judgement:
: Civil Appeal Nos.203 7 2042 of 1977 etc.
From the Judgment and Order dated 21.10.1976 of t he Rajasthan High Court in D.B. Special appeal Nos. 8, 20, 2 2, 26, 27 and 28 of 1976.
A.K. Sen, V.M. Tarkunde, Shanti Bhushan, Sushil Kum ar Jain, N.D.B. Raju, Ram Kalyan Sharma,Jagdish Nandware, K. B. Rohtagi, S.K. Dhingra, R.S. Sodhi and Vineet Kumar for the Appellants.
C.M. Lodha, Badri Dass Sharma, S.D. Khanduja and Ind ra Makwana for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These appeals, by Special Leave a nd Petitions for grant of Special Leave pertaining to agrari an reform legislation in the State of Rajasthan, arise out of and are directed against the judgment dated 21st Octobe r, 1976, of a full bench of the High Court of Rajasthan, di s missing a batch of special appeals and affirming the jud g ment dated 2.12.1975 of the learned Single Judge of the Hi gh Court rejecting appellants contentions against the legali ty of certain proceedings for the fixation of ceiling on agr i cultural holdings initiated and continued under the Prov i sions of Chapter III B of the Rajasthan Tenancy Act, 195 5.
In the Writ petition filed directly in this Court relie fs similar to those sought before the High Court are claimed.
The principal controversy before High Court in t he proceedings, shorn of its niceties and embellishments, w as whether the proceedings for fixation of ceiling area wi th reference to the appointed dated i.e. 1.4.1966 under Chapt er III B of the Rajasthan Tenancy Act, 1955, 157 ( '1955 Act ' for short) could be initiated and continu ed after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act (Act No. 11 of 197 3) ( '1973 Act ' for short) which w.e.f.1.1.1973 repealed Se c tion 5(6A) and Chapter III B of the old Act, i.e. ' 19 55 Act '.
Chapter III B, pertaining to imposition of ceiling on agricultural holdings, in the State of Rajasthan, was intr o duced into the '1955 Act ' by the Rajasthan Tenancy (Amen d ment) Act, 1960.
As a sequential necessity Section 5 w as amended by the introduction in it of Clause (6A) whi ch defined "ceiling area".
The notified date, as original ly fixed, was 1.4.1965; but owing to the uncertainties impart ed to the implementation of the law by the challenge made to the provisions of Chapter III B before the High Court a nd the interim orders of the High Court staying the operati on of the law, Government had had to re notify 1.4.1966 as t he fresh notified date, after the challenge to the validity of Chapter III B had been repelled by the High Court.
By the time, the '1973 Act ' was brought into for ce disputes touching the determination of the ceiling areas in 33,471 cases had come to be decided in accordance with t he provisions of Chapter III B of the earlier '1955 Act '.
After the '1973 Act ' came into force on 1.1.1973, some 8,4 94 cases for the determination of 'ceiling areas ' under III B of the '1955 Act ' came to be initiated and were sought to be continued under said Chapter III B of the repealed '19 55 Act ' on the view that the repeal of Chapter III B of t he 1955 Act by the 1973 Act ' did not affect the rights accrued and liabilities incurred under the old law.
Appellant s ' principal contention is that after the coming into force of the 1973 Act which, by its 40th Section, repealed Chapt er III B of the ' 1955 Act ', recourse could not be had to t he repealed law for purposes of commencement, conduct a nd conclusion of any proceedings for fixation of ceiling as prescribed under the old law.
This contention has be en repelled by the full bench of the High Court in the judgment under appeal.
The correctness of view of the full ben ch arises for consideration in these appeals.
The factual antecedents in which the controver sy arose before the High Court may be illustrated by the facts of one of the appeals.
In CA 1003(N) of 1977, the appe l lants ' claim to have entered into possession and cultivati on of certain parcels of land pursuant to alleged agreements to sell dated 28.4.1957 said to have been executed in the ir favour by the then land holder, a certain Sri Hari Sing h. The sale deeds were passed only on 22.8.1966, after t he notified date.
Proceed 158 ings for the fixation of ceiling area in the hands of S ri Hari Singh were commenced under the Repealed Chapter III B of the '1955 Act '.
Appellants ' pruchases were held to be hit by Section 30 DD of the said Chapter III B, which prescrib ed certain residential qualifications, which appellants did n ot possess, for the eligibility for recognition of such transfers.
Appellants ' contention is that if the new law had be en applied to the case of the vendor, the transfers in the ir favour would have been held valid and that invoking of Chapter III B of the repealed law was impermissible.
Apart from the facts of individual cases and their particularities the basic question is one of construction whether the provisions of the old law are saved and survive to govern pendi ng cases.
We have heard Sri A.K. Sen, Sri Tarkunde and S ri Shanti Bhushan, learned Senior Advocates for the appellan ts and Sri Lodha, learned Senior Advocate for the State of Rajasthan and its authorities.
The appellant 's principal contention which we perceive as one of construction of statutes is that the later law made manifest, expressly a nd by necessary implication, an intention inconsistent with t he continuance of the rights and obligations under the repeal ed law and that, accordingly, after 1.1.1973, the date of coming into force of the '1973 Act ', no proceedings und er the old law could be initiated or continued.
The points that fall for consideration in these appeals are whether: (a) the scheme contemplated by and the different criter ia and standards for the determination of "ceiling area" envi s aged in the '1973 Act ' and, in particular, having regard to the limited scope of the saving provision of Section 40 thereof which, quite significantly, omits to invoke a nd attract Section 6 of the Rajasthan General Clauses Act 19 55 to the Repeal of Section 5(6A) and Chapter III B of t he '1955 Act ' must be construed and held to manifest an inte n tion contrary to and inconsistent with the keeping alive or saving of the repealed law so as to be invoked in relati on to and applied for the pending cases which had not be en concluded under the old law before the repeal; and (b) that, at all events, even if Section 6 of the Rajasth an General Clauses Act 1955 was attracted and the old law w as saved for the purpose, provisions of the old law could n ot be invoked as no right had been ,"accrued" in favour of 159 the State in relation to the surplus area determinable und er the old law nor any liability "incurred" by the land holde rs under the old law so as to support the initiation of t he proceedings for fixation of 'Ceiling area ' under the old l aw after its repeal.
Re: Contentions (a) In order that this contention, which is presented wi th some perspicuity, is apprehended in its proper prospective a conspectus of the essential provisions of the earlier l aw and later law pertaining to prescription of ceiling on agricultural holdings is necessary.
In 1955, The Rajasthan Tenancy Act 1955 was enacted.
By the Rajasthan Tenancy (Amendment) Act, for the first time, provisions in Chapter III B prescribing a ceiling on hol d ings of agricultural lands got introduced into the '19 55 Act '.
This amending Act of 1960 received Presidential asse nt on 12th March 1960.
The Chapter III B was, by an appropria te notification, brought into force with effect from 15 th December, 1963.
The notified date, under the '1955 Act ', as stated earlier, was 1.4.1965.
Section 5(6A) of the ' 1955 Act ' defined 'Ceiling area '. " "Ceiling area" in relation to land held anywhe re throughout the State by a person in any capacity whatsoeve r, shall mean the maximum area of land that may be fixed as ceiling area under section 30C in relation to such person; " Section 30B in Chapter III B provided: "30B. Definitions For the purposes of this Chapter (a) "family" shall mean a family consisting of a husband and wife, their children and grand children bei ng dependent on them and the widowed mother of the husband so dependent, and (b) "person" in the case of an individual, sha ll include the family of such individual.
" Section 30C providing for the extent of ceiling area said: 160 "30C. Extent of ceiling area The ceiling area for a family consisting of five or le ss than five members shall be thirty standard acres of land; Provided that, where the members of a family exce ed five, the ceiling area in relation thereto shall be increased for each additional member by five standard acre s, so however that it does not exceed sixty standard acres of land.
Explanation A 'standard acre ' shall mean the ar ea of land which, with reference to its productive capacit y, situation, soil classification and other prescribed partic u lars, is found in the prescribed manner to be likely to yield ten maunds of wheat yearly; and in case of land n ot capable of producing wheat, the other likely produce there of shall, for the purpose of calculating a standard acre, be determined according to the prescribed scale so as to be equivalent in terms of money value to ten maunds of wheat: Provided that, in determining a ceiling area in terms of standard acres the money value of the produce of wellirrigated (chahi) land shall be taken is being equiv a lent to the money value of the produce of an equal area of un irrigated (barani) land.
" In exercise of the Rule making powers under the '1955 Act ', the State Government framed and promulgated The Rajasth an Tenancy (Fixation of Ceiling of Land) Government Rule s, 1963, which came into force on and with effect fr om 15.12.1963.
