by the High Court before any of the orders of detention were made against him.
There can be no question of the detention being considered as detention pursuant to conviction; nor can the detention be treated as that of an undertrial.
It is only in the circumstances where the prisoner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428 Code of Criminal Procedure.
Shri Jethmalani next contended that the petitioner had not been given an opportunity to argue on the question of sentence, that is hardly fair to us.
A substantial part of the argument of Shri Jethmalani on that occasion was on the question of sentence 65 and, in the judgment pronounced by us, we did consider the argument advanced by the learned counsel on the question of sentence.
It was also contended before us that the Court was not justified in holding that the petitioner was responsible for the long delay that had been caused in the disposal of the case and that the Court was wrong in holding that it was for the accused to show that he had been prejudiced by the delay.
We see no merit in these contentions.
The application for review is therefore dismissed.
No separate arguments were advanced in the Writ Petition which is also dismissed.
N.V.K. Petitions dismissed.

dataset_name: IN-Abs

summary:
The Presidency Magistrate convicted the petitioner for offences under section 120B of the Indian Penal Code read with section 135 of and Customs Act and Rule 126P(2) (ii) and (iv) of the Defence of India Rules 1962 and sentenced him to suffer imprisonment for various periods ranging from two years to four years and to payment of fine.
The conviction and sentence was set aside by the High Court, but this Court in appeal by the State set aside the judgment of acquittal by the High Court and restored that of the Presidency Magistrate.
The petitioner was also preventively detained for various periods first under the Maintenance of Internal Security Act and afterwards under the .
In the review petition and writ petition to this Court it was contended on behalf of the petitioner that: (I) though it was argued in the appeal to this Court that the periods during which the petitioner had been preventively detained should be 'set off ' against the sentence of imprisonment imposed upon him this court had not touched upon the point; and (2) this court 's decision in Government of Andhra Pradesh and another vs Venkateswara Rao; , , enabled the petitioner to claim the total of the three periods of detention to be 'set off ' against the sentence of imprisonment.
Dismissing the review and writ petition, ^ HELD: 1.
It was not argued that the petitioner was entitled to a 'set off ' but that the period of his detention might be taken into account in considering the question of the appropriate sentence be imposed on him.
[62 H, 63 A].
2(i) In Government of Andhra Pradesh vs Venkateswara Rao, this Court negatived the contention that the expression period of detention in Section 428, Code of Criminal Procedure 1973 included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act.
[63 F G] (ii) Section 428, Code of Criminal Procedure 1973 makes it clear that the period of detention which it allows to be 'set off ' against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry, or trial in connection with the 'same case ' in which he has been convicted.
[64 A B] 62 (iii) only in circumstances where the petitioner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428, Code of Criminal Procedure 1973.
[64 G] In the instant case the petitioner had been acquitted by the High Court before any of the orders of detention were made against him.
There can, there fore, be no question of the detention being considered as detention pursuant to conviction nor can the detention be treated as that of an undertrial.
[64 F]


judgement:
Civil Appeal No. 3436 of 1979.
From the Judgment and order dated the 19th April, 1978 of the Madras High Court in Writ Appeal No. 224178.
M.K. Ramamurthi, and C.S. Vaidyanathan for the Appellant.
Dr. Y.S. Chitale and A.V. Rangam for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
An order of pre mature retirement following close upon the heels of promotion and appointment to a coveted Selection post is bound to perplex any right thinking man and make him wonder whether the right hand knows what the left hand has done.
If in the month of May a Government servant is found to possess 'such high merit and ability, which naturally includes integrity, as to entitle him not merely to be promoted to a selection post but to be appointed to a very responsible and much desired post in that cadre, what could have happened between May and September to merit his being weeded out altogether from service in September under the rule which enables the Government to retire a Government servant in the public interest after he has attained the age of SO years or after he has completed 25 years of qualifying service.
One would expect that some grave and grim situation had developed in the interregnum to warrant the pursuit of such a drastic course.
But surprisingly, we found nothing what.
soever had happened in this case during that period.
Let us look at the totality of the facts.
77 The appellant appears to have had quite a noteworthy career.
A Starting at the lowest rung as a Lower Division Clerk in 1953, he was promoted as an Assistant Commercial Tax officer in 1954, next as a Deputy Commercial Tax officer in 1957, then as a Joint Commercial Tax officer in 1962, thereafter as a Commercial Tax officer in 1966, later as an Assistant Commissioner of Commercial Taxes in 1972 and finally as Deputy Commissioner of Commercial Taxes on 7 S 1975.
On promotion as Deputy Commissioner of Commercial Taxes he was posted as Member of the Sales Tax Appellate Tribunal in the same cadre.
On September 28,1975, he was retired under Fundamental Rule 56(d).
His Service Book shows that he had an excellent record of service.
He had earned several encomiums, commendations and appreciations.
The several promotions gained by him react his good record of service.
But there was one dark spot.
In 1969 when he was working as Commercial Tax officer it was noted in his Confidential file by the Deputy Commissioner of Commercial Taxes as follows: "This Commercial Tax officer is a very intelligent and capable officer who kept the entire district under his control in perfect discipline.
