judgement:
il Appeal No. 1936.
of 1972.
Appeal by Special Leave from the Judgment and Order dated the 2nd and 3rd day of August, 1971 of the Bombay High Court in Second Appeal No. 1064 of 1970.
V.M. Tarkunde, S.B. Wad, (Mrs.) J. Wad and AMiss) Manek Tarkunde for the Appellant.
D. V. Patel, S.C. Pratap and P.H. Parekh for Respondent No. 1 M.N. Shroff for respondent No. 2.
This appeal by special leave is directed against the judgment of the High Court of Bombay dated August 2/3, 1971 by which the plaintiff 's suit for declara tion and injunction has been dismissed.
The plaintiff is an association of hoteliers and restaurant keepers doing business within the, local limits of Sangli Municipality in the State of Maharashtra.
Under the provision of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as 'the Act ' and the rules framed thereunder by the Maharashtra Government the members of the plaintiff association were required to take a licence for the business conducted by them.
The Municipality insisted that the members of the plaintiff Association should pay two sets of fees one under item 1 and another under items 3 to 8 of Appendix (1) to the Schedule.
These fees were demanded by the Municipality on the ground that the members were both manufacturers and retail dealers and were, therefore, liable to pay fees in both these capacities.
The Appendix (1) to the Schedule was a part of the rules framed by the Maharash tra Government under section 24 of the Act.
The plaintiff, howev er, contended that the members of the plaintiff Association were not liable to pay two fees as they were essentially retail dealers and would have to pay fees under items 3 to 8 of.
the appendix because they could not be said to be either wholesale dealers or manufacturers.
The plaintiff also 141 claimed a declaration that the Municipality had no right to charge two fees from the plaintiff and also prayed.
for an injunction restraining the Municipality from doing so.
There was a prayer for refund of Rs. 3,990/ being the excess amount realised by the Municipality from the plain tiff.
The suit was resisted by the Municipality on the ground that under the rules framed by the Maharashtra Gov ernment, the Municipality was legally entitled to levy two sets of fees from the plaintiff as indicated above.
The suit was dismissed by the Trial court of the Joint Civil Judge, Junior Division, Sangli, who held that the plaintiff was not entitled to the declaration sought for and neither to, the refund as the Municipality was fully justified in realising the two sets of fees from the plaintiff.
Against this decision the plaintiff went up in appeal to the Extra Assistant Judge, Sangli who by his judgment dated August 27, 1970 reversed the judgment of the Trial Court and decreed the plaintiff 's suit holding that the plaintiff was entitled to the declaration sought for as the Municipality.
was not entitled to realise two sets of fees under Appen dix (1) referred to above.
learned Judge also passed a decree for refund of Rs. 3,990/ in favour of the plaintiff.
The Sangli Municipality went up in second appeal to the High Court of Bombay which ultimately succeed ed and the High Court, agreeing with the view taken by the Trial Court, dismissed the plaintiff 's suit.
Thereafter the plaintiff obtained special leave from this Court and hence this appeal.
As seen above, the facts of this case .lie within a very narrow compass and the point involved is a pure question of law which depends upon the interpretation of certain provi sions of the Act and the Rules made by the Maharashtra Government.
Before, however, analysing the provisions of the Act and the Rules made thereunder it may be necessary to, state a few admitted facts.
It is not disputed that the appellant is an Association of hoteliers and restaurant keepers who are engaged in preparing eatables and other articles of food and selling the same to their customers.
It is also not disputed that by and large, the members of the plaintiff association prepare the articles in a part of the premises where the hotel or restaurant is situated and after preparing the eatables they sell the same to the customers visiting those places.
There was some controversy on the question as to the import and ambit of the word "manufac ture", but counsel for the appellant did not dispute seri ously, and rightly, that for the purpose of this case the preparation of the articles of food would be included within the ambit of the term "manufacture".
In these circumstances, therefore, we need not dilate on this point any further.
Mr. V.M. Tarkunde, learned counsel for the appellant, submitted that as.
the main business of the members of the plaintiff association was retail sale of the articles pre pared by them, they were essentially retail sellers and they could be charged fees only in this capacity.
It is thus contended that the case of the appellant would clearly fall within the ambit of items 3 to 8 of Appendix (I).
It was vehemently argued that by no stretch of imagination could the 142 association 's members be charged fees as manufacturers or wholesale dealers in view of the nature of their trading activity.
The plaintiff also placed reliance on a communi cation by the Director of Health to the Municipal Council expressing his opinion that the Municipality was not justi fied in realising two sets of fees from the plain . tiff 's members and that they were liable to pay fees only under items 3 to 8 of Appendix (1).
This, however, was merely an opinion of an Officer and would not carry any weight when we are interpreting the statutory provisions of the Act and the Rules.
On the other hand, Mr. D.V. Patel appearing for the respondent Municipal Council submitted that the trading activity of the appellant 's members and two separate capaci ties one as manufactures and another as retail dealers, and, therefore, the Municipality was entitled to realize fees on both these counts.
It was further argued by Mr. Patel that if the Municipality was not allowed to realise fees from the appellant 's members as manufacturers, the Food Inspector appointed by the Municipality would have no jurisdiction to inspect the premises and check the articles manufactured by them for the purpose of sale.
We have given our anxious and careful consideration to the arguments of both the parties and we are clearly of the opinion that the argument of learned counsel for the appel lant is well founded and must prevail.
To begin with, the Rules framed by the Maharashtra Government which were pub lished in the Maharashtra Government Gazette dated April 26, 1962, as amended upto date, define "manufacturer" thus: " 'manufacturer ' means a person engaged in manufacturing any article of food for the purpose of trade;" "Retail dealer" is defined thus: " 'retail dealer ' means a dealer in any article of food, other than a wholesale dealer;" "Wholesale dealer" has been defined as the person engaged in the business of sale or storage for sale or distribution of any article of food for the purposes of resale.
Appendix ( 1 ) runs thus: "Schedule of Licence Fees chargeable under Section 24(2) of , for licensing certain trades.
143 Appendix (1) Fees for the grant or renewal of a licence.
[See rule 5(3) and (4A)] Sr.
Fresh Renewal No. Category Licence of Licence 1 2 3 4 Rs. Rs. 1.
Wholesale dealer or manufacturer or both (other than those covered by Appendix (2) 30 20 2.
Hawker or itinerant vendor or both 3 1 3.
Retail dealer with annual turnover upto Rs. 1,000 3 1 4.
Retail dealer with annual turnover exceeding Rs.1,000 but not exceeding Rs. 5,000 5 2 5.
Retail dealer with annual turnover exceeding 5,000 but not exceeding Rs. 10,000 10 3 6.
Retail dealer with annual turnover exceeding Rs.10,000 but not exceeding Rs.15,000 15 5 7.
Retail dealer with annual turnover exceeding Rs.15,000 but not exceeding Rs. 25,000 20 10 8.
Retail dealer with annual turnover exceeding Rs.25,000 25 15 There cannot be the slightest doubt that the. word "manufac turer" as defined in el.
(d) of r. 2 had been used in the widest possible sense so as to, include not only manufac ture through a laboratory process but also preparation of an article of food.
In our opinion, however liberally the word "manufacture" may be construed, it will not in clude the trading activity of persons, the dominant nature of which is to supply articles of food prepared or produced by them to their customers.
In other words, where the bulk of food articles sold by the restaurant keepers are prepared by them in what may be reasonably called a part of the premises of the restaurant where the articles are sold, the preparation of manufacture of those articles is incidental or ancillary to the retail sale, the dominant purpose of the trading activity being sale of food articles by retail.
We, therefore, think that the words. "wholesale dealer" or "manufacturer" in item 1 of Appendix (1) will not apply to hoteliers and restaurant keepers whose main business is to conduct retail sale of their articles prepared by them in what may be termed a part of the same premises.
It was, however, argued by Mr. Patel that if this view is taken, it would debar the Food Inspector from inspecting the premises where the articles of food are prepared and checking the same inasmuch as under the conditions of the licence, the Food Inspector his to maintain certain stand ards and norms and comply with certain conditions in the process of preparation of the articles.
We are, however, unable to find any provision in the Act which in any way prevents the Food Inspector from making routine inspection and cheek of persons whe 144 ther licensed or not.
This will be clear from an analysis of the various provisions of the Act which we shah show presently.
It seems to us that the Food Inspector being a creature of the parent statute, namely, the being referred to as 'the Act ' has got an independent statutory status, whose duties and functions are defined by the Act itself.
The powers of the Food Inspector are derived from and flow from the statute itself.
It is a different matter that under the Rules framed by the Government of a State the food Inspector may be entrusted with certain additional duties but that does not take away the statutory powers possessed by the Food Inspec tor.
To begin with, section 2(xi) of the Act defines "premises" thus: " 'premises ' include any shop, stall, or place where any article of food is sold or manufactured or stored for sale;" A perusal of this definition would manifestly reveal that "premises" include any place where any article of food is sold or manufactured or stored irrespective of the question whether the manufacturer or the seller is licensed or not.
