judgement:
Special Leave Petition (Civil) No. 13180 of 1985.
From the Judgment and order dated 17.4.1985 of the Madhya Pradesh High Court in Misc.
F.A. No. 252 of 1981.
S.N. Kacker and R. Ramachandran for the Petitioner.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application under Article 136 of the Constitution for leave to appeal to this Court from the judgment and order of the High Court of Madhya Pradesh dated 17th April, 1985.
In order to appreciate the points involved, it is neces 106 sary to state that the petitioner entered into a contract dated 31st March, 1970 with respondent, State of Madhya Pradesh for the construction of Rip Rap on right bund of Masonary Dam of Tawa Project.
The contract could not be completed within the stipulated time because of alleged gross delay on the part of the State, according to the petitioner, in allotment of work and discharge of its obligations under the contract.
The petitioner incurred unforeseen expenditure, it is claimed, to the tune of Rs.5,29,812 and approached the Superintending Engineer for payment.
Upon refusal of the Superintending Engineer to pay the claim and his refusal to refer the matter to arbitration, the petitioner moved the learned District Judge under section 20 of the (hereinafter called 'the Act ') for filing of the arbitration agreement and for reference of the disputes to the arbitration.
On 24th April, 1976 the learned District Judge allowed the petitioner 's application and directed the respondent, State of Madhya Pradesh to file the agreement in Court and made a reference for specific question to the arbitration.
The High Court on 22nd September, 1976 dismissed the State 's appeal against the order of the District Judge.
Thereafter in March, 1977 Retired Engineer in Chief, P.W.D. Bhopal was appointed arbitrator.
There was an award dated 29th October, 1978 on all the issues referred, partly allowing the petitioner 's claim.
The award was filed in the Court of the District Judge and the respondent filed objections to the award under sections 30 and 33 of the Act and the petitioner filed replies.
The District Judge made the award a rule of the Court.
The respondent appealed to the High Court.
The High Court remanded the matter to the District Judge for fresh decision.
The District Judge accepted the objections and set aside the award.
The High Court by the impugned judgment dismissed the appeal of the petitioner.
It is from this judgment of the High Court that the petitioner seeks leave to appeal to this Court.
As mentioned hereinbefore by the impugned judgment and order of the High Court the award has been set aside.
The agreement contained an arbitration clause.
The work, however, could not be completed within the stipulated time, the period of contract was extended.
The contractor attributed delay on the part of the State Government whereas the State Government blamed the contractor.
This was a disputed question.
While the work was in progress, the contractor was required to meet extra expenditure on labour charges and materials due to revision in wage scales and escalation of prices.
Alterations and substitutions of works also led to extra expenses.
There were certain items for which rates were not provided but all the same work had to be done.
The contractor therefore, advanced claims 107 for compensation.
The Superintending Engineer dismissed the claims on the ground that the claims were barred under clause 3.3.15.
He also held that some of the claims were not covered by the contract.
The contractor sought to invoke the arbitration clause but the State sought to oppose on the ground that the dispute attracting the arbitration clause had not arisen.
It was contended that the claim was barred by clause 3.3. 15 and it had not been made within the time.
It was contended further that there was only one contract and there being no separate agreement for extension of period of the contract the rate as provided in the original contract alone was permissible.
As there was no separate contract and no reference under clause 3.3.29 could be made for the enhanced period beyond the period of the contract.
Relevant clauses of the contract were as follow: "3.3.15 Clause 15.
Time limit for unforseen claims: Under no circumstances whatever shall the contractor be entitled to any compensation from Government on any account unless the contractor shall have submitted claim in writing.
to the Engineer in Charge within one month of the cause of such claim occurring.
3.3.29 Clause 29.
Decision of Superintending Engineer, to be final except where otherwise specified in the contract.
The decision of the Superintending Engineer of the Circle for the time being shall be final, conclusive and binding on all parties to the contract upon all question relating to the meaning of the specification, design drawings and instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders, or those conditions or otherwise concerning the work of execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof.
Provided that if the contractor is dissatisfied with the final decision of the Superintending Engineer in respect of any matter, he may within 28 days after receiving notice of such decision give notice in writing to the Superintending 108 Engineer requiring that the matter may be referred to the arbitration and furnishing detailed particulars of the dispute or difference specifying clearly the point at issue.
If the contractor fails to give such notice within the period of 28 days as stipulated above the decision of the Superintending Engineer already given shall be conclusive and binding on the contractor.
In case an arbitration is to be held it shall be effected by an arbitrator to be appointed by the State Government whose decision shall be final, conclusive and binding.
If the work under the contract has not been completed when a dispute is referred to arbitration work shall continue during arbitration proceedings if it is reasonably possible and no payment due to contractor should be with held on account of arbitration proceedings unless it is required by the arbitrator 3.3.32 Clause 32.
Action where no specification: In case of any class of work for which there is no such specification as is mentioned in Rules, such work shall be carried out in accordance with the specification approved by Superintending Engineer/Chief Engineer, or application to works in the district and the event of there being no such specification, then in such case the work shall be carried out in all respect in accordance with the instructions and requirements of the Engineer in Charge.
3.3.33 Clause 33.
Definition of work: The expression "works" or "work" where used in these conditions shall, unless there by something either in the subject or context repugnant to such construction be constructed and taken to mean the works by or by virtue of the contract contracted to be executed, whether temporary or permanent, and whether original, altered, substituted or additional.
3.3.34 Clause 34.
Claim for quantities entered in the tender or estimate: 109 Quantities shown in the tender are approximate and no claim shall be entertained or work executed being either more or less than those entered in the tender estimate.
" The learned single Judge as mentioned hereinbefore of the High Court after exhaustive discussion dismissed the appeal and upheld the order.
Being aggrieved the petitioner went up in appeal before the Division Bench and the Division Bench on consideration of the matter dismissed the appeal.
The Division Bench considered the following issues raised before the District Judge: 1.
Whether the contractor had incurred extra costs towards wetting and washing of stones used in masonry of Group II Tawa Masonry Dam? 2.
Was the petitioner entitled to payment of this extra costs of Rs. 1.20,355? 3.
Whether the petitioner contractor had to incur extra cost of material and labour to the tune of Rs. 14,72,456 within the contract period for executing work assigned to it? 4.
Whether the contractor had incurred extra cost of Rs.8,84,336 for the work beyond the contract period due to unforeseen circumstances? 5.
Whether the petitioner 's claim on both the counts was in whole or in part of it was barred by time in terms of clause 3.3.
15? 6.
Whether the contract was rendered ineffective in terms of section 56 of the Contract Act due to unexpected change in the market rate of material and labour charges? 7.
Was the claim not entertainable in accordance with the terms ' of the contract under clause 3.3.32, 3.3.33 and 3.3.34 during the extended period of contract? 8.
Was the work delayed because of the presence of shale zone in the foundation which factor was not made known to the contract? 9.
Whether the contractor was entitled to extra costs of damages 110 for the delay caused on account of shale zone? The Division Bench came to the findings as follows: 1.
The contractor did incur expenditure on wetting and washing of stones in Masonry Group II, Tawa Masonry Dam but this was according to agreement.
The petitioner is not entitled to the payment of the extra costs of Rs.1,20,355. 3.
The petitioner/contractor did incur an extra cost of Rs.14,72,456 within the contract period for executing the assigned work.
The petitioner/contractor did incur an extra cost of Rs.6,81,796 for the work done beyond the contract period due to unforseen circumstances.
The petitioner is entitled to the claim to the extent of Rs.2,65,000 against Issue No. 3 and Rs.6,81,796 against Issue No. 4 above and the same is not barred by time in terms of clause 3.3.15.
The contract was not rendered ineffective in terms of section 56 of the Contract Act due to abnormal rise in the market rates of materials and labour. 7.
The claim under reference cannot be ruled out merely be cause of the provisions of clause 3.3.32, 3.3.33 and 3.3.34.
Yes, the work was delaved due to the presence of shale zone in the foundations, a factor which was unforeseen and was not made known to the contractor.
The contractor is entitled to claim extra cost due to the delay caused on account of the shale zone in foundations.
The Division Bench felt that the four factual issues decided by the District Judge were more or less by the agreement and therefore, the Division Bench did not deal with these.
So far as three legal issues which were referred to him, namely, whether the claim was barred under clause 3.3. 15, the contract was rendered ineffective in terms of 111 section 56 of the Contract Act due to abnormal rise in the market rate of material and labour and the claim not entertainable under clause 3.3.32, 3.3.33 and 3.3.34.
The High Court considered whether the appellant was entitled to extra cost towards rise in prices of materials and labour within and beyond the contract period.