Unfortunately, his reputation is not at all good.
There were complaints that he used to threaten dealers and take money.
The entire matter is under investigation by the Vigilance and Anti Corruption Department".
There was an enquiry by the Directorate of Vigilance and Anti Corruption.
Charges were framed against the appellant by the Board of Revenue.
The explanation of the appellant was obtained.
The Full Board of Revenue then reported that the charges should be dropped.
The Government accepted the report of the Full Board and dropped the charges making the following order on 29 11 1974: "As the preliminary enquiry disclosed a prima facie case of corruption, a detailed enquiry was taken up by the Directorate of Vigilance and Anti Corruption.
Out of eleven allegations levelled against Thiru D. Ramaswami, seven allegations were not substantiated, in the enquiry made by the Directorate of Vigilance and Anti Corruption.
The Government, examined the report of the Directorate 78 and considered that there was a prima facie case in respect of certain allegations and this was sufficient to proceed against Thiru D. Ramaswami.
The Board of Revenue (CT) was therefore requested to frame charges straightaway as for a major penalty against Thiru D. Ramaswami on the basis of allegations levelled against him.
The Board accordingly framed charges against him in respect of allegations substantiated, obtained his explanation and sent its report thereon.
The Full Board considered that all the charges framed against Thiru D. Ramaswami in consequence of the detailed enquiry conducted by the Vigilance Department cannot be pursued and proved.
The Full Board has therefore expressed the view that the said charges may be dropped.
The Government accept the views of the Full Board and direct that all the charges framed against Thiru D. Ramaswami be dropped".
The effect of the order of November 29, 1974 of the Government was to grant absolution to the appellant from the repercussions of, the note of the Deputy Commissioner of Commercial Taxes, made in 1969.
If there was any ambiguity about the effect of the Government order, it was cleared by the circumstance that, within a few months, on May 7, 1975, he was promoted as Deputy Commissioner of Commercial Taxes and posted as Member, Sales Tax Appellate Tribunal, a prestigious post.
It has to be mentioned here that the post of a Deputy Commissioner of Commercial Taxes is a Selection post.
Under Rule 36(b) (i) of the Tamil Nadu Genera! Rules for the State and Subordinate Services: "Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal".
Under Rule 2(b) of the Tamil Nadu Special Rules for Commercial Taxes Service: "All promotions shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal".
So, what do we have ? There was an adverse entry in the confidential file of the appellant in 1969.
The basis of the entry 79 was knocked out by the order dated November 29, 1974 of the A Government, and the effect of the entry was blotted out by the promotion of the appellant as Deputy Commissioner.
After his promotion as Deputy Commissioner there was no entry in the service Book to his discredit or hinting even remotely that he had outlived his utility as a Govt.
servant.
If there was some entry, not wholly favourable to the appellant after his promotion, one might hark back to similar or like entries in the past, read them all in conjunction and conclude that the time had arrived for the Government servant to quit Government service.
But, with nothing of the sort, it is indeed odd to retire a Government servant a few months after promoting him to a Selection post.
In the present case, we made a vain search in Service record of the appellant to find something adverse to the appellant apart from the 1969 entry.
All that we could find was some stray mildly deprecating entries such as the one in 1964 which said: "He is sincere and hardworking.
He 'manages his office very well.
He exercises adequate control over subordinates.
He maintains a cordial relationship with public.
Because of his stiff attitude some of the assessees complain about him stating that he is rude in his behaviour This perhaps is due to his unbending attitude.
With a little more tact he will be an asset to the Department".
one curious feature of the case is that while the 1969 entry noted that an enquiry was pending with the Vigilance and Anti Corruption Department in regard to the allegations against.
the appellant, the ultimate result of the enquiry which was that the charges should be dropped was nowhere noted in the personal file of the appellant.
One wonders whether the failure to note the result of the enquiry in the personal file led to the impugned order ! In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service.
The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion, 80 We do not say that the previous history of a Government servant should be completely ignored, once he is promoted.
Sometimes, past events may help to assess present conduct.
But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.
The learned Counsel for the appellant relied on the decisions in Swami Saran Saksena vs State of U.P, (1) Baldev Raj Chadha vs Union of India & Ors (2) State of Punjab vs Dewan Chuni Lal, (3) while the learned counsel for respondent relied on the decision in Union of India etc.
vs M.E. Reddy & Anr.
(4) All the decisions have a been considered by us in reaching our conclusion.
The appeal is allowed.
G. O. Ms. No. 1112 dated September 19, 1975, Commercial Taxes Religious Endowments Department, Government of Tamil Nadu is quashed.
The appellant will be reinstated in service and paid the arrears of salary due to him under the rules.
He is entitled to his costs.
P.B.R. Appeal allowed.

summary:
HELD: In the face of the appellant 's promotion a few months before his compulsory retirement under F. R. 56 (d) and nothing even mildly suggestive of ineptitude or inefficiency after his promotion, it is impossible to sustain the order of the Government retiring him from service.
[79 G] When the Government exonerated him of the charges levelled against him, the basis of the adverse entry in his confidential file was knocked out.