The word "premises" does not contain any limitation so as to confine it only to those premises which are licensed.
Section 7 of ,the Act contains an express prohibition pre venting any person from manufacture or sale of any adulter ated article of food.
The relevant provision of section 7 runs thus: "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health Authority in the interest of public health; (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder, or (vi) any adulterant.
" This provision also does not contain any restriction of limitation and takes within its fold any person whether licensed or not who manufactures, stores or sells any adul terated food.
Clause (iii) of section 7 no doubt makes sale of any article of food without a licence an offence but clause (i) is independent of clause (iii).
Clause (iv) 145 of section 7 authorises the Food (Health) Authority to prohibit the sale of any article of food in the interest of public health.
Section 9 of the Act is the provision for appoint ment of Food Inspectors and may be extracted thus: "9.
Food Inspectors. (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be: Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this section.
(2) Every Food Inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code and shall be officially subordinate to.
such authority as the Government appointing him may specify in this behalf.
" Section 10 of the Act contains the powers, duties and func tions of the Food Inspectors.
The relevant portion of this statutory provision may be extracted thus: "10.
Powers of Food Inspectors. (1 ) A food inspector shah have power (a) to take samples of any article of food from (i) any person selling such article; (ii) any person who.
is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; (2) Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sate, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis; (4) If any article intended for food appears to any food inspector to be adulterated or mis branded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided and he shall, in either case, take a sample of such article and submit the same for analysis to public analyst; 11 1458SCI/76 146 It would be seen that sub sections
(2) and (4) of section 10 clearly empower the Food Inspector without any restriction or limi tation to enter and inspect any place where any article of food is manufactured, or stored for sale, or exposed or exhibited for sale and inspect the article for the purpose of finding out whether or not the article is adulterated.
Sub section (4) of section 10 empowers the Food Inspector even to seize any adulterated or misbranded article and carry away the same and keep it 'in safe custody.
It is, therefore, clear whether an activity is licensed or not, the place where the activity is carried on is always subject to in spection by the Food Inspector under the provisions of section 10.
Section 16(1) clauses (c) and (d) particularly provide for penalties and punishment for any person who prevents a Food Inspector either from taking a sample or from exercis ing any power conferred on him by the Act.
Thus it is plain that the question of a trader obtaining a licence or not has absolutely nothing to do with the statutory duties which a Food Inspector has to perform and any person whether he is licensed or not would be liable to penalties under the Act if he tries to prevent or interfere in the due discharge of the duties by the Food Inspector.
Section 23 of the Act is the provision which empowers the Central Government to make rules in order to carry out the provisions of the Act.
Clause (c) of section 16(1) provides for laying down special provisions for imposing rigorous control over the production, distribution and sale of any article and clause (g) authorises the Central Government to define the conditions of sale or conditions for li cence of sale of any article of food in the interest of public State Government to make rules for the purpose of giving effect to the provisions of the Act.
Clause (a) of sub section
(2) of section 24 empowers the State Government to define the powers and duties of the Food (Health) Authority.
The section also contains provisions for levy of a fee.
It is under this provision that the Maharashtra Rules were made by the Government.
The Central Rules, namely, the Prevention of Food Adulteration Rules, 1955, framed under section 23 of the Act also contain provisions defining the duties of a Food Inspector.
The relevant part of r. 9 of the Central Rules may be extracted thus: "9. Duties of Food Inspector.
It shall be the duty of the food inspector (a) to inspect as frequently as may be prescribed by the Food (Health) Authority or the local authority all establishments licensed for the manufacture, storage or sale of an article of food within the area assigned to him; (f) to make such enquiries and inspections as may be necessary to detect the manufacture, storage or sale of articles of food in contravention of the Act or rules framed thereunder; (h) when so authorised by the health officer, having jurisdiction in the local area concerned or the Food (Health) Authority, to detain imported packages which he has reason 147 to suspect contain food, the import or sale of which is prohibited; Thus it is clear that apart from the wide powers given to the Food Inspector by the statute itself, even the Central Rules framed by the Central Government confer additional powers on the Food Inspector.
The Maharashtra Rules referred to above do not contain any provision which in any way runs counter to either the Central Rules framed by the Central Government or the provisions of the Act.
The rules merely contain certain additional provisions regarding the condi tions of licence and certain other additional duties to be performed by the Food Inspectors.
Thus an analysis of these provisions would plainly reveal that the Food inspector does not derive his powers from the Rules regulating licence of a trader, but the fountain of his authority flows from the, statutory provi sions itself.
There is no provision in the Rules which in any way prevents or interferes with the discharge of the duties of a Food Inspector.
The power to inspect and check is a plenary power which has been conferred on the Food Inspector by the statute itself and no rule made by the Government can ever interfere with this power.
In these circumstances, it is difficult to accede to the contention of Mr. Patel that unless the members of the plaintiff association are licensed as manufacturers also, it will not be possible for the Food Inspector to inspect and check the premises where the articles are prepared.
The Act is a social piece of legislation meant to control and curb adul teration of articles of food and being in the interest of public health it has to be liberally construed and no limi tations can be inferred on the powers of the Food Inspector whose primary duty is to see that the 'adulterated articles are neither manufactured, nor stored, nor sold.
For these reasons, therefore, the main contention of Mr. Patel on this score is overruled.
The contention of counsel for the respondent regarding powers of the Food Inspector may be tested from another angle of vision on the touchstone of practical reality.
Suppose a particular State Government does not choose to frame any Rules at all under the provisions of the parent Act (the ), can it be argued with any show of force that in such cases the Food Inspector would become absolutely powerless and wholly ineffective The answer must be in the negative, because it is manifest that the duties and functions of the Food In spector spring from the parent statute and are not in any way co related to the additional duties provided for in the Rules which may be framed by the State Government.
Thus even from this point of view, the argument put forward by the respondent fails.
Coming now to.
the Appendix (1),itself, it would appear that item 1 and items 3 to 8 postulate two different contin gencies.
Item 1 takes within its fold wholesale dealer or manufacturer or both.
There is no mention of a retail dealer in this item.
Thus before a trader falls within the purview of item 1 of Appendix (1), it must be shown that he is either a wholesale dealer or a manufacturer or both.
We have already pointed out that where the dominant nature of the trading activity of a 148 person is neither that of a manufacturer nor as a wholesale dealer, but he is engaged in retail sale ', item 1 would have no application.
The mere fact that the trader prepares the articles for the purpose of selling the same to his customers would not make him either a wholesale dealer or a manufacturer.
In the first place, the appellant 's members cannot be wholesale dealers because there is nothing to show that they deal in articles for the purpose of re sale.
On the other hand, the nature of their trading activity is one of retail sale.
In these circumstances the case of the appellant clearly falls within items 3 to 8 of Appendix (1).
The High Court was, therefore, in error in taking the view that the case of the appellant was covered both by item 1 as also items 3 to 8 of Appendix (1) and was, therefore, not justified in reversing the judgment of the Extra Assistant Judge.
On a consideration, therefore, of the facts and circum stances of the case, we are clearly of the opinion that in the instant case the members of plaintiff association who are mostly restaurant keepers conducting the business of retail sale, the preparation of the articles being merely an ancillary activity, are liable to pay .the licence fee under items 3 to 8 of Appendix (1) and not under item 1 of the Appendix (1) to the Schedule.
The plaintiff is, therefore, entitled to the declaration sought for and is also entitled to the refund of Rs. 3,990/ .
We, therefore, allow this appeal, set aside the judgment of the High Court, decree the plaintiff 's suit and restore the judgment and decree of the Extra Assistant Judge.
In the peculiar circumstances of this case, there will be no order as to costs.
P.B.R. Appeal allowed.

summary:
Rule 2(d) of the Maharashtra Prevention of Food Adul teration Rules.
1962 defines a manufacturer as a person engaged in manufacturing any article of food for the pur poses of trade.
Clause (e) defines a. "retail dealer" as a dealer in any article of food other than wholesale dealer and cl.
(g) defines a "wholesale dealer" as a person engaged in the business of sale or storage for sale or distribution of any article of food, for the purposes of resale.
Fees payable by a wholesale dealer or manufacturer for the grant or renewal of a licence are prescribed in item 1 and those payable by a retail dealer in items 7 and 8 of Appendix 1.
Members of the appellant association, who are hoteliers and restaurant keepers prepare articles of food in a part of their respective premises and sell them to the customers visiting them.
The respondent municipality charged from members of the association licence fee both under item 1 and items 7 and 8 of Appendix 1 on the ground that each of them is both a manufacturer and a retail dealer.
The appellant 's suit for declaration that the municipality had no right to charge two sets of fees from the members who are essentially retail dealers and for refund of excess amount realised by the municipality was dismissed by the trial court.