The Division Bench noted that the learned District Judge held that since three legal issues were specifically referred to the arbitrator and therefore his decision had become final and binding on the parties and cannot be re agitated before the Court.
Regarding the remaining issues, the State had taken objection while opposing the application under section 20 that the appellant was not entitled to extra cost for material and labour in terms of the contract but the Court directed that this matter had to be agitated before the arbitrator and the application under section 20 could not be dismissed on the ground that the claim would not ultimately succeed.
The District Judge found and in our opinion rightly that the question regarding extra cost was a general question and not a specific legal question and the decision of the arbitrator was not final one.
The arbitrator misconducted himself in allowing the claim without deciding the objection of the State.
In view of the specific clauses, the appellant was not legally entitled to claim for extra cost.
The decision of this Court in Seth Thawardas vs Union of India, [1955] 2 SCR 18 is of no avail on this point.
If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally.
The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable.
The arbitrator is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not he can be set right by the Court provided his error appears on the face of the award.
In this case, the contractor having contracted, he cannot go back to the agreement simply because he does not suit him to abide by it.
The decision of this Court in M/s. Alopi Parshad vs Union of India, ; may be examined.
There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered.
The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity.
The parties to an executory contract are often faced, in the course of carrying it out, with a turn of event which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like.
There is no general 112 liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous.
It was argued on behalf of the appellant that since specific issues 13 were framed and referred by the District Judge to the arbitrator, the same had been answered by a non speaking award, there is no mistake of law apparent on the face of record and the District Judge erred in setting aside the award by looking into the terms of the contract which it was submitted, neither formed part of the award nor appended to it.
We are unable to agree.
This being a general question, in our opinion, the District Judge rightly examined the question and found that the appellant was not entitled to claim for extra cost in view of the terms of the contract and the arbitrator misdirected himself by not considering this objection of the State before giving the award.
In Kapoor Nilokheri Co operative Dairy Farm Society Ltd. vs Union of India, , it was held that where an arbitrator is called upon to decide the effect of the agreement, he has really to decide a question of law, i.e. Of interpreting the agreement, and hence, his decision is not open to challenge.
This was also a decision against a reasoned award but since the reference was to a specific question of law, the decision of the arbitrator, it was held, was not open to challenge.
The limits of the jurisdiction of the Court to challenge the award are well settled.
While considering objection under section 30 of the Act, the Court does not act as an appellate court, it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the Court superseding the arbitration or if the arbitration proceedings have become invalid under section 35(c) of the Act or the award has been improperly procured or is otherwise invalid.
The Judicial Committee in Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. Ltd., A.I.R. 1923 P.C. 66 has laid down the extent of the jurisdiction of the Court to set aside an award on the ground of an error in making the award.
It has been reiterated that the award of the arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it as for instance, a note appended by the arbitrator, stating the reason for his decision, there is found some legal proposition which is the basis of the award and which is erroneous.
See also in this connection Re.
King & Duveen, and Government of Kelantan vs Duff Development Co. Ltd., , if how 113 ever, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of it being set aside.
See also the observations of this Court in Bungo Steel Furniture vs
Union of India; , It is well settled that the contract remained part of the award.
The Judicial Committee in Saleh Mohd. vs Nathoo Mal, 54 I.A. 427 considered an award in which the arbitrator recited a contract made between the parties and the dispute arising under it.
It was contended that the contract was incorporated in the award by its reference and so the award disclosed an error of law in construing the terms of the contract.
But that contention was negatived.
It was held that the reference to the contract in the award was to earmark the disputes between the parties and was not incorporated into the award.
In Abosalom Ltd. vs Creat Western, , it was held that if an award referred to the terms of a clause in the contract, the clause though not set out in full must be taken to be incorporated in it.
This Court has reiterated in Allen Berry & Co. vs Union of India, 119711 3 SCR 282 that mere reference to the contract in the award is not to be held as incorporating it.
In the aforesaid light, we are of the opinion, the High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour.
As was pointed out by the learned District Judge clauses 2.16 and 2.4 stipulated that the contractor had to complete the work inspite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract.
There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of section 56 of the Act due to abnormal rise in prices of material and labour.
This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour.
The arbitrator misconducted himself in not deciding this specific objection raised by the State regarding the legality of extra claim of the appellant.
In that view of the matter, the award, in our opinion, was properly set aside by the learned District Judge and the High Court was right in not interfering with it.
The question about specific reference on a question of law was examined by this Court recently in the case of Tarapore and Comapny vs Cochin Shipyard Ltd., Cochin and another; , There it was observed that if the agreed fact situation, on the basis of 114 which agreement was entered into, ceases to exist, the agreement to that extent would become otiose.
If rate initially quoted by the contractor became irrelevant due to subsequent price escalation, it was held in that case that contractor 's claim for compensation for the .
excess expenditure incurred due to the price rise could not be turned down on ground of absence of price escalation clause in that regard in the contract.
Agreement as a whole has to be read.
Reliance was placed very heavily on this decision on behalf of the appellant before us.
It has to be borne in mind that in the instant case there are specific clauses referred to hereinbefore which barred consideration of extra claims in the event of price escalation.
That was not so in Tarapore and Company 's case.
That made all the difference.
The basis of bargain between the parties in both these two cases were entirely different.
In the aforesaid view of the matter we are of the opinion that the High Court was right in the view it took and there is no ground to interfere.
The petition for special leave fails and is accordingly dismissed.
S.L. Petition dismissed.

summary:
% The petitioner in this application under Article 136 of the Constitution entered into a contract with the respondent State for construction work.
The contract could not be completed within the stipulated time because of alleged gross delay on the part of the State in allotment of work and discharge of its obligations under the contract.
The petitioner incurred unforeseen expenditure and approached the Superintending Engineer for payment.
Upon refusal of the Superintending Engineer to pay and also to refer the matter to arbitration, the petitioner moved the District Judge under Section 20 of the Arbitration Act, ( 'the Act ') for the filing of the arbitration agreement and for reference of the dispute to arbitration.
The District Judge directed the respondent State to file the agreement, and made a reference for specific question to the arbitration.
The High Court dismissed the State 's appeal against the order of the District Judge.
Thereafter, an arbitrator was appointed, who made an award partly allowing the petitioner 's claim.
The award was filed in the Court of the District judge, who made the award a rule of the court.
The respondent appealed to the High Court.
The High Court remanded the matter to the District Judge for a fresh decision.
The District Judge accepted the respondent 's objections and set aside the award.
The High Court dismissed the appeal of the petitioner.
The petitioner then moved this Court for relief by this petition for special leave.
Dismissing the petition, the Court, ^ HELD: The District Judge rightly found that the question regarding extra cost was a general question and not a specific legal question and the decision of the arbitrator was not final.
The arbitrator 104 misconducted himself in allowing the claim without deciding the objection of the State.
In view of the specific clauses, the petitioner was not legally entitled to claim for extra cost.
The decision of this Court in Seth Thawardas vs Union of India, was of no avail on this point.
If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally.
The arbitrator is not a conciliator and cannot ignore the law or mis apply it in order to do what he thinks is just and reasonable.
The arbitrator is a Tribunal selected by the parties to decide their disputes according to law and so he is bound to follow and apply the law, and if he does not, he can be set right by the Court provided his error appears on the face of the award.
In this case, the contractor having contracted, could not go back to the agreement simply because it did not suit him to abide by it.
[111C F] The petitioner had argued that since specific issues had been framed and referred by the District Judge to the arbitrator, the same had been answered by a non speaking award and there was no mistake of law apparent on the face of the record, and the District Judge had erred in setting aside the award by looking into the terms of the contract which neither formed part of the award nor were appended to it.
The Court did not agree.
This being a general question, the District Judge rightly examined the question and found that the petitioner was not entitled to claim for extra cost in view of the terms of the contract, and the arbitrator misdirected himself by not considering this objection of the State before giving the award.
[112B C] The limits of the jurisdiction of the Court to challenge the award are well settled.
While considering the objection under section 30 of the Act, the Court does not act as an appellate Court; it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the Court superseding the arbitration or if the arbitration proceedings have become invalid under section 35(c) of the Act, or the award has been improperly procured or is otherwise invalid.
If, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit it being set aside.
[112E F; 1l3A] The High Court was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the petitioner regarding extra cost towards rise in prices of material and 105 labour.
Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work inspite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract.
There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of section 56 of the Contract Act due to the abnormal rise in prices of materials and labour.
This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour.
The arbitrator misdirected himself in not deciding this specific objection raised by the State regarding the legality of the extra claims of the petitioner.
It has to be born in mind that there were specific clauses which barred consideration of extra claims in the event of price escalation.