By reason of the promotion of the selection post of Deputy Commissioner and posting as a Member of the Sales Tax Appellate Tribunal, the effect of the entry was further blotted out.
Since then, there was no adverse entry in his service record to discredit him or hinting even remotely that he had outlived his utility as a Government servant.
Had there been another adverse entry after his promotion it would have been possible to read them all in conjunction and say that it was time for him to quit Government service.
But that was not so.
It was therefore odd that he was retired a few months after his promotion.
[79 A C] 76 All this is not to say that previous history of a Government servant should be completely ignored once he is promoted.
Sometimes past events might help to assess the present conduct, but when there was nothing in the present conduct casting any doubt on the wisdom of the promotion there was no justification for needless digging into the past.
[80 A B] Swami Saran Saksena vs State of U.P., [1980] I SCR 923; Baldev Raj Chadha vs Union of India & Ors., [1981] I SCR 430; State of Punjab vs Dewan Chuni Lal, ; ; and Union of India etc.
vs M. E. Reddy & Anr., ; ; referred to.


judgement:
r Petition No. 36 of 1980.
Petition under section 25 of the Code of Civil Procedure for transfer of case No. 28 of 1980 Misc.
(36) pending in the Court of the Distt.
Judge, Udaipur (Rajasthan) to the Court of Subordinate Judge, Eluru (Andhra Pradesh) to be tried alongwith O. P. No. 72 of 1979 pending in that court.
G.S. Rama Rao for the Petitioner.
B.D. Sharma for the Respondent.
The following Judgments were delivered: TULZAPURKAR, J. On September 26, 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979.
On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of 1980) against the wife under section 13 of the in the Court of the District Judge, Udaipur (Rajasthan).
By the instant transfer petition filed under section 25 C.P.C. 226 1908 the wife is seeking to get the husband 's suit transferred to Eluru.
On merits we are satisfied that it is expedient for the ends of justice to transfer the husband 's suit to the District Court at Eluru (A.P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) However, counsel for the respondent (husband) has raised before us a preliminary objection that section 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the and as such this Court has no power to transfer the husband 's suit from Udaipur District Court to the District Court at Eluru.
He urged that section 25 of C.P.C. gets excluded by reason of the provisions of section 21 and 21A of the .
According to him section 25 C.P.C. deals with the substantive law and not procedural law and since section 21 of the makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, section 25 C.P.C. is not applicable.
He also urged that section 21 A (3) of the also makes the above position clear beyond doubt by specifically excluding sections 24 and 25 C.P.C. from being applied to the proceedings under the .
A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta vs Priyanath Mehta was pressed into service as having a direct bearing on the point.
In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection.
In the first place it is difficult to accept the contention that the substantive provision contained in section 25 C.P.C. is excluded by reason of section 21 of the .
Section 21 of the merely provides: "Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908".
In terms section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase 227 "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act.
It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provision of the Act.
For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act.
Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See: Canada and Dominion Sugar Co. Ltd. vs Canadian National (West Indies) Steamships Ltd. So far as section 21A of the is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial "in certain cases" and is not exhaustive.
Further sub section
(3) of section 21A on which strong reliance was placed runs thus: "21A (3).
In a case where clause (b) of sub section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
" This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old section 24 and 25 of C.P.C.
It does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104 of 1976).
By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil 228 Court in one State to another Civil Court in any other State throughout the country.
Conferral of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of section 21A of the .
It is, therefore, difficult to accept the contention that s, 21A of excludes the power of transfer conferred upon this Court by the present section 25 of C.P.C. in relation to proceedings under that Act.
Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta 's case (supra) it needs to be pointed out that the aforesaid aspects of section 21A of the and the present section 25 of the C.P.C. were not considered by the Nagpur Bench at all.
Moreover, the Nagpur Bench, following the decision of the Punjab and Haryana High Court in Smt.
Rama Kanta vs Ashok Kumar has also taken the view that section 21A of the permits transfer and consolidation of only two types of petition under the Act, namely, cross petitions filed by the two spouses against each other under section 10 or section 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment.
The Bench has observed: "The effect of section 21A, therefore, in my opinion, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under section 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section.
" Such a view, in our opinion, is not correct.
As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases.
" Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the Act and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the Act in order to avoid conflicting decisions being rendered by two different 229 Courts.
In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing.
Reading section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided.
In this view of the matter, the preliminary objection is overruled.
Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transferred to the District Court Eluru (A.P.), to which Court the wife 's petition for maintenance shall also stand transferred.
No order as to costs.
AMRENDRA NATH SEN, J.
I agree with the order proposed by my learned brother.
I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application.
The preliminary objection raised is that the jurisdiction and power conferred on this Court under section 25 of the Code of Civil Procedure are excluded by the provisions contained in section 21 and section 21A of the ; and as section 25 of the Civil Procedure Code is not attracted, this Court does not have jurisdiction to entertain this application for transfer.
section 25 of the Code of Civil Procedure reads as follows: "(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re try it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the 230 application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under the section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.
" It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure (Amendment) Act, 1976.