The first appellate court allowed the appellant 's appeal: but the High Court on further appeal by the municipality re stored the order of the trial court.
Allowing the appeal to this Court.
HELD: The High Court was in error in holding that the members of the association were covered both by item 1 as also by items 3 to 8 of Appendix 1.
Members of the appellant association are liable to pay licence fee under items 3 to 8 of Appendix (1) and not under item 1.[148 B C] 1 (a) Item 1 took within its fold a wholesale dealer or manufacturer or both.
It does not mention of a retail dealer.
Before a trader falls within the purview of item 1 it must be shown that he is either a wholesale dealer or a manufacturer or both.
Where the dominant nature of the trading activity is neither that of a manufacturer nor a wholesale dealer but is a retail sale, item 1 would have no application.
The fact that the trader prepares the articles for selling them to his customers would not make him either a wholesale dealer or manufacturer.
[147H; 148 A B] (b) The words 'wholesale dealer ' or 'manufacturer ' in item 1 will not apply to hoteliers and restaurant keepers whose main business is to conduct retail sale of their articles prepared by them in a part of their premises.
[143G] (c) The word 'manufacturer ' as defined in r. 2(d) had been used in the widest possible sense to include not only manufacture through a laboratory process but also prepara tion of an article of food.
However liberally the word 'manufacturer ' is construed, it will not include the trading activity of persons the dominant nature of which is to supply articles of food prepared or produced by them to their customers.
[143E] 140 2(a) There is no force in the contention that unless the members of the Association are licensed as manufacturers the Food Inspector cannot enter for inspection any premises where the articles are prepared.
The question of a trader obtaining a licence has nothing to do with the statutory duties of a Food Inspector.
The Food Inspector does not derive his powers from the rules regulating licence of a trader, but his duties spring from the statutory provisions.
There is no provision in the rules which in any way prevents or interferes with the discharge of his duties.
[147C E; 146C] (b) Apart from the wide powers given to the Food Inspec tor by the Statute, Rules framed by the Central Government confer additional powers on the Food Inspector.
The Maha rashtra Rules do not contain any provision which in any way runs counter to either the Central Rules or the Act.
The rules merely contain certain additional provisions regarding the conditions of licence and additional duties to be per formed by the Food Inspector.
[147B] (c) Even assuming that a particular State Government did not frame any rules under the Act it cannot be said that the Food Inspector would be absolutely powerless and cannot exercise effective control.
His duties and functions spring from the parent statute and are not in any way corre lated to the additional duties provided for in the rules framed by the State Government.
[147G]


judgement:
Civil Appeals Nos.
1121 1125 of 1975.
From the Judgment and Order dated the 31st March 1975 of the Punjab and Haryana High Court in Civil Writ Petition Nos.
5948, 6115, 6736, 6779 and 6780 of 1974.
Hardev Singh and R. section Sodhi for the Appellant.
section K. Bagga and (Mrs.) section Bagga for Sole Respondent in CA 1121 R 1 in CAs.
1122 1125/75.
The Judgment of the Court was delivered by CHANDRACHUD, J.
These appeals arise out of a decision rendered by a Full Bench of the Punjab High Court in various writ petitions filed by the students of the Punjab University, who were disqualified for adopting unfair practices in the examinations.
Most of them had copied from a common source.
By a majority of 2 to 1, the High Court by its Judgment dated March 31, 1975 set aside the decisions of a Committee appointed to inquire into the charges against the erring students.
The judgment of the majority rests solely on the 69 view that despite the circumstance that two members of the Committee formed the quorum the impunged decisions were vitiated by the fact that only 2 and not all the 3 members of the Committee participated in the proceedings.
Aggrieved by the majority judgment of the High Court, the Punjab University, Chandigarh, has filed these appeals by a certificate granted by the High Court on the ground that the appeals involve a substantial question of law of general importance which requires to be determined by this Court.
The respondents to these appeals were detected in the use of unfair means by the supervisory staff at different examinations held by the Punjab University.
The Deputy Registrar of the University issued notices to the respondents calling upon them to submit their replies to a questionnaire.
Respondents denied having used unfair means in the examinations but their explanation having been found to be unsatisfactory, the charges were referred for inquiry and decision to the Standing Committee which was appointed to deal with cases of misconduct and use of unfair means at the University examinations.
The Standing Committee consisted of Shri G. L. Chopra, a retired Judge of the High Court, Shri Ajmer Singh, an advocate who was formerly a Minister of the Punjab Government, and Shri Jagjit Singh, the Registrar of the University.
The Standing Committee was appointed by the Syndicate of the University under Regulation 31 of the Punjab University Calender, 1973, Volume II.
In a meeting dated August 17, 1971 the Syndicate passed a Resolution that two members shall form the quorum for the meetings of the Standing Committee appointed under Regulation 31.
In everyone of the meetings, only two out of the three members of the Standing Committee were present.
Respondents appeared before the Standing Committee which, on a consideration of their statements came to the unanimous conclusion that the respondents had adopted unfair means in the examinations.
By the impugned decisions they were disqualified for varying terms.
It is not alleged that the Standing Committee had committed breach of any of the procedural provisions or of the rules of natural justice.
We may also mention in passing that none of the respondents took any objection during the inquiry that it was not competent to only two members of the Standing Committee to inquire into the charges.
Before the High Court also, the sole ground on which the decisions of the Standing Committee were challenged was that the decisions were without jurisdiction inasmuch as all the three members of the Standing Committee had not taken part in the meetings in which the decision to disqualify the respondents was taken.
The Punjab University, Chandigarh, was set up under the East Punjab Ordinance 1947, which was later replaced by the Punjab University Act, 1947.
By section 8 of the Act the supreme authority of the University vests in the Senate consisting of the Chancellor, the Vice Chancellor, ex officio Fellows and Ordinary Fellows.
Section 1 1(2) of the Act provides inter alia that the Senate shall exercise its powers in accordance with the statutes, rules and regulations for the 70 time being in force.
Section 20 of the Act provides that the Executive Government of the University shall vest in the Syndicate consisting of the Vice Chancellor as Chairman, the Directors of Public Instruction Punjab, Haryana and Chandigarh, the Director of Education, Himachal Pradesh, and not less than 12 or more than 15 ex officio or ordinary Fellows elected by various Faculties.
Section 31(1) of the Act provides for the framing of Regulations and states that the Senate, with the sanction of the Government, may from time to time make regulations consistent with the Act for providing for all matters relating to the University.
Section 31 (2) enumerates matters regarding which regulations can be made and they include the conduct of students, the procedure to be followed at meetings of the Senate, Syndicate and Faculties and the quorum of members to be required for the transaction of business.
Acting under the power conferred by section 31, the Senate of the Punjab University framed regulations in consultation with the Government, which include regulations relating to the use of unfair means in examinations.
These regulations are contained in Chapter II of the Punjab University Calendar, 1973, Volume II.
The decision of these appeals turns on the construction and meaning of regulations 31 and 32.1 of Chapter II which read thus: "31.
The Syndicate shall appoint annually a Standing Committee to deal with cases of the alleged misconduct and use of unfair means in connection with examination; 32.1.
When the Committee is unanimous, its decision shall be final except as provided in 32.2.
If the Committee is not unanimous the matter shall be referred to the Vice Chancellor who shall either decide the matter himself or refer it to the Syndicate for decision".
The constitution of the Standing Committee is indisputably within the powers of the Syndicate under Regulation 31.
No exception can therefore be taken to the appointment of the Standing Committee by the Syndicate and indeed no objection was at any stage taken in that behalf.
Equally clear seems to us the position that the Syndicate which had the power to appoint the Standing Committee had the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum ' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful.
It is generally left to committees themselves to fix the quorum for their meetings and perhaps, if the Syndicate had not fixed the quorum it might have been competent to the Standing Committee itself to devise its day to day procedure including the fixation of quorum But that is going one step ahead, for here the quorum was fixed not by the Standing Committee but by the Syndicate itself which appointed the Standing Committee and which indubitably had the right to appoint the Committee under Regulation 31.
We are unable to see any valid reason for which the fixation of quorum for the 71 meetings of a Committee appointed by the Syndicate can be said to be beyond the powers of the Syndicate.
It is wholly inappropriate in this connection to draw on the constitution of judicial tribunals as a parallel because, if by law such a tribunal must consist of 3 members there is no jurisdiction in the tribunal to fix a smaller quorum for its sittings.
A court is not a committee and if by law any matter is required to be heard, say by a bench of three Judges, there is no power in those three Judges to resolve that only two of them will form a quorum.
In fact, quorum is fixed for meetings of committees and not for the sittings of courts.
In the instant case the Syndicate had the right to fix the number of persons who would constitute the Standing Committee and by fixing the quorum at 2, it did no more than provide that though the Standing Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the business of and on behalf of the committee.
Putting the matter a little differently, the Syndicate nominated 3 persons to be members of the Standing Committee but resolved that any 2 of them would validly constitute the Standing Committee for the time being to dispose of any business which comes before it.