Rule 9 required that in order to enable t he Sub Divisional Officer to determine the ceiling area a p plicable to every person under Section 30C of the Act and to enforce the provisions of Section 30E, every land holder a nd tenant in possession of lands, in excess of the ceiling ar ea applicable to him, shall file a declaration within si x months from the notified date.
The law fixed 30 standa rd acres as the ceiling area.
Thereafter, successive amendmen ts were made to Chapter III B of the '1955 Act ' which, whi le maintaining the ceiling at 30 standard acres, howeve r, recognised certain transfers effected after 1958, which we re not originally so recognised in fixing the ceiling.
Aga in (by an amendment) of the year 1970, Section 30 (1) w as deleted.
The 1955 Act itself came to be included in the IX Schedule to the Constitution by a Parliamentary law.
T he challenge to 161 said inclusion was repelled by this Court.
On 1.1.1973, the Governor of the State of Rajasth an promulgated The Rajasthan Imposition of Ceiling on Agrilcu l tural Holdings Ordinance, 1973 under Article 213 of t he Constitution of India.
The Ordinance repealed the corr e sponding provisions relating to ceiling on agricultur al holdings contained in Section 5(6A) and Chapter III B of t he '1955 Act ' except to the extent indicated in the Seco nd proviso to Section 4(1) and Section 15(2) of the said Ordinance.
The Ordinance brought into existence a new concept of and standards for the "ceilingarea".
Certain transfers ma de by the land holders even during the operation of the old l aw were recognised as valid transfers for purposes of comput a tion of ceiling area under the new dispensation broug ht about by the Ordinance.
This Ordinance was replaced by t he 1973 Act which was made operative retrospectively fr om 1.1.1973 being the date of promulgation of the Ordinanc e. Section 40 of the '1973 Act ' repealed, as did the predece s sor Ordinance, both the old law in Chapter III B of t he '1955 Act ' and the earlier Ordinance for which it substituted.
Section 3, Section 4(1), Second Proviso and Section 40 of the 1973 Act require particular notice.
Section 3 provides: "3.Act to override other laws, contracts, etc.
The provisions of this Act shall have effect notwithstandi ng anything inconsistent contained in any other law for t he time being in force, on any custom, usage or contract or decree or order of a court or other authority.
" The Second Proviso to the Explanation appended to Se c tion 4(1) of the Act says: "Provided further that if the ceiling area applicable to a ny person or family in accordance with this section exceeds t he ceiling area applicable to such person or family accordi ng to the provisions of law repealed by section 40, in th at case the ceiling area applicable to such person or fami ly will be the same as was under the provisions of the sa id repealed law."
Section 40 provides: "40.Repeal and savings (1) Except as provided in seco nd proviso to sub section (1) of section 4 and in subsection (2) of Section 15 of this Act, the provisions of clause (6 A) of section 5 and Chapter III B of the Rajasthan Tenancy Act, 2955 (Rajasthan Act 3 of 2955) are hereby repealed except in the Rajasthan Canal Project area wherein such provisio ns shall stand repealed on the date on which this Act com es into force in that area.
(2) The Rajasthan Imposition of Ceiling on Agricu l tural Holdings Ordinance, 1973 (Rajasthan Ordinance I of 1973) is hereby repealed.
(3) Notwithstanding the repeal of the said Ord i nance under sub section (2), anything done or any acti on taken or any rules made under the said Ordinance shall be deemed to have been done, taken or made under this Act a nd section 27 of the Rajasthan General Clauses Act, 29 55 (Rajasthan Act 8 of 1955) shall apply to such repeal a nd re enactment. "
Section 41 contains a statutory declaration that the 'Act ' is for giving effect to the directive principles of State policy towards securing the principles specified in Article 39(b) and (c) of the Constitution of India.
Appellants ' learned counsel contend that when the re is a repeal of a statute followed by a re enactment of a n ew law on the same subject, with or without modification s, Section 6 of the General Clauses Act is not attracted a nd the question as to the extent to which the repealed law is saved would be dependent upon the express provisions of t he later statute or what must be held to be its necessary a nd completing implications.
It was urged that where the repeal is accompanied by a afresh Legislation on the same subject, the new law alone will determine if, and how far, the old law is saved and that in the absence of an express appeal to Section 6 of the General Clauses Act or of express prov i sions to similar effect in the new law itself, the prov i sions of the old law must be held to have been effac ed except whatever had been done, or having effect as if done.
This argument has the familiar ring of what Sulaiman, C J. had said on the matter in Rashid Ahmad vs Mt. Anis Fatima & Ors., AIR 1933 All. 3.
But it 163 must now be taken to be settled that the mere absence of an express reference to Section 6 of the General Clauses Act is not conclusive, unless such omission to invoke Section 6 of the General Clauses Act is attended with the circumstan ce that the provisions of the new law evince and make manife st an intention contrary to what would, otherwise, follow by the operation of Section 6 of the General Clauses Act, t he incidents and consequences of Section 6 would follow.
Appellants ' learned counsel submitted that the legislation in question pertaining, as it did, to the topic of agrarian reform was attendant with the difficulties naturally besetting a task so inextricably intermixed with compl ex and diverse and, indeed, often conflicting socio economic interests had had to go through stages of empirical evol u tion and that having regard to the wide diversity of policy options manifest between the earlier and the later legislations, the conclusion becomes inescapable that t he later legislation, made manifest an intention inconsistent with and contrary to the continuance of the rights a nd obligations under the repealed law.
It was agreed that wi th the experience gained in the implementation of the policy of agrarian reforms embodied in the repealed law, the n ew policy considerations reflected in the new and basical ly different thinking on some of the vital components of t he new policy were evolved and incorporated in the new law, so much so that the repealed and repealing laws represented t wo entirely different systems and approaches to the policy of agrarian reforms and the two systems, with their mark ed differences on basic and essential criteria underlying the ir policies, could not co exist.
It was urged that the stat e ment of objects and reasons appended to the 1973 Bill reco g nised that the legislative policy and technique underlyi ng the old law were ineffective in removing the great dispari ty that persisted in the holdings of agricultural lands or in diluting the concentration of agricultural wealth in t he hands of a few and recognised the necessity "to reduce su ch disparity and to re fix the ceiling area on the agricultur al holdings so that agricultural land may be available f or distribution to land less persons".
It was pointed out th at material criteria relevant to the effectuation of the ne w policy made manifest an intention contrary to the surviv al of the policy under the old law.
The wide changes in t he policy of the later law which reflected a new and basical ly different approach to the matter, included (i) a fundament al rethinking on the concept of the "ceilling area" by reduci ng the 30 standard acres prescribed in the old law to 18 stan d ard acres; (ii) the re definition of the very concept of 'family ' and 'separate unit '; (iii) the point of time wi th reference to which the composition and strength of t he family would require to be ascertained; (iv) a re 164 thinking, and a fresh policy as to the recognition of tran s fers made by land holders including even those transfe rs made during the period of operation of the old law; (v) t he point of time of the vesting of the surplus land in Gover n ment; (vi) the re defining of the principles and prioriti es guiding the distribution of the surplus land to landle ss persons, and (vii) the amount to be paid to the land holde rs for the excess land vesting in the State under the new law .
It was submitted that the two laws the old and t he new envisaged two totally different sets of values a nd policies and were so disparate in their context and effe ct as to yield the inevitable inference that the policy a nd scheme of the later law, by reason alone of the peculiar i ties and distinction of its prescriptions, should be held to manifest an intention contrary to the saving of the old l aw even respective pending cases.
The ceiling laws, it w as submitted, envisage and provide an integrated and inte r connected set of provisions and the marked distinctions in the vital provisions in the two sets of laws rendered t he continued applicability of the old law to any case, n ot already finally concluded thereunder, as impermissible in law as unreasonable in its consequences if permitted.
It w as urged that Section 3 of the 1973 Act was a clinching indic a tor in this behalf when it provided that the provisions of the later law "shall have effect notwithstanding anythi ng inconsistent contained in any other law for the time bei ng in force, or any custom, usage, or contract or decree or order of a Court or other authority" (underlining supplie d) and that the old Act, even if it was, otherwise, held to be in force in relation to pending cases, was clearly ove r borne by Section 3 of the new law.
When there is a repeal of a statute accompanied by reenactment of a law on the same subject, the provisions of the new enactment would have to be looked into not for t he purpose of ascertaining whether the consequences envisag ed by Sec.6 of the General Clauses Act ensued or not Sec. 6 would indeed be attracted unless the new legislation man i fests a contrary intention but only for the purpose of determining whether the provisions in the new statute ind i cate a different intention.