In this connection it may be relevant to set out section 25 of the Code of Civil Procedure, as it stood before its amendment by the substitution of the present section.
The earlier section 25 was in the following terms: "(1) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the Official Gazette, transfer such suit, appeal or proceeding in any other High Court: Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat.
(2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case.
" A plain reading of section 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice.
I shall now set out the relevant provisions of the . section 21 of the is in the following terms: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all 231 proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908." Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows: "(1) where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State; the petition shall be dealt with as specified in sub section(2) (2) in a case where sub section (1) applies; (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that Court: (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub section (2) applies, the court or the Government as the case may be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
" 232 The learned counsel for the respondent argues that in view of the provisions contained in section 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the will apply; and as section 25 of the Code of Civil Procedure does not appertain to the domain of procedure and confers substantive right, the said section is not applicable and cannot be attracted.
It is argued that this position is further made clear by the provisions contained in section 21A.
In my opinion, this argument of the learned counsel for the respondent husband is without any substance.
I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
A suit or a proceeding for divorce under the in a Civil Court is necessarily a suit or proceeding and must on a plain reading of section 25(1) of the Code of Civil Procedure be held to come under section 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding.
This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute.
If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms.
S.21 of the does not deal with the question of jurisdiction of any Court.
As no procedure with regard to the proceedings under the has been laid down in the said Act, section 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure. ' section 21 of the cannot be construed to exclude the jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure.
It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in section 25 of the Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure.
Even I accept the argument of the learned counsel for the respondent that section 25 does not form any part of the procedural law and is a part of the substantive law, I am of the opinion that jurisdiction conferred on this Courts by section 25 of 233 the Code of Civil Procedure, is not in any way, affected by section 21 of the which, as I have already noted, only provides that 'all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908. ' section 21A of the , in my opinion, has indeed no bearing on the question of jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure.
section 21A of the makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented.
Such power has been conferred on the Court or the Government.
section 21A has no application to the case of transfer of any suit or proceeding from one State to another.
As I have earlier noted, very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal, suit or proceeding from one State to another under section 25 of the Code of Civil Procedure.
In the instant case, the petitioner has applied for transfer of the suit pending in the District at Udaipur in the State of Rajasthan to the appropriate Court at Eluru in the State of Andhra Pradesh.
I am, therefore, of the opinion that this Court enjoys the power and jurisdiction to entertain this application under section 25 of the Code of Civil Procedure and section 21 and section 21A of the do not, in any way, exclude, affect or curtail the power conferred on this Court under section 25 of the Code of Civil Procedure.
I may incidentally add that the present section 25 in the Code of Civil Procedure came into force after section 21 and 21A have been incorporated in the .
V.D.K. Preliminary objection rejected.

summary:
The petitioner (wife) filed a suit (O.P. 72/79) in forma pauperis seeking maintenance from the respondent (husband) in the court of subordinate Judge, Eluru (Andhra Pradesh).
On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28/1980) against the wife under section 13 of the in the court of the District Judge, Udaipur (Rajasthan).
By the instant transfer petition filed under section , the wife sought to get the suit at Udaipur transferred to Eluru.
A preliminary objection was raised to the effect that section 25 of the Civil Procedure Code, which gets excluded by reason of the provisions of sections 20 and 21 of the , is not applicable to proceedings under the said Act and as such the Supreme Court has no power to transfer the husband 's suit from Udaipur District Court, Udaipur (Rajasthan) to Eluru District Court, Eluru (A.P.).
Rejecting the preliminary objection, the Court ^ HELD: Per curiam On merits, it is expedient for the ends of justice to transfer the husband 's suit pending in the District Court Udaipur (Rajasthan) to the District Court at Eluru (Andhra Pradesh), where both the proceedings could be tried together and for that purpose, the wife is agreeable to have her maintenance suit transferred to the District Court at Eluru (A.P.).
[226 A B] Per Tulzapurkar J. 1.
It will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the said Act in order to avoid conflicting decisions being rendered by two different Courts.
In such a situation resort will have to be had to the 224 powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing.
[228 G H, 227A] 2:1.
On a proper construction of the relevant provisions, it cannot be said that the substantive provision contained in section 25 Civil Procedure Code is excluded by reason of section 21 of the .
In terms, section 21 C.P.C. does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code, as far as may be, shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Code.
It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 of the Act and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act.
[226 G H, 227 A B] 3.
Section 21A of the does not exclude the power of transfer conferred upon the Supreme Court by the present section 25 C.P.C., in relation to proceedings under that Act.
The marginal note of section 21A itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated "trial in certain cases" and is not exhaustive.
Section 21A does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104, 1976).
By the amendment very wide and plenary power has been conferred on the Supreme Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State throughout the country.
Conferral of such wide and plenary power on the Supreme Court could not have been in contemplation of Parliament at the time of enactment of section 21A of the .
[227 C D, F H, 228 A B] Smt.
Rama Kanta vs Ashok Kumar, AIR 1977 Punjab & Haryana 373 and Priyavari Mehta vs Priyanath Mehta, AIR 1980 Bombay 337, overruled.
