judgement:
ION: Civil Appeal No. 1574 of 1980.
Appeal by Special leave from the Judgment and Order dated the 27.7.1979 of the Allahahad High Court in C.M.W. No. Nil of 1979.
Anil Dev Singh, S.L. Aneja and K.L. Taneja for the Appellant.
M.C. Manchanda, Mrs. Shobha Dikshit and Pramod Swarup for the Respondent.
His attempts to get the said decree executed were stalled sometimes by objections filed by the tenant appellant and sometimes by amendments made 745 in the law with the result that even after 13 years of litigation the landlord respondent was not able to get possession of the premises.
This was because of a statutory amendment which made the decree obtained by him inexecutable and was, therefore, Lying dormant and ineffective.
The legislature having realised the hardship of such landlords came to their rescue by an amendment in 1976 to the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short, to be referred to as the '1972 Act ') which was expressly given retrospective operation so as to revive the decrees which had become inexecutable.
When the appeal was heard and the arguments were concluded the respondents had made a good gesture in agreeing to allow the tenant two years ' time to vacate the premises on giving the usual undertaking and accordingly we adjourned the case to enable the parties to come to a settlement.
However, we were informed by counsel for the parties that no settlement could be reached; hence we have now to decide the case on merits.
And now to the facts of the case.
The respondent landlord filed a suit for ejectment in the year 1971 and obtained a decree for ejectment against the appellant tenant.
By virtue of the provisions of 1972 Act, the case was transferred to the court of the Judge, Small Causes who tried the case and passed a decree in favour of the respondent on 4.4.1973.
It may be noted that the tenant did not object to the jurisdiction nor did he prefer and appeal or revision against the said judgment dated 4.4.73 and the same became final.
Thereafter, the decree holders filed an execution petition being Execution Case No. 4 of 1973.
The appellant, however, raised a jurisdictional objection on the basis of a judgment of the Allahabad High Court reported in 1975 A.L.R. 360 that the transfer of a suit before conferment.
Of jurisdiction to the Judge, Small Causes Court was not competent and, therefore, the decree was not executable.
Counsel for the respondents under some misconception conceded that the suit would have to be tried all over again and the Execution Case was, therefore, disposed of by an order dated 31.1.1976 passed by the Executing Court.
The Court held that the decree was without jurisdiction.
The respondents, however, took the stand that a concession on a point of law was not binding on him nor was his Advocate authorised to make such a concession.
However, the decree 746 remained inexecutable but by virtue of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Amendment) Act, 1976 (hereinafter referred to as the '1976 Amendment Act '), section 9 of the 1972 Act was made applicable with retrospective effect to remove the injustice and remedy the mischief which had been caused to the decree holders.
The relevant portion of the said amendment may be extracted thus: "26.
Transitory Provision XX XX XX (6) The provision of section 9 of the Uttar Pradesh Civil Laws Amendment Act, 1972 shall apply and shall be deemed always to have applied in relation to suits of the nature referred to therein which before the commencement of that Act had been transferred to a competent court and were pending immediately before the date of commencement of that Act in such transferee court as they apply in relation to suits which were pending in the court in which they were instituted: Provided that any such suit decided by the transferee court between the commencement of the said Act and the commencement of this Act on the assumption that the said Section 9 did not apply to such suits shall be deemed to have been validly decided as if the said section did not apply to such suits.
" As a result of the amendment extracted above, the judgment of the Allahabad High Court reported in 1975 A.L.R. 360 stood overruled and effaced.
In view of this amendment, the respondents filed an application before the Executing Court for revival of the suit and the decree which was accepted by the court and a civil revision filed against the said order was dismissed by the High Court; hence this appeal by special leave in this Court.
In order to understand the implication of the 1976 Amendment Act, it may be necessary to peruse section 26(5) of the said Amendment, which is extracted thus: 747 "(5) Notwithstanding any judgment, decree or order of any court or authority, the provisions of Rule 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 shall be deemed to have been made under the provisions of the principal Act as amended by this Act as if this Act were in force on all material dates.
" A close analysis of the above reveals that the intention of the legislature was to remove the injustice done to the landlords whose decrees became inexecutable.
The logical consequence which flows from an interpretation of clauses (5) and (6) of section 26 of the 1976 Amendment Act would be that all decrees which hitherto had been Lying dormant would revive and the landlord could get the decree executed.
The Executing Court as also the High Court upheld the contention of the respondents and directed execution of the decree.
The sheet anchor of the arguments of the counsel for the appellant was that in view of the Allahabad High Court decision (supra) and the 1972 Act, the decree stood set aside and could not be revived or made executable even by the 1976 Amendment Act.
It is, however, impossible for us to accept this contention because the dominant purpose of the 1976 Amendment Act was to remedy the injustice done to the landlords by the 1972 Act.
Another flaw in the argument of the counsel for the appellant is that it presumes that the decree became completely without jurisdiction and stood set aside.
That, however, could not be the position in law.
Even if the 1972 Act were to apply, the utmost consequence would be that the decree would remain inexecutable but could not be struck off from the records of the case.
This is a clear case where the doctrine of eclipse would apply and in view of the 1976 Amendment Act, the decree will revive and become executable.
This principle has been applied by this Court in several cases and flows from the well known doctrine of eclipse which has been enunciated not only in India but in other countries also.
In Sutherland Statutory Construction by Horack (Vol.
I, 3rd Edn.), the following passages may be noted: "In a majority of the jurisdictions the courts recognise 748 the mistake of the legislature and try to determine and give effect to its intent.
If the legislature has expressed its purpose intelligibly in the amendatory act and provided fully upon the subject considered, a majority of courts hold that it is a reasonable conclusion that the legislature did not intend to make the enforcement of the statute contingent on the continued existence of the repealed statute. (p. 329) The unconstitutional act physically exists in the official statutes of the state and is there available for reference, and as it is only unenforceable, the purported amendment is given effect.
If the law as amended is constitutional, it will be enforced." (p. 335) It is true that the American Constitution as also the American courts have been most reluctant to apply the doctrine of eclipse but this Court has pointed out in more than one case that the American view cannot be applied to our Constitution.
The matter first came up for consideration before this Court in Bhikaji Narain Dhakras & Ors.
vs State of Madhya Pradesh & Anr.
where in a similar situation the doctrine of eclipse was fully applied and the court observed thus: "The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right.
The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or infirmity.
Such laws were not dead for all purposes.
They existed for the purposes of pre Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens.
In our judgment, after the amendment, of clause (6) of Article 19 on the 18th June 1951, the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens.
But after the amendment of clause (6) the impugned Act immediately became fully operative even as against the citizens." In Deep Chand vs State of U.P. & Ors.
similar observations 749 were made by this Court which may be extracted thus: "As, however, our learned Brother has thought fit to embark upon a discussion of these questions, we desire to guard ourselves against being understood as accepting or acquiescing in the conclusion that the doctrine of eclipse cannot apply to any post Constitution law.
A post Constitution law may infringe, either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non citizen.
In the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite a effective as regards non citizens.
In such a case, the fundamental right will, qua the citizens, throw a shadow on the law which will nevertheless be on the Statute Book as a valid law binding on non citizens and if the shadow is removed by a constitutional amendment, the law will immediately be applicable even to the citizens without being re enacted.
In other words, the doctrine of eclipse as explained by this Court in Bhikaji Narain Dhakras vs The State of Madhya Pradesh ; also applies to a post Constitution law of this kind.
A pre Constitution law, stating in the words of Das, J., as he then was, exists notwithstanding that it does not exist with respect to the future exercise of the fundamental rights.
That principle has been extended in this decision, by invoking the doctrine of eclipse.
As the law existed on the statute book to support pre Constitution acts, the Court held.
that the said law was eclipsed for the time being by one or other of the fundamental rights and when the shadow was removed by the amendment of the Constitution, the impugned Act became free from all blemish or infirmity." (Emphasis ours) In Mahendra Lal Jaini vs The State of Uttar Pradesh & Ors.
this Court held as follows: "The pre Constitution laws which were perfectly valid when they were passed and the existence of which is recognised in the opening words of article 13(1) revive by the removal of the inconsistency in question.
This in effect is 750 the doctrine of eclipse, which, if we may say so with respect, was applied in Bhikaji Narain 's case So far as pre Constitution laws are concerned, the amendment of the Constitution which removes the inconsistency will result in the revival of such laws by virtue of the doctrine of eclipse, as laid down in Bhikaji Narain 's case, for the pre existing laws were not still born and would still exist though eclipsed on account of the inconsistency to govern pre existing matters." (Emphasis supplied) In two recent decisions, this Court has applied the doctrine of eclipse in similar situations.
In section Anbalagan vs B. Devarajan the following observations were made: "Unless the practice of the caste makes it necessary no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him.
The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion.
If it disappears, it disappears only to reappear on reconversion." (Emphasis ours) Similarly, in the case of Kailash Sonkar vs Smt.