[113D F; 114B] The award was properly set aside by the District Judge and the High Court was right in the view it took and there was no ground to interfere.
[113G] Seth Thawardas vs Union of India, ; M/s Alopi Parshad vs Union of India, ; ; Kapoor Nilokheri Co operative Dairy Farm Society Ltd. vs Union of India, ; Champsey Bhara and Co. vs Jivraj Balloo Spinning and Weaving Co. Ltd., A.I.R. 1923 P.C. 66; Re.
King and Duveen, ; Government of Kelantan vs Duff Development Co. Ltd., ; Bungo Steel Furniture vs Union of India, ; ; Saleh Mohd. vs Nathoo Mal, 54 I.A. 427; Abosalom Ltd. vs Great Western, ; Allen Berry & Co. vs Union of India, ; and Tarapare and Company vs Cochin Shipyard Ltd., Cochin and Anr.
,[1984] 2 S.C.C. 680, referred to.


judgement:
N: Criminal Appeal No. 742 of 1979.
From the Judgment and order dated 16.1.1979 of the Punjab and Haryana High Court in Crl.
656 of 1976.
A.S. Sohal and P.N. Puri for the Appellant.
Kiran Choudhri and T. Sridharan for the Respondent.
The Judgment of the Court was delivered by 749 VENKATACHALIAH J.
This appeal, by Special Leave, preferred against the Judgment dated April 26, 1976 of the High Court of Punjab & Haryana affirming the judgment dated 26 4 1976 of the Sessions Judge in S.C. No. S of 1976 convicting appellant for offences under Sections 302 and 120 B of the Indian Penal Code and sentencing her to imprisonment for life, raises certain questions as to the nature and extent of corroboration of an accomplice 's evidence; and as to the procedure for the trial of offences by a "child" under the East Punjab Children 's Act 1949.
Appellant Balwant Kaur was said to be 15 1/2 years of age at the time of the commission of the offence alleged against her.
From 14.11.1973 the whereabouts of appellant 's husband Pritam Singh, a police constable, were not known.
His mother Mukhtiar Kaur (P.W. 19) reported this fact and expressed her apprehensions in the matter in her complaint to the Superintendent of Police.
Appellant was arrested on 8.5.1975.
Nand Singh and Ram Sarup were also arrested on 8.5. 1975.
Ram Sarup became an approver.
Appellant 's defence was one of total denial.
The judgment of the High Court under appeal is common to Criminal Appeal No. 676 of 1976 preferred by Nand Singh who was convicted under Sections 302, 364, 201 and 120 B of I.P.C. and also sentenced to imprisonment for life.
Appellant 's husband, Pritam Singh for whose murder appellant and the said Nand Singh had been arraigned, was, at the relevant time, a police constable at the Police Station West, Sector 11 Chandigarh.
Nand Singh was another constable at the same Police Station.
Nand Singh 's brother Bhag Singh and Pritam Singh were neighbours, residing in adjacent Government quarters in Sector 20 A, Chandigarh.
Ram Sarup, who later turned approver, was another police constable on Guard duty at the Punjab Raj Bhavan, Chandigarh.
The married life of Appellant and Pritam Singh, according to the prosecution, lacked connubial felicity and was marked by constant bickerings and quarrels, the cause for this discord being the addiction of Pritam Singh to liquor.
It is the prosecution case that Pritam Singh was a dipsomaniac and was constantly subjecting appellant to corporeal intransigence.
It was further alleged that appellant had developed illicit intimacy with Nand Singh.
Ram Sarup, in the course of his visits 750 to Bhag Singh 's house met, and became friendly with Nand Singh and the two become accustomed to take liquor together.
Ram Sarup also knew deceased Pritam Singh.
It is alleged that on occasions Nand Singh, when he lost self control under the influence of liquor, used to confide in Ram Sarup of his illicit sexual exploits with appellant.
This appears to have tempted Ram Sarup to ask Nand Singh to introduce Ram Sarup also to appellant for a similar intrigue.
On November 13, 1973, in the afternoon when Ram Sarup was off duty, Nand Singh took Ram Sarup to his own quarters in Sector 20 A said to be at a short distance from the appellant 's residence and the two had liquor together.
Thereafter, Nand Singh is stated to have taken Ram Sarup to the residence of, and introduced him to the appellant and persuaded her to gratify the desire of Ram Sarup also.
Appellant and Ram Sarup are stated to have indulged in acts of illegal intimacy.
Later, the same afternoon, the three met again at appellant 's home when, it would appear, appellant while narrating the privations and hardships endured by her at the hands of her husband broke down and implored Nand Singh and Ram Sarup to do away with Pritam Singh.
She appears to have also offered that after Pritam singh 's death she would marry and live with Nand Singh, who was then unmarried.
According to the prosecution, it was agreed amongst the three that the appellant should persuade her husband to reach Chandigarh bus stand the following day i.e. November 14, 1973 and that Nand Singh and Ram Sarup, who would be present three, would entice him away to Pinjore with the inducement of liquor and, do away with him there.
Pursuant to this design and conspiracy, appellant is stated to have persuaded her husband to go to the bus stand at Chandigarh at 9.30 a.m.
On 14.11.1973 where Nand Singh and Ram Sarup who were waiting for him as pre arranged took him to Pinjore by bus.
There, all the three cumsumed liquor together.
Nand Singh is also stated to have purchased "Ghotna" on the pretext that his sister in law had asked for the purchase of one.
Thereafter, all the three agreed to go back Chandigarh on foot which took them along a 'dandi ' passing by the side of the Pinjore gardens.
They reached the railway line near Surajpur Cement Factory and took the foot path towards Chandigarh.
When the three reached a distance of almost 2 miles from Surajpur, Nand Singh suggested that they should climb up a hill on the way side to enjoy a panoramic view of Chandigarh.
Accordingly, all the three started climbing.
Ram Sarup (P.W. 2) was ahead; Pritam Singh was in 751 the middle with Nand Singh following behind him.
Nand Singh is stated to have suddenly administered 2 3 Ghotna blows on the head of the unsuspecting Pritam Singh and told Ram Sarup (P.W. 2) to pin the tottering Pritam Singh down.
Ram Sarup pulled Pritam Singh down whereupon Nand Singh gave 8 to 10 more blows with the Ghotna on the person of Pritam Singh.
Then Nand Singh threw away the Ghotna and the two, namely, i.e. Nand Singh and Ram Sarup, hastened towards Chandigarh.
However, after the two had gone 2 furlongs or so, Nand Singh urged Ram Sarup (P.W. 2) that they both go back to find out whether Pritam Singh was really dead or not.
They, accordingly, returned and ensured that Pritam Singh had died.
They removed the pants and Bush shirt of the deceased and concealed them in a bush.
Then, the body of Pritam Singh was also concealed in the nearby hushes.
The turban of the Pritam Singh had fallen down at the spot.
Thereafter, the two returned to Chandigarh by night fall.
Next day, i.e. On 15.11.1973, Nand Singh came to Raj Bhavan where Ram Sarup was on duty and told the latter that he had, in turn, informed Balwant Kaur of the death of Pritam Singh.
This, in substance is the prosecution case as unfolded in the evidence of the Ram Sarup (P.W. 2) who turned approver.
On 13.
12.1973, Mukhtiar Kaur (P.W. 19), the mother of deceased Pritam lodged a complaint about her missing son in writing with the Senior Superintendent of Police, Chandigarh.
In that, it was stated that she had learnt from Pandit Sita Ram that a certain Naik Singh and his two sons of the village Lahor Khuda and Dev Singh, the Sarpanch of that village along with two other relatives of the Sarpanch had killed Pritam Singh, the alleged motive was that deceased Pritam Singh, when he was earlier serving in Lahorkhuda had developed illicit relations with Naik Singh 's daughter, Prito.
At the trial Mukhtiar Kaur was examined to establish that this complaint was engineered by the appellant and Nand Singh to put the investigation on a wrong scent.
Apparently, nothing was heard of the matter for along time till 3.4.1975, when Nand Singh was arrested by ASI Gulzara Singh (P.W. 24).
On his information Exg. P. 8, a pair of shoes, a purse, 25 pieces of bones including an incomplete human skull were recovered.
Dr. Inderjit Dewan (P.W. I) examined the bones and was of the opinion that they were the remains of a well built adult, but not old, male of a height of about S 9.
According to P.W. 1, the person had died more than 4 months previously.
The death was ascribed in all probability to the injuries to the skull administered by a blunt weapon.
P.W. 1 could 752 not, however confirm whether the injuries were ante mortem or not.