Great reliance was placed by the respondents both in the High Court and before us on Regulation 32.1 which we have set out above, in support of the contention that the decision of the Standing Committee was without jurisdiction since all the members of the Committee had not participated in the various decisions.
By Regulation 32.1, if the Standing Committee is unanimous in its decision, the decision is final except as provided in Regulation 32.2; if the committee is not unanimous, the matter has to be referred to the Vice Chancellor who can either decide the matter himself or refer it to the Syndicate for its decision.
It is urged on behalf of the respondents that the possible dissent of the 3rd member, were he present, would have necessitated a reference to the Vice Chancellor who might not agree with the majority opinion, which shows that no sanctity can attach to a decision rendered by less than the whole body of 3 members of the Standing Committee.
This argument is purely hypothetical and besides, it overlooks that the fixation of quorum for the meetings of a committee does not preclude all the members of the committee from attending the meetings.
By the quorum, a minimum number of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions of the committee.
Whenever a committee is scheduled to meet, due notice of the meetings has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting.
Every member has thus the choice and the opportunity to attend every meeting of the committee.
If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt.
Though a faint attempt was made in these appeals for the first time to suggest that the notice of the meetings 72 of the Standing Committee was not served on all the 3 members of the committee we are satisfied that such a notice was in fact given and someone or the other of the 3 members chose to remain absent at the meetings of the Standing Committee.
There is, therefore, no warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice Chancellor under Regulation 32.1.
Apart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meetings of the Standing Committee.
If the quorum consists of 2 members, any 2 out of the 3 members can perform the functions of the Standing Committee, though the committee may be composed of 3 members.
When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the committee and who, by forming the quorum can validly and lawfully discharge the functions of the committee and transact all business on behalf of the committee.
If only 2 members out of the 3 who compose the Standing Committee have participated in the business of any particular meeting, the question to ask under Regulation 32.1 is whether there is unanimity amongst those two members.
If they are unanimous their decision is final.
If they differ, the matter has to be referred to the Vice Chancellor.
Thus, the fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility.
With respect, we are unable to appreciate the reasoning of the majority that "The manner in which Regulation 32.1 has been framed leaves no doubt that the consideration of the question of students ' misconduct and the use of unfair means in examination by them has been placed at a high pedestal" and that therefore "there is no escape from the conclusion that the consideration of the case of a student against whom there are allegations of misconduct or of use unfair means in an examination, has to be by all the members of the Standing Committee and not by some of them and that any decision of the Syndicate to the contrary would he violative of the letter and spirit of Regulation 32.1.
" The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.
The majority Judges were therefore in error in holding that Regulation 32.1 "clearly negatives the fixation of a quorum and makes it incumbent that the decision must be taken by the full Committee" for the reason that "In a way, this regulation fixes the quorum at the number of members originally appointed".
The learned Judges read far more into Regulation 32.1 than there is in it and we see no warrant for construing that regulation as fixing the quorum at the number of members originally appointed to the committee.
Regulation 32.1 is aimed at conferring finally on decision of the committee if they are unanimous and at leaving the validity and propriety of a dissenting decision to the judgment of the Vice Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate.
Regulation 3 2.1 does not even remotely attempt to fix the 73 quorum.
That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members.
Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.
We share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee.
In Bharat Indu vs The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court.
By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case.
In Miss Manjinder Kaur vs The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected.
It is quite true that judicial consistency is not the highest state of legal bliss.
Law must grow, it cannot afford to be static and theretore Judges ought to employ an intelligent technique in the use of precedents.
Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozo 's caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings.
The language of the Regulations called for no review of established precedents.
Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations.
In such cases it is so much better that the law is certain.
In the result we allow the appeals, set aside the decision of the majority and uphold that of the minority Judge.
The writ petitions filed by the respondents will consequently stand dismissed but there will be no order as to costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
Regulations 31 and 32.1 of the Punjab University Calendar, 1973, Volume II are as under: "31.
The Syndicate shall appoint annually a standing committee to deal with cases of the alleged misconduct and use of unfair means in connection with examinations; 32.1.
When the committee is unanimous, its decision shall be final except as provided in S.32.2.
If the Committee is not unanimous, the matter shall be referred to the Vice Chancellor who shall either decide the matter himself or refer it to the Syndicate for decision".
By virtue of the powers vested in the syndicate, the Punjab University appointed a standing committee under Regulation 31 consisting of a retired high court judge, an Advocate who was formerly a minister of State of Punjab & the Registrar of the University.
It also resolved, by its Resolution dated 17th August 1971, that two members shall form the quorum for the meetings of the standing committee appointed under Regulation 31.
For adopting unfair practices in the examination, respondents were disqualified by the Committee, in all the sittings of which, only two out of the three members were present.
The respondents contended by their writ petitions that the decisions of the Standing Committee were without jurisdiction in as much as all the three members of the Standing Committee had not taken part the meetings in which the decisions to disqualify them were taken.
By a majority of 2 to 1, the High Court set aside the decisions taking the view that despite the circumstance that two members of the committee formed the quorum, the impugned decisions were vitiated by the fact that only 2 and not all the 3 members of the committee participated in the proceedings.
Allowing the appeals by certificate, the Court, ^ HELD: (1) The Constitution of the Standing Committee is indisputably within the powers of the Syndicate under Regulation 31.
The Syndicate which had the power to appoint the Standing Committee had the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum ' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful.
It is wholly inappropriate to draw on the Constitution of judicial tribunals as a parallel.
In the instant case, the syndicate by nominating 3 persons to be members of the Standing Committee, but by resolving that 2 of them would validly constitute the standing committee, did no more than provide that though the Standing Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the business of and on behalf of the Committee.
[70 E F, 71 A C] (ii) By the quorum, a minimum number of members of the committee must be present in order that its proceedings may be lawful, but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decision of the committee.
There is no 68 warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice Chancellor under Regulation 32.1.
[71 F G 72 AB] (iii) When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting on the committee and who, by forming the quorum can validly and lawfully discharge the functions of the Committee.
The fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility.
The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.
[72 C D, E, F] (iv) Regulation 32.1 is aimed at conferring finality on decisions of the committee if they are unanimous and at leaving the validity and priority of a dissenting decision to the judgment of the Vice Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate.
Regulation 32.1 does not even remotely attempt to fix the quorum.
That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members.
Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.
[72 G H, 73 A] It is quite true that judicial consistency is not the highest state of legal bliss.
Law must grow, it cannot afford to a static and therefore, judges ought to employ an intelligent technique in the use of precedents.
But the language of the Regulations called for no review of established precedents.
Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations.
In such cases, it is so much better that the law is certain.
[73 C D, E] Bharat Indu vs The Punjab University & Anr.
ILR [1967] 2 Punjab & Haryana 198; Miss Manjinder Kaur vs The Punjab University (Civil Writ No. 3516/72 dt.
30 3 1973 decided by the Punjab High Court (approved).


judgement:
Appeal No. 127 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 20.8.1975 of the Allahabad High Court (Lucknow Bench) at Lucknow in Civil Writ Petition No. 1062 of 2974).
G.N. Dikshit and S.K. Bisaria, for the Appellant.
D. Goburdhan, for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave arises out of a proceeding under the Uttar Pradesh Urban Buildings (Regula tion of Letting, Rent and Eviction) Act, 1972 (referred to hereinafter as the Act).
On September 11, 1973 the appel lant applied under section 16(1)(a) for allotment of a part of house No. 98, Lokmanganj, Lucknow.
He was in fact in occupation of this portion of the building when he made the application: according to the appellant he had been inducted as a tenant by a person representing that he was the owner of the house,though really he was himself a tenant.
On November 24, 1973 the first respondent also applied for alloting the house to him.
Subsequently there were two more applicants for the house.
The Area Rationing Officer (Rent Control) by his order dated June 4, 1974 allotted the accom modation to the first respondent.
The appellant before us preferred an appeal to the District Judge, Lucknow, who on August 7, 1974 allowed the appeal, set aside the order of allotment made in favour of the first respondent and remand ed the case to the Area Rationing Officer (Rent Control) to be decided afresh in accordance with law.
The District Judge pointed out that the Area Rationing Officer (Rent Control) had ignored altogether rule 11 of the Rules framed under the Act which required that in the matter of allotment the principle "first come first served" should be followed.
The District Judge overruled a contention raised on behalf of the first respondent that the appel lant 's application for allotment was not maintainable as he was an unauthorised occupant within the meaning of the Act of the building in question.
The appellate authority held that there was no provision in the Act which bars an unau thorised occupant from applying for an allotment.
On a writ petition filed by the first respondent, the Allahabad High Court quashed the order of the District Judge and restored the order made by the area Rationing Officer (Rent Control) alloting the house to the first respondent on the view that rule 11 requiring "first come first served" prin ciple to be followed was applicable only to persons similar ly situated, and an unauthorised occupant could not be "placed in the same situation as others who were in need of accommodation".
