judgement:
Appeal No. 361 of 1958.
Appeal by special leave from the judgment and order dated December 11, 1957, of the Mysore High Court in Civil Revision No. 702 of 1956, against the judgment and order dated August 10, 1956, of the Court of the Second Extra Assistant Judge, Belgaum, in Misc.
Appeal No. 36 of 1955, arising out of the order dated September 1, 1955, of the 1st Joint Civil Judge, Junior Division, Belgaum, in Regular Civil Suit No. 197 of 1955.
M. M. Gharekhan and I. N. Shroff, for the appellant.
D. D. Chawla and G. Gopalakrishnan, for the respondent.
B. Sen and T. M. Sen, for the intervener (Attorney General of India).
February 13.
The Judgment of the Court was delivered by SARKAR, J.
This is an appeal from the judgment passed by the High Court at Bangalore on a petition in revision.
The question is whether a certain suit should be stayed under section 34 of the . 214 The appellant carries on business as a supplier of electrical energy in Belgaum.
It obtained a licence from the Government under section 3 of the , authorising it to supply the energy in that area.
The respondent, who is the plaintiff in the suit, obtained supply of electricity from the appellant.
The respondent felt that he was being overcharged by the appellant for the electricity so supplied.
He thereupon filed a suit in the Court of the Civil Judge, Belgaum, on or about the 8th of June, 1955, claiming a refund of the amount paid in excess of what he thought was the legitimate charge.
The appellant then applied under section 34 of the for a stay of the suit on the ground that the matter was referable to arbitration under the provisions of the .
The application was dismissed by the Civil Judge and his decision was confirmed by the Extra Assistant Sessions Judge on appeal and lastly, by the High Court in revision.
The appellant has now come to this Court.
The appellant contends that this matter is referable to arbitration under the provision contained in cl.
XVI of the Sixth Schedule of the Act of 1948.
A few of the provisions of these Acts will now have to be referred to.
Under the Act of 1910 the business of supplying electrical energy can be carried on only with the sanction of the Government.
Section 3 of that Act makes provision for the grant of a licence for supplying electrical energy.
The appellant obtained a licence in 1932.
A form of the licence is set out in the rules framed under the Act of 1910 and that form prescribes the maximum limit which a licensee is entitled to charge a consumer for the electrical energy supplied.
The Act of 1948 made a somewhat different provision with regard to these charges.
It provided by section 57 as follows: "section 57.
(1) The provisions of the Sixth Schedule and the Table appended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, not being a local authority, from the date of the commencement of the licensee 's next succeeding 215 year of account, and from such date the licensee shall comply therewith accordingly and any provisions of, such licence or of the , or ' any other law, agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said schedule and Table.
(2). . . . . . . . . .
This section had therefore the effect of incorporating in the licence the terms of these two Schedules and provided that they would prevail over the terms of any previously granted licence or the provisions of the Act of 1910, or any other law, agreement or instrument inconsistent with these Schedules.
The Sixth Schedule made new provisions about the charges that a licensee was entitled to realise for the current supplied.
Clause XVI of that Schedule contains a provision for arbitration and it is on that that the appellant relies.
That clause is in these terms: Any dispute or difference as to the interpretation or any matter arising out of the provisions of this Schedule shall be referred to the arbitration of the Authority.
" The appellant contends that the dispute covered by the respondent 's suit is one of the kind mentioned in this clause and therefore must be referred to arbitration under its terms.
We will assume that the dispute is of the kind mentioned in cl.
XVI of the Sixth Schedule.
We are however unable to see that it is a dispute which is referable to arbitration under that clause.
It is not the appellant 's case that el.
XVI is a clause in any contract between it and the respondent.
That being so, the only other way in which it is possible for the appellant to contend that the respondent is bound to refer the dispute to arbitration under this clause is by showing that it is a statutory provision for arbitration.
No doubt if it were so, then in view of the provisions of section 46 of the the 'appellant would be entitled to apply for a stay of the suit under section 34 of that Act.
We are however wholly unable to agree that cl.
XVI is such a statutory provision.
The only 216 statutory provision that we find on the subject is that contained in section 57 and its effect is that the terms of cl.
XVI and the other clauses in the Sixth Schedule are to be deemed incorporated in a licence granted by the Government under section 3 of the Act of 1910 and the licensee is to comply with the terms of that Schedule.
Therefore all that we get is that the licence which is granted by the Government to a supplier of electricity, like the appellant, is to contain a clause that certain disputes would be referred to arbitration.
The licence is an 'engagement between the Government and the licensee, binding the parties to it to its provisions.
It is unnecessary to decide whether this engagement is contractual or statutory, for, in either case it is between the two of them only.
An arbitration clause in an instrument like this can only be in respect of disputes between the parties to it.
Such an arbitration clause does not contemplate a dispute between a party to the instrument and one who is not such a party.
We are unable to read section 57 as making cl.
XVI in the Sixth Schedule a statutory provision by which certain disputes between any and every person have to be referred to arbitration.
It was said on behalf of the appellant that the licence is a statutory document ' That, in our view, is a loose way of putting the thing.
By that the utmost that can be meant is that it is issued under the terms of a statutory provision and must comply with the provisions thereof.
But that cannot convert it into a statutory provision for reference to arbitration of disputes irrespective of the parties between whom the disputes may exist.
In our view, therefore, cl.
XVI of the Sixth Schedule of the Act of 1948 contains no provision for arbitration, statutory or otherwise, for reference of the dispute of the nature we have before us, between a licensed supplier of electricity and a consumer of it from him.
In the result, this appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The arbitration clause incorporated by section 57(1) of the , in a licence granted by the Government for the supply of electrical energy to the consumers is not available for adjudicating upon a dispute between the licensee and the consumer, for the licence is an engagement between the licensee and the Government and the arbitration clause in it refers only to disputes between them.
Section 57(1) does not make the arbitration clause a statutory provision by virtue of which disputes between any and every person may be referred to arbitration.


judgement:
ivil Appeal No. 1351 of 1976.
From the Judgment and Order dated 24.11.
1975 of the Andhra Pradesh High Court in A.S. No. 691 of 1972.
T.V.S.N. Chari for the Appellant.
A. Subba Rao and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave arises against the Division Bench judgment dated November 24, 1975 in A.S. No. 691 of 1972 of the A.P. High Court fixing the market value @ Rs. I0 per square yard.
The facts lie in a short compass are stated thereunder.
By notification under section 4(1) of the Land Acquisition Act 1894 (in short 'the Act ') was published in the State Gazette on November 21, 1963 to acquire 5 acres 589 1/3 sq. yards in T.S. No. 981, Block No. 34 of Waitair Ward, Vishakapatnam for a housing scheme.
The Collector 475 awarded at Rs. 1.58 per sq. yard and on reference, the Civil Court enhanced the compensation to Rs. 10 per sq. yard with solatium at 15 per cent and interest at 4 per cent.
The respondent claimed @ Rs. 12 per sq. yard.
On appeal and cross appeals the High Court confirmed the award and dis missed the appeal as well as cross objections for enhance ment to Rs. 12 per sq. yard.
Two contentions have been raised by Shri Narsimahachari, the learned counsel for the appellant.
Under exhibit B. 6 dated August 3, 1961; under exhibit B 7 dated Sept. 5, 1961 and exhibit B 8, dated Sept. 8, 1961 the respondent purchased one acre 1936 sq.
yards in each docu ments in the same T.S. No. 981 @ 0.42 p. per sq. yard.
He sold on January 24, 1963 in an extent of one acre under exhibit B. 10 @ Rs.5 per sq. yard.
Therefore, ' the aforesaid sale deeds, exhibit B. 6, B. 7, B. 8 and B. 10 will reflect the prevailing market value of the land in question.
The Trial Court and the High Court committed grievous error in placing reliance on a decision of the High Court in A.S. No. 191 of 1967 dated November 11, 1970 awarding @ Rs. 10 per sq. yard in respect of 6,209 sq. yards in T.S. No. 1008, Block No. 39, Waitair Beach Road which was acquired under a notifica tion dated March 19, 1961 for the purpose of Caltex Oil Refinery.
The price fixed therein does not reflect the correct market value while the bona fide sale deed of pur chase and sale by the respondents relating to the acquired land are available on records and form correct basis.
The courts below committed grave error of law in completely excluding those sale transactions and relying upon that judgment.
We find force in the contention, though Shri Subba Rao, learned counsel for the respondent vehemently resisted, it.
It is settled law by catena of decisions that the market value postulated in section 23(1) of the Act designed to award just and fair compensation for the lands acquired.
The word "market value" would postulate price of the land prevailing on the date of the publication of the notification under section 4(1).
This Court repeatedly laid the acid test that in determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value.
For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price.
The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence.
In its absence the price paid for a land pos sessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notifica tion would supply the data to assess the market value.