Per Amrendra Nath Sen, J. 1.
A plain reading of section 25 C.P.C. clearly indicates that very wide jurisdiction and powers have been conferred on the Supreme Court to transfer any suit, appeal or any other proceedings from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice.
Supreme Court enjoys the power and jurisdiction to entertain the transfer application under section 25 of the Code of Civil Procedure.
D] 2 : 1.
Sections 21 and 21A of the do not in any way, exclude, effect or curtail the power conferred on the Supreme Court under section 25 of the Code of Civil Procedure.
If the jurisdiction clearly conferred 225 on any court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms.
[232E, 233D] 2 : 2.
Section 21 of the only provides that "all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908".
Section 21 of the does not deal with the question of jurisdiction of any court and it cannot be construed to exclude the jurisdiction conferred on the Supreme Court under section 25 C.P.C. [232 E G] 2 : 3.
Section 21A of the has, indeed, no bearing on the question of jurisdiction conferred on the Supreme Court under section 25 C.P.C. Section 21A has no application to the case of transfer of any suit or proceeding from one State to another.
[233 B C] 2 : 4.
The Supreme Court must necessarily enjoy the power and jurisdiction under the provisions of section 25 C.P.C. of transferring such a suit or proceeding for the ends of justice unless the power and jurisdiction of the Supreme Court are specifically taken away by any statute.
[232D E] 3.
Section 25 of the Code of Civil Procedure came into force after section 21 and 21A of the have been incorporated in the and as such section 25 of the Code overrides sections 21 and 21A of the .
[233 A E]


judgement:
N: Criminal Appeal No. 221 of 1981.
Appeal by Special Leave from the Judgment and Order dated 23.10.1979 of the Madras High Court in Criminal Appeal No. 759/79 (Referred Trial No. 9/79).
A.T.M. Sampath and P.N. Ramalingam for the Appellant.
A.V. Rangam for the Respondent.
272 The Judgment of the Court was delivered by, CHANDRACHUD C. J.
The appellant, Muniappan, was convicted by the learned Sessions Judge, Dharmapuri under section 302 of the Penal Code and sentenced to death on the charge that he had committed the murder of his mother 's brother also called Muniappan and his son Chinnaswamy.
The conviction for murder and the sentence of death having been confirmed by the High Court of Madras by a Judgment dated October 23, 1979, this appeal has been filed by the accused by special leave.
The leave is limited to the question of sentence.
The judgments of the High Court and the Sessions Court, in so far as the sentence is concerned, leave much to be desired.
In the first place, the Sessions Court overlooked the provision, contained in section 354(3) of the Code of Criminal Procedure, 1973, which provides, in so far as is relevant, that when the conviction is for an offence punishable with death, the judgment shall in the case of sentence of death state special reasons for such sentence.
The learned Sessions Judge, in a very brief paragraph consisting of two sentences, has this to say on the question of sentence: "When the accused was asked on the question of sentence, he did not say anything.
The accused has committed terrific double murder and so no sympathy can be shown to him.
" The judgment of the Sessions Judge is in Tamil but we understand from the learned counsel, who appear in the case and both of whom understand Tamil well enough, that the Tamil word "Bhayankaram" has been rightly translated as "terrific".
We plead our inability to understand what is meant by a "terrific" murder because all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence.
In that event, death sentence will become the rule, not an exception and section 354(3) will become a dead letter.
We are also not satisfied that the learned Sessions Judge made any serious effort to elicit from the accused what he wanted to say on the question of sentence.
All that the learned Judge says is that "when the accused was asked on the question of sentence, he did not say anything".
The obligation to hear the accused on the question of sentence which is imposed by section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the 273 question of sentence.
The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.
All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal.
It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view.
The occasion to apply the provisions of section 235 (2) arises only after the conviction is recorded.
What then remains is the question of sentence in which not merely the accused but the whole society has a stake.
Questions which the Judge can put to the accused under section 235 (2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act.
The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.
The Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation.
The High Court condemned the murders in terms equally strong by calling them "cold blooded" and thought that its duty to consider the propriety of the death sentence began and ended with that assertion.
Its failure to see the failings of the Sessions Court in the matter of sentencing led to an unexamined confirmation of the death sentence.
Coming to the judgement of the High Court itself, there are certain features of it which need a close reflection.
One of the questions before the High Court was as to the time when the double murder was committed because, upon that circumstance depended the veracity of the eye witnesses.
The doctor who performed the post mortem examination stated in his evidence that the deceased must have taken their food about four or five hours before their death.
The case of the prosecution was that the murders were committed at about 9.00 p.m. P.W. 1, who is the son of the deceased Muniappan, stated in his evidence that the deceased had taken their food at 8.30 p.m.
This was a very important aspect of the case to which the High Court should have applied its mind with care.
Instead, it took an extempore expedient by saying: "Both the deceased might have died a couple of hours after they substained the injuries at 9.00 p.m.".
It is impossible to appreciate how, after being shot in the chest and receiving the kind of injuries 274 which are described in the post mortem report, the deceased could have survived for a couple of hours after they were shot.
