judgement:
pecial Leave Petition (Civil) No. 12662 of 1988.
From the Judgment and Order dated 7.10.1988 of the Madras High Court in C.R.P. No. 704 of ]988.
M.N. Padmanabhan and K.K. Mani for the Petitioner.
R.K. Garg, V. Balachandran and V. Krishnamurthy for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This special leave petition to seek leave to appeal under Article 136 of the Constitution has been filed against the order of the Madras High Court in Civil Revision Petition No. 704 of 1988 filed by the 1st respondent herein.
After hearing the arguments of the counsel for the petitioner and the 1st respondent (Caveator) we are not persuaded to grant special leave and are dimissing the petition for the reasons given below.
For an election held on 23.2.1986, the votes were counted on 25.2.1986 and the 1st respondent was declared elected, having secured 649 votes for the post of the President of the Keelpaguthi Panchayat, Kulithalai Taluk Tamil Nadu.
The petitioner and the 2nd respondent who were the other contestants were declared to have secured only.
556 votes and 8 votes respectively.
Besides the voles secured by the contestants, 55 votes were declared to be invalid votes.
Two days after the results were declared i.e. On 27.2.1986, the petitioner sent telegrams and registered notices alleging irregularities in the counting of the votes.
Thereafter, he filed an election petition O.P. No. 7/86 under Section 178 of the Tamil Nadu Panchayats Act before the Election Tribunal (District Munsif), Kulithalai for setting aside the election of the 1st respondent as the PG NO 953 President of Keelpaguthi Panchayat.
He alleged in the petition that the Returning Officer (3rd respondent) had wrongly treated some valid votes cast in his favour as invalid votes and a certain number of invalid votes as votes validly cast in favour of the 1st respondent and that the third respondent had failed to permit him and his agents to have scrutiny of the ballot papers at the time of counting.
He, therefore, sought the reliefs of (a) setting aside the election of the first respondent, (b) ordering of re count of votes and (c) a declaration that he had been duly elected.
The first respondent opposed the election petition and filed a counter statement denying all the allegations contained in the election petition .
The Tribunal, after recording the evidence of all the candidates and the Assistant Returning Officer came to the conclusion that "the petitioner is entitled to ask for recount of votes" and ordered recounting and called for the ballot papers.
In para 7 of the order wherein the Tribunal has accepted the plea of the petitioner for recounting of votes, the Tribunal has merely set out the evidence adduced by the petitioner on the one hand and respondents 1 and 2 and the Assistant Returning Officer on the other and without any discussion whatever upon the merits and demerits of the evidence of the parties, has given a cryptic finding as follows: "I accept the evidence given by the petitioner that he (Returning Officer) has sided the first respondent in the election.
" The Tribunal has then stated as follows immediately after the election results were announced on 25.2.86 he has sent notice exhibit A1 on 27.2.86 stating that the counting is not correct.
Further he has deposed that on the date of counting he objected to he counting and requested for recounting.
Even though the petitioner has not given ,any petition in writing for recounting on the counting date, he has right to approach the Tribunal for recounting.
The petitioner has filed this petition within the stipulated time.
the petitioner prays for recounting of votes and he petition may be admitted on the basis of recounting.
If recounting ordered, no prejudice will be caused to the respondents Because their arguments is that the votes were counted according to law.
Therefore I decide that the petitioner is entitled to ask for recounting.
Recounting is ordered.
" In the recount of of votes it was found that there was no difference in the number of votes secured by the petitioner viz. 556 votes but in so far as the first respondent is concerned he had secured only 528 votes as against 649 votes he was originally held to have secured.
The excess of 121 votes were found to be invalid votes and PG NO 954 therefore the total number of invalid votes came to 126 as against 55 votes originally held to be invalid votes.
There was no difference in the number of 8 votes secured by the third contestant viz. the second respondent.
All the three contestants accepted the correctness of the recounting of votes and signed a memo to that effect before the Tribunal.
Based on the figures of the recount the petitioner pressed for a declaration that he had been duly elected to the post of the President of the Panchayat.
On the other hand, the first respondent prayed that the Tribunal should direct a fresh election to be held for the post of President.
The tribunal declined to order re election and instead declared the petitioner to have been duly elected because the recount clearly proved "that the petitioner has secured 28 votes more than the first respondent" .
Against the order of the Tribunal the first respondent filed Civil Revision Petition No. 704/88 to the High Court.
A learned single judge of the High Court allowed the revision holding that the Tribunal had erred in ordering a recount of the votes when the petitioner had not made out a prima facie case for an order of recount of votes being made.
The High Court has pointed out that the secrecy of the ballot is sacrosanct and as such the secrecy of the ballot should not be violated by any Tribunal unless a prima facie case of a compulsive nature had been made out by the defeated candidate for the rule of secrecy being broken and the ballot papers being inspected and counted afresh.
Consequently the High Court set aside the order of the Tribunal and restored the election result in favour of the first respondent.
It is against the said order of the High Court the petitioner has filed this special leave petition.
Mr. M.N. Padamanabhan and Mr. Garg, learned counsel appearing for the petitioner and the first re pondent respectively presented the case of their respective parties before us with all the persuasiveness at their command.
While Mr. Padmanabhan 's contention was that the petitioner had placed sufficient materials before the Tribunal to make out a prima facie case for a recount of votes being ordered and that the result of the recount of votes amply established the truth of the petitioner contentions, Mr. Garg argued that the allegations made by the petitioner in the petition were of a very general and vague nature and such vague averments can by no stretch of imagination be considered adequate material by the Tribunal to conclude that there was compulsive need for the secrecy of the ballot being violated and a recount of votes being ordered.
PG NO 955 Before examining the contentions of the parties we may set out the position in law as regards the need for the secrecy of the ballot being maintained and as to when the well established rule can be departed from.
Since the principle of law has already been enunciated by this Court in several cases, we may refer to three of those decisions.
In Dr. Jagjit Singh vs Giani Kartar Singh, , the appellant had challenged the election of the first respondent to the Punjab Legislative Assembly.
In the recount of votes ordered by the Tribunal it was found that the appellant had secured 22,491 votes and the first respondent had secured 22,412 votes.
The Tribunal allowed the election petition and declared the appellant to have been duly elected.
The High Court set aside the order of the Tribunal and the judgment of the High Court was confirmed by this Court.
In doing so this Court observed as follows: "Therefore,in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or reject of the voting papers.
But in exercising this power, the Tribunal has to bear in mind certain important considerations.
Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies.
Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which section 83(I)(a) has in mind.
An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not.
In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory Rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting.
It may be that in some cases.
the ends of justice would make it necessary for the Tribunal to allow a party to inspect the PG NO 956 ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate 's election is void.
" In Ram Sewak Yadav vs Hussain Kamil Kidwai & Ors., , this Court has set out the circumstances when an order for inspection of ballot papers can be ordered in the following terms: "An order for inspection may not be granted as a matter of course; having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) The tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.
The case of the petitioner must be set out with precision supported by averments of material facts.
To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted.
But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." In R. Narayanan vs Semmalai, ; , the same principle has been reiterated.
That was a case where the difference of votes between the candidates declared elected and his nearest rival, who filed an election petition was only 19 votes and which figure would have come down to 9 PG NO 957 votes only if the postal ballots were included.
Even so this Court after referring to a number of decisions and Halsbury 's Laws of England and Fraser on Law of Parliamentary Elections and Election Petitions held that without their being an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting of votes are founded and such averments being backed by acceptable evidence and the Court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes cannot be passed.
Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from high sight and by the result of the recount of votes.
On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made.
The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it.
The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes.
Viewed in the light of these well enunciated principles, we find that the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima facie satisfaction that there was adequate justification for the secrecy of ballot being breached in the petitioner 's case.
Factors urged before us by Mr. Padamanabhan such as that the first respondent had accepted the correctness of the recount.
and that he had conceded his defeat and wanted a re election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal.
Mr. Padamanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of PG NO 958 democratic process, and this position has been observed by a Bench of this Court in their order of reference of the case of N. Gopal Reddy vs Bonala Krishnamurty & Ors., CA No. 3730(NCE) of 1986 reported in JT 1987(1) SC 406 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the Panchayat when the recount disclosed that he had secured 28 votes less than the petitioner.
We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.
It was also brought to our notice that the first respondent has resumed charge of the post of the President from the petitioner, although with unseemly hurry with the aid of police after the High Court 's order, and that the term of office of President is to come to a close in about ten weeks time.