Referring to the way in whi ch such incompatibility with the preservation of old rights and liabilities is to be ascertained this Court in State of Punjab vs Mohar Singh, ; said: "Such incompatibility would have to be ascertained from a consideration of all the relevant prov i sions of the new Law and the mere absence of a saving clause is by itself not material.
The provision of Sec.6 of 165 the General Clauses Act will apply to a case of repeal ev en if there is simultaneous enactment unless a contrary inte n tion can be gathered from the new enactment.
Of course, the consequences laid down in Section 6 of the Act will app ly only when a statute or regulation having the force of a statute is actually repealed" .
Addressing itself to the question whether, having rega rd to the particular provisions of the 1973 Act, the inferen ce that the new law manifests such contrary intention cou ld justifiably be drawn, the High Court observed: "We have, therefore, to examine whether the n ew law expressly or otherwise manifests an intention to wi pe out or sweep away those rights and liabilities which h ad accrued and incurred under the old law . " "Having carefully gone through all the authoriti es cited by the parties as referred to above, we are of opini on that the new Act of 1973 does not have the sweeping effe ct of destroying all the rights accrued and liabilities i n curred under the old law . . " 10.
One of the indicia that the old law was not effac ed is in sec.15(2) of the new Act.
It provides that if t he State Government was satisfied that the 'ceiling area ' in relation to a person as fixed under the old law had be en determined in contravention of that law, a decided ca se could be re opened and inquired into it and the 'ceilin g area ' and the 'surplus area ' determined afresh in accordan ce with the provisions of the old law.
Another indicium is in Sec.40(1) read with the Second Proviso to Sec.4(1) o f ' 1973 Act ' which provides that if the ceiling area applicab le to a person or a family in accordance with the said Se c. 4(1) exceeds the 'ceiling area ' applicable to such perso ns or family, under the old law, then, the 'ceiling are a ' applicable to such person or family would be the same as w as provided under the provisions of the old law.
The High Court relied upon and drew sustenance for i ts conclusion from, what it called, the internal evidence in the Act which, according to the High Court, indicated th at pending cases were governed only by the old law.
The Hi gh Court referred to sec.15(2) inserted by Act No. 8 of 19 76 and what, according to it, necessarily flowed from it in support of its conclusion.
15(2) inserted by Act No. 8 of 1976 166 "(2) Without prejudice to any other remedy that m ay be available to it under the Rajasthan Tenancy Act, 19 55 (Rajasthan Act 3 of 1955), if the State Government, aft er calling for the record or otherwise, is satisfied that a ny final order passed in any matter arising under the prov i sions repealed by Section 40, is in contravention of su ch repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re opened, it ma y, at any time within five years of the commencement of th is Act, direct any officer subordinate to it to re open su ch decided matter and to decide it afresh in accordance wi th such repealed provisions." (Emphasis Supplied)
The High Court referring to the opening words of t he above provisions observed: "The opening words of the section 'without prejudice to a ny other remedy that may be available to it under the Rajasth an Tenancy Act, 1955 (Act No. 3 of 1955) ', clearly show th at the pending cases have to be governed by the old law.
If transactions past and closed have to be reopened and decid ed afresh under the provisions of the repealed law, and t he ceiling area under Chapter III of the Rajasthan Tenancy Ac t, 1955, has to be fixed under its repealed provisions, then it must follow as a necessary corollary, that the pending cas es must be decided under the old law.
Sri Lodha, learned counsel for the State of Raja s than submitted that the 'ceiling area ' had to be fixed wi th reference to the notified date i.e. 1.4.1966 by the statut o ry standards prescribed under the Chapter III B of the '19 55 Act '.
The two legislations are complementary to each oth er and constitute two tier provisions.
So far as the cases th at attracted and fell within Chapter III B of 1955 Act, as on 1.4.1966, would continue to be governed by that law as t he fights and obligations created by the said Chapter III B amounted to create rights and incur liabilities.
Shir Lod ha submitted that the view taken by the High Court was unexce p tionable.
On a careful consideration of the matter, we are i n clined to 167 agree with the view taken by the High Court on the poin t.
The reliance placed by appellants ' learned counsel on t he provisions of Sec. 3 of 1973 Act as detracting from t he tenability of the conclusion reached by the High Court on the point is, in our opinion, somewhat tenuous.
The conte n tion of the learned counsel is that the expression "notwit h standing anything inconsistent contained in any other l aw for the time being in force" in Section 3 of the 1973 A ct would exclude the operation of Chapter III B of the '19 55 Act ' which, according to the contention, even if kept ali ve would yet be a 'law for the time being in force ' and, ther e fore, be excluded by virtue of Section 3.
This contention has been negatived by the High Court and in our opini on rightly by placing reliance on the pronouncements of th is Court in Rao Shiv Bahadur Singh and Anr vs The State of Vindhya Pradesh, ; and ' Chief Inspector of Mines vs K.C. Thapar, ; The High Court he ld that the expression "law for the time being in force" do es not take within its sweep a law 'deemed to be in force ' and that, accordingly, the opening words of Sec. 3 relied up on by the Appellants ' learned counsel will not have an overri d ing effect so as to exclude the old law.
A saving provision in a repealing statute is n ot exhaustive of the rights and obligations so saved or t he rights that survive the repeal.
It is observed by this Court in 1.T. Commissioner, U.P. vs Shah Sadiq & Sons, at 1221: " . .In other words whatever rights are expressly saved by the 'savings ' provision stand saved.
Bu t, that does not mean that rights which are not saved by t he 'savings ' provision are extinguished or stand ipso fac to terminated by the mere fact that a new statute repealing t he old statute is enacted.
Rights which have accrued are sav ed unless they are taken away expressly.
This is the princip le behind Sec.6(c), . "
We agree with the High Court that the scheme of the 1973 A ct does not manifest an intention contrary to, and inconsiste nt with, the saving of the repealed provisions of sec.5(6 A) and Chapter III B of '1955 Act ' so far as pending cases a re concerned and that the rights accrued and liabilities i n curred under the old law are not effaced.
Appellant 's co n tention (a) is, in our opinion, insubstantial.
Re: Contention(b): This takes us to the next question whether in the prese nt cases 168 even if the provisions of Sec. 6 of the Rajasthan Gener al Clauses Act, 1955, are, attracted, the present cases did n ot involve any rights "accrued" or obligations "incurred" so as to attract the old law to them to support initiation or continuation of the proceedings against the land holde rs after the repeal.
It was contended that even if the prov i sions of the old Act were held to have been saved it cou ld not be said that there was any right accrued in favour of the State or any liability incurred by the land holders in the matter of determination of the 'ceiling area ' so as to attract to their cases the provisions of the old law.
T he point ' emphasised by the learned counsel is that the exces s land would vest in the State only after the completion of the proceedings and upon the land holder signifying h is choice as to the identify of the land to be surrendere d. Clauses (c) and (e) of Sec.6 of the Rajashtan Gener al Clauses Act, 1955, provide, respectively, that the repeal of an enactment shall not, unless a different intention a p pears, "affect any right privilege, obligation, or liabil i ty, acquired, accrued, or incurred under any enactment so repealed" or "affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligatio n, liability, fine, penalty, forfeiture, or punishment as aforesaid.
" For purposes of these clauses the "right" must be "accrued" and not merely an inchoate one.
The distincti on between what is and what is not a right preserved by Secti on 6 of the , it is said, is often one of great fineness.
What is unaffected by the repeal is a rig ht 'acquired ' or 'accrued ' under the repealed statute and n ot "a mere hope or expectation" of acquiring a right or liber ty to apply for a right.
In Lalji Raja vs Firm Hansraj, ; th is Court dealing with the distinction between the "abstra ct rights" and "specific rights" for the purpose of the oper a tion of Sec. 6 of said: "That a provision to preserve the right accru ed under a repealed Act 'was not intended to preserve t he abstract rights conferred by the repealed Act .
It only applied to specific rights given to an individual up on happening of one or the other of the events specified in statute ' See Lord Atkin 's observations in Hamilton Gell vs White, The mere right, existed at t he date of repealing statute, to take advantage of provisio ns of the statute repealed is not a 'right accrued ' within t he meaning 169 of the usual saving clause see Abbot vs Minister for Land s, and G. Ogden Industries pry. Ltd. vs Luca s, 15.
To ascertain whether these were 'accrued ' rights and 'incurred ' liabilities a reference Section 30E of the r e pealed law is necessary.
30 E of 1955 Act provides: "30 E. Maximum land that can be held and restri c tion on future acquisitions: (1) Notwithstanding anything contained in this A ct or in any other law for the time being in force, no pers on shaH, as from a date notified by the State Government in this behalf: (a) Continue to hold or retain in his possessi on in any capacity and under any tenure whatsoever land in excess of the ceiling area applicable to him, or (b) acquire, by purchase, gift, mortgage, assig n ment, lease, surrender or otherwise or by devolution or bequest, any land so as to effect an increase in the exte nt of his holding over the ceiling area applicable to him; Provided that different dated may be so notifi ed for different areas of the State.