Maya Devi, to which one of us (Fazal Ali, J.) was a party, this Court made the following observation: "In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her life time the person is reconverted to the original religion the eclipse disappears and the caste automatically revives." Thus, applying the rule of law laid down by this Court, there would be no difficulty in upholding the judgments of the courts below in this particular appeal.
By virtue of the 1972 Act, the decree could not have been set aside or invalidated and the only consequence which would ensue is that the decree would be lying dormant and could not be executed.
Once the bar placed by the 1972 Act is 751 removed, by virtue of the doctrine of eclipse the decree will revive and become at once operative and executable.
The courts below have rightly decided that after the 1976 Amendment Act the decree became legally executable.
Some other arguments were also advanced on behalf of the appellant but in view of the express language of the 1976.
Amendment Act and the doctrine of eclipse, they seem to be futile.
For the reasons given above, we uphold the decree for ejectment passed by the courts below against the appellant and dismiss the appeal with costs.
As the litigation has taken more than a decade, it is not possible for us to give any time to the tenant for a vacating the premises and the decree may now be executed forthwith and the landlord put into possession.
N.V.K. Appeal dismissed.

summary:
The respondent landlord filed a suit for ejectment in the year 1971 and obtained a decree for ejectment against the appellant tenant.
By virtue of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the case was transferred to the court of the Judge, Small Causes, who tried the case and passed a decree in favour of the respondent.
No appeal or revision was filed against the said judgment.
Thereafter, the decree holders filed an execution petition.
The appellant, raised a jurisdictional objection on the basis of the judgment of the Allahabad High Court, (K.K. Saksena vs S.N. Misra to the effect that the transfer of the suit before conferment of the jurisdiction to the Judge, Small Causes Court was not competent and therefore, the decree was not executable.
The respondent 's counsel contended that the suit would have to be tried all over again and the Court held that the decree was without jurisdiction.
Tho decree remained inexecutable, but by virtue of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 section 9 of the 1972 Act was made applicable with retrospective effect to remove The injustice and remedy the mischief which had been caused to the decree holders.
As a result of the amendment, the aforesaid judgment of the Allahabad High Court stood over ruled and effaced.
In view of the aforesaid amendment, the respondents filed an application before the Executing Court for revival of the suit and the decree, which was accepted by the Court, and a Civil Revision filed against the said order was dismissed by the High Court.
744 In the appeal to this Court, it was contended on behalf of the appellant, that in view of the Allahabad High Court decision and the 1972 Act, the decree stood set aside and could not be received or made executable even by the 1976 Amendment Act.
Dismissing the appeal, ^ HELD: 1.
The courts below have rightly decided that after the 1976 Amendment Act the decree became legally executable.
[747A] 2.
By virtue of the 1972 Act the decree could not have been set aside or invalidated and the only consequence which would ensue is that the decree would be lying dormant and could not be executed.
Once the bar placed by the 1972 Act is removed, by virtue of the doctrine of eclipse the decree will revive and become at once operative and executable.
[750H; 751A] 3 Even if the 1972 Act were to apply, the utmost consequence would be that the decree would remain inexecutable but could not be struck off from the records of the case.
This is clear case where the doctrine of eclipse would apply, and in view of the 1976 Amendment Act, the decree will revive and become executable.
This principle has been applied by this Court in several cases and flows from the well known doctrine of eclipse which has been enunciated not only in India but in other countries also.
[747G H] Bhikaji Narain Dhakras & Ors.
vs Stats of Madhya Pradesh & Anr; ; , Deep Chand vs State of U.P of Uttar Pradesh & Ors; [1963] 1 Supp.
SCR 912, section Anbalagan vs B. Devarajan; , Kailash Sonkar vs Smt.
Maya Devi; , referred to.


judgement:
N: Criminal Appeal No. 611 of 1982.
From the Judgment and order dated the 5th November, 1982 of the Allahabad High Court in Criminal Contempt Case No. 144/81.
N.N. Sharma, Mrs. Pankaj Verma & Mrs. Vijay Gupta for the Appellant.
Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by 835 THAKKAR, J.
We are sorry to say we cannot subscribe to the 'slap say sorry and forget ' school of thought in administration of contempt jurisprudence, Saying 'sorry ' does not make the slapper poorer.
Nor does the cheek which has taken the slap smart less upon the said hypocritical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction.
An Advocate whose client had been convicted by the learned Special Judge, Dehradun, was required to appear before the learned Judge to make his submissions on the question of 'sentence ' to be imposed on the accused upon his being found guilty of an offence under Section 5(2) of the Prevention of Corruption Act by the Court The learned Advocate appeared in a shirt and trouser outfit in disregard of the rule requiring him to appear only in Court attire when appearing in his professional capacity, The learned Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity.
The learned Advocate apparently took umbrage and left the Court.
Some other Advocate appeared on behalf of accused who had been found guilty of a charge of corruption.
The learned Judge imposed a sentence of 4 years ' R.I. which may have been considered to be on the high side.
The matter in that case could have been carried to the High Court by way of an appeal, both, on the question of conviction as also, on the question of sentence.
But so far as the Court of the Special Judge was concerned, as the judgment had been pronounced and nothing more remained to be done by that Court, the matter should have rested there.
The appellant, a senior Advocate of long standing (not an immature inexperienced junior), however made a written application to the learned Special Judge couched in scurrilous.
language making the imputation that the Judge was a "corrupt Judge" and adding that he was " contaminating the seat of justice".
A threat was also held out that a complaint was being lodged to higher authorities that he was corrupt and did not deserve to be retained in service.
The offending portion may better be quoted: "I am making a complaint against you to the highest authorities in the country, that you are corrupt and do not deserve to be retained in service.
The earlier people like you are bundled out the better for us all.
As for quantum of sentence, I will never bow down before you.
You may award the maximum sentence.
Any 836 way, you should feel ashamed of yourself that you are contaminating the seat of justice " There is no known provision for making such an application after a matter is disposed of by a Judge.
Nor was any legal purpose to be served by making such an application.
Obviously application was made to terrorize and harass the Judge for imposing a sentence which perhaps be considered to be on the high side whether or not it was really so was for the higher Court to decide.
As pointed out earlier, it was however not permissible to adopt a course of intimidation in order to frighten the Judge.
His malicious purpose in making the application is established by another tell tale circumstance by forwarding copy of this application, without any occasion or need for it, to several authorities and dignitaries.
Administrative Judge, Allahabad for favour of requisitioning case file S.T. No. 2 from Dehradun and scanning through the fasts.
Chief Secretary, Uttar Pradesh Government Lucknow.
Director, Vigilance Commission, U.P., Lucknow.
Prime Minister, Secretariat, Delhi.
State Counsel, Shri Pooran Singh, Court of Shri V.K. Agarwal, Dehradun.
Shri D. Vira, I.C.S., Chairman, Indian Police Commission, Delhi.
President, Bar Association, Dehradun 8.
The Hon 'ble Chief Justice of Bharat.
The High Court of Allahabad initiated contempt proceedings, found the appellant guilty of having committed criminal contempt under Section 2(c)(1) of the , after affording him full opportunity of hearing and imposed a sentence of S.I for 1 week and a fine of Rs. 500/ (in default to undergo a further term of S.I. for 1 week).
Hence this appeal.
Before the High Court the appellant sought to justify his conduct on the ground of the treatment alleged to have been meted 837 out to him by the learned Judge.
No remorse was felt.
No sorrow was expressed.
No apology was offered.
Only when the appellant approached this Court he expressed his sorrow before this Court saying that he had lost his mental balance.
Upon finding that this Court was reluctant to hear him even on the question of sentence, as he had not even tendered his apology to the learned Judge who was scandalized, he prayed for three weeks ' time to give him an opportunity to do so.
His request was granted.
He appeared before the learned Judge and tendered a written apology wherein he stated that he was doing so "as directed by the Hon 'ble Supreme Court.
" This circumstance in a way shows that it was a 'paper ' apology and the expression of sorrow came from his pen, not from his heart.
For, it is one thing to "say" sorry it is another to "feel" sorry.
It is in this context that we have been obliged to make the opening remarks at the commencement of this judgment.
We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished.
Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing.
If such an apology were to be accepted, as a rule, and not as an exception, it would in virtually be tantamount to issuing a 'licence ' to scandalize courts and commit contempt of court with impunity.
It will be rather difficult to persuade members of the Bar, who care for their self respect, to join the judiciary if they are expected to pay such a price for it.
And no sitting Judge will feel free to decide any matter as per the dictates of his conscience on account of the fear of being scandalized and persecuted by an Advocate who does not mind making reckless allegations if the Judge goes against his wishes.
If this situation were to be countenanced, advocates who can cow down the Judges, make them fall in line with their wishes, by threats of character assassination and persecution, will be preferred by the litigants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of Courts.
No Judge can take a decision which does not displease one side or the other.
By the very nature of his work he has to decide matters against one or other of the parties.
If the fact that he 838 renders a decision which is resented to by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution line has therefore to be drawn somewhere, some day, by some one.
That is why the Court is impelled to act (rather than merely sermonize), much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and with circumspection.