Appellant was arrested by ASI Subhash Chander (P.W. 23) on 8.5.1975 and Ram Sarup was also arrested the same day.
After the completion of the investigation charges were brought against them for conspiracy and murder.
The trial court on the basis of the approver 's testimony as corroborated by other evidence, held both Nand Singh , and the appellant guilty of the offences they were charged with and sentenced them to imprisonment for life.
The High Court has dismissed their appeals and has confirmed the convictions and the sentences.
Shri A.S. Sohai, Learned counsel appearing in support of the appeal urged that the evidence of the Approver in so far as the complicity of appellant is concerned, lacked corroboration on materials particulars and that no conviction could be sustained on such uncorroborated accomplice 's testimony.
The development of the law touching the competency and credit of an accomplice as witness against others is not without its interesting antecedents.
Historically, in the background of the political trials since the time of Henry VIII where 'King 's Evidence ' was the main dependence of the crown in its prosecutions, the question of the very admissibility of the evidence of the accomplice loomed large.
In the 17th and the 18th centuries, it was ruled repeatedly by the English courts that an accomplice was a competent witness.
His 'credit ' or the sufficiency of his evidence as a quantitative conception, however, remained in the background.
Those were days when 'form ' pre dominated over the 'substance ' and the oath had a dead weight of its own.
It was for this reason that struggle was made to keep out this evidence even at the threshold.
On the further development in the law which slowly began to recognise the distinction between 'competency ' and 'credit ', Wigmore says: Wigmore on Evidence: 3rd Edition Vol.
VII para 2054.
G "As time went on, and the modern conception of testimony developed, the possibility of admitting a witness and yet discriminating as to the qualitative sufficiency of his testimony became more apparent; and the way was open for the consideration of this question.
In a few instances, as the 1700s wore on, and even before then, judicial suggestions are found as to feasibility of such a discrimination.
But not until the end of that century does any Court seem 753 to have acted upon such a suggestion in its directions to the jury.
About that time there comes into acceptance a general practice to discourage a conviction founded solely upon the testimony of an accomplice uncorroborated.
But was this practice founded on a rule of law? Never, in England, until modern times.
It was recognised constantly that the judge 's instruction upon this point was a mere exercise of his common law function of advising the jury upon the weight of the evidence, and was not a statement of a rule of law binding upon the jury".
An accomplice, by long legal tradition, is a notoriously infamous witness, one who being partipes criminis, purchases his immunity by accepting to accuse others.
Section 114 Illus: (b) of the Evidence Act envisages the presumptive uncredit worthiness of an accomplice.
But then, Section 133 provides that a conviction is not illegal merely because it rests upon an accomplice 's uncorroborated testimony.
In indictments, particularly of serious crimes, the counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars.
Judicial experience was, thus, elevated to a rule of law.
"It is a practice" it is said "which deserves all the reverence of law.
" The nature and extent of the corroboration must necessarily vary with the nature and circumstances of each case.
Enunciation of any general rule, valid for all occasions is, at once, unwise and unpractical.
The aspect as to the extent and content of independent corroboration is, again, an interesting area of study.
One view was that independent evidence tending to verify any part of the testimony of the accomplice should suffice.
The other view required that the corroborative evidence should not only show that part of the accomplice testimony is true; but should go further and also implicate the other accused.
In R. vs Bhaskerville, the Court of Criminal appeal in England favoured and adopted the second view.
Thirtyfive years ago, Bose J referring with approval to the principles in Bhaskerville said that this branch of the law in India is the same as in England and that the lucid exposition of it given by Lord Reading, cannot be bettered.
754 The felicitous formulation of the law on the matter by that great master of phrase, Bose J, which has now become classical, may be re called: " .
But to this extent the rules are clear: (21) First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant of the accomplice, should in itself be sufficient to sustain conviction.
(22) Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.
This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence.
(23) Thirdly, the corroboration must come from independent source and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another (24) Fourthly, the corroboration need not be direct evidence that the accused committed the crime.
It is sufficient if it is merely circumstantial evidence of his connection with the crime . " (See Rameshwar Kalyan Singh vs State of Rajasthan, ; In Rex vs Bhaskerville, [ Lord Reading, CJ noticed the different views as to the extent and scope of reasonable corroboration: ".
The difference of opinion has arisen in the main in reference to the question whether the corroborative evidence must connect the accused with the crime.
The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal . " 755 Resolving the difference of opinion it was held: "We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.
In other words, it must be evidence which implicates him, that is, which confirms is some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.
The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute".
In Halsbury 's (IV Edition Vol.
II para 454) the following passage obtains: "Corroboration of a witness 's testimony must be afforded by independent evidence which affects the defendant by connecting or tending to connect him with the offence charged.
It must be evidence which implicates him, that is which tends to confirm in some material particular not only that the offence was committed, but also that the defendant committed it".
As to independent nature of the corroboration learned Chief Justice observed in Bhaskerville case: " .
Again, the corroboration must be by some evidence other than that of an accomplice, and therefore one accomplice 's evidence is not corroboration of the testimony of another accomplice: Rex vs Noakes . " As to the extent of the requisite reassurance by way of corroboration, learned Chief Justice said: " .
It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime.
Parke B gave this opinion as a result of twenty five years ' practice; it was accepted by the other judges; and has been much relied upon in later cases . " 756 " .
Indeed, if it were required that the accomplice A should be confirmed in every detail of the crime, his evidence would not be essential to the case it would be merely confirmatory of other and independent testimony . " (page 664 in Rex vs Bhaskerville) In Halsbury 's Laws of England IV Edn. Vol.
II page 268 this proposition is stated thus: "The word 'corroboration ' is not a technical term of art; it means by itself no more than evidence tending to confirm, support or strengthen, other evidence . " " .
The corroboration need not consist of direct evidence that the defendant committed the offence nor need it amount to confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge under consideration.
It is sufficient if it is circumstantial evidence of the defendant 's connection with the offence, but it must be independent evidence, and must not be vague However there were some observations in Director of Public Prosecutions vs Killbourne (1973) Appeal A.C. 729 which tended towards a departure from the rule in Rex vs Bhaskerville.
In Killbourne case Lord Hailsham said and this is also the statement of the law in Halsbury IV Edition "Evidence which is admissible, relevant to the evidence requiring corroboration and (if believed) conformatory of that evidence in a material particular, is capable of being corroborative and, when believed, is corroboration".
The above passage was not wholly in consonance with what Lord Reading had earlier said: ".
For example confirmation does not mean that there should be independent evidence of that which the accomplice relates, or his testimony would be unnecessary Reg vs Mullins ( 1) per Maule J . " But, in R. vs Beck., [ , it was reiterated by way of clarification that corroborating evidence need not relate to 757 the particular evidence spoken to by a suspect witness, and that it was merely independent testimony which confirmed in some material particular not only the evidence that a crime had been committed but also that the accused person had committed it.
Referring to the statement of Lord Hailsham in Killbourne case, All England law reports 1982(1) page 815(g) it was observed: "The learned editors of Archbold para 1416, after, in our judgment correctly, stating that the corroborative evidence need not relate to the particular incident or incidents spoken to by the "suspect witness", express the view that 'Lord Hailsham 's dictum that the corroborative evidence must be "relevant to the evidence requiring corroboration" may be misleading '.
We agree.
We do not think that Lord Hailsham LC was expressing any support for the proposition of counsel for the appellant.
" The position of law in Rex vs Bhaskerville was, thus restored. 13.
However, a marked tendency in England towards arresting the formalism in regard to the specific words to be used to caution the jury against the danger of accepting the testimony of the uncorroborated accomplice is now discernible.
In R. vs Spencer [ ; the grievance of the convicted person was that the trial judge, in cautioning the jury, failed to use the word 'dangerous ' in describing the risks of injustice involved in convicting a person on the testimony of an uncorroborated accomplice.
The Court of appeal and the House of Lords declined to set aside the verdict and said that the summing up did not involve some legalistic ritual to be incanted in the summing up.
However, in regard to the quality and extent of corroboration, in R. vs Donat, [19861 , it was reiterated that to count as corroboration, it is not enough that a piece of evidence merely supports the accomplice 's credibility, however, convincingly and independently; but it must go a little further and implicate the accused.
(See All England Reports: Annual Review 1986 page 158).
In Sharvana Bhavan vs State of Madras, (AIR the corroboration was held to be of two kinds: the first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second which arises for conclusion after the court is satisfied about the credibility of the approver as to the corroboration in material particulars not only of the commission of the 758 crime but also of the complicity of other accused persons in the crime.
If on the first area the court is not satisfied the second stage does not Arise.
The position is attractively presented in Halsbury: (IV Edition Vol.