It is not necessary to cite all the decisions suffice to state that in a recent judgment in Periya & Pareekanni Rubbers Ltd. vs State of Kerala, [1990] Supp. 1 SCR 476 362 a bench of this Court, to which one of us K.R.S., J., was a member surveyed all the relevant precedents touching the points.
In the light of the settled legal position let us consider whether the High Court and the Civil Court are justified in excluding the sale deeds completely and to place reliance on another judgment of the Division Bench of the High Court of A.P.
Admittedly, the claimant is a vendee in exhibit B. 6 to B. 8 @ 0.42 paise.
In a span of one year and four months, they sold @ Rs.5 per sq. yard; It is common knowledge that proposal for acquisition would be known to everyone in the neighbourhood, in particular, to the owners of the property and it is not uncommon that sale transac tions would be brought into existence before the publication of section 4(1) notification so as to form the basis to lay higher claim for compensation.
We do assume that exhibit B. 10 is a genuine and bona fide sale transaction.
In respect of one acre of the land in the self same land when sold at Rs.5 per sq. yard, would it fetch in a short period of nine months, double the market value, namely. @ Rs. 10 per sq. yard.
We have no doubt that it would not get that price for 5 acres and odd area.
It is undoubted that in respect of a notification of 1961 in which another T.S. number in the locality, namely, T.S. No. 1008, ultimately, the High Court awarded @ Rs. 10 per sq. yard.
Perhaps had there been no bona fide or genuine sale transaction relating to the self same land, the reliance placed on that judgment may be justified but exclusion of bona fide and genuine sale trans actions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal.
When the claimants themselves sold as a willing seller of an acre of land @ Rs.5 per sq.
yard large extent of five acres and odd under acquisition, if it is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate if not the same market value @ Rs.5 due to time lag of nine months.
No attempt was made by the respondent to explain under what circumstances they came to sell their lands @ Rs.5 per sq. yard when they expect higher value @ Rs. 10 per sq. yard.
May be the payment of Rs. 10 per sq. yard, be wind fall to the owner of the land in T.S. No. 1008 Taking the totality of the facts and circumstance, we hold that the High Court committed grave error to completely ignore the sale transac tions of the lands under acquisition.
In view of the time lag we have no hesitation to conclude that the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard.
It is next contended by Shri Narsimahachari that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, 477 drainage and other amenities.
The High Court committed manifest error in omitting to deduct 1/3 of the land.
Shri Subba Rao, the learned counsel for the respondent contended that the High Court had noted this contention of the appellant and considered that the market value of the land would be Rs. 12 per sq. yard and after giving the deduction of 1/3 it would come to Rs. 10.
The reasoning of the High Court is proper and warrants no interference.
In support thereof he placed reliance in Spl.
Tehsildar, Visha kapatnam vs Rednam Dharma Rao & Ors., C.A. No 4187 of 1982, dated July 17, 1990 wherein this Court had upheld the deduc tion of 1/5 from the market value towards developmental charges.
It is settled law that the High Court and the Reference court when made wrong application of a principle or important points effecting valuation has been over looked or misapplied, this Court would under article 136 correct the same, vide The Spl.
Land Acquisition Officer, Bangalore vs
T. Adinarayan Setty, [1959] Suppl.
1 S.C.R. 404; Dattatrayaya Shankarbhat Ambalgi and Ors.
vs The Collector of Sholapur and Anr., AiR 3 S.C.C. 431; The Dollar Co., Madras vs Collector of Madras, [1975] Supp.
SCC 403 and Padma Uppal Etc.
vs State of Punjab & Ors.
, ; In Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 2 13, this Court held that "in order to devel op that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities".
On this basis the value of the land at Rs.2,08,135.70 per acre would, after the deduction of 1/3 come to Rs. 1,38,757 per acre.
In Smt.
Kaushalya Devi Bogre & Ors.
vs The Land Acquisition Officer, Aurangabad; , this Court held that deduction of 1/3 was held to be reasonable.
In Vijay Kumar Motilal vs State of Maharashtra, 19 i/3rd was deducted towards developmental charges in undeveloped area.
In Vijaysingh Liladhar vs Special Land Acquisition Officer, the deduction of i/4th by the High Court which was not challenged in this court was upehld.
In Spl.
Land Acquisition Officer, Bangalore vs T. Adinarayan Setty, supra, deduction of 25 per cent was held to be reasonable.
It is to be noted that in building Regula tions, setting apart the lands for development of roads, drainage and other amenties like electricity etc.
are condi tion precedent to approve lay out for building colonies.
Therefore, based upon the situation of the land and the need for development the deduction shall be made.
Where acquired land is in the midst of already developed land with ameni ties of roads, drainage, electricity etc.
then deduction of 1/3 would not be justified.
In the 478 rural areas housing schemes relating to weaker sections deduction 1/4 may be justified.
On that basis, this court in R. Dharma Rao 's case upheld deduction of 1/5 because the owner while obtaining the lay out had already set apart lands for road and drainage.
Therefore, deduction of 1/3 would be reasonable.
In fact in The Tehsildar, Land Acquisi tion, Vishakapatnam vs
P. Narasing Rao & Ors., , a Division Bench of the High Court surveyed judgments of the High Court relating to housing schemes of Vishakapatnam upholding deduction of 1/3 to be reasonable.
Accordingly we hold that 1/3 of the market value should be deducted for development of the lands.
The High Court com mitted greivous error in giving a curious reasoning of valuing at Rs. 12 and upholding Rs. I0 to be the market value after deduction, though *.he market value was deter mined at Rs. 10.
Accordingly the appeal is allowed.
The market value is determined at Rs.6 per sq. yard and after deducting 1/3 the market value is Rs.4 per sq. yard.
The respondents are entitled to 15 per cent Solatium on market value and 4 per cent interest thereon from the date of dispossession.
But in the circumstances parties are directed to pay and receive their own costs.
N.P.V. Appeal al lowed.

dataset_name: IN-Abs

summary:
The respondent 's land admeasuring 5 acres 589 1/3 Sq. yards was acquired by the State Government in 1963 for a housing scheme and compensation at Rs.1.58 per Sq. yard was awarded.
On reference, the Civil Court enhanced the compen sation to Rs. 10 per Sq. yard with solatium at 15 per cent and interest at 4 per cent.
On appeal and cross appeals, the High Court confirmed the award.
In the appeal before this Court, on behalf of the De partment, it was contended that the respondent had purchased the land in question in 1961 in three documents at Rs.0.42 p. per sq. yard and sold in 1963 one acre of the land at Rs.5 per sq. yard and, therefore, the deeds under which the transactions took place reflected the prevailing market value of the land in question, and courts below committed grave error in relying on a decision of the High Court awarding Rs. 10 per sq. yard in respect of another land acquired under a Notification of 1961, and that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, drainage and other amenities.
Allowing the appeal, this Court, HELD: 1.1 The market value postulated in Section 23(1) of the Land Acquisition Act, 1894 is designed to award just and fair compensation for the lands acquired.
The word "market value" would postulate price of the land prevailing on the date of the publication of the notifica 473 tion under Section 4(1).
In determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis.
For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price.
The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence.
In its absence the price paid for a land pos sessing similar advantages to the land in neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value.
[475E G] Periya & Pareekanni Rubbers Lief.
vs State of Kerala, [1990] Supp. 1 SCR 362, referred to. 1.2 In the instant case, admittedly, the claimant pur chased land at Rs.0.42 p. and in a span of one year and four months, sold at Rs.5 per sq yard.
When the claimants them selves sold as a willing seller of an acre of land @ Rs.5 per sq.
yard, if a large extent of five acres and odd under acquisition is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate, if not the same market value of Rs.5 due to time lag of nine months.
May be the payment of Rs. 10 per sq yard to the owner of another land acquired in 1961 was a windfall.
Taking the totality of the facts and circumstances, the High Court committed grave error in completely ignoring the sale transactions of the lands under acquisition.
In view of the time lag, the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard.
[476B, E G] 1.3 In Building Regulations, setting apart the lands for development of roads, drainage and other amenities like electricity etc.
are condition precedent to approve lay out for building colonies.
Therefore, based upon the situation of the land and the need for development, the deduction shall be made.
Where acquired land is in the midst of al ready developed land with amenities of roads, drainage, electricity etc.
then deduction of 1/3 would not be justi fied.
In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified.
[477G H, 478A] Spl.
Tehsildar, Vishakapatnam vs Rednam Dharma Rao & Ors., CA No. 4187 of 1982 decided on July 17, 1990; Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 213; Smt.
Kaushalya Devi Bogre & Ors.
vs The Land Acquisi tion Officer, Aurangabad; , ; Vijay Kumar Motilal vs State of Maharashtra, ; Vijay singh Liladhar vs Special Land Acquisition Officer, 760; Spl.