According to the High Court the princi ple "first come first served" was" not intend to be applied mechanically and not in such a manner as to frustrate the object of the Act".
The correctness of the view taken by the High Court is in challenge before us.
It is necessary to refer briefly to the relevant provi sions of the Act and the rules framed thereunder.
The Act, as its long title shows, is a statute "to provide, in the interest of the general public, for the 10 1458SCI/76 130 regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith".
Chapter III of the Act which contains provisions regulating letting in cludes section 11 to section 19.
Section 11 lays down that No. person shall let any building except in pursuance of an allotment order issued under section 16.
Section 12 states inter alia that a landlord or a tenant of a building shall be deemed to have ceased.
to occupy the building or part thereof if he has allowed it to be occupied by any person who.
is not a member of his family.
The appellant and the tenant of the building who inducted him there axe not members of the same family.
Section 13 provides that no person shall occupy a building or part thereof which a landlord or tenant has ceased to occupy except under an order of allotment made under section 16 and that if a person "so purports to occupy" he shall be deemed to be an unauthorised occupant such building or part.
Under section 16(1)(a) the District Magistrate may make an order requiring the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building to any person specified in the order.
An order made by the District Magistrate under this provision is called an allot ment order. 'District Magistrate ' as defined in section 3(c) includes an officer authorised by the District Magis trate to exercise all or any of his powers under the Act.
An order under section 16 is appealable under section 18.
Section 41 authorises the State Government to make rules to carry out the purposes of the Act.
Rule 10 of the Rules framed under the Act prescribes the procedure for allotment.
The District Magistrate is required to maintain a register of applications for allotment of buildings.
The applica tions are to be classified according to the priority catego ries specified in rule 11 and they must be registered in the order they are received.
The register is prepared afresh for every calendar year and applicants who are unable to secure allotment by the end of an year and whose applica tions were not rejected as not maintainable are entitled to apply by the 15th of January of the succeeding year for renewal of their applications and they retain their original relative priority.
Sub rule (5) of rule 10 provides that no building shall ordinarily be.
allotted to the persons or for the purposes specified in clauses (a), (b) and (c) of the sub rule.
Sub rule (6) lays down inter alia that a person who is deemed to have ceased to occupy a building within the meaning of section 12(1)(b) shall not be allotted that or any other residential building for a period of two years from the date of such deemed cessation.
Rule 11 which fixes the order of priorities in allotment of residential buildings states in sub rule (1) that: "In making allotment of a residential building, .the following order of priorities shall be observed: Firstly, for public purposes; Secondly, for accommodating a person against whom an order has been passed for eviction under Section 21, not being a tenant referred to in Explanation (1) to Section 21(1), or a decree has been passed in a suit filed with the permission of the District Magistrate under section 3 of the old Act (or such suit or application is pending) and who or 131 members of whose family do not own or hold as tenants any other residential building in the same city, municipality, town 'area or notified area; Thirdly, for accommodating others; and in each of the above categories subject to the provisions of sub rule (2), the principle "first come, first served" shall be followed.
" As intending allottees the appellant and the first re spondent both come within the third category.
If the principle 'first come first served ' is to be followed in choosing between them, the appellant 's applica tion for allotment being earlier in point of time should have preference unless there is any valid ground for reject ing his claim.
We are not concerned in this appeal about the existence of any such ground; the District Judge had remitted the case to the Area Rationing Officer (Rent Con trol) for a fresh decision in accordance with law following the 'first come first served ' principle.
The High Court thought that the appellant being in unauthorised occupation of the building within the meaning of section 13 was not entitled to apply for allotment of the premises to him.
It does not however appear from the Judgment of the High Court that there is any provision in the Act which disentitles such unauthorised occupants from applying for allotment.
The appellant is not one of the persons to whom no building is ordinarily to be allotted under sub rules (5) and (6) of rule 10.
The High Court refers to sub rules (4) and (5) of rule 11 to show that the principle first come first served ' does not apply in all circumstances.
Sub rule (4) gives overriding powers to the District Magistrate to make an allotment out of turn in favour of a person who in occupy ing any accommodation proposed to be requisitioned under the Uttar Pradesh Temporary Accommodation Requisition Act, 1947 and to whom alternative accommodation is required to be provided under that Act.
Sub rule (5) which is expressly made subject to the other sub rules of rule 11 states that it should be ensured that no person shall be allotted a building which carries so little rent that he is able to get a residence on payment of rent which is less than ten per cent of his salary or other income, after taking into con sideration the house rent allowance allowed by his employer.
Both these sub rules are quite irrelevant for the present purpose.
Therefore, assuming that sub rules (4) and (5) are exceptions to the 'first come first served ' principle, the appellant 's application for allotment cannot be thrown out unless there was some provision prohibiting unauthorised occupants from applying for allotment.
The High Court thinks that an unauthorised occupant cannot be "placed in the same situations as others who are in need of accommoda tion" and that the principle 'first come first served ' "has to be applied amongst person of the same category who are similarly situated".
The High Court has not mentioned any provision of the Act to justify the view it has taken, nor any such provision has been referred to by counsel for the first respondent which disables an unauthorised occupant from applying for an allotment.
The disability, the High Court infers from the object of the Act.
The 132 object of the Act has to be gathered from its provisions and we have not found anything in the Act which disentitles an unauthorised occupant to ask for an allotment.
In our opinion the High Court was in error in quashing the order of the District Judge.
The appeal is accordingly allowed.
The judgment of the High Court is set aside and that of the District Judge dated August 7, 1974 is restored.
There will be no order as to costs.
P.H.P. Appeal allowed.

summary:
In September, 1973, the appellant applied under section 16(1)(a) of the U.P. Urban Buildings (Regulation of letting, rent and eviction) Act, 1972 for the allotment of a part of a house, which was actually occupied by him.
According to the appellant, he was included as a tenant by a person representing himself to be the owner but who in fact was a tenant.
In November, 1973, the first respondent also ap plied for allotment of the said premises.
The Area Ration ing Officer allotted the premises to the first respondent.
The District Judge allowed the appeal filed by the appel lant, set aside the order of allotment in favour of the first respondent and remanded the case to the Rationing Officer to be decided afresh in accordance with law.
The District Judge pointed out that the Area.
Rationing Officer had ignored altogether rule 11 of the Rules framed under the Act which required that in the matter of allotment the principle 'first come first served ' should be followed.
The District Judge also negatived the contention of the first respondent that the appellant 's application was not main tainable since he was an unauthorised occupant.
The Court held that there was no provision in the Act which bars an unauthorised occupant from applying for an allotment.
In a wit petition filed by the first respondent the High Court quashed the order of the District Judge and restored the order made by the Area Rationing Officer.
Section 11 of the Act provides that no person shall let any building except in pursuance of an allotment order issued under section 16.
Section 13 provides that no person shall occupy a building or part thereof which a landlord or tenant has ceased to occupy except under an order of allotment made under section 16.
Under section 16 the District Magistrate is empowered to make an order requiring the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building to any person specified in the order.
An order under sec tion 16 is appealable under section 18.
In exercise of powers conferred by section 41 of the Act, the rules have been framed by the State Government.
Rule 10 prescribes the procedure for allotment.
It provides that the application should be entered in the register after classifying them according to the priority of the categories.
Rule 10 further provides that a building shall not.be allotted to a person who is deemed to have ceased to occupy a building for a period of two years from the date of such deemed cessation.
Rule 11 fixes order of priorities in allotment of residen tial buildings and it further provides that in each of the categories the principle 'first come first served ' shall be followed.
Al1owing the appeal, HELD: (1) The High Court in its judgment has not men tioned any provision in the Act which dissentitles unautho rised occupants from applying for allotment.
Rules 10(5) & (6) provide that certain persons should not ordinarily be allotted a promises; the appellant does not fall within those categories.
[131D E] 2.
The High Court infers the disability of an unautho rised occupant from applying for an allotment from the object of the Act.
The object of the Act has to be gathered from its provisions.
There is nothing in the Act which disentitles an unauthorised occupant from applying for an allotment.
[131H, 132A] 129


judgement:
vil Appeal No. 1948 of 1968 '.
Appeal from the Judgment and Order dated the 21st Sept., 1967 of the Mysore High Court in W.P. No. 1168/65.
S.V. Gupte with S.S. JavaIi and B. Dutta for the appellant.
N. Nettar and K.R. Nagaraja, for respondents.
166 The Judgment of the Court was delivered by KRISHNA IYER, J.
Two short legal issues both apparently devoid of merit were urged unsuccessfully before the High Court and repeated, with a somewhat similar fate, before us, ii we may anticipate our conclusion.
A Judgment of affirma tion may usefully be an abbreviation and so, we shall brief ly deal with Shri Gupta 's twin submissions on behalf of the appellant writ petitioner.