(2) Every person, who, on such date, is in posse s sion of land in excess of the ceiling area applicable to him or who thereafter comes into possession of any land by acquisition under clause (b) of sub section (1), shal l, within six months of such date or within three months of acquisition, as the case may be, make a report of su ch possession or acquisition to, and shall surrender su ch excess land to the State Government and place it at t he disposal of the Tehsildar within the local limits of who se jurisdiction such land is situate.
. . . (Omitted as unnecessary) 170 (3) Any person failing intentionally to make a report or to surrender land as required by sub section ( 2) shall, on conviction, be punishable with a fine which m ay extend to one thousand rupees.
(4) Without prejudice and in addition to su ch conviction and fine the person retaining possession of a ny land in excess of the ceiling area applicable to him sha ll be deemed to be a trespasser liable to ejectment from su ch excess land and to pay penalty in accordance with clause ( a) of sub section (i) of section 183; Provided that the lands, from which a person sha ll be so ejected shaH, as for as may be, un encumbered lands.
(5) All lands coming to the State Government by surrender under sub section (2) or by ejectment under su b section (4) shall vest in it free from all encumberances.
. . (Omitted as unnecessary)" The rights and obligations under this provision had h ad to be determined with reference to the notified date i. e. 1.4.1966.
Referring to analogous provision of the Maharas h tra Agricultural Lands (Ceiling on Holdings) Act, 1961, th is Court in Raghunath vs Maharashtra, ; at 57 observed: "The scheme of the Act seems to be to determine t he ceiling area of each person (including a family) with refe r ence to the appointed day.
The policy of the Act appears to be that on and after the appointed day no person in t he State should be permitted to hold any land in excess of t he ceiling area as determined under the Act and that ceili ng area would be that which is determined as on the appoint ed day. "
Again in Bhikoba Shankar Dhumal (dead) by LRs.& Ors.vs Mohan Lal Punchand Tathed & Ors., 18 at 228, it was observed: "A close reading of the aforesaid provisions of the Act shows that the determination of the extent of su r plus land of a holder has to be made as on the appointed day.
If 171 any person has at any time after the fourth day of Augus t, 1959, but before the appointed day held any land (includi ng any exempted land) in excess of the ceiling area, su ch person should file a return within the prescribed peri od from the appointed day furnishing to each of the Collecto rs within whose jurisdiction any land in his holding is situa t ed, in the form prescribed containing the particulars of a ll land held by him.
If any person acquires, holds or com es into possession of any land including any exempted land in excess of the ceiling area on or after the appointed da y, such person has to furnish a return as stated above with in the prescribed period from the date of taking possession of any land in excess of the ceiling area . . "
A contention similar to the one urged for the appellan ts here that the title respecting the surplus land would ve st in the Government upon such land being taken possession of by Government after the declaration regarding the surpl us was noticed in that case.
But, it was held that the liabil i ty to surrender the surplus land would date back to t he appointed day.
This Court said: " .Any other construction would make t he Act unworkable and the determination of the extent of su r plus land of a holder ambulatory and indefinite . "
This was again reiterated in State of Maharashtra vs Ann a purnabai and Ors., [1985] Supp.SCC 273 at 275.
This Cou rt said: "Section 21 of the Act no doubt states that t he title of the holder of the surplus land would become vest ed in the State Government only on such land being taken po s session of after a declaration regarding the surplus land is published in Official Gazette.
But the liability to surre n der the surplus land relates back to the appointed day in case of those who held land in excess of the ceiling on t he appointed day.
Therefore, even if the holder dies befo re declaration of any part of his land as surplus land, t he surplus land is liable to be determined with reference to his holding on the appointed day . "
It is, therefore, seen that the right of the Sta te to take over excess land vested in it as on the appoint ed day and only the quantification remained to be worked out.
As observed by Lord Morris, in 172 Director of Public Works vs Ho Po Sang, [1961] 2 All.E. R. 721.
"It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, so me investigation or legal proceeding is necessary.
The right is then unaffected and preserved.
It will be preserved even if a process of quantification is necessary.
But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so me right should be or should not be given.
On a repeal t he former is preserved by the Interpretation Act.
The latter is not.
The above passage was referred to with approval in M. section Shivananda vs K.S.R.T. Corpn., ; at 81. 18.
We agree with the High Court that the right of the State to the excess land was not merely an inchoate rig ht under the Act, but a right "accrued" within the meaning of sec.6 (c) of the Rajasthan General Clauses Act, 1955, a nd the liability of the land owner to surrender the excess la nd as on 1.4.1986 was a liability "incurred" also within t he meaning of the said provision.
There is no substance in contention (b) either.
These Appeals, Special Leave Petitions and t he WritPetition, accordingly, fail and are dismissed.
In t he circumstances of the case, there will be no order as to costs.
N.P.V. Appeals & Petitions dismissed.

summary:
Chapter III B of the Rajasthan Tenancy Act, 1955 pr e scribing a ceiling on holdings of agricultural lands, a nd cl.(6A) of section 5, defining 'ceiling area ' were introduc ed into the Act by the Rajasthan Tenancy (Amendment) Act, 196 0.
The notified date under the 1955 Act was 153 1.4.1966.
Subsequentiy, on 1.1.1973, by the Rajasthan Imp o sition of Ceiling on Agricultural Holdings Ordinance, 197 3, these provisions were repealed, except to the extent ind i cated in the second proviso to section 4(1) and section 15(2) of t he Ordinance.
Certain transfers made by the landholders, ev en during the operation of the old law, were recognised as valid transfers for the purpose of computation of ceili ng area under the new dispensation brought about by the Ord i nance.
The Ordinance was replaced by the 1973 Act wi th retrospective effect from 1.1.1973.
Section 40 of the A ct repealed both the old law in Chapter III B of the 1955 A ct and the earlier Ordinance.
After the 1973 Act came into force on 1.1.1973 cases f or determination of 'ceiling areas ' under Chapter III B of t he 1955 Act came to be initiated and were sought to be conti n ued under the repealed Chapter III B against the appellan ts including the appellants in C.A. No. 1003(N) of 1977 w ho claimed to have entered into possession and cultivation of certain parcels of land, pursuant to agreements to se ll dated 28.4.1957, said to have been executed, in their favo ur by the then land holder.
The sale deeds in this case we re passed on 22.8.1966, after the notified date.
Proceedin gs for the fixation of ceiling area in the hands of the th en land holder were commenced under the repealed Chapter II IB of the 1955 Act, and the purchases in question were held to be hit by section 3ODD of the repealed Chapter III B, as appe l lants did not possess the residential qualifications, pr e scribed by the section for the eligibility for recogniti on of such transfers.
The appellants approached the High Court, contendi ng that after the coming into force of the 1973 Act which by section 40, repealed Chapter III B of the 1955 Act, recourse cou ld not be had to the repealed law for purposes of commencemen t, conduct and conclusion of any proceedings for fixation of ceiling as prescribed under the old law.
Rejecting the contention of the appellants, the Hi gh Court held that the new Act of 1973 did not have the swee p ing effect of destroying all the rights accrued and liabil i ties incurred under the old Act.
The correctness of the view of the High Court, w as challenged in the appeals before this Court.
Some other wr it petitions were also filed directly in this Court.
On the questions whether (a) the scheme contemplated by the 1973 Act and the different criteria and standards f or the determination of ceiling area envisaged in it and, in particular, having regard to the 154 limited scope of the saving provision of section 40 which, qui te significantly, omitted to invoke and attract section 6 of t he Rajasthan General Clauses Act 1955 to .he repeal of section 5(6 A) and Chapter III B of the '1955 Act ', must be construed a nd held to manifest an intention contrary ' to and inconsiste nt with the keeping alive or saving of the repealed law so as to be invoked in relation to and applied for the pendi ng cases which had not been concluded under the old law befo re the repeal; and (b) even if section 6 of the Rajasthan Gener al Clauses Act 1955 was attracted and the old law was saved f or the purpose, provisions of the old law could not be invok ed as no right had been "accrued" in favour of the State in relation to the surplus area determinable under the old l aw nor any liability incurred by the land holders under the o ld law so as to support the initiation of the proceedings f or fixation of ceiling area under the old law after its repea l. Dismissing the appeals, Special Leave Petitions and Wr it Petitions, this Court, HELD: 1.1 When there is a repeal of a statute accomp a nied by re enactment of a law on the same subject, t he provisions of the new enactment would have to be looked in to not for the purpose of ascertaining whether the consequenc es envisaged by section 6 of the General Clauses Act ensued or n ot but only for the purpose of determining whether the prov i sions in the new statute indicate a different intentio n. [164F G] State of Punjab vs Mohan Singh, referr ed to.