II) Page 268.
"Corroboration is required or afforded only if the witness requiring or giving it is,otherwise, credible; if testimony falls of its own inanition, the question of his needing or being capable of giving, corroboration does not arise.
" However, the two areas of corroboration are not two separate, water tight compartments.
The evidence as a whole will have to be examined to reach conclusions on both aspects.
In Attorney General of Hongkong vs Wong Muko Ping, [ Lord Bridge of Harwich speaking for the Judicial Committee of the Privy council said: ".
It is said that this two stage approach is implicitly indicated by passages from speeches in the House of Lords in two of the leading authorities". " . .
The presence or absence of corroborated evidence may assist a jury to resolve, one way or the other, their doubts as to whether or not to believe the evidence of a suspect witness, it must, in their Lordship 's Judgment, be wrong to direct them to approach the question of credibility in two stages as suggested in the submission made on behalf of the defendant.
The controversy in the present case in the ultimate analysis, belongs to the second area, whether the approver 's testimony as to appellant 's complicity in the conspiracy could safely be held to have been corroborated by independent evidence on the material particulars The facts that require sequentially to be established are that appellant 's married life was in a serious disarray: that she and Nand Singh were on terms of illicit intimacy; that she also submitted herself to Ram Sarup (P.W. 2) in an ex marital relation; that on 13.11.1973 she implored Nand Singh and Ram Sarup to free her from a cruel husband by doing away with him; that she agreed that she would, 759 thereafter, live with Nand Singh as his wife and that after coming to know of Pritam Singh 's death she deliberately missed her mother in law, Mukhtiar Kaur (P.W. 19) into making a report to the police containing false and misleading information in an attempt to draw a red herring across the trial.
The evidence of P.Ws. 17 & 18 on the first two points has been discarded by the sessions court.
It is not also suggested that after the murder of Pritam Singh, appellant began to live with Nand Singh.
There was a considerable lapse of time between the death of Pritam Singh and their arrest.
There is no evidence to show that, in the interregnum, there was any liasion between the two. 16.
There is yet another impediment in accepting the evidence on an important area of the alleged conspiracy.
The incriminating circumstances in the evidence of the approver appearing against the appellant had had to be put to the appellant in her examination under Section 313 Cr.
The incriminating testimony of the approver pertaining to the case that on 13.11.1973 appellant wept and implored Nand Singh and Ram Sarup to do away with Pritam Singh and that appellant also agreed that she would, thereafter, live with Nand Singh has not been put to the appellant in the course of her examination under Section 313 Cr.
P.C. Appellant was not afforded an opportunity to submit an explanation to it.
That part of the evidence must for that reason, be excluded from consideration (See Harizan Mogha: 17.
On a consideration of the entire matter, it appears to us that the approver 's evidence in regard to the complicity of the appellant in the conspiracy lacks corroboration on certain material particulars necessary to connect the appellant.
A little more reassurance than is afforded by the State of evidence in the case is perhaps, necessary to convict appellant.
Appellant, in the circumstances would be entitled to the benefit of doubt.
At the time of the commission of the offence, the appellant, even on the basis of the observations, made by the session court, was about 15 xab years of age and was a "child" within the meaning of East Punjab Children 's Act 1949.
The relevant date is the date of the commission of the offence.
Section 27 of the Act provides: "27.
Sentences that may not be passed on child Notwithstanding anything to the contrary contained in any law, 760 no person who as a child at the date of the commission of the offence shall be sentenced to death or transported or committed to prison for any offence or in default of payment of fine, damages or costs: Provided that a child who is fourteen years of age or upwards may be committed to prison where the court certifies that he is of so unruly or of so depraved a character that he is not fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable".
The sessions court has invoked the proviso and has held that appellant was so depraved a character that none of the other methods in which the case could legally be dealt with is suitable in her case.
An examination of the legality or propriety of the procedure adopted in the case in the matter of the trial of a 'child ' under the East Punjab Children 's Act 1949 and as to the correctness of the view of the sessions court in appealing to the proviso to Section 27 and in sentencing appellant to imprisonment for life may not be necessary in this case, in view of our finding that appellant is entitled to the benefit of doubt.
In the result, this appeal is allowed and while the conviction and sentence of the other non appealing accused is left undisturbed, the conviction and sentence of the appellant is set aside and appellant is directed to be set at liberty forthwith.
N.P.V. Appeal allowed.

dataset_name: IN-Abs

summary:
% The prosecution alleged that the married life of the appellant, who was said to be 151/2 years of age, was in a serious disarray, that she and the non appealing accused were on terms of illicit intimacy, that she also submitted herself to PW 2 in an extra marital relation, that on 13.11.73 she implored the non appealing accused and PW 2 to free her from a cruel husband by doing away with him, that she agreed that she would, thereafter live with the non appealing accused as his wife, that the three designed and conspired to do away with the deceased, in pursuance of which the appellant persuaded her husband to go to the bus stand at Chandigarh at 9.30 a.m.
On 14th November, 1973, where the non appealing accused and PW 2 were waiting for him as pre arranged, and took him to Pinjore by bus, where they consumed liquor together and the non appealing accused purchased Ghotna, that while all the three were walking back to Chandigarh and climbed the way side hill the non appealing accused gave blows on the head of the unsuspecting deceased with the Ghotna, while PW 2 pinned him down, that they concealed the clothes and body of the deceased in the nearby bushes, that both of them returned to Chandigarh by night fall, and the nonappealing accused informed PW 2 that he, in turn, had informed the appellant of the death of her husband, that the mother of the deceased, PW 19, lodged a complaint on 13.12.73 about her missing son in writing with the Senior Superintendent of Police, Chandigarh, alleging that she had learnt that a certain person of the village Lahor Khoda with his two sons and the Sarpanch with his two other relatives had killed her son, the motive being that her son had developed illicit relations with the daughter of the person, that after coming to know of her husband 's death the appellant misled her mother in law PW 19.
into making a H 746 report to the police containing false and misleading information in an attempt to draw a red herring across the trial.
The non appealing accused was arrested on 3.4.75.
On his information exhibit P8, a pair of shoes, purse, 25 pieces of bones including an incomplete human skull were recovered.
The appellant and PW 2 were arrested on 8.5.75.
After completing the investigation, charges were brought against the appellants and the two accused for conspiracy and murder.
PW 2, who was one of the co accused, turned approver.
The trial court on the basis of the approver 's testimony as corroborated by other evidence held the non appealing accused and the appellant guilty of the offences under sections 302 and 120 B of the I.P.C. and sentenced them to imprisonment for life.
The High Court dismissed their appeals and confirmed the convictions and sentence.
In the appeal to this Court, it was urged that the evidence of the approver insofar as the compicity of the appellant was concerned, lacked corroboration on material particulars and that no conviction could be sustained on such uncorroborated accomplice 's testimony.
On the question as to: (1) the nature and extent of corroboration of an accomplice 's evidence; and (2) the procedure for the trial of offences by a 'child ' under the East Punjab Children 's Act, 1949, ^ HELD: 1.1 An accomplice, by long legal tradition, is a notoriously infamous witness, one who being partipes criminis, purchases his immunity by accepting to accuse others.
Section 114, illustration (b) of the Evidence Act envisages the presumptive uncreditworthiness of an accomplice.
But, then section 133 provides that a conviction is not illegal merely because it rests upon an accomplice 's uncorroborated testimony.
[753C D] 1.2 In indictments, particularly of serious crimes, counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars.
Judicial experience was, thus, elevated to a rule of law.
lt is a practice which deserves all the reverence of law.
[753D E] l.3 The nature and extent of the corroboration must necessarily 747 vary with the nature and circumstances of each case.
Enunciation of any general rule, valid for all occasions is, at once, unwise and unpractical.
[753F] 1.4 The corroboration has to be of two kinds; first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second which arises for conclusion after the court is satisfied about the creditibility of the approver as to the corroboration in material particulars not only of the commission of the crime but also of the complicity of other accused person in the crime.
If on the first area the court is not satisfied, the second does not arise.
However, the two areas of corroboration are not two separate, watertight compartments.
The evidence as a whole will have to be examined to reach conclusions on both aspects.
[757G H; 752C] Sharvana Bhavan vs State of Madras, AIR 1966 SC 1273 referred 1.5 The controversy in the present case in the ultimate analysis, belongs to the second area, whether the approver 's testimony as to appellant 's complicity in the conspiracy could safely be held to have been corroborated by independent evidence on the material particulars.
[758F G] There was a considerable lapse of time between the death of decease and the arrest of the appellant and the non appealing accused.
There is no evidence to show that, in the interregnum, there was any liasion between the two.