Land Acquisition Officer, Bangalore vs
T. Adinaray an Setty, [1959] Sppl.
1 SCR 404 and The Tehsildar, Land Acquisition, Vishakapatnarn
P. Narasing Rao & Ors., , relied on. 1.4 In the instant case, 1/3 of the market value should be deducted for development of the lands.
[478B] 1.5 The market value is determined at Rs.6 per sq. yard and after deducting 1/3 for development of lands, it would be Rs.4 per sq. yard.
[478C] 2.
It is settled law that when wrong application of a principle has been made or important points affecting valua tion have been overlooked or misapplied by the High Court or Reference Court, this Court would, under Article 136 of the Constitution, correct the same.
The Spl.
Land Acquisition Officer, Bangalore vs
T. Adina rayan Setty, [1959] Suppl.
1 SCR 404; Dattatrayaya Shankarb hat Ambalgi and Ors.
vs The Collector of Sholapur and Anr., ; The Dollar Co. Madras vs Collector of Madras, and Padma Uppal etc.
vs State of Punjab & Ors.
, ; , relied on.


judgement:
ition (Civil) No. 873 of 1990.
(Under Article 32 of the Constitiution of India) WITH Contempt Petition No. 6 of 1991.
AND Civil Appeal Nos.
309 to 373 of 1992.
R.K. Garg, Kapil Sibal, V. Lakshmi Narayanan, D.K. Garg and P. Mahale for the Petitioners.
R.N. Narasimhamurthy, Kh.
Nobin Singh and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Teachers appointed temporarily for three months or less, by privately managed degree colleges receiving cent per cent grant in aid, controlled administratively and financially by the Educational Department of the State of Karnataka, seek regularisation of their services by invoking principle of equitable estoppel arising from implied assurance due to their continuance, as such, for years with a break of a day or two every three months.
Another basis for direction to regularise is founded on denial of similar treatment by the State as has been extended to contract teachers and local teachers appointed in government or vocational colleges.
Payment of fixed salary instead of regular emoluments for eight months in a year and that too for number of years is yet another grievance.
Ad hoc appointments, a convenient way of entry usually from back door, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence.
They are individual problem to begin with, become a family problem with passage of time and end with human problem in court of law.
It is unjust and unfair to those who are lesser fortunate in society with little or no approach even though better qualified, more meritorious and well deserving.
The infection is 401 widespread in government or semi government departments of State financed institutions.
It arises either because the appointing authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure or to avoid loss of work etc.
Or the rules or circulars issued by the department itself empower the authority to do so as a stop gap arrangement.
The former is an abuse of power.
It is unpardonable.
Even if it is found to have been resorted to as a genuine emergency measure the courts should be reluctant to grant indulgence.
Latter gives rise to equities which have bothered courts every now and then.
Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it.
Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks.
In State of Karnataka it is basically State created problem due to defective rule and absence of any provsions to effectively deal with such a situation.
What is surprising is that till today the State has not been able to bring out a comprehensive legislation on such an important aspect as education and the appointment, selection, promotion, transfer, payment of salary etc.
of teachers is regulated by government orders issued from time to time.
Since 1980 it is governed by an order issued by Educational and Youth Services Department of the State of Karnataka on 3rd October, 1981.
Clause 5 of the Order reads as under: "Any appoinment for a period of three months or less in a College shall be made, subject to approval of the Director within one month from the date of appointment by the Management or such authority as the Management by Order, may specify in that behalf.
Such temporary appointments may, however, be continued for a further period of not more than three months, with one day 's break when selection through the Selection Committee is likely to take time.
The Director may, for reasons to be recorded in writing refuse approval for the said appointment and the services of the person so appointed shall be terminated forthwith.
" Appointments for more than three months is to be by a regularly constituted selection committee under clause 4 of the order.
But if is for three months or less than the appointment could be made by the 402 Management under clause 5 subject to approval by the Director.
It could be continued for further period of three months if there was delay in regular appointment.
But the direction to re appoint with one day 's break is not understandable.
If the intention was to differentiate between appointments for more than three months and others it was a futile exercise.
That had already been achieved by providing two different methods of selection one by Selection Committee and ohter by Management.
Distinction between appointment against temporary and permanent vacancies are well known in service law.
It was unnecessary to make it appear crude.
If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State.
Such provisions cannot withstand the test of arbitrariness.
That is why the High Court, while disposing of CMW 6232 of 1990 B.R. Parineeth & Ors.
vs The State of Karnataka & Others, along with many other petitions by its order dated 3rd July, 1990, criticised such practice as pernicious.
The rule making authority lost sight of fact that such policy was likely to give dominance to vested interests who leave no opportunity to exploit the educated youth who have to survive even at cost of one meal a day.
That is apparent from continuance of these teachers for 8 to 10 years with sword of termination hanging on their head ready to strike every three months at the instance of either the management or the Director.
Provision of stop gap appointments might have been well intended and may be necessary as well but their improper use results in abuse.
And that is what has happened on a large scale.
The helplessness expressed by the State in the counter affidavit that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing.
It sounds like surrender in favour of private managements.
Another obnoxious part is the emoluments that have been paid to the temporary teachers.
The order provides that the teacher shall be paid a fixed salary which is ten rupees less than the minimum payable to regular employee.
This method of payment is again beyond comprehension.
An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed a fixed salary by adopting a different method of payment than a regular teacher.
Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution.
The evil inherent in it is that apart from the teachers being at the beck and call of the management are in danger of being exploited as has been done by the management 403 committees of State of Karnataka who have utilized the services of these teachers for 8 to 10 years by paying a meagre salary when probably during this period if they would have been paid according to the salary payable to a regular teacher they would have been getting much more.
Payment of nearly eight months ' salary, by resorting to clause 5, and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust.
A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorded in accordance with rules but no discrimination can be made for same job on basis of method of recruitment.
Such injustice is abhorring to the constitutional scheme.
While deprecating direction by the government to break service for a day or two and paying fixed salary to temporary employees we must condemn the practice of management of not making regular selection utmost within six months of occurrence of vacancy.
Nor the helplessness of government can be appreciated as expressed in the counter affidavit that despite orders the management continued with it.
If the government could not take effective measure either by superseding the management or stopping grant in aid then either it was working under pressure from Management of the private aided institutions or it was itself interested in continuing such unfortunate state of affairs.
In either case the equities have been created because of doing of state itself, therefore, it should resolve it.
One such method was adopted by the High Court in invididual petitions filed by the teachers by directing the Director of Education to hold selection.
In pursuance of it some of the teachers have been regularised.
But substantial number still remain due to State 's going back on its agreement before the court by creating obstacles in implementation of the order.
Many of them who have have faced selection and have secured higher marks and are in zone of selection are being denied the benefit because it is claimed that such regularisation would be contrary to reservation policy of the State.
The policy is under challenge in another proceedings in the Court.
Without entering into validity of the policy which according to petitioner results in cent per cent reservation we are of opinion that such practice should be put an end to, therefore, following directions are necessary to be issued: (1) Provision in clause 5 of one day 's break in service is struck down as ultra vires.
(2) Orders for payment of fixed salary to temporary teachers is declared invalid.
But it shall operate prospectively.
A teacher appointed temporarily shall be paid the salary that is admissible to any teacher appointed regularly.
404 (3) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made.
(4) Management shall take steps, whenever necessary, to fill up permanent vacancies in accordance with rules.
Delay in filling up the vacancies shall not entitle the management or Director to terminate the services of temporary teachers except for adequate reasons.
But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if permitted under law to compel the institutions to comply with the rules.
So far these petitioners and teachers similarly situated are concerned, it could not be disputed that many of those teachers who appeared for selection in pursuance of the High Court order secured sufficiently high marks but they could not be regularised because the vacancies are said to be reserved.
But what has been lost sight of is that petitioners are seeking regularisation on posts on which they have been working and not fresh appointments, therefore, they could not be denied benefit of the High Court 's order specially when no such difficulty was pointed out and it was on agreement by the respondents that the order was passed.
No material has been brought on record to show that any action was taken prior to decision by the High Court against any institution for not following the reservation policy.
To deny therefore the benefit of selection held on agreement by the respondents is being unjust to such selectees.
Further the State of Karnataka appears to have been regularising services of adhoc teachers.
Till now it has regularised services of contract lecturers, local candidates, University lecturers,Engineering colleges, lecturers etc.
It may not furnish, any basis for petitioners to claim that the State may be directed to issue similar order regularsing services of teachers of privately managed colleges.
All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hopes and expectations in employees of other departments.
That is why it is incumbent on governments to be more circumspect in taking such decisions.
The petitioners may not be able to build up any challenge on discrimination as employees of government colleges and private colleges may not belong to the same class yet their claim cannot be negatived on the respondents ' stand in the counter affidavit that the regularisation of temporary teachers who have not faced selection shall impair educational standard without explaining the effect of regularisation of temporary teachers of University and even technical colleges.