In the light of our conclusions we do not find any merit in the special leave petition and accordingly dismiss the same.
Petition dismissed .

summary:
At an election held on 23rd February, 1986, for the post of Panchayat President, the votes were counted on the 25th February, 1986, and the first respondent was declared elected having secured 649 votes.
The petitioner and the second respondent who were the other contestants were declared to have secured only 556 votes and X votes respectively, and 55 votes were declared to be invalid votes.
Two days after the results were declared i.e. on 27th February.
1986, the petitioner sent telegrams and registered notices alleging irregularities in the counting of the votes, and thereafter he filed an election petition under section 178 of the Tamil Nadu Panchayat Act, 1958.
The reliefs claimed in the petition were that the Election Tribunal should set aside the election of the first respondent as the President of the Panchayat, order recounting of votes, and a declaration that the petitioner has been duly elected.
The first respondent opposed the election petition and filed a counter statement denying all the allegations contained in the election petition.
The Tribunal after recording the evidence of the candidates and the Assistant Returning Officer came to the conclusion that the petitioner was entitled to ask for re count of votes and ordered recounting and called for the ballot papers.
In the recount of votes, it was found that there was no difference in the number of votes secured by the petitioner, namely, 556 votes but in so far as the first respondent was concerned he had secured only 528 votes as against the 649 votes, he was originally held to have secured.
The excess of 121 votes were found to be invalid votes and consequently the total number of invalid votes came to 126 (sic) as against 55 votes originally held to be invalid.
There was no difference in the number of 8 votes secured by the third contestant.
Based on these figures of the recounting, the Tribunal declined to order re election and instead declared the petitioner to have been duly PG NO 950 PG NO 951 elected because the recount clearly proved that the petitioner has secured 28 votes more than the first respondent.
Aggrieved by the aforesaid order of the Election Tribunal, the first respondent filed a Civil Revision Petition in the High Court.
A Single Judge allowed the revision petition holding that the Tribunal had erred in ordering a recount of the votes when the petitioner had not made out a prima facie case for an order of recount, and observed that the secrecy of the ballot was sacrosanct and should not be violated unless a prima facie case of a complusive nature had been made out by the defeated candidates.
The High Court set aside the order of the Tribunal and restored the election result in favour of the first respondent.
Dismissing the Special Leave Petition, HELD: 1.
The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes.
[957D E] 2.
The salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot he lightly or hastily broken unless there is prima facie genuine need for it.
[957D] 3.
The justification for an order for examination of ballot papers and recount of votes is not to be derived from high sight and by the result of the recount of votes.
On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made.
[957C D] 4.
An order or recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.
[958C] In the instant case, the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a PG NO 952 prima facie satisfaction that there was adequate justification for the secrecy of ballot being breached.
[957F] Ram Sewak Yadav vs Russain Kamil Kidwai & Ors.
, ; Dr. Jagjit Singh vs Giani Kartar Singh, [1967]1 SCJ 762; R. Narayanan vs Sommalai, ; and N. Gopal Reddy vs Bonala Krishnamurthy & Ors., JT , referred to.


judgement:
328 of 1951.Petition under article 32 of the Constitution for issue of writs in the nature of certiorari, prohibition and mandamus.
The facts appear in the judgment.
The petitioner in person.
C.K. Daphtary, Solicitor General of India, (J. B. Dadachanji, with him) for the respondent.
December 21.
The Judgment of the Court was delivered by PATANJALI SASTRI.C.J.
This is a petition under article 32 of the Constitution for the enforcement of the petition er 's fundamental rights under article 19 (1) (f) and article 31(1) alleged to have been violated by the Central Bank of India Ltd., a company incorporated under the Indian Compa nies Act, 1882, and having its registered office at Bombay, (hereinafter referred to as "the Bank").
It appears that the petitioner held five shares in the Share capital of the Bank which sold those shales to a 51 392 third party in purported exercise of its right of lien for recovery of a debt due to it from the petitioner, and the transfer was registered in the books of the Bank in the year 1937.
The petitioner thereupon instituted a series of pro ceedings in the High Court at Bombay on its original and appellate jurisdiction challenging the validity of the said sale and transfer.
The latest of these proceedings was a suit filed against the Bank in 1951 wherein the plaint was rejected on 2nd March, 1951, under Order 7, Rule 11 (d), of the Code of Civil Procedure as barred by limitation.
The petitioner now prays that all the adverse orders made in the previous proceedings be quashed and the said High Court be directed to have "the above suit set down to be heard as undefended and pronounce judgment against the respondent or to make such orders as it thinks fit in relation to the said suit".
It may be mentioned here that though the aforesaid order rejecting the petitioner 's plaint was appealable, the petitioner did not prefer an appeal on the somewhat extraor dinary ground that "the appeal if filed could not be heard by the Judges of the said Court as all of them were disqual ified from hearing such appeal" either because of their interest in the Bank or because of their prejudice against him.
We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground.
Neither article 19 (1) (f) nor article 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct.
Article 19 deals with the "right to free dom" and by clause (1) assures to the citizen certain funda mental freedoms including the freedom "to acquire, hold and dispose of property" subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses (2) to (6).
The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regu late private rights in the public interest, 393 Violation of rights of property by individuals is not within the purview of the article.
The position is no better under article 31 (1).
The petitioner has urged that clause (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover in fringements of rights of property by private individuals.
He laid emphasis on the omission of the word "State" in clause (1) while it was used in clause (2) of the same article as well as in many other articles in Part III.
Referring to entry No. 33 of the Union List, entry No. 36 of the State List and entry No, 42 of the Concurrent List of the Seventh Schedule to the Constitution, he also argued that, while these entries read with article 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State as the case may be.
no power was conferred to make laws regarding "deprivation of property" by the State, so that the "deprivation" contemplated in clause (1) could only be deprivation by individuals.
Sub section (1) of section 299 of the Government of India Act, 1935, corresponding to clause (1) of article a 1 was, it was pointed out, omitted in the draft article 19 (later numbered as article 81) which retained in a modified form only the provision contained in sub section (2) of that section relating to compulsory acquisition of property for public purposes.
But, clause (1) was subsequently restored and article was enacted in its present form as recommended in Drafting Committee 's Report and this, it was claimed, showed that clause (1) was intended to operate as a distinct provi sion apart from clause (2).
We see no force in any of these arguments.
In support of the argument that clause (1 ) should be construed in isolation from the rest of the article, the petitioner relied on certain observations of our learned brother Das in Chiranjit Lal vs The Union of India (1), where the view was expressed that clause (1)enunciated the general principle that no person should be deprived (1) [1950] S.C,R,. 860.
394 of his property except by authority of law and laid down no condition for payment of compensation, while clause (2) dealt with deprivation of property brought about by acquisi tion or taking possession of it and required payment of compensation.
In other words, deprivation referred to in clause(1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in clause (2).
We consider it unnecessary for the purpose of the present petition to go into that question.
Even assuming that clause (1) has to be read and construed apart from clause (2), it is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty.
There is no express reference to the State in article 21.
But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly exclude such a suggestion.
Similarly, the words "save by authority of law" in clause (1) of article 31 show that it is a prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive anoth er of his property.
The argument based on the entries in the Lists is fallacious.
It is not correct to suggest that, merely be cause there is no entry in the Lists of the Seventh Schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising deprivation of property.
Such a law could be made, for instance, under entry No. 1 of List II, entry No. 1 of List II or entry No. 1 of List III.
Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power.
Nor does the legislative history of the article lend any support to the petitioner 's contention.
Section 299 395 (1) of the Government of India Act, 1935, was never inter preted as prohibiting deprivation of property by private individuals.
Its restoration, therefore, in the same form in article 31, after omission in the original draft article 19, could lead to no inference in support c. of the peti tioner 's contention, which indeed proceeds on the fundamen tal misconception that article 19(1)(f) and article 31 (1), which are great constitutional safeguards against State aggression on private property, are directed against in fringements by private individuals for which remedies should be sought in the ordinary law.
In this view it is unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor General on behalf of the Bank.
The petition is dismissed.
We make no order as to costs.
Petition dismissed.

dataset_name: IN-Abs

summary:
Article 19(1)(f) of the Constitution is clearly intended to protect the freedom to acquire, hold and dispose of property against State action other than in the legitimate exercise of its power to regulate private rights in the public interest.