We do not think that we can adopt an attitude of unmerited leniency at the cost of principle and at the expense of the Judge who has been scandalized.
We are fully aware that it is not very difficult to show magnanimity when some one else is the victim rather than when oneself is the victim.
To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the nail studded path of duty.
Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty.
We, therefore, cannot take a lenient or indulgent view of this matter.
the day must be dreaded when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace on him with impunity, if any of his orders, or the decision rendered by him, displeases any of the Advocates appearing in the matter.
We firmly believe that considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that we do not allow the appellant to escape with impunity on the mere tendering of an apology which in any case does not wipe out the mischief.
We are of the opinion that the High Court was therefore justified in imposing a substantive sentence.
And the sentence imposed cannot be said to be excessive or out of proportion.
Appeal is accordingly dismissed.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was a senior.
advocate.
He was required to appear before the Special Judge to make his submission on the question of sentence to be imposed upon his client who was convicted for an offence under s.5(2) of the Prevention of Corruption Act, 1947.
As he appeared in a shirt and trouser outfit and not in Court attire, the Judge asked him to appear in the prescribed formal attire for being heard in his professional capacity.
The appellant took umbrage and left the Court.
Some other advocate appeared in the matter and the accused having being found guilty of the charge of corruption the Judge imposed a sentence of four years R.I.
The appellant made a written application to the Judge couched in scurrilous language making the imputation that the Judge was a 'corrupt Judge ' and added that he was 'contaminating the seat of justice '; and forwarded copies of the application, without occasion or need to the Administrative Judge, Chief Secretary and other authorities.
The High Court initiated contempt proceedings, found the appellant guilty of having committed criminal contempt under section 2(c)(1) of the and after affording full opportunity of hearing, imposed a sentence of simple imprisonment for one week and a fine of Rs. 500.
Dismissing the Appeal, ^ HELD: 1.
Considerations regarding maintenance of the independence of the judiciary and the morale of the Judges demand that the appellant should not escape with impunity on the mere tendering of an apology which in any case.
does not wipe out the mischief.
If such a apology were to be accepted, as a rule, and not as an exception, it would virtually be tantamount to issuing a 'licence ' to scandalize courts and commit contempt of court with impunity.
The High Court was justified in imposing a substantive sentence and the said sentence cannot be said to be excessive or out of proportion.[838E; 837E, 838F] 834 No Judge can take a decision which does not displease one side or the other.
By the very nature of his work he has to decide matters against one or other of the parties.
If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such a risk, it will sound the death knell of the institution.
The day must be dreaded when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disagree on him with impunity, if any of his orders, or the decision rendered by him displeases any of the Advocates appearing in the matter.
A line has therefore to be drawn some where, some day, by some one.
That is why the Court is impelled to act (rather than merely sermonise) much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and 'with circumspection.
[837H; 838A B] 2.
An attitude of unmerited leniency cannot be adopted at the cost of principle and at the expense of the Judge who has been scandalized.
To pursue a populist line of showing indulgence is not very difficult in fact it is more difficult to resist the temptation to do so rather than to adhere to the mail studded path of duty.
Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty.
[338C] In the instant case, the appellant sought to justify his conduct before the High Court on the ground of the treatment alleged to have been meted out to him by the Special Judge.
No remorse was felt.
No sorrow was expressed.
No apology was offered: He expressed his sorrow only before this Court, saying that he had lost his mental balance, and was granted an opportunity to tender an apology.
He appeared before the Special Judge and tendered a written apology indicating that he was doing so: "as directed by the Hon 'ble Supreme Court.
" This circumstance shows it was a 'paper ' apology, and that the expression of sorrow came from his pen, not from his heart.
It is one thing to "say" sorry it is another to "feel" sorry.
This Court cannot subscribe to the 'slap say sorry and forget ' school of thought in administration of contempt jurisdiction.
[886H; 837A C]


judgement:
Civil Appeal No. 2828 of 1977.
Appeal by Special leave from the Judgment and order dated the 7th September, 1976 of the Punjab & Haryana High Court in Letters Patent Appeal No. 352 of 1975.
Jawahar Lal Gupta, Janendralal and B.R. Agarwala for the Appellant.
Randhir Jain for the Respondent.
The Judgment of the Court Was delivered by VARADARAJAN, J.
This appeal by special leave is by Punjab University against the Judgment of a Full Bench of the Punjab and Haryana High Court in the Letters Patent Appeal 352 of 1975 confirming the judgment of a learned Single Judge in W.P. 1017 of 1975.
Subash Chander, respondent 1 in this appeal, joined the Daya Nand Medical College, Ludhiana, for the M.B.B.S. course in 1965 when Regulation 25 of the Punjab University was in force.
That regulation required a minimum of 50 per cent of marks to pass in each subject.
However Rule 7.1 relating to the M.B.B.S, and certain other courses provided that "a candidate who fails in one or more papers/subjects and/or aggregate may be given grace marks up to 1 per cent of the total aggregate marks (including marks for practical and internal assessment) to his best advantage in order to be declared to have passed the examination.
" But in May 1970 an amendment was made by the University in the form of an exception to Rule 2.1 which corresponds to Rule 7.1 which was in force in 1965 in the following terms "2.1 A candidate who appears in all subjects of the examination and who fails in one or more subjects (writ ten, practical, sessional or viva voce and/or aggregate (if there is a separate requirement of passing in the aggregate) shall be given grace marks upto 1% of the total aggregate marks (excluding marks for internal assessment) to make 825 up for the deficiency if by such addition the candidate can pass the examination.
While awarding grace marks fraction working to 1/2 or more will be rounded to whole.
" Exception In the case of M.B.B.S. and B.D.S. examinations, however, the grace marks shall be given up to one per cent of the total of each subject and not upto one percent of aggregate of all the subjects.
In other words, each subject will be, for this purpose, a separate unit, and a candidate who fails in a subject by not more than one per cent of the aggregate marks of that subject may be given the required number of marks in order to pass in that subject.
" Subash Chander, respondent 1, appeared for the final M.B.B.S. examination in 1974 and secured the following marks and remarks: Medicine 202 out of 400 p. Surgery 225 out of 400 p. Eye and ENT 204 out 400 p. Midwifery: (i) Theory 95 out of 200) (ii) Practical 106 out of 200) Reappear According to Regulation 25 read with Rule 7.1 which was in force when Subash Chander joined the course in 1965, he would be eligible for grace marks at 1 per cent of the aggregate marks of 1600 for all the above four subjects, which will be 16, and he would have passed in Midwifery also.
But he was given only 1 per cent of the total marks of 400 for Midwifery as per the amended Regulation 25 read with Rule 2.1 of the Punjab University Calendar, 1974, namely four as grace marks and held to have failed in Midwifery as the total of 95 marks which he actually secured and the 4 grace marks in the theory in that subject fell short of 50 per cent by 1 mark.
His contention is that the old Regulation 25 read with the old Rule 7.1 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to have passed the final examination in full including Midwifery.
826 Before the High Court, it was contended for the Punjab University that there is no element of retrospectivity in the application of the amended regulation and rule to students appearing for the examinations subsequent to the amendment and that students are bound to secure marks as per the regulation in force at the time of commencement of the examination concerned and they have no vested right to claim the benefit of any regulation or rule which was in force when they were admitted to the course.
Chief Justice S.S. Sandhawalia who spoke for the FULL Bench in the Letters Patent Appeal out of which this appeal before us has arisen noticed certain decisions of the Punjab and Haryana a High Court and observed that they did not lay down clear guide lines for deciding the question at issue, namely whether the University is entitled to change the regulation relating to the percentage of grace marks to be awarded to students and the basis for awarding the game i.e. whether it is on the aggregate of the marks of all the subjects for which the students appeared in the concerned examination or the aggregate of the marks of the.
subject in which they had failed ii that examination.
The learned Chief Justice noticed this Court 's observation in Hukum Chand vs Union of India which is this; "The underlying principle is that unlike sovereign legislature which has power to enact laws with retrospective operation authority vested with the power of making subordinate legislation has to act within the limit of its power and cannot transgress the same.
" And he proceeded to consider whether section 31 of the Punjab University Act under which the regulations in question have been framed empowers the Senate to frame regulation with retrospective effect.
Section 31 reads thus: "section 31(1) The Senate, with the Sanction of the Government, may from time to time make regulations consistent with this Act to provide for all matters relating to the University.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for.
827 (a) to (m) x x x x x x x (n) the courses of study to be followed and the conditions to be complied with by candidates for any University examination, and for degrees, diplomas, licences, titles, marks of honour scholarships and prizes conferred or granted by the University.
" The words "other than an examination for matriculation" which previously occurred in sub clause (n) have been omitted by the Government of India notification dated 6.12.1969.
The learned Chief Justice opined that there is nothing in section 31 of the Punjab University Act which would clothe the Senate, explicitly or impliedly, with the power to frame regulations retrospectively and held that the regulation, as amended in 1970, has retrospectively altered the condition of Subhash Chander, respondent 1, taking the examination to his detriment and could not apply to him and that he is governed only by Regulation 25 read with Rule 7.1 as it was in force when he joined the course in 1965.