The incriminating circumstances in the evidence of the approver appearing against the appellant that on 13.11.1973 appellant wept and implored the non appealing accused and PW 2 to do away with the deceased and that appellant also agreed that she would, thereafter, live with the non appealing accused had had to be put to the appellant m the course of her examination under section 313 Cr.
P.C. but this has not been done.
Appellant was not afforded an opportunity to submit an explanation to it.
That part of the evidence must for that reason, be excluded from consideration.
[759C E] Harijan Magha Jesha vs State of Gujarat, , referred to.
On a consideration of the entire matter, the approver 's evidence in regard to the complicity of the appellant in the conspiracy lacks corroboration on certain material particulars necessary to connect the 748 appellant.
A little more reassurance than is afforded by the state of evidence in the case is perhaps necessary to convict appellant.
The appellant in the circumstances would be entitled to the benefit of doubt.
[759F] At the time of the commission of the offence, the appellant, even on the basis of the observations made by the sessions court, was about 15 years of age and was a 'child ' within the meaning of East Punjab Children 's Act, 1949.
The sessions court invoked the proviso to section 27 of the Act and held that the appellant was so depraved a character that none of the other methods mentioned in the section in which the case could legally be dealt with was suitable in her case.
[759G; 760C] In view of the finding that the appellant is entitled to the benefit of doubt, any examination of the legality or propriety of the procedure adopted in the case in the matter of trial of a 'child ' under the East Punjab Children 's Act, 1949 and the correctness of the view of the sessions court in appealing to the proviso to section 27, and sentencing appellant to imprisonment for life is not necessary .
[760 C D] Appeal allowed.
Conviction and sentence of the appellant set aside and appellant directed to be set at liberty.
However, conviction and sentence of the other non appearing accused left undisturbed.
[760E] Wigmore on Evidence: 3rd Editition Vol.
VII para 2054, Rex vs Bhaskerville, , Rameshwar Kalyan Singh vs State of Rajasthan ; , Director of Public Persecutions vs Kill bourne, [1973] Appeal A.C. 729/All England law reports 1982(1) page 815(g), R. vs Beck, , R. vs Spencer, ; , R. vs Donat, , Attorney General of Hongkong vs Wong Muko Ping and Halsbury 's Laws of England IV Ed.
II p. 268, para 454 referred to.


judgement:
Civil Appeal No. 793 of 1988 etc.
From the Judgment and order dated 25.6.1987 of the Andhra Pradesh High Court in Writ Petition No. 8019 of 1987 F.S. Nariman, G.L. Sanghi, A.K. Sen, Dr. L.M. Singhvi, Anil B. Diwan, K. Srinivasamurthy, Kailash Vasdev, K.K. Jain, K.S. Murthy, U.K. Khaitan, Ajay K. Jain, Vipin Sanghi, Parveen Kumar, A.M. Singhvi, R.S. Yadav, H.M. Singh, N. Waziri, Vinoo Bhagat, Shree 162 Narain and Sandeep Narain for the Appellants.
Shanti Bhushan, V.B. Reddy and K. Rajendra Chaudhary for the Respondents.
The Judgment of the Court was delivered by OZA, J.
Leave granted.
These special leave petitions have been filed against the judgment of the Division Bench of the Andhra Pradesh High Court delivered on 25.6.87 wherein the learned Judges set aside the orders passed by learned Single Judge, of the High Court in Letters Patent Appeal.
The petitioners had filed writ petitions before the High Court which were heard by a learned Single Judge and who by his orders quashed the notification issued by the respondent Board dated 21.7.81 unilaterally altering the conditions of supply.
The learned Single Judge held that the Board had no authority unilaterally to alter the conditions of supply of electricity but on appeal the learned Judges of the Division Bench set aside the judgment passed by the Single Judge and held that the Board respondent had the statutory authority under Section 49 of the Electricity Supply Act, 1948 ( 'Act ' for short) to lay down the conditions of supply and if any doubt exists Section 18 clause (c) of the Act confers powers on the Board.
It is against this judgment of the Division Bench in all these petitions which were disposed of by a common judgment that these special leave petitions have been filed and therefore these matters are before us.
On 21.7.81 the respondent A.P. State Electricity Board issued a notification exercising powers under Sec. 49 of the Act.
By this notification the Board unilaterally altered the conditions of supply for the high tension consumers of electricity.
Admittedly these consumers are the industries which consume high tension power.
This notification stated that the industries will be supplied the power for the contracted demands between 1501 KVA to 5000 KVA, at 33 KV whereas industries whose contracted demand is above 5000 KVA shall avail supply at 132 KV or 220 KV.
To comply with this requirement high tension consumers i.e. the present appellants before this Court will either have to replace the existing transformers and high tension control gears or to instal transformers with control gears to step down supply from the now proposed voltage to the existing voltage and these modifications have to be made by the industries concerned within a period of 6 months from the date of this notification.
It was further 163 provided that after the lapse of six months if the consumers i.e. appellants have not made arrangements for receiving the supply at the proposed voltage and continue to receive supply at the voltage at which they were receiving on the date of the notification they will have to pay additional surcharge ranging between 2.5% to 13% on their power bills.
It is alleged that after this notification the appellants and other similarly situated consumers made a representation to the Board and they were told that as the transmission and transformation losses in respect of supply to these high tension consumers is very much it has been decided by the Board to minimise these transmission losses and it is for that purpose that it has been decided to supply at high voltage as transmission of high voltage current results in lesser losses of transmission and by this process energy which is lost in the transmission will be saved and it was for this purpose that this policy has been adopted by the Board.
According to the appellants consumers their grievance was that for the purpose of receiving power at a high voltage they will have to instal their own transformers which would involve heavy capital investments and for supply of power at high voltage even the Board will have to lay new lines of supply and all this would not be economical as compared to the contemplated loss of power on account of transmission but as Board did not accept the representation, the petitioners filed their petitions before the High Court and the learned Single Judge of the Andhra Pradesh High Court by his judgment dated 24.9.82 allowed the writ petitions against the judgment of the learned Single Judge, in appeal before the Division Bench the judgment of the learned Single Judge was set aside and the Division Bench took the view that Sec.
49 of the Act coupled with Sec.
18(c) of the same Act empowered the electricity board to unilaterally alter the terms and conditions of supply and it is against this judgment of the Division Bench that these appeals are before us.
Before this notification the electricity was being supplied to high tension consumers at 11000 Voltes or 33000 Voltes.
By this notification they were expected to receive supply at higher voltage specified in the notification.
The main contention advanced before the High Court in the writ petitions was that it was not open to the Board to direct the existing consumers to take the supply at a higher voltage then the voltage at which they were receiving supplies or to impose an additional charge on the supply.
It was contended before us that in view of Sec.
26 read with 164 clause 6 of the schedule to the it is not open to the Board to unilaterally impose supply at a higher voltage.
According to the learned counsel as a particular customer has requisitioned supply of power at a particular voltage and Board had agreed to do, it was not permissible now to alter the conditions.
On the contrary on behalf of the Board it was contended that Sec. 26 of Electricity Supply Act no doubt puts an obligation on the Board to supply power as were the obligations of the licensee under the 1910 Act and also the provisions of Clause 6 of the Schedule will apply to the Board but it was contended that it has not been provided anywhere in Clause 6 that it is the choice of the consumer to require supply at a particular voltage.
It was also contended that clause 6 sub clause 5 provides the requisition to be in the form and the prescribed form does not indicate that it is open to the consumer to require the supply at any particular voltage.
It was also contended that in fact Sec.
26 itself talks of subject to the provisions of this Act and Sec.
49 of the Act confers power on the Board to lay down the conditions of supply.
It was also contended on behalf of the respondent Board that the Board chose to switch over to supply of high voltage in order to minimise the transmission losses as according to them if the electricity is transmitted at 33000 volts instead of 11000 volts the transmission loss will be reduced to 1/19th and if the supply is further increased to 132 KV the transmission loss will be further reduced to 1/44th with the result that the transmission losses could be reduced to 99.3%.
It was also contended on behalf of the petitioners that in case of some industries the question of transmission losses is not substantial as some of them are situated just near the supply station and even if there is some loss it is negligible as compared to the heavy cost of installation which will have to be put up.
An attempt was also made to suggest that when the distance is very short the transmission loss will be very low but one fact to be kept in consideration which was lost sight of at some stage that transmission loss is not only related to the distance that the power travels but also the quantum of power that travels.
Admittedly all these petitioners are consumers who are consuming huge quantities of power which is clearly indicated from the bills, charts of which were filed by the petitioners themselves before this Court indicating that their yearly power bills which run into crores and it is in this context that the question of transmission loss will have to be considered.