Similarly, article S1(1) provides a safe guard against deprivation of property by the State except by procedure established by law.
Violation of rights of property by private individuals is not within the purview of those articles.
A person whose rights of property are infringed by a private individual must therefore seek his remedy under the ordinary law and not by way of an application under article 32.


judgement:
Appeals Nos. 118 119of 1956.
Appeal from the judgment and decrees dated September 27, 1951, of the Patna High Court in Appeal from Original Decrees Nos. 252 and 254 of 1948, arising out of the judgment and decrees dated May 11, 1948, of the Court of Subordinate Judge Dhanbad in Title Suits Nos. 16 and 50 of 1945 respectively.
1403 M. C. Setalvad, Attorney General for India, Kshitindra Nath Bhattacharya, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellant.
N. C. Chatterjee, section C. Bannerjee and P. R. Chatterjee, for respondents Nos. 7 to 13.
P. K. Chatterjee, for respondents Nos.
2 4 and 6 (Minors).
Gauri Dayal, for respondent No. 5. 1958.
February 25.
The following Judgment of the Court was delivered by KAPUR J.
In these two appeals brought by leave of the Patna High Court against a judgment and two decrees of that court a common and the sole question for decision is one of adverse possession.
Two cross suits were ' brought in the Court of the Subordinate Judge, Dhanbad, raising common questions of fact and law.
The appellant and respondent Manilal Becharlal Sangvi were defendants in one (Suit No. 16 of 1945) and plaintiffs in the other (Suit No. 50 of 1945).
Respondents Nos. 1 3 were the plaintiffs in the former suit and defendants in the latter.
The other respondents were defendants in the latter suit and were added as plaintiffs at the appellate stage under 0. 1, r. 10, Code of Civil Procedure in the appeal taken against the decision in the former suit.
Both the suits were decreed against the appellant and respondent Manilal Bacharlal Sangvi who took two appeals to the High Court at Patna.
Both these appeals were dismissed by one judgment dated September 27, 1951, but two decrees were drawn up.
Against this judgment and these decrees the appellant has brought two appeals to this Court which were consolidated and will be disposed of by this judgment.
The facts necessary for the decision of these two appeals are that on November 26, 1894 Gang, Narayan Singh, a zamindar and proprietor of pargana Katras granted to Ram Dayal Mazumdar a lease of "the coal and coal mining rights" in two plots of land, one in mouza Katras and the other in mouza Bhupatdih.
On November 6, 1894 he granted a similar lease in plots 1404 contiguous to the plots in the lease mentioned above to Bhudar Nath Roy.
In Suit No. 32 of 1896 boundaries between these two sets of plots were fixed and this was shown in a map which was incorporated in ,,the decree passed in that suit.
On the death of Ram Dayal, his sons Prafulla, Kumud, Sarat, Sirish and Girish inherited the leasehold rights which they on October 19, 1918, granted by means of a registered patta and kabulliat to Lalit Mohan Bose for a term of 999 years.
One Bennett who along with one Bellwood had obtained a coal mining lease from Raja Sakti Narayan Singh of Katrasgarh on September 5, 1917, trespassed on the northern portion of the land within the area leased to Lalit Mohan Bose and sank two inclines and two airshafts and dug out coal from this area.
This gave rise to a dispute between the parties which was amicably settled and the area trespassed was returned to the possession of Lalit Mohan Bose.
This fact was denied by the appellant and Manilal Becharlal Sengvi respondent in their written statement and in their plaint.
Lalit Mohan Bose died in 1933 leaving a will of which the executors were his widow, Radha Rani and his brother Nagendra Nath Bose.
They leased out 17 bighas of land in possession of Lalit Mohan Bose to Keshabji Lalji in 1933.
The remaining portion of the area leased to Lalit Mohan Bose was given on lease on March 15, 1938, to Brojendra Nath Ghose and Vishwa Nath Prasad respondents and to Ram Chand Dubey but the possession thereof had been given to them in July 1937 and they (the above two respondents) and Ram Chandra Dubey carried on colliery business in the name and style of West Katras Colliery.
On the death of Ram Chandra Dubey his estate was inherited by his sons and widow who on June 25, 1944, sold their right, title and interest to Nagendra Nath Bose.
These three, i.e., Brojendra Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose were the plaintiffs in Suit No. 16 of 1945.
As stated above Raja Sakti Narayan Singh leased an area of 256 bighas to Bennett and Bellwood on September 5, 1917, and they assigned their rights to 1405 the New Katras Coal Company Limited.
This Company worked the coal mine for some time but went into liquidation and in Execution Case No. 293 of 1922 the right, title and interest of the company were sold and purchased by Nanji Khengarji father in law.
of Shrimati Kashi Bai appellant and by one Lira Raja.
In August 1923 Nanji Khengarji and Lira Raja effected a partition, the western portion of the leased coal field fell to the share of Nanji Khengarji and the eastern portion to Lira Raja.
The former carried on the business in the name and style of Khengarji Trikoo & Co. and the Colliery came to be known as Katras New Colliery.
On the death of Nanji Khengarji in 1928 his son Ratilal Nanji inherited the estate and on his death in September 1933 the estate passed to the appellant reemati KashiBai,widow of Ratilal.
In December 1944 she (Sreemati Kashi Bai) entered into a partnership with Manilal Becharlal Sengvi respondent.
On March 24, 1945 Brojendra Natb.
Ghose, Vishwa Nath Prasad and Nagendra Nath Bose respondents Nos.
1 3 as plaintiffs Nos.
1 3 brought a suit (Suit No. 16 of 1945) against Sreemati Kashi Bai, defendant No. 1, now appellant and against Manilal Becharlal Sengvi defendant No. 2 now respondent No. 10 for fixation of the intermediate boundary and for possession of the area trespassed upon by the defendants and for compensation for coal illegally removed by the latter and also for an injunction.
They alleged that the defendants had wrongfully taken possession of the area in dispute shown in the map attached to the plaint and had illegally removed coal from their mine.
The defendants in their written statement of June 29, 1945, denied the allegations made by the plaintiffs.
They pleaded that the area in dispute was acquired by Nanji Khengarji and Lira Raja and had been worked by them and they had been in sole, exclusive, uninterrupted and undisturbed possession of the area openly to the knowledge of the plaintiffs in that suit and had therefore acquired title by adverse possession.
The claim of ownership which they had set up as a result 1406 of acquisition from Bennett and Bellwood was negatived by the courts below and is no longer in dispute before us, the sole point that survives being one of adverse possession.
The cross suit No. 50 of 1945 was brought by the defendants in Suit No. 16 of 1945, i.e., Shrimati Kashi Bai (appellant) and Manilal Becharlal Sengvi (respondent) against the three plaintiffs of suit No. 16 of 1945 (respondents Nos.
I to 3) and against heirs of Lalit Mohan Bose and against Purnendu Narayan Singh son of the original grantor Raja Sakti Narayan Singh.
The allegations by the plaintiff in this suit ( No. 50 of 1945) were the same as their pleas as defendants in Suit No. 16 of 1945.
The two suits were tried together with common issues.
The learned Subordinate Judge decreed Suit No. 16 of 1945 and dismissed Suit No. 50 of 1945 which were thus both decided in favour of respondents Nos.
I to 3.
He held that the land in suit was included in the area leased to respondents Nos.
I to 3, i.e., Brojendra Nath, Vishwa Nath Prasad and Nagendra Nath Bose and therefore the area in which two inclines of seam No. 9 were situate formed part of the area leased to them and that encroachment by the appellant and Manilal Becharlal Sengvi respondent on the land in dispute was proved.
As to adverse possession he held that the two inclines and airshafts had been sunk in 1917 by Bennett in seam No. 9; that there had been no continuous working of the seam by Khengarji Trikoo & Co., except from the year 1923 to 1926 and from 1931 to 1933, working was again begun in 1939 but how long it was continued had not been proved and that the working of this seam had restarted in 1944.
He also found that the disputed area was confined to seam No. 9.
From these facts he was of the opinion that there was no dispossession of the respondents Nos. 1 to 3 and no adverse possession had been established as against them.
He further held that the working of a part of seam (No. 9) would not give to the trespasser the right to the entire seam even if continuous possession was proved.
In regard to compensation the learned Subordinate Judge held that 1407 respondents Nos.
I to 3 were entitled to it as from December 1944 and the amount would be determined by the appointment of a Commissioner in a subsequent proceeding.