The learn ed Chief Justice thus differed from the view taken by a Division Bench of the Punjab and Haryana High Court (D.K. Mahajan and P.C. Jain, JJ.) in Sewa Ram vs Kurukshetra University in which it has been held thus: "The University is an autonomous body and has every right in the matter of altering the requisite rules concerning the conduct of examinations and the qualifying marks necessary for a degree provided the regulation are made well in advance to the examination which a candidate is required to take.
" The learned Chief Justice rejected the submission made on behalf of the Punjab University that the change in the regulation made in 1970 by the addition of an exception to Rule 2.1 related to examinations to be held only in future and there is no question of the rule having retrospective operation and held that when Subash Chander respondent 1, joined the course in 1965 he obviously did so with the intention of obtaining the degree in Medicine and Surgery and that it is a single integrated composite course.
The learned Chief Justice observed that the change in the regulation by 828 way of addition of the exception to Rule 2.1 is a change in the course of that single integrated course and is retrospective in nature.
The other two learned Judges agreed with this view of the learned Chief Justice and the Full Bench accordingly dismissed the appeal and directed the Punjab University to declare the result of Subash Chander, respondent 1, afresh after affording him the benefit of 16 grace marks in accordance with the old Regulation 25 read with Rule 7.1 which was in force at the time of his admission to the course in 1965 and not only 4 marks as per the amended regulation.
We are of the opinion that this appeal has to succeed.
Section 31(1) of the Punjab University Act extracted above enables the Senate of the Punjab University, with the sanctions of the Government, to make from time to time, regulations, consistent within the provisions of that Act to provide for all matters relating to the University.
Section 31(2)(n) provides that in particular and without prejudice to the generality of the foregoing power such regulation may provide for the courses of study to be followed and the conditions to be complied with by candidates for any University examination and for degrees, diplomas, licences, titles, marks in honour, scholarships and prizes conferred or granted by the University.
Obtaining the requisite percentage of marks in the subject of the examination falls under the clause "conditions to be complied by candidates for any University examination" occurring ' in sub clause (n) of section 31 of the Act.
Therefore, the Senate had the power to award some percentage of marks as grace marks to candidates appearing in University examinations in considering whether they are eligible to pass the examination in the subject or subjects in which they had appeared.
There is no dispute that the minimum number of marks required for passing the examination in a paper/subject is 50 per cent of marks.
When Subash Chander, respondent 1, was admitted to the M.B.B.S. course in 1965, Rule 7.1 as it stood then and extracted above provided that the candidate who fails in one or more papers/subjects or aggregate may be given grace marks upto 1 per cent of the total aggregate marks excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the examination.
Subash Chander, respondent 1, who appeared for the final M.B.B.S. examination only nine years latter in 1974 had to pass in four subjects, namely, Medicine, Surgery Eye and ENT and Midwifery for each of which the aggregate was 400 marks.
He secured 202, 225 and 204 marks in Medicine, Surgery, and Eye and ENT respectively and was declared 829 to have passed the examination in those subjects.
Midwifery consists of two parts, namely, theory and practical for each of which the aggregate was 200 marks.
Subash Chander, respondent 1, secured 106 out of 200 in the practical examination and only 95 out of 200 in the theory examination.
Since the total aggregate of all the four subjects for which he appeared in 1974 was 1600 marks, under the old Regulation 25 read with Rule 7.1 as it stood at the time of his admission to the course in 1965 he would be entitled to 16 grace marks and would have been declared to have passed the examination as the addition of 16 grace marks to the 95 marks actually secured by him in the practical examination in Midwifery would satisfy the required minimum of 50 per cent.
But long before Subash Chander appeared for the final M.B.B.S. examination in 1974 the rule relating to award of grace marks to M.B.B.S. and B.D.S. students was changed by the Senate of the University in 1970 by the addition of an exception to Rule 2.1 as mentioned above.
It is not contended that the sanction of the Government had not been obtained for making this change.
The exception says that in the case of M.B.B.S. and B.D.S. examinations however the grace marks shall be given upto 1 per cent of the total marks of each subject and not up to 1 per cent of the aggregate marks of all the subjects; in other words each subject will be, for this purpose, a separate unit and a candidate who fails in a subject by not more than 1 per cent may be given the required number of marks in order to pass in that subject.
Under this rule as amended in 1970 Subash Chander, respondent 1, was entitled to only 4 marks as grace marks being 1 per cent of the aggregate of 400 marks for Midwifery alone.
As the addition of 4 grace marks to 95 marks actually secured by him in the practical examination in Midwifery for which the aggregate was 200 out of that total aggregate of 400 marks for that subject marks only 99 out of 200 it was less than 50 per cent, and he was declared to have failed in Midwifery and asked to reappear for that subject.
The minimum prescribed for passing in each subject is 50 per cent.
Under the old rule as it stood prior 1970, Subash Chander could have passed by getting 16 grace marks being 1 per cent of the aggregate of all the four subjects, namely, Medicine, Surgery, Eye and ENT and Midwifery even if he had secured only 84 marks out of 200 in the practical examination in Midwifery which comes to only 42 per cent and he had secured more than 50 per cent in the other subjects/papers.
The Senate thought it fit to remedy this glaring defect so far as M.B.B.S. and B.D.S. examinations are con 830 cerned by adding the exception to Rule 2.1 in 1970 under which the grace marks would be only 1 per cent of the aggregate marks in the particular subject.
We do not think that the Senate did not have the necessary power to effect that change or had acted unreasonably in making the change.
We think that the Senate had the necessary power under section 31(2)(n) of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance or reduce the quantum of grace marks.
It has not been contended before us that there was any mala fides on the part of the Senate in making this change.
It could not be contended that Subash Chander who appeared for the final examination in 1974 did not a have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by the change.
We do not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 2.1 of the calender for the year 197().
Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc.
means "operative with regard to past time".
The change brought about by the addition of the exception to Rule 2.1 does not say that it shall be operative with effect from any earlier date.
It is obviously prospective.
It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965.
No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating there to which were in force at the time of his admission would continue to be applied to him until he finished his whole course.
In the Calendar for 1979 we find the following at page 1: "Notwithstanding the integrated nature of a course spread over more than one academic year, the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year.
Nothing in these regulations shall be deemed to debar the University from amending the 831 regulations subsequently and the amended regulations, if any, shall apply to all students whether old or new.
" This is as it should be, though there was no such provision in the Calendar of 1965 when Subash Chander was admitted to the course.
It is admitted that it was introduced only in 1971.
The absence of such a provision in the Calendar of 1965 is of no consequence.
It is necessary to note in this connection what this Court had said in regard to retrospectivity in such matters in B.N. Misra vs State.
It is this: "The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can be made.
As we read the rule we do not find any retrospectivity in it.
All that the rule provides is that from the date it comes into force the age of retirement would be 55 years.
It would therefore apply from that date to all government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all government servants even though they were recruited before 1957.
But it is urged that the proviso shows that the rule was applied retrospectively.
We have already referred to the proviso which lays down that government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 55 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years.
This proviso in our opinion docs not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961.
Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule, for in actual effect no government servant was retired before the date of new rule i.e. May 25, 1961 and all of them were continued in service up to December 31, 1961 and were therefore to retire on reaching the age of superannuation according to the old rule.
We are, therefore, of opinion that the new rule reducing the age of retirement 832 from 58 years to 55 years cannot be said to be retrospective.
The proviso to new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule.
The new rule therefore, cannot be struck down on the ground that it is retrospective in operation.
" Therefore, we are clearly of the opinion that there is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different.
In these circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ.
expressed in the Division Bench judgment in Sewa Ram vs Kurukshetra University (Supra) and disapprove the view taken by the learned Judges of the Full Bench in the decision under appeal in this case and hold that the University was right in holding that Subash Chander, respondent 1, was not entitled to 16 grace marks under the old rule but was entitled to only 4 grace marks under the new rule and had therefore not passed the examination in Midwifery.
We allow the appeal but without any order as to costs.
However, this decision will not effect the result of the examination of Subash Chander in Midwifery if it had been declared as per the direction of the learned Judges of the Full Bench in the Letters Patent Appeal.
H.S.K. Appeal allowed.

summary:
The first respondent joined M.B.B.S. course of the appellant Punjab University in 1965.
At that time Regulation 25 of the Punjab University framed under section 31 of the Punjab University Act required a minimum of 50 per cent of marks to pass in each subject and Rule 7.1 relating, inter alia, to M.B.B.S. course provided that a candidate who fails in one or more papers/subjects/or aggregate may be given grace marks upto 1 per cent of the total aggregate marks excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the examination.
In 1970, Rule 7.1 was amended by the addition of an exception to Rule 2.1 which provided that in the case of M.B.B,S. examination however the grace marks shall be given upto 1 per cent of the total marks of each subject and not upto 1 per cent of the aggregate marks of all the subjects.