The appeal is by special leave and the subject matter is land compulsorily acquired under the City of Bangalore Improvement Act 1945 (for short the Improvement Act) (Mysore Act V of 1945).
A concise narration of the necessary facts may conven iently be compressed into a paragraph or two.
The appellant purchased two portions of section No. 211 within the District of Bangalore from two persons Giliteppa and Nanjappa during the pendency of land acquisition proceedings under the Improvement Act.
These proceedings were for acquisition of land in section No. 211 for making a lay out plan for a building colony.
This limited objective was completed after due formalities were complied with and thereafter the land was made over to the Housing Board whose statutory responsibili ty is to implement housing schemes.
We are told that houses have been built on the land already although there is some doubt as to whether 5 acres out of the total extent still remain vacant.
If the contentions of the appellant are sound the whole scheme will be shot down, a disaster a socially conscious court should try to avert unless com pelled by fundamental legal laws.
What, then, are the alleged vital weaknesses in the acquisition proceedings which vitiate them altogether ? Firstly, a technicality technically countered; and secondly, a compassionate consideration which has no invalidatory effect.
The appellant has urged before us that Section 16(2) of the Improvement Act has a mandatory requirement that service of notices shall be effected on "every person whose name appears in the . . in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on. . land which it is proposed to acquire in executing the scheme" . .
This perempto ry mandate has not been complied with and that is the first vital flaw pressed before us.
The second contention is based upon Section 15 (3 ) of the Improvement Act whereunder every improvement scheme "may provide for the construction of buildings for the accommodation of the poorer and working classes, including the whole or part of such classes to be displaced in the execution of the scheme." This provision, it is argued.
clothes the appellant, in his capacity as a displaced person with a right to allotment of land for construction of a building for his own residence.
We will presently consider these two submissions seriatim.
To make short work of the first point we may straightway state that the obligation under section 16(2) is to serve notices on persons whose names appear in the land revenue register as being primarily liable to pay the land revenue assessment.
The complaint made is that the predecessors of the appellant Giliteppa and Nanjappa were.
167 entitled to notice under this provision and 'that they had not been so given.
Of course, there is no affidavit from these two vendors of the appellant that they have not re ceived any notice.
Apart from that the burden is on the appellant to prove that his vendors were persons whose names were borne on the land revenue register.
This is a question of fact but the moot point debated before the High Court was what in law was the land revenue register.
Cer tainly notice has been given to Khatedars.
The return of the respondents states that "notified Khatedars were notified of the acquisition".
exhibit R I produced alongwith the return shows one Somayaji as the Khatedar, not the vendors of the appellant.
This disputed point was investi gated by the High Court with a thoroughness and intimate acquaintance with the local revenue laws which elicits our appreciation.
Considering the documentary evidence adduced and the authoritative revenue laws bearing on the subject and scanning the meaning of the entries in the extracts before Court, the learned Judges reached the conclusion that the Khatta produced by the appellant was "a mere tentative compilation of information transmitted to the Revenue De partment by the Inams Abolition Department" and not "Khetwar Patrak" which was the land revenue register within the meaning of section 16(2) of the Improvement Act.
The High Court concluded: "We are of the opinion 'that the land revenue register to which section 16(2) refers is no other than the register of lands the Khetwar Patrak, and, that register is not the Khatta which is something very different." Further, on, after full discussion the Court crystallized its conclusions thus: "Even though a person may be an occupant in the sense in which that word has to be understood, so long as it is not proved that his name appears in the land revenue register, at the material point of time, we should not pronounce against the validity of the acquisition or the publication of a declaration under section 18 on the slender foundation of insufficient material such as the certified copy of a tentative Khata which we have referred." Indeed, the appellant produced some wrong documents but the Court was too cute to be misled as is evident from its observation: "It emerges from the discussion so far made that that land revenue register is no other than the register of lands or the Khetwar Patrak which has to be maintained in form No. 1 which is set out in volume 2 of the Mysore Village Manual at page 8(a), and, we do not have before us either that register of lands or a certified copy of it and no exlplanation has been offered to us as to why the petitioner did not obtain a copy of that register or produce it." After hearing Shri Gupte at some length we are not disposed to be dislodged from the finding painstakingly recorded by the High Court.
The first point, therefore, fails.
168 The only other point seriously pressed before us by Shri Gupte is that under section 15(3) there is an obligation on the part of the Board of Trustees to provide a plot to the displaced appellant.
There is nothing in Section 15(3) of the Improvement Act which warrants.
such a compulsive duty or creates a right to claim a plot.
Of course, the Board may consider providing some land for the persons from whom acquisitions have been made.
This is a beneficient consideration, not a necessary obligation.
That this is so clear also from the rules for the allotment of sites.
Rule 10 settles the principle for selection of applicants for allotment of sites.
Rule 10(1) reads: "10.
Principles for selection of applicants for allotment of sites. (1) The Board shall consider the case of each applicant on its merits and shall have regard to the following principles in making selection and fixing the priority for allotment : (i) applicants whose lands or houses have been acquired by the Board provided they are otherwise qualified for allotment; (ii) the status of the applicant, that is, whether he is married or single and has dependent children; (iii) the income of the applicant and his capacity to purchase a site and build a house thereon for his residence; (iv) the number of years the applicant has been waiting for allotment of a site and the fact that he did not secure a site earlier though he is eligible and had applied for a site.
" The facts before us are that the lands acquired have already been transferred to the Housing Board and houses have al ready been built at least on a substantial part of the land.
All that we can say, at this stage, is that having regard to the compassionate factor that the appellant 's lands have been acquired and he has perhaps been displaced from the entirety of his building sites, it should be a fair gesture on the part of the Housing Board if there are vacant lands still avail able the order of stay granted by this Court is strongly suggestive of some land being still available as not built upon to consider 'the claim of the appellant, if he applies within three months from today for allotment of a site for a house, subject, of course, to his eligibility for allotment and other criteria for comparative evaluation of claims prescribed by the rules in this behalf.
It follows that beyond this is not for the Court to direct and less than this is not fair play to the appellant.
The High Court had gone into the question of delay disentitling the appellant in maintaining his writ petition.
In the view that we have already taken on the merits of the substantive points, we are not 169 called upon to consider the deadly effect of the delay such as there is between the dates of the acquisition notifica tion and the institution of the writ petition.
The appeal is dismissed but having consideration for the conspectus of circumstances present in this case we direct that the par ties will bear their own costs throughout.
P.H.P. Appeal dismissed.

summary:
The appellant purchased the land in question from Gili teppa and Nanjappa during the pendency of the land acquisi tion proceedings under the city of Bangalore Improvement Act 1945.
The acquisition was for building a house colony by the Housing Board whose statutory responsibility is to implement housing schemes.
The appellant challenged the acquisition before the High Court by filing a writ petition.
The High Court dismissed the writ petition.
In an appeal by special leave the appellant contended : 1.
There was non compliance with the mandatory requirement of section 16(2) of the Act which requires the service of notice on "every person whose name appears in the Land Revenue Register as being primarily liable to pay the property tax or land revenue".
Section 15(3) 'provides that the main scheme may provide for the construction of buildings for the proper and working classes including the whole or part of such classes to be displaced in the execution of this scheme.
The appellant whose land is acquired being displaced is entitled to allotment of land for construction of a building.
for his own residence.
Dismissing the appeal, HELD: (1) The High Court on evidence rightly held that in the revenue register the names of predecessors in title of Giliteppa and Nanjappa were shown and that he was given due notice.
The document produced by the appellant was not the revenue register as contemplated by section 16(2).
[167A C, F]: ' (2) Section 15(3) does not impose a compulsory duty or a right in appellant to Claim a plot.
It is clear from rule 10 made under the Act that the person displaced by the acquisition may be accomodated.
However, this is a benefi cient consideration and not a necessary obligation.
[168A C] [The Court observed that in case any land is available, and if the appellant fulfils the other criteria prescribed by the rules the respondent may consider his claim.]


judgement:
Appeal No. 2061/1971.
(From the Judgment and Order dated the 13th May, 1970 of the Allahabad High Court in Civil Misc.
Writ No. 1249 of 1970).
S.C. Manchanda and O.P. Rana, for the Appellant.
J. Ramamurthi, (amicus curiae) for Respondents.
The Judgment of the Court was delivered by 134 KHANNA, J.
This appeal on certificate is against the judgment of Allahabad High Court whereby the High Court accepted petition under article 226 of the Constitution of India filed by the respondent and quashed the recovery proceedings initiated by the appellant.
The respondent firm was assessed to sales tax under the U.P. Sales Tax Act, 1948 (hereinafter referred to as the Act) for the assessment year 1958 59.
The respondent went up in appeal and the tax demand was reduced in appeal.
On revision filed by the respondent the total demand of sales tax was further reduced.
The respondent made various payments towards the amount of tax found due from him.