The High Court on appeal confirmed the findings of the trial Court and held that the land in dispute was part of the land leased to respondents Nos.
I to 3; that the appellant and Manilal Becharlal Sangvi respondent had encroached upon the land in dispute; that the working of the seam had not been continuous and it had only been worked for the periods mentioned above.
The High Court also held that even if there was continuous possession and working of the mine no title by adverse possession could be acquired to the whole of the mine.
In the High Court the validity of the lease in favour of the respondents Nos.
I to 3 was raised because of section 107 of the Transfer of Property Act but as the question had not been raised or agitated in the trial Court, the High Court allowed defendants 4 to 10 of Suit No. 50 of 1945 to be added in the appeal arising out of Suit No. 16 of 1945 " for complete adjudication of the issues and to avoid multiplicity of proceedings ".
This question is also no longer in dispute before us.
The appellant has brought two appeals against the judgment and two decrees of the High Court of Patna.
As the question of ownership of the land in dispute has been decided in favour of the respondents by both the courts below, that question has not been raised before us and the controversy between the parties is confined solely to the question of adverse possession.
On behalf of the appellant the learned AttorneyGeneral submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the courts below could only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years, her possession had matured into ownership by adverse possession.
In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of 1408 hostile title for the prescribed period of 12 years necessary to constitute adverse possession.
It was contended that for the purpose of adverse possession in regard to a coal mine it was not necessary that it should have been worked for 12 years continuously and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in the instant case.
But we are unable to accept this contention.
Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession.
What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926.
The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant, During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.
Nageshuar Bux Roy vs Bengal Coal Co. (1) which was relied upon by the learned Attorney General does not support his contention.
In that case the company claiming adverse possession had placed facts which were consistent with the assertion of rights to minerals in the whole village to which the company claimed adverse possession.
They openly sank pits at three different places, two of them being 1/2 mile distant from the 3rd.
The company selected the places where they were to dig up the pits at their own discretion, (1) [1930] L.R. 58 I.A. 29, 1409 brought their plant or machinery on the ground and erected bungalows for their employees.
There was no concealment on the part of the company and they behaved openly as persons in possession of not one pit but all mineral fields underlying the whole village and they throughout claimed to be entitled to sink pits anywhere in the village they chose.
The, company was under a bona fide belief that under their lease they were entitled to work the minerals anywhere in the area.
In these circumstances the Privy Council held the suit to be barred by article 144 of the Limitation Act as the company had been in adverse possession of the minerals under the whole village for more than 12 years.
It was pointed out by Lord Macmillan at p. 35, "possession is a question of fact and the extent of possession may be an inference of fact ".
And at p. 37 it was observed: " Their Lordships are not at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of which actual possession has been enjoyed.
But the application of this general rule must depend upon the facts of the particular case.
" The finding in favour of adverse possession in that case must be confined to the facts of that particular case.
Another case relied upon by the learned AttorneyGeneral was Secretary of State for India vs Debendra Lal Khan(1).
There a zamindar claimed title to a fishery in a navigable river by adverse possession against the Crown.
It was held that possession may be adequate in continuity so as to be adverse even though the proved acts of possession do not cover every moment of the period.
That was a case dealing with fisheries.
It is true that to establish adverse possession nature of possession may vary.
In the instant case no such possession has been proved which taking into consideration the nature of possession and the nature of the object possessed would lead to the only inference that the appellant had perfected her (1) [1933] L.R. 61 I.A. 78.
1410 title by adverse possession.
Intermittent working of the mine in the manner and for the period described above is wholly insufficient to establish possession which would constitute adverse possession or would lead to an inference of adverse possession and we are in agreement with the view expressed by the High Court and would therefore dismiss these appeals with costs.
One set of costs between the two appeals except as to Court fees.
Appeals dismissed.

summary:
The appellants and the respondents were lessees of coal mining rights in adjoining areas.
In 1917 the predecessors in interest of the appellants trespassed into a portion Df the lands leased to the predecessors in interest of the respondents, sank two inclines and two air shafts and (lug out coal therefrom.
There were no mining operations till 1023 when they were restarted and continued till 1926, and were recommenced in 1931 and carried on till 1933.
In 1939 the mine was worked for a short time.
In 1944 the operations were recommenced by the appellants.
In 1945 the respondents brought a suit for fixation of the intermediate boundary, for possession of the area trespassed upon and for compensation for coal illegally removed by the appellants.
The appellants contended, inte alia, that they had been in sole, exclusive, uninterrupted possession of the area in dispute openly to the knowledge of the respondents and had acquired title by adverse possession: Held, that the intermittent working of the mine in the manner and for the period carried out by the appellants or their predecessors in interest was wholly insufficient to establish possession which could constitute adverse possession.
During the period when there were no mining operations no, kind of possession of the appellants was proved and the presumption that during such periods possession reverted to the true owner was not rebutted.
Nageshwar Bux Roy vs Bengal Coal CO , [1930] L.R. 58 I.A. 29 and Secretary of State for India vs Debendra Lal Khan, [1933] L.R. 61 I.A. 78, distinguished.


judgement:
n that the products must contain visible pieces of bones and that the expression is limited only to the primary products obtained on crushing of bones such as bone sinew, bone grist, and bone meal.
[995C] The ossein and gelatine manufactured by the respondent can, without straining the expression used in the notification, be described as bone products.
[996GI & CIVIL APPEALLATE JURISDICTION: Civil Appeal No. 1420 of 1988.
From the Order dated 13.11.1987 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 1441/83 C in Order No. 915/87 C. M.K. Banerjee, Solicitor General, H. Sharma, Mrs. Sushma Suri for the Appellant.
Soli J. Sorabjee, A.N. Haksar.
R. Narain, D.N Misra and P.K. Ram for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
A very short question is involved in this appeal under section 35L of the Central Excises & Salt Act, 1944.
The respondent, M/s Protein Products of lndia, manufactures ossein and gelatine.
It claimed exemption from excise duty under ; notification of the Government of India dated 30.6.1979.
By this notification one more item was added to a list of items exempted from payment of excise duty under an earlier notification dated 1.3.75.
This item reads as follows: Crushed bones and bone products. ' The respondent company manufactures the above products from bones.
Ossein is prepared from bones by dissolving the PG NO 995 mineral part of the bones with phosphoric acid.
From the ossein so obtained, gelatine is obtained by treating the same further with an alkali.
Although gelatine can also be manufactured from other sources such as pig skin and hides, it is common ground that the respondent company was manufacturing gelatine only from bones.
The Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) has taken the view that the products manufactured by the respondent company are 'bone products ' and that the company is entitled to the benefit of the notification dated 30.6.79 referred to earlier.
The Tribunal pointed out that, admittedly, the raw material for the two products in question is crushed bones.
It accepted the argument urged on behalf of the respondent company that the word 'product ' only directed attention to the principal raw material from which the product in question is derived.
Bone products ' does not mean that the products must contain visible pieces of bones and that the expression is limited only to the primary products obtained on crushing of bones such as bone sinew, bone grist, and bone meal.
Reference was made to the description of gelatine in the Indian Standard Specification as a "purified product obtained by partial hydrolysis of collagen, derived from skin, white connective tissues and bones of animals" and to a definition of gelatine in 'Chemical Process Industries ' as "derived by hydrolysis from collagen the white fibres of the connective tissues of the animal body.
particularly in the skin (Corium), bones (Ossein) and tendons." The Tribunal also referred to an earlier order wherein di calcium phosphate.
obtained by treating with acid the mineral portions seperated from crushed bones, had been held entitled to the benefit of the same notification, treating it 'bone product '.
The learned Solicitor General, appearing on behalf of the appellant, submitted that the view taken by the Tribunal is erroneous.
According to him, the words 'bone products ' should he read.
along with words 'crushed bones ' and, therefore, the exemption under the notification is only limited to primary products obtained on crushing of bones such as bone sinew, bone grist and bone meal.
He submitted that ossein and gelatine cannot be described as hone products because they could also be obtained from raw material other than bones, such as pig skin and hides.
What is essential, according to him.
is to consider whether the products in question retain the principal characteristics and physical properties of crushed bones.
In other words, the argument appears to be that only products obtained by a PG NO 996 physical processing of bones could be described as bone products but not products obtained by treating bones with chemicals or acids.
We see no reason to limit the availability of the exemption under the notification in the manner contended for on behalf of the appellant.
The terms of the notification only refer to two items crushed bones and bone products and there is no scope for applying any rule of ejusdem generis as contended for by the learned Solicitor General.