1.2 Mere absence of an express reference to section 6 of t he General Clauses Act is not conclusive, unless such omissi on is attended with the circumstance that the provisions of t he new law evince and make manifest and intention contrary to what would, otherwise, follow by the operation of the Se c tion, the incidents and consequences of section 6 would follo w. [163A B] B. Bansgopal vs Emperor, AIR 1933 All 669 referred to.
1.3 The scheme of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 does not manifest an inte n tion contrary to, and inconsistent with, the saving of t he repealed provisions of section 5(6A) and Chapter III B of t he Rajasthan Tenancy Act, 1955 so far as pending cases a re concerned, and the rights accrued and liabilities incurr ed under the old law are not effaced.
The indicia that the o ld law was not effaced are in section 15(2) and section 40(1) read wi th second proviso to section 4(1) of the new Act.
[167G; 165E] 155 1.4 The High Court was right in holding that the openi ng words of section 15(2) "without prejudice to any other reme dy that may be available to it under the Rajasthan Tenancy Ac t, 1955" clearly showed that the pending cases had to be go v erned by the old law, and if transactions past and clos ed had to be reopened and decided afresh under the provisio ns of the repealed law, and the ceiling area under Chapter I II of the 1955 Act had to be fixed under its repealed prov i sions, then it must follow, as a necessary corollary, th at the pending cases must be decided under the old law, a nd that the expression "law for the time being in force" d id not take within its sweep a law "deemed to be in force" an d, therefore, the opening words of section 3 of 1973 Act would n ot have an overriding effect so as to exclude the old la w. [167A D] Rao Shiv Bahadur Singh and Anr.
vs The State of Vindh ya Pradesh; , and Chief Inspector of Mines vs K.C. Thapar; , referred to.
A saving provision in a repealing statute is n ot exhaustive of the rights and obligations so saved or t he rights that survive the repeal.
[167D E] 1.
T. Commissioner U.P. vs Shah Sadiq and Sons, AIR 19 87 SC 1217 @ 1221 referred to.
3.1 For purpose of clauses (c) and (e) of the Rajasth an General Clauses Act, 1955, the "right" must be "accrued" a nd not merely an inchoate one.
the distinction between what is and what is not a right preserved by section 6 of the Gener al 'Clauses Act is often one of great fineness.
What is una f fected by the repeal is a right 'acquired ' or 'accrue d ' under the repealed statute and not "a mere hope or expect a tion" of acquiring a right or liberty to apply for a righ t. [168E] 3.2 The right of the State to the excess land was n ot merely an inchoate right under the Rajasthan Tenancy Ac t, 1955, but a right "accrued" within the meaning of section 6(c) of the Rajasthan General Clauses Act, 1955.
[172D] The rights and obligations under section 30E of the 1955 A ct had had to be determined with reference to the notified da te i.e. 1.4.1966.
The right of the State, to take over exce ss land, vested in It as on the appointed date, and only t he quantification remained to be worked out.
The liability of the land owner to surrender the excess land as on 156 1.4.1966 was a liability "incurred" also within the meani ng of the said provision.
[170E;171H; 172D] Lalji Raja vs Firm Hansraj, ; ; Raghuna th vs Maharashtra; , at 57; Bhikoba Shank ar Dhumal (dead) by LRs & Ors.
vs Mohan Lal Punchand Tathed Ors.
; , at 228; State of Maharashtra vs Annapurnabai and Ors., [1985] Supp.
SCC 273 at 275; Direct or of Public Works vs Ho Po Sany, ; a nd M.S. Shivananda vs K.S.R. Corpn., ; at 81 r e ferred to.


judgement:
ivil Appeal No. 2106 of 1989.
From the Judgment and Order dated 15.7.1987 of the Gauhati High Court in Second Appeal No. 22 of 1981.
274 N.D. Garg and Rajeev Garg for the Appellant.
Anil Dev Singh, Ms. Indu Goswami, P. Parmeshwaran and Ms. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Heard arguments of both the parties.
This appeal on special leave is against the judgment and decree passed by the Gauhati High Court on July 15, 1987 in Second Appeal No. 22 of 1981 reversing the judgment and decree dated July 24, 1981 made by the Additional District Judge, West Tripura District, Agartala setting aside the judgment and decree passed by the Munsiff, Sadar, Tripura in Title Suit No. 33 of 1973 dismissing the Suit without costs.
The plaintiff appellant was enrolled as a Constable No. 66922 189 under 92 Bn, BSF in Tripura and he was serving as such since 1966.
He alleged to have been confirmed in the said post while so posted to B.O.P. at Ajgar Rahamanpur being a member of the 6th platoon under B. Company Commander Radhanagar.
In 1971, he was granted leave from 25.10.71 to 30.10.1971 on account of the death of his father.
As the Sradh ceremony could not be performed within the aforesaid time and he was suffering from serious illness he made an application requesting for extension of leave supported by a medical certificate.
On December 12, 1971 the appellant received a communication from the Commandant stating that as he was absent without leave from 31.10.1971 so he (the Commandant) was of the opinion that because of this absence without leave for a long period his further retention in service was undesirable.
He proposed to dismiss him from service.
The appellant was asked to submit his explanation against the imposition of this penalty before December 25, 1971.
The appellant sent a telegram on December 21, 1971 but without any redress.
On January 5, 1972 he received an order from the Commandant, 92 Bn.
BSF informing him that he had been dismissed from service.
On January 10, 1972 the appel lant again prayed for permitting him to join his service but he was not allowed to do so.
The appellant preferred an appeal to the Inspector General, BSF (Police), Government of Tripura on February 1, 1972 which was received by him on February 3, 1972.
No relief was granted to him.
275 The appellant as plaintiff after serving a notice under Section 80 of the Code of Civil Procedure and as no redress was given to him, filed Title Suit No. 33 of 1973 in the Court of Munsiff, Sadar, Tripura for a declaration that the order of dismissal from service was illegal and he was still in service.
The defendants respondents contested the Suit and plead ed that the plaintiff was absent from duty from 31.10.1971 without any leave at a critical time when India was at war with Pakistan.
The Commandant, 92 Battalion, BSF by notice dated December 15, 1971 intimated him that his retention in service was undesirable because of his absence for a long period and as such it was proposed to dismiss him from service.
He was given opportunity to urge anything in his defence but he did not avail of it by sending any reply.
He was therefore, dismissed from service by the Commandant by order dated January 5, 1972 in accordance with the provi sions of and the Rules flamed thereunder.
The Munsiff held that the plaintiff was given reasonable opportunity before the Commandant dismissed him from serv ice.
The suit was, therefore, dismissed.
Against the said judgment and decree the plaintiff filed an appeal which was registered as Title Appeal No. 7 of 1979 in the Court of Additional District Judge, West Tripura District Agartala.
The said appeal was allowed and the suit was decreed.
It was held that the impugned order of dismiss al from service was illegal and bad as the same was not made by Security Force Court and no such Court was constituted.
The order passed by Commandant under Section 11(2) of the Act read with Rule 177 of the Rules of 1969 cannot be up held.
It was also held that the impugned order was bad as it was contrary to the constitutional mandate embodied in Article 311 of the Constitution of India as no opportunity of hearing was given and the procedural safe.
guards as contained in Chapters VII to XI of the Rules were not fol lowed for arriving at a decision of guilt against the appel lant by Security Force Court.
Feeling aggrieved by the said judgment and decree the respondents preferred a second appeal being S.A. No. 22 of 1981 in the Gauhati High Court.
On July 15, 1987 the High Court decreed the said appeal on reversing the judgment and decree of the lower appellate court and dismissing the suit holding inter alia that the order of dismissal from service in question had been made in accordance with the 276 powers conferred on the Commandant, B.S.F. under the provi sions of Section 11(2) and (4) of read with Rule 177 of Border Security Force Rules, 1969.
It was also held that this was an independent power conferred upon the Commandant apart from the power conferred upon the Security Force Court under Section 48 of the said Act for imposition of punishment of dismissal from service in respect of the offences specified in Section 19 of the said Act.
The plaintiff appellant filed the instant appeal on special leave against the said judgment and decree passed by the High Court in the said Second Appeal.
The only challenge to the judgment in appeal is that the order of dismissal dated January 5, 1972 passed by the Commandant is illegal and unwarranted in as much as there was no order made by the Security Force Court for passing the impugned order of dismissal for an offence made under Section 19 of the following the procedure contained in chapters VII to XI of the Rules framed under Section 141 of the .