The first respondent who appeared for the final M.B.B.S. examination in 1974 was declared to have failed in one subject because he could not secure 50 per cent in that subject even after being awarded the grace marks according to the new rule.
This was challenged before the High Court by the first respondent on the ground that the old Regulation 25 read with the old Rule 7.1 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to have passed in that subject.
The Punjab University contended that there was no element of retrospectivity in the application of the amended rule and that students were bound to secure marks as per the regulation in force at the time of commencement of the examination concerned and they had no vested right to claim the benefit of any regulation or rule which was in force when they were admitted to the course.
Confirming the judgment of a single Judge, a Full Bench of the High Court in a Letters Patent appeal opined that there was nothing in section 31 of the Punjab University Act which would clothe the Senate, explicitly or impliedly 823 with the power to frame regulations retrospectively and held that the regulation, as amended in 1970, had retrospectively altered the condition of the first respondent taking the examination to his detriment and ' could not be applied to him and that he was governed only by Regulation 25 read with Rule 7.1 as it was in force when he joined the course in 1965.
The High Court observed that M.B.B.S. was a single integrated composite course and the change in the regulations was a change in the course of that single integrated course and was retrospective in nature.
Hence this appeal.
Allowing the appeal, ^ HELD: The Senate of the Punjab University had the necessary power under section 31 of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks or to enhance or reduce the quantum of grace marks.
[830 B] There is no element of retrospectivity in the change brought] about by the addition of the exception to Rule 2.1 of the Calendar for the year 1970.
"Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "Operative with regard to past time".
The change brought about by the addition of the exception to Rule 2.1 does not say that shall be operative with effect from any earlier date.
It is obviously prospective.
It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to the first respondent, who appeared for the final examination in 1974, after he had joined the course earlier in 1965.
No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course.
[830E G] Shorter Oxford English Dictionary, Third Edition, referred to, There is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to the first respondent who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different.
[832C] The University was right in holding that the first respondent was not entitled to grace marks under the old rule but was entitled to grace marks under the new rule and had therefore not passed the examination.
[832D] Sewa Ram vs Kurukshetra University, LPA 97 of 1967 decided on 17.7.1968 by Punjab and Haryana High Court, upheld.
B.N. Mishra vs State, , referred to. 824


judgement:
iminal Appeal No. 33 of 1955.
Appeal under Articles 132 (1) and 134 (1) (c) of the Constitution of India from the Judgment and Order dated June 30, 1954, of the Court of Judicial Commissioner, Kutch in Criminal Revision Application No. 13 of 1952.
Porus A. Mehta and B. H. Dhebar, for the appellant.
H. J. Umrigar, for the respondent.
March 7.
The Judgment of the Court was delivered by KAPUR J.
Two important questions arise for decision in this case of a small magnitude and the State has filed this appeal not for the purpose of obtaining a conviction but because of the importance of the questions raised and implications of the judgment 747 of the Judicial Commissioner.
The respondent was convicted of an offence under section 12(a) of the Bombay Prevention of Gambling Act (Act IV of 1887 hereinafter termed the Bombay Act) as applied to Kutch and was sentenced to a fine of Rs. 50 or in default simple imprisonment for 15 days and for feiture of the amounts recovered from the respondent at the time of the commission of the offence.
He took a ' revision to the Judicial Commissioner of Kutch, who hold that the Act under which the respondent had been convicted had not been validly extended to and was not.
in force in the State of Kutch.
It is the correctness of this decision which has been canvassed before us.
There was sufficient evidence against the respondent which was accepted by the trying magistrate; and if the Act was validly extended to and was in operation in the State of Kutch, his conviction by the learned magistrate was correct and his acquittal by the learned Judicial Commissioner erroneous.
On June 7, 1951, the respondent, it was alleged committed the offence he was charged with He was convicted by the magistrate on July 26, 1951, and his revision to the Sessions Judge was dismissed.
He then took a revision to the Judicial Commissioner of Kutch who allowed his petition on June.
30, 1954, and granted a certificate under articles 132(1) and 134(1) of the Constitution.
Kutch before 1948 was what was called an Indian State.
The Maharao of Kutch handed over the gover.
nance of the State to the Dominion of India on June 1, 1948 and thus the whole administration of the State passed to the Dominion and it became a Centrally administered area.
On July 31, 1949, the then Central Government issued under section 4 of the Extra Provincial Jurisdiction Act (Act XLVII of 1947), an order called the Kutch (Application of Laws) Order, 1949.
Under cl. 3 of this order certain enactments were applied to Kutch with effect from the date of the commencement of the order.
One of these enactments was the Bombay Act.
Clauses 4 and 6 of this order are important and may be quoted; 748 4.
"Except as otherwise specifically provided in the first schedule to this order the enactments applied by this order shall be construed as if references therein to the authorities and territories mentioned in the first column of the table hereunder printed were references to the authorities and territories, respectively, mentioned opposite thereto in the second column of the said table.
TABLE.
Provincial Government, Governor The Chief Commissioner of Kutch.
or Chief Controlling Revenue Authority.
Government The Central Government or the Chief Commissioner, as the con text may require.
High Court Court of the judicial Commissioner, Kutch.
Provinces of India, any Province Kutch or any part thereof of India or any part thereof.
The Province or Presidency of Kutch or any part thereof.
Bombay or any part thereof.
" Any Court may construe the provisions of any enactment, rule, regulation, general order or byelaw applied to Kutch or any part thereof by this order, with such modifications not affecting the substance as may be necessary or proper in the circumstances.
" On August 1, 1949, Kutch became a Chief Commissioner 's province under the States Merger (Chief Commissioners Provinces) Order, 1949.
Clause 2(1)(c) of this order is as follows: " As from the appointed day, the parts of States specified in the Second Schedule to this order shall be administered in all respects as if they were a Chief Commissioner 's Province, and shall be known as Chief Commissioner 's Province of Kutch.
" The Second Schedule gives the parts of the pre 1947 Indian States which were to comprise the Chief Commissioner 's Province of Kutch.
Under el. 4 of this Order all laws which were in force including orders made under section 4 of the Extra Provincial Jurisdiction Act of 1947, were to continue in force until replaced.
On January 1, 1950, Merged States ' Laws Act (Act LIX of 1949), came into force.
By this Act certain Central Acts were extended to the province of Kutch 749 including the General Clauses Act (Act X of 1897).
On January 26, 1950, the Constitution of India came into force and Adaptation of Laws Order, 1950, was promulgated the same day.
Clause 4(1) of this order provides: "Whenever an expression mentioned in column 1 of the table hereunder printed occurs (otherwise than in a title or preamble or in a citation or description of an enactment) in an (existing Central or Provincial Laws) whether an Act, Ordinance or Regulation mentioned in the Schedule to this Order or not, then, unless that expression is by this Order expressly directed to be otherwise adapted or modified, or to stand unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in column 2 of the said Table, and there shall also be made in any sentence in which the expression occurs such consequential amendments as the rules of grammar may require." The necessary portions of the table are: Province (except where it occurs in any expression mentioned above) State Provincial. . .
State Provinces (except where it occurs in any expression mentioned above).
States Clauses 15 and 16 in (Part III) Supplementary, are as follows: 15.
" Save as is otherwise provided by this Order, all powers which under any law in force in India or any part thereof were, immediately before the appointed day, vested in or exercisable by any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter in question." 16.
" Subject to the provisions of this Order any reference, by whatever form of words in any existing law to any authority competent at the date of the passing of that law to exercise any powers or authorities, or to discharge any functions, in any part of India shall, where a corresponding new authority has been constituted by or under the Constitution, have 750 effect until duly repealed or amended as if it were a reference to that new authority.
" On November 28, 1950 the Chief Commissioner of Kutch issued the following notification: In exercise of the powers vested in him under section I of the Bombay Prevention of Gambling Act, '1887 (IV of 1887) as applied to Kutch by the Kutch (Application of Laws) Order, 1949 the Chief Commissioner has been pleased to order that all the provisions of the said Act shall come into force throughout the whole of Kutch with immediate effect.
" On a consideration of all the Acts and Orders as well as the above mentioned Adaptation of Laws Order, of 1950, the learned Judicial Commisioner was of the opinion that , all such powers vested in or exercisable by any other person or authority before 26 1 1950 ceased to be so vested or exercisable by that person or authority ", and, therefore, only the President, whether exercising the powers himself or through the Chief Commissioner, could exercise the powers of a State Government and the Chief Commissioner himself could not.
His finding therefore was that the Chief Commissioner could not issue the above notification of November 28, 1950.
In its appeal against the Order of acquittal by the learned Judicial Commissioner, the State has raised two questions: (1)that the Bombay Act had been validly extended to and was in force in the whole of Kutch because of the Kutch (Application of Laws) Order, 1949 and thus any contravention of that Act became punishable under the Act, and (2)That even if the Bombay Act was not thus extended to Kutch, the Act became applicable to the State of Kutch by the issuing of the notification of November28, 1950, and therefore, the respondent was rightly convicted and the conviction was wrongly set aside by the learned Judicial Commissioner.