There is also no justification for importing any limitation as to the nature of the products that are entitled to exemption.
We see no logic or principle in holding that only products obtained by a physical treatment of bones such as crushing or powdering would be entitled to exemption and not products obtained by chemical treatment.
It is true that gelatine may be produced not merely from bones but also other things such as the skin and tissues of animals.
But, as already mentioned, it is not in dispute that only bones are the raw material from which the products manufactured by the respondent company are derived.
It is not the case of the appellant that in the manufacture of gelatine or ossein, other raw materials are also used to such an extent as to completely overshadow or render insignificant the utilisation of bones in the process.
The products in question are derived merely by the extraction of the mineral parts of the bones.
Gelatine is obtained by a further treatment, with an alkali, of the ossein manufactured from the bones.
It is the collagen which forms the organic content of the bones that is utilised in the manufacture of ossein and gelatine.
The word 'product ' is defined in Webster 's Comprehensive Dictionary as "anything produced or obtained as a result of some operation or work".
The expression 'bone products ' therefore merely means anything produced or obtained from bones.
Whether such derivation is by a simple physical process or by a chemical reaction would seem to make no difference to the end product.
Buttermilk, for instance does not cease to be a milk product merely because a chemical process is involved in the transformation.
The ossein and gelatine manufactured by the respondent can, without straining the expression used in the notification, he described as bone products.
We are, therefore, in agreement with the view taken by the tribunal that the products manufactured by the respondent company are entitled to the exemption under the notification dated 30.6.79.
We may also here usefully reiterate the observations made by us in Collector of Customs, Bombay vs Swastic Woollen (P) Ltd. & Ors.
, J.T. with regard PG NO 997 to the parameters of interference by this Court in an appeal from the CEGAT.
That case concerned the meaning of the expression "wool waste" and, though those observations were made in the context of section 130E of the , they are of equal application the present context as well.
We said: "In the new scheme of things, the Tribunal have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment.
An appeal has been provided to this Court to over see that the subordinate Tribunals act within the law.
Merely because another view might be possible by a competent; Court of law is no ground for interference under section t30E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited.
But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals.
The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors.
If the Tribunal has acted bona fide with natural justice by a speaking order, in our opinion, even if superior Court feels that another view is possible.
that is no ground for substitution of that view in exercise of power under clause (b) of section 130E of the Act. ' ' In the present case the Tribunal has taken into consideration all relevant factors and committed no error of principle or law.
Even assuming that the terms of the exemption notification can also lend themselves to a narrower construction which may commend itself to another Tribunal or Court that alone can be no ground to interfere with the conclusion reached by the Tribunal.
We therefore see no reason to entertain this appeal which will stand dismissed.
S.K.A. Appeal dismissed.

summary:
The respondent company manufactures ossein and gelatine from bones.
Ossein is prepared from bones by dissolving the mineral part of the bones with phosphoric acid.
From the ossein so obtained, gelatine is obtained by treating the same further with an alkali.
The company claimed exemption from excise duty under a notification of the Government of India dated 30.6.1979 wherein crushed bones and bone products were added as an item exempt from payment of excise duty.
The respondent appealed to the Appellate 'Tribunal which held that the products manufactured by the respondent company are 'bone products ', and the company is entitled to the benefit of the notification, treating it as a 'bone product '.
The appellant Revenue, therefore, filed an appeal before this Court under section 35L of the Central Excises & Salt Act,1944 and contended that the words bone products ' should be read along with the words crushed bones, and ossein and gelatine cannot be described as bone products because they could also be obtained from raw material other than bones, such as pig skin and hides.
Dismissing the appeal.
the Court, HELD: The expression 'bone products merely means anything produced or obtained from bones.
Whether such derivation is by a simple physical process or by a chemical reaction would seem to make no difference to the end product.
[996F] The products in question ossein are derived merely by the extraction of the mineral parts of the bones.
Gelatine is obtained by a further treatment, with an alkali, of the ossein manufactured from the bones.
It is the collageon PG NO 993 PG NO 994 which forms the organic content of the bones that is utilised in the manufacture of ossein and gelatine.
[996E] Collector of Customs, Bombay vs Swastic Woollen (P) Ltd.


judgement:
vil Appeal No. 1630 of 1988.
From the Judgment and Order dated 21.1.
I988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No .
232 1/83 BI in Order No .
18/ ]988 'B ' G. Ramaswamy, Additional Solicitor General, K. Swami and Mrs. Sushma Suri for the Appellant.
Ravinder.
Narain.
P.K. Ram and D.N. Misra for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal against the decision and order of the Customs, Excise and Gold (Control) Appellate Tribunal under Section 35L(b) of the (hereinafter called 'the Act ').
The respondent is the manufacturer of electric fans, and brought into it9 factory nameplates under tariff item 68 of the erstwhile Central Excise Tariff.
The nameplates were affixed to the fans before marketing them.
The respondent claimed the benefit of proforma credit in terms of PG NO 1000 Notification No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods falling under Tariff Item 68, when these goods are used in the manufacture of other excisable goods.
The said notification stated in supersession of the notification No. 178/77 of the Central Excise, dated 18th June, 1977, all excisable goods on which duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 (hereinafter referred to as 'the inputs ') have been used, are exempt from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs.
It enjoins that the procedure set out in the Appendix should be followed; and further that nothing contained in the said notification shall apply to the said goods which are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil duty.
It further stipulated that the credit of the duty allowed in respect of the inputs shall not be denied or varied on the ground that part of such inputs is contained in any waste, refuse or by product arising during the process of manufacture of the said goods irrespective of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty.
or is not mentioned in the declaration referred to in the Appendix to this notification.
Provided, also that nothing contained in any notification should apply to the said goods on which duty of excise is paid through bandrols.
The Appendix provides the procedure.
The benefit of proforma was claimed for the said goods on the plea that the goods were intended to be used (as inputs) in the manufacture of electric fans.
The Asstt.
Collector, Central Excise, Calcutta XV Division, disallowed proforma credit to the said goods on the ground that nameplates ale not essential ingredients or raw materials in the manufacture of finished goods i.e. electric fans and thus cannot be considered as inputs in terms of the notification No. 20l/79 dated 4.6.1979.
The respondent preferred an appeal against the decision before the Collector (Appeals) Central Excise, Calcutta, and the same was allowed holding, inter alia, that para 8 of the supplement to the manual of Departmental instructions on electric fans, has clarified the utility of the use of "nameplate" on eleectric fan and, hence, viewed from this PG NO 1001 angle, the said goods should be treated as 'inputs ' in terms of the notification No. 201/79 dated 4th June, 1979.
The Collector, therefore, set aside the order of the Asstt.
Collector.
There was an appeal to the Tribunal.
The Tribunal in its order noted that the short point requiring decision in this case was: whether the nameplate could be considered as component part of the electric fan, so as to be eligible for proforma credit under the exemption notification.
The Tribunal further noted that no electric fan was removed from the factory for being marketed without the nameplate.
The Tribunal also noted that even though it could be said that electric fans could function without the nameplates, for actual marketing of the fan, the affixation of the nameplate was considered as essential requirement.
The Tribunal further noted that it was an essential requirement even from the point of view of the Excise Tariff because the rate of duty on different types of electric fans, depended on their variety and the sweep size of the fan.
This information was given in the nameplate only.
It appears that the Department 's own instructions in their Commodity Manual made it obligatory for every manufacturer to affix the nameplates on the fans.
In those circumstances, namely, for marketing the nameplates, these were essential.
In other words, they could not be marketed without the nameplates.
The relevant particulars of the fan for the determination of duty, depended on the particulars which are contained only in the nameplates.
The Department 's instruction requiring every manufacturer to affix the nameplates on the fans.
indicate that nameplate was an essential ingredient to complete the process of manufacture for marketable electric fans.
It those circumstances, in our opinion, the Tribunal was right in arriving at the conclusion that the nameplate was not a piece of decoration without the nameplate, the electric fans as such, could not be marketed; and that the dealer was entitled to the benefit of the notification No. 20l/79 CE for the purpose of obtaining proforma credit.
Fans with nameplates, have certain value which the fans without the nameplates, do not have.
If that be so, then the value added for the accretion of nameplate was entitled to proforma credit in terms of the said notification.
It is true that an electric fan may perform its essential functions without affixation of the nameplate, but that is not enough.