The has been enacted with a view to provide for the constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith, by the Parlia ment and the same has been enforced by Notification No. S.O. 732 dated the 20th February, 1969.
Section 4 of to be referred to hereinafter in short as BSF Act provides that: "There shall be an armed force of the Union called the Border Security Force for ensuring the security of the borders of India.
" Sub Section (2) further provides that: "Subject to the provisions of this Act, the Force shall be constituted in such manner as may be prescribed and the conditions of serv ice of the members of the Force shall be such as may be prescribed.
" Section 10 says that: "Subject to the provisions of this Act and the rules, the 277 Central Government may dismiss or remove from the service any person subject to this Act.
" Section 11 which is very relevant for the decision of the instant case is quoted herein below: "(1) The Director General or any Inspector General may dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer.
(2) An officer not below the rank of Deputy InspectorGeneral or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed.
(3) Any such officer as is mentioned in sub section (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or subordinate officer.
(4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules.
" Chapter III specifies the offences under the BSF Act.
Section 19 of the said Chapter states that: "Any person subject to this Act who commits any of the following offences, that is to say: (a) absents himself without leave; or (b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force, to which he belongs, has been ordered on active duty, fails, without sufficient cause, to rejoin without delay; or . . . . . . etc.
278 shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
" All the offences incorporated in Chapter III are convictable by the Security Force Court.
Chapter IV which starts from Section 48 provides for punishment to be awarded by the Security Force Courts in respect of the of fences specified therein as under: "(a) death; (b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody; (c) dismissal from the service; . . . . . etc.
" Section 50 further provides that: "A sentence of a Security Force Court may award in addition to, or without any one other punishment, the punishment specified in clause (c) of sub section (1) of Section 48, and any one or more of the punishments specified in clauses (e) to (1) (both inclusive of that sub section.)" Chapter VII deals with the procedure of Secu rity Force Courts.
Chapter IX prescribes the procedure to be followed by Security Force Courts for thai of offences.
The Central Government has framed Rules in exercise of powers conferred by sub section (1) and (2) of Section 141 of the BSF Act, 1968 (Act 47 of 1968).
These Rules are known as BSF Rules, 1969.
Rule 177 prescribes that: "The Commandant may, under sub section (2) of Section 11, dismiss or remove from the service any person under his 279 command other than an officer or a subordinate officer.
" On a consideration of the provisions of the BSF Act, it is evident that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the Rules framed thereunder.
It is also evident that Chapter III which starts with Section 14 of the said act specifies the various offences under the Act.
Section 19 of the said Chapter refers amongst others the following offences: "(a) absents himself without leave; or (b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force, to which he belongs, has been ordered on active duty, fails, without sufficient cause to rejoin without delay; or . . etc.
" All these offences are to be tried by the Security Force Court which will punish the offenders with sentences as provided in the Act.
Section 48 specifically provides that the Security Force Court may inflict punishment in respect of the following offences committed by the person subject to the said Act according to the following scale: "(a) death; (b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody; (c) dismissal from service . . . . . . etc.
" Section 50 further provides that: "A sentence of a Security Force Court may award in addition to, or without any one other punishment, the punish 280 ment specified in clause (c) of sub section (1) of Section 48. . " A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment.
The order of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the Rules framed thereunder in as.
much as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force Court as required under the provisions of the Act.
Section 11(2) of the Act empowers the Commandant who is the Prescribed Officer to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of the said Act and the Rules.
It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of the Service, without sufficient cause is tried by the Secu rity Force Court and punishment is awarded therefore as provided in Section 48 and Section 50 of the said Act, the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without sufficient cause, is illegal and as such it is liable to be quashed and set aside.
It has been further submitted that the power of the Commandant as a Prescribed Officer under Section 11(2) being subject to sub section 4 of Section 11 i.e. the exercise of this power is subject to the provisions of the Act and the Rules, that is the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant and awarded punishment in accordance with the procedure prescribed by the Act and the Rules framed thereunder.
The power of the Commandant to order a member of the Force other than an Officer or Subordinate Officer from service as provided under the Act read with Rule 177 of the Rules is subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force following the procedure prescribed, such an order cannot be made and enforced.
It has, therefore, been submitted that the impugned judgment rendered by the High Court which held that the power under Section 11(2) read with Rule 177 of the said Rules was an independent power conferred on the Prescribed Authority i.e. the Commandant, is not in accordance with law and as such the same requires to be set aside.
It has, however, been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authori ty under Section 281 1(2) to dismiss any person under his command from the service read with Rule 177 of the said Rules is an independ ent power as held by the High Court and as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal.
We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 11(2) of the Act empowering the Prescribed Authority i.e. the Comman dant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with Rule 177 of the said Rules is an independent power which can be validity exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same.
The provision of sub section 4 of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without suffi cient cause and holding him as undesirable cannot be exer cised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law.
The Prescribed Authority i.e. the Commandant is competent to exercise the power under Section 11(2) of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules.
It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifi cally provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case.
In this case though any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without suffi cient cause.
The appellant did not avail of this opportunity and he did not file any show cause to the said notice.
Thus the principle of natural justice was not violated as has been rightly held by the High Court.
No other point has been urged before us by the learned counsel appearing on behalf of the appellant.
282 In the premises aforesaid, we do not find any merit in this appeal which is accordingly dismissed without costs.
The judgment and decree of the High Court in S.A. No. 22 of 1981 is confirmed.
N.V.K. Appeal dis missed.

dataset_name: IN-Abs

summary:
The appellant was enrolled as a Constable in the BSF and was serving as such since 1966.
He was confirmed in the said post.
In 1971, he was granted leave from October :25, 1971 to October 30, 1971 on account of the death of his father.
As the Shrad ceremony could not be performed within the aforesaid time, and he was suffering from serious illness he made an application requesting for extension of leave sup ported by a medical certificate.
On December 12, 1971, the appellant received a communication from the Commandant stating that as he was absent without leave from October 31, 1971, that because of such absence without leave for a long period his further retention in service was undesirable, and that it was proposed to dismiss him from service.
He was asked to submit his explanation against the imposition of this penalty.
The appellant sent a telegram on December 21, 1971, but without any redress.
On January 5, 1972 he re ceived an order of the Commandant informing him that he had been dismissed from service.
On January 10, 1972, the appel lant again sent an application requesting that he may be permitted to join his service, but he was not allowed to do so.
The appellant preferred an appeal to the Inspector General, BSF on February 1, 1972 but no relief was granted.
The appellant after serving a notice under section 80 of the Code of Civil Procedure filed a civil suit for a decla ration that the order of dismissal from service was illegal and he was still in service.
The respondent contested the suit and pleaded that the appellant was absent from duty from October 31, 1971 without any leave at a critical time when India was at war with Pakistan, and that the Commandant by his notice dated 15 December 1971 intimated: that his retention in service was undesirable because of his absence for a long period, that he was given an opportunity to urge his defence which he did not avail of by sending 272 any reply, and that the Commandant had therefore dismissed him from service by his order dated January 5, 1972.
The Munsiff held that the appellant had been given a reasonable opportunity before the Commandant dismissed him from serv ice, and dismissed the civil suit.
The appeal filed by the appellant was allowed by the Additional District Judge and the suit was decreed.
It was held that the order of dismissal from service was illegal and bad, as the same was not made by the Security Force Court and no such court had been constituted.
The Order passed by the Commandant under section 11(2) of the Border Security Force Act and read with rule 177 of the Rules could not therefore be upheld.
It was further held that the order was bad as it was contrary to the constitutional mandate embodied in Article 311 of the Constitution, as no opportu nity of hearing was given, and the procedural safeguards contained in Chapters VII to XI of the Border Security Rules were not followed.
The High Court decreed the second appeal preferred by the respondents, reversed the judgment and decree of the lower appellate court, and dismissed the suit.
It was held that the order of dismissal of the appellant from service had been made in accordance with the powers conferred on the Commandant, BSF under the provisions of section 11(2) and (4) of the read with rule 177 of the Border Security Forces Rules, 1969.
It was fur ther held that this was an independent power conferred upon the Commandant apart from the power conferred upon the Security Force Court under section 28 for imposition of the punishment for dismissal from service in respect of offences specified in section 19 of the Act.
In the appellant 's appeal to this Court, it was contend ed that unless and until the offence of absence without leave or overstaying leave granted to a member of the serv ice, without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in sections 48 and 50 of the Act, the order of dismissal from service by the Commandant is illegal and as such it is liable to be quashed and set aside.
Dismissing the appeal, it was, HELD: 1.
The Prescribed Authority i.e. the Commandant is competent to exercise the power under section 11(2) of the BSF Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules.
[281E F] 273 2.
The has been enacted with a view to provide for the constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith.