In: order to decide the first contention we have to see what is the effect of the various provisions of the Acts and Orders above referred to.
In cl. 4 of the 751 Kutch (Application of Laws) Order, 1949, the words; used are shall be construed as if reference therein. .
In our opinion all that these words mean is I shall be read as ' and if that is how these words are understood then wherever in the Bombay Act the words 'Provincial Government ' are used they have to be read as the Chief Commissioner of Kutch; the word Government has to be read as the " Chief Commissioner of Kutch"; and the Province or the " Presidency of Bombay " as " Kutch or any part thereof ".
If the Bombay Act is so read, then at the time when the Constitution came into force the words Provincial Government or Government or Province or Presidency of Bombay were no longer in the Act which had become applicable to the State of Kutch.
On the other hand, the words there must be taken to be Chief Commissioner of Kutch, and Kutch or any part thereof, respectively.
The fallacy in the learned Judicial Commissioner 's judgment lies in this that due effect was not given to these words which had become substituted, but emphasis was laid on the words 'shall be construed as ' as if these words had been used for the purposes of interpretation of the different words in the Bombay.
Act rather than implying substitution of the corresponding words.
In this view of the matter cl. 2 (1) (c) of the States Merger (Chief Commissioners ' Provinces) Order, 1949 which provided for the administration of the State of Kutch as if it was a Chief Commissioner 's Province, would not affect the position nor would the extension of the General Clauses Act under the Merged States ' Laws Act.
Clause 4 of the Adaptation of Laws Order, 1950 only substituted in place of the words Province, Provincial and Provinces the words State or States, wherever they occurred in any existing law, and the effect of cls.
15 and 16 of that order was the continuance of the powers vested in the authorities in whom they had previously been vested.
The position which therefore emerges on a combined reading of these various clauses is that in Bombay Act, as applied to Kutch, the words I Presidency of Bombay ' were to be replaced by the.
words 'Kutch or any part thereof ' and the I Provincial 752 Government ' by the I Chief Commissioner of Kutch ' and the powers which had been given to the different authorities under the different Acts were to continue to remain in the person or persons in whom they were already vested.
As the powers had been vested in the Chief Commissioner under the provisions of these various Acts and Orders, they continued to remain so vested and the General Clauses Act did not have any operational effect on these various words which were used in the Bombay Act as modified and applied to Kutch. ,SO understood, section 1 of the Bombay Act would read as follows: " This Act may be cited as the Bombay Prevention of Gambling Act, 1887.
All or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the " Official Gazette " to any local area in Kutch or any part thereof." The Chief Commissioner of Kutch may, from time to time, by an order published as aforesaid, cancel or vary any order made by it under this section.
" The portion of this section, viz., "It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said city and island and to all places not more than three miles distant from any part of such station houses respectively " would not continue in the Act as applied to Kutch because these parts are not in the State of " Kutch or any part thereof " and cl. 6 of the Kutch (Application of Laws) Order, 1949 would come into operation for the purpose.
It was then contended that by the mere application of the Bombay Act to Kutch it became operative and came into force in the whole of Kutch.
This argument suffers from the infirmity that in its application to Kutch section 1 of the Bombay Act would have to be excluded which would be an incorrect way of looking at the question.
The true position is that the whole of the Act including amended section 1 as given above, became applicable to Kutch and therefore a notification 753 ,was necessary before it could be brought into force in any part of Kutch.
It was applied to Kutch, but its provisions were not in operation before the notification; and in our opinion, the judgment of Baxi J. C. in Agaria Osman Alarakhya vs The Kutch State (1) which has been followed in the case now before us, to the extent that it dealt with the necessity of a notification under section 1 of the Bombay Act, was correctly decided; and therefore, the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act, could not be held to have been validly applied to the State of Kutch.
This brings us to the second question, i.e., the validity of the notification issued on November 28, 1950.
The learned Judicial Commissioner held: " The Chief Commissioner of a Part C State can act to such extent as he is authorised by the President to do.
These being the provisions of the Constitution, the Bombay Act must be construed with the adaptation that the rule of construction mentioned in the Kutch (Application of Laws) Order, 1949 is deleted.
Hence, even if substitution of expression as mentioned in para 4 of the Adaptation of Laws Order, 1950 is not made, the rule of construction mentioned in the Kutch (Application of Laws) Order, 1949 for construing the expression I Provincial Government ' as the I Chief Commissioner, Kutch ' does not survive.
" Article 239 of the Constitution relates to administration of Part C States and provides: " Subject to the other provisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Lieutenant Governor to be appointed by him. . .
This Article has been relied upon for urging that in a Part C State, the administration had to be carried on by the President acting through a Chief Commissioner.
But this does not take away the powers of the Chief Commissioner given to him under any other Statute or (1) A.I.R. (1951) Kutch 9.
97 754 Order.
The Chief Commissioner of Kutch under section I of the Bombay Act, had the power to issue notifications making that Act operative in Kutch or any part of Kutch and those powers were not affected by article 239 of the Constitution particularly because of el.
15 of the Adaptation of Laws Order, 1950, which preserved these powers of the Chief Commissioner.
Therefore, the notification issued by the Chief Commissioner on November 28, 1950 was valid and issued under legal authority; and the Act came into force in the parts to which the notification made it so applicable.
We have therefore, come to the conclusion that the learned Judge was in error in holding that the notification was not a valid one and in so far as that was the basis of the acquittal of the accused, the judgment under appeal must be set aside.
In the result the appeal of the State is allowed, the judgment of the learned Judicial Commissioner acquitting the respondent is set aside and that of the learned Magistrate sentencing him to a fine of Rs. 50 and sentence in default and of forfeiture restored.
Appeal allowed.

summary:
By cl. 3 of the Kutch (Application of Laws) Order, 1949, the Bombay Prevention of Gambling Act (Bom.
IV of 1887) was made applicable to Kutch.
Clause 4 of the Order provided that the Acts applied to Kutch by the Order " shall be construed " as if (1) vs Chester, Mayor, etc.) 96 746 references therein to the authorities and territories were references to the authorities and territories of Kutch as set out in that clause.
The words "shall be construed as " mean "shall be read as" and: consequently wherever in the Bombay Act the words " Provincial Government " or " Government " are used, they have to be read as " Chief Commissioner of Kutch and the words ,Province or the Presidency of Bombay " as Kutch or any part thereof ".
So understood, section 1 of the Bombay Act as applied to Kutch provided that all or any of the provisions of that Act may be extended from time to time by the Chief Commissioner of Kutch by an order published in the Official Gazette to any, local area in Kutch or any part thereof.
The contention that the Bombay Act had been validly extended to and was in force in the whole of Kutch because of the Kutch (Application of Laws) Order, 1949, is not sound.
The true position is that the whole of the Act including amended section 1 became applicable to Kutch and, therefore, a notification was necessary before it could be brought into force in any part of Kutch.
The Chief Commissioner issued a notification on November 28, 195o, bringing all the provisions of the Bombay Act into force throughout the whole of Kutch with immediate effect.
The Chief Commissioner of Kutch under section 1 of the Bombay Act, had powers to issue the notification making that Act operative in Kutch or in any part of Kutch and those powers were not affected by article 239 Of the Constitution.
The notification was valid and the Act came into force in the parts of the State to which the notification made it applicable.


judgement:
ition No. 13009 of 1983.
(Under article 32 of the Constitution of India) Gopal Subra aniam (A.C) for the Petitioner Dr. Y.S. Chitale, A.V. Rangam and Mrs. Sarla Chandra for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Smt.
Katheeja Bai, is the widow of Abdul Salam who retired as a Line Inspector, Grade I, in the employment of the Tamil Nadu State Electricity Board on 31.7.76 and who unfortunately died on 15.10.76.
Katheeja Bai failed to get from her late husband 's employers certain amounts which she claimed were due to her husband.
She knocked continuously but in vain, at the doors of the Regional Provident Commissioner, Madras, Central Provident Commissioner, New Delhi and the Minister for Labour Government of India for several years for 800 redress.
In sheer desperation she ultimately turned to this Court as a last resort.
Unable to engage a lawyer, she addressed a letter to a learned judge of the Court setting forth her grievance.
After being processed in the Registry, the letter was treated as a Writ Petition under Art 32 of the Constitution.
A Rule Nisi was issued and the Tamil Nadu State Electricity Board have appeared before us through counsel.
At our request Sri Gopala Subramanyam argued the case for the widow as amicus curiae.
He presented the . case with understanding and thoroughness and we are grateful to him, as also to Dr. Chitaley who presented the employer 's case with his usual fairness.
In exercise of the powers conferred by s.79(c) of the Electricity Supply Act, 1948, the Tamil Nadu Electricity Board made the Tamil Nadu Electricity Board Contributory Provident Fund Regulations.
Regulation 3 Provides for this establishment of a fund known as the Tamil Nadu Electricity Board Employees ' ' Contributory Provident Fund, with effect from 1.7.57.
Regulation 3 A to 3 K provide for the management and administration of the fund by the Board of Trustees.