Electric fans do not become marketable products without affixation of nameplates.
PG NO 1002 In that view of the matter, it appears to us that the Tribunal followed the correct principles applicable in this case.
All the relevant and material factors were taken into consideration.
The approach of the Tribunal was right.
The decision arrived at on that basis appears to be correct.
In the premises the appeal fails and is according dismiseed S.K.A. Appeal dismissed.

summary:
The respondent is the manufacturer of electric fans.
The company brought into its factory nameplates under Tariff Item 68 of the Central Excise Tariff.
The nameplates were affixed to the fans before marketing them.
The respondent claimed the benefit of proforma credit in terms of Notification No. 201/79 dated 4 6 1979 which stated that all excisable goods on which duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item No. 68 being 'the input6 ' had been used, were exempt from so must of the duty of excise leviable thereon was equivalent to the duty of excise already paid on the inputs.
The respondent claimed the benefit of proforma credit for the goods i.e nameplates on the plea that the goods were intended to be used as inputs in the manufacture of electric fans.
The Asstt.
Collector, Central Excise disallowed the proforma credit.
The respondent preferred an appeal before the Collector (Appeals) Central Excise, and the same was allowed treating the said goods as inputs in terms of the June l979 Notifications.
The Department appealed to the Customs, Excise and Gold (Control) Appellate 'Tribunal which held that even though electric fans could function without the nameplates, no electric, fan was removed from the factory for being marketed without the nameplates, as the Affixation of the nameplate was considered an essential requirement from the point of view of the Excise Tariff.
The Department therefore filed an appeal under Section 35 L(b) of the before this Court.
Dismissing the appeal, this Court.
PG NO 998 PG NO 999 HELD: 1.
The Department 's instructions requiring every manufacturer to affix the nameplates on the fans, indicate that nameplate was an essential ingredient to complete the process of 'manufacture ' for marketable electric fans.
[1001E] 2.
The Tribunal was right in arriving at the conclusion that the nameplate was not a piece of decoration.
Without the nameplates, the electric fans as such, could not be marketed; and that the dealer was entitled to the benefit of the Notification No. 201/79 CE for the purpose of obtaining proforma credit.
[1001F G] 3.
Fans with nameplates, have certain value which the fans without the nameplates, do not have.
If that be so, then the value added for the accretion of nameplate was entitled to proforma credit in terms of the said notification.
It is true that an electric fan may perform its essential functions without affixation of the nameplate, but that is not enough.
Electric fans do not become marketable products without affixation of nameplates.
[1001G H]


judgement:
t Petition (Civil) No. 1244 of 1986.
(Under Article 32 of the Constitution of India).
WITH S.L.P. (Civil) No. 8948 of 1986.
From the Judgment and Order dated 1().4.
i986 of the Delhi High Court in C.W.P. No. 795 of 1986.
Jitender Sharma for the Petitioners.
T.U. Mehta and G.K. Bansal for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This special leave petition is filed against the judgment of the Delhi High Court rejecting a petition filed by the petitioners.
A separate writ petition for the same relief is also filed in this Court.
The two matters raise a simple question about the age of retirement of the employees in the Delhi Transport Corporation, who were originally employed in the erstwhile Gwalior and Northern India Transport Company ( 'GNIT Company ' for short) in 1946 or before that.
PG NO 1005 It is not in dispute that before 1948 these petitioners were employed in the GNIT Company which was a company owned by the Rulers of Gwalior in the erstwhile native State of Gwalior.
The said company was operating the transport services in Delhi and areas around upto 13th May, 1948.
On 14th May, 1948 the transport services in Delhi were taken over by the Government of India, the Ministry of Transport and it was named as "Delhi Transport Service".
The services of all the employees of the erstwhile GNIT company were taken over by the Government of India but they were continued to be governed by the rules which were in force before taking over.
Subsequently it was taken over by the Delhi Municipal Corporation.
Later on by the Delhi Transport Undertaking which came to be termed as Delhi Transport Corporation".
Clause 7 of the agreement by which the GNIT services in Delhi were taken over by the Government of India provided that the services of the employees who were employed prior to 28th October, 1946 and were in continuous service till i4th May, 1948 shall not be taken over on the terms not less liberal than those they were governed and therefore the employees who were in employment prior to 28th October, 1946 were treated as protected employees.
These facts are not in dispute.
According to the petitioners, before they were taken over, the service conditions of the employees of GNIT Company were governed by the Gwalior State Civil Service Rules.
But the respondent denied that and said that they were governed by the Madhya Bharat Civil Service Rules.
Admittedly, Madhya Bharat came into existence in 1948 only.
Before that there was no State of Madhya Bharat.
Repeatedly opportunity was given to the respondent counsel to find out as to what rules were applicable to the employees of the GNIT company before Madhya Bharat was formed.
Ultimately they pleaded their inability to place any rule.
So far as Gwalior State Civil Service Rules are concerned, a copy of it in Hindi has been filed by the petitioners with the English translation thereof.
It is not disputed that these were the rules governing the civil servants in the Gwalior State.
It is also not disputed that GNIT Company was originally a Company incorporated in India where it was owned by the rules of the erstwhile Gwalior State.
According to petitioners Civil Service Rules of Gwalior were made applicable to these people.
In addition to what has been stated in the petition and which has not been controverted, they have also filed a judgment of the Industrial Court in Madhya Pradesh where this question about the conditions of service about retirement came into dispute after the formation of PG NO 1006 Madhya Bharat and the part of GNIT Company which was operating in the territories of the erstwhile State of Madhya Bharat was taken over by the State of Madhya Bharat Road Transport Corporation.
There too, a similar agreement was reached and the question arose as to whether the persons who were in employment before the taking over, were governed by the Rules of the Gwalior State Civil servants.
It was held that those were the rules and in those rules the normal age of retirement was 60 years.
In view of these circumstances it appears beyond doubt that these people who were employed in the GNIT Company before taking over in Delhi by the Government of India were governed by the Gwalior State Civil Service Rules.
The Gwalior Civil Service Rules provided: "CHAPTER l A 7(a)(1) Every employee has a right to seek retirement from service after attaining the age of 55 years.
(2) The Government also has authority not to allow any employee to continue in employment after attaining the age of 55 years and order his retirement.
(3) In case an employee does not seek retirement from service after attaining the age of 55 years of the government also does not order his retirement form service, than he shall continue in service till he attains the age of 60 years.
(4) Every employee shall compulsory retire after attaining the age of 60 years provided his services are not ordered to be terminated earlier.
(5) An employee who retires under these rules shall be entitled for pension or Gratuity to which he is entitled according to the rules.
Note (1): These Rules will not apply to the Police Personnels.
Note (2): The concerned Departments shall initiate retirement proceeding against those employees who have PG NO 1007 attained the age of 60 years at the time of enforcement of the rules but immediate action shall be taken for release of Pension or Gratuity in case of those who have become entitled for Gratuity or Pension and till pension or gratuity is not sanctioned they shall not be retired.
In future this procedure shall be followed that action for pension or Gratuity shall be initiated one year in advance to which he is entitled at the age of 60 years in case of an employee who retire at the age of 60 years so that there shall be no delay in retiring him after attaining the age of 60 years.
" The above rules it indicates clearly an employee who does not seek retirement from service after attaining the age of 55 years or if the Government does not order his retirement at that age, shall continue in service till he attains the age of 60 years.
It is also indicated with unmistakably terms that every employee shall compulsorily retire after attaining the age of 60 years provided his services are not ordered to be terminated earlier.
In other words the age of retirement was 60 years.
Option however was there for the employee to seek voluntary retirement at 55 years and for the Government to compulsorily retire him at 55.
Counsel for the respondent does not dispute the above provisions.
He, however, argued that the age of 55 years at which an employee could be asked to retire has been retired by the corporation from 55 to 58 and if an employee has been retired at 58 it was not prejudicial to him since he could have been retired at in his erstwhile.
company only at 55.
Our attention was invited to Service Regulation of the Corporation providing for these matters.
The argument is attractive but on a deeper consideration we find little merit in it.
If the Delhi Transport Corporation had exercised its right to retire the petitioners on attaining the age of 58 years, the argument would have been tenable.
But that was not done by the Corporation.
The Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years.
It is so stated by the notice (Annex.
E) dated January 2, 1986 issued by the Deputy Personnel Officer I to Hari Shankar Gaur petitioner in W.P. No. ]244/86.