Such being the unfortunate state of affairs this Court is left with no option but to issue following directions to respondents for not honoring its com 405 mitments before the High court and acting contrary to the spirit of the order, and also due to failure of governemt in remaining vigilant against private management of the college by issuing timely directions and taking effective steps for enforcing the rules: (1) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated.
They shall be absorbed as and when regular vacancies arise.
(2) If regular selections have been made the governemt shall create additional posts to accommodate such selected candidates.
(3) The teachers who have undergone the process of selection under the directions of the High Court and have been appointed because of the reservation policy of the Government be regularly appointed by creating additional posts.
(4) From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post.
(5) Such teachers shall be continued in service even during vacations.
For these reasons this petition succeeds and is allowed.
The direction is issued to respondents in the terms indicated above.
Civil Appeal Nos.
309 373 of 1992 arising out of SLP (Civil) Nos.
13131 95 of 1990 challenging the order of High Court in CMW 6232 of 1990 decided on 3rd July, 1990 is disposed of accordingly.
Contempt Petition No. 6 of 1991 alleging violation of status quo order granted in W.P. (Civil) No. 873 of 1990 need not be decided.
It is directed to be filed.
The petitioners shall be entitled to their cost from the State of Karnataka.
T.N.A. Petition allowed.

summary:
The Education and Youth Services Department of the State of Karnataka issued an order dated 3rd October 1981 which provided two different methods of selection of teachers in private aided degree colleges one by Selection Committee and another by Management.
Under the order appointments for more than three months could be made by a selection committee whereas temporary appointments for less than 3 months could be made by the Management and such temporary appointments could be continued for a futher period of not more than 3 months, with one day 's break in service.
The Government order also provided that such temporary teachers shall be paid fixed salary being ten rupees less than the minimum payable to regular teachers.
The teachers temporarily appointed under the said order accordingly continued in service for a long period but with a break of a day or two every three months in their service.
Subsequently, they filed a writ petition in this Court seeking regularisation of their services by invoking the principle of equitable estoppel arising from implied assurance due to their long continuance.
It was contended on behalf of the petitioners that; (i) since the State has regularised the services of contract teachers and local teachers appointed in Government or vocational colleges they should also he extended similar treatment; and (ii) payment of fixed salary instead of regular emoluments for eight months in a year was discriminatory and arbitrary.
398 Allowing the petition, this Court, HELD: 1.
Provision of one day 's break in service in the Government order is deprecated and is struck down as ultra vires.
If the intention was to differentiate between appointments for more than three months and others it was a futile exercise.
That was already achieved by providing two different methods of selection one by Selection Committee and other by Management.
Distinction between appointment against temporary and permanent vacancies are well known in service law.
It was unnecessary to make it appear crude.
If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State.
Such provisions cannot withstand the test of arbitrariness.
[403 G; 402 A B] B.R. Parineeth & Ors.
vs The State of Karnataka & Ors.
CMW 6232 of 1990 decided on 3.7.1990, referred to.
Order for payment of fixed salary to temporary teachers is declared invalid.
An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed, a fixed salary by adopting a different method of payment than a regular teacher.
Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution.
[403 G; 402 F G] 2.1 Payment of nearly eight months ' salary by resorting to government order and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust.
Such injustice is abhorring to the constitutional scheme.
[403 A B;] 3.
The practice of management of not making regular selection utmost within six months of occurrence of vacancy is condemned.
The helplessness expressed by the State that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing and sounds like surrender in favour of private managements.
[403 C, 402 E] 3.1 Managements shall take steps, whenever necessary, to fill up permanent vacancies in accordance with rules.
Delay in filling 399 up the vacancies shall not entitle the management or director to terminate the services of temporary teachers except for adequate reasons.
But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if premitted under law to compel the institutions to comply with the rules.
[404 B] 4.
Regularisation of services of teachers of Government colleges by the State may not furnish, any basis for petitioners to claim that the state may be directed to issue similar order regularizing services of teachers of privately managed colleges.
All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hope and expectations in employees of other departments.
Therefore, it is incumbent on governments to be more circumspect in taking such decisions.
[404 E G] 5.
Ad hoc appointments, a convenient way of entry usually from backdoor, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence.
The infection is widespread in government or semi government departments or State financed institutions.
Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at time without following the procedure and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it.
Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks.
[400 G H; 401 C D] 6.
In the circumstances of the case following directions are issued: a) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made; [404 A] b) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated.
They shall be absorbed as and when regular vacancies arise; [405 B] 400 c) If regular selections have been made the government shall creat additional posts to accommodate such selected candidates; [405 B] d) From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post.
[405 D]


judgement:
ivil Appeal No. 1993 of 1982.
From the Judgment and Order dated 9.2.1982 of the Delhi High Court in S.A.O No. 59 of 1979.
M.K.Ramamurthi, Mrs. Chandan Ramamurthi and M.A.Krishnamoorthi for the Appellants.
Harish N. Salve and A.K.Sanghi for the Respondents.
The Judgment of the Court was delivered by T.K.THOMMEN, J.
This appeal arises from the judgment of the 476 Delhi High Court in S.A.O.No.
59 of 1979 whereby the High Court, reversing the concurrent findings of the Additional Rent Controller and the Rent Control Tribunal, allowed the respondent landlord 's application for eviction of the appellant tenant under section 14(1)(e) of the Delhi Rent Control Act, 1958 (the `Act ').
The respondent is the daughter of the original landlord who had let out the premises to the appellant on 1.10.1961.
The present respondent purchased the property from her father on 27th June, 1964 and thus stepped into his shoes as the `landlord ' as defined under section 2(e) of the Act.
Relying upon the Rent Note and the appellant 's letters dated 7.10.1961 and 18.8.1962 addressed to the respondent 's father and the earlier proceedings between them for eviction of the appellant on the ground of sub letting the premises for commercial purposes, both the statutory authorities found that the premises which had been let out for residential purposes to the appellant had also been used incidentally for commercial purposes so as to exclude the application of section 14 (1) (e) read with the Explanation thereto.
This finding was reversed by the High Court by the impugned judgment.
This High Court found that there was no evidence for the statutory authorities to come to the conclusion, which they did, as regards the premises having been used for commercial purpose.
This is what the High Court says: ". .
No documentary evidence has been brought on record to hold that the premises were ever used for boarding and lodging foreign students. .Thus there is no evidence on record to hold that the premises were used for boarding and lodging of the foreign students or that the premises were let to the respondent for commercial purposes.
Thus, I am of the view that the premises were let to the respondent for use as residence and the findings to contrary by the controller and the Tribunal are without any evidence on record and are perverse".
This finding of the High Court is, in our view, unsustainable.
The High Court was not justified in saying that there was no evidence to hold that the premises were used for boarding and lodging foreign students.
The specific plea of the landlord in the earlier proceedings was that the tenant had sub let the premises for commercial purposes.
The tenant contended that she had never parted with her exclusive possession of any part of the premises and the foreign students who were lodging were her paying guests and were not her tenants.
The plea of sub tenancy raised by the landlord was thus rejected on the ground that those who logged with her were not sub tenants but only paying guests.
Letters dated 7.10.1961 477 and 18.8.1962 addressed by the appellant tenant to the respondent landlord were considered by the authorities in coming to the conclusion, which they did.
These letters clearly disclosed the fact that foreign students were lodged in the evidence let in by the appellant and not contradicted by the respondent clearly showed that apart from the appellant, all the other inmates of the premises were foreign students staying with her as her paying guests.
The appellant testified to the effect that she earned her livelihood from the income she received as lodging fee from students who lodged with her.
It was out of that income that all her personal expenses including the rent payable by her for the premises had been met.
These are the findings of the two fact finding authorities and those findings are based on oral and documentary evidence.
To have reversed those findings by the High Court in Second Appeal on the ground that they were perverse was totally uncalled for.
Mr Harish Salve appearing for the respondent landlord submits that even if the High Court was wrong in coming to the conclusion that there was no evidence about foreign students stayed as paying guests in the premises did not imply either that they lodged with the consent of the landlord or that such lodging amounted to a commercial use of the building.
Counsel submits that the High Court was right on the facts of this case in saying that the ground contained in clause (e) of section (1) of section 14 was attracted.
There is no substance in the contention that the landlord was unaware that the premises had been used for lodging foreign students.
The two letters relied on by the statutory authorities leave no doubt that this fact was well known to the landlord at all material times.
To the knowledge of the landlord the premises have been regularly used by the tenant ever since 1961 for the residence of not only herself but also of the foreign students who were lodged by her for gain as paying guests.
The evidence is that she had no income other than what she received as lodging fee from foreign students.
The question then is whether the facts found excluded the application of the ground contained in clause (e) of the section 14 (1).