The main controversy which was before the High Court was as to whether the Board has power unilaterally to alter the conditions of supply.
On behalf of the petitioners it was contended that Sec.
49 only confers powers on the Board to revise the tariffs periodically and it was 165 contended that a little before the present disputed notification was issued the tariffs were revised and that revision of tariffs was done keeping in view all the relevant consideration including all losses in transmission and transformation and therefore immediately after the revision of the tariffs there was no occasion for exercise of power under Sec. 49 by issuing the impugned notification.
It was contended that Sec.
26 read with clause 6 of the Schedule is an obligation on the Board to supply the power as requested by the consumer.
26 reads: "26.
Board to have powers and obligations of licensee under Act 9 of 1910.
Subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licensee under the (9 of 1910) and this Act shall be deemed to be the licence of the Board for the purposes of that Act: Provided that nothing in Sections 3 to 11, sub sections (2) and (3) of Section 21 and Section 22, sub section (2) of Section 22 A and Sections 23 and 27 of that Act or in Clause I to V, Clause VII and Clauses IX to XII of the Schedule to that Act relating to the duties and obligations of a licensee shall apply to the Board: (Provided further that the provisions of Clause VI of the Schedule to that Act shall apply to the Board in respect of that area only where distribution mains have been laid by the Board and the supply of energy through any of them has commenced. )" It is clear from a perusal of this provision that the obligation under Sec. 26 is subject to the provisions of this Act.
Clause 6 pertaining to requisition for supply to owner and occupiers of the electricity provides for conditions under which a licensee will be bound to supply and sub clause 5 of clause 6 of the Schedule under 1910 Act requires the requisition to be in a form prescribed and the form prescribed does not indicate that the consumer is free to ask for the supply at a particular voltage only.
On behalf of the petitioners it was vehemently contended that Sec.
49 confers powers on the Board only to revise the tariffs and it has not conferred any power on the Board to alter unilaterally the supply 166 at a particular voltage.
The main contention on behalf of the petitioner was that Sec.
49 only empowered the Board to fix uniform tariffs and in support of the contention reliance was placed on the case of Maharashtra State Electricity Board vs Kalyan Borough Municipality & Anr., ; and Bisra Stone Lime Company Ltd. & Anr.
vs Orissa State Electricity Board & Anr., ; In these cases no doubt Sec.
49 has been considered but the only question in these cases was pertaining to tariff and there was no occasion to consider the scope of Sec.
49 Clause I which empowers the Board to lay down conditions of supply.
49 reads: "49.
Provision for the sale or electricity by the Board to persons other than licensees.
(1) Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs.
(2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely: (a) the nature of the supply and the purposes for which it is required; (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee; (c) the simplification and standardisation of methods and rates of charges for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas.
(3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having 167 regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.
(4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person.
" Sub clause 1 of this Section clearly provides that the Board could lay down conditions of supply and for purposes of such supply it may also frame uniform tariffs.
Sub section 1 therefore clearly authorises the Board to lay down the conditions of supply and have to fix uniform tariffs is provided for in sub clause 2.
If there is any doubt sub clause 4 makes it clear that in exercise of powers under this Section Board could fix the conditions of supply and also fix the tariffs and it was therefore contended on behalf of the respondent Board that although the Division Bench referred to Sec.
18(c) still the Board has enough power under Sec.
49 itself to lay down the conditions of supply.
This question about the conditions of supply specifically came up before this Court in the case of Jagadamba Paper Industries (Pvt.) Ltd. Etc.
vs Haryana State Electricity Board & Ors.
Etc., ; and it was observed at page 172: "We are of the view that the Board has been conferred statutory power under section 49(1) of the Act to determine the conditions on the basis of which supply is to be made.
This Court in Bisra Stone Lime Company Ltd. & Anr.
vs Orissa State Electricity Board & Anr., ; took the view that enhancement of rates by way of surcharge was well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act.
What applied to the tariff would equally apply to the security, that being a condition in the contract of supply.
Each of the petitioning consumers had agreed to furnish security in cash for payment of energy bills at the time of entering into their respective supply agreements.
There was no challenge in these writ petitions that the demand of security at the time of entering into supply agreements has to be struck down as being without jurisdiction.
Section 49(1) of the Act clearly indicates that the Board may supply electricity to any person upon such terms and conditions as the Board thinks fit.
In exercise of this power the Board had initially introduced the condition regarding security and 168 each of the petitioners had accepted the term.
" It is not disputed that although under the original agreement the electricity Board was bound to supply power at a particular voltage but after the lapse of that agreement by lapse of time subsequent agreement provided the clause where the right has been reserved by the Board to alter the conditions of supply and that is why the only contention advanced by the petitioners was that under Sec.
49 the respondent Board had no authority unilaterally to alter conditions of supply and as discussed above this contention cannot be accepted.
The Division Bench relied on provisions contained in Sec.
18 sub clause (c) which reads: "to exercise such control in relation to the generation, distribution and utilisation of electricity within the State as is provided for by or under this Act.
" It is no doubt true that under these provisions the Board exercises control in relation to generation, distribution and utilisation of electricity and the learned Judges of the Division Bench felt that although specific power is not there under Sec.
18(c) but it is wide enough to authorise the Board to alter the conditions of supply.
It is no doubt true that Sec.
18(c) confers power of control on the Board but as indicated above, in our opinion the specific power under Sec.
49 clause I is clear enough wherein Board has been authorised to lay down the conditions of supply.
On the merits of the contention various controversies were raised in respect of the calculations and mathematics of calculating the transmission loss.
An attempt was also made on behalf of petitioners to suggest that the way of calculations suggested by the respondent Board does not appear to be correct but it is not disputed and it can not be disputed that where power travels through the transmission lines there is always some loss of power.
It is also a fact which could not be disputed that loss of power will be related to the quantum of power which travels through the transmission line and the distance through which power has to travel.
It is also a fact which could not be disputed that if power is transmitted at high voltage the loss during transmission is less as compared to the loss when the power is transmitted at a low voltage and in view of these accepted scientific facts it is not necessary for us to go into the calculations and mathematical part of it to find out 169 as to whether the calculations submitted by the Board is correct or those suggested on behalf of the petitioners are correct.
The fact remains that lower the voltage higher the transmission loss, higher the voltage lower the transmission loss and it is also not in dispute that these appellants are high tension consumers consuming substantial power and therefore when power travels through transmission lines even for short distances it is not smaller quantities of power but heavy quantities of power is transmitted and in this view of the matter it could not be said that the policy decision taken by the Board to supply these high tension consumers power at high voltage so that transmission loss and transformation loss should be minimised could not be said to be any wrong decision or a decision not supported by scientific reasoning.
It was also contended that 6 months ' time granted was too short in view of the fact that these consumers were expected to instal transformers and equipments which ordinarily are not easily available in this country and which involved high capital investment.
It was also suggested that even the respondent Board has not been able to lay lines for supply at high voltage as during the course of this litigation most of the appellants have accepted to receive the supply at the high voltage and therefore it was contended that the enhanced rate for supply at low voltage which was brought into force immediately after six months of the issue of this notification is not only justified as it was termed by learned counsel for the petitioners to be penal but it was contended that it is not reasonable as in spite of the fact that the petitioners accepted to receive supply at high voltage and some of them have even installed the transformers and other equipments but still Board was not in a position to lay supply lines for the high voltage supply of power and on this basis in substance it was vigorously contended that this enhanced rate should not be made chargeable from the date immediately after the expiry of six months after the issue of this notification.
In one of the case i.e. A.P. Paper Mills which has been specifically alleged that inspite of the fact that the petitioner has installed a transformer but the respondent Board could not lay down the lines as there was some injunction issued against the Board when the work for laying the lines started still although the Board is not in a position to supply the power at high voltage still the appellant is compelled to pay the higher rate as he is not receiving power at the high voltage indicated in the notification.
170 So far these aspects of the matter are concerned admittedly they were not before the High Court.
Originally what was challenged in the High Court was the power of the Board to unilaterally alter the conditions of supply.
This question about from what date the higher rates should be charged and as to whether grant of six months time to complete the preparation for receiving the supply at a higher voltage is reasonable or not were not before the High Court (Single Judge) nor before the Division Bench and in fact, tacts in respect of each petitioner on the basis of which these questions could be considered are also not before us although an attempt has been made by some of the appellants by additional affidavits and documents to place it before us.
But it is not sufficient nor it is proper to decide these questions.