The notice reads: DELHI TRANSPORT CORPORATION A GOVERNMENT OF INDIA UNDERTAKING l.
P. ESTATE: NEW DELHl No. PLD IX(PF)/85/128 Dt.
2.1.1986 PG NO 1008 Shri Hari Shankar Gaur s/o Shri M.L. Gaur, Office Supdt.
will attain the age of superannuation i.e. 58 years on 31.1.1986.
He shall, therefore, retire from the service of this Corporation with effect from 31.1.1986 in accordance with clause l0 of the D.R.T. Act (Conditions of AppointMent & Service) Regulations, 1952 read with office order No. PLD/2479 dated 7.3.1974.
He may avail earned leave due to him prior to 31.1.
1986, if he so desires.
" We are told similar notices were issued to other employees as well.
l hat means the Corporation was under the impression that the petitioners have no right to continue beyond the age of 58 years.
We are, therefore, of the opinion that the persons who originally were in the employment of GNIT and were employed prior to October 28, 1946 and who continued in service till May 14, 1948 and onwards will have the right to remain in service up to 60 years unless the option to retire was exercised by the person or by the Corporation at 55 years.
In the result the writ petition and the SLP are allowed to the extent indicated above.
No order as to costs.
G.N. Petitions allowed.

summary:
The Gwalior and Northern India Transport Company (GNIT Company) was operating transport services in and around Delhi.
It was taken over on May 14, 1948 by the Government of India, Ministry of Transport and named as Delhi Transport Service.
The services of all employees of the (IT company were taken over by the Government of India, but they continued to be governed by the rules in force before the take over.
Subsequently it was taken over by the Delhi Municipal Corporation and later on by the Delhi Transport Undertaking and came to be known as Delhi Transport Corporation.
All employees of GNIT Company employed before 28.10.46 and were in continuous service at the time it was taken over by the Government of India were treated as protected employees as per clause 7 of the take over agreement.
Prior to the take over they were governed by the Gwalior State Civil Service Rules which stipulate the age of retirement at 60.
Option however was there for the employee to seek voluntary retirement at 55 years and for the Government to compulsorily retire an employee at 55.
The Delhi Transport Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years.
It was challenged in a writ petition before the Delhi High Court and the petitioners contended that option was there both for the Corporation as also the employees to retire at 55, but superannuation could be only on reaching 60, and not at 58 as claimed by the Corporation.
The Delhi High Court rejected the petition.
Against this, the petitioners have come to this Court by way of a special leave petition.
A writ petition has also been filed claiming the same relief.
Allowing the special leave petition as also the writ petition, this Court, PG NO 1003 PG NO 1004 HELD: The persons who were originally in the employment of GNIT Company and were employed prior to October 28, l946 and continued in service till May 14, l948 and onwards will have the right to remain in service upto 60 years unless the option to retire was exercised by the person or the Corporation at 55 years.
The argument that the age of 55 years at which an employee could be asked to retire has been raised by the Corporation to 58 years and if an employee has been retired at 58, it was not prejudicial to him since he could have been retired in his erstwhile Company only at 55, has little merit in it.
If the Delhi Transport Corporation had exercised its right to retire the petitioners on attaining the age of 58 years, the argument would have been tenable.
But that was not done by the Corporation.
The Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years.
That meant the Corporation was under the wrong impression that the petitioners had no right to continue beyond the age of 58 years.
[1008C D; 1007E G; 1008C]


judgement:
ivil Appeal No. 4146 of 1985.
From the Judgment and Order dated 18.12.1984 of the Jammu & Kashmir High Court in C.S.A. No. S of 1981.
Soli J. Sorabjee, Harjinder Singh and Ranjan Mahapatra for the Appellant.
Anil Dev Singh, Dr. Meera Agarwal and R.C.Misra for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
1.
This appeal involves the interpretation of section 11 of the Jammu & Kashmir Houses & Shops Rent Control Act, 1966 (hereinafter referred to as 'the Act ').
The petitioner is a firm of which Sohan Singh Madan is the managing partner.
The firm was the tenant of the respondent in respect of a portion of a building situated in Raghunath Bazar.
Jammu, on a rent of Rs.200 p.m.
According to the respondent, the petitioner had been irregular in paying the rent of the premises and had altogether stopped making payment of any rent from 1st April, 1976 onwards.
On 26.11.1976, the respondent issued a notice to the petitioner calling upon it to pay the arrears of rent (Rs. 1,600).
The notice also terminated the tenancy and called upon the petitioner to vacate the demised premises on or before 31.12.
This notice was first sent by post.
The postman called at the address on 7.12.1976 and 8.12.1976 but, having failed to find there either the addressee or any person authorised to receive the notice on its behalf, returned it with the endorsement "left without address, returned to sender".
There upon, the respondent caused a copy of the notice to be affixed to one of the doors of the premises in question in the presence of two inhabitants of the locality PG NO 986 on 9.12.1976.
No payment of rent was made subsequently by the petitioner.
The respondent, therefore, filed a suit on 16.6.1977 seeking ejectment of the petitioner on the ground that he had committed three defaults, each in payment of two months ' rent within a period of 18 months.
This plea was disputed, and eviction of the petitioner decreed, by the Sub Judge.
This was affirmed by the B District Judge.
A second appeal to the High Court was also unsuccessful.
Hence this appeal by special leave.
Ss. 11 and 12 of the Act, which are relevant in this context, may now be referred to.
They read, in so far as is relevant for our present purposes, as follows: "Section 11: "Protection of a tenant against eviction ( I ) Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any court in favour of the landlord against a tenant xxx xxx xxx Provided that nothing in this sub section shall apply to any suit for decree for such recovery of possession xxx xxx xxx (i) subject to the provisions of section 12.
where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable for by not having been validly deposited in accordance with section 14: Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through post office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of the receipt of such a notice and the tenant fails to pay or deposit the said arrears within the specified period.
PG NO 987 Section 12: When a tenant can get the benefit of protection against eviction (1) If in a suit for recovery of possession of any house or shop from the tenant the landlord would not get a decree for possession but for clause (i) of the proviso to subsection (1) of section 11, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made subsection (4) and effect thereof upto the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three eights per centum per annum from the day when the rents became arrears upto such date, together with the amount of such costs of the suit as if fairly allowable to the plaintiff landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order.
(2) Such date fixed for payment shall be the fifteenth day from the date of the order excluding the day of the order.
(3) If, within the time fixed in the order under sub section (1) the tenant deposits in the Court .he sum specified in the said order, the suit so far as it is a suit for recovery of possession of the house or shop, shall be dismissed by the court.
In default of such payment the Court shall proceed with the hearing of the suit.
Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section, if, notwithstanding the receipt of notice under proviso to clause (i) of the proviso to sub section (1) of section 11, he makes a default in the payment of rent referred to in clause (i) of the proviso to sub section (1) of section 11 on three occasions within a period of eighteen months.
xxx xxx xxx On the terms of the above sections, the controversy in this case turned on the question whether the notice sent by the respondent by registered post on 26.11.1976 can be said to have been served and the petitioner can be said to have PG NO 988 been in receipt of the said notice.
If the answer to this question is in the affirmative, as held by all the courts concurrently, there is nothing further to be said.
The contention of the appellant tenant however, is that the statute postulates a factual service of the notice on, and the actual receipt of it by, the tenant and that this admittedly not being the position in the present case, no eviction could have been decreed.
Shri Soli Sorabjee, learned counsel appearing for the tenant submitted that the safeguards in Ss. 11 and 12 of the Act are intended for the benefit and protection of the tenant and that, therefore, where the Act provides for the service of the notice, by post, this requirement has to be strictly complied with.
He referred to the decisions in Hare Krishna Das vs Hahnemann Publishing Co. Ltd ., [ and Surajmull Ghanshyamdas vs Samadarshan Sur, ILR 1969 1 Cal. 379 to contend that such postal service can neither be presumed nor considered to be good service where the letter is returned to the sender due to the non availability of the addressee.
He urges that, in the absence of any enabling provision such as the one provided for in s.106 of the Transfer of Property Act, service by some other mode, such as affixture, cannot be treated as sufficient compliance with the statute.
In this context, he referred to the frequently applied rule in Taylor vs Taylor, [ that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.
He urged that even if service by affixture can be considered to be permissible, there are stringent pre requisites for service by affixture, such as those outlined in Order V rules 17 to 19, of the Code of Civil Procedure (C.P.C.) and that these pre requisites were not fulfilled in the present case.