Section 14, insofar as it is material, reads: "S.14.
Protection of tenant against eviction: (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: 478 Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely (e) that the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation; Explanation For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes".
The only ground which is relied on by the landlord is that which is contained in clause(e) read with the Explanation.
Clause (e) on the facts alleged is applicable only if the landlord is in a position to establish that the premises let for residential purposes are required bona fide by him for occupation as a residence.
Assuming that the bona fide requirement of the landlord is established, the landlord must still prove that the premises had been let for residential purposes.
The Explanation to clause (e) makes it clear that the words `premises let for residential purposes ' include any premises let for residential purposes, but used incidentally, without the consent of the landlord, for commercial or other purposes.
The Explanation is attracted when (i) the premises have been let for residential purposes, (ii) the premises have been used incidentally for commercial or other purposes, and (iii) the landlord had not given his consent for such incidental use for commercial or other purposes.
If the three ingredients contained in the Explanation are attracted, the premises do not cease to be "Premises let for residential purposes" falling under clause (e).
In respect of such premises, the bona fide requirement of the landlord referred to in clause (e) is a ground for eviction.
If the premises have never been used for any non residential purpose, the aid of the Explanation is unnecessary to attract clause (e).
The Explanation is called in aid only where premises let for residential purposes have been used incidentally for commercial or other non residential purposes, but without the consent of the landlord.
The fundamental question in respect of residential premises is whether the landlord had consented to the user of the premises for any other purpose, albeit incidentally.
479 If the landlord is in a position to establish that the premises have been let for residential purposes and that he has never consented to the user of the premises for any other purpose, the mere fact that such premises have been incidentally used for commercial or other purposes would not change or affect the residential character of the premises.
In respect of such premises, it is open to the landlord to prove his bona fide requirements and thus establish the ground mentioned under clause (e).
On the other hand, if the premises have been regularly and openly used for non residential purposes, the knowledge and constant of the landlord, unless proved to the contrary, are ordinarily presumed and in that event the Explanation would be of no avail to save the ground under clause (e).
In the present case, it is not disputed that the premises had been let for residential purposes, but it is also beyond doubt that to the knowledge of the landlord the premises have been regularly used by the tenant not only for her own residence but also for her foreign guests.
The landlord has at all material times known or is presumed to have known that foreign students have been staying with the appellant as her paying guests and that she has been ever since 1961 running a boarding house in the premises.
At no time did the landlord object to the user of the premises by the appellant for such purpose.
The continued user of the building ever since 1961 for the purpose of lodging paying guests shows that the respondent landlord and her father have not only been aware of such user of the building, but have also impliedly consented to such user.
This presumption is irresistible from the evidence on record.
Such user takes the premises in question out of the ambit of `premises let for residential purposes ' so as to exclude the ground contained in clause (e).
We are fortified in our conclusion by the views expressed by this Court in Dr. Gopal Dass Verma vs Dr. S.K. Bhardwaj & Anr., ; and Kartar Singh vs Chaman Lal & Ors., SC (1969) IV All India Rent Control Journal 349.
The position would have been probably different, and the Explanation would have been still available, had foreign guests been lodged only occasionally and for short periods, even if it be on the basis of payment to cover expenses.
All this is a question of intention.
Was it an occasional accommodation of paying guests consistently with the character of the premises as a private residence? The evidence on record leaves no doubt that the premises have been regularly used by the appellant as a boarding house and not as a private 480 residence in the ordinary acceptation of the term.
She has in fact been carrying on, in the words of Romer, J., "a species of business".
See Hobson vs Tulloch [1898] 1 Chancery Division 424.
See also Thorn & Ors.
vs Madden and Tendler vs Sproule [1947] 1 All E.R. 193.
In the absence of any question of law, much less any substantial question of law, the High Court was not justified in reversing the concurrent findings of the statutory authorities.
In the circumstances, we set aside the impugned judgment of the High Court and restore the orders of the Additional Rent Controller dated 29.9.1976 and Rent Control Tribunal dated 18.11.1978.
The appeal is allowed in the above terms with the costs of the appellant throughout.
N.V.K. Appeal allowed.

summary:
The respondent was the daughter of the original landlord who had let out the premises to the appellant on October 1, 1961.
She purchased the property from her father on June 27, 1964 and thus stepped into his shoes as the `landlord ' as defined under section 2 (e) of the Delhi Rent Control Act, 1958.
The respondent sought eviction of the appellant from the demised premises on the ground of personal bonafide requirement.
The appellant resisted the eviction petition on the grounds that the premises were not let out for residential purpose only but for commercial purpose also i.e. for keeping foreign students as paying guests, and that the respondent does not have a bonafide need or requirement as such.
Relying upon the Rent Note and the appellant 's letters dated October 7, 1961 and August 18, 1962 addressed to the respondent 's father, and the earlier proceedings between them for eviction of the appellant on the ground of sub letting the premises for commercial purpose, both the statutory authorities the Additional Rent Controller and the Rent Control Tribunal found that the premises which had also been used incidentally for commercial purposes so as to exclude the application of section 14(1) (e) read with the explanation thereto, and dismissed the respondent 's application for eviction.
473 This finding was reversed by the High Court in the respondent 's second appeal under Section 29 of the Act.
The High Court found that there was no evidence for the statutory authorities to come to the conclusion, which they did, as regards the premises having been used for commercial purpose.
The High Court accepted the appeal and set aside the judgment and order of the Rent Controller and the Rent Control Tribunal, and allowed the eviction application.
The tenant appealed to this Court by Special appeal.
On behalf of the respondent landlord it was submitted that even if the High Court was wrong in coming to the conclusion that there was no evidence about foreign students being lodged by the tenant, the mere fact that foreign students stayed as paying guests in the premises did not imply either that they lodged with the consent of the landlord or that such lodging amounted to a commercial use of the building, and that the High Court was right in saying that the ground contained in clause (e) of sub section (1) of section 14 was attracted.
Allowing the appeal, and setting aside the judgment of the High Court, and restoring the orders of the Additional Rent Controller and the Rent Control Tribunal, this Court, HELD: 1.
The finding of the High Court is unsustainable.
The High Court was not justified in saying that there was no evidence to hold that the premises were used for boarding and lodging foreign students.
The specific plea of the landlord in the earlier proceedings was that the tenant had sub let the premises for commercial purposes.
The tenant contended that she had never parted with her exclusive possession of any part of the premises and the foreign students who were lodging with her were her paying guests and were not her tenants.
The plea of sub tenancy raised by the landlord was thus rejected on the ground that those who lodged with her were not sub tenants but only paying guests.
[476 G H] 2.
The letters dated October 7, 1961 and August 18, 1962 clearly disclosed the fact that foreign students were lodged in the premises as the guests of the appellant.
The evidence let in by the appellant and not contradicted by the respondent clearly showed that apart from the appellant all the other inmates of the premises were foreign students staying with her as her paying guests.
The appellant testified that she earned her livelihood from the income she received as lodging fee from students who lodged with her, and 474 that is was out of that income that all her personal expenses including the rent payable by her for the premises had been met.
These are the findings of the two fact finding authorities, and those findings are based on oral and documentary evidence.
To have reversed those findings by the High Court in Second Appeal on the ground that they were perverse was totally uncalled for.
[477 A C] 3.
In the absence of any question of law, much less any substantial question of law, the High Court was not justified in reversing the concurrent findings of the statutory authorities.
[480 B] 4.
Clause (e) of section 14(1) of the Act is applicable only if the landlord is in a position to establish that the premises let for residential purposes are required bona fide by him for occupations as residence.
Assuming that the bona fide requirement of the landlord is established the landlord must still prove that the premises had been let for residential purposes.
The Explanation of clause (e) makes it clear that the words `premises let for residential purposes ' included any premises let for residential purposes but used incidentally, without the consent of the landlord, for commercial or other purposes.
The Explanation is attracted when : (1) the premises have been let for residential purposes, (ii) the premises have been used incidentally for commercial or other purposes,and (iii) the landlord has not given his consent for such incidental use for commercial or other purpose.
[478 D F] 5.
If the premises have never been used for any non residential purpose, the aid of the explanation is unnecessary to attract clause (e).
The Explanation is called in aid only where premises let for residential purpose have been used incidentally for commercial or other non residential purpose, but without the consent of the landlord.
[478 G] 6.
If the landlord is in a position to establish that the premises have been let for residential purposes and that he has never consented to the user of the premises for any other purpose, the mere fact that such premises have been incidentally used for commercial or other purposes would not change or affect the residential character of the premises.
[479 A] 7.
If the premises have been regularly and openly used for non residential purposes, the knowledge and consent of the landlord, unless proved to the contrary, are ordinarily presumed and in 475 that event the explanation would be of no avail to save the ground under clause (e).
[479 B] 8.