After all the respondent Board is an authority under a Statute and if the appellants are able to satisfy the authority that the time of six months in the context of the circumstances when this notification was issued was not reasonable it is open to the Board to consider from what date to enforce the enhanced rates for supply at lower voltage taking into consideration all the cases and also keeping in view the circumstances in connection with installation of transformers and laying the lines which have come during the course of these hearings.
It is also open to the Board that in the special facts of any particular case to provide a separate date for enforcement of the higher rate.
But all these questions can not be decided in the scope of the present appeals.
It was also contended by the appellants that by altering this condition of supply the appellants will have to undergo huge capital investment burden.
On the other hand on behalf of the Board it was contended that if the bills of supply of power of these appellants are looked at it will indicate that what they are supposed to spend on the installation in stepping down power is not so heavy and it was contended that ultimately if this is not done by the Board the loss incurred on account of transmission has to be borne not only by these consumers who are substantially responsible for the transmission loss but by those also who are not at all responsible for heavy transmission losses.
An attempt was made to suggest that when power is supplied to the rural consumers mainly agriculturists and small consumers the power has to be supplied at long distance and that is also to be supplied at low voltage and therefore it was contended that in fact the long distance supply to smaller consumers is really responsible for the loss during transmission for which these high tension consumers i.e. the present appellants are being penalised as they are being called upon to pay at a higher rate but this argument suffers from a fallacy.
As indi 171 cated above transmission loss no doubt is on account of low voltage when it travels long distance as it is related to distance but the quantum of loss also is proportional to the quantum of power that travels through the transmission lines and it could not be disputed that the power that has to travel to meet the requirements of small agricultural consumers is negligible as compared to the quantum of power that is supplied to these high tension consumers, the present appellants and therefore there is no substance in the contention that the loss incurred in supply to the smaller consumers is being recovered from the present appellants, the high tension consumers.
It was also contended that under Sec.
18(A)(1) read alongwith Sec.
18(A)(2) of the Act, it is the duty of the Board to establish and maintain sub stations and main transmission lines and it is not open to the Board to transfer this responsibility to the consumers by requiring them to make their own arrangements to step down electricity after taking it at a high voltage.
Section 2 sub clause 7 of the Act defines the main transmission lines but ll this in sub clause 7 of Section 2 refers to is about transmission of electricity from a generating station to another generating station or to a sub station.
Apparently it refers to all the lines and equipments required to be installed from the generating station to the distributing sub station.
Apparently both being that of the Board itself it has to maintain it and on this basis it could not be contended that if the consumer has to receive power at a high voltage and if he wants to utilise it at a low voltage it is not his responsibility to instal equipments for stepping down the power from high voltage to low voltage.
It was also contended that Sections 28 and 29 read with Sections 18 and 18A of the Act indicate that where any scheme as contemplated under Sections 28 and 29 is to be formulated the procedure prescribed therein had to be followed and it was suggested that as the policy of the Board to change over of supply of power at a high voltage involves heavy expenditure it will fall within the scope of Sections 28 and 29 and therefore it could not be done without following the procedure indicated in these provisions.
A perusal of these sections 28 and 29 of the Act indicates that it is altogether a different function rather than what is being done by the Board in exercise of the powers under Section 49 clause 1 and therefore this contention that the procedure indicated in Sections 28 and 29 has to be followed, is of no substance.
In the light of discussions above therefore, in our opinion, there 172 is no substance in these appeals.
But as indicated earlier as regards the imposition of the higher tariff on failure to receive the supply at the voltage indicated in the notification from the date specified therein or not will be open to the Board for consideration and the parties may approach the Board and it will be open to the Board in the facts and circumstances of each case not to levy the surcharge indicated in the notification during a particular period and in so doing the Board will take into consideration the facts and circumstances of each particular case.
The appeals are therefore dismissed.
In the circumstances of the case, parties are directed to bear their own costs.
H.S.K. Appeals dismissed.

summary:
% On 21st July, 1981, the Respondent Andhra Pradesh State Electricity Board issued a notification exercising power under section 49 of the Electricity Supply Act, 1948.
By this notification the Board unilaterally altered the conditions of supply of electricity to high tension power consumers.
This notification stated that the industries will be supplied the power for the contracted demands between 1501 KVA to 5000 KVA, at 33 KV whereas industries whose contracted demand is above 5000 KVA shall avail supply at 132 KV or 220 KV.
To comply with this requirement high tension consumers will either have to replace the existing transformers and high tension control gears or to instal transformers with control gears to step down supply from the now proposed voltage to the existing voltage and these modifications have to be made by the industries concerned within a period of 6 months from the date of this notification.
It was further provided that after the lapse of six months if the consumers have not made arrangements for receiving the supply at the proposed voltage and continue to receive supply at the voltage at which they were receiving on the date of the notification they will have to pay additional surcharge ranging between 2.5% to 13% on their power bills.
The appellants which were consumers of high tension power challenged the validity of this notification by way of filling writ petitions before the High Court.
A Single Judge allowed the writ petitions.
In appeal a Division Bench took the view that section 49 of the Act coupled with section 18(c) of the same Act empower the electricity board to unilaterally alter the terms and conditions of supply, and set aside the judgement of the Single Judge.
Hence these appeals by Special 160 Leave against the Judgment of the Division Bench.
The main controversy was whether the board had power unilaterally to alter the conditions of supply of electricity.
Dismissing the appeals this Court, ^ HELD: The contention of the appellants that under section 49 the respondent board had no authority unilaterally to alter the conditions of supply cannot be accepted.
Sub clause 1 of section 49 of the Electricity Supply Act, 1948 clearly provides that the board could lay down conditions of supply and for purposes of such supply it may also frame uniform tariffs.
Sub clause t therefore clearly authorises the Board to lay down the conditions of supply and have to fix uniform tariffs is provided for in sub clause 2.
If there is any doubt sub clause 4 makes it clear that in exercise of powers under this section Board could fix the conditions of supply and also fix the tariffs.
[l68B C; 167B C] The Division Bench relied on provisions contained in Section 18(c).
It is no doubt true that under these provisions the Board exercises control in relation to generation, distribution and utilisation of electricity and the learned Judges of the Division Bench felt that although specified power is not there under Section 18(c) but it is wide enough to authorise the board to alter the conditions of supply.
It is no doubt true that section 18(c) confers power of control on the board but in our opinion the specific power under section 49 Clause t is clear enough wherein board has been authorised to lay down conditions of supply.
[168C E] The contention that the policy of the Board to change over of supply of power at a high voltage which involves heavy expenditure will fall within the scope of sections 28 and 29 and therefore it could not be done without following the procedure indicated in these provisions has no substance.
A perusal of sections 28 and 29 of the Act indicates that it is altogether a different function rather than what is being done by the Board in exercise of the powers under Section 49 Clause 1.[171G] As regards the imposition of the higher tariff on failure to receive the supply at the voltage indicated in the notification from the date specified therein or not will be open to the Board for consideration and the parties may approach the Board and it will be open to the Board in the facts and circumstances of each case not to levy the surcharge indicated in the notification during a particular period and in so doing the board will take into consideration the facts and circumstances of each particular case [172A B] 161 The contention that the loss incurred in respect of smaller consumers is recovered from the present appellants, the high tension consumer, has no substance.
The transmission loss no doubt is on account of low voltage when it travels Long distance as it is related to distance but the quantum of loss also is proportional to the quantum of power that travels through the transmission lines and it could not be disputed that the power that has to travel to meet the requirements of small agricultural consumers is negligible as compared to the quantum of power that is supplied to these high tension consumers.
[170H; 171A B] The contention that under section 18(A)(I) read alongwith section 18(A)(23) of the Electricity Supply Act it is the duty of the board to establish and maintain sub stations and main transmissions lines and it is not open to the board to transfer this responsibility to the consumers by requiring them to make their own arrangements to step down electricity after taking it at a high voltage has no substance.
Section 2 sub clause 7 of the Act defines the main transmission lines but all this in sub clause 7 of section 2 refere to is about transmission of electricity from a generating station to another generating station or to sub station.
Apparently it refers to all the lines and equipments required to be installed from the generating station to the distributing sub station.
Apparently both being that of the Board itself it has to maintain it and on this basis it could not be contended that if the consumer has to receive powers at a high voltage and if he wants to utilise it at a low voltage it is not his responsibility to instal equipments for stepping down the power from high voltage to low voltage.
[171C E] Maharashtra State Electricity Board vs Kalyan Borough Municipality & Anr., ; ; Bisra Stone Lime Company Ltd. & Anr.
, vs Orissa State Electricity Board and Anr.
, ; and Jagadamba Paper Industries (Pvt.
) Ltd. Etc.
vs Haryana State Electricity Board & Ors.
Etc., [1984] I S.C.R. 165, referred to.