Yet another question which had an important bearing on the case was as to the delay caused in filing the F.I.R. The case of the prosecution is that P.W. 1 went to the Police Station promptly but the solitary police constable who was present there directed him to go to the village Munsif to have his complaint recorded.
Now, the record of the Police Station shows that a Sub Inspector of Police was also present at the Police Station which falsifies the evidence that only a police constable was present at the Police Station at the material time and, therefore, the F.I.R. could not be recorded.
The High Court has dealt with this aspect of the matter thus: "In passing, we may mention that this is a grave dereliction of duty on the part of the policeman who was in charge of the police station at that time and is a matter that ought to be enquired into by the higher authorities.
We hope that suitable directions will be issued to subordinate officers in this district to prevent a recurrence of such lapses on the part of policemen when reports of cognizable offences are given.
" The High Court added that the Inspector of Police was not on good terms with the Sub Inspector and, therefore, the former made a false entry that the latter was present at the police station, which, according to the High Court, was a serious matter which required to be probed by the Senior Officers.
We are not quite sure whether there is credible evidence on record to show any enmity between the Inspector and the Sub Inspector and whether the High Court merely relied on the statement made by counsel for the State that the relations between the two Police Officers were cordial.
Whatever that may be, we do not think that the High Court has explained satisfactorily why the F.I.R. was not recorded at the police station when P.W.1 went there.
The ex parte strictures passed by the High Court are likely to involve the two Police Officers or at least one of them into grave consequences.
They should have been given an opportunity to explain themselves before the High Court persuaded itself to make such scathing criticism on their conduct.
There is one more aspect of the Judgment of the High Court, which, with great respect, we are unable to appreciate.
A question arose before the High Court as to whether a "muchilikka" bears the signature of the appellant.
The High Court compared the 275 admitted signatures of the appellant with the disputed signature and came to the conclusion that the disputed signature was of the appellant himself.
The High Court castigated the Public Prosecutor who conducted the prosecution in the Sessions Court by saying that he had not followed the cross examination of P.W.1 "with attention, and not chosen to bring to the notice of P.W. 1 that the accused had signed the muchilikka, exhibit P. 1.
We do not know how the High Court came to know that the Public Prosecutor was not following the cross examination of the witness with attention, but we can guess why the High Court made that observation.
It added in parenthesis: "such lapses on the part of this Public Prosecutor have become frequent and have been commented upon by us, and we hope that at least hereafter he will take some interest in the cases which he is conducting.
" It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower courts.
One should understand if the High Court were to make its guarded observation on the conduct of lawyers appearing before it.
But how the learned Judges of the High Court had, in their capacity as Judges of the High Court, come to know that "such lapses on the part of this Public Prosecutor have become frequent. ," we are unable to understand.
These various matters make it unsafe to confirm the sentence of death imposed upon the appellant.
The reasons given by the learned Sessions Judge for imposing the death sentence are not special reasons within the meaning of section 354(3) of the Criminal Procedure Code and we are not sure whether, if he were cognisant of his high responsibility under that provision, he would have necessarily imposed the death sentence.
Accordingly, we set aside the sentence of death and sentence the appellant to imprisonment for life.
N.V.K. Appeal allowed.

summary:
The Code of Criminal Procedure, 1973 by section 354(3) provides that when the conviction is for an offence punishable with death, the judgment shall in the case of sentence of death state 'special reasons ' for such sentence.
The appellant was charged under section 302 of the Penal Code for having committed the murder of his maternal uncle and his son.
The Sessions Judge convicted the appellant for murder and being of the opinion that it was "a terrific double murder" sentenced the appellant to death, The High Court condemned the murders as "cold blooded" and confirmed the conviction and sentence.
Allowing the appeal to this Court, limited to the question of sentence.
^ HELD: 1.
The sentence of death imposed on the appellant is set aside and he is sentenced to imprisonment for life.
[275 F] 2.
The reasons given by the Sessions Judge for imposing the death sentence are not 'special reasons ' within the meaning of section 354(3) of the Criminal Procedure Code.
It is not certain if he were cognizant of his high responsibility under that provision, that he would have imposed the death sentence.
[275 E] 3.
It is not understood what is meant by "a terrific murder" as suggested by the Sessions Judge.
All murders are terrific and if the fact of the murder being 271 terrific is an adequate reason for imposing the death sentence then every murder shall have to be visited with that sentence.
Death sentence will then become the rule, not an exception and section 354(3) would become a dead letter.
[272 F G] 4(i).
On the question of sentence it is not merely the accused but the whole society which has a stake.
[273 B] (ii) After the conviction is recorded, the occasion to apply the provisions of section 235(2) of the Criminal Procedure Code arises.
The obligation under this section to hear the accused on the question of sentence is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence.
The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.
All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal.
It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view.
Questions which the Judge can put to the accused under section 235(2) and the answers which the accused makes are beyond the narrow constraints of the Evidence Act.
The Court, while on the question of sentence, is in an altogether different domain in which facts and factors of an entirely different order operate.