The sales tax authorities initiated proceedings for ' recovering ' the balance of the tax and realising interest at the rate of 18 per cent from February 1, 1964 on part of the tax demand.
These recovery proceedings were challenged by the respondent by means of writ petition on the ground that a fresh notice of demand should have been issued to him in respect of the amount as reduced in appeal and revision.
Unless that was done, the respondent could not be treated as a default er.
The liability for payment of interest of the respond ent was also questioned.
The High Court accepted the first contention and quashed the recovery proceedings.
We have heard Mr. Manchanda on behalf of the appel lant.
No one appeared on behalf of the respondent.
Mr. Ramamurthi, however, argued the case amicus curiae.
After giving the matter our consideration, we are of the opinion that the judgment under ' appeal cannot be sustained.
Two questions arise for determination in this appeal.
The first question is whether the respondent is liable to pay interest on the amount due from him as sales tax.
The answer to this question, in our opinion, should be in the affirmative in view of the provisions of sub section (1A) of section 8 of the Act.
The aforesaid sub section as also sub section (1) and (8) of that section read as under: "8.
Payment and recovery of tax. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from the date of service of the notice of assessment and demand as may be specified in the notice.
In default of such payment, the ,,whole of the amount then remaining due shall become recoverable in accordance with sub section (8).
(1 A) If the tax payable under sub section (1) remains unpaid for six months after the expiry of the time specified in the notice of assessment and demand or, the commencement of the Uttar Pradesh Bikri Kar (Dwitiya Sanshodhan) Adhiniyam, 1963, whichever is later, then, without prejudice to any other liability or penalty which the de faulter may, in consequence of such non payment, incur under this Act, simple interest at the rate of eighteen per cent for annum shall run on the amount then remain 135 ing due from the date of expiry of the time specified in the said notice, or from the commencement of the said Adhiniyam, as the case may be, and shall be added to the amount of tax and be deemed for all purposes to be part of the tax: Provided that where as a result of appeal, revision or reference, or of any other order of a competent court or authority, the amount of tax is varied, the interest shall be recalculated accordingly.
Provided further that the interest on the excess amount of tax payable under an order of enhancement shall run from the date of such order if such excess remains unpaid for six months after the order . (8) Any tax or other dues payable to the State Government under tiffs Act, or any amount of money which a person is required to pay to the assessing authority under sub section (3) or for which he is personally liable to the assessing authority under sub section (6) shall be recoverable as arrears of land revenue.
" This Court considered the above provisions in the case of Haji Lal Mohd. Biri WOrks vs State of U.P.(1) and held that the liability to pay interest under section 8(1 A) is auto matic and arises by operation of law.
It was further ob served in that case that .it is not necessary for the sales tax officer to specify the amount of interest in the recov ery certificate.
We may add that there is no dispute in the present case that the notice of assessment and demand was served upon the assessee respondent.
The respondent cannot, therefore, escape liability for payment of interest.
The second question which arises for consideration is whether it was necessary for the sales tax authorities to issue a fresh notice of demand to the respondent after the tax assessed by the sales tax officer was reduced on appeal and further reduced on revision.
So far as this question is concerned, we find that sub section (9) has been added in section '8 of the Act by the U.P. Sales Tax (Amendment) Act (3 of 1971).
The aforesaid sub section reads as under: "(9) Notwithstanding anything contained in sub section (1) and (1 A) and notwithstanding any judgment, decree or order of any court, tribunal or other authority, where any notice of assessment and demand in respect of any tax or other dues under this Act is served upon a dealer by an assessing authority and an appeal, revision or other proceeding is filed in respect of such tax or dues, then (a) where as a result of such appeal, revision or proceeding the amount of such tax or other dues is enhanced, the assessing authority shall serve upon the dealer a fresh notice only in respect of the amount by which such tax or other dues are enhanced and any proceeding in relation (1) 32 S.T.C. 496.
136 to the amount specified in the notice already served upon him before the disposal of such appeal, revision or other proceeding may be continued from the stage at which it stood immediately before such disposal; (b) where as a result of such appeal, revision or other proceeding the amount of such tax or other dues is reduced, (i) it shall not be necessary for the assessing authority to serve upon the dealer a fresh notice; (ii) if any recovery proceedings are pending, the assessing authority shall give intimation of the fact of such reduction to the Collector who shall thereupon take steps for the recovery of only the reduced amount.; and (iii) any proceedings initiated on the basis of the notice or notices served upon the dealer before the disposal of such appeal, revision or other proceeding, including any recovery proceedings may be continued in relation to the amount so reduced from the stage at which it stood immediately before such disposal; (c) no fresh notice shall be necessary in any case where the amount of the tax or other dues is not varied as a result of such appeal, revision or other proceeding.
" It is apparent from clause (b) of sub section (9) that where as a result of appeal, revision or other proceedings the amount of the tax or other dues is reduced, it shall not be necessary for the assessing authority to serve upon the dealer a fresh notice.
The Allahabad High Court has also taken the same view in the case of Firm Parshuram Rameshwar Lal vs State of U.P.(3) In view of the above, we accept the appeal, set aside the judgment of the High Court and dismiss the writ petition filed by the respondent.
The parties in the circumstances shall bear their own costs throughout.
P.H.P. Appeal al lowed.

summary:
The respondent firm was assessed to sales tax under the Uttar Pradesh Sales Tax Act 1948 for the assessment year 1958 59.
On an appeal filed by the respondent the quantum of tax was reduced.
On a revision filed by the respondent made various payments towards the amount of tax found due from time to time. 'the Revenue initiated proceedings for recovering the balance of the tax and realising interest at the rate of 18 per cent.
The Revenue did not issue any fresh notice of demand after the tax was reduced but origi nally demand notice for the entire sum for which the re spondent was assessed was issued.
In a Writ Petition filed by the assessee the High Court quashed the recovery proceedings on the ground that a fresh notice of demand should have been issued to the respondent in respect of the amount as reduced in appeal and the revi sion.
Allowing the appeal by special leave, HELD: (1) Section 8 of the Act was amended by adding sub section (9) thereto by U.P. Sales Tax Amendment Act (3 of 1971).
The said sub section provides that notwithstand ing any judgment, decree etc.
where any notice of assessment and demand in respect of any tax or other dues is served upon a dealer by an Assessing Authority and where as a result of appeal or revision filed by the assessee the amount of tax is reduced it shall not be necessary for the Assessing Authority to serve upon the dealer a fresh notice.
The High Court judgment was, therefore, erroneous.
[135F, H, 136 A E] Firm Parshuram Rameshwar Lal vs State of U.P. 33, STC 540 approved.
(2) Section 8(1A) of the Act provides for payment of interest at the rate of 18 per cent on the tax amount re maining due from the expiry of the time specified in the notice of demand, till the.
date of payment.
The court in Haji Lal Mohammad vs State of U.P. has held that the li ability to pay the interest under section 8(IA) is automatic and arises by operation of law and that it is not necessary to mention the amount of interest in the recovery certifi cate.
[134 E H, 135 A E] Haji Lal Mohd. Biri Works vs State of U.P., 32 STC 496 followed.


judgement:
: Criminal Appeal No. 411 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 22nd April, 1975 of the Delhi High Court in Crimi nal Revision No. 258 of 1974.
Frank Anthony and D. Gobrudhan for the Appellant.
R.N. Sachthey `(Not present) for Respondent No. 1.
G.S. Vohra, S.K. Gambhir and K.L. Taneja for Respondent No. 2.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal of Smt.
Parmeshwari Devi, by special leave, arises from the judgment of the Delhi High Court dated April 22, 1975 dismissing her application for revision of the order of the Additional Sessions Judge of Delhi dated August 29, 1974, confirming the order of a Metropolitan Magistrate of Delhi dated August 8, 1974.
The facts giving rise to the appeal are quite simple and may be shortly stated.
A complaint was filed by respondent N.L. Gupta on behalf of Smt.
Patashi Devi for the commission of offences under sections 181, 182, 193, 197, 199, 200, 465, 466 and 471 of the Indian Penal Code by Nand Kishore, Ghanshyam Das and Sanwar Mal.
It was alleged that Smt.
Patashi Devi had one fifth share in the firm of M/s Gupta Electric and Machinery.
Stores of which Smt.
Parmeshwari Devi (the present appellant), Smt.
Dropadi Devi and Madan Lal Gupta were the other partners.
According to the complaint, the business of the firm was mainly looked after by Smt.
Parmeshwari Devi 's husband Mohan Lal and accused No. 1 who was here brother.
Patashi Devi and two other partners "retired" from the business on April 1, 1968 without settling the accounts.
Patashi Devi asked Mohan Lal and accused No. 1 who was her brother Smt.
Patashi settling accounts.
Accused No. 2 filed an attested copy of a deed of dissolution, alleged to be signed by Smt.