Regulation 4 prescribes that the Fund shall be governed by regulation a i may be in force for the time being but provides that no addition, alteration or repeal, of any regulation which may adversely effect a subscriber shall be retrospective.
Regulation 5 provides that all employees who are eligible for the Contributory Provident Fund (Tamil Nadu) Scheme and Gratuity Scheme of the Government of Tamil Nadu except certain categories of employees with whom we are not concerned shall become subscribers to the fund on completion of three months continuous service.
Regulation 6 prescribes that an account shall be opened in the name of each member in which shall be credited, the member 's subscriptions and interest thereon, the contributions made by the Electricity Board to his account and interest thereon and the pre existing account before the Electricity Department was taken over by the Electricity Board.
Regulation 9 provides for subscription to the fund by members at a the rate of 7 1/2% of pay plus dearness allowance.
Regulation 11 provides for contribution by the Electricity Board to the account of each member at the rate of 7% of pay plus dearness allowance.
The member 's subscription along with the Electricity Board 's Contribution is required to be credited to the individual account of the member before the 15th of every month.
Regulation 37 prescribes that the Electricity Board shall credit to a member 's Provident Fund account a special contribution calculated in the specified manner in addi 801 tion to the contribution credited under Regulation 11, if the Board is satisfied that the service of the member has been good, efficient and faithful and the member has not been dismissed from service or the member has not been removed from service in which case the sanction of the Board has to be obtained.
In the case of a Class I or Class II employee who quits service on attainment of the age of superannuation, he is to be credited, if his service exceeds 18 years with six months pay plus half a month 's pay for each completed year of service after the 18th but not so is to exceed, in all, twelve months ' pay or rupees twenty five thousand, whichever is less.
If the employee 's service does not exceed 18 years, he is to be credited with half a month 's pay for each completed year of service so as not to exceed six months ' pay.
In the case of a Class III or Class IV employees who has attained the age of superannuation after 15 years ' service, the Electricity Board is required to credit his account with half a month 'S pay for each completed year of service, but not so as to exceed to 15 months ' pay.
If the service is short of 15 years, he is to be credited with half a month 's pay for each completed year of service so as not is exceed six months ' pay.
It is provided in Regulation 37 that pay for the purpose of reckoning special contribution shall be the pay last drawn during the last three years of service, whichever is more.
The Board is also empowered to withhold or reduce the Special Contribution in any particular case.
At this stage, we may refer to section 12 of the which prohibits all employer from reducing directly or indirectly the total quantum of benefits in the nature of old age pension, gratuity or Provident Fund or Life Insurance to which the employee is entitled under the terms of his employment, express or implied, by reason only of his liability for the payment of any contribution to the fund (which is defined by section 2(h) as meaning a Provident Fund established under the employees ' Provident Fund Scheme framed under section 5).
In 1972, Parliament enacted the to provide for a scheme for the payment of gratuity to employees in certain establishments.
There is no dispute that the Act applies to the Tamil Nadu State Electricity Board.
Section 4 of the Act requires payment of gratuity to an employee who has rendered continuous service for not less than five years, on the termination of his employment on superannuation or on retirement or on his 802 death or disablement due to accident or disease.
The employer is required to pay the gratuity to the employee at the rate of fifteen days ' wages for each completed year of service or part thereof in excess of six months.
The amount of gratuity is not to exceed 20 months ' wages.
The employer is not required to pay any gratuity to an employee if the service of the employee has been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, or if the services of the employee have been terminated for riotous or disorderly conduct or any other act of violence on his part or if his a services have been terminated for any act involving moral turpitude provided that such offence is committed by him in the course of his employment.
Section 14 provides that the contribution of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than the .
Abdul Salam, who held a non pensionable post, retired on 31.7.76, after a service of 34 years and live months.
He died on 15.10.76 within three months after his retirement.
He was entitled or, in this case his widow was entitled to the payment of the entire amount standing to his credit in his Provident Fund account and the gratuity payable under the .
The Electricity Board, however, took the stand that she was entitled to be paid the member 's subscription and interest, the employer 's contribution and interest and gratuity but not the special contribution under Regulation 37 of the Tamil Nadu State Electricity Board Contributory Provident Fund Regulations.
The reason for the Board 's attitude was that the special contribution Required to be paid under Regulation 37 was nothing other than payment of gratuity and that they could not be asked to pay gratuity twice over, once under the and again under Regulation 37.
Since they were ready to pay the gratuity payable under the , which was more favourable to the employee, they were not obliged to make payment of the contribution under Regulation 37.
We may mention here that the Board has paid to the widow, the member 's subscription with interest and the employer 's contribution with interest but not the special contribution under Regulation 37.
The Board has paid a sum of Rs. 4275/ towards gratuity under the payment of Gratuity Act but a sum of 803 Rs. 3167/ is admittedly yet due from the Board towards gratuity.
In the counter affidavit filed on behalf of the Electricity Board we are not able to find any reason for non payment of the balance of gratuity.
We are unable to appreciate how the Electricity Board can avoid payment of the Special Contribution to Provident Fund under their own Provident Fund Regulations on the pretext that it is akin to or the same as Gratuity payable under the .
In the first place, the Board, in their Regulations, have themselves labelled the Special Contribution under Regulation 37 as a Special Contribution to Provident Fund not as a Gratuity.
It is not as if they were unaware of the word 'Gratuity ' and what it meant since we find that there is a reference in Regulation 5 to a Gratuity Scheme of the Tamil Nadu Government which had been adopted by the Board.
The Special Contribution under Regulation 37 is part of a well thought out Provident Fund Scheme designed to benefit 'good ' efficient and faithful employees (we borrow the words from the Regulation itself) by ranking annual contributions in addition the monthly contributions under Regulation 11.
This is what appears from Regulation or itself, we see no justification for first dubbing it as a gratuity on the ground that it has some of the known characteristics af gratuity and then proceeding to deny the employees the benefit of it on the ground that the Board are paying gratuity under the .
If the Special Contribution has some common features with gratuity, it has also distinctive features which distinguish it from gratuity payable under the payment of Gratuity Act, For example, one important feature which discriminates the Special Contribution under Regulation 37 from gratuity under the is that while the Payment of the latter is obligatory and can only be denied if the employee 's services have been terminated for his riotous or disorderly conduct or any other act of violence on his part or any act which constitutes an offence involving moral turpitude and can also be denied to the extent of the damage or loss caused by the employee, where the employee 's services have been terminated for any act, wilful omission or negligence causing any damage or to loss, or destruction of property belonging to the employer, the payment of the former is discretionary and may not be made if the service of the employee has not been good, efficient and faithful.
The employee has also the discretion to withhold or reduce the Special Contribution in any particular case.
Of course, 804 the employer cannot arbitrarily claim that the employee 's service was not good, efficient and faithful, or with hold or reduce the Special Contribution in an arbitrary fashion.
Even so, the distinction between the mandate of the and the discretion involved in making the Special Contribution under Regulation 37 is intelligibly clear.
Another feature which distinguishes the two is that the benefit of the is confined to persons drawing wages not exceeding Rs. 1000 and does not extend to persons employed in a managerial or administrative capacity whereas the Special Contribution under Regulation 37 is not so confined and extends to every employee of the Board a except casual employees, State or Central Government employees employed with the Board on foreign service terms etc.
For the purpose of contribution of Provident Fund under Regulation 11 or Regulation 37 it makes no difference that a person is employed in a managerial or administrative capacity on that he draws wages more than Rs. 1000 per month.
A third feature which marks the two apart is that the contribution to the Provident Fund whether under Regulation 11 or Regulation 37 becomes part of the Fund established by Regulation 3 and is to be managed and administered by trustees under Regulation 3 A to 3 K, whereas the payment of Gratuity Act does not provide for the Constitution of a fund to be managed and administered by trustees.
In addition to these broad features, we have the outstanding circumstance that the Board themselves have described the contribution under Regulation 37 as a contribution to Provident Fund and have chosen to include it in their Provident Fund Scheme.
That should conclude the matter.
Dr. Chitaley invited our attention to section 14 of the which provides, "The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in an enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." He argued that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the and therefore the latter should prevail to the exclusion of the former.
This argument is dependent on the assumption that the Special Contribution under Regulation 37 is the same thing as the gratuity contemplated by the Payment of 805 Gratuity Act.
We have held that it is not and the argument, therefore, fails.
There was then the usual lament that a large number of employees were involved and, therefore, the cost will be heavy.
We do not understand this argument at all.
Does it mean that beneficent legislations and beneficent schemes must be confined to small establishments employing a few workers only ? On the other hand, it is misleading to say that the cost is heavy.
The cost is made to appear heavy divorced from the size of the establishment.
If the establishment is huge and if a large number of workmen are employed the total wage bill may appear to be heavy, but is it really so ? Is it disproportionate to the size of the establishment, its resources, its revenues and its other expenditure ? Is the individual wage bill also very high ? To talk of heavy cost without reference to other circumstances is to present an entirely unfaithful picture.