In the instant case, it is not disputed that the premises had been let for residential purposes, but it is also beyond doubt that to the knowledge of the landlord the premises have been regularly used by the tenant not only for her own residence but also for her foreign guests.
The landlord has as all material times known or is presumed to have known that foreign students have been staying with the appellant as her paying guests and that she has been ever since 1961 running a boarding house in the premises.
At no time did the landlord object to the user of the premises by the appellant for such purpose.
[479 C D] 9.
The continued user of the building ever since 1961 for the purpose of lodging paying guests shows that the respondent landlord and her father have not only been aware of such user of the building, but have also impliedly consented to such user.
This presumption is irresistible from the evidence on record.
Such user takes the premises in question out of the ambit of `premises let for residential purpose ' so as to exclude the ground contained in clause (e).
[479 E] Dr. Gopal Dass Verma vs Dr. S.K. Bhardwaj & Anr., ; ; Kartar Singh vs Chaman Lal & Ors., (SC) (1969) IV All India Rent Control Journal 349; Hobson vs Tulloch, [1898] 1 Chancery Division 424; Thorn & Ors.
vs Madden, [1925] All E.R.321 and Tandler vs Sproula , referred to.


judgement:
Special leave Petition (Civil) No. 10330 of 1991.
From the Judgement and Order dated 3.5.1991 of the Bomaby High ourt in writ Petition No. 186 of 1991.
Kapil Sibal, Makrand D. Adkar and Ejaz Maqbool for the Petitioner.
R.D. Tulpule, D.M. Nargolkar, Ms. Kiran Bhagalia, Ms. V.D.Khanna and A.M. Khanwilkar for the respondents.
Caveator in person.
The following Order of the Court was delivered.
The petitioner, Bhushan Uttam Khare, appeared for the Third Year M.B.B.S. Examination held by University of Poona in the months of October November, 1990.
The results of the said examination were declared on 12.12.1990.
As per University of Poona Ordinance 134A, the petitioner applied for revaluation of his answer papers.
167 students including the petitioner had applied for revaluation.
When the revaluation results were declared, certain students made representation to the University authorities for their answer papers being revaluate from the same set of examiners.
388 On receipt of the representation, the Executive Council of University appointed a Committee to make an enquiry.
On the report of the Committee, the University of Poona decided to cancel the revaluation results and to conduct further revaluation.
This decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation was challenged by the petitioner and others in writ petitions filed before the High Court at Bomaby.
By the impugned judgement dated May 3, 1991 the High Court dismissed the writ petitions.
Aggrieved by the decisions, the petitioners have moved this petition for special leave.
The Poona University Act, 1974 defines the powers and duties of the Executive Council.
The Executive Council may make Ordinances to provide for the conduct of the examinations.
Under Ordinance 134A, the Vice Chancellor shall use his discretionery powers to decide as to whether all the applications received from the candidates, be considered for revaluation or not.
If as a result of revaluation of answer books, the marks obtained by the candidate increase over the original marks by 10% or more of the marks carried by the paper then only the result of revaluation will be accepted by the University.
Application for vertification of answer books will be entertained within a period of two weeks from the date of declaration of the results.
Ordinance 146 reads: "146.
In any case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other course of whatsoever nature, the Executive Council shall have power to amend such result in such manner as shall be in accord with the true position and to make such declaration as the Executive Council shall consider necessary in that behalf.
Provided that, but subject to 0.147, no result shall be amended after the expiration of six months from the date of publication of the said result".
In the Third Year M.B.B.S. Examination, 402 students appeared for the examination and 167 students for revaluation of the answer books.
When the representation of students opting for revaluation was placed before the Executive Council as glaring difference was indicated, a Committee was appointed for scrutiny and to reassess theory papers of the students acquiring more than 20% marks after revaluation, from senior teachers of the Faculty.
After scrutiny, it was found out that the marks are closer to the original marks in Medicine, Surgery and Preventive and Social Medicine.
Therefore, the Committee recommended that the entire revaluation of the papers should be cancelled.
This report of the 389 Committee was placed before the Executive Council in its meeting held on March 27, 1991 and the Council by the resolution cancelled the result of the revaluation and directed fresh revaluation.
The second revaluation was done through the examiners outside the State.
The results on revaluation intimated to the Medical College thus stood cancelled and the final results were delcared in pursuance to the second revaluation.
The action of the Executive Council was attacked on the grounds that it was an arbitrary action; that the choice of the examiners was that of the Vice Chancellor as enjoined under the Ordinance and there was no glaring instance of any malpractice, fraud or other course of whatsoever nature to cancel the revaluation and in the absence of any provision in the statute or the Ordinance for a second revaluation, the decision taken by the Executive Council is unwarranted and, therefore, illegal.
In repelling these contentions, the High Court has taken the view that educational institutions set up Enquiry Committee to deal with problem posed by the adoption of unfair means and it is normally within their domestic jurisdiction to decide all questions in the light of the material adduced.
Unless there is an absolute and compelling justification, the Writ Court is slow to interfere with the autonomous activity of the Executive Councils.
The High Court said that the material on record indicated that this is not a case for exercise of jurisdiction under Article 226 of the Constitution and since the Court has found that there is material to reach the decision as regards cancellation of the impugned result of revaluation, the contentions taken up by the petitioner are untenable.
The petitioners have reiterated the submissions that there had been no improper conduct come to light and the absence of any provision for a second revaluation vitiates the whole action.
We have been taken through a comparative chart containing the marks awarded in the original examination, the first revaluation and the second revaluation.
The attempt of the learned counsel for the petitioners had been to make out that the disparity was not such as to indicate any improper practice and that the Committee constituted consisted of four members of whom two were original examiners and the report submitted by that Committee should not have been made the basis for the decision which affected the prospects and career of a large number of medical students.
The learned counsel for the University as also the standing counsel for the State drew our attention to the fact that Executive Council had only cautiously proceeded in the matter and before ordering cancellation a probe was made and the mem 390 bers of the Enquiry Committee were competent persons and that there is no illegality which warrants interference of the Court.
We have considered all the materials placed before us in the light of arguments advanced keeping in mind the well accepted principle that in deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice.
We are satisfied that there had been sufficient material before the Executive Council to proceed in the manner in which it has done.
It is not correct to say that the University had acted on non existing rule for ordering revaluation.
Ordinance 146 is comprehensive enough to include revaluation also for further action.
The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation.
It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results.
However, it is not so glaring or demonstrably unconscionable as seen in the first revaluation.
We cannot, therefore, accept the contention of the petitioner that the High Court had erred in not granting the relief sought for.
We can only observe that the case of the petitioner, who alone has come before this Court and who had secured higher marks in the first revaluation and is, therefore, aggrieved by the cancellation of the same, would by duly considered in the selection for Post Graduate Course.
The special leave petition is dismissed.
Y.L. SLP dismissed.

summary:
Consequent upon the announcement of his M.B.B.S. Examination result on 12.12.1990, the petitioner alongwith other 166 students, applied for revaluation of answer books under University of Poona Ordinance 134A.
When the revaluation results were declared, certain students made representation to the University Authorities for their answer papers being revalued from the same set of examiners.
The University on consideration of that representation appointed a Committee for scrutiny and to reasses theory papers of the students acquiring more than 20% marks after revaluation, from senior teachers of the Faculty.
After scrutiny, it was found out that the marks are closer to the original marks in Medicine, Surgery and Preventive and Social Medicine.
The Committee therefore recommended that the entire revaluation of the papers should be cancelled.
The Executive Council by a resolution cancelled the result of the revaluation and directed fresh revaluation and the second revaluation was done through the examiners outside the State and the result declared on the basis thereof.
The peritioner and others challenged the aforesaid decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation by means of writ petitions.
It was contended before the High Court on behalf of the petitioners that the action of the Executive Council was arbitrary in as much as there was no malpractice, fraud or anything objectionable to the revaluation as the examiners were chosen by the Vice Chancellor as enjoined under the Ordinance.
Hence the cancellation of revaluation was not proper.
The High Court repelled the two contentions advanced before it and dismissed the writ petitions.
Hence this Petition for Special Leave to appeal.
Dismissing the Petition for special leave to appeal, this Court, HELD: In deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be 387 very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice.
[390 B] Under Ordinance 134A, the Vice Chancellor shall use his discretionary power to decide as to whether all the applications received from the candidates, considered for revaluation or not.
If as a result of revaluation of answer books, the marks obtained by the candidate increase over the original marks by 10% or more then only the result of revaluation will be accepted by the University.
[388 C D] Ordinance 146 is comprehensive enough to include revaluation also for further action.
The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation.
It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results.
However, it is not so glaring or demonstrably unconscionable as seen in the first revaluation.
[390 D]


judgement:
Civil Appeal No. 503 of 1974.
From the Judgement and order dated 29/30.8.1973 of the Gujarat High Court in Special Civil Application No. 129 of 1973.