Patashi Devi, in the office of the Registrar of Firms on November 14, 1968, along with an intimation of the dissolution of the firm which also purported to be signed by her.
The complainant filed an application under section 94 of the Code of Criminal Procedure, 1898, hereinafter. referred to as the Code, for a direction to the accused to file the original deed of dissolution.
The accused however stated in the court that they were employees of the firm and the document was not in their possession.
The complainant then made another application on .March.
28, 1974 under section 94 with a prayer that Smt.
Parmeshwan Devi may be directed to produce the document.
The court made an order on March 28, 1974 summoning Smt.
Parmeshwan Devi, with the document.
She stated in her reply that she did not know anything about the document and that after her husband 's death the com plainant had taken away all the records of the firm.
She stated further that she was a 'Pardanashin ' 12 1458SCI/76 162 lady living in Calcutta and need not be summoned in the court.
The Metropolitan Magistrate thereupon made order dated August 8, 1974 as follows, "In my view when a person is summoned to attend the Court it is desirable that such summoned person attends and made statement on oath that he is not in the possession of the documents summoned, so that the court may take further steps to secure the production of the documents as envisaged u/s 96 Cr.
P.C. Merely sending a reply through an Advt.
that the document is not in his possession is not sufficient compliance of the order.
The request of the Ld. counsel for Parmeshwari Devi that a commission may be issued for recording the statement of Smt.
Parmeshwari Devi cannot be granted as the case is already getting old and issuance of a commission would mean undesirable delay of the case.
The counsel for Smt.
Parmeshwari Devi Shri C.L. Mala is now requested to intimate Smt.
Parmeshwari Devi forthwith to attend this court and produce the document if in her possession on 30th August, 1974.
The Ld. counsel for Parmeshwari Devi has also stated that Smt.
Parmeshwari Devi is prepared to file an affidavit even to say that she is not in the possession of the documents summoned but in my view this also does not serve the purpose as calling of Smt.
Parmeshwari Devi in the court and recording her statement on an oath will give a chance to the court to put her a few questions for satisfying itself regarding the whereabouts of the document in question.
" As has been stated, Smt.
Parmeshwari Devi 's applications for revision of this order have been dismissed by the Additional Sessions Judge and the High Court and this is how she has come in appeal to this Court.
It will be recalled that it was the complainant who made an application under section 94 of the Code stating that as the deed of dissolution of the partnership was essential for the trial of the case, Smt.
Parmeshwari Devi may be directed to produce it.
Parmeshwari Devi was not a party to the case, and no reason whatsoever was given in the application why the document was likely to be in her possession or power beyond stating that the accused had stated in their reply the earlier application under section 94 that they were employees of the firm and were not in possession of the document, and she was the widow of the late Mohan Lal Gupta.
The Magistrate therefore "summoned" her "with the document" by his order dated March 28, 1974 which is not, however, the subject matter of controversy before us.
The question is whether the subsequent order of the Magistrate dated August 8, 1974 is according to law by which Smt.
Parmeshwari Devi has been directed to attend the court so that if she made a "statement on oath" that she is not in possession of the document, the court may get a chance to "put her a few questions for satisfying itself regarding the whereabouts of the documents ? 163 Chapter VII of the Code deals, inter alia, with process to compel the production of documents.
Sub section (1 ) of section 94, which deals with summons to produce any docu ment, merely authorises the court to issue a summons to the person in whose possession or power such document is be lieved to be, requiring him to "attend and produce it, or to produce, it, at the time and place stated in the summons." According to sub section (2) a person required under the section merely to produce a document shall be deemed to have complied with the requisition if he "causes such document . to be produced instead of attending person ally to produce the same".
There is nothing in the chapter to provide that the person who appears in the court, in pursuance of its summons under sub section (1) of section 94, thereby becomes a witness and can be examined and cross examined by the court although he has not been cited as a witness in the proceedings.
Even if a person produces the document for which a summons has been issued to him, section 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that he produces it, and he cannot be cross examined unless and .until he is called as a witness.
So when Smt.
Parmesh wari Devi filed a reply to the application of the complain ant under section 94 of the Code stating that she did not know anything about the deed of dissolution and it was not in her possession, the utmost that the Magistrate could do was to issue a search warrant under sub section (1 ) of section 96 if he had reason to believe that she will not or would not produce the document as required by the summons.
It was also permissible for the Magistrate to order a search of Smt.
Parmeshwari Devi 's house under section 98 of the COde if it appeared to him that the requirements of that section had been fulfilled.
But there is no provision in the Code under which the court could record her statement on oath, on her inability to produce the document, or "put her a few questions for satisfying itself regarding the where abouts of the document.
" In the facts and circumstances of the case, no further action is in fact called for against the appellant.
The Additional Sessions Judge and the High Court went wrong in taking a contrary view.
It has been argued that the order of the Magistrate dated August 8, 1974 was an interlocutory order and the power of revision conferred by sub section (1) of section 397 of the Code of Criminal Procedure, 1974, could not be exercised in relation to it by virtue of sub section (2).
The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the prelimi nary stages of an enquiry or trial.
The purpose of sub section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay.
This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it.
But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adverse ly affects his rights.
164 A somewhat similar argument came up for consideration before this Court in Mohan Lal Magan Lal Thacker vs State of Gujarat(1).
The controversy there centred round the meaning of article 134(1) (c) of the Constitution and the Court examined the meaning of the words "final" and "interlocuto ry".
It was held that the meaning "had to be considered separately in relation to the particular purpose for which it is required" to be interpreted.
No single test can be applied ' to determine whether an order is final or interloc utory.
Then it has been held by this Court in that case as follows ' "An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals.".
It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.
As has been shown, the order of the Magistrate dated August 8, 1974 was not according to law and it adversely affected the appellant, who was not a party to the enquiry or trial, as it was solely directed against her.
As is obvious, she could have no opportunity to challenge it after the making of the final order, and such a belated challenge would have been purposeless for it would have given her no relief.
So in so far as the appellant is concerned, the order of the Magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of sub section (2) of section 397 against it.
We have gone through Dhola and others vs State(2) and The Central Bank of India Ltd. vs Gokal Chand(3) cited by Mr. Vohra.
Dhota 's case related to the grant of ball, and Gokal Chand 's case related to a right of appeal under sec tion 38(1) of the Delhi Rent Control Act against an order made inter partes.
They cannot therefore avail the respond ent in this case.
For the foregoing reasons, the appeal is allowed and the impugned orders of the High Court dated April 22, 1975 and of the Metropolitan Magistrate dated August 8, 1974 are set aside.
V.P.S. Appeal al lowed.
(1) ; (2) (1975) Crl.
L.J. (1) 1274.

summary:
Section 94(1), Cr. P.C., 1898, which deals with summons to produce any document, authorises the court to issue a sum mons to the person in whose, possession or power such docu ment is believed to be, requiring him to attend and produce it.
or to produce it at the time and place stated in the summons.
According to sub s.(2) a person required merely to produce a document shall be deemed to have complied with the requisition if he causes such document to be produced in stead of attending personally to produce it.
In the present case, during a criminal trial, the complain ant flied art application under section 94, for a direction to the accused to produce a document.
The accused stated that the document was not in their possession.
The complainant then made another application under the section praying that the appellant may be directed to produce the document.
The appellant was not a party to the case and no reason .whatso ever was given by the complainant in the application why the document was likely to be in appellant 's possession or power.
The Magistrate then passed an order summoning the appellant with the document.
The appellant, in her reply, professed ignorance of the document and stated that as she was a "pardanashin" lady she may not be sumoned to court.
The Magistrate thereupon passed another order directing her to attend the Court so that if she made a 'statement on oath ' that she was not in possession of the document, the Court may get a chance to put her a few questions for satis fying itself regarding the whereabouts of the document.
The appellant 's revision petitions against the order to the District Court and High Court were dismissed.
Allowing the appeal to this Court, HELD: (1) There is nothing in the Criminal.
Procedure Code providing that the person who appears in Court, in pursuance of a summons under section 94(1), becomes a witness and can be examined and cross examined even though he has not been cited as a witness.
Section 139, Evidence Act, also pro vides that if a person produces the document for which a summons has been issued to him, he does not thereby become a witness and that he cannot be cross examined until he is called as a witness.
All that the Magistrate could do was to issue search warrants under section 96(1) or section 98 if the, requirements of those sections were satisfied.
The Court could not therefore record the appellant 's statement on oath on her inability to produce the document, or put her a few questions for satisfying itself regarding its whereabouts.
[163C E] (2) The order, which was thus not according to law adversely affected the appellant who was not a party to the enquiry or trial.
Obviously she could have no opportunity to challenge it at the end of the trial, and such belated challenge would also be purposeless.
Therefore, the order could not be said to be an interlocutory order and the revisional courts erred in raising the bar of section 397(3), Cr.
P.C. 1974.
[164C D] Mohan Lal Magan Lal Thacker vs State of Gujarat ; , followed.