The services of the enrolled persons under the Act are governed by the provisions of the Act as well as the Rules framed thereunder.
[276D E] 3.
All the offences mentioned under sections 14 and 19 of the Act are to be tried by the Security Force Court, which will punish the offenders with sentences as provided in the Act.
A procedure has been provided by the BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment.
[279E; 280B] 4.
The power under Section 11(2) empowering the Comman dant who is the Prescribed Authority to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with rule 177 of the Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer, and it has noth ing to do with the power of the Security Force Court for dealing with the offences, such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same.
[281B D] 5.
Rule 6 of the Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circum stances of the case.
[281F] In the instant case, though any procedure has not been prescribed by the Rules, still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause.
The appellant did not avail of this opportunity and he did not file any show cause to the said notice.
Thus the principle of natural justice was not violated as has been rightly held by the High Court.
[281G H]


judgement:
ivil Appeal No. 4042 of 1988.
From the Judgment and Order dated 17.12.
1987 of the Bombay High Court in W.P. No. 1048 of 1982.
S.C. Gupta and M.N. Shroff for the Appellant.
Anil Dev Singh, Ms. Nayana Buch, M.J. Paul, Kailash Vasdev, Ms. Subhashini and Mrs. Kitty Kumarmangalam for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This civil appeal by special leave is di rected against judgment dated 17.12.1987 of the High Court of Bombay in Writ Petition No. 1048 of 1982 instituted by the appellant, which is a Co operative Credit Society.
The 1st respondent is a Federation representing the employees of the appellant amongst others.
Setting aside the award of the Industrial Tribunal, the High Court held that the appellant was liable to pay its employees bonus at the rate of 20 per cent of its total annual earnings for the years 1975 76, 1976 77 and 1977 78.
The principal contention urged at the Bar against the impugned judgment is that the High Court went wrong in directing the appellant to pay bonus without regard to various amounts invested by it as permitted under the rele vant provisions of the Maharashtra Cooperative Societies Act, 1960 (the "Co operative Societies Act") and other amounts carried forward to its reserve fund.
The appellant 's counsel contends that the High Court did not correctly read the provisions of Section 6(d) of the (The "Bonus Act") and item (4) of the Third Schedule to the said Act.
Counsel further contends that the High Court was not justified in.
placing reliance on the Explanation to the Third Schedule to the Bonus Act as 268 it has no relevance to co operative societies.
The Explana tion, he says, is relevant only to items (1), (2) and (3) of the Third Schedule to the Bonus Act.
We shall now read the relevant provisions.
Section 6 of the Bonus Act refers to various sums which are deductible from gross profits.
It reads: "6.
Sums deductible from gross profits.
The following sums shall be deducted from the gross profits as prior charges, namely: (d) such further sums as are specified in respect of the employer in the Third Sched ule.
" The employer in question being a co operative society, it is item (4) of the Third Schedule to the Bonus Act that is applicable.
That reads: Item Category of employer Further sums to be deducted NO.
(2) (3) 4.
Co operative Society (i) 8.5 per cent of the capital invested by such society in its establishment as evidenced from its books of accounts at the commencement of the accounting year; (ii) such sums as has been carried forward in res pect of the accounting year to a reserve fund under any law relating to co operative societies for the time being in force.
269 In column (3) of item (4), two types of amounts are deductible from the gross profits as prior charges.
Firstly, 8.5 per cent of the capital invested by a co operative society in its establishment is deductible.
Secondly, amounts carried forward to a reserve fund in compliance with any provisions of law relating to co operative societies are also deductible.
(The expression 'capital ' is not defined under the Bonus Act.
It must, therefore, be understood in the sense in which that expression is generally understood.
That means all amounts which are classified as capital in contrast to revenue must qualify for deduction subject to the limit of 8.5 per cent, provided such capital is invested by the society in its establishment as evidenced by its books of accounts at the commencement of the accounting year.
Any such capital upto 8.5 per cent is thus deductible.
Furthermore, all sums which have been carried forward in respect of the relevant accounting year to a reserve fund as required under any law applicable to co operative societies for the time being in force are also deductible from gross profits.) This means that reserve fund created in terms of Section 66of the Co operative Societies Act is deductible under item (4) of the Third Schedule to the Bonus Act.
Section 66 reads.
(1) Every society which does, or can, derive a profit from its transactions shall maintain a reserve fund.
(2) Every society shall carry at least one fourth of the net profits each year to the reserve fund; and such reserve fund may sub ject to the rules made in this behalf, if any, be used in the business of the society or may, subject to the provisions of section 70, be invested, as the State Government may by general or special order direct, or may, with the previous sanction of the State Government, be used in part for some public purpose likely to promote the objects of this Act, or for some such purpose of the State, or of local interest: Provided that, the Registrar may, having regard to the financial position of any socie ty or class of societies, fix the contribution to be made to the reserve fund under this sub section at a lower rate, but not lower than one tenth of the net profits of the society or societies concerned." Accordingly, all such amounts held by the society as reserve fund in terms of Section 66 of the Co operative Societies Act must qualify for deduction.
The minimum re serve fund that is required to be 270 maintained by Section 66 of the Co operative Societies Act is one fourth of the net profits of each year.
(If larger amounts are carried forward to the reserve fund in terms of Section 66, all such amounts will come within the ambit of item (4) of the Third Schedule to the Bonus Act and qualify for deduction.) Accordingly, we hold that 8.5 per cent of the capital invested by the society in its establishment as disclosed by its books of accounts, together with amounts carried forward to a reserve fund in compliance with Section 66 and other provisions of the Co operative Societies Act read with the rules made thereunder (See Rule 54 of the Maharashtra Co operative Societies Act, 1954) will be de ductible in terms of Section 6 of the Bonus Act.
We must, however, point out that the High Court was not justified in placing any reliance on the Explanation to the Third Schedule to the Bonus Act for that has, as tightly pointed out by the appellant 's counsel, no relevance to a co operative society.
In this connection, we place on record that counsel on both sides agree that reference to 20 per cent in paragraph 11 of the judgment was wrong in respect of the year 1975 76.
They agree that for that year, the correct figure is 18.78 per cent.
Accordingly, we hold that reference to 20 per cent in paragraph 11 of the impugned judgment must be read as 18.78 per cent for the year 1975 76 and 20 per cent for the succeeding two years.
Subject to what we have stated above, we hold that the High Court was right in directing the appellant society to pay bonus to its employees.
The society is liable to pay bonus at the rate of 20 per cent for the years 1976 77 and 1977 78 and 18.78 per cent for the year 1975 76.
In the circumstances, the appeal must fail and is ac cordingly dismissed.
The parties shall bear their respective costs.

summary:
The appellant Co operative Society has filed this appeal by special leave against the High Court 's order passed in a writ petition filed by it whereby the High Court set aside the award of the Industrial Tribunal.
The High Court in the impugned order held that the appellant is liable to pay to its employees bonus at the rate of 20 per cent of its total annual earnings for the years 1975 76, 1976 77 and 1977 78.
The appellant contends that the High Court went wrong in directing the appellant to pay bonus with regard to various amounts invested by it as permitted by the relevant provi sions of the Maharashtra Cooperative Societies Act 1960, and the amounts carried forward to its reserve fund.
According to the appellant, the High Court neither read the provisions of Sec.
6(d) of the Bonus Act 1965 correctly nor was it justified in relying on the Explanation to the 3rd Schedule to the Bonus Act.
Dismissing the appeal subject to the modification indi cated in the judgment hereinbelow, this Court, HELD: The expression "capital" is not defined under the Bonus Act.
It must therefore be understood in the sense in which that expression is generally understood.
That means all amounts which are classified as capital in contrast to revenue must qualify for deduction subject to the limit of 8.5 per cent, provided such capital is invested by the Society in its establishment as evidenced by its books of accounts at the commencement of the accounting year.
Any such capital upto 8.S per cent is thus deductible.
Further more, all sums which have been carried forward in respect of the relevant accounting year to a reserve fund as required under any law applicable to Co operative Societies for the time being in force are also deductible from gross profits.
[269B D] 267 Accordingly all such amounts held by the Society as reserve fund in terms of Sec. 66 of the Co operative Socie ties Act must qualify for deduction.
[269H] If larger amounts are carried forward to the reserve fund in terms of Sec. 66, all such amounts will come within the ambit of item (4) of the 3rd Schedule to the Bonus Act and qualify for deduction.
[270A B]


judgement:
riminal Appeal 573 of 1988.
From the Judgment and Order dated 9.8.1988 of the Bombay High Court in W.P. No. 627 of 1988.