He pointed out that even under the CPC.
service by such affixture can be recognised as valid only if sincere and vigilant attempts to serve the notice on the addressee personally are unsuccessful.
In the present case, it is submitted, the evidence shows that the postman made no serious efforts to ascertain the whereabouts of the addressee even though the evidence showed that a servant of the petitioner firm was known to the postman and was present in the neighbourhood.
He, therefore, submitted that the High Court should have dismissed the suit for eviction filed by the landlord on the ground that the requirements of section 11 and 12 of the Act were not satisfied.
We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld.
It is true that the proviso to (i) of section 11(1) and the proviso to PG NO 989 section 12(3) are intended for the protection of the tenant.
Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable.
The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts.
All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant 's correct address.
Once he does this and the letter is delivered to the post office, he has no control over it.
It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act.
Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him.
Such a person may either accept the letter or decline to accept it.
In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee.
The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter.
All that he can then do is to return it to the sender.
The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters.
When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender.
However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee 's absence.
His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C.
The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task.
If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter.
The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time.
Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it.
He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on.
It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served.
Such a possibility cannot be excluded.
But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal PG NO 990 course and is returned, it can only be attributed to the addressee 's own conduct.
If he is staying in the premises, there is no reason why it should not be served on him.
If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has B gone or to deliver them to some other person authorised by him.
In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter.
No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.
Much emphasis has been placed by the courts below and counsel for the landlord on the attempt made by the landlord to serve the notice on the premises in the presence of the witnesses.
While the counsel for the landlord would have it that the steps show the landlord 's bona fides.
counsel for the tenant submits that the haste with which the 'substituted service ' was effected and the lack of any real attempt to find out the whereabouts of the tenant (who had, according to him, been compelled to be away at Amritsar for medical treatment) throw consideration doubts on the claim of bona fides.
We do not think that any statutory significance can at all be attached to the service by affixture claimed to have been effected by the landlord.
The statute prescribes only one method of service for the notice and none other.
If, as we have held, the despatch of the notice by registered post was sufficient compliance with this requirement, the landlord has fulfilled it.
But, if that is not so, it is no compliance with the statute for the landlord to say that he has served the notice by some other method.
To require any such service to be effected over and above the postal service would be to travel outside the statute.
Where the statute does not specify any such additional or alternative mode of service, there can be no warrant for importing into the statute a method of service on the lines of the provisions of the C.P.C. We would therefore not like to hold that a "substituted" service, such as the one effected by the landlord in the present case, is a necessary or permissible requirement of the statute.
It may be even an impracticable, if not impossible, requirement to expect some such service to be effected in cases where the landlord lives outside the town, or the State in which the premises are situated.
If, in the present case, the landlord attempted such service because he was in the same town, that can only show His bona fides and PG NO 991 it is only in this view that we proceed to express our findings in this regard.
Having gone through the facts stated in the various orders, we think that the landlord did his best in the circumstances.
We are unable to accept the tenant 's contention that the mere circumstances that he had the notice affixed immediately on the day following the date of return of the postal notice is an indication of mala fides.
What is material is that his evidence that he took the notice to the premises and had it affixed on the premises, as he could not find the tenant, stands uncontradicted.
Indeed there is no doubt or dispute that the tenant was away from Jammu at the relevant time.
The plaintiff 's father 's evidence is clear and categorical that neither the tenant nor his servant was available.
There is no suggestion made to him that he made no real effort to ascertain the tenant 's address even though a servant was there who could have furnished the same.
In the written submissions, now filed, it is admitted that the tenant and his servant were both away at Amritsar though it is said that this was due to his illness.
It is however stated that the servant was coming to Jammu every week to collect the dak and that the postman had failed to make proper enquiry.
If this was true, the servant must have at least made enquiries and learnt from the postman that a registered letter had come and been returned and informed the tenant who could have taken steps to pay the arrears of rent.
On the other hand.
the evidence of the plaintiff 's father and witnesses to the affixture, of the postman and of the tenant 's own witness shows that there was no servant on the premises.
The evidence of the postman is categorical that there was no servant at the premises which was locked.
He says he had learnt from enquiries in the neighbourhood that the tenant had not been living in the premises for the past few months.
He admits that he knew there was a servant but says that the servant was also not there at the relevant time.
His reference to the servant working as a pheriwala at the same place is in regard to the time when he was giving evidence (i.e. in Dec. 1978).
It is not the case of the tenant that the other partner, son of Sohan Singh, was available for service either.
Thus the sum and substance of the evidence on record is that the tenant had gone away from the premises without intimating the landlord or neighbours of his correct address and without leaving behind any servant or agent to accept letters addressed to him.
In this situation the landlord did the only thing he could.
We are quite conscious that the provision in regard to the notice contemplated by the statute is unsatisfactory and PG NO 992 hope that the legislature would soon set it right.
But, on the provision as it stands, we cannot but hold that a landlord must be held to have complied with the statutory requirement by sending a notice correctly addressed to the tenant by registered post.
Also, in the present case, we are satisfied as indeed the lower courts were that the landlord did his best to bring the notice to the knowledge of the tenant.
He cannot be expected to do any more.
His petition for eviction cannot be dismissed on this score.
We only wish to add that, having regard to the fact that the tenant had deposited the arrears subsequently, we suggested to the parties that they should try to settle the matter amicably between themselves but the submissions filed by the parties after the hearing show that this has not been possible.
We have, therefore, no alternative but to dismiss this appeal and we hereby do so without, however, making any order as to costs.
R.S.S. Appeal dismissed.

summary:
In November 1976, the respondent issued a notice to the appellant under section 11 of the Jammu & Kashmir Houses & Shops Rent Control Act, 1966 calling upon it to pay the arrears of rent.
The notice also terminated the tenancy and called upon the appellant to vacate the demised premises.
The notice sent by registered post was received back by the respondent with the endorsement "left without address, returned to sender".
Thereupon the respondent caused a copy of the notice to be fixed to one of the doors of the premises in question.
No payment of rent was however made by the appellant subsequently.
The respondent, therefore, filed a suit in June 1977 seeking ejectment of the appellant on the ground of default in the payment of rent.
The Trial Court ordered eviction.
and the appellant 's appeals before the District .Judge and the High Court against the order of eviction failed.
Before this Court the appellant contends that (1) the safeguards in sections 11 and 12 of the Act are intended for the benefit and protection of the tenant and therefore, where the Act provides for the service of the notice, by post.
this requirement has to be strictly complied with; (2) such postal service can neither be presumed nor considered to be good service where The latter is returned to the sender due to non availability of the addressee; (3) in the absence of any enabling provision, service by some other mode, such as affixture, cannot be treated as sufficient compliance with the statute; and (4) where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden.
Dismissing the appeal, it was, HELD: (1) The proviso to clause (i) of section 11(1) and the proviso to section 12(3) are intended for the protection PG NO 983 PG NO 984 of the tenant.
A Nevertheless, it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable.
[988H; 989Al (2) The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post.
All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant 's correct address.
Once he does this and the letter is delivered to the post office, he has no control over it.
It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act.
[989A B] (3) To interpret the provision as requiring that the letter must have been actually delivered to the addressee, would be virtually rendering it a dead letter.
[989F] (4) If a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee 's own conduct.
If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities.
[989H; 990A] (5) The more reasonable, effective, equitable and practical interpretation would be to read the words "served" as "sent by post".
correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter.
No other interpretation will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by the tenant.
[990B C] (6) The statute prescribes only one method of service for the notice and none other.
To require service by some other method to be effected over and above the postal service would be to travel outside the statute.
[99OF] (7) Where the statute does not specify any additional or alternative mode of service, there can be no warrant for importing into the statute a method of service on the lines of the provisions of C.P.C.
This Court would therefore not like to hold that a substituted ' ' service.
such as the one effected by the landlord in the present case, is a necessary or permissible requirement of the statute.
[990G] (8) The provision in regard to the notice contemplated by the statute is unsatisfactory and it is hoped that the PG NO 985 legislature would soon set it right.
On the provision as it stands, a landlord must be held to have complied with the statutory requirement by sending a notice correctly addressed to the tenant by registered post.
[991H; 992A] Hare Krishna Das vs Hahnemann Publishing Co. Ltd. 1965 66, ; Surajmull Ghanashamdas vs Samardarshan Sur, ILR ; Taylor vs Taylor, 11875] 1 Ch. D. 426.