Joseph Vellapally and D.N. Mishra for the Appellants.
R.N. Sachthey, Anip Sachthey and Ms. Rashmi Dhariwal for the Respondents.
393 The Judgement of the Court was delivered by R.M. SAHAI, J. Validity of demand, under Section 58A of the Bombay Prohibition Act, for maintenance of excise staff for supervision of the manufacture of industrial alcohol was assailed on lack of legiislative competence of the State.
Section 58A is extracted below: "58A: The State Government may by general or special order direct that the manufacture, import, export, transport, storage, sale, purchase, use, collection or cultivation of any intoxitant, denatured spirituous preparations, hemp, Mowra flowers, or molasses shall be under the supervision of such Prohibition and Excise or Police Staff as it may deem proper to appoint, and that the cost of such staff shall be paid to the State Govt.
by person manufacturing, importing, exporting, transporting, storing, selling, purchasing, using, collecting or cultivating the intoxicant, denatured spirituous preparation, hemp, Mowra flowers or molasses: "Provided that the State Government may exempt any class of persons or institutions from paying the whole or any part of the cost of such staff".
Rule 2 of Bombay Prohibition (Manufacture of Spirit) (Gujarat) Rules, 1963, framed by the State of Gujarat empowered the director to grant a licence for working of the distillery for the manufacture of the spirit.
Condition Nos.2 and 3 of the licence issued provided for employment of excise staff for supervision of the operations of manufacture and storage of spirit as well as for payment of salary and allowances to staff so posted.
Attack was not on power to supervise or even the right to post staff for supervision but on demand of cost of maintenance of such personnel.
Levy was upheld, by the High Court, as fee under entry 8 of List II of the VIIth Schedule read with entry 66 of the same list.
In Synthetics & Chemicals Ltd. & Ors.
vs State of U.P. & Ors.
, ; a Constitution Bench after exhaustively reviewing the constitutional entries and various decisions held that industrial alcohol being unfit for human consumption as no levy on it could be made by a State either under Entry 51 or Entry 8 of List II of VIIth Schedule.
Nor such levy could be justified on doctrine of privilege or police power.
Therefore it was urged that the order of High Court was liable to be set aside and the provision was liable to be struck down as ultra vires.
Such understanding of the judgement is not warranted.
The Constitu 394 tion Bench while distinguishing between potable and non potable alcohol and holding that the State had no privilege in it upheld the power of State to regulate and ensure that non potable alcohol was not diverted and misued.
According to learned counsel since the entire judgment of the High Court proceeded on privilege theory it cannot withstand the principle laid down in Synthetic & Chemical 's case.
Levy as a fee under Entry 8 of List II of VIIth Schedule or excise duty under Entry 51 are different than cost of supervision charged under Section 58A.
The former has to stand the test of levy being in accordance with law on power derived from one of the constitutional entries.
Since Synthetic & Chemical 's case finally brought down the curtain in respect of industrial alcohol by taking it out of the purview of either Entry 8 or 51 of List II of VIIth Schedule of the competency of the State to frame any legislation to levy any tax or duty is excluded.
But by that a provision enacted by the State for supervision which is squarely covered under Entry 33 of the concurrent list which deals with production, supply and distribution which includes regulation cannot be assailed.
The Bench in Synthetic & Chemical 's case made it clear that even though the power to levy tax or duty on industrial alcohol vested in the Central Government the State was still left with power to lay down regulations to ensure that non potable alcohol,that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol.
This is enough to justify a provision like 58A.
In paragraph 88 of the decision it was observed that in respect of industrial alcohol the States were not authorised to impose the impost as they have purported to do in that case but that did not effect any imposition of fee where there were circumstances to establish that there was quid pro quo for the fee nor it will affect any regulatory measure.
This completely demolishes the argument on behalf of appellant.
Principle of occupied field precluded State from trenching on any power which was already covered by central legislation.
But in absence of any provision in Industries (Development & Regulation) Act touching upon regulation or ensuring that industrial alcohol was not diverted the state was competent to legislate on it under Entry 3 List III of VIIth Schedule which is extracted below, "33.
Trade and Commerce in, and the production, supply and distribution of (a) The products of any industry where the control of such industry by Union is declared by Parliament by Law to be 395 expedient in the public interest, and imported goods of the same kind as such products.
(b). . . . . (c). . . . . (d). . . . . (e). . . . .
Trade and commerce and supply and distribution of goods are exclusive state subjects under entry 26 and 27 of List II of VIIth Schedule.
But both are subject to entry 33 of List III.
That is what is covered in entry 33 is excluded from list II.
And the power to legislate in respect of what is covered by list III is enjoyed both by Central and State subject to Article 246 of the Constitution.
Since 58A can be traced to regulatory power of the State exercisable under entry 33 the challenge to its validity is liable to fail.
It could not therefore be successfully claimed that it was violative of any constitutional provision or the section was invalid in view of the ratio in Synthetic & Chemicals ' case.
Failing on the principal submission the learned counsel urged that no cost for supervision could be demanded unless the power to issue licence for production was found to exist in State.
Reliance was placed on observations in Synthetic & Chemical 's case.
Since it stands answered by the constitution Bench itself it is unnecessary to dilate on it.
Suffice it is to extract the following observation, "The position with regard to the control of alcohol industry has undergone material and significant change after the amendement of 1956 to the IDR Act.
After the amendment, the State is left with only the following powers to legislate in respect of alcohol: (a). . . . . . (b) It may lay down regulations to ensure that non potable alcohol is not diverted and misued as a substitute for potable alcohol.
(c). . . . . . (d) However, in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quid pro quo".
Feeble attempt was made to challenge absence of any quid pro quo.
But no serious effort was made in High Court is clear from following observation.
: 396 "If any quid pro quo is to be established between the quantum of the levy and the services rendered it must be established between the actual cost of supervision paid by a manufacturer or a businessman and the quantum of profits made by him by lawfully carrying on his business into a prohibited commodity.
We have no doubt in our mind that the annual payment of a few thousand rupees by way of cost of supervision under Section 58A brings to each of the three petitioners profits which must be quite disproportionate in size.
We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman.
" In the result, this appeal fails and is dismissed with costs.
G.N. Appeal dismissed.

summary:
Rule 2 of the Bombay Prohibition (Manufacture of Spirit) (Gujarat) Rules, 1963, framed by the State Government in exercise of powers conferred under Section 58A of the Bombay Prohibition Act, dealt with grant of licence for working of distillery for the manufacture of spirit.
One of the conditions for grant of licence was that the cost of maintenance of staff, viz. payment of salary and allowances, was to be paid to the Government by the licensees.
This was challenged by the appellant and the High Court upheld the levy as being within the legislative competence of the State.
Aggrieved against the High Court 's order, the appellant has preferred the present appeal.
The appellants contended that since the judgement appealed against proceeded on privilege theory, it cannot withstand the principle laid down in Synthetic & Chemicals, case; and that levy as a fee under Entry 8 of list II of Seventh Schedule or excise duty under Entry 51 is different than the cost of supervision charged under Section 58A of the Bombay Prohibition Act.
Dismissing the appeal, this Court, 392 HELD: 1.1 Even though the power to levy tax or duty on industrial alcohol is vested in the Central Government, the State was till left with power to lay down regulations to ensure that non potable alcohol, that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol.
This is enough to justify a provision like 58A of the Bombay Prohibition Act.
[394 D] 1.2 Principle of occupied field precluded State from trenching on any power which was already covered by Central legislation.
But in absence of any provision in Industries (Development & Regulation) Act touching upon regulation or ensuring that industrial alcohol was not divered, the State was competent to legislate on it under Entry 33 list III of VII Schedule.
[394 F G] 1.3 Trade and commerce and supply and distribution of goods are exclusive state subject under entries 26 and 27 of List II of VII Schedule.
But both are subject to entry 33 of List III.
What is covered in entry 33 is excluded from List II.
And the power to legislate in respect of what is covered by List III is enjoyed both by Central and State legislatures subject to Article 246 of the Constitution.
Since section 58A can be traced to regulatory power of the State exercisable under entry 33 of List III the challenge to its validity is liable to fail.
Thus, Section 58A of the Bomaby Prohibition Act is valid and is not violative of any constitutional provision.
[395 B C].
1.4 It cannot be said that no cost for supervision could be demanded unless the power to issue licence for production was found to exist in State.
[395 d] Synthetics & Chemicals Ltd. & Ors., vs State of U.P & Ors. ; , followed.


judgement:
N: Criminal Appeal Nos.273 74 of 1980.
From the Judgment and Order dated 19.1.1980 of the Madhya Pradesh High Court in Crl.
A. Nos.
107 of 1970 and 1 of 1971.
468 R.L. Kohli and K.C. Kohli for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Bhagwan Swaroop was charged under Section 302 IPC for the murder of Man Singh and under Section 307 IPC for an attempt to murder Shahid.