417 Sirish Gupta and V.B. Joshi for the Appellant.
V.C. Mahajan, A. Subba Rao, P. Parmeswaran, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by special leave under Article 136 of the Constitution of India is preferred against the Judgment made in Criminal Writ Petition No. 627/88 on the file of the High Court of Judicature at Bombay dismissing the writ petition filed by the appellant assail ing the validity and legality of the order of detention dated 28th April 1988 passed against him by the Joint Secre tary, Ministry of Finance (Department of Revenue), Govern ment of India, New Delhi under Section 3(1) of the Conserva tion of Foreign Exchange and Prevention of Smuggling Activi ties Act, 1974 (hereinafter referred as the 'Act ') with a view to preventing the appellant from indulging in activi ties prejudicial to the augmentation of country 's foreign exchange resources.
The detaining authority on the material placed before him arrived to a conclusion that the detenu (appellant) was indulging in receiving and making payments in India unautho risedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regula tion Act, 1973 and reached his subjective satisfaction that the said unauthorised and illegal transactions carried on by the detenu had affected the foreign exchange resources of the country adversely and hence it was necessary to direct the detention of the detenu by the impugned order.
The appellant having become unsuccessful before the High Court, has now approached this Court assailing the order of deten tion on several grounds.
But the learned counsel for the appellant confined his argument only on the ground of undue delay caused by the Central Government in disposing of the representation of the detenu in violation of Article 22(5) of the Constitution of India.
According to the learned counsel, the detenu had forwarded his representation dated 16.6.88 through the Superintendent of the Central Prison, Bombay to the detaining authority and the Central Government and he received the order of rejection dated 19th July 1988 on 26th July 1988 i.e. after a period of 40 days from the date of making his representation.
A contention based on the delay of 40 days in the disposal of the representation was advanced before the High Court which for the reasons men tioned in paragraph 3 of its judgment based on the explana tion given in the subsequent return 418 dated 5th August 1988 filed by the Under Secretary, Ministry of Finance, Government of India had rejected the same though was not satisfied with the earlier return of the detaining authority.
The explanation given in the subsequent return recites that the representation forwarded by the detenu was received in the COFEPOSA Section of Ministry of Finance on June 27, 1988 and that after receiving the comments from the sponsoring authority on 11.7.88 the file was forwarded to Central Government.
Meanwhile the representation forwarded to the detaining authority was rejected on 11.7.88 itself.
The said file was received in the office of the Minister of State (Revenue) on 12.7.88 but the Minister of State was on tour and on his return the representation was forwarded to the Finance Minister on 17.7.88 and the file was received back in COFEPOSA Section on 19.7.88 and the order of rejec tion was communicated to the detenu who received it on 26th July 1988.
This explanation has been accepted by the High Court.
The learned counsel for the appellant has vehemently argued before us that there had been undue and unexplained delay of 11 days between the date of submission of the representation by the detenu to the Superintendent of Cen tral Prisons, Bombay for transmission to the Central Govern ment and the date of receipt of the representation by the Ministry of Finance and this unexplained delay has vitiated the order of detention.
It is seen from the impugned judgment, a similar conten tion was also raised before the High Court but that conten tion has not been properly disposed of.
When this contention was urged before us, the learned counsel for the respondent sought time for filing an affidavit from the Jail Superin tendent showing the date of communication of the representa tion to the Government.
Accordingly, an affidavit dated 17.3.89 sworn by the Superintendent of Prisons, Bombay was filed attempting to explain the delay that had occasioned in transmitting the representation.
The explanation reads thus: "I say that 16.6.88 is the date of receipt of the detenu 's representation and the said representation was forwarded to the Ministry on 22.6.88.
Further I have to submit that on 19th June, 1988 there was a holiday being Sunday.
" From the above explanation, it is clear that though the detenu had handed over the representation to Superintendent of Central Prison on 16.6.88, the latter has callously ignored it and left the same unattended for a period of 7 days and forwarded the same to the Government at his pleasure on 22.6.88.
This Superintendent of 419 Central Prison has not given any satisfactory and Convincing explanation as why he had kept the representation with himself except saying that during the period of 7 days there was a Sunday.
This Court in Abdul Karim and Others vs State of West Bengal; , held: "The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality.
" This view was reiterated in Rashid SK.
vs State of West Bengal, while dealing with the constitutional requirement of expeditious consideration of the petitioner 's representation by the Government as spelt out from Article 22(5) of the Constitution observ ing thus: "The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for without its expeditious consideration with a sense of urgency the basic purpose of af fording earliest opportunity of making the representation is likely to be defeated.
This right to represent and to have the representa tion considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.
" It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be dis posed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case.
The expression 'reasonable expedition ' is explained in Sabir Ahmed vs Union of India, ; as follows: "What is 'reasonable expedition ' is a question depending on the circumstances of the particu lar case.
No hard and fast rule as to the measure of reasonable time can be laid down.
But is certainly does not cover the delay due to negligence, callous inaction avoidable red tapism and unduly protracted procrastina tion.
" See also Vijay Kumar vs State of Jammu and Kashmir and Other, ; and Raisuddin Alias Babu Tamchi vs State of Uttar 420 Pradesh and Another, ; Thus when it is emphasised and re emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the dis posal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Arti cle 22(5) of the Constitution.
A contention similar to one pressed before us was exam ined by this Court in Vijay Kumar 's case (supra) wherein the facts were that the representation of the detenu therein dated 29.7.81 was forwarded to Government by the Superin tendent of Jail on the same day by post followed by a wire less message, but according to the Government, the represen tation was not received by them.
Thereafter, a duplicate copy was sent by the Jail Superintendent on being requested and the same was received by the Government on 12.8.81.
Considering the time lag of 14 days in the given circum stances of that case, this Court though over looked the same and allowed the Writ Petition on the subsequent time lag, made the following observation: "The Jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order.
The intermediary authorities who are communicating authorities have also to move, with an amount of prompti tude so that the statutory guarantee of af fording earliest opportunity of making the representation and the same reaching the Government is translated into action.
The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit.
If the Government enacts a law like the present Act empowering certain au thorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation 421 reaches the Government as quick as possible and it is considered by the authorities with equal promptitude.
Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.
" Reverting to the instant case, we hold that the above observation m Vijay Kumar 's case will squarely be applicable to the facts herein.
Indisputably the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16.6.88 for mere on ward trans mission to the Central Government has callously ignored and kept it in cold storage unattended for a period of 7 days, and as a result of that, the representation reached the Government 11 days after it was handed over to the Jail Superintendent.
Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this Court has permitted the respondent to explain the delay in this appeal, if not before the High Court.
In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant 's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu.
This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and consti tutionally impermissible.
We, therefore, allow this Criminal Appeal by setting aside the judgment of the High Court, quash the impugned detention order and direct the detenu to be set at liberty forthwith.
Y.L. Appeal allowed.

summary:
The appellant was detained pursuant to an order of detention passed against him under Section 3(1) of the , with a view to prevent him from in dulging in activities prejudicial to the augmentation of country 's foreign exchange resources.
The detaining authori ty on consideration of the material placed before him came to the conclusion that the appellant was indulging in re ceiving and making payments in India unauthorisedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regulations Act, 1973 and that the said unauthorised and illegal transactions carried on by him and affected adversely the foreign ex change resources Of the country and as such his detention was necessary.
The appellant assailed his detention before the High Court and being unsuccessful filed this appeal.
Before this Court Counsel for the appellant confined his arguments only to the ground of undue delay caused by the Central Government in disposing of the representation made by the detenu which was calculated to be of 40 days.
The Respondents explained the delay in the counter affidavit filed by it but still according to the appellant 's counsel there has been undue and unexplained delay of 11 days be tween the date of submission of the representation by the detenu to the Superintendent of the Central Prison, Bombay for transmission to the Central Government and the date of receipt of the representation by the Ministry of Finance and, he argued, that this unexplained delay has vitiated the order of detention.
416 Allowing the appeal, this Court, HELD: It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of the detenu has to be disposed of within reasonable expedition but it must necessarily depend on the facts and circumstances of each case.
[419F] Rashid S.K.v.
State of West Bengal, Sabir Ahmed vs Union of India, ; ; Vijay Kumar vs State of Jammu and Kashmir and Others, ; and Raisuddin alias Babu Tamchi vs State of U.P. and Anr.
, ; ; When it is emphasised and re emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay, because the delay caused by slackness on the part of any authority will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution.
[420A B] In the instant case, the supine indifference, slackness and callous attitude on the part of the jail Superintendent who had unreasonably delayed in transmitting the representa tion as an intermediary, had ultimately caused undue delay in the disposal of the appellant 's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu.
This avoidable and unexplained delay has resulted in render ing the continued detention of the appellant illegal and constitutionally impermissible.
[421D E] Abdul Karim and Others vs State of West Bengal, ; referred to.