We heed make no further comment.
In the result we direct the respondent Board to pay to the petitioner the whole of the Special Contribution under Regulation 37 which was payable to her husband and the balance of the Gratuity payable under the , part of which we are told has been paid leaving the sum of Rs. 3167 unpaid.
These amounts should be paid to the petitioner with interest at 15% per annum from the date on which the amounts fell due.
The respondent Board should also pay a sum of Rs. 2500 to the petitioner towards compensatory costs.
We must add that the case had left us with the feeling of uneasiness and distress at the plight of helpless persons like the petitioner whose repeated representations to those in authority were left uncared for so the tediously long despite frequent protestations of social justice.
H.S.K. Petition allowed.

summary:
Regulation 37 of the Tamil Nadu Electricity Board Contributory Provident Fund Regulations framed by the Tamil Nadu Electricity Board under the Electricity Supply Act, 1948 provides that the Electricity Board shall credit to a member 's provident fund account a special contribution calculated in the specified manner, in addition to the contribution credited under Regulation 11, if the Board is satisfied that the service of the member has been good efficient and faithful and the member has not been dismissed from service or the member has not been removed from service in which case the sanction of the Board had to be obtained.
The which was also applicable to the Tamil Nadu Electricity Board provided for the payment of gratuity to employees who would retire after rendering service for a specified number of years.
The petitioner 's husband retired in 1976 after serving the Tamil Nadu Electricity Board for about 34 years and died three months thereafter.
The petitioner was paid her husband 's subscription to the Contributory Provident Fund and interest and the Electricity Board 's contribution and interest and also the gratuity under the payment of Gratuity Act, 1972.
The Electricity Board did not pay the Special Contribution to be made by it to the contributory Provident Fund under Regulation 37 on the ground that the special contribution being nothing other than the payment of gratuity, they could not be asked to pay gratuity twice over, once under and again under Regulation 37.
The petitioner having got no relief from anywhere wrote a letter to a Judge of the Supreme Court which was treated as a writ petition.
Allowing the petition, 799 ^ HELD: The Electricity Board cannot avoid payment of the special Contribution to Provident Fund under their own Provident Fund Regulations on the pretext that it is akin to or the same as Gratuity payable under the .
In the first place, the Board, in their Regulations, have themselves labelled the Special Contribution under Regulation 37 as a Special contribution to Provident Fund and not as Gratuity.
It is not as if they were unaware of the word 'Gratuity ' and that it meant since it is found that there is a reference in Regulation 5 to a Gratuity Scheme of the Tamil Nadu Government which had been adopted by the Board.
The Special Contribution under Regulation 37 is part of a well thought out Provident Fund Scheme designed to benefit 'good, efficient and faithful ' employees (borrowing the words from the Regulation itself) by making annual contributions in addition to the monthly contributions under Regulation 11.
This is what appears from Regulation 37 itself.
There is no justification for first dubbing it as a gratuity on the ground that it has some of the known characteristics of gratuity and then proceeding to deny the employees the befit of it on the ground that the Board are paying gratuity under the .
If the Special Contribution has some common features with gratuity, it has also distinctive features which distinguish it from gratuity payable under the .
[803B F] In view of the finding that Special Contribution under Regulation 37 is not the same as gratuity under , the argument that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the and therefore the latter should prevail to the exclusion of the former must fail.
[804H; 805A]


judgement:
tition (Criminal) Nos. 920 and 934 of 1984.
(Under article 32 of the Constitution of India) P.R. Mridul, R.D. Agarwala and R.N. Poddar for the Applicant/Respondent.
Miss Rani Jethmalani, G.S. Cheema and Shailendra Bhardwaj for the opp.
side/ petitioners.
The order of the Court was delivered by VENKATARAMIAH, J. These cases are just two in number.
There may be many other cases of this nature which have not yet reached this Court but may be filed shortly.
These are not ordinary criminal cases involving a few individuals coming from a small locality.
These are extraordinary cases involving serious questions of great public importance touching the security of the nation as well as personal liberty of a sizeable section of the community, many of whom may have been made to believe by a dominant section of society, may be wrongly, that what they were doing was right and for that reason may not have been free agents.
Hence these cases have to be dealt with differently from the usual cases which come up before this Court.
First a word of caution.
In the course of these proceedings every word uttered on either side of the Bar should be an weighed before it is used.
There is no room for heat and passion; logic and reason alone should rule the debates.
There should be an all round sympathy in dealing with the complex issues which may arise for determination.
In handling these cases the highest judicial talent and statesmanship are needed and hence these cases cannot just be rejected reserving liberty to the applicants to approach a Judicial Magistrate, a Sessions Judge or even the High Court.
Every step taken in these cases should serve as a healing touch bringing solace to all concerned and lessening by some degree the pain and suffering through which the country and its peace loving people have passed and are passing.
These proceedings should have the effect of assuaging the outraged feelings of many who till now may not be aware of what has actually happened.
Any amount of time spent by the highest Court of this land on these cases would not go in vain.
There is no duty more sacred than this.
however, feel that the questions involved are too large and complex for the shoulders of a Single Judge to bear.
It is my humble view that these and other cases of like nature should be heard by at least seven learned Judges of this Court whose unquestioned judicial authority, erudition and acumen would be of great 928 assistance in the restoration of peace in one of our great States known for the valour, the devotion, the spirit of sacrifice and the sense of duty towards the country of the people residing in it.
May I say that there can be no compromise on the following matters, namely, unity and integrity of India, the secular and democratic form of the Indian Government and the supremacy of the Indian Constitution ? They must be upheld in any event.
There cannot be any doubt about the right of the established Government to run the administration of the country.
We should remember, that India is no doubt a Union of States, but the boundary, of the States are not unalterable.
There is only one citizenship in India and that all of us Indian citizens belong to the whole of India and the whole of India belongs to all of us.
Man made boundaries cannot divide us.
Language, religion, caste and other factors cannot be allowed to drive a wedge between one section and another.
It is good to remember here what Abraham Lincoln said though in another context in 1858, 'A house divided against itself cannot stand '.
The issue now before the Court involves more than the future of India.
Again to quote Lincoln from what he said in the American context: "It presents to the whole family of man, the question whether a constitutional republic or a democracy a government of the people, by the same people can or cannot maintain its territorial integrity, against its own domestic foes".
The above words appear to be relevant in the present Indian context too.
The unfolding of facts in these cases may make those who may have erred to realise where they have erred and how they have erred.
It may help the Court to suggest solutions for rectifying the undesirable effects of such errors.
Even if allegations of serious offences against the State may be forthcoming against the arrested persons, the Court may still consider whether it is not possible to enlarge at least some of them, who may be in a repentant mood, on bail to facilitate early restoration of normalcy in the State.
The Court may at some stage have occasion to consider whether it 929 should recommend to Parliament to pass an Act of Indemnity which may be an act of great sagacity, thus drawing the curtain on this unhappy page of the history of the Indian Republic.
These may be many other things which may be done and they are within the domain of my learned Brothers who may hear these cases.
If this Court in the end can succeed in establishing peace and harmony in the country, it would be its finest hour.
I, therefore, refer these cases to a larger Bench with the fond hope that our country would have no occasion in the future to face a similar situation.
These papers may be placed before the Hon 'ble the Chief Justice of India for appropriate directions.
N.V.K. Cases referred to larger bench.

summary:
The petitioners in their writ petitions to this Court assailed the detention of a member of the Sikh Community under the . ^ HELD: 1.
These are not ordinary criminal cases involving a few individuals coming from a small locality.
These are extraordinary cases involving serious questions of great public importance touching the security of the nation as well as personal liberty of a sizeable section of the community.
These cases have to be dealt with differently from the usual cases which come up before this Court.[927 C D] 2.
In handling these cases the highest judicial talent and statesmanship are needed and hence these cases cannot just be rejected reserving liberty to the applicants to approach a Judicial Magistrate, a Sessions Judge or even the High Court.
Every step taken in these cases should serve as a healing touch bringing solace to all concerned and lessening by some degree the pain and suffering through which the country and its peace loving people have passed and are passing.
These proceedings should have the effect of assuaging the outraged feelings of many who till now may not be aware of what has actually happened.
[927 F G] 3.
The questions involved are too large and complex for the shoulders of a Single Judge to bear.
These and other cases of like nature should be heard by at least seven learned Judges of this Court whose unquestioned judicial authority, erudition and acumen would be of great assistance in the restoration of peace in one of the States known for valour, devotion, spirit of sacrifice and sense of duty towards the country of the people residing in it.
[927 H; 928 A] 4.
Even if allegations of serious offences against the State may be forthcoming against the arrested persons, the Court may still consider whether it is not possible enlarge at least some of them, who may be in a repentant mood, on bail to facilitate early restoration of normalcy in the State.
There may be many other things which may be done and they are within the domain of the Judges, who may hear these cases.
If this Court in the end can succeed in establishing peace and harmony in the country, it would be its finest hour.
[928G H; 929 A] (Cases referred to Larger Bench.)