He was further charged under section 451 IPC for committing trespass and also under section 25 A of Arms Act.
Ramswaroop, father of Bhagwan Swaroop, was charged under sections 109/302, 451 IPC and 29 of the Arms Act.
Ramswaroop was acquitted of all the charges by the trial court.
Bhagwan Swaroop was, however, convicted under section 302 IPC and was sentenced to imprisonment for life.
He was acquitted of the other two charges.
The appeal filed by Bhagwan Swaroop was dismissed by the High Court.
The High Court allowed the State appeal and further convicted Bhagwan Swaroop under section 307 IPC and section 25 A Arms Act.
He was sentenced to five years and one year rigorous imprisonment respectively for the said offences.
This appeal before us by way of special leave is by Bhagwan Swaroop against his conviction and sentence on the three counts.
Deceased Man Singh was the son of Shahjor Singh and brother of Babusingh.
They were living in the house owned by Ramswaroop and his sons.
There was dispute between the parties regarding a piece of land which according to the accused, the complainant party was forcibly occupying.
A notice had been served upon Shahjor Singh by the accused, to vacate the said encroachment.
According to the prosecution on May 11, 1969 at about 2.45 p.m. accused Ramswaroop had an altercation with Babusingh, at a place called Gauri and thereafter he rushed the complainant party and started dismantling the tin shed in the disputed land.
Shahjor Singh sent his son Babusingh to the police station to lodge a report.
Meanwhile Man Singh deceased came at the spot and gave a push to Ramswaroop who as a result fell down.
He got up immediately and shouted for his son Bhagwan Swaroop and asked him to bring the rifle and kill the complainant party.
Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh.
Bhagwan Swaroop fired the second shot which hit Shahid.
Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave breathing to Ramswaroop.
Man Singh succumbed to the gun shot injury.
Both the accused denied the commission of the crime.
Accused Ramswaroop stated in his examination as under: 469 "I found Babusingh gambling in my garden.
I asked him as to why he is doing so in the garden, he started abusing me.
I slapped him.
His father came there both of them abused me and then left the place.
I told him that I will make the report of the incident to the police station.
When I reached near the house of Shahjor Singh on my way to the Police Station he along with his sons caught me and started beating me with lathies.
Shahjor Singh brought an axe, when he was about to use his axe on me there was gun fire.
" Accused Bhagwan Swaroop took the plea of alibi which has been rejected by both the courts below.
We are of the view that the said plea was rightly rejected.
The trial court did not believe the prosecution version in toto.
The trial court found that the "prosecution tried to indulge in exaggeration, misrepresentation and at times suppression of facts without any meaning".
The trial court further concluded as under: "The defence version that Babusingh was gambling alongwith others in the garden of the accused Ramswaroop appears correct.
Ramswaroop went there and questioned Babusingh.
There was altercation and use of hot words.
Admittedly Shahjorsingh P.W. I came there and Babusingh accompanied him back to his house.
Ramswaroop further stated in his examination that he gave one slap to Babusingh.
Babusingh as P.W.9 stated that he was given three or four slaps by Ramswaroop.
Thus the fact that Babusingh was slapped, stand established in the case".
The part of the prosecution story, that the accused Ramswaroop rushed towards the house of Shahjor Singh and reached there before the arrival of Shahjor Singh, was also dis believed by the trial court.
Regarding the actual occurrence, it is not disputed that Ramswaroop was given four simple injuries by the complainant.
The prosecution case is that the injuries were given after the gun shot had been fired whereas the defence version is that the gun shot was fired while lathi injuries were being given to Ramswaroop.
Trial court considered the statements of Banne Khan, P.W.6, Shahid P.W.8, Sarfuddin P.W.11, Safaat Ahmad D.W.1 and Hamid Ahmed D.W.3 and came to the following conclusion: "Any way this one fact is clear from the evidence of these eye witnesses that Ramswaroop was put to beating, then there was gun fire and Bhagwanswaroop was seen on the spot" 470 The trial court on appreciation of the evidence produced by the prosecution and the complainants came to the conclusion that the following facts stood established from the evidence: "Ramswaroop, came near the house of Shahjorsingh.
There was exchange of abuses between Shahjorsingh and Ramswaroop.
Ramswaroop tried to remove the tin shed of Gonda.
He was pushed aside by Mansingh and then put to beating by lathies.
" It was under these circumstances that Ramswaroop asked his son to fire the gun shot.
The question for our consideration is whether on the facts of this case the appellant can claim right of private defence.
The learned trial court came to the conclusion that since minor injuries were caused by the lathi there was no basis for entertaining a reasonable apprehension that Ramswaroop would be killed or hurt grievously and as such the plea of self defence was rejected.
The High Court upheld the finding of the trial court in the following words: "No doubt the respondent Ramswaroop had injuries on his person.
There were two simple injuries caused by hard and blunt object and the other two could be caused by fall for which there is definite prosecution evidence that the respondent Ramswaroop was pushed and he fell down.
These injuries on him could not give rise to any apprehension of either grievous hurt or death.
" We do not agree with the courts below.
It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun shot was fired by Bhagwan Swaroop to save his father from further blows.
A lathi is capable of causing a simple as well as a fatal injury.
Whether in fact the injuries actually caused were simple or grievous is of no consequence.
It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified.
We, therefore, set aside the finding of the courts below on this point and hold that Bhagwan Swaroop fired the gun shot to defend the person of his father.
The trial court on the basis of the evidence on the record, including that of Dr. Mukherjee P.W.5, came to the conclusion that only one shot was fired by Bhagwan Swaroop.
According to the trial court Shahid was accidentally hit by the pellets spread by the gun shot.
It was on these findings that trial court acquitted Bhagwan Swaroop of the charge 471 under 307 IPC.
We agree with the trial court and hold that the High Court was not justified in reversing the same.
The High Court further grossly erred in setting aside the acquittal of Bhagwan Swaroop under section 25 A of the Arms Act.
Using the licensed gun of his father under the circumstances of this case cannot be considered possessing an arm without a licence.
We agree with the reasoning and findings of the trial court and hold that High Court was not justified in setting aside the acquittal of Bhagwan Swaroop under Arms Act.
For the reasons given above we allow the appeal, set aside the conviction of appellant Bhagwan Swaroop under section 302 IPC, 307 IPC and 25 Arms Act and acquit him on all these counts.
He is already in bail.
His bail bonds are discharged.
V.P.R. Appeal allowed.

summary:
The deceased along with his father and brother was living in the house owned by the accused appellant 's father.
There was dispute between the accused and the complainant party regarding a piece of land which according to the accused, the complainant party was forcibly occupying.
On May 11, 1969 at about 2.45 p.m. appellant 's father had an altercation with deceased 's brother.
Thereafter he went to deceased 's house and abused the complainant party and started dismantling the tin shed on the disputed land.
The prosecution 's case was that the deceased 's brother was sent to police station to lodge a report.
The deceased came at the spot and gave a push to appellant 's father.
He fell down.
Getting up, immediately, shouted for appellant and asked him to bring the rifle and kill the complainant party.
The appellant brought a gun and fired a shot hitting the deceased.
The appellant fired the second shot which hit another.
The deceased fell down and thereafter the deceased 's father took out a lathi and gave beating to appellant 's father.
The deceased succumbed to the gunshot injury.
Appellant was charged under Section 302, 307, 451 IPC and also under section 25 A of Arms Act.
The father of appellant was charged under sections 109/302, 451 IPC and 29 of the Arms Act.
The appellant and its father denied the commission of the 467 crime.
Appellant 's plea of alibi was rejected by the trial court.
It also did not believe the prosecution case in toto.
The appellant 's father was acquitted of all the charges by the trial court.
It convicted the appellant under section 302 IPC and he was sentenced to imprisonment for life, but he was acquitted of the other charges.
The High Court allowed the State 's appeal convicting the appellant under section 307 IPC and section 25 A Arms Act also.
He was sentenced to five years and one year rigorous imprisonment respectively for the offences.
The appellant filed this appeal before this Court by way of special leave.
On the question, whether on the facts of the case, the appellant accused can claim right of private defence, allowing the appeal, this Court, HELD:1.
It is established on the record that the appellant 's father was being given lathi blows by the complainant party and it was at that time that gun shot was fired by the appellant to save his father from further blows.
A lathi is capable of causing a simple as well as a fatal injury.
Whether in fact the injuries actually caused were simple or grievous is of no consequence.
It is the scenario of a father being given lathi blows which has to be kept in mind.
In such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified.
The appellant fired the gun shot to defend the person of his father.
[470 E G] 2.
Using the licensed gun of his father under the circumstances of the case cannot be considered possessing an arm without a licence.
The High Court grossly erred in setting aside the acquittal of the appellant under section 25 A of the Arms Act.
[471 A B]