[273 B; 272 H 273 A; 273 C] In the instant case, the Sessions Judge complied with the form and letter of the obligation which section 235(2) imposes, forgetting the spirit and substance of that obligation.
[273 D] 5.
It is not possible to appreciate how, after being shot in the chest and receiving the injuries described in the post mortem report, the deceased could have survived for a couple of hours thereafter.
There is also no explanation as to why the F.I.R. was not recorded at the Police Station when P.W. 1 went there.
It is therefore unsafe to confirm the sentence of death imposed upon the appellant.
[273 H. E] 6.
It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower courts.
[275 C] 7.
The High Court should have given an opportunity to the two police officers to explain their conduct before making criticism on it.
[274 G]


judgement:
Civil Appeal No. 812 of 1980 Appeal by special leave from the judgment and order dated the 23rd November, 1979 of the Allahabad High Court in Civil Misc.
Writ No 479 of 1978.
R.K. Garg, V.J. Francis and S.K. Jain for the Appellant.
Shanti Bhushan, R.K Jain, P.R. Jain and Pankaj Kalra for Respondent No. 1.
116 The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated November 23, 1979 of the Allahabad High Court allowing a writ petition quashing the order of the Rent Control and Eviction officer and remanding the case to him for considering the question afresh in accordance with law and in the light of the observations made by the High Court.
The appeal involves a short and simple point but the case appears to have had rather a long and chequered career.
Put briefly, the facts of the case fall within a narrow compass so far as the points for decision are concerned.
The first respondent, Smt.
Rajkumari Jain, inducted Shri Thapalayal as a tenant in the premises in dispute which are situated in the town of Bijnor.
The tenant intimated his intention to the Rent Control and Eviction officer to vacate the premises on 25.6.1974 on receipt of the aforesaid application of the tenant a Rent Control Inspector was directed to visit the spot and after visiting the same he reported that the premises in question were likely to fall vacant on 9.6.74.
The prescribed authority by its order dated 1.6.74 allotted the premises to the appellant.
In fact, the appellant had applied to the authority on 20.5.74 for allotment of the accommodation to him.
It appears that these proceedings were taken behind the back of the respondent landlady who was not taken into confidence either by the appellant or by the Rent Control authorities.
It was only after the prescribed authority had allotted the premises to the appellant and the respondent landlady came to know of this fact that she moved the prescribed authority for cancellation of the allotment but her prayer was rejected.
Thereafter, the landlady filed an appeal before the Additional District Judge, Bijnor which was allowed and the allotment in favour of the appellant was cancelled on the ground that the provisions of section 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act ') were not complied with.
Before narrating further sequence of facts, it may be necessary to examine the relevant provisions of the Act.
Section 17(2) of the Act may be extracted thus: "Where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour 117 under clause (b) of sub section (1) of Section to for residential purposes, the allotment of the remaining part thereof under clause (a) of the said sub section (1) shall be made in favour of a person nominated by the landlord " A perusal of this statutory provision would clearly disclose that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which are a part of the building occupied by the landlord, an allotment in the vacancy should be made only to a person nominated by the landlord.
The dominant purpose to be subserved by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord.
It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the Landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the ground of personal necessity.
The statute, however, while empowering the prescribed authority to allot the accommodation, safeguards at least the right of the landlord to have a tenant of his choice.
In the instant case, the admitted position seems to be that when the prescribed authority allotted the premises to the appellant, the landlady was not taken into confidence nor was she asked to induct either the appellant or somebody else as the tenant of the premises which were likely to fall vacant or which may have fallen vacant.
This was undoubtedly an essential requirement of the provisions of section 17(2) of the Act as extracted above.
In these circumstances, there could be no doubt that the order of the prescribed authority allotting the premises to the appellant was completely without jurisdiction and against the plain terms of section 17(2) of the Act.
It was in view of this serious legal infirmity that the District Judge allowed the appeal filed by the landlady on 27.1.1976 and cancelled the allotment of the accommodation to the appellant.
On 2.2.76 the landlady herself filed an application before the District Magistrate, Bijnor for delivery of possession of the said premises to her but the District Magistrate rejected the application by his order dated 8.3.76 on the ground that as the landlady had not applied for release of the accommodation, she could not be allotted the premises straightaway.
On 5.4.76 the District Supply officer, Bijnor directed the counsel for the landlady to nominate a person 118 for allotment of the premises.
As against this, the landlady applied for release of the accommodation to her in terms of the provisions of section 16(1) (b) of the Act which runs thus: "16.
Allotment and release of vacant building.
(1) Subject to the provisions of this Act, the District Magistrate may by order: (a) xx xx (b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order).
" The prayer of the landlady under section 16(1) (b) also appears to have been ignored by the Rent Control authorities and by an order dated 15.4.76, the District Supply officer re allotted the accommodation to the appellant.
This led the landlady to file another appeal before the Additional District Judge, Bijnor who by his Order dated 21.9.77 rejected the plea of the landlady, dismissed the appeal and confirmed the order of allotment.
The respondent landlady there upon filed a writ petition in the High Court challenged the orders of the District Supply officer as also of the District Judge who had affirmed that order and confirmed the order of allotment in favour of the appellant.
The High Court by the impugned order allowed the writ petition and sent the matter back to the Rent Control and Eviction officer to consider the question of allotment afresh in view of the observations Made by the High Court.
The appellant then obtained special leave of this Court against the order of the High Court and hence this appeal before us.
In support of the appeal, Mr. Shanti Bhushan, learned counsel for the appellant submitted that the High Court had no jurisdiction to interfere with the concurrent finding of fact given by the District Supply officer and the District Judge confirming the allotment in favour of the appellant and that too in a writ jurisdiction.
He also submitted that the landlady was not at all in actual physical possession of the premises and had been living outside Bijnor and, there fore, neither the provisions of section 16(1) (b) nor those of section 17(2) of the Act would apply to the facts of the present case.
On the other 119 hand, the counsel for the respondent submitted that initially the only question before the Rent Control Authority was whether the allotment should be made to the appellant even though he was not nominated by the landlady under section 17(2) of the Act.
It is common ground that the appellant was not a nominee of the landlady and, as discussed above, the District Judge in his first order had quashed the allotment on the ground that the provisions of section 17(2) had not been complied with.
It was also argued on behalf of the respondent landlady that the circumstances having changed, she now wanted to stay in Bijnor permanently and as she wanted additional accommodation she had applied to the District Magistrate under section 16(1) (b) for releasing the building in her favour.
This application was not at all considered on merits by the District Magistrate or by any court for that matter.
If the respondent could succeed in convincing the District Magistrate that a case for release of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at all.
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 incharge 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 was further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town.
That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property.
Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.
So far as the second point is concerned, Viz.
, the question of allotment of the premises to the appellant, the High Court was fully 120 justified in quashing the order of the District Supply officer as affirmed by the District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant.
There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so.
All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent on the Rent Control authorities to have fulfilled the essential conditions of section 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person.
It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply.
We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of section 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise her/his privilege of nominating a tenant.
We have already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell.
Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of section 17(2) of the Act.
As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.
We find no merit in this appeal which is dismissed with costs quantified at Rs. 1,000/ (Rupees one thousand only.).
P.B.R. Appeal dismissed.

summary:
Section 16(1) (b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 empowers the District Magistrate to release the whole or any part of a building or any land appurtenant thereto, in favour of the landlord.
Section 17(2) provides that where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour under section 16(1) (b) for residential purposes the allotment of the remaining part thereof under clause (a) of sub section (1) shall be made in favour of a person nominated by the landlord.
On intimation from tho tenant that he was vacating the premises, the rent control authority allotted them to the appellant without informing the landlady about the allotment.
On appeal the District Judge cancelled the allotment made in favour of the appellant The landlady then made an application for delivery of possession of the premises.
This application was rejected on the ground that she had not applied for release of the accommodation.
Her application under section 16(1) (b) for release of the premises was rejected and the accommodation was re allotted to the appellant.
The District Magistrate affirmed the order of the rent control authority.
The landlady 's writ petition impugning the orders of the courts below was allowed by the High Court.
The case was remitted to the courts below for reconsideration afresh of the question of allotment.
In appeal to this Court it was contended on behalf of the appellant that since the landlady was not in actual physical possession of the premises neither section 16(1) (b) nor section 17(2) had any application to the facts of this case.
Dismissing the appeal, ^ HELD: The order of the prescribed authority allotting the premises to the appellant was without jurisdiction and against the plain terms of section 17(2) of the Act.
The District Judge had rightly allowed the landlady 's appeal and cancelled The allotment to the appellant.
115 The object of the Act is that where a tenant inducted by the landlord voluntarily vacates the premises, partly occupied by the landlord, allotment in the vacancy should be made only to a person nominated by him, the dominant purpose of such provision being to remove any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the landlord 's right of privacy.
While empowering the prescribed authority to allot the accommodation, the Act safeguards the right of the landlord to have a tenant of his choice.
[117 B C, D] In the instant case if a tenant was thrust on the respondent without allowing her an opportunity to nominate a tenant of her choice it would violate the very spirit and tenor of section 17(2).
[120 F] Possession by a landlord of his property may assume various forms: a landlord living outside the town might retain possession over his property or a part of it either by leaving it in charge of a servant or by putting his household effects locked up in the premises.
Such occupation would be full and complete possession in the eye of law.
[119 F] In the instant case from the fact that the landlady was residing in another town and so was not actually residing in the premises it could not be said that she was not in possession of the premises or that she had severed her connection with her own property.
[119 G] The High Court was justified in quashing the orders of the rent control authority because no attempt had been made to approach the landlady for making a nomination in respect of the premises vacated by the original tenant.
All that the landlady did was to ask for the release of the premises.
Even if this was refused it was incumbent on the rent control authority to have fulfilled the requirements of section 17(2) before making an allotment in favour of the appellant or anyone else.
Simply because the landlady was living outside the town it could not be said that the provisions of this sub section would not apply and that the authorities concerned could make an allotment in favour of any person without giving an opportunity to her to exercise her privilege to nominate a tenant.
[120 A C]